[00:00:01] Speaker 00: Good morning, Your Honors. [00:00:02] Speaker 00: May it please the court, Nadia Dahab for Plaintiff Appellant Haley Olson. [00:00:07] Speaker 00: I'm going to attempt to reserve about five minutes for rebuttal argument. [00:00:12] Speaker 00: Your honors, this case presents essentially questions again, which we heard in the last case, relating to qualified immunity, but in the Fourth Amendment context. [00:00:21] Speaker 00: In this case, plaintiff Olson alleged that defendant Carpenter, who was the local district attorney and county counsel for Grant County, Oregon, and defendant Palmer, who was the county sheriff, violated her Fourth Amendment rights when they requested, obtained, [00:00:35] Speaker 00: And at least with respect to the defendant, Carpenter viewed a copy of the extraction of her cell phone, which lawfully had been seized by the Idaho State Police. [00:00:45] Speaker 00: Defendants did so without a warrant, without any suspicion of criminal activity, and outside the scope of the consent that plaintiff had given to the Idaho state troopers. [00:00:55] Speaker 00: That, in plaintiff's view, under clearly established law, is unconstitutional. [00:01:00] Speaker 00: The district court granted summary judgment as to both defendants. [00:01:03] Speaker 00: As to defendant Carpenter, the district court found that, or declined to resolve the question of whether he had violated plaintiff's constitutional rights, but held that if he had, those rights were not clearly established. [00:01:15] Speaker 00: With respect to Sheriff Palmer, the district court concluded both that there was no constitutional violation and that even if there were, the right was not clearly established as well. [00:01:24] Speaker 00: The clearly established analysis, I think, is the same with respect to both defendants, so I'll start there. [00:01:30] Speaker 00: And the authorities that the counsel in the prior case, of course, talked about with respect to how this court determines whether a right is clearly established apply equally in this case. [00:01:42] Speaker 00: The question, of course, is whether the law is sufficiently clear that every reasonable official would have understood that what they were doing was unlawful. [00:01:48] Speaker 00: The purpose, of course, as Judge Clifton articulated, is to protect all but the plainly incompetent or potentially corrupt. [00:01:56] Speaker 00: The question needs to be resolved or needs to arise in a specific context, but this court, fairly recently in Hampton versus California, made clear that the binding case law need not catalog every single way in which the conduct could be unlawful. [00:02:09] Speaker 02: So what, when we're looking at the clearly established right, how do you define that? [00:02:19] Speaker 00: In this case, the clearly established right is plaintiff's right to be, I mean, it's [00:02:25] Speaker 00: I hesitate to say it this way, but it's relatively broad. [00:02:28] Speaker 00: We might just write to be free from an unreasonable search of the contents of her cell phone. [00:02:33] Speaker 02: But that actually kind of cuts against the whole jurisprudence we have about high level. [00:02:39] Speaker 02: So let me just tell you kind of what I thought might be the constitutional right, but then I'm interested to hear whether it's clearly established. [00:02:48] Speaker 02: And that is review of a [00:02:53] Speaker 02: consented to extraction of a cell phone by a different law enforcement agency. [00:03:01] Speaker 00: I think that is correct. [00:03:03] Speaker 00: I think the clearly established right has to include the question of consent, or consented to with respect to one agency, potentially unconsented to with respect to the other. [00:03:16] Speaker 00: And whether review by the other agency violates her right to be free is an unreasonable search and seizure in violation of the Fourth Amendment. [00:03:27] Speaker 00: I think the cases that tell us that that is clearly established are Raleigh versus California, of course, which tells us that the search of a cell phone requires a warrant. [00:03:39] Speaker 00: That case, of course, arose in the incident to arrest exception. [00:03:45] Speaker 00: But the holding and the very first sentence of the case and the holding at the end is that search of a cell phone requires a warrant, or the well-established exception, which is consent. [00:03:55] Speaker 00: Florida versus Jimeno and all of the cases that follow it Illinois versus Rodriguez donor versus California Which tell us that the scope of the consent is limited to the terms of the authorization Can we go back to Riley? [00:04:07] Speaker 02: Riley talks about search incident to arrest. [00:04:11] Speaker 02: So we have that as