USA v. Good Voice

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
CENTRAL DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
vs.
CONRAD GOOD VOICE, JR.,
Defendant.
3:21-CR-30059-RAL
REPORT AND
RECOMMENDATION FOR
DISPOSITION OF MOTIONS
TO SUPPRESS
In this child sexual abuse case, Conrad Good Voice, Jr. (Good Voice), seeks to
exclude evidence officers garnered after entering the residence he cohabitated with
others. But because (1) Good Voice agreed to the entry, (2) the homeowner validly
consented to a search and seizure of items in the residence, and (3) warrants -- later
issued for Good Voice’s phone and social medial accounts – were (i) based on probable
cause, (ii) not overbroad, and (iii) relied on in good-faith, Good Voice’s suppression
motions should be denied.
BACKGROUND
At 10:14 a.m. on March 2, 2021, the Rosebud Indian Health Service (IHS)
Hospital called the Rosebud Sioux Tribe Law Enforcement Services (RSTLES) and
reported a possible sexual assault of twin nine-year-old girls. RSTLES Special Agent
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Matthew Tucker and Officer Oliver Semans responded to the hospital and met with
RaeLane Searby, the aunt and guardian of both girls, A.D. and A.K.
Searby, who lived in a home with Good Voice, the twins, and her adult sister,
informed Tucker the girls had told her that Good Voice “had put his private part by
their butts.” Searby though remarked that A.K. might be lying and that Good Voice
would never do something like that. Despite her hesitancy on the matter, after talking
with Tucker, Searby took A.D. and A.K. to the Central South Dakota Child Assessment
Center (CSDCAC) in Pierre to be interviewed and medically evaluated.
There, FBI Special Agents Benjamin Plante and Jordan Carlson observed the
child forensic interviews via closed circuit video. During the interviews, A.D. and A.K.
revealed that Good Voice had penetrated them anally and vaginally, with one incident
(against A.K.) occurring just the day before. Medical exams, conducted by a pediatric
nurse practitioner, showed injuries consistent with A.D. and A.K.’s disclosures. Plante
advised Tucker of what the girls said and their exam results.
In response, Tucker called RSTLES Officer Gerald Dillon and asked him to go to
Good Voice’s residence, arrest Good Voice, and hold the scene until Tucker arrived.
Dillon and RSTLES Officer Drury Cook went to the home and knocked on the front
door. Good Voice opened the door, and the following conversation ensued:
Dillon: Hello.
Good Voice: Hello.
Dillon: What’s your name?
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Good Voice: Conrad.
Dillon: Conrad?
Good Voice: Yup.
Dillon: Is there anyone else home with you?
Good Voice: Um, just my son.
Dillon: Just your son? Ok. Do you mind if I come in for a minute?
Good Voice: N-no.1
Dillon: Okay.
At that point, Good Voice turned around, stepped back and away from the open door,
and stood in the living room as officers entered.
Once inside, Dillon asked how old the child was and whether anyone else was in
the home. Good Voice stated that his son was three, and that nobody else was present.
Dillon informed Good Voice that he needed to run outside to grab his phone, but that
he would leave Cook in the home and would explain why officers were there when he
came back. Good Voice agreed, and Dillon headed outside to his vehicle to let Tucker
know about the presence of the child. Dillon gave Tucker a status update and returned
to the living room.
1 See Mot. Hr’g Ex. 7 at 00:52--05:40. (Mar. 15, 2022) (although the exact reply is
hard to discern, the permissive thrust of the response is clear, especially given
the subsequent interaction in the home).
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While Good Voice sat on a couch watching Captain America, Dillon inquired
about the child’s mother and learned that she was currently in Pierre. He also let Good
Voice know that a special agent (Tucker) was en route and wanted to speak with Good
Voice. Dillon then collected some biographical information on the child and went back
outside. From his vehicle, Dillon called the South Dakota Department of Social Services
(DSS) and requested assistance with Good Voice’s son.
Tucker pulled up to the house a short time later (around 15 minutes after the
initial door knock). Together, he and Dillon waited about 20 more minutes for the social
worker, Megan Hawthorn, to reach the home. Upon her arrival, Tucker and Dillon re-
entered the residence and arrested Good Voice. Cook transported Good Voice to the
Rosebud Adult Correctional Facility (RSTACF) where Good Voice was held on tribal
assault, sexual abuse, and child abuse charges.
Concurrently, 	Searby 	(the 	homeowner) 	signed 	a 	consent 	to 	search 	form,
authorizing FBI agents to carry out a “complete search” of her Sicangu Village home
and to “take any items which they determine may be related to their investigation.”
