The case arose from a March 2019 incident at Kempsville Middle School in Virginia Beach, where O.W., a 13-year-old student, showed classmates a sexually explicit photograph of a 14-year-old female student that he had received months earlier via Snapchat. When teachers reported the incident, Acting Assistant Principal Reid Baker questioned O.W. and searched his phone's photo gallery, while School Resource Officer Marie L. Carr later conducted a criminal investigation that led to juvenile charges for child pornography possession. Though the charges were ultimately dismissed after O.W. completed deferred disposition terms, he sued under 42 U.S.C. § 1983 alleging Fourth, Fifth, and Fourteenth Amendment violations.
Judge Agee rejected O.W.'s argument that cell phone searches require heightened protection following the Supreme Court's decision in Riley v. California, finding that the student had waived the argument through inadequate briefing. "Such a fleeting mention of Riley's impact on Terry and T.L.O. is exactly the sort of 'passing shot at [an] issue' that this Court has deemed to be waiver," Agee wrote, noting that O.W.'s entire argument consisted of just two sentences across his briefs. Even if preserved, the court concluded that "Riley does not displace T.L.O, and that T.L.O. directly controls this case."
The court delivered perhaps its strongest language in defending the continued vitality of T.L.O. in the digital age: "T.L.O.'s rationale—that 'maintaining security and order in the schools requires a certain degree of flexibility in school disciplinary procedures'—has not been undermined by the advent of cell phones, as the facts of this case reflect." Judge Agee emphasized that without prompt intervention, "O.W. and others may have continued to share in school the explicit photo of A.F. Not only would that have been illegal and against school policy, it also would have further harmed A.F. and continued to disrupt the school and its students."
The dispute began when District Judge Elizabeth W. Hanes granted summary judgment to all defendants on O.W.'s claims in 2023. The school district had operated under a 2008 Memorandum of Understanding with Virginia Beach police that stationed School Resource Officers on campus while maintaining that school officials could conduct searches based on reasonable suspicion, whereas SROs needed probable cause. When Baker received reports about the inappropriate photo, he questioned O.W. in the school's guidance office, asked him to write statements about the incident, and then searched his phone's photo gallery before turning the device over to Officer Carr.
O.W. had argued that the search violated the Fourth Amendment because it was conducted in coordination with law enforcement for criminal investigatory purposes, but the court found "simply no evidence that Officer Carr solicited or directed this course of conduct." Judge Agee noted that Baker "detained O.W. on his own authority, questioned O.W. himself (and then led the questioning once Officer Carr was later present), and asked for O.W.'s phone without any prompting from Officer Carr." The court also rejected claims that Baker's questioning violated the Fifth Amendment, finding O.W.'s confession voluntary despite his youth.
The Fourth Circuit's ruling aligns with other courts that have declined to extend Riley's warrant requirement to school searches, though it acknowledged the issue remains unsettled. Judge Agee noted that "Riley explicitly discounted the notion that its holding applied across the board," and emphasized that "federal courts should be wary of 'removing [] devices from the disciplinary tool-box with the blunt instrument of constitutional decree.'" The court also distinguished schools from other settings because "students have reduced privacy interests while at school" and many districts require students to sign electronic device policies.
The decision also rejected O.W.'s conspiracy claims against the City and School Board, finding insufficient evidence that officials "came to a mutual understanding to try to accomplish a common and unlawful plan." With no underlying constitutional violations established, the court affirmed summary judgment on all Monell municipal liability claims as well. The ruling provides clarity for school officials conducting searches of student devices, though advocates for student privacy rights may seek Supreme Court review of the cell phone search issue.