Can You Reuse Evidence Gathered by a Different Agency’s Case in Your Case?

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 ....