Haley Olson v. County of Grant

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HALEY OLSON, No. 23-35365

Plaintiff-Appellant, D.C. No.

2:20-cv-01342-IM

v.

COUNTY OF GRANT, a government OPINION

entity; GLENN PALMER; JIM

CARPENTER,

Defendants-Appellees,

and

ABIGAIL MOBLEY,

Defendant.

Appeal from the United States District Court

for the District of Oregon

Karin J. Immergut, District Judge, Presiding

Argued and Submitted July 10, 2024

Seattle, Washington

Filed February 10, 2025

2 OLSON V. COUNTY OF GRANT

Before: M. Margaret McKeown, Richard R. Clifton, and

Daniel A. Bress, Circuit Judges.

Opinion by Judge McKeown;

Concurrence by Judge Bress

SUMMARY *

Fourth Amendment/Qualified Immunity

The panel affirmed the district court’s summary

judgment for law enforcement officials based on qualified

immunity and lack of supervisory liability in Haley Olson’s

action alleging Fourth Amendment violations arising from

the extraction of the contents of her phone without a warrant.

Olson was arrested in Idaho for marijuana possession

and signed a form giving Idaho police consent to search her

phone, who then created an “extraction,” or copy, of her

phone contents. Defendant Glenn Palmer, then-Sheriff of

Grant County, Oregon, heard about the Idaho arrest and,

curious about whether Olson was romantically involved with

Grant County Deputy Tyler Smith asked defendant Jim

Carpenter, then-Grant County Attorney and County

Prosecutor, to request the phone extraction from the Idaho

prosecutor in Olson’s case. Carpenter requested and

obtained the extraction and reviewed the contents before

allegedly deleting the data. However, Olson subsequently

heard gossip around town about the contents of her phone,

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

OLSON V. COUNTY OF GRANT 3

including nude photos, all seemingly originating from the

sheriff’s office. She sued Sheriff Palmer, County Prosecutor

Carpenter, and Grant County, alleging, among other things,

a Fourth Amendment violation.

The panel affirmed the district court’s summary

judgment for Sheriff Palmer for lack of supervisory liability

because there was no evidence that Palmer reviewed the

extraction or had any supervisory authority over

Carpenter. His request that Carpenter procure and review

Olson’s cell phone data failed to establish supervisory

control. The panel declined to impose supervisory liability

for a constitutional violation where, at best, there was a

cooperative relationship between colleagues.

The panel next agreed with the district court that

Carpenter was entitled to qualified immunity because

Olson’s right to be free from Carpenter’s search was not

clearly established at the time. The panel determined,

however, that developing constitutional precedent in this

area would be helpful, and, therefore, held that Carpenter’s

search infringed on Olson’s Fourth Amendment rights. This

case involved 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. Olson

was arrested in Idaho for possession of marijuana, which is

not illegal in Oregon, and there was no reason for Palmer or

Carpenter to suspect that Deputy Smith had taken part in

criminal activity. Olson’s consent in Idaho did not extend to

a search by a different law enforcement agency, in another

state, and the search did not fall into any exception to the

warrant requirement.

4 OLSON V. COUNTY OF GRANT

Concurring in part and concurring in the judgment,

Judge Bress agreed that the claims against Sheriff Palmer

failed because there was no evidence he exercised

supervisory control over County Prosecutor Carpenter, and

that Carpenter was entitled to qualified immunity because

any constitutional violation was not clearly

established. These points were sufficient to resolve this

appeal, and Judge Bress would end the analysis there. This

was not a case in which it would be helpful to the

development of the law to answer the underlying

constitutional question even when the defendant prevails on

qualified immunity grounds.

COUNSEL

Nadia H. Dahab (argued), Sugerman Dahab, Portland,

Oregon; Meredith Holley, Eris Conflict Resolution, Eugene,

Oregon; for Plaintiff-Appellant.

Carson L. Whitehead (argued), Assistant Attorney General;

Benjamin Gutman, Solicitor General; Ellen F. Rosenblum,

Attorney General; Oregon Department of Justice, Salem,

Oregon; Aaron P. Hisel (argued) and Rebeca A. Plaza,

Capitol Legal Services, Salem, Oregon; for Defendants-

Appellees.

