{"id":108875,"date":"2025-02-21T09:44:57","date_gmt":"2025-02-21T17:44:57","guid":{"rendered":"https:\/\/xira.com\/p\/2025\/02\/21\/court-grants-immunity-to-da-who-shared-nude-photos-from-a-searched-phone-with-local-law-enforcement\/"},"modified":"2025-02-21T09:44:57","modified_gmt":"2025-02-21T17:44:57","slug":"court-grants-immunity-to-da-who-shared-nude-photos-from-a-searched-phone-with-local-law-enforcement","status":"publish","type":"post","link":"https:\/\/xira.com\/p\/2025\/02\/21\/court-grants-immunity-to-da-who-shared-nude-photos-from-a-searched-phone-with-local-law-enforcement\/","title":{"rendered":"Court Grants Immunity To DA Who Shared Nude Photos From A Searched Phone With Local Law Enforcement"},"content":{"rendered":"
\"\"
<\/figcaption><\/figure>\n

The phrase \u201cno harm, no foul\u201d doesn\u2019t apply to law enforcement personnel, whether they\u2019re patrol officers or the chief local prosecutor. Instead \u2014 thanks to the\u00a0qualified immunity doctrine<\/a>\u00a0\u2014 the phrase is: \u201cwhatever amount of harm, no foul.\u201d<\/p>\n

As long as the harm isn\u2019t something\u00a0specifically<\/em>\u00a0covered by precedent, the general feeling of courts is that law enforcement shouldn\u2019t be punished for rights violations they can plausibly (at least under precedent) claim they\u00a0had no idea<\/em>\u00a0were rights violations, no matter how immediately egregious those rights violations were.<\/p>\n

And so it is here, even if this case was last reviewed by the appeals court\u00a0least likely to cut cops slack<\/a>: the Ninth Circuit Court of Appeals.<\/p>\n

Here\u2019s the background of the case<\/a>, which shows just how routinely awful law enforcement can be, especially when they know they\u2019ll rarely be required to face a jury, much less face any internal discipline for abusing people\u2019s trust, if not their constitutional rights.<\/p>\n

\n

An Oregon woman\u2019s nude photos ended up the topic of conversation in her small town after a prosecutor looked through her sensitive cellphone data and told the county sheriff what he found despite no warrant, no consent and no suspicion that she had committed a crime.<\/em><\/p>\n<\/blockquote>\n

[Sad trombone]:<\/p>\n

\n

But the district attorney involved won\u2019t face legal consequences under a federal appeals court ruling released Monday.<\/em><\/p>\n<\/blockquote>\n

Here\u2019s more of the story, via\u00a0Oregon Live\u2019s reporting<\/a>. The plaintiff, Haley Olson, ran a (legal) marijuana shop in Oregon. She was pulled over in Idaho (where recreation use\/possession isn\u2019t legal) and charged with possession. During the search of her vehicle, Idaho State troopers found a business card belonging to her boyfriend, Grant County (OR) deputy Tyler Smith.<\/p>\n

Olson consented to a search of her cell phone. (Folks, please\u00a0never<\/em>\u00a0do this.) The state police performed a forensic extraction of her phone\u2019s contents. Shortly thereafter, state prosecutors dropped the charges against Olson.<\/p>\n

But Idaho law enforcement still had a copy of Olson\u2019s phone data. Suddenly, that was of some interest to her boyfriend\u2019s employer, the Grant County sheriff\u2019s department.<\/p>\n

\n

But\u00a0Glenn Palmer, the Grant County sheriff at the time<\/a>, had called the Idaho trooper who handled Olson\u2019s case shortly after her arrest. Palmer had apparently heard about the arrest from another sheriff\u2019s office employee and was \u201ccurious\u201d about whether Olson\u2019s phone might reveal misconduct on Smith\u2019s part, the appellate court wrote.<\/em><\/p>\n

Palmer learned during the conversation that the deputy\u2019s card had been discovered in Olson\u2019s car and asked the Idaho trooper to share the contents of Olson\u2019s phone, but Idaho authorities rejected his request, according to the opinion.<\/em><\/p>\n<\/blockquote>\n

