State of Iowa v. Adym Ray Barth

IN THE COURT OF APPEALS OF IOWA

No. 14-1929
Filed February 24, 2016

STATE OF IOWA,
Plaintiff-Appellee,

vs.

ADYM RAY BARTH,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Black Hawk County, Nathan A.

Callahan, District Associate Judge.

The defendant appeals his conviction for failure to comply with the sex

offender registry. AFFIRMED.

Roman Vald of LaMarca Law Group, Des Moines, for appellant.

Thomas J. Miller, Attorney General, and Kevin Cmelik and Kelli Huser,

Assistant Attorneys General, for appellee.

Heard by Danilson, C.J., and Mullins and McDonald, JJ.
2

MCDONALD, Judge.

Adym Barth was convicted for failure to comply with the sex offender

registry, an aggravated misdemeanor, in violation of Iowa Code sections

692A.104 and 692A.111 (2013). On appeal, Barth contends the district court

erred in denying his motion to suppress evidence allegedly obtained in violation

of his federal and state constitutional rights. We review de novo a ruling on a

motion to suppress evidence allegedly obtained in violation of constitutional

rights. See State v. Short, 851 N.W.2d 474, 478 (Iowa 2014). We conduct “an

independent evaluation of the totality of the circumstances as shown by the

entire record.” State v. Pals, 805 N.W.2d 767, 771 (Iowa 2011). “Each case

must be evaluated in light of its unique circumstances.” State v. Baldon, 829

N.W.2d 785, 789 (Iowa 2013) (internal quotation marks and citation omitted).

In 2010, Barth was convicted of sexual abuse in the third degree and

sentenced to an indeterminate term of incarceration not to exceed ten years in

prison. As part of his sentence, Barth was required to register with the sex

offender registry. In 2013, Barth was placed on supervised probation after his

sentence was reconsidered. He was required to complete the sex offender

treatment program. In October 2013, Barth signed a Sex Offender Treatment

Program Contract/Supervision Agreement. Among other things, the contract

prohibited Barth from using his cellular phone and other devices to access the

Internet for unapproved uses. The contract also required Barth to provide

“Department of Correctional Services staff search and seizure privileges to

confiscate these items.” In February 2014, Barth entered into a probation
3

agreement. The probation agreement provided consent to “submit his person,

property, place of residence, vehicle or personal effects to search at any time at

the discretion of the Department of Correctional Services.” In the probation

agreement, Barth acknowledged and agreed that any such “search may occur

with or without a search warrant or without an arrest warrant.”

In June 2014, Barth attended a regular meeting with his probation officer,

Officer Capelle. The day prior to the meeting, Officer Capelle received a

voicemail message from an individual who had concerns regarding the

defendant’s conduct. Officer Capelle called the individual, who inquired about

Barth’s probation restrictions, including whether Barth was allowed to use the

Internet, Facebook, or a cellular phone camera. The caller inquired whether

Barth was allowed to have contact with minors. The caller stated Barth had been

taking pictures with his camera phone. The following day, when Barth arrived for

the probation meeting, Officer Capelle requested Barth’s cellular phone, and

Barth gave it to him. Another probation officer searched the phone and found

Barth had accessed the Internet in violation of Barth’s probation agreement. The

search of the phone revealed Barth had downloaded pornographic content and

had used several social media and communication applications to send and

receive messages and photographs, including Facebook, Kik, MeetMe, and

Snapchat.

Before confronting Barth regarding what was revealed in the search of the

phone, Officer Capelle called Sergeant Steve Petersen at the Black Hawk

County Sheriff’s Office. Officer Capelle inquired whether Barth had registered his
4

Facebook account. Sergeant Petersen instructed Officer Capelle to obtain a

written statement from Barth and instructed Officer Capelle to tell Barth to report

to the sheriff’s office. Officer Capelle then interviewed Barth regarding Barth’s

phone usage and obtained a signed statement from Barth. Among other things,

Barth “admitted to PO Capelle that [Barth] activated his FACEBOOK account

about two weeks ago after he had deactivated in the past.” Officer Capelle

instructed Barth to report to the sheriff’s office, and Barth complied with Officer

Capelle’s instruction. Once there, Sergeant Petersen placed Barth in an

interview room. Sergeant Petersen read Barth his Miranda warnings. Sergeant

Petersen asked Barth if he understood his rights. Barth responded in the

affirmative. Sergeant Petersen questioned Barth, and Barth confessed to using

his cellular phone to access social media sites and communication applications.

