USA v. Hulscher et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
vs.
ROBERT JOHN HULSCHER,
Defendant.
4:16-CR-40070-01-KES
REPORT & RECOMMENDATION
INTRODUCTION
Defendant Robert John Hulscher is before the court pursuant to a
superseding indictment charging him with stealing 12 firearms and aiding and
abetting the theft of those firearms, and with being a felon in possession of the
same 12 firearms, in violation of 18 U.S.C. §§ 922(g)(1), and 924(l) and 2. See
Docket No. 242. Mr. Hulscher has moved to suppress certain evidence the
United States obtained without a warrant from a copy of digital information
extracted from his cell phone in an unrelated state court prosecution. See
Docket No. 223. The government opposes the motion. See Docket No. 232.
This matter was referred to this magistrate judge to hold an evidentiary hearing
and to make findings of fact and a recommended disposition pursuant to 28
U.S.C. § 636(b)(1)(B) and the October 16, 2014, standing order of the
Honorable Karen E. Schreier, district judge.
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FACTS
An evidentiary hearing was held on Mr. Hulscher’s motion on February
7, 2017. Mr. Hulscher was present in person with his counsel. The
government was represented through its Assistant United States Attorneys. No
witnesses testified at the hearing but 11 exhibits were received, five from the
government and six from Mr. Hulscher. In addition, the parties stipulated that
the court could take judicial notice of the exhibits submitted before the district
court in the motion to exclude, specifically the document filed at the court’s
Docket No. 208-3 and Defendant’s Exhibit 5 from the January 27, 2017,
hearing. From this evidence the court makes the following findings of fact.
Police in Huron, South Dakota investigated Mr. Hulscher for forgery,
counterfeiting, and identity theft charges beginning on March 15, 2016, when
Mr. Hulscher attempted to cash a forged check at a Huron business and then
fled the premises before completing the transaction. As part of their
investigation of Mr. Hulscher, the Huron police obtained a search warrant to
search and seize any evidence on Mr. Hulscher’s cell phone related to the state
court charges of forgery, counterfeiting, and identity theft. See Exhibit 2.
The affidavit in support of that search warrant set forth the fact that on
March 15, 2016, Huron Police Sergeant Mark Johnson arrived at a Huron
business and observed a red Chevy pickup on the north side of the business.
See Exhibit 1 at 3. A male exited the business, entered the pickup, and drove
off. Id. Sgt. Johnson made contact with the owner of the business who
informed Sgt. Johnson the male who left in the red pickup was the one who
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tried to cash a suspicious check. Id. Sgt. Johnson pursued the red pickup
and effected a traffic stop. Id. Mr. Hulscher identified himself to Sgt. Johnson
and acknowledged he was trying to cash a forged check at the business. Id.
Mr. Hulscher said he was doing so at the insistence of a female named Nikki,
who used to live in Huron. Id. Mr. Hulscher explained he owed Nikki money
for illegal drugs and cashing the forged check was an attempt to obtain the
money necessary to repay Nikki. Id. at 3-4. Mr. Hulscher admitted prior drug
use. Id. at 3. Mr. Hulscher reported that Nikki had threatened him, phoned
him repeatedly, and damaged his vehicle in connection with the drug debt he
owed. Id. at 3-4. Mr. Hulscher was detained by Sgt. Johnson on suspicion of
forgery and transported to the Huron police department. Id. at 4.
At the police department, Detective Gene Miller interviewed Mr. Hulscher
in the presence of Sgt. Johnson. Id. After being advised of his Miranda1 rights
and waiving those rights, Mr. Hulscher reiterated much of the information he
had previously told to Sgt. Johnson at the scene of the traffic stop. Id. at 4-5.
The officers tried to obtain more information about Nikki, but were
unsuccessful. Id. at 5. The officers asked for consent to search Mr. Hulscher’s
cellular phone, but ultimately, Mr. Hulscher refused to consent. Id.
Sgt. Johnson then seized Mr. Hulscher’s phone and explained to him that the
officers would be seeking a search warrant for it. Id. While Sgt. Johnson was
in possession of the phone, a text message appeared from a male asking “You
1 Miranda v. Arizona, 384 U.S. 436 (1966).
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holdin?” Id. Mr. Hulscher was then arrested and transported to the Beadle
County Correctional Center. Id.
Sgt. Johnson told the issuing judge in his search warrant affidavit that,
in his training and experience, persons involved in counterfeiting operations
typically carry cell phones, that those phones contain names and phone
numbers of customers and suppliers, and that text messages, audio memos,
videos, and photographs are typically stored in the internal memory of cell
phones and often used for communication with drug distributors and
customers. Id. Sgt. Johnson stated Mr. Hulscher possessed multiple
counterfeit checks and multiple counterfeit identification cards. Id. at 6.
Sgt. Johnson then stated: “I request permission to enter the cell phone to
collect any evidentiary information regarding this counterfeit
investigation.” Id. (emphasis supplied). Sgt. Johnson then explained the
method of search: the phone would be seized and processed by a computer
specialist in an appropriate setting. Id. Sgt. Johnson requested permission to
seize the phone, to conduct an offsite examination of it, and to transport the
phone to a facility for such analysis. Id.
A state court judge issued the search warrant on March 16, 2016. See
Exhibit 2. The warrant authorized police to search Mr. Hulscher’s cell phone
as well as a Verizon wireless tablet discovered in Mr. Hulscher’s pickup truck.2
The warrant allowed a search for “property that constitutes evidence of the
commission of a criminal offense,” “contraband, the fruits of crime, or things
2 Mr. Hulscher had given police consent to search his truck at the scene of the
traffic stop.
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otherwise criminally possessed,” and “property designed or intended for use in,
or which is or has been used as the means of, committing a criminal offense.”
Id. at 1. The warrant went on to state police were “commanded to search” the
phone and the tablet “for the following property (describe with particularity):”
1. The content of any texts, including but not limited to incoming texts,
sent texts, draft texts and deleted texts that were sent or received by
the cellular communication devices.
2. Incoming or outgoing cell phone call records by the cellular
communication devices.
3. The content of the address book for the cellular communication
devices.
4. Video and/or photgraphs on the phones [sic] or stored in the internal
memory of the cellular communication devices.
5. Any other data on the communication device as it relates to this
case.
See Exhibit 2 at 2 (emphasis supplied). The state court search warrant
required police to conduct the requested search within 10 days. Id.
As part of the procedure used by the police in executing this search
warrant, Detective Casey Spinsby of the Huron Police Department extracted
digital information from the phone on April 11, 2016, making a copy of that
digital data. See Exhibit A at 7. Det. Spinsby then reported what he found in
his examination of the digital data extracted from Mr. Hulscher’s cell phone.
Id. at 8-9.
