If you ever want a damned good reason to never consent to a police search of your phone or other electronic device, take this case out of Oregon recently decided by the Ninth Circuit. First a few facts.
Tyler Smith is a deputy with the Grant County Sheriff’s Department in Oregon. Haley Olson is his girlfriend. But they were keeping their relationship under wraps. Olson drove into Idaho and was arrested for marijuana possession. While in custody, she signed a form that waived her Fourth Amendment rights and granted Idaho police permission to search her phone, and the internal storage was cloned.
Let’s sidebar for a moment.
I’ve said before that your consent is the government’s absolute defense to the Fourth Amendment when it comes to a search without a warrant. There are very few exceptions to the warrant requirement, none of which would’ve applied here.
And combining the Fourth and Fifth Amendments is an exception called the “foregone conclusion” doctrine. In short, absent your consent, law enforcement must be able to articulate what crime they are investigating, what evidence of that crime they expect to find on your phone, and what evidence – testimony or something tangible – gives them reason to believe that evidence exists. I discussed that when discussing whether the government can compel you to unlock your phone. (Short answer: yes, but they have to satisfy the foregone conclusion doctrine first.)
But again, that’s absent your consent. In the above, scenario with Miss Olson, she consented to the search, so the Idaho State Police imaged her phone. Again, do not consent to a search. Let the police hold your phone while trying to get a warrant. Since consenting to a search means also consenting to whatever they find being used against you in a Court of Law.
But consenting to that search definitely does NOT mean she consented to… everything else that allegedly happened with what they found.
Unfortunately Miss Olson wasn’t able to get satisfaction out of the Courts. The Ninth Circuit ruled that, while there was clearly a violation of the Constitution, since no one beyond the Idaho State Police had reason to be in possession of the phone’s storage clone, the police officers and prosecution officials who participated in that are protected by qualified immunity.
So, again, another reason to never consent to a search.
The above case is Olson v. County of Grant, Oregon.