That should have ended that. And I don\u2019t really have an objection to a deputy\u2019s employer wanting to see if their employee might be involved in things an officer shouldn\u2019t be, even if that thing was only assisting with the sale of a now-legal drug.<\/p>\n

But it didn\u2019t end there. After being rejected by the Idaho State Police, Sheriff Palmer approached district attorney Jim Carpenter and encouraged him to obtain a copy of Olson\u2019s phone contents and review them. Carpenter did. He sent an email to Idaho prosecutors requesting a copy and promising it was for \u201cinternal review only\u201d and wouldn\u2019t be shared with anyone outside of his office.<\/p>\n

Of course, that\u2019s not what happened.<\/p>\n

\n

Carpenter immediately violated his pledge to Idaho police and asked detectives from two outside agencies, the Oregon State Police and the Deschutes County Sheriff\u2019s Office, to review the flash drive material, according to the appellate opinion.<\/em><\/p>\n

Both agencies declined, because it wasn\u2019t tied to a criminal investigation, the opinion said.<\/em><\/p>\n

Carpenter reviewed the phone contents himself in April 2019, found nude photos of both Olson and Smith and contacted the sheriff to tell him that the phone showed evidence of an intimate relationship between Smith and Olson, the ruling said.<\/em><\/p>\n<\/blockquote>\n

Carpenter also added that he had seen nothing that indicated anything improper was happening. Nonetheless, he seemed extremely insistent that the sheriff view the contents of the phone, referring not-all-that-cryptically to content \u201cthat couldn\u2019t be unseen\u201d once viewed. At some point, the sheriff finally gave in.<\/p>\n

And then, according the lawsuit, he began handing this content out.<\/p>\n

\n

Olson said a Grant County deputy whom she didn\u2019t know came into her marijuana store and told her that he had heard \u201cthere\u2019s some pretty smokin\u2019 pictures of you going around the sheriff\u2019s office,\u201d the appeals court wrote<\/em>.<\/p>\n

Another witness reported observing two sheriff\u2019s employees looking at nude photos of Olson on a phone, according to the opinion.<\/em><\/p>\n<\/blockquote>\n

Nothing\u2019s going to happen to the DA, who \u2014 despite declaring there was nothing of (criminal) interest on Olson\u2019s phone \u2014 felt compelled to share the stuff of (prurient) interest with the sheriff. And, apparently (or allegedly, if you prefer), the sheriff felt compelled to share that with his employees.<\/p>\n

The end result is the dismissal of the prosecutor from this lawsuit, despite the Ninth Circuit making this statement early on in its\u00a0decision<\/a>\u00a0[PDF]:<\/p>\n

\n

We have no difficulty concluding that Carpenter\u2019s search was unreasonable.<\/em><\/p>\n<\/blockquote>\n

Even before reaching the question about the unauthorized sharing of the unreasonably searched data, the court has already found the original search was unlawful. It goes on to dismantle the DA\u2019s justifications for his search:<\/p>\n

\n

Compared to those weighty privacy interests, the two asserted government interests are unavailing. Palmer was \u201ccurious\u201d about whether Olson\u2019s phone might reveal misconduct on Smith\u2019s 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.<\/em><\/p>\n<\/blockquote>\n

Not obvious enough of a rights violation, says the Appeals Court.<\/p>\n

\n

Although we conclude that Carpenter\u2019s warrantless search of Olson\u2019s cell phone constituted a Fourth Amendment violation, the law was not clearly established at the time of the search.<\/em><\/p>\n<\/blockquote>\n

The DA walks away from this lawsuit. As disappointing as that is, at least the Ninth Circuit goes where most appellate level courts won\u2019t: it establishes precedent so the next fucker who tries this shit won\u2019t get away with it.<\/p>\n

\n

Because it is important to lay down a marker for future cases, we heed the Court\u2019s call in Pearson to develop constitutional precedent and conclude that Carpenter\u2019s search infringed on Olson\u2019s Fourth Amendment rights.<\/em><\/p>\n<\/blockquote>\n