clearly established. [00:04:13] Speaker 02: But then the Supreme Court did that thing that it often does, which is, ah, you know, and then leaves us to figure out. [00:04:22] Speaker 02: And so it said, but it didn't implicate whether aggregated data is a search under other circumstances. [00:04:31] Speaker 02: So what do we make of that little [00:04:33] Speaker 02: additional phrase that the Supreme Court threw in there that it didn't decide? [00:04:38] Speaker 00: I don't know. [00:04:39] Speaker 00: I'll be honest. [00:04:40] Speaker 00: I don't know what aggregated data in this. [00:04:43] Speaker 00: I don't know what the Supreme Court is referring to when it says that. [00:04:45] Speaker 00: It feels like to me, the way I read it, something very different than the individual search and seizure after a traffic stop that happened here. [00:04:58] Speaker 00: That's potentially more akin to the carpenter versus United States [00:05:04] Speaker 00: facts where the government sought to collect data from a third party there, but aggregated data relating to location information from a cell service provider. [00:05:19] Speaker 00: And in fact held there, before this case arose, that even there, when the government seeks to collect data of that nature, [00:05:29] Speaker 00: of that degree of, you know, providing that degree of private information about an individual. [00:05:35] Speaker 00: A warrant is required there, too, and the Fourth Amendment protects even that information. [00:05:40] Speaker 00: Even where that information was lawfully collected by a third party, lawfully created by the third party, a warrant is required in those circumstances. [00:05:48] Speaker 00: I guess to get back to your question, Judge McEwen, I agree that Riley does this thing where this case is narrow. [00:05:59] Speaker 00: But I don't know that there's any other way to read Riley other than in the police stop circumstance, a warrant is required to search a cell phone. [00:06:11] Speaker 04: But here there was consent of some scope. [00:06:15] Speaker 04: There was. [00:06:16] Speaker 04: So I mean, what if what if Idaho authorities had found on the phone evidence of another crime like a federal crime? [00:06:24] Speaker 04: Could they have turned the phone over to the FBI? [00:06:27] Speaker 04: Could the FBI have accepted that phone without a warrant and searched it? [00:06:31] Speaker 00: I think there, potentially, I think that the defendant calendar raises lots of federal statutes that allow, in certain circumstances, where there is evidence of criminal activity, and they are using the information to pursue legitimate law enforcement activities, information to be shared. [00:06:52] Speaker 00: And without sort of conceding one way or the other, Judge Brass, whether that would be permissible in that [00:06:58] Speaker 00: hypothetical circumstances, there may be some set of facts where Idaho could share that evidence of legitimate criminal activity with another law enforcement agency. [00:07:10] Speaker 02: But the implication of your answer is that there needs to be some reasonable basis to do that. [00:07:18] Speaker 02: Right. [00:07:19] Speaker 02: So in other words, that's assuming we read the search to mean, hello, Idaho. [00:07:24] Speaker 02: Yeah, you can look. [00:07:26] Speaker 02: you Idaho and if I end up in Idaho court you can use this assuming she did circumscribe her consent you're saying that that consent could be overridden [00:07:40] Speaker 02: if there was evidence of additional crimes? [00:07:43] Speaker 00: I think I want to be careful here, both because I don't want to concede anything with respect to this case. [00:07:56] Speaker 00: I want to be careful with how my degree familiarity with the federal statutes that allow information sharing. [00:08:04] Speaker 00: Some of those statutes, one of the which defendant carpenter cites, requires or at least allows for a post [00:08:13] Speaker 00: transmission application to a neutral magistrate that would then sort of satisfy the warrant requirement. [00:08:22] Speaker 00: I don't know if you have got a limited scope of consent and no other basis, which is the case here, no other evidence of criminal activity and no other protective scheme that will allow a neutral detached magistrate to evaluate whether a warrant [00:08:38] Speaker 00: before the searcher after authorized the search that it's lawful. [00:08:44] Speaker 05: I mean, it's the scope of the consent that is the focus of my concern. [00:08:50] Speaker 05: That is the real question. [00:08:52] Speaker 05: Can they stretch the rubber band far enough to permit what defendants did? [00:08:58] Speaker 05: And in the qualified immunity context, what law do we have? [00:09:03] Speaker 05: What can you