O.W. v. Carr et al.

Question Presented

Whether police and school officials need to obtain a search warrant when searching a child’s phone in school for the purpose of generating evidence to be used against the child in criminal proceedings.

Background

Searches must be “reasonable” to comply with the Fourth Amendment. Usually, this means that government officials must obtain a warrant supported by probable cause before conducting a search. But some warrantless searches are still deemed reasonable because they fit into one of a group of recognized Fourth Amendment exceptions.

One of the recognized exceptions concerns searches of students in schools. In the case New Jersey v. T.L.O., 469 U.S. 325 (1985), the Supreme Court announced that school officials do not need to obtain a warrant when searching students because requiring them to get a warrant before every search would make maintaining school discipline and order nearly impossible. Instead, to be reasonable, the search has to be reasonably justified at its beginning, and the scope of the search needs to match its justification. The T.L.O. case was explicitly about school officials searching students for school discipline purposes, not police officers searching students so they can be prosecuted.

The Case

This case, brought on behalf of a minor whose initials are O.W., claims his Fourth Amendment rights (among others) were violated when school officials and police searched his phone without a warrant to gather evidence used to criminally prosecute him. The search was conducted under a policy agreement between the Virginia Beach Police Department and Virginia Beach City Public Schools that injects police officers into schools and involves them in what would otherwise be school disciplinary matters.

In the case, an older female student had voluntarily “sexted” then-thirteen-year-old O.W. a nude picture of herself. Other students started to gossip about the photo, and O.W. was believed to have shown the photograph to other students. Hearing about this, a teacher warned Assistant Principal Reid Baker, who immediately retrieved the school’s resident police officer (a school resource officer or “SRO”). For hours, the school official and officer questioned O.W., made him write and re-write confessions, and repeatedly searched his phone. Upon finally finding the image and obtaining O.W.’s confession that he had it, the officer charged him with possession and distributing child pornography.

While the charges against O.W. were eventually dropped, he has brought a suit against the school official, school board, officer, and police department alleging that this search violated his Fourth Amendment rights, among others. The District Court granted the defendants’ motion for summary judgment, finding that the search fit into the T.L.O. exception. O.W. is now appealing that determination to the Fourth Circuit Court of Appeals.

EPIC’s Brief

EPIC’s amicus brief explains why the search in this case was unconstitutional. First, the brief explains why T.L.O. should not apply to this case at all: this was more than a school administrator’s informal search for disciplinary searches—it was a law enforcement search for evidence of a crime. That places it squarely outside of T.L.O., so a warrant was required.

Second, the brief explains that the search was also unconstitutional because of the special privacy interests inherent in cell phones. All Fourth Amendment warrant exception searches are governed by reasonableness: the privacy invasion inherent to the person being searched must be outweighed by the government’s interest in conducting a warrantless search in order for the search to be deemed reasonable. Here, the privacy interest in cell phones is enormous, as the Supreme Court has recognized in Riley v. California and other cases. This is especially true for teens who spend enormous amounts of time on their phones, many of whom use phones to “sext,” a practice that has been found to be non-harmful when done consensually and that requires guidance from family and other trusted sources, not criminalization. Balanced against that is the government’s interest in maintaining order and discipline in schools. But that interest, as T.L.O. makes clear, is specific to the school disciplinary context, not the context of criminal investigations. The justification for this school was not school discipline: the assistant principal did not even know whether O.W. had violated school rules when the assistant principal retrieved the police officer.

EPIC’s brief also explains why this is an especially important racial justice issue. Black children are disproportionately subjected to school searches, school discipline, and arrest. Black girls are especially likely to have their sexuality policed. The overwhelming evidence shows that the injection of police officers in schools does not improve school officials’ ability to maintain order and discipline, but instead only results in increased arrests and prosecutions, mostly for vague crimes such as “disorderly conduct.” For this reason, EPIC argues that police searches in schools do not fit T.L.O.‘s justifications for school official warrantless searches that seek to aid in school discipline.

For those reasons, the defendants violated the Fourth Amendment by conducting a search without a warrant.

Legal Documents