OLSON V. COUNTY OF GRANT 5

OPINION

McKEOWN, Circuit Judge:

This appeal presents a scenario in which agencies from

two different state jurisdictions shared a defendant’s

sensitive phone data without consent, without a warrant, and

without any pending charges, or even an investigation by the

out-of-state agency requesting access to the data. In January

2019, Haley Olson was arrested in Idaho for marijuana

possession. Olson signed a form giving Idaho police consent

to search her phone, and they 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. Glenn Palmer, then-Sheriff

of Grant County, Oregon, heard about the arrest and, out of

“curiosity” about deputy Smith’s connection to possible

criminal activity, asked Jim Carpenter, then-Grant County

Attorney and County Prosecutor, to request the phone

extraction from the prosecutor in Olson’s Idaho case. In

Carpenter’s telling, he reviewed Olson’s phone data for

evidence of criminal activity on Smith’s part, found none,

and deleted his copy of the extraction. But around town,

Olson heard a different story: the contents of her phone—

including intimate photos of Olson and Smith—were being

passed around 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 grounds of

qualified immunity because his actions did not violate

clearly established law.

6 OLSON V. COUNTY OF GRANT

We agree with the district court on the outcome and

agree there was no clearly established law. We conclude,

however, there was a constitutional violation. This case

presents a troubling example of the intrusion on Fourth

Amendment rights that can occur with respect to highly

sensitive cell phone data. More specifically, this

circumstance involved 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.

Although we affirm the district court’s grant of summary

judgment because Olson’s right to be free from Carpenter’s

search was not clearly established at the time, we take this

opportunity to conclude that there was a constitutional

violation.

Background

On January 22, 2019, Olson, who runs a marijuana

dispensary in Oregon, where marijuana is legal, 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, and in her car, the officers found a business

card for Tyler Smith, a sheriff’s deputy in Grant County,

Oregon. Following her arrest, Olson signed a consent form

to allow Idaho police to search her cell phone. The form was

titled, “Idaho State Police Voluntary Consent to Search.”

The consent “authorize[d] the Idaho State Police[] or its

agent to conduct a search” of her phone, and advised that:

You have certain rights under both the Idaho

and United States Constitutions relative to

your property. You are not required to

consent to a search of your property and you

have the absolute right to refuse to consent to

OLSON V. COUNTY OF GRANT 7

such a search. In the event you do consent to

such a search, any evidence found as a result

of such search could be taken and used

against you in Court.

Nothing in the consent form referenced transfer of

information to another jurisdiction. In fact, the form was

directed at evidence that “could be taken and used against

[Olson] in Court.” The Idaho police then “extracted,” or

copied over to their own computers, the contents of Olson’s

cell phone for review. The Idaho charges against Olson were

later dropped.

Shortly after Olson’s arrest, Grant County Sheriff Glenn

Palmer called the Idaho State trooper in charge of Olson’s

case, who informed Palmer that Smith’s card was found in

Olson’s vehicle. Palmer apparently heard about Olson’s

arrest from another employee at the sheriff’s office, although

it is not clear from the record how the employee learned of

the arrest. Palmer—allegedly concerned that deputy Smith

might be involved in illegal activities with Olson that would

require an internal investigation—took two actions: First, he

requested Olson’s phone extraction from the Idaho state

trooper and was rebuffed; and second, he asked Grant

County District Attorney Jim Carpenter to request and

review the extraction. 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. In his letter to the Idaho prosecutor,

Carpenter told her that the extraction “will be used only for

internal purposes and will not be disseminated to any other

agencies or third parties.” The Idaho prosecutor sent

Carpenter a flash drive containing a copy of the extraction.

8 OLSON V. COUNTY OF GRANT

At no time did the Idaho State Police appoint the out-of-state

authorities—or anyone else for that matter—as its agents.

Immediately contradicting his letter to the Idaho

prosecutor, Carpenter first asked two outside agencies to

review the extraction—the Oregon State Patrol and the

Deschutes County Sheriff. Both agencies declined, as there

was no ongoing or related criminal investigation. So,

Carpenter 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 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 denies having ever

reviewed the extraction or seen any nude photos of Olson,

and Carpenter denies having ever offered to show the

extraction to Palmer. Carpenter asserts that, immediately

upon the conclusion of his review and his report to Palmer,

he “reformatted” the flash drive, deleting the extraction.