And that, as sad as it is to say, is\u00a0way<\/em>\u00a0better than the nothing courts often content themselves with doing in cases dealing with obvious and egregious rights violations. So, of course, there\u2019s a concurrence (this one written by\u00a0Federalist Society member Judge Daniel Bress<\/a>) that says he agrees the DA should get away with this but that the court went too far by establishing precedent:<\/p>\n

\n

I join only Parts I and II.B of the court\u2019s 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 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.<\/em><\/p>\n<\/blockquote>\n

Of course \u201cthis is not such a case.\u201d It would probably be difficult-to-impossible to find a case\u00a0Trump appointee Judge Bress<\/a>\u00a0(he replaced Alex Kozinski) might find worthy of establishing precedent when it comes to law enforcement and civil rights violations. Maybe he\u2019ll get to handle a J6 case (what\u2019s left of them after Trump\u2019s mass pardoning) that may force him to see rights-violating cops as being on the wrong side of the law. But today isn\u2019t the day.<\/p>\n

As it stands now, the DA gets to walk but DAs who follow in his footsteps won\u2019t. That\u2019s the only positive outcome of this decision \u2014 yet another one that lets cops and their accomplices know there\u2019s almost nothing to fear when they get sued for violating rights.<\/p>\n

Court Grants Immunity To DA Who Shared Nude Photos From A Searched Phone With Local Law Enforcement<\/a><\/p>\n

More Law-Related Stories From Techdirt:<\/strong><\/p>\n

Trump EO Tries To Destroy Whatever Corporate Regulatory Oversight Hasn\u2019t Been Already Killed By DOGE And The Supreme Court<\/a>
Michigan Appeals Court Says State\u2019s \u2018Terroristic Threat\u2019 Statute Is Unconstitutional<\/a>
Trump Is Going To Make Private Prison Companies Rich And They Couldn\u2019t Be Happier<\/a><\/p>\n

The post Court Grants Immunity To DA Who Shared Nude Photos From A Searched Phone With Local Law Enforcement<\/a> appeared first on Above the Law<\/a>.<\/p>\n

\"\"
<\/figcaption><\/figure>\n

The phrase \u201cno harm, no foul\u201d doesn\u2019t apply to law enforcement personnel, whether they\u2019re patrol officers or the chief local prosecutor. Instead \u2014 thanks to the\u00a0qualified immunity doctrine<\/a>\u00a0\u2014 the phrase is: \u201cwhatever amount of harm, no foul.\u201d<\/p>\n

As long as the harm isn\u2019t something\u00a0specifically<\/em>\u00a0covered by precedent, the general feeling of courts is that law enforcement shouldn\u2019t be punished for rights violations they can plausibly (at least under precedent) claim they\u00a0had no idea<\/em>\u00a0were rights violations, no matter how immediately egregious those rights violations were.<\/p>\n

And so it is here, even if this case was last reviewed by the appeals court\u00a0least likely to cut cops slack<\/a>: the Ninth Circuit Court of Appeals.<\/p>\n

Here\u2019s the background of the case<\/a>, which shows just how routinely awful law enforcement can be, especially when they know they\u2019ll rarely be required to face a jury, much less face any internal discipline for abusing people\u2019s trust, if not their constitutional rights.<\/p>\n

\n

An Oregon woman\u2019s nude photos ended up the topic of conversation in her small town after a prosecutor looked through her sensitive cellphone data and told the county sheriff what he found despite no warrant, no consent and no suspicion that she had committed a crime.<\/em><\/p>\n<\/blockquote>\n

[Sad trombone]:<\/p>\n

\n

But the district attorney involved won\u2019t face legal consequences under a federal appeals court ruling released Monday.<\/em><\/p>\n<\/blockquote>\n

Here\u2019s more of the story, via\u00a0Oregon Live\u2019s reporting<\/a>. The plaintiff, Haley Olson, ran a (legal) marijuana shop in Oregon. She was pulled over in Idaho (where recreation use\/possession isn\u2019t legal) and charged with possession. During the search of her vehicle, Idaho State troopers found a business card belonging to her boyfriend, Grant County (OR) deputy Tyler Smith.<\/p>\n

