This article examines two cases that involve law enforcement reusing phone data with other agencies, one where the data was obtained by search warrant, and another where it was accessed through consent. In both situations, officers assumed they could freely share and reuse the data across unrelated investigations. Failing to follow proper legal procedures can lead to suppression and critical evidence getting tossed. Follow along to learn how mishandling digital evidence can jeopardize entire prosecutions.
United States v. Hulscher: Warrant Scope and the Limits of Data Reuse
On March 15, 2016, Huron Police in South Dakota responded to a report of Robert John Hulscher attempting to cash a forged check and fleeing the scene before completing the transaction. When later contacted by officers, Hulscher admitted he was trying to cash the check to pay off a drug debt. While his iPhone was in police custody during questioning, a text message appeared on the screen from a contact asking, “You holdin?” This prompted Huron Police Sergeant Mark Johnson to obtain a search warrant to examine the phone for evidence related to the check forgery.
Hulscher later pled guilty to grand theft and was sentenced on May 17, 2016. Although the physical iPhone was returned to his father, the Huron Police Department retained a complete digital extraction of the phone’s contents.
“I request permission to enter the cell phone to collect any evidentiary information regarding this counterfeit investigation.” – Sgt. Mark Johnson Warrant Affidavit
Meanwhile, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) had been separately investigating Hulscher in connection with the theft of a dozen firearms. He was eventually charged with the theft, aiding and abetting the theft of those firearms, and being a felon in possession of the same firearms. In preparation for the federal trial, ATF Agent Brent Fair ran Hulscher through NCIC and learned of the earlier Huron arrest. Agent Fair contacted Huron PD, discovered that Hulscher’s iPhone had been digitally extracted, and requested a copy of his phone.
He reviewed the complete extraction, including data unrelated to the original State charges, without obtaining a new warrant and located evidence related to guns.The government later informed Hulscher’s defense that it intended to use the entire, unsegregated iPhone data set at trial. Hulscher moved to suppress the evidence, citing a violation of his Fourth Amendment rights. A magistrate judge recommended suppression, and after the government objected, the case proceeded before the U.S. District Court for the District of South Dakota on appeal.
What the Court Said: A Warning Against Unchecked Digital Searches
The District Court addressed whether the ATF’s warrantless review of cellphone data originally seized under a warrant in an unrelated State investigation constituted a new “search” under the Fourth Amendment that required a separate warrant. The Court held that the review of the iPhone data was a separate search under the Fourth Amendment and required a new warrant. The court granted Hulscher’s motion to suppress the evidence.
Hulscher’s data was seized lawfully and now belongs to the government, so why can’t one agency give a phone rip to another? When the Huron Police Department applied for a search warrant to search Hulscher’siPhone, they accomplished two primary things:
- They involved the Court to confirm that probable cause existed sufficient enough to authorize the search.
- They limited the scope of the warrant to evidence related to the crime they were investigating. (counterfeit checks)
It is possible that sufficient probable cause to search the phone for gun charges did not exist and a Judge would have denied the ATF’s warrant application. By reusing phone data obtained by Huron PD, the ATF bypassed Judicial review and expanded the scope of their search.
Olson v. County of Grant: Consent Limits and Digital Privacy
Haley Olson legally operated a marijuana dispensary in Oregon but was arrested in Idaho in January 2019 for marijuana possession where it is still illegal. She signed a consent form allowing Idaho State Police to search her phone, but the form limited the use of the data to Idaho’s investigation. During the arrest she disclosed that her boyfriend, Tyler Smith, was a Deputy Sheriff in Grant County, Oregon.
Though the charges were dropped, Grant County Sheriff Glenn Palmer learned of the arrest and Olson’s relationship with Deputy Smith. Suspecting possible misconduct, he asked Grant County Prosecutor Jim Carpenter to obtain a copy of her phone from Idaho authorities. Carpenter reviewed the data for Brady material that might impeach Deputy Smith in future cases and claimed he found nothing relevant, then destroyed the flash drive. Despite this, Olson later learned that intimate images from her phone had allegedly circulated within the Sheriff’s Office. Witnesses confirmed hearing gossip and seeing or hearing about her nude photos, though these claims weren’t formally substantiated.