Carpenter’s claim of a fleeting and confined examination

of the data is belied by Olson’s testimony. In various

encounters around town, Olson heard gossip regarding her

arrest, her phone, her relationship with Smith, and nude

photos, all seemingly originating from the sheriff’s office. In

the months following Olson’s arrest, a friend of Palmer’s

came into the dispensary and told Olson that Palmer told him

Olson had gotten arrested in Idaho, and that he “hear[d] they

found a bunch of drug activity on [Olson’s] phone.” In July,

a stranger wearing a sheriff’s office uniform told Olson that

he “heard there’s some pretty smokin’ pictures of you going

around the sheriff’s office.” In August, a local resident

pointed to Olson and called her “the drug dealer that likes to

OLSON V. COUNTY OF GRANT 9

fuck cops.” Another witness observed a married couple—

both themselves employees of the sheriff’s office—looking

at nude photos of Olson on the husband’s phone.

In response to this information, Olson first filed a records

request with the county. Carpenter responded that same day,

explaining in a letter that: Palmer “advised” him to obtain

the extraction and he did so; he could not find an outside

agency willing to review the extraction; as a result, he “took

a quick look at the flash drive;” and, upon finding no

evidence of criminal activity and given that there was

“content on the flash drive [that] was clearly personal in

nature,” he did a “complete re-format of the flash drive,”

thereby deleting its contents. In this letter, Carpenter insisted

that he “was not willing to provide the flash drive to the

Sheriff or any other local agency,” which conflicts with

Palmer’s testimony that Carpenter offered to show him the

extraction.

Olson sued Palmer, Carpenter, and Grant County,

bringing Fourth Amendment claims 1 against Palmer and

Carpenter, a Monell claim against Grant County, and a

common-law intrusion upon seclusion claim against the

county. The district court granted summary judgment for the

defendants on all claims, holding that Olson had not made

out a claim against Palmer, and that Carpenter was entitled

to qualified immunity. Olson timely appealed the grants of

summary judgment to Palmer and Carpenter.

1

In Olson’s complaint, these claims are characterized as Fourteenth

Amendment claims for violation of Olson’s right to privacy. Her attorney

clarified in later correspondence that these are, in fact, Fourth

Amendment claims.

10 OLSON V. COUNTY OF GRANT

Analysis

I. Supervisory Liability Under Monell (Palmer)

There is no respondeat superior liability under 42 U.S.C.

§ 1983. Monell v. Dep’t of Soc. Servs., 436 U.S. 658,

691(1978). Third parties, such as Sheriff Palmer, may not be

held liable because they were merely present for a

constitutional violation or working in the same or

coordinating departments. Felarca v. Birgeneau, 891 F.3d

809, 820 (9th Cir. 2018). Instead, third parties may only be

liable for the constitutional violations of others under

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.’” Id. at

819–20 (quoting Starr v. Baca, 652 F.3d 1202, 1207 (9th

Cir. 2011)).

Under this construct, which we review de novo, the

claim against Sheriff Palmer is easily resolved. Evans v.

Skolnik, 997 F.3d 1060, 1064 (9th Cir. 2021); see also

Hansen v. Black, 885 F.2d 642, 643–44 (9th Cir. 1989)

(reviewing de novo grant of summary judgment on

supervisory liability grounds). 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. The only evidence Olson musters for that

proposition is Palmer’s request that Carpenter procure and

review Olson’s cell phone extraction, which Carpenter then

did. That request hardly establishes supervisory control. We

decline to impose supervisory liability for a constitutional

OLSON V. COUNTY OF GRANT 11

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.”).

II. Qualified Immunity (Carpenter)

On summary judgment, Carpenter is entitled to qualified

immunity unless Olson raises 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). Though

Carpenter violated Olson’s Fourth Amendment rights, the

law was not clearly established at the time, thus entitling

Carpenter to qualified immunity.

A. Fourth Amendment Violation

We now turn to the more nuanced question presented by

this appeal and one of first impression in this circuit:

Whether Carpenter’s review of the cell phone extraction—

without consent, without a warrant, and without even a

suspicion of further criminal activity by Olson or even

Smith—violated Olson’s Fourth Amendment rights. Under

the circumstances presented here, we conclude that

Carpenter’s review of the cell phone data was an

unreasonable search.

The Fourth Amendment prohibits “unreasonable

searches and seizures.” U.S. Const. amend. IV. In assessing

whether a government intrusion is a search, we 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.’” Sanchez v. Los Angeles Dep’t of

12 OLSON V. COUNTY OF GRANT

Transp., 39 F.4th 548, 555 (9th Cir. 2022) (quoting Smith v.

