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Law360 Publishes Article by Rebecca Kutlow and George Harris Analyzing 9th Circuit Qualified Immunity Ruling that May Limit Phone Searches
In Olson v. County of Grant, 127 F.4th 1193 (9th Cir. 2025), the U.S. Court of Appeals for the Ninth Circuit held, as a matter of first impression, that the plaintiff’s Fourth Amendment rights were violated when one law enforcement agency shared her cellphone data with another law enforcement agency without any warrant, consent or suspicion of criminal activity.
Attorneys Rebecca Kutlow and George C. Harris discuss this recent decision in “9th Circ. Qualified Immunity Ruling May Limit Phone Searches,” an expert analysis/opinion piece published in Law360.
Kutlow and Harris explain that in light of this decision:
- Law enforcement officers and prosecutors will need to carefully draft consent waivers they obtain for warrantless searches. They should be specific as to whether the consent applies only to their agency or is intended to apply more broadly.
- Defense attorneys and individuals should carefully review voluntary consent forms to ensure that they do not agree to overbroad terms that could be interpreted to apply to a wide range of searches by various agencies. Failure to do so could put the client at risk of prosecution by multiple agencies in multiple jurisdictions.
- Where consent forms, like that in Olson, apply only to a specific agency, defense counsel will be able to rely on Olson to suppress the use of cellphone and cellphone extraction evidence by other agencies.
- Defense attorneys, as part of their case analysis, should always consider what other jurisdictions may be interested in evidence against their client, and be prepared to advise their client regarding the pros and cons of signing voluntary consent forms that would apply to multiple agencies and jurisdictions.
- Conversely, prosecutors will need to be more diligent about requesting that individuals sign a consent form when they are interested in evidence that another jurisdiction may have.
- As to civil actions that claim unconstitutional searches, the Fourth Amendment violations established by Olson will now be clearly established and preclude a defense of qualified immunity.
Read the full article here. (Subscription may be required.)