Anthony Bandiero, Attorney and Senior Legal Instructor, Blue to Gold Law Enforcement Training
Recorded as a roadside chat in Austin, Texas, with Nick, a legal intern for Blue to Gold, a former officer and a future instructor and attorney. We taught advanced search procedure that day and traffic stops the next. The question comes from an officer in South Dakota.
The officer says: “I’m working with a neighboring agency in a different circuit on a case involving a contractor operating with a revoked tax license. The agency received a search warrant for his bank records. Later, we arrested him and received a search warrant for his phone. Can we use the information from his bank records on our case, or should we reapply for a search warrant of his bank records?”
So this is a good question. I don’t know, I’m not 100% what the answer is. I have an idea here. I want you to be careful, but I think that I don’t think this is going to be a search under the Fourth Amendment. But you can cross that line.
Let me give you two cases that have held that cops cross the line, and we can kind of use these as some guidance.
Can one agency hand another agency a cell phone extraction it got by consent?
The first one is a Ninth Circuit case from 2019. What happened here is the suspect was pulled over in Idaho and they found marijuana in the car, and so they arrested the suspect. They got consent to search the cell phone. They found, you know, whatever, evidence of marijuana and so forth. Not a big deal.
Well, the suspect had a business card of a deputy in Oregon. And they said, “Hey, just so you know, we arrested this person in our county for marijuana and so forth. Why do they have your business card?” And the deputy is like, “Oh, well, we’re actually interested in this person too, for some other issues.” And the deputy was like, “So you’re telling me you downloaded the phone with consent?” “Yes.” “Hey, can you send that over to us? Can we look at that extraction?” And the deputies did, and they found evidence of another, I believe, like drug crimes and so forth.
Well, I think we can agree that first of all, this is totally different than what’s being asked here. This is wrong on a few levels. Number one, it’s wrong on consent. Because if you ask me for my consent to search my cell phone and I give it to you, is the scope of consent including a totally unrelated department in a totally different state? No. I mean, hell, it might even include a different department in the same state.
Because consent has three things: scope, authority, and voluntary.
So it’s a scope issue. What would a reasonable person believe you’re going to do with that data that they just gave you? Remember, like John Wiehn, one of our illustrious instructors, he likes to say that consent is like a gift. Don’t abuse it. It’s nice to get gifts. When people give you gifts, there’s a scope issue there. You can’t abuse it.
Is a second look at old body camera footage a new search?
There’s also a case out of Massachusetts from 2021. The Commonwealth, which I always like, by the way. I think it’s kind of cool. You know, it’s like the king, still around.
What happened here is the cops went to the defendant’s house for a domestic violence investigation. Well, sometime later, not like days, but maybe a month or so, they see him on social media showing off a firearm. Now, that’s what criminals do, right? As a private person, would you show off your firearm on YouTube? Of course. Especially your Glock switch. Who cares about 10 years in federal prison?
So now here’s the catch. There are curtains behind him. And they also look up his record and they see that the cops were at his house a few months prior or whatever it was. What did they want to do with the body cam? Get it and look at it. And if they can see those curtains now, we got them. Then they can get the warrant.
So that’s what they did. They looked at the body cam. They saw the curtains. They wrote the warrant that obviously there’s a fair probability that that firearm is at that residence, and they found the firearm.
Now, the argument was that that second look of that body cam was a search under the Fourth Amendment. Look, I struggle with this one. It is Massachusetts, so you’ve got to be a little careful here about their logic. But they’re just saying that data is not for searching for other crimes. That data was for the domestic. I guess you can look at it for, hey, was there evidence of this crime and so forth, but to look at it again for a different crime would require a search warrant.
It’s a tough question. It’s unique. It is very unique.
Can data already in lawful police possession be shared with another agency?
Because I think our general rule at Blue to Gold is data in the lawful possession of the government can be shared. It’s no different than me sharing my passwords with people. If it’s in my possession, I can share it.
So the body cam is in the lawful possession of law enforcement. So why can’t they share it with fellow law enforcement officers to take a look? It’s their body cam. It’s their video.
At the same time though, I do understand, and I actually kind of like, I think some rules can be put in place anyway for these body cams. Because when you’re in people’s houses, should that really be public record? I do not think it should be. I do not want, if the police are at my house taking a stolen property report or something, do I really want people to see in my house, my layout, my assets? No, I know I don’t.
It’s private information. I don’t like that part. But is it a constitutional issue? I don’t know, man. I don’t think so. Not everything is a constitutional issue.
What is the difference between a first look and a second look?
So going back to the case at hand, this information is not like a cell phone. This is not like a body worn camera looking in somebody’s home. This is simply records that they already have.
In other words, the way I look at those two cases is: do you have to do some more exploration? Not here. No, it’s on a silver platter.
And we also know that there is no case out there that says law enforcement cannot cooperate with other investigations. So I think this falls into the legacy rule that this is not going to be intrusive, because it’s already on a silver platter. We don’t need to do any more searching, versus the cell phone and the second look doctrine.
I think that’s probably what I would call it at Blue to Gold, if we’re just, hey, no second looks on things that have not been discovered. If it hasn’t been discovered, be careful, probably just get a warrant. But if it’s on a first look and you already have the information, then like here, hand it over.
Can you give the information to a federal agency instead?
Okay, I got a good example. This seems like it’s a state tax case. South Dakota, right? And he’s talking about tax issues.
What if the IRS said, “Hey, you have some evidence that he’s understating his income and so forth. Can you give us that?” I think they absolutely could give it to the feds without needing a warrant. That’s the first look doctrine.
The short version
- I don’t think this is going to be a search under the Fourth Amendment. But you can cross that line.
- Consent has three things: scope, authority, and voluntary. Consent is like a gift. Don’t abuse it.
- Data in the lawful possession of the government can be shared.
- No second looks on things that have not been discovered. If it hasn’t been discovered, be careful, probably just get a warrant.
- If it’s on a first look and you already have the information, hand it over.
- Again, I’m not positive on this one. So if you have this kind of case, definitely check with your prosecutor and make sure they’re good with it. But I think this is some good advice. At least we have a direction to go.
Stay safe and make good case law.
Related from Blue to Gold
- Juvenile Consent to Search a Cellphone
- Asking Suspect in Custody for Consent to Search
- Does the Collective Knowledge Doctrine Apply to Police Dispatchers?
This article is a lightly edited transcript of a Blue to Gold roadside chat and is for training purposes only. It is not legal advice. Check your own state law and your prosecutor before acting. Source video: EP#1061