Petersen arrested Barth for a probation violation.

The State charged Barth with failure to comply with the sex offender

registry, an aggravated misdemeanor, in violation of Iowa Code sections

692A.104 and 692A.111. Barth moved to suppress evidence obtained from the

search of his cellular phone on the ground the warrantless search violated his

right to be free from unreasonable searches and seizures as protected by the

Fourth and Fourteenth Amendments to the Federal Constitution and article I,

section 8 of the Iowa Constitution. Barth also moved to suppress the statements

he gave to Officer Capelle and Sergeant Petersen on the ground the statements

were obtained in violation of Barth’s Fifth and Fourteenth Amendment rights.

The district court denied the motion to suppress evidence. Following a trial on
5

the minutes, the district court found Barth guilty of the offense of failure to comply

with the sex offender registry for failing to report the reactivation of his Facebook

account.

We first address Barth’s search and seizure claim. The Fourth

Amendment to the United States Constitution provides “[t]he right of the people

to be secure in their persons, houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated.” U.S. Const. amend. IV. The

Fourth Amendment is applicable to state actors by incorporation via the

Fourteenth Amendment. See Mapp v. Ohio, 367 U.S. 643, 660 (1961). The text

of Article I, section 8 of the Iowa Constitution is materially indistinguishable from

the federal constitutional provision. Nonetheless, “while United States Supreme

Court cases are entitled to respectful consideration, [Iowa courts] will engage in

independent analysis of the content of [Iowa’s] search and seizure provisions.”

State v. Ochoa, 792 N.W.2d 260, 267 (Iowa 2010).

Barth contends the Iowa Constitution provides greater protection than the

Federal Constitution without specifying why or how. Regardless, Barth misstates

the issue. Depending upon the particular issue, our precedents interpreting

article I, section 8 may provide greater or lesser protection than cases

interpreting the Fourth Amendment. While it is undoubtedly true that “the

Supreme Court’s jurisprudence regarding the freedom from unreasonable

searches and seizures under the Fourth Amendment” is a floor and not a ceiling

due to the operation of the Supremacy Clause, Baldon, 829 N.W.2d at 791, it is

also undoubtedly true that the maxim applies only where the defendant asserts a
6

claim arising under the Fourth and Fourteenth Amendments. “The right question,

is not whether a state’s guarantee is the same as or broader than its federal

counterpart as interpreted by the Supreme Court. The right question is what the

state's guarantee means and how it applies to the case at hand. The answer may

turn out the same as it would under federal law. The state’s law may prove to be

more protective than federal law. The state law also may be less protective. In

that case the court must go on to decide the claim under federal law, assuming it

has been raised.” Hulit v. State, 982 S.W.2d 431, 437 n.11 (Tex. Crim. App.

1998) (quoting Hans A Linde, E Pluribus—Constitutional Theory and State

Courts, 18 Ga. L. Rev. 165, 179 (1984)).

“Modern cell phones, as a category, implicate privacy concerns far beyond

those implicated by a search of a cigarette pack, a wallet, or a purse.” Riley v.

California, 134 S. Ct. 2473, 2488-89 (2014). “With all they contain and all they

may reveal, they hold for many Americans the privacies of life.” Id. at 2494-95.

Thus, law enforcement officers must generally obtain a warrant prior to searching

a cell phone. See Riley, 134 S. Ct. at 2494-95; State v. Lacey, No. 13-1898,

2015 WL 359249, at *2 (Iowa Ct. App. Jan. 28, 2015) (recognizing Riley prevents

application of the search-incident-to arrest exception to the search of a cellular

phone). “Warrantless searches are per se unreasonable if they do not fall within

one of the well-recognized exceptions to the warrant requirement.” State v.

Naujoks, 637 N.W.2d 101, 107 (2001). Consent to search is a recognized

exception to the warrant requirement. See Baldon, 829 N.W.2d at 791.
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Consent, to be constitutionally valid, must be voluntary under the totality of the

circumstances. See Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973).