Maryland, 442 U.S. 735, 740 (1979)). Thus, our inquiry is

whether Carpenter’s review of Olson’s cell phone extraction

“violates a subjective expectation of privacy that society

recognizes as reasonable.” Id. (quoting Kyllo v. United

States, 533 U.S. 27, 33 (2001)).

We can go straight to the Supreme Court for the answer

to this question. In Riley v. California, the Court addressed

“whether the police may, without a warrant, search digital

information on a cell phone seized from an individual who

has been arrested.” 573 U.S. 373, 378 (2014). The Court

concluded that review of a cell phone was a Fourth

Amendment search requiring a warrant. Id. at 386. Pointing

to the ubiquity, storage capacity, and range of information

available on the modern cell phone, the Court went on to

characterize the cell phone as “such a pervasive and insistent

part of daily life that the proverbial visitor from Mars might

conclude they were an important feature of human

anatomy.” Id. at 385. A search of these devices “implicate[s]

privacy concerns far beyond those implicated by the search

of a cigarette pack, a wallet, or a purse,” because modern cell

phones “could just as easily be called cameras, video

players, rolodexes, calendars, tape recorders, libraries,

diaries, albums, televisions, maps, or newspapers.” Id. at

393. “Indeed, a cell phone search would typically expose to

the government far more than the most exhaustive search of

a house.” Id. at 396 (emphasis omitted). Given these weighty

privacy interests, the Court held that “a warrant is generally

required” to search a cell phone, absent application of

another exception to the warrant requirement. Id. at 401.

The privacy interests recognized in Riley are just as

pressing here. An “extraction” or a “phone dump” is

typically an exact replica of the data contained on a cell

OLSON V. COUNTY OF GRANT 13

phone at the time of extraction, easily searchable and

reviewable by law enforcement. 2 Put differently, it is the

functional equivalent of Olson’s phone at the moment she

consented to the search by Idaho law enforcement.

In an effort to distinguish Riley, the best Carpenter can

do is parrot the government’s position in an out-of-circuit

district court case, arguing 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. United States v. Hulscher, No.

4:16-CR-40070-1-KES, 2017 WL 657436 at *2 (D.S.D.

Feb. 17, 2017). This is a distinction without a difference. The

privacy interests in the cell phone are precisely the same as

those in an extraction, and treating the two differently would

introduce a gaping loophole in Riley’s warrant requirement.

Indeed, Hulscher rejects Carpenter’s argument, and the

district court’s reasoning is consistent with Riley. Hulscher

was investigated on unrelated charges by two separate

agencies: the Huron Police Department and the Bureau of

Alcohol, Tobacco, and Firearms (“ATF”). The Huron

Police, pursuant to a valid warrant, extracted the data from

Hulscher’s iPhone and created a digital copy. Id. at *1. The

ATF subsequently requested from the Huron Police, and

received, a copy of Hulscher’s cell phone extraction, which

2

Carpenter used a program called Cellebrite to review the extraction

from Olson’s cell phone. See, e.g., Full File System Extraction – Mobile

Device Forensics, Cellebrite, https://cellebrite.com/en/glossary/full-file-

system-extraction-mobile-device-forensics (last accessed January 2,

2025) (“Full File System Extraction (FFS) is a specialized digital

forensics technique used to obtain a complete copy of the file system

from a digital device, such as a computer, smartphone, or tablet. It allows

investigators to access a vast array of data, including active files, deleted

files, system files, application data, and metadata.”).

14 OLSON V. COUNTY OF GRANT

it sought to introduce at trial. The district court granted

Hulscher’s motion to suppress, determining that the search

of cloned cell phone data was a standalone search requiring

a separate warrant. Id. at *3. Concluding otherwise—as

Carpenter urges—“would allow for mass retention of

unresponsive cell phone data” and “is simply inconsistent

with the protections of the Fourth Amendment.” Id. at *3.

The Fourth Amendment concerns articulated in Riley

apply with equal force to Olson’s cell phone extraction.

Accordingly, we conclude that Carpenter’s subsequent

review of Olson’s cell phone extraction constitutes a Fourth

Amendment search.