point to that tells us that stretches the rubber band too far? [00:09:08] Speaker 05: that the overt terms of the consent wouldn't seem to permit this. [00:09:12] Speaker 05: So the problem is, what is it that should put defendants on notice by the qualified immunity standard that, no, you can't ask Idaho and take from Idaho [00:09:26] Speaker 05: the copy of what was in the cell phone. [00:09:29] Speaker 05: So what would you point us to to say that's clearly established? [00:09:34] Speaker 00: We cite in our brief the Supreme Court's decision in the Florida v. Jimeno case, which is the standard for [00:09:43] Speaker 00: consent being limited to the scope of the authorization. [00:09:46] Speaker 00: And then we cite the Stoner case and Eleanor versus Rodriguez sort of reaffirmed that standard and require objective reasonableness based on or [00:09:58] Speaker 00: or state that that's determined based on an objective standard, right? [00:10:00] Speaker 00: That it's the objective reasonableness of the officer's determination of the facts before them. [00:10:08] Speaker 00: Here, I would say there is at the very least a dispute of fact on this question, because one, looking at the terms of the authorization, it's not clear on this record whether Oregon's, whether these defendants had the terms of the authorization before them. [00:10:26] Speaker 05: Which may mean, is it really the Idaho authority that turned information over without either side, apparently the terms of the consent weren't communicated, and the [00:10:43] Speaker 05: The reason for the inquiry may not have been clearly understood by the people in Idaho. [00:10:50] Speaker 05: What we have here may be a failure to communicate. [00:10:53] Speaker 05: And how does that play out? [00:10:56] Speaker 05: What law tells us that we're focused on these defendants, that what they did crossed the line and that it was clearly established that it crossed the line? [00:11:05] Speaker 00: These defendants were the defendants that conducted the search at issue in this case, the search being the review of the cell phone extraction. [00:11:14] Speaker 00: In Oregon. [00:11:15] Speaker 00: In Oregon. [00:11:16] Speaker 05: But the extraction took place in Idaho, and they were sent by Idaho authorities. [00:11:21] Speaker 00: Sure. [00:11:22] Speaker 00: It's certainly true that the seizure took place in Idaho. [00:11:24] Speaker 00: But I don't know that that makes the different agencies review of the contents of a cell phone any less a search. [00:11:33] Speaker 00: It's not a seizure. [00:11:34] Speaker 00: But it's no less a search within the meeting of the Fourth Amendment. [00:11:38] Speaker 04: Defendant Carpenter did not have the consent form [00:11:42] Speaker 04: He got this information from Idaho. [00:11:45] Speaker 04: Why wasn't it reasonable for him to essentially receive it when he asked for it and reasonable to believe that they could send it to him? [00:11:54] Speaker 00: I think, thank you for that question Judge Bress. [00:11:57] Speaker 00: I think there's at very least a dispute of fact on that question. [00:12:00] Speaker 00: The record in this case is that Sheriff Palmer called the state trooper in Idaho who refused to give Sheriff Palmer the information, the information from the cell phone. [00:12:12] Speaker 00: Sheriff Palmer then went to Defendant Carpenter and said, can you please get this information? [00:12:15] Speaker 00: And we think there's plenty of evidence of that in the record as well. [00:12:21] Speaker 00: Carpenter says to Sheriff Palmer, I'll attempt to do that. [00:12:24] Speaker 00: And then he writes a letter to Idaho explaining what he understood to be the scope of the consent, which was, and this is at ER 225. [00:12:33] Speaker 00: He knew that Olson had agreed to allow law enforcement, the Idaho law enforcement, to look at her cell phone, and he knew that a cell phone dump took place. [00:12:45] Speaker 00: I don't think that if that's what defendant Carpenter knew, that's not consent to an outside jurisdiction to search and review the contents of her cell phone. [00:12:56] Speaker 00: He says, can I please have a copy of that cell phone? [00:12:58] Speaker 00: And Idaho, of course, provides it. [00:13:00] Speaker 00: I don't know that that's sufficient. [00:13:02] Speaker 00: to give defendant Carpenter, who bears the burden to establish the constitutionality of the search, a reasonable basis to rely on the scope of consent as he understands it. [00:13:15] Speaker 02: I want to kind of separate these two. [00:13:18] Speaker 02: So Carpenter says, well, I'm kind of hunting for possible Brady information that might [00:13:27] Speaker 02: implicate in case this guy Smith has to testify? [00:13:32] Speaker 02: Is that