Having received Searby’s permission to search, Plante made his way down from Pierre
to the home. As Plante drove, Carlson called and informed him that A.D. made
comments about Good Voice using the flashlight of a phone to look at her “private
parts.”
Plante searched the residence and seized several items. Among them was a black
cell phone in the bedroom he shared with Searby. Following the search, Plante and
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Tucker met with Good Voice, but Good Voice chose not to answer questions or provide
a DNA sample.
A.D. returned to CSDCAC on March 9, 2021 for another interview. Plante
arranged 	the 	interview 	because 	he 	wanted 	A.D. 	to 	clarify 	some 	of 	her 	earlier
statements. In conversations with the interviewer, Angela Lisburg, A.D. recalled being
stomach down on a bed in the home with Good Voice on top of her. According to A.D.,
Good Voice got up, took his black phone off a charger next to him, kneeled behind her,
and pointed the flashlight toward her “private part” for “a couple seconds” or “like half
a minute.” After using the phone, A.D. said, Good Voice plugged it back in while still
laying on her.
When Lisburg asked whether Good Voice would ever “do like, pictures or
videos” with his phone, A.D. answered, “hm-mm” (negative). After Lisburg confirmed
that was a “nope,” A.D. explained, “Cause, I don’t hear the um, clicking um, like when
he’s taking the picture.” Lisburg replied, “I see. So you see the flashlight light, but you
don’t hear the clicking sound?” A.D. responded, “mm-hmm” (affirmative).
Using this and other information, Plante applied for, and received, a warrant to
search the phone that officers seized during their search of the residence. Examination
of the phone led to more information and, in turn, to search warrant applications for
Good Voice’s Facebook and Snapchat accounts. A federal magistrate judge found that
probable cause existed and granted the corresponding warrants.
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On June 8, 2021, a federal grand jury indicted Good Voice on two counts of
Aggravated Sexual Abuse of a Child, in violation of 18 U.S.C. §§ 1153, 2241(c), and
2246(2). Good Voice now moves to suppress (1) statements he made during and after
his arrest and (2) evidence obtained from his phone and social media accounts.2 The
government opposes these motions.3
DISCUSSION
A. The Home
1. Consent to Enter
Good Voice first claims that Dillon entered the home and arrested him without a
warrant or consent and therefore “all statements made by [him] inside the home” are
fruit of the poisonous tree.4 He also specifically contests the voluntary nature of any
consent, asserting that he “did not voluntarily acquiesce to the officers’ entry.”5
The Fourth Amendment “prohibits the police from making a warrantless and
nonconsensual entry into a suspect's home in order to make a routine felony arrest.”6
“Without consent or exigency, or an arrest warrant for a resident, the police generally
2 Docket Nos. 48, 53.
3 Docket Nos. 50, 57.
4 Docket No. 49 at 4-5.
5 Id.
6 Payton v. New York, 445 U.S. 573, 576 (1980).
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must have a search warrant to enter a home.”7 But when police have “valid and
voluntary consent” to enter, they may make a warrantless in-home arrest.8 Consent may
be either express or implied.9 Implied 	consent is established 	when an 	occupant
willingly allows, by words and action and without objection, officers to enter the
residence.10 A reviewing court must look to the totality of the circumstances to
determine whether consent was given voluntarily or was the product of duress or
coercion.11
The issue here is not whether Good Voice subjectively consented (he claims he
did not); but whether his conduct would have caused a reasonable officer to believe he
7 United States v. Greer, 607 F.3d 559, 563 (8th Cir. 2010).
8 United States v. Briley, 726 F.2d 1301, 1303 (8th Cir. 1984).
9 See United States v. Faler, 832 F.3d 849, 853 (8th Cir. 2016) (stating that officers
may enter a home with voluntary implicit or explicit consent).
10Id.; see also United States v. Rodriguez, 834 F.3d 937, 941 (8th Cir. 2016) (finding an
invitation to enter when, without words or protest, occupant opened door wider
and walked inside with back to officers after an officer asked to come inside).
11 United States v. Yeager, 731 F. App’x 545, 547 (8th Cir. 2018).
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consented to the entry of the residence.12 Dillon’s body-camera recording,13 establishes
Good Voice’s actions fostered just such a reasonable belief.14
Dillon knocked, possibly placed his foot alongside the front door, and soon after,
Good Voice opened the door.15 In a conversational tone, Dillon asked Good Voice for
his name and whether anyone else was home.16 Good Voice identified himself, and told
Dillon that his son was present.17 Dillon inquired whether it was just the boy inside and
then asked if he could come in for a minute.18 Good Voice’s exact response is difficult to
make out in the recording, but the Court’s interpretation, similar to Dillon’s,19 is that it
12 See Rodriguez, 834 F.3d at 940 (“the ultimate inquiry is not whether the
defendant 	subjectively 	consented, 	but 	whether 	‘a 	reasonable 	officer 	would
believe consent was given.’”).
