In a published opinion, a circuit panel held that the plaintiff — an Oregon dispensary owner named Haley Olson who was arrested for marijuana possession in neighboring Idaho — failed to offer any evidence that Grant County, Oregon, Sheriff Glenn Palmer "had any supervisory authority" over county prosecutor Jim Carpenter when he asked Carpenter to obtain a copy of the phone's contents without a warrant.
As for Carpenter's liability, the court agreed that the search violated Olson's Fourth Amendment rights but said Carpenter was protected by qualified immunity because there was no "clearly established law" on whether he could ask for the phone records that had been lawfully obtained by law enforcement in another state.
But the panel did go out of its way to build that "clearly established law," clarifying that Carpenter's review of the records was, in fact, unlawful.
Olson was arrested in Idaho in 2019 and signed a voluntary consent form allowing state police to search her phone. She also mentioned that her boyfriend was a deputy officer in nearby Grant County. Having heard about the arrest and suspicious of Olson's relationship with the deputy, Palmer asked Carpenter to get a copy of the contents.
Despite the fact that marijuana possession is legal in Oregon, Carpenter requested and received a copy of the phone's contents, which allegedly included intimate photos of Olson. It was at that time, she alleged, that she began hearing gossip about her arrest and what was on the phone. She sued in 2020, claiming that both Palmer and Carpenter had violated her Fourth Amendment right.
But on Monday, a three-judge panel agreed that because Palmer never asked Idaho state police for the contents and Olson never offered evidence that he reviewed the copy of the contents himself, the district court was right to find that Palmer, the Grant County sheriff, was a third party to the search. The court also agreed that Palmer had no supervisory authority over Carpenter under the U.S. Supreme Court's 1978 ruling in Monell v. Department of Social Services
, which established what's known as supervisory liability, whereby government entities or officials can be held liable for unconstitutional actions carried out by a subordinate."While there is evidence that some of the contents of the phone extraction made their way to the sheriff's office, there is no evidence that Palmer reviewed the extraction himself. Nor does Olson present any evidence that Palmer had any supervisory authority over Carpenter in Carpenter's role either as county attorney or county prosecutor," U.S. Circuit Judge M. Margaret McKeown wrote. "The only evidence Olson musters for that proposition is Palmer's request that Carpenter procure and review Olson's cellphone extraction. ... That request hardly establishes supervisory control."
The circuit judges also affirmed the district court's dismissal of the claims against Carpenter. Under the Supreme Court's 2009 ruling in Pearson v. Callahan, Judge McKeown wrote, officials like Carpenter are protected by qualified immunity unless a plaintiff's claim involves a "violation of a constitutional right" and the constitutional right is "clearly established at the time of [the] defendant's alleged misconduct."
But Olson failed to cite any Supreme Court or Ninth Circuit precedent that "places the constitutional violation as 'beyond debate,'" Judge McKeown said. While she did raise 1980's Walter v. United States
, that ruling only holds that a consent-based search is "limited by the terms of its authorization," which in Olson's case only included the Idaho state police."That case does not, however, answer the question of whether it was clearly established that Carpenter conducted an unauthorized search, which turns not only on the terms of the consent form, but also on whether review of a phone extraction by a separate law enforcement unit is a search at all," Judge McKeown's opinion said.
And 2014's Riley v. California
, the case on which Olson primarily built her argument, the court said "little about the consent issue" central in her case, Judge McKeown said.But while the panel could have stopped at those questions, which the panel decided unanimously, a 2-1 majority also agreed that they should go further and clarify that Carpenter's review of the contents did, in fact, constitute an illegal search under the Fourth Amendment. While Carpenter cited a South Dakota district ruling in United States v. Hulscher from 2017 to argue that "subsequent viewing of a copy of electronic data from a cellphone" isn't itself a stand-alone search, the majority on the panel ruled that argument drew "a distinction without difference."
"The privacy interests in the cellphone are precisely the same as those in an extraction [copy], and treating the two differently would introduce a gaping loophole in Riley's warrant requirement," Judge McKeown wrote.
And according to the majority, a plain reading of the search consent form Olson signed allowing the Idaho police to access her phone only confirmed that Olson's consent never extended to search by another agency from another state, a finding bolstered by the difficulty Carpenter had in actually obtaining a copy.
"Although Palmer denies sharing the contents of Olson's phone with members of the public, Olson's allegations that strangers made derogatory comments to her regarding the circulation of her nude photos also support the claim that Olson's private information was shared far beyond the scope of her original consent," the Ninth Circuit opinion said.
U.S. Circuit Judge Daniel Bress, however, wrote that the panel should have stopped at affirming the lower court's earlier decision. In a partial concurrence, Judge Bress said the court received only limited briefing on the broader question of Carpenter's review and thus should have declined to decide any questions regarding its constitutionality.
"The facts of this case are unusual, providing an infirm foundation for constructive exposition of the law," he said. "And the issues are more complicated than the majority allows, raising questions about when law enforcement agencies may share information among themselves, why it violated the Fourth Amendment for Carpenter to review information provided to him by an Idaho prosecutor, … and whether more fault properly lies with the Idaho authorities, who are not the defendants here."
Neither the Oregon Department of Justice nor Olson's representatives immediately responded to Law360's request for comment Monday.
U.S. Circuit Judges M. Margaret McKeown, Daniel Bress and Richard R. Clifton sat on the panel for the Ninth Circuit.
Olson is represented by Nadia H. Dahab of Sugerman Dahab and Meredith Holley of Eris Conflict Resolution.
Palmer and Carpenter are represented by Carson L. Whitehead, Benjamin Gutman and Ellen F. Rosenblum of the Oregon Department of Justice and Aaron P. Hisel and Rebeca A. Plaza of Capitol Legal Services.
The case is Haley Olson v. County of Grant et al., case number 23-35365, in the U.S. Court of Appeals for the Ninth Circuit.
--Editing by Rich Mills.