Olson consented to a search of her cell phone. (Folks, please\u00a0never<\/em>\u00a0do this.) The state police performed a forensic extraction of her phone\u2019s contents. Shortly thereafter, state prosecutors dropped the charges against Olson.<\/p>\n

But Idaho law enforcement still had a copy of Olson\u2019s phone data. Suddenly, that was of some interest to her boyfriend\u2019s employer, the Grant County sheriff\u2019s department.<\/p>\n

\n

But\u00a0Glenn Palmer, the Grant County sheriff at the time<\/a>, had called the Idaho trooper who handled Olson\u2019s case shortly after her arrest. Palmer had apparently heard about the arrest from another sheriff\u2019s office employee and was \u201ccurious\u201d about whether Olson\u2019s phone might reveal misconduct on Smith\u2019s part, the appellate court wrote.<\/em><\/p>\n

Palmer learned during the conversation that the deputy\u2019s card had been discovered in Olson\u2019s car and asked the Idaho trooper to share the contents of Olson\u2019s phone, but Idaho authorities rejected his request, according to the opinion.<\/em><\/p>\n<\/blockquote>\n

That should have ended that. And I don\u2019t really have an objection to a deputy\u2019s employer wanting to see if their employee might be involved in things an officer shouldn\u2019t be, even if that thing was only assisting with the sale of a now-legal drug.<\/p>\n

But it didn\u2019t end there. After being rejected by the Idaho State Police, Sheriff Palmer approached district attorney Jim Carpenter and encouraged him to obtain a copy of Olson\u2019s phone contents and review them. Carpenter did. He sent an email to Idaho prosecutors requesting a copy and promising it was for \u201cinternal review only\u201d and wouldn\u2019t be shared with anyone outside of his office.<\/p>\n

Of course, that\u2019s not what happened.<\/p>\n

\n

Carpenter immediately violated his pledge to Idaho police and asked detectives from two outside agencies, the Oregon State Police and the Deschutes County Sheriff\u2019s Office, to review the flash drive material, according to the appellate opinion.<\/em><\/p>\n

Both agencies declined, because it wasn\u2019t tied to a criminal investigation, the opinion said.<\/em><\/p>\n

Carpenter reviewed the phone contents himself in April 2019, found nude photos of both Olson and Smith and contacted the sheriff to tell him that the phone showed evidence of an intimate relationship between Smith and Olson, the ruling said.<\/em><\/p>\n<\/blockquote>\n

Carpenter also added that he had seen nothing that indicated anything improper was happening. Nonetheless, he seemed extremely insistent that the sheriff view the contents of the phone, referring not-all-that-cryptically to content \u201cthat couldn\u2019t be unseen\u201d once viewed. At some point, the sheriff finally gave in.<\/p>\n

And then, according the lawsuit, he began handing this content out.<\/p>\n

\n

Olson said a Grant County deputy whom she didn\u2019t know came into her marijuana store and told her that he had heard \u201cthere\u2019s some pretty smokin\u2019 pictures of you going around the sheriff\u2019s office,\u201d the appeals court wrote<\/em>.<\/p>\n

Another witness reported observing two sheriff\u2019s employees looking at nude photos of Olson on a phone, according to the opinion.<\/em><\/p>\n<\/blockquote>\n

Nothing\u2019s going to happen to the DA, who \u2014 despite declaring there was nothing of (criminal) interest on Olson\u2019s phone \u2014 felt compelled to share the stuff of (prurient) interest with the sheriff. And, apparently (or allegedly, if you prefer), the sheriff felt compelled to share that with his employees.<\/p>\n

The end result is the dismissal of the prosecutor from this lawsuit, despite the Ninth Circuit making this statement early on in its\u00a0decision<\/a>\u00a0[PDF]:<\/p>\n

\n

We have no difficulty concluding that Carpenter\u2019s search was unreasonable.<\/em><\/p>\n<\/blockquote>\n

Even before reaching the question about the unauthorized sharing of the unreasonably searched data, the court has already found the original search was unlawful. It goes on to dismantle the DA\u2019s justifications for his search:<\/p>\n