We have little trouble concluding that Barth consented to the search of his

cellular phone and that the search of his cellular phone did not violate either the

federal or state constitution. Barth twice provided written consent to the search

of his personal effects. In October 2013, Barth entered into the “Sex Offender

Treatment Program Contract/Supervision Agreement,” which required Barth’s

consent to search his cellular phone. The 2014 probation agreement provided

the same consent. Further, in prior meetings with Officer Capelle, Barth had

provided his cellular phone to the department of correctional services for random

searches. Finally, when Officer Capelle requested Barth’s cellular phone, Barth

relinquished the phone without objection. See U.S. v. Stapleton, 10 F.3d 582

(8th Cir. 1993) (holding officers reasonably relied on consent to examine a

cellular phone where the owner of the phone remained silent when told of the

search and its purpose and made no statements limiting the scope of the consent

to search); United States v. Coates, 685 F. Supp. 2d 551, 556 (M.D. Pa. 2010)

(denying motion to suppress where the defendant handed his cell phone to an

officer).

Barth contends his consent was not voluntary because he was on

probation and required to consent to the search of his phone. The Iowa

Supreme Court has not directly resolved the question of whether a signed

probation agreement consenting to prospective searches is valid consent. In

Baldon, the court recognized a significant number of jurisdictions have concluded
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a probationer can consent to prospective searches and/or waive search and

seizure rights in a probation agreement. See Baldon, 829 N.W.2d at 792-93.1

The court also noted “[s]ome courts have concluded probationers do not

voluntarily consent to these search provisions.” Id. at 793.2 The Baldon court

never reached the issue, however, because the question presented in that case

related to parolee consent. In that case, the court ultimately concluded “a parole

agreement containing a prospective search provision is insufficient evidence to

establish consent. Such a contract reveals an absence of bargaining power on

behalf of the parolee, rendering contract principles inadequate to entitle the state

to enforce compliance of a search provision.” Id. at 795, 802-03. The Baldon

court intimated, however, that it would reach a different result with respect to

probationers. See id. at 795 (“[P]robationers . . . maintain a vastly superior

bargaining power than the parolees. Such a probationer has the choice of

demanding a trial to seek his or her freedom, which many courts find gives rise to

the type of bargaining power that renders probation agreements consensual.”).

1
Citing United States v. Barnett, 415 F.3d 690, 691–92 (7th Cir. 2005); State v.
Montgomery, 566 P.2d 1329, 1330–31 (Ariz. 1977); People v. Bravo, 738 P.2d 336, 341
(Cal. 1987); People v. Mason, 488 P.2d 630, 634 (Cal. 1971); Allen v. State, 369 S.E.2d
909, 910 (Ga. 1988); State v. Gawron, 736 P.2d 1295, 1297 (Idaho 1987); State v.
Devore, 2 P.3d 153, 156 (Idaho 2000); People v. Absher, 950 N.E.2d 659, 664–68 (Ill.
2011); Rivera v. State, 667 N.E.2d 764, 767 (Ind. Ct. App. 1996); People v. Hellenthal,
465 N.W.2d 329, 330 (Mich. Ct. App. 1991); State v. Anderson, 733 N.W.2d 128, 139
(Minn. 2007); State v. Morgan, 295 N.W.2d 285, 288–89 (Neb. 1980); State v. Bollinger,
405 A.2d 432, 438 (N.J. 1979); State v. Mitchell, 207 S.E.2d 263, 264 (N.C. Ct. App.
1974); State v. Davis, 191 S.W.3d 118, 122 (Tenn. Crim. App. 2006); State v. Martinez,
811 P.2d 205, 209 (Utah Ct. App. 1991); Anderson v. Commonwealth, 507 S.E.2d 339,
341 (Va. 1998).
2
Citing United States v. Consuelo-Gonzalez, 521 F.2d 259, 265, 265 n.15 (9th Cir.
1975); Grubbs v. State, 373 So. 2d 905, 910 (Fla. 1979); Commonwealth v. LaFrance,
525 N.E.2d 379, 381 n.3 (Mass. 1988); People v. Peterson, 233 N.W.2d 250, 255 (Mich.
Ct. App. 1975); State v. Schlosser, 202 N.W.2d 136, 139 (N.D. 1972); Tamez v. State,
534 S.W.2d 686, 692 (Tex. Crim. App. 1976).
9

