In Olson v. Cnty. of Grant,[1] a case where a law enforcement agency accessed the cell phone contents of a person arrested in another jurisdiction though the accessing agency lacked a warrant, the Ninth Circuit Court of Appeals concluded that the agency violated the person’s Fourth Amendment rights. Despite this conclusion, however, the Court affirmed because it held that the law was not clearly established at the time of the search.
Background
Haley Olson runs a marijuana dispensary in Oregon, where marijuana is legal. In January 2019, Olson was pulled over and arrested in Idaho for marijuana possession. During the stop, she told the officers that her boyfriend was a sheriff’s deputy. Olson signed a form giving Idaho police consent to search her cell phone, who then created an “extraction,” or copy, of her phone contents. During the search of her car, Idaho police found the business card of Tyler Smith, a Grant County, Oregon sheriff’s deputy.
Soon after the arrest, Glenn Palmer, then-Sheriff of Grant County, Oregon, heard about the Idaho arrest and called the Idaho State trooper in charge of Olson’s case. The trooper informed Palmer that Deputy Smith’s card was found in Olson’s vehicle. Palmer was allegedly curious about Deputy Smith’s connection to possible criminal activity. He requested Olson’s phone extraction from the Idaho state trooper but was rebuffed. Palmer next asked Jim Carpenter, then-Grant County Attorney and County Prosecutor, to request the phone extraction from the Idaho prosecutor in Olson’s case. Carpenter agreed to do so, ostensibly to make sure that there was no Brady material that he would have to disclose in cases where Smith might serve as a prosecution witness.
Carpenter requested and obtained the extraction. Carpenter asked the Oregon State Patrol and the Deschutes County Sheriff to review the extraction, but both agencies declined, as there was no ongoing or related criminal investigation. Carpenter then reviewed the extraction himself. Concluding that the extraction showed an affair between Olson and Smith (including nude photos of both parties) but no criminal activity, Carpenter wrote Palmer a letter to that effect. Palmer later claimed that Carpenter twice offered Palmer the chance to review the extraction, reporting that Carpenter said that “there were things on the cell phone that, ‘once you see them, you can’t unsee them.’” Palmer denied having ever reviewed the extraction or seen any nude photos of Olson, and Carpenter denied having ever offered to show the extraction to Palmer.
According to Carpenter, immediately upon the conclusion of his review and his report to Palmer, he “reformatted” the flash drive, deleting the extraction. However, Olson subsequently heard gossip in various encounters around town about the contents of her phone, including intimate photos of Olson and Smith, all seemingly originating from the Sheriff’s office.
Olson sued Palmer and Carpenter alleging, among other claims, Fourth Amendment violations. The District Court granted summary judgment for Palmer for lack of supervisory liability, and for Carpenter on the grounds of qualified immunity because his actions did not violate clearly established law. Olson appealed the grants of summary judgment to Palmer and Carpenter.
Discussion
Considering first the claim against Sheriff Palmer, the Ninth Circuit Court of Appeals explained that third parties may only be liable for the constitutional violations of others under 42 U.S.C. section 1983 if they are 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.’” Felarca v. Birgeneau, 891 F.3d 809, 819-820 (9th Cir. 2018)(quoting Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011)).
Here, the Court found that there was no evidence that Palmer reviewed the extraction himself, nor any evidence that Palmer had any supervisory authority over Carpenter in Carpenter’s role either as county attorney or county prosecutor. Although Palmer requested that Carpenter procure and review Olson’s cell phone extraction, and Carpenter then did, that request did not establish supervisory control. The Ninth Circuit declined to impose supervisory liability for a constitutional violation where, at best, there was a cooperative relationship between colleagues. See Felarca, 891 F.3d at 820 (“Because these administrators had no supervisory authority over the police who allegedly committed the violations, they did not participate in or cause such violations.”).