We next consider whether Olson consented to

Carpenter’s search in Oregon when she gave consent to the

Idaho police to search her phone. It is well established that

we determine the scope of consent by asking “what would

the typical reasonable person have understood by the

exchange between the officer and the suspect?” Florida v.

Jimeno, 500 U.S. 248, 251 (1991).

The consent form signed by Olson 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 Olson’s phone, and that “any

evidence found as a result of such search could be taken and

used against you in Court.” Because “the scope of a search

is generally defined by its expressed object,” id. at 251, it is

clear that this consent form envisions a search of Olson’s

phone by the Idaho State Police for evidence against her in

criminal proceedings. We need not decide whether the use

“in Court” is restricted to Idaho, as the cell phone evidence

was not used against Olson in any court, or even to explore

charges against Olson.

OLSON V. COUNTY OF GRANT 15

A plain reading of the consent form also 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. The

language of Olson’s consent form is distinguishable from a

blanket consent form authorizing a “complete” search of a

phone and any “materials . . . which [the government] may

desire to examine,” for any purpose. United States v.

Gallegos-Espinal, 970 F.3d 586, 592 (5th Cir. 2020). Here,

in contrast, Olson’s consent form specifically limits

authorization to the Idaho State Police or its agents. The

form does not reserve, for the Idaho police, the right to share

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. And,

unsurprisingly, no Oregon law enforcement authority

claimed to act as an agent for the Idaho State Police. Palmer

was “curious” about whether Olson’s phone might reveal

misconduct on Smith’s part, and Carpenter was interested in

reviewing the phone for possible Brady material in cases

where Smith might testify. But neither Palmer’s curiosity

nor Carpenter’s improbable search for Brady material for

some hypothetical future investigation justifies expanding

the consent form’s express scope.

The limited scope of Olson’s consent is further

underscored by the actions of nearly everyone around

Carpenter and Palmer when they embarked on seeking, and

reviewing, Olson’s data. At every turn, Carpenter and

Palmer were stymied by other law enforcement personnel or

agencies in both Idaho and Oregon that refused to aid them.

The Idaho state trooper declined to give Palmer the

extraction of Olson’s phone, and the other criminal

investigation agencies in Oregon declined to review the data

16 OLSON V. COUNTY OF GRANT

when asked by Carpenter, because there were no allegations

of a crime, and therefore nothing for them to investigate.

These circumstances, in addition to Carpenter’s own

testimony—that he has never gone out looking for potential

Brady evidence on any other officers—highlight that what

Carpenter was doing was highly irregular. It defies common

sense to hypothesize a potential Brady complication when

there has been no prosecution, no investigation, nor even a

whiff of criminal activity. 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.

Our decision in United States v. Ward is instructive in

focusing on the scope and timing of consent. 576 F.2d 243,

244–45 (9th Cir. 1978). In Ward, we affirmed the

suppression of evidence gathered after a defendant revoked

his consent to a search, but declined to suppress any

“evidence gathered or copies made” pursuant to valid

consent before consent was revoked. In Ward, we

emphasized consent’s key role in demarcating the

boundaries of a search, noting that “when the basis for the

search is consent the government must conform its

examination to the limits of the consent.” Id. at 244 (internal

quotations omitted). Unlike in Ward, where the government

was free to keep and continue to examine any copies made

pursuant to Ward’s valid and active consent, Olson’s consent

form plainly never contemplated the search conducted here.

Carpenter’s mistaken reliance on the Idaho prosecutor’s

“apparent authority” to consent on Olson’s behalf also does

not help his case. The Idaho police could not somehow

waive Olson’s Fourth Amendment right on her behalf,

OLSON V. COUNTY OF GRANT 17

because “it was [Olson’s] constitutional right which was at

stake here . . . . It was a right . . . which only [Olson] could

waive.” Corngold v. United States, 367 F.2d 1, 6 (9th Cir.

1996) (quoting Stoner v. State of California, 376 U.S. 483,

489 (1964)). Based on the parties’ briefing, nothing suggests

a person of “reasonable caution” would believe the Idaho

police could consent on Olson’s behalf, and Carpenter has

not attempted to argue otherwise. See Illinois v. Rodriguez,

497 U.S. 177, 188 (1990).

Carpenter’s claim that his conduct comported with

longstanding practices of electronic data sharing between

law enforcement agencies is devoid of any supporting

authority. In any case, we need not reach the separate

question of whether, and how, law enforcement agencies

may share electronic data with each other, or whether law

enforcement agencies may retain such data for their own

future investigations, because Olson’s consent form plainly

did not authorize the sharing of electronic data that took

place here.