The bargaining-power framework seems to be a legal fiction of little practical

value. It cannot be said either a parolee or probationer has bargaining power, in

any real sense, when the only option presented is incarceration or submission to

supervision upon the terms demanded. We are unaware of any situation, in the

real world, in which a parolee or probationer negotiated the terms of parole or

probation. The concept of bargaining power is also inapt in Iowa, where the

district court imposes sentence and the department of correctional services sets

most, if not all, the terms and conditions of probation at some later date. In any

event, this is the framework and distinction set forth in our case law, and we

conclude that a probationer can consent to prospective warrantless searches in a

probation agreement. See, e.g., Barnett, 415 F.3d at 692 (finding waiver of

Fourth Amendment rights by agreement to prospective warrantless searches as

a term of probation); State v. Cruz, 174 P.3d 876, 878 (Idaho Ct. App. 2007)

(“Idaho appellate courts have long-recognized that parolees and probationers

have a diminished expectation of privacy and will enforce Fourth Amendment

waivers as a condition of parole or probation.”).

An additional consideration supports our conclusion Barth consented to

the search of his cellular phone for non-investigatory purposes. Barth was

participating in the sex offender treatment program. The “sex offender treatment

program was established for bona fide rehabilitative purposes.” State v.

Washington, 832 N.W.2d 650, 660 (Iowa 2013). “Rehabilitation is a legitimate

penological interest that must be weighed against [a probationer’s] liberty.” Id.

Participation in the sex offender treatment program for rehabilitative purposes
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“may impose difficult choices on defendants to serve a valid penological goal

without crossing the line into unconstitutional compulsion.” Id. Here, Barth

entered into the Sex Offender Treatment Program Contract/Supervision

Agreement, which required Barth’s consent to search his cellular phone. The

purpose of the consent to search was to allow the Department of Correctional

Services to ensure Barth was not engaging in conduct that might otherwise be

lawful (e.g., viewing pornography) but contrary to his rehabilitative goals.

Even if Barth had not consented to the search of his cellular phone, the

search of his cellular phone was authorized by the special needs doctrine. See

Camara v. Mun. Court, 387 U.S. 523, 535 (1967) (Blackmun, J., concurring)

(“Only in those exceptional circumstances in which special needs, beyond the

normal need for law enforcement, make the warrant and probable-cause

requirement impracticable, is a court entitled to substitute its balancing of

interests for that of the Framers.”). The controlling case with respect to Barth’s

federal claim is Griffin v. Wisconsin, 483 U.S. 868 (1987). In that case,

the Court considered the special-needs doctrine in the context of a
probationary search. In doing so, the basic application of the
doctrine surfaced for the first time. See Griffin, 483 U.S. at 873. The
Court acknowledged that “[a] probationer’s home, like anyone
else’s, is protected by the Fourth Amendment’s requirement that
searches be ‘reasonable.’ ” Id. On the other hand, it recognized that
“a State’s operation of a probation system ... presents ‘special
needs' beyond normal law enforcement that may justify departures
from the usual warrant and probable-cause requirements.” Id. at
873–74. The conditions placed on the liberty of probationers “are
meant to assure that the probation serves as a period of genuine
rehabilitation and that the community is not harmed by the
probationer’s being at large,” which requires and justifies the
exercise of supervision to ensure the conditions of probation are
followed. Id. at 875. The Court ultimately held that requiring a
warrant would remove supervisory power from the probation officer
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and place it in the warrant judge, interfere with quick responses to
violations, and reduce the deterrent effect that the searches would
create. Id. at 876. Even the dissent found probation supervision fell
within a special-needs category to justify the examination of the
reasonableness of probation-related searches and ultimately
concluded the threshold probable-cause requirement for a warrant
should be lowered because supervision advances rehabilitation “by
allowing a probation agent to intervene at the first sign of trouble.”
Id. at 881–83 (Blackmun, J., dissenting).

State v. King, 867 N.W.2d 106, 112 (Iowa 2015). This case presents a greater

need than that presented in Griffin. In this case, not only was Barth subject to

supervised probation, he was also a registered sex offender subject to more

vigorous supervision and greater restriction than a non-sex offender. Further, the

intrusion into Barth’s privacy was more limited than what occurred in Griffin. In

Griffin, the Court allowed a warrantless search into the probationer’s homestead.

In contrast, here the probation officer conducted only a brief search of Barth’s

cellular phone. Finally, the search in this case was narrowly tailored to the

purposes of supervision and not conducted for the purposes of law enforcement.