the justification that we have? [00:13:35] Speaker 00: That's the justification that he has after the fact. [00:13:38] Speaker 00: It's not the justification that he gave to Idaho. [00:13:40] Speaker 00: He tells Idaho that there's some workplace investigation about the deputy whose business card was found in plaintiff's car. [00:13:49] Speaker 00: So these are sort of the post-talk, in our view, rationalizations for what was going on here. [00:13:55] Speaker 00: The evidence on this record is that Palmer says initially that he was looking for evidence of an illegality. [00:14:01] Speaker 00: He later sort of turns around and says, well, I was actually more out of curiosity [00:14:06] Speaker 02: Right, that's Palmer. [00:14:07] Speaker 00: That's Palmer. [00:14:08] Speaker 02: Carpenter is like, apparently, at least after the faxing, it's because there could be potential Brady material, which I didn't quite understand. [00:14:18] Speaker 00: I will say nor do I, Judge McHugh, and I think the idea is that he's looking for potential information that he has to disclose should his deputy take this. [00:14:32] Speaker 02: And the abstract, but we have no proceeding pending in which Brady is implicated. [00:14:36] Speaker 02: Exactly. [00:14:38] Speaker 04: With that, I will review. [00:14:39] Speaker 04: We will put three minutes on the clock when you come back up. [00:14:43] Speaker 04: Thank you. [00:14:45] Speaker 04: Understand the appellees are splitting time. [00:14:47] Speaker 04: So Mr. Whitehead. [00:14:48] Speaker 04: You're first. [00:14:49] Speaker 01: That's correct. [00:14:50] Speaker 01: May it please the court counsel Carson Whitehead for defendant appellee carpenter. [00:14:56] Speaker 01: I mean, I'm splitting time with counsel for Sheriff Palmer. [00:15:00] Speaker 01: So I'd like to start where the court was just discussing with opposing counsel about whether the right is clearly established and what is that right. [00:15:10] Speaker 01: And I think here the right is whether plaintiff retained their Fourth Amendment privacy interest in a copy of the cell phone data that Idaho lawfully obtained and then that Idaho as a third party transferred [00:15:30] Speaker 01: to District Attorney Carpenter, and what the district court here found was that there is no case law from the Supreme Court or from this court on that issue. [00:15:42] Speaker 01: And as we put in our brief, there's a recent decision from the Supreme Court of Maryland [00:15:51] Speaker 01: goes through in extensive detail cases that have addressed this issue and finds that there's a split and there's no binding federal precedent in this jurisdiction. [00:16:03] Speaker 01: And so I don't see how plaintiff can overcome that clearly established hurdle and it is her burden to overcome it when what Riley says is that there's, yes, an individual has a privacy interest in cell phone [00:16:19] Speaker 01: data, but that case concerned a search incident to arrest where the officers were searching the phone that was found in the defendant's pocket. [00:16:28] Speaker 01: This is a consented to search. [00:16:31] Speaker 02: So let's start there. [00:16:32] Speaker 02: In your view, it is a search, yes? [00:16:38] Speaker 02: You're dancing on that. [00:16:39] Speaker 01: Yes or no? [00:16:40] Speaker 01: Is it a search? [00:16:40] Speaker 01: We did dance. [00:16:41] Speaker 01: So I don't think, well, if she doesn't retain a privacy interest in the data, I'm not sure. [00:16:48] Speaker 02: But let's answer the question first, because you always jump to the second prong. [00:16:52] Speaker 02: But in your view, is this not a search? [00:16:56] Speaker 01: Well, I say that I don't think it's clearly established that it's a search. [00:16:59] Speaker 01: No, no. [00:16:59] Speaker 02: I'm asking you if it's a search. [00:17:03] Speaker 05: If there were no consent, would it be a search? [00:17:07] Speaker 01: Yes. [00:17:07] Speaker 05: OK, so we're talking here about scope of consent, not so much whether they looked at something that otherwise they wouldn't be able to look at. [00:17:15] Speaker 01: I think that's correct, although I'm hedging there because this notion of the state receiving this material from a third party, because Idaho isn't in this case. [00:17:27] Speaker 01: And if I'm not quite sure if it's a- Let me change the facts. [00:17:31] Speaker 05: Suppose we have the letter from the prosecutor, Mr. Carpenter, [00:17:38] Speaker 05: giving a brief explanation for the reason for the inquiry, the internal investigation as to the activities of Deputy, whatever. [00:17:49] Speaker 05: I don't recall his name. [00:17:51] Speaker 05: Maybe they didn't give the name here. [00:17:55] Speaker 05: Suppose the communication, probably