Finally, the third-party doctrine is not applicable in this

context and does not exempt the Oregon police from

obtaining consent, or a warrant, when performing the

subsequent search. The third-party doctrine generally holds

that “a person has no legitimate expectation of privacy in

information he voluntarily turns over to third parties.” Smith

v. Maryland, 442 U.S. 735, 743–44 (1979). “[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.” United States v. Miller, 425 U.S. 435, 443 (1976).

18 OLSON V. COUNTY OF GRANT

To begin, the third-party doctrine has not previously

been applied to instances where the “third party” to whom

information is revealed is a law enforcement agency. There

is good reason to doubt its application here. 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.” Id. at 443. To

hold that Olson relinquished any expectation of privacy in

her private data upon consenting to a law enforcement search

for a limited purpose would put the third-party doctrine on a

collision course with Riley and the Court’s cases involving

consent searches.

Apropos of the sensitive data here, the Supreme Court

has rejected “mechanically applying” the third-party

doctrine without considering “the nature of the particular

documents sought.” Carpenter v. United States, 585 U.S.

296, 314 (2018) (internal quotations and citations omitted).

Crucially, the Court in Carpenter distinguished Smith and

Miller, where the government sought access to third-party

material revealing “little in the way of identifying

information,” from instances where access was sought to

“private letters, digital contents of a cell phone,” or “any

personal information reduced to document form.” Id. at 318–

19; see also Sanchez, 39 F.4th at 559–60 (distinguishing

rental e-scooter location data from cell phone location data).

The extraction of Olson’s cell phone falls within the

heartland of Carpenter’s reach.

Finally, we conclude that Carpenter’s search does not

fall into any exception to the warrant requirement, nor was

the search a “reasonable search[] for which no warrant was

required.” United States v. Rabinowitz, 339 U.S. 56, 60

(1950) (overruled in part on other grounds by Chimel v.

California, 395 U.S. 752 (1969)). “To say that no warrant is

OLSON V. COUNTY OF GRANT 19

required is merely to acknowledge that ‘rather than

employing a per se rule of unreasonableness, we balance the

privacy-related and law enforcement-related concerns to

determine if the intrusion was reasonable.’” Id. (quoting

Illinois v. McArthur, 531 U.S. 326, 331 (2001)).

We have no difficulty concluding that Carpenter’s search

was unreasonable. As we reiterated in United States v. Lara,

“the Court in Riley stressed the amount and character of data

contained in, or accessed through, a cell phone and the

corresponding intrusiveness of a cell phone search.” 815

F.3d 605, 611 (9th Cir. 2016). The data extracted here—

some of the most private that can be found in our lives—

proves the point. Riley, 573 U.S. at 395.

Compared to those weighty privacy interests, the two

asserted government interests are unavailing. Palmer was

“curious” about whether Olson’s phone might reveal

misconduct on Smith’s part. Carpenter was interested in

reviewing the phone for possible Brady material in cases

where Smith might testify. Olson was arrested in Idaho for

the possession of marijuana, which is not illegal in Oregon,

and there was no reason for Palmer or Carpenter to suspect

that Smith had taken part in criminal activity. Not

surprisingly, Carpenter was never able to articulate which

cases he was concerned that Smith would testify in, and for

which any Brady material regarding this incident would be

relevant. No precedent supports invoking a hypothetical

Brady concern to overcome the warrant requirement.

Even the most “[u]rgent government interests are not a

license for indiscriminate police behavior.” Maryland v.

King, 569 U.S. 435, 448 (2013). The government interests

here are not plausible, let alone urgent, and its behavior was

wholly indiscriminate. Accordingly, we hold that

20 OLSON V. COUNTY OF GRANT

Carpenter’s warrantless search of Olson’s cell phone

constituted a Fourth Amendment violation.

B. Clearly Established Law

Although we conclude that Carpenter’s warrantless

search of Olson’s cell phone constituted a Fourth

Amendment violation, the law was not clearly established at

the time of the search. 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). “[R]easonableness is judged

against the backdrop of the law at the time of the conduct,”

in this case, 2019. Brosseau v. Haugen, 543 U.S. 194, 198

(2004). 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).