As a sex offender, Barth was prohibited from accessing the internet and viewing

pornography as part of his rehabilitative program. The officer’s search of Barth’s

phone was limited to searching for prohibited activity.

With respect to Barth’s claim arising under the Iowa Constitution, in State

v. Short, the Iowa Supreme Court stated “under article I, section 8, the warrant

requirement has full applicability to home searches of both probationers and

parolees by law enforcement.” State v. Short, 851 N.W.2d 474, 506 (Iowa 2014)

(reversing and remanding denial of a motion to suppress evidence seized at

probationer’s house pursuant to an invalid warrant obtained by law enforcement
12

officers). In the recent case of State v. King, 867 N.W.2d 106 (Iowa 2015),

however, the court did apply the special needs doctrine to a claim arising under

article I, section 8 in the context of the search of a parolee’s home. To determine

whether a warrantless search was justified under the special needs doctrine, the

court analyzed three factors: “(1) the nature of the privacy interest at stake, (2)

the character of the intrusion, and (3) the nature and immediacy of the

government concern at stake and the ability of the search to meet the concern.”

Id at 116. The court held “parole officers have a special need to search the

home of parolees as authorized by a parole agreement and not refused by the

parolee when done to promote the goals of parole, divorced from the goals of law

enforcement, supported by reasonable suspicion based on knowledge arising out

of the supervision of parole, and limited to only those areas necessary for the

parole officer to address the specific conditions of parole reasonably suspected

to have been violated.” King, 867 N.W.2d at 126-27. The court specifically

reserved the question of whether the special needs doctrine would apply to

probationers. See id. (“We do not address the application of this standard to

probationers . . . . ”). This case requires resolution of the question left

unanswered in King.

We conclude the supreme court would apply the same special needs test

in the context of a search of a sex offender and probationer’s personal effects.

There is nothing in the special needs doctrine that would preclude its application

to probation searches. To the contrary, the same non-investigatory purposes

justifying application of the special needs doctrine to parolee searches—
13

compliance, prevention of recidivism, rehabilitation, and public safety—justify

application of the special needs doctrine to sex offender and probationer

searches. See King, 867 N.W.2d at 125 (“The general governmental concern at

stake in this case involves compliance by parolees with the conditions of their

parole to prevent recidivism. The policies of rehabilitation parolees and

maintaining public safety are both enforced through the mechanism of the

supervision of the parolee and the conditions imposed for the duration of

parole.”).

We also conclude the facts of this case satisfy the three-part standard set

forth in King. See id. at 116. Here, Barth was subject to supervised probation

and to supervision as a registered sex offender. The search of Barth’s cellular

phone was authorized by the “Sex Offender Treatment Program

Contract/Supervision Agreement” and the probation agreement. As in King,

Barth did not refuse or object to the search. As in King, the search in this case

was done to promote the goals of supervised probation and the sex offender

treatment program and divorced from the goal of law enforcement generally.

Indeed, the offense conduct at issue in this case would not have been unlawful

but for the restrictions placed on Barth relating to the sex offender treatment

program. The probation officer’s search was supported by reasonable suspicion

based both on reasonable inferences drawn from the unidentified caller’s

inquiries into Barth’s restrictions and the caller’s statement Barth had used a

phone camera, which was prohibited. Finally, the scope of the search was
14

limited only to Barth’s cell phone to address the specific conditions of

supervision. Barth’s claim arising under article I, section 8 thus fails.

Barth next argues that the statements he made to his probation officer

were the product of custodial interrogation and should have been suppressed

pursuant to Miranda v. Arizona, 384 U.S. 436, 478–79 (1966). The defendant

raises the claim under the Fifth Amendment, Fourteenth Amendment, and article

I, section 9 of the Iowa Constitution. Barth did not present his state law claim to

the district court, and it cannot be raised for the first time on appeal. See State v.

Rutledge, 600 N.W.2d 324, 325 (Iowa 1999) (“Nothing is more basic in the law of

appeal and error than the axiom that a party cannot sing a song to us that was

not first sung in trial court.”). We address only his federal constitutional claim.

The Fifth Amendment to the Federal Constitution provides that no person

“shall be compelled in any criminal case to be a witness against himself.” U.S.

