In Olson v. County of Grant, published February 10, 2025, the 9th Circuit Court of Appeals affirmed the district court's grant of summary judgment to the defendants. The plaintiff, who runs a marijuana dispensary in Oregon (where possession of marijuana is not illegal), was arrested in Idaho for marijuana possession. During the traffic stop leading to her arrest, the plaintiff told officers her boyfriend was a sheriff's deputy. In her car, the officers found the business card of a sheriff's deputy in Grant County, Oregon. After her arrest, the plaintiff signed a consent form allowing Idaho police to search her cellphone. The Idaho police copied the contents of the plaintiff's cellphone for review. The charges against the plaintiff were later dropped. The sheriff of Grant County called the Idaho state trooper in charge of the plaintiff's case, and requested the cell phone data. The trooper refused to share it. The sheriff then asked the Grant County District Attorney to request and review the extraction. He did so, ostensibly to make sure there was no Brady material he would have to disclose in cases in which the Grant County deputy might serve as a prosecution witness. The DA wrote the Idaho prosecutor a letter stating that the data would not be disseminated to any other agencies or third parties. The Idaho prosecutor sent the DA the contents. The DA then asked two outside agencies to review the contents of the flash drive. Both agencies declined. The DA then viewed the data himself. The DA concluded that the data showed no criminal activity, but did show an affair between the deputy and the plaintiff, including nude photos of both. There is conflicting evidence on whether the DA offered to share the data with the sheriff. The DA testified he deleted the data without showing it to anyone. But strangers began telling the plaintiff they knew about the data and the photos. The plaintiff sued the DA, the sheriff, and the county, asserting her 4th Amendment rights were violated. The district court granted summary judgment to all defendants. The plaintiff appealed the summary judgment granted the sheriff and DA.
The 9th Circuit agreed with the district court that the plaintiff had not stated a claim against the sheriff. There was no evidence the sheriff reviewed the data. There was no evidence the sheriff had any supervisory authority over the DA. At best, there was a cooperative relationship, which is insufficient for supervisory liability. The panel majority ruled that the DA violated the plaintiff's 4th Amendment rights by conducting an illegal search. The plaintiff's consent form could not be read to allow law enforcement officers in another state to review her data, particularly since there were no criminal charges against her there and no allegation she violated any law in that state. The third-party doctrine--that a party has no privacy interest in information voluntarily turned over to third parties--does not apply where the third party is a law enforcement agency. But the DA was entitled to qualified immunity, because this was an issue of first impression, and no Supreme Court or 9th Circuit law at the time of the event established beyond debate that the DA's actions violated the 4th Amendment. A concurring judge opined that the court should not have reached the issue of the constitutional violation.