not in letter form, had been, hey, I hear there's a really attractive woman [00:18:06] Speaker 05: And there are pictures of her naked. [00:18:09] Speaker 05: Can we take a look at those? [00:18:13] Speaker 05: Is there any real question that the consent that had been given by plaintiff to the Idaho authorities probably didn't extend to the point of saying, yeah, you can look at this thing for peering at interest? [00:18:28] Speaker 01: And I agree with that, Your Honor. [00:18:30] Speaker 01: We're not taking the position that [00:18:33] Speaker 01: this activity would be permissible for any and all purposes. [00:18:38] Speaker 05: So our argument is- So we understand there's a limit to the consent. [00:18:41] Speaker 05: And so the problem again for me is how far does that rubber band stretch? [00:18:47] Speaker 05: Is the reason that was given by the prosecutor sufficient either to justify or to make it something short of clearly established that this isn't something that he couldn't do? [00:19:02] Speaker 01: So I think that his motivations in seeking the material were related to Brady versus Maryland. [00:19:08] Speaker 01: And it wasn't case specific, but the evidence in the record from his deposition testimony was that Deputy Smith is, you know, he's called upon to testify regularly in criminal cases and that he was concerned if Deputy Smith was involved in the trafficking of marijuana. [00:19:25] Speaker 01: in the state of Idaho, where marijuana is illegal, that was the basis of the Brady Concern. [00:19:30] Speaker 02: But to me, that is a trumped up concern. [00:19:33] Speaker 02: That's like, well, I kind of want to look at this stuff. [00:19:37] Speaker 02: If you had a pending proceeding and Deputy Smith is about to testify, we'd have a different situation here. [00:19:44] Speaker 02: But we don't have that. [00:19:46] Speaker 01: And that's right, Your Honor. [00:19:47] Speaker 01: This was kind of prospective concern about fulfilling duties under Brady v. Maryland. [00:19:51] Speaker 02: You know, and the other agencies, it's kind of interesting. [00:19:54] Speaker 02: The trooper said, no, I'm not turning it over. [00:19:56] Speaker 02: And then other agencies were asked, no, because there's no allegations of a crime. [00:19:59] Speaker 02: Nothing's pending here. [00:20:01] Speaker 02: There's no crime. [00:20:04] Speaker 02: And Carpenter had never before looked kind of in the abstract for Brady evidence. [00:20:09] Speaker 02: So that's the trouble I'm having with [00:20:12] Speaker 02: Mr. Carpenter is that if he didn't review the consent form and he gets this information, what's the legitimate basis for him having this information? [00:20:25] Speaker 01: So, and I do want to speak briefly about the consent form since that's come up. [00:20:29] Speaker 01: And the record does show that defendant Carpenter had a discussion with [00:20:36] Speaker 01: trooper Andrus from Idaho that's in the letter that District Attorney Carpenter sent to the Jerome County prosecutor in Idaho. [00:20:44] Speaker 01: So he had had a discussion with the trooper. [00:20:48] Speaker 01: I think what Sheriff Palmer's deposition shows that the trooper was concerned that there was an ongoing investigation. [00:20:54] Speaker 01: So why am I giving this Idaho information to an [00:20:58] Speaker 01: Oregon sheriff, and also some concerns that if Oregon sheriff's deputy was implicated, concerned about what's happening in the Grant County Sheriff's Department. [00:21:08] Speaker 01: So I think that was what the record reflects is the reason why the Idaho trooper was hesitant to turn this material. [00:21:15] Speaker 02: Yeah, well, he was smart, is what I would call him. [00:21:17] Speaker 02: You know, it was prescient that you don't go turning this over. [00:21:20] Speaker 02: So that brings me to that Setagahi case where we said, well, you can get information. [00:21:28] Speaker 02: lawfully, but if you're going to have a further search of lawfully obtained information, then you need a warrant. [00:21:37] Speaker 02: Why isn't that exactly the situation we have here? [00:21:41] Speaker 01: Well, again, I think it goes back to the clearly established question of what was her retained privacy interest in the data that she consented to Idaho collecting and receiving. [00:21:59] Speaker 01: So I don't think it's the [00:22:01] Speaker 04: The question of a further search of that scene is your is your position that once she turned over the phone and consented to it she essentially lost that phone as a In terms of an expectation of privacy anything could be done with it after that No, your honor. [00:22:16] Speaker 01: I mean our position on I know that maybe this is frustrating answer I mean, I don't think the state of