Felony charge dropped in gun-at-school case

CRIME & THE COURTS /

In a 5-year-old case that opened the door for moreaggressive searches of Ohio students, a Franklin County judge agreed on Thursday to drop a felony charge against a former Whetstone High School student who brought a gun and bullets to school.

A grand jury originally indicted Joshua Polk with a felony count of possessing a firearm in a school safety zone after a bus driver found an unattended bag on a Whetstone school bus. The bag was searched on Feb. 3, 2013, by a civilian school security officer, who identified the owner as Polk.

Hearing that Polk might be involved in a gang, the officer took the bag to the principal’s office, where it was searched again and found to contain 13 bullets. Polk was stopped in a hallway, where another book bag in his possession was searched and found to contain a gun.

Common Pleas Judge Tim Horton granted a motion in September 2014 by the Franklin County Public Defender’s Office to suppress the search evidence, ruling that the second search was based solely on rumors of Polk’s gang involvement.

The Franklin County Court of Appeals Court agreed: “The need to determine ownership of the bag and to determine that it did not pose a hazard justified the limited intrusion of opening the (first) bag and making a cursory examination of its contents,” Judge Jennifer Brunner wrote in the 2-1 majority. “After the initial search, all justifications for examining the (second) bag’s contents were fulfilled and no further justification existed to search the bag.”

The Franklin County Prosecutor’s Office appealed to the Ohio Supreme Court, arguing that the “exclusionary rule,” under which evidence collected in violation of the Fourth Amendment can be inadmissible in court, applies to police misconduct but not public school employees.

Prosecutor Ron O’Brien said at the time that “teachers are authorized to completely search an apparently abandoned book bag to determine ownership and for safety purposes.”

The Ohio Supreme Court agreed unanimously in May that the search of the first bag was permissible, “as long as it followed school protocol,” G.W. Wharton, a Franklin County assistant prosecutor, said Friday.

Polk, who had served 10 days in jail for the offense, pleaded guilty Thursday to a misdemeanor charge of attempted possession of a firearm in a school zone. Common Pleas Judge Chris Brown credited Polk for time served and terminated the original case.

“There was nothing to gain from pursuing it further,” said Wharton, noting that Polk has had no gun-related or other serious charges since.

“The case law now is helpful to the schools,” he said. “Obviously, we want students to be as safe as possible.”