Det. Spinsby noted several examples of evidence relevant to
Mr. Hulscher’s fraud, forgery, and identity theft charges. Id. In addition,
Det. Spinsby noted 531 messages on Mr. Hulscher’s cell phone related to the
sale, use, or purchase of illegal drugs. Id. at 8-9. Other than drugs and
forgery, Det. Spinsby stated he “did not locate any other data or files with
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evidentiary value in the extractions.” Id. at 9 (emphasis supplied). In other
words, Det. Spinsby found nothing of note with regard to firearms offenses
involving Mr. Hulscher. Following his review of the entirety of the data on
Mr. Hulscher’s phone (see Exhibit 5), Det. Spinsby segregated the data on the
phone that was relevant to the Huron state court prosecution and saved that
data separately. See Exhibit F.
The state court charges against Mr. Hulscher were resolved on May 17,
2016, when Mr. Hulscher was sentenced for those offenses after having
previously entered a plea of guilty to grand theft. See Exhibit B. Mr. Hulscher
did not appeal his sentence or conviction. On May 20, 2016, the state
dismissed the other charges in the complaint previously asserted against
Mr. Hulscher to which he did not plead guilty. See Exhibit C.
On May 17, 2016, the date of Mr. Hulscher’s sentencing in state court on
the counterfeit/forgery/theft charges, Jennifer Hulscher made an application
to the state for return of Mr. Hulscher’s cell phone and tablet for the reason
that his case had been resolved. See Exhibit D. The state court judge issued
an order on May 24, 2016, ordering Huron police to return Mr. Hulscher’s cell
phone and tablet back to Mr. Hulscher. See Exhibit 3. The Huron police
returned the physical electronic devices to Mr. Hulscher’s father, Jack
Hulscher, but retained the copy of the digital information extracted from
Mr. Hulscher’s cell phone.
Mr. Hulscher alleges the government in this case knew about
Mr. Hulscher’s state court prosecution above-referenced at least as early as
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April 19, 2016. However, they did not investigate the circumstances of the
Huron case until January 12, 2017. See Exhibit E at 1-2; Docket No. 232 at 4.
On January 12, 2017, Special Agent Brent Fair of the federal Bureau of
Alcohol, Tobacco, Firearms and Explosives (ATF) contacted the Huron police
and discovered the existence of the copy of the digital information extracted
from Mr. Hulscher’s phone. Id. He requested that copy be sent to him and
received via mail a DVD disc which contained a partial copy of the phone
data—this was the data Det. Spinsby had previously segregated and which was
relevant to the state court prosecution. See Docket No. 232 at 4; Exhibit F.
Agent Fair contacted the Huron Police Department the same day to find out if a
complete copy of the digital data from Mr. Hulscher’s phone existed and found
out it did. See Docket No. 232 at 4.
On January 18, 2017, Agent Fair physically traveled to Huron, South
Dakota, along with Special ATF Agent Kevin Wiese, and obtained this complete
digital copy from the Huron police. See Exhibit E at 2; Exhibit 5. Without first
obtaining a search warrant to search for evidence of firearms offenses, Agent
Fair began searching through the data from Mr. Hulscher’s phone while the
two ATF agents were still en route back to Sioux Falls, South Dakota. Id.
Agent Fair found evidence relevant to this federal firearms prosecution that
Mr. Hulscher and co-defendant Nicholas Hemsher had contact with each other
via cell phones from January 10, 2016, through February 22, 2016. Id. Agent
Fair also found it relevant that Mr. Hulscher apparently deleted Mr. Hemsher’s
contact information from his phone on February 22, 2016, at 1:23:48 p.m. Id.
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The superseding indictment in this case alleges Mr. Hulscher committed his
firearms offenses between February 18 and 22, 2016. See Docket No. 181.
Finally, Agent Fair found the content of various communications on the phone
to indicate Mr. Hulscher’s possible motives for committing the firearms offenses
with which he is charged in this federal case (lack of funds, drug use). Id. at 4.
Mr. Hulscher argues that Agent Fair’s warrantless search of the digital
information extracted from his phone by the Huron police violates his Fourth
Amendment right to be free from unreasonable searches and seizures in three
ways: (1) the retention by the Huron police department of the digital copy of
the information from Mr. Hulscher’s cell phone violated his rights, (2) the
search by Agent Fair was conducted after the 10-day period allowed by the
state court search warrant, and (3) the search by Agent Fair was not
authorized by the state court search warrant because Agent Fair was searching
for evidence of firearms offenses while the state warrant authorized a search for
evidence of forgery, counterfeiting, and identity theft. Mr. Hulscher further
argues (4) that no exception to the warrant requirement is applicable to Agent
Fair’s warrantless search.
The government characterizes Agent Fair’s search as being conducted
pursuant to the earlier state court search warrant and, since that warrant was
validly issued, argues that Agent Fair’s search complied with the Fourth
Amendment. Alternatively, the government argues that Agent Fair’s search
was authorized by the state court warrant and, even if that warrant was
invalid, Agent Fair relied in good faith on the warrant. The government also
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argues Mr. Hulscher has no privacy interest in the digital data Agent Fair
searched. Finally, the government argues the evidence was lawfully obtained
under the plain view doctrine.
DISCUSSION
A. Fourth Amendment Law
The Fourth Amendment to the United States Constitution provides:
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated, and 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.
The touchstone of the Fourth Amendment is “reasonableness,” and
“reasonableness” usually requires the government to obtain a search warrant
before searching for evidence of a crime. Riley v. California, 573 U.S. ___, 134
S. Ct. 2473, 2482 (2014). Without a warrant, a search is “reasonable” only if it
fits into a specific exception to the warrant requirement. Id. Whether to
exempt a category of search from the warrant requirement is determined by
weighing “the degree to which [the search] intrudes upon an individual’s
privacy and,” “the degree to which it is needed for the promotion of legitimate
governmental interests.” Id. at 2484. Where a search takes place without a
warrant, it is the government’s burden to demonstrate by a preponderance of
the evidence that an exception to the warrant requirement applies. Coolidge v.
New Hampshire, 403 U.S. 443 (1971); United States v. Kennedy, 427 F.3d
1136, 1140 (8th Cir. 2005).
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The chief evil which the Fourth Amendment was intended to address was
the hated “general warrant” of the British crown. Payton v. New York, 445 U.S.
573, 583-84 (1980). General warrants gave British officials “blanket authority
to search where they pleased” for evidence of law violations. Id. at 583 n. 21;
Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011) (“The Fourth Amendment was a
response to the English Crown’s use of general warrants, which often allowed
royal officials to search and seize whatever and whomever they pleased while
investigating crimes or affronts to the Crown”). The problem posed by general
warrants is “of a general, exploratory rummaging in a person’s belongings.”
Andresen v. Maryland, 427 U.S. 463, 480 (1976).
The Fourth Amendment redresses the general warrant with its
requirement that the thing to be searched for and seized must be stated with
particularity (the particularity requirement). Id. The particularity requirement
not only prevents the issuance of general warrants, it also “assures the
individual whose property is searched or seized of the lawful authority of the
executing officer, his need to search, and the limits of his power to search.”