like the state of Oregon is not saying that that [00:22:22] Speaker 01: that any cell phone data, whenever a copy is given, that forever that right is lost. [00:22:28] Speaker 01: But I don't think that the case law has established that a copy, that you have full retained privacy interest in a copy when you consent to that copy being made. [00:22:40] Speaker 01: And so the narrow question for qualified immunity is whether that right is clearly established. [00:22:46] Speaker 02: And I mean, I think- But isn't it [00:22:51] Speaker 02: integrated with the consent if, and I know you might not agree with this, but if the consent really is here's my cell phone and yeah you can use it because I'm now being arrested in Idaho for purposes of this or for court proceeding relating to this crime and then you use it for a different purpose or you send it to Oregon or why not just send it out nationally [00:23:20] Speaker 02: I mean, I don't see any difference between sending it to Oregon and putting it on the internet practically. [00:23:27] Speaker 01: Well, Your Honor, I think your question highlights one of the difficulties with this case is that we don't have Idaho in it, and that Idaho is the party that released the data to Oregon. [00:23:36] Speaker 01: So the question is, is it a violation of constitutional law for Oregon to ask for and review this data that was willingly given to it by a third party? [00:23:46] Speaker 01: And I think that wraps around to the apparent authority issue [00:23:50] Speaker 01: Um, where we think both on the facts and on that, that the facts show that, uh, that, uh, district attorney carpenter had a reasonable, objectively reasonable belief. [00:24:01] Speaker 04: Was there any, was there a suspicion that deputy Smith had committed a crime? [00:24:07] Speaker 01: Uh, the record states that, that there was not suspicion that deputy Smith had committed a crime. [00:24:12] Speaker 04: Could they have even asked for a warrant for this? [00:24:15] Speaker 04: What would be in the basis for, for applying for a warrant for this? [00:24:19] Speaker 01: Well, and that's, and District Attorney Carpenter said on the record that he didn't think he needed a warrant because there was no suspicion of a crime. [00:24:27] Speaker 01: So I'm not aware that- That makes it even worse. [00:24:29] Speaker 01: Well, and I understand that, Your Honor. [00:24:32] Speaker 04: But he could have then maybe he would have tried to subpoena it and then there would have been notice to Ms. [00:24:37] Speaker 04: Olson and she could have objected. [00:24:39] Speaker 01: So there certainly could have been a process, different decisions could have been made by the district attorney here, but I think the question is whether this is a clearly established violation under the qualified immunity standards. [00:24:52] Speaker 01: I know I sound like a broken record on that piece. [00:24:55] Speaker 01: I apologize for that. [00:24:57] Speaker 05: You play the card you've got. [00:24:58] Speaker 01: It's a good position to take. [00:25:00] Speaker 01: That's correct, Your Honor. [00:25:01] Speaker 01: So I think under the qualified immunity standards that this doesn't show [00:25:05] Speaker 01: the sort of incompetence or wrongdoing that would require to overcome that hurdle. [00:25:11] Speaker 01: And I see that I'm getting into my co-counsel's time, so we ask that you affirm as to DA Carpenter. [00:25:16] Speaker 01: Thank you. [00:25:21] Speaker 03: Morning, Your Honors, May it please the court, Aaron Heisel on behalf of Sheriff Palmer. [00:25:26] Speaker 03: I have more notes than time, but I have different cards to play too. [00:25:31] Speaker 03: So there's that. [00:25:32] Speaker 03: I take issue with the introductory statements by my friend here that this case is about these defendants searching, these defendants observing, these defendants getting those things because my client did not do any of those things. [00:25:50] Speaker 03: And so then that goes to prong one. [00:25:52] Speaker 03: And then on prong two, during your introductory statements, she said the standard is the same as to both of them, and it is not. [00:25:59] Speaker 03: And those are the two things I want to focus on. [00:26:01] Speaker 03: As to that prong one, [00:26:03] Speaker 03: There are there and she did she did tell you that the district court separate and distinctly said I'm going to reserve a ruling on the actual Fourth Amendment as to carpenter, but she did not reserve that ruling as to my client. [00:26:21] Speaker 03: She found that there was no violation of the Fourth Amendment at all as to Sheriff Palmer. [00:26:27] Speaker 03: And then she went on and separately and distinctly analyzed. [00:26:31] Speaker 05: But it was Sheriff Palmer