USA v. Good Voice

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
CENTRAL DIVISION
UNITED STATES OF AMERICA, 3;21-CR-30059-RAL
Plaintiff,
vs.
OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION AND
DENYING MOTIONS TO SUPPRESS
CONRAD GOOD VOICE JR.,
Defendant.
Defendant Conrad Good Voice, Jr. ("Good Voice"), filed two motions to suppress
asserting his Fourth Amendment rights were violated when law enforcement entered the home
where he was living to arrest him and seized certain items including a cell phone. In addition to
arguing that the content on the cell phone should be suppressed. Good Voice contends the illegality
ofthe search and detention taints any statements he subsequently made to law enforcement and to
others on the phone while in custody and therefore should be suppressed. Good Voice also
challenges whether law enforcement exceeded the breadth ofthe search warrants when they seized
communications associated with Good Voice's Snapchat and Facebook accounts. For the reasons
stated below, this Court denies Good Voice's motions to suppress.
I. Facts Relating to Motions to Suppress
Case 3:21-cr-30059-RAL Document 87 Filed 05/09/22 Page 1 of 29 PageID #: <pageID>

On June 6, 2021, Good Voice was indicted on two counts of aggravated sexual abuse of a
child in violation of 18 U.S.C. §§ 1153, 2241(c), and 2246(2), against two children' who had not
attained the age oftwelve.^ Doc. 1. The indictment stems from an investigation that was initiated
on March 2, 2021, when RaeLane Searby ("Searby"), the children's aunt and guardian, took them
to the Rosebud Indian Health Services Hospital("IHS")after the two children had reported to her
that they had been sexually abused by Good Voice. T. 15-16. Searby and Good Voice were in a
relationship together and shared a bedroom. T. 76. IHS alerted Rosebud Sioux Tribe Law
Enforcement Services ("RSTLES") which sent RSTLES Special Agent Matthew Tucker
("Tucker")to investigate. T. 15-16.
At IHS, Searby met with Tucker and informed him that the girls had told her that Good
Voice "had put his private part hy their butts." Ex. 2, T. 16. Searby told Tucker that A.K. might
be lying in an effort to get back with her mother and that she believed Good Voice "would never
do anything like that." Ex. 2, T. 16, 30-31. Tucker advised Searby that physical exams and
interviews with the children would need to be conducted in Pierre, South Dakota. Ex. 2, T. 17—
18, Ex 2. Searby transported the children to the Central South Dakota Child Assessment Center
("CSDCAC")in Pierre to be interviewed and medically evaluated. Ex. 2.
There, FBI Special Agents Benjamin Plante^ ("Plante") and Jordan Carlson ("Carlson")
observed the child forensic interviews via closed circuit video. Ex. 2, T. 75, 115. During the
'The two victims are twin sisters with the same initials. For clarity, this Court will use the same
initials used during the suppression hearing and will use A.D. to refer to alleged victim one and
A.K. to refer to alleged victim two. T. 16-17.
^ The alleged two victims were nine years old at the time they made statements regarding the
alleged sexual abuse. T. 16.
^ Plante observed all of A.K's interview but left during A.D.'s interview to search the home. T.
77,115. Carlson watched the entire interview and later alerted Plante that A.D. had said that Good
Voice had used a flashlight on his phone to look at her "private parts." T. 115.
Case 3:21-cr-30059-RAL Document 87 Filed 05/09/22 Page 2 of 29 PageID #: <pageID>

interviews, A.D. and A.K. described Good Voice committing sexual acts including oral, anal and
vaginal penetration. Exs. 2, 18 at 4—5, T. 18, 75. A.D. said that Good Voice used a flashlight on
his phone to look at her private parts. T. 82—83. A.K. reported one sexual incident occurring just
the day before, while A.D. reported she had last been abused the week prior. Ex. 18 at 4, T. 18,
75. A.D. claimed the abuse had been ongoing for two years. Exs. A, Bat 43. The assessments
concluded that the physical injuries present were consistent with and supported the disclosures by
A.D. and A.K. Ex. 2, T. 18, 76-77, 85-86. Plante called Tucker and advised him what the girls
had said and the results of the physical examinations. Ex. 2, T. 18, 76-77, 81.
Tucker made contact by phone with RSTLES Officer Gerald Dillon ("Dillon") and asked
him to arrest Good Voice for aggravated sexual abuse based on the probable cause they had
ascertained and to secure the scene until Tucker arrived. T. 18-19,38,51—52. Dillon and RSTLES
Officer Drury Cook ("Cook") went to the home and Dillon knocked on the front door.'^ T. 52.
Good Voice opened the door, and the following conversation took place, recorded on Officer
Dillon's body camera:
Dillon: Hello.
Good Voice: Hello.
Dillon: What's your name?
Good Voice: Conrad
Dillon: Conrad?
Good Voice: Yup
Good Voice asserts Dillon placed his foot on the doorframe to bloek Good Voiee from potentially
closing the door on him. The motions hearing and body eamera footage leave it unclear whether
this occurred; Dillon appears to shift his body away from the ajar screen door he is holding open
as a vehicle approaches before Good Voice opens the inside door to the home. Ex. 6.
Case 3:21-cr-30059-RAL Document 87 Filed 05/09/22 Page 3 of 29 PageID #: <pageID>