Groh v. Ramirez, 540 U.S. 551, 561 (2004); al-Kidd, 563 U.S. at 742-43 (“[t]he
principal evil of the general warrant was addressed by the Fourth Amendment’s
particularity requirement”). The particularity requirement “makes general
searches . . . impossible and prevents the seizure of one thing under a warrant
describing another. As to what is to be taken, nothing is left to the discretion
of the officer executing the warrant.” Andresen, 427 U.S. at 480.
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“In searches for papers, it is certain that some innocuous documents will
be examined, at least cursorily, in order to determine whether they are, in fact,
among those papers authorized to be seized. . . responsible officials, including
judicial officials, must take care to assure that [such searches] are conducted
in a manner that minimizes unwarranted intrusions upon privacy.” Andresen,
427 U.S. at 482 n.11. If officials find they have overseized documents by
taking documents not within the scope of the search warrant (nonresponsive
documents), police should return those documents and the court should
suppress them if not returned. Id. See also United States v. Tamura, 694 F.2d
591, 595-96 (9th Cir. 1982) (holding government’s wholesale seizure of
documents and taking them back to headquarters to sort through and find
what was specified in the search warrant, as well as government’s refusal to
return nonresponsive documents, was of doubtful legality under the Fourth
Amendment).
If one were to apply precedent from the analog age to modern practices of
obtaining digital evidence, today’s current practices would not pass
constitutional muster. That is because the most common practice when
dealing with digital evidence is for police to make an electronic copy of all of the
digital data on an electronic device and then take that copy back to
headquarters and search through it at their leisure. See FED. R. CRIM. P.
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41(e)(2)(B) (acknowledging that search of electronic data will take place in a
two-step process).3
The Supreme Court has recognized its past Fourth Amendment
precedent dealing with searches of physical items and paper documents may
not strike the appropriate balance when applied to digital evidence. Riley, 134
S. Ct. at 2485; United States v. Jones, 565 U.S. 400 (2012). In the case of GPS
monitoring of a suspect’s car for a month, the electronic data disclosed by the
GPS device will reflect “a wealth of detail about [the suspect’s] familial,
professional, religious, and sexual associations” that police might store and
mine for years into the future, with little or no inconvenience or cost. Jones,
565 U.S. at 955-56 (Sotomayer, J., concurring). Furthermore, such electronic
surveillance surpasses the data that traditionally could be gained when police
physically “tailed” a car themselves while, at the same time, “evad[ing] the
ordinary checks that constrain abusive law enforcement practices.” Id. at 956.
Likewise, the ease and inexpense with which police can seize and copy
entire hard drives, whether of a computer or a cell phone, allows police to
quickly and cheaply obtain hundreds and thousands of discrete, disparate
chunks of data about all of a person’s areas of her life. Riley, 134 S. Ct. at
2489. Just as with GPS data, that data can be stored and mined for years into
3 South Dakota law appears not to reflect the modern reality of electronic
searches as the law still provides for a 10-day search period and does not
acknowledge any two-step process. See SDCL § 23A-35-4. The court need not
address this issue as Mr. Hulscher stated at oral argument at the evidentiary
hearing in this matter that he was taking no issue with the validity of the state
court search warrant or the method in which Huron police executed that
search warrant—as concerns the state court forgery/counterfeiting/identity
theft prosecution.
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the future, resembling for all the world the hated British crown’s general
warrants.
Courts have grappled with the problem of applying Fourth Amendment
analysis to searches of electronic/digital data. Efforts to limit searches of
digital information or to limit seizures of digital information at the inception of
a search by, for example, using search terms, have met with little success.
Computer users may “name, rename, and store files in ways that allow the
‘files containing evidence of a crime [to] be intermingled with millions of
innocuous files.’ ” United States v. Morgan, 562 Fed. Appx. 123, 128 (3d Cir.
2014) (quoting United States v. Galpin, 720 F.3d 436, 447 (2d Cir. 2013)).
Thus, it is unavailing to try to devise limits on how a search of digital data may
be conducted or what may be seized by specifying to search only in directories
or files of a certain name or type. Id.
Thus, the practice has evolved that, on the issuing end of a search
warrant, courts have given police broad latitude in what is searched and
seized, usually allowing police to copy entire hard drives, so long as the object
of the search is adequately set forth in the search warrant. See e.g. Morgan,
562 Fed. Appx. at 128; United States v. Galpin, 720 F.3d at 447; United States
v. Richards, 659 F.3d 527, 537-38 (6th Cir. 2011); United States v.
Comprehensive Drug Testing, Inc. (CDT), 621 F.3d 1162, 1176 (9th Cir. 2010)
(en banc, per curiam). This eventuality at the gathering stage came about
through necessity: the nature of the technology itself dictates the method. See
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Orin S. Kerr, Executing Warrants for Digital Evidence: The Case for Use
Restrictions on Nonresponsive Data, 48 Tex. Tech. L. Rev. 1 (2015).
But because of the very breadth given the seizure of electronic data on
the front end, police and courts know the seizure will in all reality contain a
great deal—perhaps the overwhelming majority—of data which is
nonresponsive to the reasons giving rise to probable cause for the search
warrant in the first place. The question becomes what to do about that vast
quantity of digital information which is not covered by the scope stated with
particularity in the search warrant.
This problem is magnified by the breathtaking depth and scope of digital
evidence each of us has on our computers and on our cell phones. “Modern
cell phones, as a category, implicate privacy concerns far beyond those
implicated by the search of a cigarette pack, a wallet, or a purse.” Riley, 134 S.
Ct. at 2489. Calling these items a phone or a computer is a misnomer as they
may just as aptly be called a library, a camera, a tape recorder, a video player,
a rolodex, a diary, an album, a newspaper, or a tv. Id. Current cell phones can
store millions of pages of text, thousands of photographs, and hundreds of
videos. Id. They can also store information of many different types—financial,
health, mental impressions. Id. Cell phones, by amalgamating a variety of
discrete data about the owner all in a single place, have the potential to invade
the owner’s privacy to a degree that could not be possible if just one variety of
data were discovered. Id. Thus, the nature of digital data technology requires
it be overseized in the initial phase of a search, but carries with it the potential
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for invasion of privacy of several degrees of magnitude greater than has ever
been possible in the past. How to apply the Fourth Amendment to this
conundrum is the issue before this court.
The Riley decision itself is of great help. That decision establishes the
rule that, generally, police must obtain a search warrant before searching a cell
phone and may not regularly rely upon the exception to the warrant
requirement for warrantless searches incident to arrest. Riley, 134 S. Ct. at
2494-95. This opinion addresses a related question: what rules govern the
government’s search of the overseized nonresponsive digital cell phone data
outside the scope of the warrant once obtained?
1. There Were Two Searches, Not One
The court first addresses the idea implicit in the government’s arguments
against suppression: that ATF Agent Fair’s search on January 18, 2017, was
pursuant to the state court search warrant issued on March 16, 2016, to the
Huron police department. The court rejects this contention. First, the
government introduced no evidence that Agent Fair even knew of the prior state
court search warrant when he conducted his search. Agent Fair did not testify
nor did Det. Spinsby. All that is recounted in Agent Fair’s reports is that he
learned of the existence of the digital copy of Mr. Hulscher’s phone and
requested a copy for use in his federal firearms investigation. See Exhibit E.
