By Robert Phillips  

Deputy District Attorney (ret.) 

Case Law

• Consensual searches
• Civil liability and qualified immunity 
• Right to privacy and civil liability 
• The Third-Party Doctrine 
• Cellphones and one’s right to privacy of its contents 
• Monell liability of a government official 

Rule: As a general rule, a person giving one law enforcement agency express consent to search her cellphone does not authorize a different agency from doing the same, absent evidence of the person’s intent. The Third-Party Doctrine does not apply to instances where the “third party” to whom the information is initially revealed is a law enforcement agency. A government supervisor is not subject to Monell liability absent evidence of personal supervision or a sufficient causal connection between the supervisor’s wrongful conduct and the resulting constitutional violation. 

Facts: Haley Olson, a resident of Grant County, Oregon, ran a marijuana dispensary in her state where it is legal to do so. Olson’s boyfriend was Tyler Smith, a Grant County deputy sheriff. In Jan. 2019, Olson visited Idaho, where she got popped by the Idaho State Police for the illegal possession of marijuana. Olson told the officers that her boyfriend was a sheriff’s deputy in Oregon. Indeed, the officers found Smith’s business card in her car. Olson signed a consent form giving the Idaho officers consent to search her cellphone. Pursuant to this consent, the officers created an “extraction” (a copy) of the contents of her phone, downloading the information onto their own computers. Nothing in the consent form, however, referenced the possible later transfer of the information to another jurisdiction. In fact, the form specifically limited the use of the information found in her phone to being used against Olson in Idaho. The Idaho charges against Olson, however, were eventually dropped, never having reached an Idaho court. In the meantime, Grant County, Oregon, Sheriff Glenn Palmer heard about Olson’s Idaho arrest. He also was told that Olson had a relationship with his deputy. Allegedly concerned that Deputy Smith might have some connection with criminal activity, he asked the Idaho State Police for a copy of Olson’s cellphone extraction. They declined. So, Palmer asked Grant County Attorney and County Prosecutor Jim Carpenter to request the extraction information from the Idaho police.  

Carpenter did so, later testifying that he did so out of concern that there might be potentially discoverable information in Olson’s cellphone concerning Deputy Smith that, pursuant to Brady v. Maryland, might be discoverable impeachment information concerning the deputy. The Idaho police provided Carpenter with a flash drive containing the extracted information. Carpenter later testified that after reviewing Olson’s cellphone data for any Brady information, and finding none, he destroyed the flash drive. Specifically, he insisted that he “was not willing to provide the (information) to the sheriff or any other local agency,” a claim that conflicted with Palmer’s testimony that Carpenter had in fact offered to show him the information he’d received from the Idaho police.  

Haley Olson also heard rumors to the effect that Sheriff Palmer had received the extracted information from Carpenter. Her sources allegedly told her that the contents of her phone – including intimate photos of her and Deputy Smith – had been passed onto the Grant County Sheriff’s Department, where they were passed around the office. She testified that she’d heard gossip regarding her arrest, her cellphone, and her relationship with Deputy Smith, along with the existence of nude photos, all seemingly originating from the Grant County Sheriff’s Office.  

At one point, a friend of Sheriff Palmer’s told her that Palmer had told him that Olson had been arrested in Idaho and that he “hear[d] they found a bunch of drug activity on [Olson’s] phone.” Also, a deputy sheriff told Olson that he’d “heard there’s some pretty smokin’ pictures of you going around the sheriff’s office.” After that, a local resident pointed to Olson, referring to her as “the drug dealer that likes to f**k cops.” And yet another witness claimed to have observed a married couple in the Sheriff’s Office looking at nude photos of Olson on the husband’s phone.  

Olson sued Sheriff Palmer and Carpenter in federal court, alleging that a Fourth Amendment violation, a Monell claim against Sheriff Palmer and Grant County, and a common-law “intrusion upon seclusion” claim against the county. The district (trial) court granted summary judgment in Sheriff Palmer’s favor, dismissing the case for lack of supervisory liability, and for Carpenter on grounds of qualified immunity under the theory that his actions did not violate clearly established law. Olson appealed. 