The Ninth Circuit next considered Olson’s claim against Carpenter. The Court observed that on summary judgment, Carpenter would be entitled to qualified immunity unless Olson raised 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, 555 U.S. 223, 232 (2009) (internal quotations omitted).
The Ninth Circuit considered the first prong of the qualified immunity inquiry. The Fourth Amendment prohibits “unreasonable searches and seizures.”[2] In assessing whether a government intrusion is a search, courts ask whether “an individual ‘seeks to preserve something as private,’ and that expectation of privacy is ‘one that society is prepared to recognize as reasonable.’”[3] In Riley v. California, the United States Supreme Court concluded that review of a cell phone seized from an individual who has been arrested was a Fourth Amendment search, and held that “a warrant is generally required” to search a cell phone, absent application of another exception to the warrant requirement. 573 U.S. 373, 401 (2014).
Here, the Ninth Circuit noted that an extraction or phone dump is typically an exact replica of the data contained on a cell phone at the time of extraction and is easily searchable and reviewable by law enforcement. The Court stated that the extraction was thus “the functional equivalent of Olson’s phone at the moment she consented to the search by Idaho law enforcement.” Attempting to distinguish Riley, Carpenter argued that the search of a cell phone extraction is only a “subsequent viewing of a copy of electronic data from a cell phone,” and not a standalone search of that cell phone. However, the Court concluded that the Fourth Amendment concerns articulated in Riley applied with equal force to Olson’s cell phone extraction. Accordingly, the Ninth Circuit concluded that Carpenter’s subsequent review of Olson’s cell phone extraction constituted a Fourth Amendment search.
The Ninth Circuit stated that a plain reading of the consent form that Olson signed confirmed that her 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. The Court described this case as involving a law enforcement agency accessing highly sensitive cell phone data from another jurisdiction in the absence of a warrant, consent, or even any investigation or suspicion of criminal activity on the part of a suspect. Under the circumstances presented here, the Court concluded that Carpenter’s review of the cell phone data was an unreasonable search.
Turning to the second step of the qualified immunity analysis, the Ninth Circuit noted that a government official “violates clearly established law when, 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.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (cleaned up). Although a case does not have to be “directly on point for a right to be clearly established, existing precedent must have placed the statutory or constitutional question beyond debate.” Kisela v. Hughes, 584 U.S. 100, 104 (2018).
Although the Ninth Circuit concluded that Carpenter’s warrantless search of Olson’s cell phone constituted a Fourth Amendment violation, the Court held that the law was not clearly established at the time of the search, thus entitling Carpenterto qualified immunity. Olson did not cite to any Supreme Court or Ninth Circuit authority that placed the constitutional violation as “beyond debate” and none had “clearly established the rule on which [Olson] seek[s] to rely.” Evans v. Skolnik, 997 F.3d 1060, 1066 (9th Cir. 2021) (internal quotations omitted). Accordingly, the Ninth Circuit Court of Appeals affirmed the District Court’s grant of summary judgment.
HOW THIS AFFECTS YOUR AGENCY
The Ninth Circuit Court of Appeals stated with regard to Carpenter that although it had the option to avoid the constitutional question and reach only the “clearly established law” prong of the qualified immunity analysis, the Court chose to undertake the two-step analysis because the case presented a question which “do[es] not frequently arise in cases in which a qualified immunity defense is unavailable” and thususe of the two-step procedure was “especially valuable.” Pearson, 555 U.S. at 236. The Court stated that it was important to lay down a marker for future cases to follow the guidance in Pearson to “develop constitutional precedent and conclude that Carpenter’s search infringed on Olson’s Fourth Amendment rights.” See Pearson, 555 U.S. at 236.
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[1] 127 F.4th 1193 (9th Cir. 2025).
[2] U.S. Const. amend. IV.
[3] Sanchez v. Los Angeles Dep’t of Transp., 39 F.4th 548, 555 (9th Cir. 2022) (quoting Smith v. Maryland, 442 U.S. 735, 740 (1979)).