\n

Compared to those weighty privacy interests, the two asserted government interests are unavailing. Palmer was \u201ccurious\u201d about whether Olson\u2019s phone might reveal misconduct on Smith\u2019s 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.<\/em><\/p>\n<\/blockquote>\n

Not obvious enough of a rights violation, says the Appeals Court.<\/p>\n

\n

Although we conclude that Carpenter\u2019s warrantless search of Olson\u2019s cell phone constituted a Fourth Amendment violation, the law was not clearly established at the time of the search.<\/em><\/p>\n<\/blockquote>\n

The DA walks away from this lawsuit. As disappointing as that is, at least the Ninth Circuit goes where most appellate level courts won\u2019t: it establishes precedent so the next fucker who tries this shit won\u2019t get away with it.<\/p>\n

\n

Because it is important to lay down a marker for future cases, we heed the Court\u2019s call in Pearson to develop constitutional precedent and conclude that Carpenter\u2019s search infringed on Olson\u2019s Fourth Amendment rights.<\/em><\/p>\n<\/blockquote>\n

And that, as sad as it is to say, is\u00a0way<\/em>\u00a0better than the nothing courts often content themselves with doing in cases dealing with obvious and egregious rights violations. So, of course, there\u2019s a concurrence (this one written by\u00a0Federalist Society member Judge Daniel Bress<\/a>) that says he agrees the DA should get away with this but that the court went too far by establishing precedent:<\/p>\n

\n

I join only Parts I and II.B of the court\u2019s 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 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.<\/em><\/p>\n<\/blockquote>\n

Of course \u201cthis is not such a case.\u201d It would probably be difficult-to-impossible to find a case\u00a0Trump appointee Judge Bress<\/a>\u00a0(he replaced Alex Kozinski) might find worthy of establishing precedent when it comes to law enforcement and civil rights violations. Maybe he\u2019ll get to handle a J6 case (what\u2019s left of them after Trump\u2019s mass pardoning) that may force him to see rights-violating cops as being on the wrong side of the law. But today isn\u2019t the day.<\/p>\n

As it stands now, the DA gets to walk but DAs who follow in his footsteps won\u2019t. That\u2019s the only positive outcome of this decision \u2014 yet another one that lets cops and their accomplices know there\u2019s almost nothing to fear when they get sued for violating rights.<\/p>\n

Court Grants Immunity To DA Who Shared Nude Photos From A Searched Phone With Local Law Enforcement<\/a><\/p>\n

More Law-Related Stories From Techdirt:<\/strong><\/p>\n

Trump EO Tries To Destroy Whatever Corporate Regulatory Oversight Hasn\u2019t Been Already Killed By DOGE And The Supreme Court<\/a>
Michigan Appeals Court Says State\u2019s \u2018Terroristic Threat\u2019 Statute Is Unconstitutional<\/a>
Trump Is Going To Make Private Prison Companies Rich And They Couldn\u2019t Be Happier<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

The phrase \u201cno harm, no foul\u201d doesn\u2019t apply to law enforcement personnel, whether they\u2019re patrol officers or the chief local prosecutor. Instead \u2014 thanks to the\u00a0qualified immunity doctrine\u00a0\u2014 the phrase is: \u201cwhatever amount of harm, no foul.\u201d As long as the harm isn\u2019t something\u00a0specifically\u00a0covered by precedent, the general feeling of courts is that law enforcement […]<\/p>\n","protected":false},"author":3,"featured_media":108851,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"_et_pb_use_builder":"","_et_pb_old_content":"","_et_gb_content_width":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16],"tags":[],"class_list":["post-108875","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-above_the_law"],"jetpack_featured_media_url":"https:\/\/i0.wp.com\/xira.com\/p\/wp-content\/uploads\/2025\/02\/GettyImages-1170853616-lZtZpM.jpeg?fit=553%2C311&ssl=1","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/108875","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/comments?post=108875"}],"version-history":[{"count":0,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/108875\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media\/108851"}],"wp:attachment":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media?parent=108875"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/categories?post=108875"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/tags?post=108875"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}