Held: The Ninth Circuit Court of Appeals affirmed. In so doing, the court discussed a number of issues.  

(1) County Attorney/Prosecutor Carpenter’s Fourth Amendment Civil Liability: On the issue of Carpenter’s civil liability for violating Olson’s Fourth Amendment rights, the general rule is that a civil defendant is entitled to qualified immunity from civil liability unless the plaintiff is able to raise a genuine issue of material fact showing (1) “a violation of a constitutional right,” and (2) that the right was “clearly established at the time of [the] defendant's alleged misconduct.” (Pearson v. Callahan (2009) 555 U.S. 223.) The initial issue in this case was whether Carpenter’s review of the cell phone extraction, originally in the lawful possession of a law enforcement agency in a different jurisdiction (Idaho), without the plaintiff’s express consent, a warrant, or suspicion of further criminal activity by the plaintiff (Olson), violated Olson’s Fourth Amendment rights. Noting this to be an issue of first impression, the court ultimately held that Olson’s Fourth Amendment rights were in fact violated by Carpenter in this case.  

In analyzing this issue, the court started with the general rule that accessing the information in a person’s cellphone is in fact a Fourth Amendment search requiring a warrant or some other lawful basis (e.g., consent). (Riley v. California (2014) 573 U.S. 373, 386.) “A search of these devices (i.e., cellphones) ‘implicate[s] privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse.” (Id., at p. 393.) The issue here was whether the plaintiff’s consent for the Idaho State Police to download and view the contents of her cellphone extended to a different governmental agency in a different jurisdiction, allowing the second governmental agency to also review the contents of her cellphone. In other words: Did the consent Olson gave to the Idaho police automatically extend to Carpenter in Oregon   

As an “issue of first impression,” the court ruled that Olson’s consent to the Idaho police did not extend to the Oregon prosecutor. The court analyzed what it means to give consent. The case law is clear that the scope of one’s consent is determined “by asking ‘what would the typical reasonable person have understood by the exchange between the officer and the suspect ’” (Florida v. Jimeno (1991) 500 U.S. 248, 251.) The consent form signed by Olson in this case was titled “Idaho State Police Voluntary Consent to Search,” and stated that it “hereby authorizes the Idaho State Police or its agent to conduct the search” of her phone, and that “any evidence found as a result of such search could be taken and used against you in court.”  

Based upon this, the Court held that it was clear that this consent form envisioned a search of Olson’s phone by the Idaho State Police for evidence against her in criminal proceedings in Idaho. But the court determined that it was not necessary to decide whether the “in court” reference was restricted to Idaho, in that the cellphone evidence was not used against Olson in any court, or even to explore charges against Olson. To the contrary: “Olson’s consent form specifically limit(ed) authorization to the Idaho State Police or its agents.” What it did not do was give “the Idaho police the right to share (Olson’s) phone data with other law enforcement agencies for purposes unrelated to any criminal investigation, nor does the form consent to a search by Oregon police.”  

Per the court: “A plain reading of the consent form...confirms that Olson’s consent in Idaho did not extend to a search by a different law enforcement agency, in another state, for evidence of her boyfriend’s theoretical misdeeds.” Thus, the court held that, “neither (Sheriff Glenn) Palmer’s curiosity (concerning his deputy’s possible criminal involvement) nor (County Attorney/Prosecutor Jim) Carpenter’s improbable search for Brady material for some hypothetical future investigation, justifies expanding the consent form’s express scope.” 

Carpenter also had no right to pass the information along to the Sheriff’s Department. The court rejected various other irrelevant arguments, the most notable being what is known as the “Third-Party Doctrine.” This doctrine generally holds that “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.” (Smith v. Maryland (1979) 442 U.S. 735, 743 – 744.) “[T]he Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose. ...In the third-party context, an individual is presumed to ‘take the risk, in revealing his affairs to another, that the information will be conveyed by that person to the government.’” (United States v. Miller (1976) 425 U.S. 435, 443.)  