Thus, Agent Fair cannot be said to have acted pursuant to a search warrant of
which there is no evidence he was aware.
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The government argues the state court search warrant authorizes a
search of Mr. Hulscher’s cell phone for evidence of any crime and that this,
then, is a broad enough formulation to cover Agent Fair’s search for evidence of
firearms crimes. The court rejects this argument too. Although the face of the
warrant allows a search seemingly as broad as the government asserts, this
assertion runs into two problems. If the warrant were truly as broad as
government counsel interprets it for purposes of Agent Fair’s search, it would
in fact be a “general warrant” and would be invalid on that basis. Al-Kidd, 563
U.S. at 742; Payton, 445 U.S. at 583 n.21; Andresen, 427 U.S. at 480.
This, of course, is not true. The broad initial language of the search
warrant is modified and restricted by the passages that follow on pages 1-2 of
the warrant. Those passages authorize the search of Mr. Hulscher’s phone for
texts, phone call records, contacts, videos and photographs “as it relates to
this case.” See Exhibit 2 at 2. Clearly, interpreting the warrant in light of the
affidavit submitted in support of the request for the warrant, “this case,” means
the forgery/counterfeiting/identity theft case for which Mr. Hulscher was then
being investigated. One might even interpret the search warrant to authorize
the Huron police to search for evidence of drug trafficking, since that was
mentioned in the affidavit too. See Exhibit 1. However, the original warrant
clearly did not authorize the Huron police to search for evidence of firearms
offenses. See Exhibits 1 & 2. The search for evidence of firearms offenses was
a separate, second, search and it was not conducted pursuant to the original
state court warrant.
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2. Mr. Hulscher Has a Recognized Privacy Interest
Fourth Amendment protections apply only where (1) the person subject
to a search or seizure had a subjective expectation of privacy in the thing
seized or place searched and (2) that expectation of privacy was one that
society accepted as objectively reasonable. California v. Greenwood, 486 U.S.
35, 39 (1988). The government argues that once the state court search
warrant was issued, Mr. Hulscher no longer had an expectation of privacy in
the contents of his phone that society would accept as objectively reasonable.
Again, if there were but one search that had occurred in this case, the
court would agree with the government’s contention. As to the search
conducted by Det. Spinsby pursuant to the search warrant issued by the state
court judge in connection with the forgery/counterfeiting/identity theft
investigation, the court agrees Mr. Hulscher had no expectation of privacy in
the data on his phone as to that search that society would recognize as
objectively reasonable. The search warrant was lawfully applied for and
issued. Mr. Hulscher has stated in this suppression motion he takes no issue
with how the state court search warrant was obtained or executed—as to the
state court search.
But as the court has already concluded, Agent Fair’s search was not
conducted pursuant to the state court search warrant. Instead, it was a
subsequent warrantless search conducted for a different purpose entirely.
Mr. Hulscher had a privacy interest in the digital data on his cell phone. Riley,
134 S. Ct. at 2493. That privacy interest was one that society recognizes as
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objectively reasonable. Id. Furthermore, the court notes that, intervening
between the first search by Det. Spinsby pursuant to warrant, and the second
warrantless search by Agent Fair, Mr. Hulscher had requested the Huron police
department to return his phone to him and the state court judge had granted
that request. See Exhibits D & 3. If Mr. Hulscher could be said to have been
divested of a reasonable expectation of privacy in his phone due to the issuance
of the state court search warrant on March 16, 2016, that privacy interest
reattached once the state court judge ordered his phone to be returned to him
on May 24, 2016. Agent Fair came into possession of the digital data on
Mr. Hulscher’s phone some seven and one-half months later.
The government orally argued further that, once Mr. Hulscher lost the
reasonable expectation of privacy in his phone through issuance of the state
court search warrant, that expectation of privacy never reattaches. The
government cites to no authority that establishes this proposition.
Furthermore, the court is aware of none. It is not the law that once a place is
searched pursuant to a valid warrant, the person who owns the property
searched can never again regain his or her privacy. If that were the law, any
home which had—in the past—been subject to a valid search warrant could be
continually searched again and again by police at any time stretching into the
future because there would never again be a reasonable expectation of privacy.
That is simply not the law. The court holds that Mr. Hulscher had a
reasonable expectation of privacy in the information from his cell phone once
the state court judge ordered the Huron police to return his phone to him.
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3. Leon Good Faith Exception Does Not Apply
The government asserts Agent Fair’s search of Mr. Hulscher’s digital
phone data should not be excluded from evidence in this case because he relied
in good faith on the state court search warrant. This requires the court to
indulge the government’s theory that Agent Fair’s search was pursuant to that
state court warrant, an indulgence in which the court is unwilling to engage.
As the government itself admits, “the exclusionary rule does not apply
‘when an officer acting with objective good faith has obtained a search warrant
from a judge or magistrate and acted within its scope.’ ” See Docket No. 232 at
13 (citing United States v. Houston, 665 F.3d 991, 994 (8th Cir. 2012))
(emphasis added). Here, Agent Fair obtained no search warrant, there is no
evidence he even knew of the earlier warrant, and he was clearly not acting
within the scope of that warrant.
If an affidavit in support of a search warrant fails to provide probable
cause for the issuance of the search warrant, the fruits of the search will not be
suppressed if the officer who executed the search warrant relied upon that
warrant in objective good faith. United States v. Ross, 487 F.3d 1120, 1122-
1123 (8th Cir. 2007) (describing Leon good-faith exception and citing United
States v. Leon, 468 U.S. 897, 921, (1984)). “When assessing the good faith of
the officers, [the court] look[s] to the totality of the circumstances, including
any information known to the officers, but not included in the affidavit.”
United States v. Rodriguez, 484 F.3d 1006, 1011 (8th Cir. 2007). The question
is whether a reasonably well-trained officer would have known that the search
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was illegal despite the issuing judge’s authorization. United States v.
Hudspeth, 525 F.3d 667, 676 (8th Cir. 2008).
Here, the government introduced no evidence that Agent Fair was aware
of the state court search warrant. In addition, he was clearly not executing the
first search warrant when he conducted his search. Thus, the court cannot
conclude that he relied on that warrant in good faith. Furthermore, had Agent
Fair been given a copy of the search warrant, the court is confident he would
have concluded—as the court does—that the warrant authorized police to
search only for evidence of counterfeiting/forgery/identity theft and possibly
drug offenses. The warrant did not authorize a search for evidence of firearms
offenses. A reasonable officer who read the search warrant would have known
that.
The government cites to the en banc decision in United States v. Ganias,
824 F.3d 199, 206 (2d Cir. 2016) (en banc), discussed in detail immediately
below, holding that the Leon good-faith exception applied to the second search
of the digital data in that case. Of course, the crucial fact necessary to the
Second Circuit’s analysis in Ganias was that the second officer who conducted
the second search obtained a second, valid search warrant for her search,
laying out for the issuing judge all the relevant facts. Id. at 207. Here, Agent
Fair did not obtain a second search warrant for his subsequent search.