13 See Mot. Hrg. Ex. 6 at 00:43-05:30.
14 See Rodriguez, 834 F.3d at 940; United States v. White Horse, 3:20-CR-30058(01)-
RAL, 2021 WL 784871, at *5 (D.S.D. Feb. 11, 2021), R&R adopted, 2021 WL 781798
(D.S.D. Mar. 1, 2021).
15 See Mot. Hrg. Ex. 6 at 00:43-00:53.
16 Id.
17 Id.
18 Id.
19 See Mot. Hr’g Tr. 55 (Mar. 15, 2022) (“Q. What did you understand Mr. Good
Voice to say? A. I understood him to say no, huh-uh or no, he doesn’t mind and
then step back and held the door open.”).
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was like “N-no” or “Nuh-uh.” If so, that would constitute express oral consent to
enter.20
But even if Good Voice’s response was not an explicit invitation to enter, his
nonverbal actions, at the doorway and afterward, engendered apparent consent and
gave officers reason to believe they had permission to enter.21 In response to Good
Voice’s answer, Dillon said “Ok,” and proceeded into the residence as Good Voice
casually retreated from the open door and walked toward a preschooler seated on a
nearby couch in the living room.22 The Eighth Circuit has held that similar conduct
amounted to implied consent.23
Moreover, at no point in any of the recordings did Good Voice, an adult who
appeared rational and fully aware, object to the entry or Cook’s remaining in the
20 United States v. Alloway, 25 F.4th 1093, 1096 (8th Cir. 2022) (finding express oral
consent to enter allowed officers to enter home without warrant).
21 See Mot. Hr’g Tr. 61 (“The way this word “no” was used was more – I felt
invited, I mean, he stepped back -- … held the door open for me, I took it as come
on in”).
22 See Mot. Hr’g Ex. 6 at 00:53-01:00; Mot. Hr’g Tr. 61 (“I felt invited, stepped
back, held the door open for me, I took it as come on in.”).
23 See Rodriguez, 834 F.3d at 941 (opening screen door wider, turning and walking
aside, after officer asked to come inside and talk amounted to implied consent);
Faler, 832 F.3rd at 853 (stepping aside, after officers asked if they could come in,
was implied consent); Greer, 607 F.3d at 563 (“[W]hen [defendant] opened the
door to the porch and stepped back, he impliedly invited the officers to enter.”);
United States v. Turbyfill, 525 F.2d 57, 59 (8th Cir. 1975) (“[T]he action of
[defendant] in the opening of the door and stepping back constituted an implied
invitation to enter.”).
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home.24 Nor did Good Voice do anything that could be construed as either denying or
retracting consent to enter such as asking officers to leave, closing the door, or showing
disapproval of their presence. And there is no evidence that officers coerced consent
from Good Voice by intimidation, force, or trickery.
Officers were reasonable in their belief that Good Voice consented to their entry.
His consent, whether it be express or implied, was likewise voluntary under the totality
of the circumstances.25 The warrantless entry into the house thus did not violate the
Fourth Amendment.
The ensuing arrest, like the entry, was also proper. “[A] warrantless arrest by a
law officer is reasonable under the Fourth Amendment where there is probable cause to
believe that a criminal offense has been or is being committed.”26 The Rosebud Sioux
Tribe Law and Order Code (RSTLOC) § 5-7-1 provides that:
Any person who knowingly causes another person to engage in a sexual
act:
(1) 	By using coercion or force against that other person;
(2) 	By threatening or placing that other person in fear that any person
will be subjected to death, serious bodily injury, or kidnapping;
(3) 	When the other person has not attained the age of 12 years;
24 See Mot. Hr’g Ex. 6 at 00:53-05:30; Mot. Hr’g Ex. 8 at 00:00-02:04; Mot. Hr’g Tr.
61 (“Q. … [D]id the Defendant say or do anything that made you think that he
did not consent to you and Officer Cook waiting in the residence for Agent
Tucker to arrive? A. No[.]”).
25 See United States v. Ortega-Montalvo, 850 F.3d 429, 433 (8th Cir. 2017) (examining
the totality of the circumstances and finding voluntary consent to enter).
26 Devenpeck v. Alford, 543 U.S. 146, 152 (2004).
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is guilty of aggravated sexual abuse.