Carpenter argued that via this doctrine, Olson assumed the risk that by giving the Idaho State Police authority to access her cellphone, she assumed the risk that Idaho would pass the information onto authorities in Oregon. The problem with this argument is that the third-party doctrine has never been held to apply to instances where the “third party” to whom the information is initially revealed is a law enforcement agency. Allowing Idaho police access to her cellphone, therefore, cannot be construed as permission to pass it along to another governmental agency.  

In conclusion, the court determined that Olson’s given to Idaho police to access her cellphone did not allow warrantless access to that same information by Oregon’s officials. The accessing of Olson’s cellphone by anyone other than the Idaho police therefore violated the Fourth Amendment.  

However, that does not end the issue as far as Carpenter’s civil liability is concerned. As noted above, this was an issue of first impression. The plaintiff (Olson) in a civil lawsuit has the burden of proving that the government officials violated a clearly established law, that at the time of the challenged conduct, “the contours of the right are sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” There being no prior authority on this issue, the rule discussed here was one that was not well-settled and one that the parties cannot be held to have known about. Carpenter, therefore, was entitled to qualified immunity from civil liability.  

(2) Monell Liability: As for Sheriff Palmer’s potential liability pursuant to the U.S. Supreme Court’s decision in Monell v. Department of Social Services. (1978) 426 U.S. 658, the court first noted that a governmental agency official may be held civilly liable for the constitutional violations of its employees under 42 U.S.C. § 1983 if he or she is a supervisor, and “(1) [they were] personally involved in the constitutional deprivation, or (2) a sufficient causal connection exists ‘between the supervisor’s wrongful conduct and the constitutional violation.’”  

Third parties, such as Sheriff Palmer as well as his employer, Grant County, may not be held liable, however, merely because they were present for a constitutional violation or working in the same or coordinating departments. In this case, while there was evidence that some of the contents of the phone made their way to the Grant County Sheriff’s Office, there was no evidence (other than rumors) that Sheriff Palmer himself had reviewed the extraction. Nor did Olson present any evidence that Sheriff Palmer had any supervisory authority over Carpenter in Carpenter’s role either as county attorney or county prosecutor. As such, no Monell liability had been established.                                             

(3) Conclusion: Carpenter, therefore, was entitled to qualified immunity from civil liability and Sheriff Palmer was not subject to Monell liability. This being the case, the court upheld the trial court’s dismissal of the case as to both defendants liability.  This being the case, the Court upheld that trial court’s dismissal of the case as to both defendants.    

Note: There is actually one prior case with a similar Fourth Amendment ruling where information obtained by a warrant in one case was sought to be used by a different agency in a separate prosecution: United States v. Hulscher (Dist. S.D. 2017) 2017 U.S. Dist. LEXIS 22874. In Hulscher, it was held that the exclusionary rule under the Fourth Amendment was applicable because if it was not, then law enforcement agencies would have carte blanche authority to execute a warrant for all data on a cell phone, keep the unresponsive data forever, and then later use the data for criminal prosecutions on unrelated charges. But Hulscher being a lower federal district (trial) court decision out of South Dakota, and not from either the Ninth Circuit or the U.S. Supreme Court, it is not binding on the parties and one that the parties cannot be held to have known about.  

But now, as a result of this new case concerning Olson and her dispute with an Oregon sheriff and county attorney/prosecutor, the rule here is clearly established. In the future, it must be assumed that a person’s consent given to one law enforcement agency to search his or her cellphone, depending upon the circumstances, is not automatically consent for any other governmental official or agency to also access the contents of that cellphone. Arguably, this rule would extend to any other container of information (e.g., computers, files, shoeboxes.). Even without this case decision, this would seem to be common sense. But either way, it is now the rule.