Therefore, the holding in Ganias is inapplicable. Accordingly, the court
concludes the government may not rely on Leon to avoid the exclusionary rule
as to the fruits of Agent Fair’s search.
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B. Emerging Law on Digital Searches—United States v. Ganias
In Ganias, police in November, 2003, copied hard drives of computers
belonging to Ganias, an accountant, in connection with an investigation of two
of Ganias’ clients who were suspected of defrauding the government. Ganias,
824 F.3d at 201. The search warrant authorized agents to seize all evidence
relating to the business, finances and accounting operations of the two clients.
Id. However, government agents made copies of all information on Ganias’
computer hard drives, which included information about all of Ganias’ clients
and also included Ganias’ personal financial records. Id. at 202-03.
Thirteen months after the copies were made of Ganias’ computers, in
December, 2004, investigators had finished their initial searching and seizing
of relevant information from those copies, but the investigation of the two
clients was, at this point, still ongoing. Id. at 206. Police did not purge or
delete the non-responsive computer files at this time. Id.
In July, 2005, agents opened an investigation of Ganias himself. Id. at
207. Nine months into the investigation of Ganias, in April 2006, knowing that
they still retained copies of Ganias’ computer hard drives, police sought and
received another search warrant to search the copies of Ganias’ computer hard
drives, this time seeking permission to search and seize evidence from Ganias’
personal financial records. Id. The copies of Ganias’ computer hard drives had
been in the government’s possession for two and one-half years at this point.
Id.
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Ganias was indicted for conspiracy and tax evasion and moved to
suppress the fruits of the search of copies of his computer hard drives in the
second search warrant. Id. at 207-08.
After an initial three-judge panel issued a decision, United States v.
Ganias, 755 F.3d 125 (2d Cir. 2014), rehearing en banc by the Second Circuit
was subsequently granted. See United States v. Ganias, 791 F.3d 290 (2d Cir.
2015). The court instructed the parties to address (1) whether the practice of
making a copy of a computer hard drive, retaining it indefinitely, and then
subsequently searching the data again pursuant to a second search warrant
violates the Fourth Amendment; and (2) whether the agents conducting the
search acted in reasonable good faith. Id.
The en banc decision pointed out that, as of December 2004, although
agents had searched through the computer copies for information about the
two clients of Ganias, the investigations of those clients were still open and
agents testified they did not want to delete the nonresponsive data at that point
because to do so would alter the data seized. Ganias, 824 F.3d at 206.
Instead, the agent testified the copies would have been released back to Ganias
when the investigation was closed. Id. Additionally, the en banc opinion noted
the agent who applied for the second search warrant for Ganias’ personal
information set forth the entirety of events that had occurred up to then,
including the fact that the government had possessed personal computer files
of Ganias for two and a half years, but had not accessed those files because the
original search warrant did not authorize them to do so. Id. at 207.
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The district court in Ganias’ case had concluded the officers did not
violate Ganias’ Fourth Amendment rights, so the court never addressed the
Leon good faith exception. Id. at 209. The Second Circuit in its en banc
decision concluded the officers acted with objective good faith, so that court
never reached the question whether a Fourth Amendment violation occurred.
Id. Nevertheless, it offered guidance (dicta) for the future for searches in this
significant and complex Fourth Amendment context. Id.
Ganias relied on a Ninth Circuit case involving an overly broad seizure of
physical paper documents by police, which they transported back to their
headquarters and sorted by relevance. Id. (citing Tamura, 694 F.2d 591). The
Ninth Circuit had held the overbroad seizure and the subsequent retention of
irrelevant documents violated the Fourth Amendment. Id. at 210-11 (citing
Tamura, 694 F.2d at 595, 597).
The Ganias court held Tamura was not analogous to computer files. Id.
at 211. Computer files are not like paper files in that they are not stored in a
discrete physical location; they are “fragmented” on a storage device, potentially
in various physical locations separate and distinct from other files. Id. at 213.
Because of this, it is often not possible to fully extract or segregate responsive
digital data from non-responsive digital data on a storage device without
altering the evidence. Id. at 213, 215. Furthermore, the government may seek
to prove that something did not exist on the digital storage medium, as when a
defendant asserts a virus was responsible for placing something on his
computer. Id. at 214. In such a case, it is necessary for the government to
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examine the entire hard drive to confirm the virus is not there; examination
cannot be limited in such a case to the areas of the storage device where
relevant evidence resides. Id.
The record was incomplete in Ganias’ case, with no information about
the significant privacy concerns involved, or of the complex and rapidly
evolving technology issues. Id. at 220-21. Therefore, the court declined to
address the question whether the government’s retention of the mirror images
of Ganias’ computer hard drives violated the Fourth Amendment. Id. Instead,
the court held the agents in Ganias’ case had acted with objectively good faith
reliance on the second search warrant that was obtained because the officers
disclosed to the judge issuing the second search warrant all crucial facts
relative to the search request and the officer had no significant reason to
believe he had acted unconstitutionally. Id. at 221-25.
Two things are relevant to Mr. Hulscher’s case from the Ganias opinion.
First, the agents in Ganias seeking to search the digital data previously copied
years earlier sought a second search warrant, as Agent Fair in this case did
not. It was appropriate for the agents in Ganias to obtain a second search
warrant because the data they wanted to search for (information about Ganias’
own culpability) was separate and distinct from the scope of the information
the first search warrant authorized the agents to search for (evidence of the
Ganias’ clients’ culpability).
A second observation from Ganias is that there was nothing in the
record—just as there is nothing in this record—indicating the first agents
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executing the first search warrant observed obviously incriminating
information about the subject matter of the second search. In Ganias, the
second subject matter was Ganias’ own culpability; here it is Mr. Hulscher’s
culpability for firearms offenses, which was not noted by Det. Spinsby when he
executed the first search warrant. Thus, it cannot be said that the evidence
sought in the second search of the digital data in either case was in plain view
of the officer who executed the first search warrant—in both cases, the first
searcher made no note of the evidence sought in the second search.4
C. Plain View Doctrine
1. Plain View Should Not Be Applied to Digital Searches
The government asserts that Agent Fair’s search of Mr. Hulscher’s digital
cell phone data can be justified under the plain view doctrine. The Court in
Horton v. California, 496 U.S. 128 (1990), explained the plain view doctrine.
Because any evidence seized by the police will likely be in plain view, the plain-
view doctrine may only be used to justify a warrantless seizure when the initial
intrusion that brings the police within plain view of the items seized is
supported by one of the recognized exceptions to the warrant requirement.
4 The Second Circuit in its en banc decision, in an effort to distinguish its
conclusions from the earlier panel’s decision, pointed out that the agent in
Ganias who sought and obtained the second search warrant had developed
probable cause through good old-fashioned gum-shoe detective work: the
agent had examined Ganias’ tax returns, subpoenaed his bank records, and
looked for evidence of underreported income. Ganias, 824 F.3d at 206 n.14.