Aggravated Sexual Abuse is a Class A Crime. 27
A “sexual act” consists of sexual penetration or “the intentional touching, not
through the clothing, of the genitalia of another person who has not attained the
age of 16 years …”28 Under the Tribe’s Rules of Criminal Procedure:
Any officer authorized to make arrests on the Rosebud Reservation may,
without a warrant, arrest a person for any offense committed in the
presence of the officer or may, upon probable cause that a Class A crime
has been committed and that the person arrested committed it, arrest that
person although the offense was not committed in the presence of the
officer.29
“Probable cause exists to make a warrantless arrest when the totality of the
circumstances at the time of the arrest are sufficient to lead a reasonable person to
believe that the defendant has committed or is committing an offense.”30 Given A.D.
and A.K.’s disclosures of penetrative sexual acts and the corroborating medical exams,
27 See Mot. Hr’g Ex. 3 at 3-4.
28 Id. at 6- 7 (§ 5-7-14(2)).
29 Id. at 10 (§ IV (B) (6)).
30 Ehlers v. City of Rapid City, 846 F.3d 1002, 1009 (8th Cir. 2017) (cleaned up).
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officers had sufficient probable cause to believe Good Voice violated RSTLOC § 5-7-1
and could arrest him without a warrant.
2. Consent to Search
Good Voice also attacks Searby’s consent to search the home in his absence.31
With nary a case citation to back him up, he claims the third-party consent form Searby
signed was overbroad and failed to specify the items officers could seize.32 He further
maintains that his absence and inability to object to the search of the shared rooms was
because officers illegally entered the residence and arrested him.33
While one person’s consent of a jointly occupied home is generally enough to
justify a warrantless entry or search, there is a narrow exception to this rule. A
“physically 	present 	inhabitant’s 	express 	refusal 	of 	consent 	to 	a 	police 	search 	is
dispositive as to him, regardless of the consent of a fellow occupant.”34 The rule,
however, is limited to situations in which the objecting occupant is present.35 So for
consent to be vitiated, the complaining occupant must be personally present unless
31 Docket No. 49 at 5.
32 Id.
33 Id. at 6.
34 Georgia v. Randolph, 547 U.S. 103, 122-23 (2006).
35See Fernandez v. California, 571 U.S. 292, 301 (2014).
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“there is evidence that the police have removed [him or her] from the entrance for the
sake of avoiding possible objection.”36
As already discussed, Good Voice was not physically present to oppose the
search after officers lawfully arrested him on tribal charges. No evidence was presented
that he was arrested “for the sake of avoiding a possible objection” to the search.37 He
therefore does not fall within the narrow exemption that might otherwise counter
Searby’s unopposed consent.
As for the scope of that consent, a person “may of course delimit as he chooses
the scope of the search to which he consents.”38 When one “provides general consent to
search, only an act clearly inconsistent with the search, an unambiguous statement, or a
combination of both will limit the consent.”39 The scope of any consent given is
considered under an objective reasonableness standard: “what would the typical
reasonable person have understood” from the exchange between officers and the
consenting party?40
36Id. at 302 (quoting Randolph, 547 U.S. at 121).
37See United States v. Brewer, 588 F.3d 1165, 1169-70 (8th Cir. 2009) (removal of
defendant before seeking consent to search from his wife not “for the sake of avoiding a
possible objection”).
38 Florida v. Jimeno, 500 U.S. 248, 252 (1991).
39 United States v. Beckmann, 786 F.3d 672, 679 (8th Cir. 2015).
40 Jimeno, 500 U.S. at 251.
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Here, in the context of an investigation into the alleged sexual abuse of minor
family members living in her home, Searby agreed in writing to allow FBI agents to
carry out a “complete search” of her home and “take any items” which they thought
may be “related” to the investigation.41 Such a consent was within her powers as the
owner and co-occupant of the home,42 and agents did not exceed the range of the
consent given to them when they seized items pertinent to their sexual assault
investigation.43
And Searby’s consent was voluntary. Determining voluntariness of a consent to
search is a fact intensive process that considers the totality of the circumstances.44
Searby brought the twins to CSDCAC, and there is no evidence that she was in any way
impaired. When Searby had issues with Plante, she requested to talk with another FBI
41 Mot. Hr’g Ex. 11; see also Mot. Hr’g Tr. 68 (“Q. Did she say anything when you
met with her that in any way limited the scope of the search …? A. No.”).
42 See Fernandez, 571 U.S. at 294, 296, 299 (occupant could provide consent (both
oral and written) to search apartment after defendant’s arrest); United States v.
