Government agents have “qualified immunity” for 2019 actions.
Once your phone is imaged, the data is out of your control. Credit: Getty Images
In 2019, Haley Olson’s life in Grant County, Oregon, was upended when people in town appeared to know about private nude photos that Olson kept on her phone. Worse, some of the people appeared to have seen and shared the photos. The incidents all had some relationship to the local sheriff’s department, where Olson was dating one of the deputies.
In July, for instance, a stranger in a sheriff’s office uniform approached her to say that he had “heard there’s some pretty smokin’ pictures of you going around the sheriff’s office.” Someone else saw a married couple, both of whom worked for the sheriff’s office, looking at Olson’s photos on the husband’s phone. Other people also approached Olson with knowledge of her recent out-of-state arrest. One person called her “the drug dealer that likes to f— cops.”
What was going on?
An Idaho traffic stop
Olson had recently taken a trip out of state. In Oregon, she ran a marijuana dispensary, which was legal there, but on her trip in January, she was stopped by Idaho state police and arrested for marijuana possession. As part of that arrest, the Idaho state police wanted to search her cell phone, and they asked if she would sign an “Idaho State Police Voluntary Consent to Search.” She agreed, and the Idaho police made a complete image of her cell phone.
The Idaho charges against Olson were later dropped. Even though she was not prosecuted in Idaho and had committed no illegal activity in Oregon, she came to suspect that her cell phone image had somehow been shared across state lines and given to her local sheriff’s office. Olson filed a public records request with Grant County, trying to figure out who had her data and who had been talking about it.
She received a reply that same day from Jim Carpenter, who was then the Grant County Attorney and County Prosecutor. Carpenter explained that Glenn Palmer, the Grant County Sheriff, had asked Carpenter to obtain, if possible, a copy of the cell phone image from the Idaho state police. Palmer claimed to be concerned that the deputy whom Olson was dating might somehow be implicated in illegal activity depicted on her phone. (Palmer had first tried to obtain this directly from the Idaho trooper in charge of the case and was told no, which is when he reached out to Carpenter. How Palmer even learned about the arrest is unclear, but Olson had told the Idaho police she was dating a sheriff’s deputy in Oregon; somehow, word spread back to the department in Grant County.)
So Carpenter requested the cell phone image from the Idaho prosecutor in charge of Olson’s case. In his request letter, Carpenter said that the image “will be used only for internal purposes and will not be disseminated to any other agencies or third parties.” But when Carpenter received the image in the mail on a flash drive, he reached out to two outside agencies to look through Olson’s data. Given that no actual crime in Oregon was being investigated, both agencies said no. (A court later noted that these actions contradicted Carpenter’s “letter to the Idaho prosecutor.”)
Carpenter decided to look through the image himself, using tools from the digital forensics company Cellebrite. The image contained nude photos of both Olson and the deputy she was dating, but no activity that was criminal in Oregon. Carpenter wrote Palmer a letter making this clear—though nothing about the situation really was clear. Palmer would later say that Carpenter had “twice offered [him] the chance to review the extraction” and that Carpenter had said that “there were things on the cell phone that ‘once you see them, you can’t unsee them.'”
Carpenter, for his part, insisted that he was never willing to give the flash drive to Palmer or to show him its contents. He told Olson in his letter that he merely “took a quick look at the flash drive,” and after finding “content on the flash drive [that] was clearly personal in nature,” he made a “complete re-format of the flash drive.”
And yet somehow, people around town knew about the whole situation and even appeared to possess the pictures. Olson sued both Carpenter and Palmer for unlawful search and seizure under the Fourth Amendment.
The courts rule
The case has been bouncing through the court system for several years and recently landed at the 9th Circuit Court of Appeals, one stop below the Supreme Court. The 9th Circuit finally ruled on the case this week (PDF), and judges lambasted the behavior of the Oregon authorities, who had looked at her data without a warrant. The mere fact that Olson had signed a voluntary search form in Idaho was beside the point. “Olson’s consent in Idaho did not extend to a search by a different law enforcement agency, in another state,” wrote the court in its opinion, “and the search did not fall into any exception to the warrant requirement.”
The court noted that the 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.”
Whatever had actually happened with Olson’s data, the Oregon authorities had no right to look through it simply because the police chief was “curious” about it or because he wanted to go on a warrantless fishing expedition to see if one of his deputies was involved in anything nefarious. And Carpenter’s search was “highly irregular,” the court noted, even by his own standards. The 9th Circuit concluded that the situation was, in fact, a troubling violation of the Fourth Amendment.
Sweet vindication for Olson? Not quite. Despite its ruling, the court found that Sheriff Palmer was exempt from penalties because he had allegedly not seen the images, nor had he conducted the search—that was Carpenter, the local prosecutor.
However, Carpenter was found to have “qualified immunity” from prosecution as a government employee because, although he violated Olson’s Fourth Amendment rights, the law remained unclear in 2019. This case was slightly more complicated than a garden-variety warrantless search because Olson had voluntarily renounced some rights over in Idaho, and it was at least arguable at the time that this might have extended to other searches of the cell phone image for other reasons.
The 9th Circuit issued clarifying guidance in this area, saying that further searches of cell phones for unrelated reasons do, in fact, require a warrant, but all three judges declined to issue any penalties against Carpenter for his 2019 actions.
As for how Olson’s photos were shared around town, the 9th Circuit admits that it simply doesn’t know what happened and can do little about it.
Local news reports suggest that the Grant County Sheriff’s Department has had repeated experience in dealing with these kinds of lurid situations. The Oregonian notes that the sheriff’s deputy who Olson was dating was fired in 2019 “after his arrest on alleged assault and sex abuse complaints,” but the deputy was acquitted in court of all charges. He then “argued in a federal whistleblower complaint that [Sheriff] Palmer retaliated against him for reporting misconduct involving another sheriff’s deputy, who was the wife of Palmer’s undersheriff.” He eventually won a $1.3 million payout from Grant County and the state of Oregon.
