The opinion
Harsha, Judge,
concurring in part and dissenting in part.
{¶ 27} Initially, it appears that the court’s use of the word “Plaintiffs” in the first sentence of its discussion is a scrivener’s error. The court clearly set out the ‘appropriate law, i.e., that it must construe the evidence against the moving
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party, i.e., the defendants. It did so in the paragraph immediately preceding its discussion. Having properly set forth the law, the court must have inserted “Plaintiffs” when it meant to use “Defendants” in its analysis. If the court were going to ignore the law, it makes no sense to bring attention to that fact by stating the law in the immediately preceding paragraph.
{¶ 28} Moreover, the court’s finding that the searches are consensual is erroneous, but amounts to harmless error. When an individual consents to a search, that person waives the protection of the Fourth Amendment’s reasonableness requirement. Upon finding that a search is consensual, there is no need to conduct a reasonableness analysis because the individual has made a decision not to assert the protection of the Fourth Amendment. Consensual searches are conducted outside the framework of the Fourth Amendment. See Katz Ohio Arrest, Search and Seizure (2001 Ed.), Section 18.1.
{¶ 29} Clearly, the court’s finding that these searches are consensual is wrong as a matter of law. The commissioners must establish by clear and convincing evidence that consent to a search is voluntary.
Bumper v. North Carolina
(1968), 391 U.S. 543, 548 , 88 S.Ct. 1788 , 20 L.Ed.2d 797 . In my view, the government cannot restrict access to its offices and services upon the condition that the public waive its Fourth Amendment protection. The county commissioners have attempted to do so by adopting a policy that states that the public must consent to a search or be denied access to public buildings. Any “consent” that is obtained in that manner is coerced and not given freely or voluntarily as a matter of law.
{¶ 30} That conclusion should not end our analysis, however. The United States and Ohio Constitutions prohibit “unreasonable searches.” See United States Constitution, Fourth Amendment and Section 14, Article I of the Ohio Constitution. The real issue posited by the defendant’s motion for summary judgment is whether the searches implemented under the commissioners’ policy are reasonable. The trial court went on to answer that question in spite of erroneously finding the searches to be consensual. Thus, its ruling on the consent issue is harmless error.
{¶ 31} I conclude that the trial court correctly found that searches conducted under the commissioners’ policy are reasonable within the meaning of the Fourth Amendment. The question of whether a search is reasonable is determined by balancing the need for a search against the invasion of privacy that the search entails. See LaFave, Search and Seizure (3d Ed.), Section 10.7(a), citing
Camara v. Mun. Court of City & Cty. of San Francisco
(1967), 387 U.S. 523, 535 , 87 S.Ct. 1727 , 18 L.Ed.2d 930 .
{¶ 32} In order to assess the threshold showing of need, courts may take judicial notice of tragedies and violent outbreaks across the country and their
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consequent danger to the public at large, public property, and employees.
Downing v. Kunzig
(C.A.6, 1972), 454 F.2d 1230 ;
Davis v. United States
(D.C.App.1987), 532 A.2d 656 ;
Rhode Island Defense Attorneys Assn. v. Dodd
(R.I.1983), 463 A.2d 1370 . In dealing with irrational and unpredictable acts, a showing of specific need is not realistic.
{¶ 33} In balancing this recognized need for public safety against individual privacy concerns, courts have focused upon the minimal scope of the searches, their nonaccusatory nature, and their lack of associated stigma in approving them. Likewise, the fact that the purpose of these searches is not to uncover criminal wrongdoing plays a role in their reasonableness. Finally, their uniform application to all individuals, as opposed to selective or discretionary enforcement, promotes their legitimacy. Where the risk to public safety is substantial and real, blanket suspicionless searches that are calibrated proportionately to the risks at hand are reasonable for Fourth Amendment purposes. See
Indianapolis v. Edmond
(2000), 531 U.S. 32, 47-48 , 121 S.Ct. 447, 457 , 148 L.Ed.2d 333 (no need for individualized suspicion in searches at governmental buildings where the need to ensure public safety is particularly acute and referring to “now routine” searches at airports and entrances to courts and other official buildings); and
Chandler v. Miller
(1997), 520 U.S. 305, 323 , 117 S.Ct. 1295 , 137 L.Ed.2d 513 (blanket searches may be reasonable at entrances to courts and other official businesses). “Area entry” searches are unfortunately becoming a necessary fact of life in today’s unsettled world. Witness the approach that courts have given to such searches in the airport context. See, e.g.,
United States v. Davis
(C.A.9, 1973), 482 F.2d 893 .
{¶ 34} Here, the evidence indicates that the searches are “relatively brief,” no longer than an elevator ride. They are nonselective, nonaccusatory, and minimally intrusive. There is no feasible way to limit the number of persons who are subjected to inspection, nor is there a lesser intrusion that will be successful in detecting weapons or explosives. Accordingly, I agree with the trial court that in balancing their need against their invasive impact, they are reasonable and pass constitutional muster.
{¶ 35} Therefore, I dissent from the majority’s treatment of the appellant’s first and third assignments of error. But I concur in judgment and opinion concerning the second assignment of error. Thus, I would affirm but remand for the sole purpose of correcting the court’s scrivener’s error.