Nichols, 574 F.3d 633, 636 (8th Cir. 2009) (“The Fourth Amendment permits,
however, a valid warrantless search of a premises when officers obtain the
voluntary 	consent 	of 	an 	occupant 	who 	shares 	authority 	over 	the 	area 	in
common.”).
43 See United States v Berger, 823 F.3d 1174, 1176, 1178-79 (8th Cir. 2016) (scope of
written consent to search home extended to forensic examination of hard drive);
United States v. Starr, 533 F.3d 985, 996 (8th Cir. 2008) (police officers had
unqualified written consent to search defendant’s entire home); United States v.
Ware, 890 F.2d 1008, 1010-12 (8th Cir. 1989) (preprinted consent form giving
permission to conduct “complete search” of apartment).
44 United States v. Comstock, 531 F.3d 667, 676-77 (8th Cir. 2008).
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agent instead.45 Carlson went to speak with Searby, brought the consent form to her,
explained it, and witnessed her sign the same.46 She affirmed, with her signature, that
the permission to search – she gave to agents – was voluntary.47 Carlson, a witness the
Court found credible, testified that “[Searby] was pleasant with me, but I went in kind
of overly cautious since I knew she had gotten upset with Agent Plante so I was overly
pleasant with her.”48 On this record, Searby’s consent was not overbroad and made
voluntarily.
3. Fruit of the Poisonous Tree
Good Voice makes various fruit of the poisonous tree arguments.49 But none of
them have merit because officers did nothing wrong. Without a poisonous tree to grow
from, there is no fruit to exclude.
B. The Warrants
45 See Mot. Hr’g Tr. 66 (“Q. She told him she wouldn’t consent to him, but she
would consent to another agent? A. Correct.“).
46 See id. at 64 ([Carlson]:“So I went into a room where there – [Searby] was sitting
and I explained the [ ] consent form was a consent for her residence [ ] – which
was already filled out by Agent Plante. So I explained the form to her, I read the
form, I confirmed that [the] address was her address and then asked her if she
had any questions. She said she didn’t. She signed the form and then I signed the
form and dated it.”).
47See Mot. Hr’g Ex. 11, ¶ 3.
48 Mot. Hr’g Tr. 68.
49 Docket No. 49.
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1. Phone
Good Voice challenges the search warrant for his phone on probable cause
grounds. He claims Plante’s statement in the warrant affidavit that A.D. “did not think”
Good Voice took pictures with the phone was inaccurate. He insists that A.D. answered
“no” or a negative “uh-uh” when questioned about Good Voice’s picture-taking and
that there is a meaningful difference between Plante’s characterization of A.D.’s
response and what she actually said.50 Good Voice also contends that there was
insufficient evidence that he photographed A.D. to justify the issuance of a phone
warrant.51 The Court disagrees and upholds the warrant.
“If an affidavit in support of a search warrant sets forth sufficient facts to lead a
prudent person to believe that there is a fair probability that contraband or evidence of
a crime will be found in a particular place, probable cause to issue the warrant has been
established.”52 “Whether probable cause to issue a search warrant has been established
is determined by considering the totality of the circumstances, and resolution of the
question by an issuing judge should be paid great deference by reviewing courts.”53 The
examination of the affidavit’s sufficiency involves a “common sense,” not a “hyper-
50 Id. at 6.
51 Id.
52 United States v. Grant, 490 F.3d 627, 631 (8th Cir. 2007) (cleaned up).
53 Id. (cleaned up).
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technical” approach.54 But a search warrant must be voided and the fruits of the search
suppressed if a defendant proves by a preponderance of the evidence that (1) the
subscribing officer knowingly and intentionally, or with reckless disregard for the truth,
included a false statement in the warrant affidavit, and (2) without the statement, the
affidavit would not have established probable cause.55
In the March 2 interview, A.D. responded “No,” when asked if Good Voice took
pictures of her, but also stated that Good Voice shined his phone’s flashlight on her
“private part” or her “butt” and did so “about five times.”56 Seven days later, during the
second interview, A.D. disclosed that Good Voice would (1) be “on top” of her while
she was on a bed,57 (2) get off her, grab his black phone from the charger, and kneel
behind her,58 and (3) illuminate the phone’s flashlight on her “private part,” before
returning 	it 	to 	the 	charger, 	and 	“continue 	being 	on 	top” 	of 	her.59 Lisburg, 	the
interviewer, then delved further:
54 Id.
55 Franks v. Delaware, 438 U.S. 154, 171 (1978); United States v. Neal, 528 F.3d 1069,
1072 (8th Cir. 2008).