Olson does not cite to any Supreme Court or Ninth

Circuit authority that places the constitutional violation as

“beyond debate” and none have “clearly established the rule

on which [Olson] seek[s] to rely.” Evans, 997 F.3d at 1066

(internal quotations omitted). For example, Olson points to

Walter v. United States, 447 U.S. 649, 656 (1980), which

stands for the general proposition that a search based on

consent is “limited by the terms of its authorization.” 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. Olson’s effort to rely on United States v. Estrella, 69

OLSON V. COUNTY OF GRANT 21

F.4th 958 (9th Cir. 2023), is similarly unavailing. In addition

to postdating the events here by four years, Estrella deals

with suspicionless search and seizure conditions imposed

pursuant to parole, and bears little relevance to the facts here.

Likewise, Stoner v. California, 376 U.S. 483 (1964), and

United States v. Kimoana, 383 F.3d 1215 (10th Cir. 2004),

are similarly inapt. This is not a third-party consent case; the

question is not whether the Idaho police themselves had

authority to consent to Carpenter’s search of Olson’s phone.

The question is whether Carpenter’s subsequent search

exceeded the scope of Olson’s initial consent, and neither

Stoner nor Kimoana answer it.

Finally, Riley v. California, the case upon which Olson

primarily relies, held that police may not invoke the doctrine

of search incident to arrest to search the contents of an

arrestee’s phone without a warrant. 573 U.S. at 403. But

Riley says little about the consent issue central to this case.

The “sweeping language” both this court and the Supreme

Court have used “to describe the importance of cell phone

privacy,” Lara, 815 F.3d at 611, does not itself suffice to

create clearly established law in an entirely different context.

Although we have the option to avoid the constitutional

question and reach only the “clearly established law” prong

of the qualified immunity analysis, we undertake the two-

step Saucier analysis because “develop[ing] constitutional

precedent” in this area would be helpful. Plumhoff v.

Rickard, 572 U.S. 765, 774 (2014) (alteration in original).

This case presents a question which “do[es] not frequently

arise in cases in which a qualified immunity defense is

unavailable” and thus use of the two-step procedure is

“especially valuable.” Pearson, 555 U.S. at 236; see also

John C. Jeffries, Jr., Reversing the Order of Battle in

22 OLSON V. COUNTY OF GRANT

Constitutional Torts, 2009 Sup. Ct. Rev. 115, 136 (2009)

(noting that qualified immunity defense is typically available

in cases involving “searches and arrests not aimed at

successful prosecution, but rather at the assertion of police

authority or . . . police harassment”). Because it is important

to lay down a marker for future cases, we heed the Court’s

call in Pearson to develop constitutional precedent and

conclude that Carpenter’s search infringed on Olson’s

Fourth Amendment rights. Pearson, 555 U.S. at 236.

However, we affirm the district court’s decision to grant

qualified immunity to Carpenter because the law was not

clearly established at the time he undertook the search of

Olson’s phone records.

AFFIRMED.

BRESS, Circuit Judge, concurring in part and concurring in

the judgment:

I agree that the claims against Sheriff Palmer fail because

there is no evidence he exercised supervisory control over

County Prosecutor Carpenter. I also agree that Carpenter is

entitled to qualified immunity because any constitutional

violation was not clearly established. These points are

sufficient to resolve this appeal, and I would end the analysis

there.

The majority takes a more expansive approach, finding

in Part II.A that Carpenter violated Olson’s Fourth

Amendment rights. I join only Parts I and II.B of the court’s

opinion. Because Carpenter is entitled to qualified immunity

based on the lack of clearly established law, it is not

necessary to decide whether Carpenter violated the Fourth

OLSON V. COUNTY OF GRANT 23

Amendment. There may be instances in which it is helpful

to the development of the law to answer the underlying

constitutional question even when the defendant prevails on

qualified immunity grounds. But this is not such a case.

The reasons are several. We received limited briefing on

the constitutional questions that the court unnecessarily

resolves today. The district court did not reach these

constitutional questions. The facts of this case are unusual,

providing an infirm foundation for constructive exposition

of the law. 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, whether Carpenter should be charged with

knowing about the scope of Olson’s consent, and whether

fault more properly lies with the Idaho authorities, who are

not defendants here. There was no need to get into these

issues, and this case provided a poor platform for doing so.

In my respectful view, prudence here dictated that we decide

only what we needed to decide.