Thus, through “paper” channels, the agent developed probable cause for the
second search warrant independent of the retained mirror-image hard drives.
Id. at 206-07, 207 n.15. Again, this is another way the Ganias case is different
from this case. Agent Fair never sought to show independent probable cause
for his search of the Huron digital data.
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Horton, 496 U.S. at 135. The plain-view doctrine does not stand alone, rather
it works in conjunction with a prior justification for the lawful presence of the
police at the place of the warrantless seizure. Id. (citing Coolidge, 403 U.S. at
465-66). That is, a police officer who comes across evidence while in hot
pursuit of a fleeing suspect, while validly arresting a defendant, or while
executing a valid search warrant for other objects may rely on the plain view
doctrine to seize items in plain view that are not covered by a warrant. Id. at
135-36 (citing Coolidge, 403 U.S. at 465-66). If a police officer has some
legitimate reason for being present that is unconnected with a search directed
against the defendant, that is, an officer is not searching for evidence against
the accused, then any incriminating objects in plain view may be seized
without a warrant. Id. at 135.
The plain view doctrine, in order to be applicable, requires that the police
officer be lawfully in the place where s/he is when s/he views the evidence. Id.
See also United States v. Morgan, 842 F.3d 1070, 1075 (8th Cir. 2016) (same).
Also, the incriminating nature of the evidence must be immediately apparent to
the officer. Horton, 496 U.S. at 142; United States v. Khabeer, 410 F.3d 477,
482 (8th Cir. 2005). Finally, the plain view doctrine requires the government to
show the officer had a lawful right to access the object. Khabeer, 410 F.3d at
482.
The Ninth Circuit categorically rejected the “plain view” exception to the
over-seizure of digital data in United States v. Comprehensive Drug Testing,
Inc. (CDT), 621 F.3d 1162, 1170-71 (9th Cir. 2010) (en banc, per curiam). The
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CDT case involved the government’s investigation into the Bay Area Lab
Cooperative (Balco), which was suspected of supplying professional baseball
players with steroids. Id. at 1166. Major League Baseball (MLB) hired CDT to
provide drug testing of all MLB players on an anonymous, confidential basis to
see what percentage of players would test positive. Id. Federal authorities
learned that 10 players had tested positive in the CDT program. Id.
The authorities then obtained a search warrant for a search of CDT’s
facilities; the warrant was limited to the records for the 10 players who had
tested positive, the identities of whom were known to the government. Id. In
executing the warrant, however, authorities seized electronic records for
hundreds of MLB players as well as a great many other people not associated
with MLB in any way. Id. Seizing agents then reviewed all the data seized and,
on the basis of this nonresponsive data, sought and obtained subsequent
search warrants in three other jurisdictions involving other MLB players. Id.
at 1169.
As to the government’s initial overseizure of data from CDT, the court
accepted the government’s contention that, because it could not be sure
whether digital “data may be concealed, compressed, erased or booby-trapped
without carefully examining the contents of every file” on the computers, this
required the government to seize the entire hard drive. Id. at 1170. The
government then argued that once it seized the digital information from CDT
and saw information showing steroid use by other baseball players aside from
the 10 players listed in the original search warrant, that information was in
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plain view and, thus, properly obtained by the government. Id. The very fact
that the technology required the government to seize all electronic data in order
to effectuate the limited search warrant was the exact feature that caused the
Ninth Circuit to reject the plain view doctrine: if everything electronically
seized by the government comes into plain view, it would create “a powerful
incentive for them to seize more rather than less:” Why stop with one directory
in a computer—just take the entire hard drive. Why stop with the hard drive
on one computer—just make copies of the hard drive on all computers. “Let’s
take everything back to the lab, have a good look around and see what we
might stumble upon.” Id. at 1171. The application of the plain view doctrine
to overseized electronic data would make a mockery of the Fourth
Amendment’s prohibition on general warrants. Id. at 1171, 1176. The
government cannot be entitled to “keep anything one of its agents happened to
see while performing a forensic analysis of a hard drive.” Id. at 1171. See also
United States v. Carey, 172 F.3d 1268, 1272-74 (10th Cir. 1999) (refusing to
apply plain view doctrine to search for digital documents related to drug
trafficking where police discovered evidence of child pornography and then
actively abandoned the search for drug evidence and looked for more child
pornography).
There is good reason not to apply the plain view doctrine to examinations
of nonresponsive digital data that is not within the scope of the original
warrant. When police make subsequent use of nonresponsive data, they are
treating that data as though it was described within the scope of the original
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search warrant—which it was not. See Kerr, Executing Warrants for Digital
Evidence: The Case for Use Restrictions on Nonresponsive Data, 48 Tex. Tech.
L. Rev. at 26. This eliminates the particularity requirement of the Fourth
Amendment and “enables every computer warrant that is narrow in theory [or
on paper] to become general in fact.” Id.
“[T]he Fourth Amendment will not tolerate adoption of an overly broad
categorical approach that would dilute the warrant requirement in a context
where significant privacy interests are at stake.” Missouri v. McNeely, 569 U.S.
___, 133 S. Ct. 1552, 1564 (2013). Digital evidence is, by necessity, routinely
overseized. To adopt a “broad categorical approach” applying the plain view
doctrine to digital evidence would likewise unreasonably dilute the warrant
requirement. Id. Additionally, because of the breadth of the overseizure,
significant privacy interests are at stake—often the great majority of the data
seized (as in this case) is unresponsive to the scope of the search set forth in
the warrant. Compare Exhibit 5 with Exhibit F. Categorically exempting the
viewing of nonresponsive evidence pursuant to the plain view doctrine intrudes
to too great of a degree upon an individual’s privacy and is not needed to
promote legitimate government interests. Riley, 134 S. Ct. at 2484. Agents
can, with little additional burden, obtain a second search warrant instead.
Accordingly, this court recommends the plain view exception to the warrant
requirement be held not applicable in searches of digital evidence.
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2. Even If Plain View is Theoretically Applicable, It Does Not
Apply Here
Despite the sound and important reasons grounded in the Fourth
Amendment for not applying the plain view doctrine to digital searches, some
courts have applied the plain view doctrine to examinations of digital data
pursuant to a search warrant authorizing a search for one kind of evidence,
where the police discover evidence of another crime. See e.g. United States v.
Mann, 592 F.3d 779, 784-85 (7th Cir. 2010); United States v. Williams, 592
F.3d 511, 521-22 (4th Cir. 2010).5 However, this case is distinguishable from
these cases applying the plain view doctrine: Agent Fair did not discover the
evidence on Mr. Hulscher’s cell phone while looking for evidence of forgery and
counterfeiting pursuant to a valid search warrant for those items. Nor did the
Det. Spinsby, who executed the forgery warrant, note any obviously
incriminating evidence as to firearms offenses. Instead, Agent Fair seized
digital data which a state court had authorized state police to search for
evidence of forgery and counterfeiting, and he, a federal agent, began to search
specifically for evidence related to Mr. Hulscher’s federal firearms charges.