56 Mot. Hr’g Ex. A at 54:35-56:00.
57 Mot. Hr’g Tr. 99-100 (Plante’s testimony that he arranged the interview to
clarify A.D.’s statements about the phone flashlight).
58 Mot. Hr’g Ex. 16 at 03:03-08:11.
59 Mot. Hr’g Ex. 16 at 03:03-08:11.
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Lisburg: Would Uncle Conrad ever do like, pictures or videos with his black
iPhone?
A.D.: Hm-mm.
Lisburg: Nope? Okay. Okay.
A.D.: ‘Cause I don’t hear the um, clicking um, like when he’s taking the picture.
Lisburg: I see. So you see the flashlight light, but you don’t hear the clicking
sound?
A.D.: Mm-hmm.60
Plante included statements in his search warrant affidavit about what A.D. told
Lisburg:
During [A.D.’s] forensic interview on March 2, 2021, [A.D.] disclosed that
the incidents with Conrad began about two years ago. On March 9, 2021,
[A.D.] was further forensically interviewed at the CSDCAC in Pierre,
South Dakota. [A.D.] disclosed that Conrad would be on top of her on the
bed before he would grab a black phone, a phone that kind of looked like
an iPhone, from a charger, turn on the flashlight, and look at her private
part. Conrad held the phone while on his knees, and [A.D.] did not know
why he used the flashlight. [A.D.] further disclosed that after using the
phone a little bit he would put the phone back on the charger and
continue being on top of her. [A.D.] disclosed that this happened on
approximately five different occasions. According to [A.D.], she did not
think Conrad was taking pictures or videos with the phone because she
did not hear a clicking sound.61
Given A.D.’s explanation for why she did not think pictures or videos were taken
(the lack of an audible sound), Plante’s summation was in no way misleading or
inaccurate. Apart from Good Voice’s qualms with the framing of A.D.’s response to the
60 Id. at 09:33-09:51.
61 Mot. Hr’g Ex. 18 at 5,¶ 13.
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photograph question, he identifies no false statements made intentionally or recklessly
that might present a valid suppression issue.62
Further, the rest of the affidavit solidified a finding of probable cause for a
warrant to search the phone. Among other information, Plante provided an overview of
A.D. and A.K’s comments at IHS and during their CSDCAC interviews where they
described Good Voice engaging in sex acts with them in the house.63 Plante also related
that he and Tucker located a black phone, with Good Voice’s name on it, in plain sight
in a bedroom Searby and Good Voice shared, and that Searby had confirmed the phone
belonged 	to 	Good 	Voice.64 What’s 	more, 	Plante 	stated 	how, 	based 	on 	his 	own
knowledge 	and 	experience, 	cellular 	phones 	could 	contain 	information 	or
communications related to the sexual abuse offenses.65
In toto, Plante alleged sufficient facts to lead a prudent person to believe there
was a fair probability that contraband or evidence of a crime would be found on Good
Voice’s phone. And Plante neither intentionally nor recklessly misrepresented those
62 See United States v. Gonzalez, 781 F.3d 422, 431 (8th Cir. 2015) (“To receive a
Franks hearing, a defendant must make ‘a substantial preliminary showing that a
false statement knowingly and intentionally, or with reckless disregard for the
truth, was included by the affiant in the warrant affidavit.’”).
63 Mot. Hr’g Ex. 18 at 3-5, ¶¶ 7-10, 13.
64 Id. at 4-5, 12, ¶¶ 13, 15 and Attachment A.
65 Id. at 5-6, ¶¶ 16-18.
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facts to the magistrate judge. Good Voice cannot succeed on his lack of probable cause –
for a phone warrant-- claim.
2. Snapchat
In 	a 	separate 	motion, 	Good 	Voice 	asserts that 	the 	affidavit 	and 	resulting
warrant-- to search his Snapchat account-- were not supported by probable cause, were
overbroad, and lacked particularity.66 But the warrant and affidavit had a proper
foundation of facts, described what was to be searched and seized with sufficient
particularly, and were limited in scope by Section II of the incorporated Attachment B.67
Under the Fourth Amendment, “no Warrants shall issue, but upon probable
cause, supported by Oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.”68 “To satisfy the particularity
requirement … the warrant must be sufficiently definite to enable the searching officers
to identify the property authorized to be seized.”69 “The degree of specificity required
will depend on the circumstances of the case and on the type of items involved.”70 “This
66 Docket No. 54 at 3-4.
67 Mot. Hr’g Exs. 22-23.
68 U.S. C ONST. amend. IV.
69 United States v. Sigillito, 759 F.3d 913, 923 (8th Cir. 2014) (quotation and citation
omitted).
