From the DA’s Desk  
The Reuse of Evidence Lawfully Obtained by Law Enforcement 
By Robert Phillips  
Deputy District Attorney (ret.) 

Issue
Law enforcement’s reuse of evidence legally obtained: lawful or not   

Background 

I’m periodically asked whether evidence lawfully in the possession of one law enforcement agency can be turned over to another agency, informally, for their use. Without any appellate court case or statutory authority indicating that I might be wrong, I would tell both agencies that it should not be a problem. To me, it’s just common sense. If the cops already have lawful possession of the evidence, a suspect’s privacy rights as to that evidence have already been compromised. So, it matters not which agency uses it in court.  

But now, thanks to a 2017 case out of a federal district (trial) court in South Dakota referred to me by Dennis Gomez of Behavior Analysis Training, Inc., (BATI), I have to qualify that advice. 

Case Law Gives Some Clarity 

In a case of first impression — United States v. Hulscher (District of South Dakota, S. Div. 2017) 2017 U.S. Dist. LEXIS 22874 — digital evidence was seized from Robert Hulscher’s cellphone by a state law enforcement agency via a search warrant, to be used in the prosecution of the defendant for his alleged forgery, counterfeiting and identity theft activities. Combined with the evidence seized, but not used, in the state prosecution was evidence related to the defendant’s alleged illegal firearms possession, a matter which was already pending in federal court. A federal ATF investigator got wind of the state’s possession of that evidence and asked that he be given access to it, a request that was granted by the state agency. When the federal prosecutor sought to use that evidence in court, Hulscher filed a motion to suppress. The federal court trial judge granted his motion, publishing his decision in the above-cited case.  

Citing the U.S. Supreme Court case of Riley v. California (2014) 573 U.S. 373, the South Dakota federal district court judge in Hulscher noted that the High Court has held that “because cellphones contain immense amounts of personal information about people’s lives, they are unique, and law enforcement officers must generally secure a warrant before conducting such a search.” Thus, as in this case, where an ATF agent seeks access to digital evidence from a defendant’s cellphone that has been collected by another law enforcement agency but not used, the agent “should have applied for and obtained a second warrant [that] would have authorized him to search Mr. Hulscher’s cellphone data for evidence of (the federal) firearms offenses.”  

In so ruling, the court rejected the government’s argument that “law enforcement agencies can permanently save all unresponsive data collected from a cellphone after a search (and use it in) future prosecutions on unrelated charges.” (Page 7) To the contrary, the court held that because information contained in a person’s cellphone is often sensitive, personal information, a warrant asking for a court’s permission to access such information is required under the Fourth Amendment.  

The court also rejected the government’s arguments that either (1) the “plain view” doctrine applied (Pages 8-9) or (2) that there was an insufficient “deterrence” effect to justify the suppression of the resulting evidence, as discussed in Herring v. United States (2009) 155 U.S. 135. (Page 9). Although the court tells us that the rule announced here is limited to these facts (i.e., involving cellphones), the judge also cites authority for the proposition that this ruling may be broader than intended. In other words, the theory of the Hulscher decision might well apply to any evidence, whether or not obtained from a suspect’s cellphone.   

Specifically, the judge in Hulscher noted that for an officer to obtain warrantless access to information retrieved under the authority of a separately justified search warrant, the net effect would be to convert that warrant into what is commonly referred to as a “general warrant.” A general warrant is one that purportedly allows a law enforcement agency to go on a fishing expedition without justifying the necessary probable cause for whatever is being sought. General warrants are prohibited under the Fourth Amendment. (Page 6; also see Burrows v. Superior Court (1974) 13 Cal.3rd 238, 249-250, for a discussion on “general warrants.”) The rules on general warrants apply whether or not a cellphone is involved.  

But note also that being a lower federal court decision, particularly when out of somewhere other than the federal Ninth Circuit Court of Appeal, the Hulscher decision is not binding on California’s state courts (or even the Ninth Circuit).  

Either Way, Play it Safe 

Unfortunately, I have to admit that this case makes sense. It at least raises an issue that cannot be ignored. So, revising my advice given out so generously before, my suggestion now is that if you are seeking access to evidence in the possession of another law enforcement agency, you should play it safe and do so via a new search warrant, particularly describing the evidence sought and the probable cause as it relates to your case.  

While my argument that evidence lawfully obtained by one agency may be shared with other agencies still holds water, at least in my never-to-be-so-humble opinion, a defendant now has a viable argument that the Hulscher decision makes more sense and should be the rule. A California or local federal court could go either way.  

Another Recent Decision on Point 

Discussing a different, but somewhat related issue, is a published federal trial court’s order in the pending civil case of Jane Doe v. City and County of San Francisco (N. Dist. Cal. July 20, 2023) 2023 U.S. Dist. LEXIS 125532. In Doe, the plaintiff Jane Doe alleges that she provided a DNA sample to the San Francisco Police Department to aid in the investigation of her alleged sexual assault, where she was the victim. Sometime later (the specific dates are not mentioned), Doe’s DNA sample was used by San Francisco police investigators to link Doe to a burglary, where it was alleged she was the culprit. Doe complained in a federal 42 U.S.C. § 1983 lawsuit that using her DNA to investigate her culpability in the burglary violated the scope of the consent she gave when she originally provided her DNA as a sexual assault victim.  

In denying the civil defendants’ motion to dismiss Doe’s lawsuit, the trial court judge issued an order to the effect that if the facts prove to be as alleged by Jane Doe – that SFPD investigators agreed not to use her DNA for anything other than the rape case – then she has “clearly established (a) Fourth Amendment violation.” 

Best Advice: Get a New Warrant 

In both situations discussed above, I stand by my original advice that it is just common sense that a suspect’s privacy rights as to specific evidence have been waived when they relate to evidence already lawfully in law enforcement’s possession. In the former, however, as noted above, the Hulscher decision makes a lot of sense. In the latter, the law supports Jane Doe’s argument that if limitations were in fact placed on the use of her DNA when she originally gave consent, then those limitations must be respected. (See United States v. McWeeney (9th Cir. 2006) 454 F.3rd 1030, 1034-1035.)  

It is therefore strongly suggested that in either circumstance, a warrant be sought and a new search conducted, as redundant as that may appear on its face. Taking the extra two or so hours to get a search warrant will save you at least half a day sitting in a courthouse hallway waiting to testify about the admissibility of the evidence in your case. Sounds like a no-brainer, win-win situation to me.