Olson filed a lawsuit Carpenter, alleging a Fourth Amendment violation for obtaining and reviewing her phone data without proper legal authority, and possibly sharing her private images. While the court agreed a constitutional violation had occurred, it granted Carpenter qualified immunity, finding no clearly established law at the time addressing this specific scenario. The case leaves open questions about future boundaries for handling consent-limited digital evidence.
For more information about the civil and Monell liability aspects of this case, check out the analysis by Deputy District Attorney (ret.) Robert Phillips at LegalUpdates.com.
Key Takeaways for Law Enforcement
Even if it was lawfully obtained by another agency, reusing phone data for a new purpose can violate the Fourth Amendment and result in suppression of critical evidence. Digital extractions should be treated like tangible evidence, with strict attention to scope, retention, and chain of custody.
- Respect consent limitations. If consent is given for a specific purpose, using the data beyond that scope can trigger legal liability.
- Don’t assume inter-agency access is automatic. Data sharing without legal authority, even between law enforcement agencies, can be unconstitutional.
- Have you read your own consent forms? Knowing what your standard consent forms authorize is critical to a case. Just because it says Consent to Search at the top doesn’t mean law enforcement can do whatever they want; forms have limits and requirements. For California law enforcement CalECPA applies to consent and have specific requirements that need to be included or your evidence could be jeopardized.
QUESTIONS & ANSWERS
Q: Can law enforcement reuse digital phone data obtained in a previous investigation?
A: Generally no, not without a new warrant. If digital data was collected under a warrant for one case, using it for a separate investigation without court approval can violate the Fourth Amendment. Courts have ruled that repurposing such data without new legal authority may lead to suppression of evidence.
Q: What happens if police search a phone without a valid warrant?
A: If police access a phone’s contents without a valid warrant or beyond the scope of consent, Courts can suppress the evidence under the exclusionary rule, meaning it cannot be used at trial.
Q: Does consent to search a phone allow all law enforcement agencies to use the data?
A: No. Consent is limited to the scope and purpose for which it was given. If someone consents to a search for one investigation, that doesn’t authorize other agencies to use the data in unrelated cases. Misusing consented data can trigger legal challenges and constitutional violations.
Q: Why is digital phone data treated differently under the Fourth Amendment?
A: Mobile phone and computer data is highly personal and vast, often revealing far more than physical evidence. In Riley v. California, the Supreme Court held that law enforcement must generally obtain a warrant to search a phone, recognizing the need to protect digital privacy under the Fourth Amendment.
Q: What is the risk of reusing phone data in criminal investigations?
A: Reusing phone data without proper legal authority risks violating the Fourth Amendment. If one agency shares data with another for a new case without a warrant, courts may suppress that evidence. The other agency should apply for a warrant of their own to obtain copies.
Q: Why did the court consider the ATF’s search a separate investigation in Hulscher?
A: The court ruled that the ATF’s search was distinct from the original investigation because the initial warrant only covered forgery-related crimes. Searching the same phone data for evidence of firearms offenses required a new warrant, as it served a different investigative purpose not authorized by the original warrant.
Q: Did Hulscher retain a privacy interest in his phone data after the state case ended?
A: Yes. The court held that Hulscher maintained a reasonable expectation of privacy in his digital data, even after his phone had been lawfully searched. Once the state case ended and his physical device was returned, a new warrant was required to search the data for unrelated federal crimes.
Q: Why didn’t the plain view doctrine apply in Hulscher’s case?
A: The court rejected the plain view doctrine because the ATF was not lawfully authorized to search the phone data in the first place. The doctrine only applies when law enforcement has lawful access and inadvertently discovers new evidence, which was not the case here.
Q: How did the court apply the exclusionary rule in Hulscher?
A: The court applied the exclusionary rule to suppress the phone data, finding that the benefits of deterring improper digital searches outweighed the cost of losing the evidence. The decision reinforced that reusing lawfully obtained data in unrelated cases without a new warrant undermines Fourth Amendment protections.
A search warrant to examine the original extraction for a new purpose prevents you from reusing phone data outside of the original authority. Sign Up for a free trial of Warrant Builder and write the warrant you need to to collect evidence the right way.