70 Id. (quotation and citation omitted).
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particularity standard is one of practical accuracy rather than of hypertechnicality.”71
“The 	Fourth 	Amendment 	requires 	particularity 	in 	the 	warrant, 	not 	supporting
documents like an application or affidavit.”72
Plante’s affidavit adequately set “forth sufficient facts to lead a prudent person to
believe [ ] there [was] a fair probability that contraband or evidence” of the crime would
be found in Good Voice’s Snapchat account.73 The affidavit detailed, among other
things, information from the CSDCAC interviews, validation of the phone’s owner, and
data found on the phone itself such as screenshots of Snapchat conversations relevant to
the sexual abuse accusations.74 Altogether, there was sufficient probable cause to
support a warrant for Good Voice’s Snapchat account.
The 	warrant 	satisfies 	the 	particularity 	requirement 	as 	well 	and 	was 	not
overbroad. Attachment A identified Good Voice’s account, Attachment B, Section I set
forth in the range of information sought, and Attachment B, Section II narrowed the
scope of the search to “All information described … in Section I that constitutes fruits,
evidence and instrumentalities of violations of 18 U.S.C. §§ 1153 and 2241(c), for the
71 Id. (quotation and citation omitted).
72 Id.
73 See Mot. Hr’g Ex. 22 at 2-9; United States v. Grant, 490 F.3d 627, 631 (8th Cir.
2007) (cleaned up).
74 See Mot. Hr’g Ex. 22 at 2-9.
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period of February 1, 2021 through March 16, 2021” from the account.75 The Eighth
Circuit has repeatedly found that the sort of limiting language included in Section II
satisfies the particularity requirement.76 The Snapchat warrant was sufficiently limited
in 	scope 	and 	breadth 	to 	comply 	with 	the 	Fourth
Amendment.77
Yet assuming (for the sake of argument) that one or more of Good Voice’s
assertions are correct, his motion still fails under Leon.78 Officers acted with an
objectively reasonable belief that the warrant, for the Snapchat account, was legitimate
and enforceable.79 They should not be penalized for acting in good-faith.80
75 See Mot. Hr’g Ex. 23 at 3-5.
76 See United States v. Sherman, 372 F. App'x 668, 676 (8th Cir. 2010) (warrant tying
information sought to specific crime was not overbroad); United States v. Nieman, 520
F.3d 834, 839 (8th Cir. 2008) (warrant contained “a specific limitation” that was tailored
to items relevant to charge); United States v. Gleich, 397 F.3d 608, 612 (8th Cir. 2005)
(warrants satisfied particularity requirement because language in them limited search
to “items specifically prohibited by statute”); see also United States v. Jones, No. 19-cr-341,
2021 WL 1321270, at **11-12 (D. Minn. Jan. 7, 2021) (warrant authorizing search of
Facebook account was not overbroad).
77See United States v. Young, No. 21-cr-00098-BLW, 2021 WL 5889526, at **2-4 (D.
Idaho Dec. 13, 2021) (probable cause existed for issuance of warrant to search Snapchat
account and warrant was not overbroad); United States v. Woods, No. 17-CR-103V, 2019
WL 7630758, at ** 2-4 (W.D. N.Y. Aug. 30, 2019) (Snapchat warrant was sufficiently
particular to comply with Fourth Amendment).
78 See United States v. Leon, 468 U.S. 897 (1984).
79See United States v. Beasley, No. 20-cr-162-pp, 2022 WL 203391, at *7 (E.D. Wis.
Jan. 24, 2022) (court would deny motion to suppress evidence obtained from Snapchat
accounts under good-faith exception even if it agreed with defendant’s contentions).
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Good Voice also asks this Court to suppress records that Snapchat provided to
the government which were outside the purview of the warrant.81 He does not,
however, cite any authority to support his request.82 If Good Voice believes Snapchat
wronged him -- by providing more of information to the government than the warrant
required – then it would seem to be a matter he should address in a civil context, not
this one.
3. Facebook
Finally, Good Voice claims that the Facebook affidavit and search warrant lacked
particularity, were too broad, and went beyond what their probable cause allowed for.83
But the warrant for the Facebook account included limiting language in Attachment B,
Section II that sufficiently confined the warrant so that it did not run afoul with the
Fourth Amendment. It was also reasonable to believe that the account might have more
information than solely the Searby messages.84
80 See Leon, 468 U.S. at 921 (“Penalizing the officer for the magistrate’s error,
rather than his own, cannot logically contribute to the deterrence of Fourth Amendment
violations.”).