who started the ball rolling here. [00:26:34] Speaker 03: Sure. [00:26:34] Speaker 05: None of this would have happened but for his inquiry. [00:26:38] Speaker 03: He received the phone call initially from Idaho. [00:26:41] Speaker 03: And he was the one that passed that information off to Carpenter Correct. [00:26:47] Speaker 03: The critical piece, though, is we don't have vicarious liability in Section 83. [00:26:52] Speaker 03: And we certainly don't have strict liability. [00:26:55] Speaker 03: So the hole that they try to force these facts through as to Sheriff Palmer is supervisory liability. [00:27:03] Speaker 02: So let's, why don't you lay out for us actually exactly where Palmer fits into the story. [00:27:11] Speaker 03: We just covered it. [00:27:13] Speaker 03: It was exactly that. [00:27:14] Speaker 02: Got the phone call. [00:27:15] Speaker 03: He received the phone call from Idaho. [00:27:17] Speaker 02: And then? [00:27:18] Speaker 03: And then he told DA Carpenter. [00:27:19] Speaker 02: Go Carpenter. [00:27:20] Speaker 03: Yep. [00:27:20] Speaker 03: And those are the entirety of what they cite to on that conversation in the record is at 3ER 489. [00:27:28] Speaker 03: And there are five instances in the opening brief where they characterize that conversation because they're trying to go the supervisory liability route as Sheriff Palmer directing or instructing DA Carpenter to go get this cell phone data. [00:27:50] Speaker 02: Did Palmer look at the cell phone data? [00:27:53] Speaker 03: No. [00:27:55] Speaker 02: Did deputies look at the cell phone? [00:27:57] Speaker 03: No. [00:27:58] Speaker 02: No deputies within Palmer's department? [00:28:01] Speaker 03: No. [00:28:02] Speaker 02: So in your view, the only thing Palmer did was get a phone call and let DA Carpenter FYI. [00:28:10] Speaker 03: Yes, Your Honor. [00:28:11] Speaker 03: And I want to finish that thought, because I think it's important. [00:28:16] Speaker 03: The reason I'm highlighting this distinction about them saying that Palmer instructed or directed [00:28:23] Speaker 03: The district attorney to do something because they're trying to get this supervisory liability hook is because the opening of the argument in the reply brief is literally That they are entitled to an inference from the portion of the transcript. [00:28:38] Speaker 03: I just cited you to that it was that instruction that's an inference there they're granted and [00:28:45] Speaker 03: and that that has the legal effect of making Sheriff Palmer liable as, quote, personally participating in the allegedly unlawful conduct. [00:28:56] Speaker 03: And until I stepped up here today, there had not been any conversations hardly about my client because he wasn't involved. [00:29:03] Speaker 03: I mean, I'm just in this different orbit of things. [00:29:07] Speaker 05: If we skip to the end, I mean, the underlying injury [00:29:14] Speaker 05: suggested is that somehow photographs got passed around within the sheriff's office. [00:29:22] Speaker 05: We don't get to that part of the case. [00:29:26] Speaker 05: But that does shine a light on the sheriff's office and wonder, gee, how did that happen? [00:29:31] Speaker 05: Whose responsibility is that? [00:29:34] Speaker 03: I've been the attorney on this case from the beginning. [00:29:38] Speaker 03: And there have been some pieces of evidence that have been raised and then not stood on [00:29:45] Speaker 03: for what I believe are good reason. [00:29:47] Speaker 03: And I do not see in the opening brief anywhere where they're trying to rely on any of those evidence that the district court put in footnotes as to why that evidence, even at summary judgment, was not really being stood on. [00:30:02] Speaker 03: And I don't see that anywhere in the briefing. [00:30:04] Speaker 03: I think that's intentional, and I would think that those things are waived as to those tangential connections to the sheriff's departments as a whole. [00:30:11] Speaker 03: and certainly take issue that there's nothing in this record that connects anything to Sheriff Palmer. [00:30:16] Speaker 03: There is nothing that makes that leap. [00:30:18] Speaker 03: And then I think it's very telling that on this supervisory liability analysis as to my client, the case that the district court relied on is dispositive. [00:30:30] Speaker 03: It's Filarca. [00:30:32] Speaker 03: I'm probably going to mess up the defendant's name, Bejourno. [00:30:35] Speaker 03: And no supervisory liability over those you are not the supervisor of, not rocket science. [00:30:41] Speaker 03: And there's no reason to believe that those others would take action in violation of the Constitution, which breaks that causal chain. [00:30:49] Speaker 03: That's exactly