Thus, Agent Fair was not acting pursuant to the initial warrant and attempting
to search within the scope of that warrant when he inadvertently came across
evidence of firearms offenses. Instead, from the inception of Agent Fair’s
receipt of the digital copy of Mr. Hulscher’s phone, he had a different purpose
5 The plain view holding in Williams was an alternative holding. The court also
alternatively held that the evidence discovered on Williams’ computer was
within the scope of the evidence described with particularity in the search
warrant. Williams, 592 F.3d at 519-21.
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for his search.6 This court has found no decision applying the plain view
doctrine to facts such as are presented herein: (1) where the purpose of the
second search was unrelated to the scope of the search warrant; (2) where the
second search proceeded without a warrant; (3) where the second searcher is a
person entirely different from the first person who lawfully searched pursuant
to the warrant; and (4) where the first person who lawfully searched pursuant
to the warrant did not take note of the evidence the second searcher looked for
and now seeks to use at trial.
The plain view doctrine, even if it has general application in the context
of searches of digital data, does not apply to Agent Fair’s circumstances.
Horton, 496 U.S. at 135; Morgan, 842 F.3d at 1075 (both holding officer must
be in a lawful position to view the evidence). Also, the incriminating nature of
the evidence must have been immediately apparent for the plain view doctrine
to apply. Horton, 496 U.S. at 142; Khabeer, 410 F.3d at 482. The
government has not shown this prong of the plain view test; if the
incriminating nature of the evidence was immediately apparent, Det. Spinsby
would have noted the evidence in his report (he did so as to drug trafficking
evidence, but not firearms offenses). That Det. Spinsby did not note the
evidence Agent Fair now seeks to use defeats the second element of the plain
6 Tellingly, in asserting the plain view doctrine, the government argues only
that Det. Spinsby was in a position to view the evidence in plain view. See
Docket No. 232 at 11. The government’s argument is in line with the case law:
plain view would only apply to the officer who was lawfully executing the Huron
search warrant, here, Det. Spinsby. Plain view would not apply to subsequent
searchers of the property long after the initial lawful search was completed.
This is especially true where, as here, Det. Spinsby noted no evidence of
firearms violations in his lawful search.
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view test. Finally, because Agent Fair did not obtain a search warrant as
required under Riley, he did not have a lawful right to access the evidence, the
third prong of the plain view showing. Khabeer, 410 F.3d at 482. It is the
government’s burden to show that plain view, an exception to the warrant
requirement, applies. Coolidge, 403 U.S. at 443; Kennedy, 427 F.3d at 1140.
They have failed to demonstrate their case by a preponderance of the evidence.
The conclusion is inescapable: Agent Fair should have applied for and
obtained a second warrant which would have authorized him to search
Mr. Hulscher’s cell phone data for evidence of firearms offenses. Riley, 134 S.
Ct. at 2485 (must have a search warrant to search a cell phone); CDT, 621
F.3d 1162, 1170-71, 1176 (plain view doctrine does not apply to nonresponsive
digital data which is overseized by police); Carey, 172 F.3d at 1272-74 (plain
view does not apply where officer is no longer pursuing search of items
described in search warrant, but is avowedly searching for different evidence).
Obtaining a second warrant would have been effortless—the digital evidence
was already in the possession of police, so there was no risk that Mr. Hulscher
would destroy or hide the evidence. The government had already obtained two
indictments (now three), against Mr. Hulscher, so presumably it could show
probable cause. And finally, the showing that evidence of firearms offenses
might be on Mr. Hulscher’s cell phone is also easy to make since, as the Riley
Court noted, our cell phones reflect nearly everything about our daily lives.
In United States v. Johnston, 789 F.3d 934, 942-43 (9th Cir. 2015), the
Ninth Circuit upheld searches that occurred on defendant’s mirror image hard
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drive five years after the mirror images were initially created because the
subsequent searches were squarely within the scope of the original search
warrant and conducted by the same investigators to which the search warrant
had been given for the same purpose. Id. The agent “was not digging around
in unrelated files or locations that might have prompted the need for a second
warrant.” Id. at 942. Here, Agent Fair was “digging around in unrelated files
or locations” looking for evidence not specified in the original search warrant.
The reason the Ganias court upheld the search in that case was because the
agent had obtained a second search warrant to cover her separate purpose for
searching and then relied in good faith on the judge’s issuance of that warrant.
Ganias, 824 F.3d at 220-25.
Finally, this court notes that in this case, the criminal prosecution for
which the original search warrant had been issued was completed at the time
Agent Fair conducted his search. Mr. Hulscher had entered a plea and been
sentenced on the theft/forgery/counterfeiting charges for which the original
search warrant issued. In addition, the state court in that prosecution had
ordered the police to return Mr. Hulscher’s cell phone to him. Thus, it is
questionable whether the Huron police were within the Constitution in keeping
the digital copy of the phone’s contents.
In Ganias, unlike this case, it was important to the court that Ganias
had never made any request for the return of his personal financial information
originally seized. Ganias, 824 F.3d at 207. Also, in Ganias the agents testified
that for technology-related issues, they did not want to purge or segregate the
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nonresponsive data from the data responsive to the two clients which were
originally being investigated. Id. at 206. Here, Det. Spinsby apparently had no
such concerns as the evidence presented to this court shows he did segregate
the data responsive to his search warrant and save it separately from the
digital copy of everything on Mr. Hulscher’s phone. Compare Exhibit 5 with
Exhibit F. However, like the Ganias court, this court refrains from deciding the
issue whether the mere retention by the Huron Police Department of the copy
of the data from his phone was a Fourth Amendment violation. But even if
that retention was constitutional, it clearly was a Fourth Amendment violation
for Agent Fair to obtain and search the digital data from the Huron police
under these circumstances.
The court holds the plain view doctrine has no application in searches of
nonresponsive digital evidence. Alternatively, if the plain view doctrine applies
to such searches generally, it does not apply under these circumstances
because Agent Fair was not lawfully at the vantage point from which he saw
the evidence, the incriminating nature of the evidence was not immediately
apparent, and Agent Fair did not have lawful access to seize the data at the
time he saw it.
The government argued orally that law enforcement agencies are free to
share information among themselves and are not required to purge the
evidence in their possession once a case is completed. The court takes no
quarrel with that assertion at all. It was not unlawful for the Huron Police
Department to agree to make its evidence available to the ATF (assuming it was
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lawful to retain it in the first place). But that begs the question whether it was
incumbent upon the ATF to secure a search warrant before searching the data
voluntarily given to it. The court concludes it was.