81 Docket No. 54 at 4.
82 Id.
83 Docket No. 54 at 4-5.
84 See Mot. Hr’g Exs. 20, 21.
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Just as with the Snapchat warrant, the Facebook warrant identified Good Voice’s
account in Attachment A, listed the spectrum of information to be seized in Attachment
B, Section I, and then, in Section II, restricted the search to “all information described [ ]
in Section I that constitutes fruits, evidence and instrumentalities of violations of 18
U.S.C. §§ 1153 and 2241(c), for the period of February 1, 2021 through March 16,
2021[.]”85 The circumscribed time window and subject matter restriction of the warrant
precluded any sort of general rummaging and curbed officers’ ability to search for and
seize unrelated things.86
And the probable cause showing, in Plante’s affidavit, was enough for a judicial
officer to conclude that the Facebook account could contain information beyond just
Searby’s messages, such as Good Voice’s location at relevant times and whether other
messages had been altered or deleted after the investigation began.
At any rate, even if the Facebook search warrant was not particular enough,
overbroad, or otherwise legally insufficient, the warrant was not “so lacking in indicia
of probable cause” or “facially deficient” that no officer could reasonably presume it to
85 See United States v. Burkhow, No. 19-CR-59-CJW-MAR, 2020 WL 589536, at *9
(N.D. Iowa Feb. 6, 2020) (discussing the wide array of cases that consider the effect of
limiting a Facebook search warrant to the relevant time range or offense being
investigated).
86 See United States v. Jones, No. 19-CR-341 (NEB/LIB), 2021 WL 960910, at *4 (D.
Minn. March 15, 2021) (Facebook account warrant was sufficiently particular because it
identified specific categories of information for one charged offense and was only for a
14-month period).
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be valid.87 Contrary to what Good Voice maintains, the good-faith exception to the
warrant requirement applies to the evidence seized from Facebook and any such
evidence may be used against him at trial.88
CONCLUSION
Despite Good Voice’s protestations, officers acted within the bounds of the law
when they arrested him and searched his phone and social media accounts. Officers
reasonably believed they had consent to enter Searby’s residence and probable cause to
arrest Good Voice for the commission of a Class A tribal offense. They also had Searby’s
consent to search the home and seize items in it they considered germane to their
investigation. Plante’s warrant affidavits, prepared after the house search, were not
false or misleading. And the search warrants based on them—for the phone and social
media accounts-- were predicated upon a proper showing of probable cause and were
not unduly broad. Anyway, officers’ reliance-- on the warrants being properly issued--
87Leon, 468 U.S. at 922-23, 926; cf. Massachusetts v. Sheppard, 468 U.S. 981, 988-91
(1984).
88See United States v. Harris, No. 20-CR-98 (SRN/TNL), 2021 WL 3929270, at **3-7
(D. Minn. Sept 2, 2021) (without ruling on whether warrant meets Fourth Amendment
particularity requirement and assuming – but not deciding—warrant was too broad,
good-faith exception applies to evidence seized from Facebook account); Burkhow, 2020
WL 589536, at **11-12 (despite the lack of temporal constraints—making the Facebook
warrants being overbroad—Leon good-faith exception applies, making suppression
inappropriate).
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was objectively reasonable, and application of the extreme sanction of exclusion here is
uncalled for.
RECOMMENDATION
In accordance with the authorities and legal analysis set forth in this report, and
the record now before the Court, it is
RECOMMENDED that Good Voice’s Motions to Suppress89 be denied.
NOTICE
The 	parties 	have 	14 	calendar 	days 	after 	service 	of 	this 	report 	and
recommendation to file their objections to the same.90 Unless an extension of time for
cause is later obtained,91 failure to file timely objections will result in the waiver of the
right to appeal questions of fact.92 Objections must “identify[] those issues on which
further review is desired[.]”93
Dated this 7th day of April, 2022, at Pierre, South Dakota.
89See Docket Nos. 48, 53.
90See 28 U.S.C. §636(b)(1); Fed. R. Crim. P. 59(b).
91See Thompson v. Nix, 897 F.2d 356, 357 (8th Cir. 1990); Nash v. Black, 781 F.2d 665,
667 & n.3 (8th Cir. 1986) (citing Thomas v. Arn, 474 U.S. 140, 155 (1985)).
92See Thompson, 897 F.2d at 357; Nash, 781 at 667.
93Arn, 474 U.S. at 155.
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BY THE COURT:
MARK A. MORENO
UNITED STATES MAGISTRATE JUDGE
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