Const. amend. V. “It has long been held that this prohibition not only permits a

person to refuse to testify against himself at a criminal trial in which he is a

defendant, but also privileges him not to answer official questions put to him in

any other proceeding, civil or criminal, formal or informal, where the answers

might incriminate him in future criminal proceedings.” Minnesota v. Murphy, 465

U.S. 420, 432 (1984). The Due Process Clause of the Fourteenth Amendment

makes this right against self-incrimination binding on the states. See Malloy v.

Hogan, 378 U.S. 1, 6 (1964). In Miranda, the Supreme Court required law

enforcement officials to provide suspects with certain prophylactic warnings prior

to commencing custodial interrogation. In the absence of such warnings and
15

waiver of the same, the State is prohibited from admitting into evidence any

inculpatory statements obtained as a result of the custodial interrogation.

We conclude the defendant’s Miranda claim fails. The controlling case is

Minnesota v. Murphy, 465 U.S. 420 (1984). In that case, the Supreme Court

held that a probationer’s statements made to his probation officer during the

course of a regularly scheduled meeting do not rise to the level of “custodial

interrogation” requiring the administration of Miranda warnings. The court

reasoned that a probation meeting is not custodial in nature. See id. at 433.

“Custodial arrest is said to convey to the suspect a message that he has no

choice but to submit to the officers' will and to confess.” Id. “It is unlikely that a

probation interview, arranged by appointment at a mutually convenient time,

would give rise to a similar impression.” Id. The Court further reasoned that “any

compulsion [the probationer] might have felt from the possibility that terminating

the meeting would have led to revocation of probation was not comparable to the

pressure on a suspect who is painfully aware that he literally cannot escape a

persistent custodial interrogator.” Id. Here, Barth was at a regular probation

meeting with his probation officer. The meeting was set at a mutually convenient

time. In fact, Barth had rescheduled the meeting due to a personal conflict.

Barth traveled to the meeting on his own and without police escort or supervision.

Barth was not placed under arrest during the probation meeting. Barth was not

physically restrained during the probation meeting. As in Murphy, any

compulsion Barth might have felt from the possibility of terminating the meeting,
16

which would have led to a revocation of probation, was not comparable with the

coercion inherent in custodial interrogation. See id.

Barth also contends the district court should have suppressed the

inculpatory statements Barth made to Sergeant Petersen following the interview

with Officer Capelle. The State contends the statements were not obtained in

violation of Barth’s Miranda rights and any error was harmless.

Most federal constitutional errors “do not require reversal if the error is

harmless.” State v. Peterson, 663 N.W.2d 417, 430 (Iowa 2003). This includes

the erroneous admission of a confession in violation of the defendant's rights.

See id. Constitutional harmless error analysis focuses on the grounds upon

which a verdict was reached in the actual trial and not on some hypothetical trial.

See Sullivan v. Louisiana, 508 U.S. 275, 279 (1993). The issue “is not whether,

in a trial that occurred without the error, a guilty verdict would surely have been

rendered, but whether the guilty verdict actually rendered in this trial was surely

unattributable to the error.” Id. It is the State’s burden to prove harmless error.

The State must “prove beyond a reasonable doubt that the error complained of

did not contribute to the verdict obtained.” Chapman v. California, 386 U.S. 18,

24 (1967). We “weigh the probative force of that evidence against the probative

force of the erroneously admitted evidence standing alone.” Id. Within this

framework, error is harmless when “the force of the evidence is so overwhelming

as to leave it beyond a reasonable doubt that the verdict resting on that evidence

would have been the same without the erroneously admitted evidence.” Id.
17

We need not address the issue of whether the inculpatory statements

should have been suppressed because we conclude any error here constituted

harmless error. The statements made to Sergeant Petersen were wholly

unnecessary to the verdict, and there is little doubt the district court would have

reached the same verdict without the evidence. The criminal conduct at issue

was the defendant’s reactivation of his Facebook account without notification to

the appropriate authorities. It is not disputed the defendant had an obligation to

notify the sheriff’s department of the reactivation of his Facebook account. It also

was not disputed that the defendant reactivated his account without doing so.

Officer Capelle was aware of this information as a result of the search of Barth’s

phone and subsequent interview with Barth. The defendant’s statements to

Sergeant Petersen were merely cumulative of other evidence.

For the foregoing reasons, we conclude the district court did not err in

denying the defendant’s motion to suppress evidence. We affirm the defendant’s

convictions.

AFFIRMED.