where Sheriff Palmer sits in this story, and I would ask you to affirm. [00:30:55] Speaker 04: Thank you. [00:31:03] Speaker 04: Three minutes. [00:31:06] Speaker 00: Thank you, Your Honors. [00:31:07] Speaker 00: Briefly, I want to pick up where my friend on the other side left off, and Sheriff Palmer, because we didn't have a chance to discuss that in the beginning. [00:31:16] Speaker 00: Factually, I want to be careful. [00:31:17] Speaker 00: I think the record here, plaintiff has been titled to all reasonable inferences, is in her favor. [00:31:22] Speaker 00: Um, and so I don't know that there's any statement that, you know, Sheriff Palmer didn't testify that he instructed Carpenter, but there are plenty of, there's plenty of testimony in the record about him making the request of Carpenter. [00:31:35] Speaker 00: I think I needed to review the cell phone information. [00:31:37] Speaker 05: Well, he's not, he's not a supervisor. [00:31:40] Speaker 05: You've argued that he's a supervisor, but as a legal proposition, I have difficulty understanding what the basis for that is. [00:31:48] Speaker 00: I mean, I think there's a dispute in the record about the capacity in which defendant Carpenter is acting here, whether he's acting, at least in this, when he sends the letter to, when he is conducting this investigation, whether he's the DA or county counsel, whether he's working for the sheriff or whether he's the district attorney. [00:32:06] Speaker 00: And there's statements on both sides. [00:32:09] Speaker 00: And he says that I don't conduct workplace investigations in my capacity as district attorney. [00:32:14] Speaker 00: And so I think there's a dispute of fact as to that. [00:32:17] Speaker 05: And in fact, if he's acting on- That still raises the question about supervisor. [00:32:20] Speaker 05: I mean, it's one thing to say, let's forget that he's the DA as a state official and treat him as a county attorney. [00:32:29] Speaker 05: But that doesn't mean that Palmer can order him what to do. [00:32:35] Speaker 00: Palmer, I mean, I think Palmer, in essence, did, I want to be careful with the word order, but did instruct him what to do. [00:32:43] Speaker 05: They have to work together. [00:32:45] Speaker 05: In the DA capacity, they have to work together. [00:32:48] Speaker 05: So cooperation, I understand. [00:32:50] Speaker 05: But we don't have cooperator liability. [00:32:54] Speaker 05: And since your argument is supervisory liability, I'm not sure I understand what the basis for supervisor is. [00:33:00] Speaker 00: Sure. [00:33:01] Speaker 00: I suppose our view is that in the capacity as sheriff of the county, that Sheriff Palmer has authority over at least county council in instructing county council in the ways that county council serves the sheriff's office. [00:33:19] Speaker 00: That might be a stretch. [00:33:21] Speaker 00: Fair enough, Your Honor. [00:33:22] Speaker 00: And I want to be careful, be clear, too. [00:33:24] Speaker 00: This is not a phone call that Sheriff Palmer got from Idaho. [00:33:27] Speaker 00: This is a phone call that Sheriff Palmer made to Idaho. [00:33:30] Speaker 00: And that's at Excerpt of Record 128 in Sheriff Palmer's testimony. [00:33:34] Speaker 00: So he set in motion this series of acts by Grant County. [00:33:40] Speaker 00: This is not a circumstance in which Sheriff Palmer has nothing to do with it. [00:33:44] Speaker 00: The last point I wanted to make, I wanted to go back to defendant Carpenter and just highlight his testimony in the record at 456 and 457, which is that he undertook this, he reached out to Idaho because he understood that, at least from his conversation with Palmer, that plaintiff had consented to this extraction by Idaho authorities and Idaho appeared willing to provide it. [00:34:11] Speaker 00: And he didn't think he needed a warrant because nobody had committed a crime. [00:34:20] Speaker 00: And if qualified immunity protects everything but the incompetent and the corrupt, that to me is borderline incompetence under the Fourth Amendment. [00:34:30] Speaker 00: That's clearly a violation when you've got no suspicion of criminal activity, consent that does not extend to the search that you're undertaking. [00:34:38] Speaker 00: and no warrant to protect the individual. [00:34:43] Speaker 00: And all of that, I think, is clearly established under this court's and the Supreme Court's case law as a violation of the Fourth Amendment. [00:34:49] Speaker 00: With that, we'll request that the court reverse the district court's judgment. [00:34:53] Speaker 00: Thank you. [00:34:54] Speaker 04: Thank you. [00:34:55] Speaker 04: And we thank both counsel for the briefing and argument. [00:34:57] Speaker 04: This matter is submitted.