D. Exclusionary Rule
Even though the court has concluded that Agent Fair should have
obtained a search warrant under these circumstances and that he did not do
so, the application of the exclusionary rule is not automatic. The Supreme
Court has stated that the mere fact of a Fourth Amendment violation does not
dictate exclusion. Herring v. United States, 555 U.S. 135, 141 (2009). Rather,
the exclusionary rule should be applied only where to do so will appreciably
deter conduct which violates the Fourth Amendment. Id. (quoting Leon, 468
U.S. at 909). Courts should focus on whether excluding the evidence will
efficaciously deter Fourth Amendment violations in the future. Id. (citing
United States v. Calandra, 414 U.S. 338, 347-55 (1974)).
In addition, courts must determine if the benefits of deterrence outweigh
the costs. Id. The primary cost of applying the exclusionary rule is the
possibility that a guilty person may go free. Id. The benefit is the protection of
the Constitution and holding law enforcement officers accountable. For the
exclusionary rule to apply, the deterrent effect of exclusion must be substantial
and outweigh any harm to the justice system. Id. at 147.
The Court has held the exclusionary rule inapplicable where the police
violated the Fourth Amendment through negligence, where the police acted in
objectively good faith reliance on a search warrant lacking in probable cause,
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where police acted in good faith reliance on a search warrant that was invalid
due to clerical error, to warrantless administrative searches pursuant to a
statute later declared invalid, and to police who relied upon a court’s computer
database that mistakenly indicated an arrest warrant was outstanding. Id. at
142-43. In Herring, the court extended the computer database mistake to
circumstances where the police maintained the database and negligently made
a mistake rather than the judiciary. Id. at 146-48.
The cases where the Court applied the exclusionary rule usually involved
intentional or flagrant violation of the Fourth Amendment. Id. at 143-44. For
example, the rule was applied when police broke into a suspect’s house without
a warrant and took documents, and then returned later with United States
Marshals to take more documents, under circumstances where no probable
cause existed and no warrant would have issued had they applied for one. Id.
(discussing Weeks v. United States, 232 U.S. 383, 393-94 (1914); and
Silverthorne Lumber Co. v. United States, 251 U.S. 385, 391 (1920)). In
another case, the exclusionary rule was applied where police forced open a
door to a house, kept the homeowner’s lawyer from entering, brandished a false
warrant, handcuffed the woman and proceeded to search the entire house.
Herring, 555 U.S. at 144 (discussing Mapp v. Ohio, 367 U.S. 643, 644-45
(1961)).
Distinguishing the cases where the exclusionary rule was applied from
those where it was not, the Court held police conduct “must be sufficiently
deliberate that exclusion can meaningfully deter it, and sufficiently culpable
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that such deterrence is worth the price paid by the justice system.” Id. The
conduct must be reckless, deliberate, grossly negligent, or recurring/systemic
negligence. Id. Furthermore, the inquiry into deterrence and culpability is an
objective one—it is not based on the actual officer’s subjective awareness of the
nature of his conduct. Id. at 145.
Here, Agent Fair’s conduct transgressed some bright-line rules of the
Fourth Amendment. Cell phone searches require search warrants unless there
are special circumstances. Riley, 134 S. Ct. at 2493. Searches pursuant to a
search warrant are limited to the scope of the search and the things described
with particularity in the search warrant. Andresen, 427 U.S. at 480. The plain
view exception only applies if the police observe something in plain view from a
lawful vantage point and the incriminating nature of the evidence is patent.
Horton, 496 U.S. at 142; Khabeer, 410 F.3d at 482; Morgan, 842 F.3d at 1075.
A reasonable, ordinary law enforcement agent (the test is an objective one),
would know this. Accordingly, the police conduct here is sufficiently deliberate
so that exclusion will have a meaningful and substantial deterrent effect.7
What risks are presented to the judicial system if the evidence from the
digital data extracted from Mr. Hulscher’s phone is excluded? This case has
been set for trial six times, all but two of those trial dates predating January
7 Although this does not enter into the court’s analysis, it notes anecdotally
that this court routinely receives search warrant requests from local ATF
agents seeking to search cell phones that were previously seized by city or
county law enforcement in connection with a state crime and are relevant to
some separate federal investigation. The notion that Agent Fair should have
obtained a search warrant here is not novel.
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18, 2017.8 On these dates prior to Agent Fair’s discovery of the evidence at
issue in this motion, the government represented it was ready, willing and able
to go to trial. In other words, the government was confident it could prove its
case against Mr. Hulscher beyond a reasonable doubt without the evidence.
This weighs in favor of suppressing. Furthermore, the evidence the
government has identified as wanting to use from the digital copy of
Mr. Hulscher’s phone appears to be peripheral in nature—it is not direct
evidence of the firearms offenses with which he is charged. This too mitigates
in favor of exclusion. Finally, because of the routine overseizure of
digital/electronic evidence by law enforcement, and the vast amount of and
highly personal nature of nonresponsive data in each of those overseizures, the
threat to the continuing validity of the Fourth Amendment’s prohibition against
general warrants also favors exclusion. Accordingly, because the deterrent
effect is substantial and the costs to the justice system are not, this court
recommends application of the exclusionary rule.
8 The trial in this case was first set for September 27, 2016, and was reset to
November 1, 2016, after a motion to continue was filed by Mr. Hulscher. See
Docket Nos. 59, 73, & 79. Next, two co-defendants moved to continue and the
jury trial was reset for December 20, 2016. See Docket Nos. 86, 88 & 90. The
government then moved to continue this trial date in order to have more time
to address various pending motions by the defendants. See Docket No. 117.
Trial was set for January 3, 2017. See Docket No. 120. The government again
moved to continue, but the district court denied the request. See Docket Nos.
121 & 124. A co-defendant moved to continue the trial on January 3, 2017,
after the government revealed new evidence on the eve of trial and trial was
reset for January 24, 2017. See Docket No. 172. The government moved to
continue this date on January 20, because it had by this time discovered the
Huron evidence and Det. Spinsby was unavailable to testify the week of
January 24. See Docket No. 204. The jury trial was then set for its current
date of February 22, 2017. See Docket No. 210.
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CONCLUSION
Based on the foregoing law, facts, and analysis, this magistrate judge
respectfully recommends granting defendant Robert John Hulscher’s motion to
suppress [Docket No. 223] the evidence Agent Fair obtained from his
warrantless search of the digital data from Mr. Hulscher’s cell phone.
NOTICE OF RIGHT TO APPEAL
The parties have stipulated to limit their time to appeal to this report and
recommendation in order to maintain their current jury trial start date.
Accordingly, pursuant to that stipulation, the parties have three (3) days after
service of this report and recommendation to file written objections pursuant to
28 U.S.C. § 636(b)(1)(B), unless an extension of time for good cause is obtained.
See FED. R. CRIM. P. 59(b); 28 U.S.C. § 636(b)(1)(B). Failure to file timely file
objections will result in the waiver of the right to appeal questions of fact. Id.
Objections must be timely and specific in order to require de novo review by the
district court. See Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990); Nash v.
Black, 781 F.2d 665 (8th Cir. 1986).
Objections are due by 12:00 midnight on Wednesday, February 15, 2017.
DATED February 10, 2017.
BY THE COURT:
VERONICA L. DUFFY
United States Magistrate Judge
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