Dillon: Is there anyone else home with you?
Good Voice: Um,just my son.
Dillon: Just your son? Ok, do you mind if I come in for a minute?
Good Voice: N—no.^
Dillon: Okay.
Ex. 6. Good Voice proceeded to turn around, stepping back into the living room and away from
the open door toward his toddler-aged son sitting on a couch as Dillon entered the home. Ex. 6.
Once inside the home, Dillon asked how old the child was and again asked Good Voice whether
anyone else was in the home. Ex. 6, T. 39. Dillon then informed Good Voice that he needed to
leave the residence to grab his phone, but that he would leave Cook in the home. Ex. 6, T. 40,51.
Dillon headed outside to his vehicle to let Tucker know about the presence of the child. Ex. 6, T.
40. After Dillon gave Tucker a status update, he returned to the living room before again leaving
and waiting for Tucker to arrive outside. Ex. 6, T. 40. While inside, Dillon asked Good Voice
several biographical questions and told Good Voice a special agent was on his way to speak with
him about an investigation. Ex. 6, T. 39—41. Good Voice remained compliant during this time
and answered the officer's questions. Ex. 6. The body camera footage shows Good Voice sitting
on the couch watching television. Ex. 6.
While waiting for Tucker, Dillon made contact with the South Dakota Department of
Social Services ("DSS") about the presence of the child and DSS arranged for a social worker,
Megan Hawthorn ("Hawthorn"), to travel to the residence from Valentine, Nebraska. T. 20, 40-
5 S^ Ex. 6 at 00:00-05:40. (Mar. 15, 2022)(as the Magistrate Judge notated in the Report and
Recommendation, Doc. 79, the precise reply from Good Voice is difficult to discern although it
seems to be "No." However, this Court agrees with the Report and Recommendation that the
permissive thrust ofthe response is clear, especially given the subsequent interaction in the home).
Case 3:21-cr-30059-RAL Document 87 Filed 05/09/22 Page 4 of 29 PageID #: <pageID>

41, 47-48. Tucker arrived at the home a short time later (about 15 minutes after the initial door
knock). Ex. 6. Tucker and Dillon waited about 20 minutes for Hawthorn to reach the home. Exs.
6, 8, T. 20-21. Upon Hawthorn's arrival, Tucker and Dillon entered the residence and arrested
Good Voice. Exs. 2, 8, T. 20-21, 41. Law enforcement transported Good Voice to the Rosebud
Sioux Tribe Adult Correctional Facility ("RSTACF") where Good Voice was held on tribal
assault, sexual abuse, and child abuse charges. T. 41.
During this same period oftime, FBI Special Agent Carlson asked Searby(who owned the
home, T. 76)to sign a consent to search form, which she did, authorizing FBI agents to carry out
a "complete" search of her Sicangu Village home and to "take any items which they determine
may be related to their investigation." T. 64-69, 87, Ex. 11. Plante drove from Pierre to the
Sicangu Village home to conduct the search. T. 21, 77, 87. While in route, Carlson, who had
continued watching the assessment interview with A.D. when Plante left to eonduct the search,
called and informed Plante that A.D. said Good Voice had used a flashlight on his phone to look
at her private parts. T. 81-83,92. Plante searched the residence and seized several items including
a black cell phone in the bedroom Good Voice shared with Searby. T. 76-77, 89, 92, 94-97, 112,
Ex. 12,13. Following the search, Plante and Tucker met with Good Voice, but Good Voice chose
not to answer any questions or provide a DNA buceal sample.^ T. 33, 98.
A follow up interview with A.D. was conducted at CSDCAC on March 9, 2021. Exs. 16,
17, T. 98-100. Plante arranged the interview because he wanted A.D.to clarify some of her earlier
statements. T. 99-100. During the interview, A.D. recalled being stomach dovra on a bed in the
home with Good Voiee on top of her. Ex. 16, T. 103. According to A.D., Good Voice got up.
® Law enforcement eventually did obtain a DNA sample from Good Voice via a seareh warrant.
T. 98.
5
Case 3:21-cr-30059-RAL Document 87 Filed 05/09/22 Page 5 of 29 PageID #: <pageID>

retrieved his black phone off a charger next to him, kneeled behind her, and pointed the flashlight
toward her "private part" for "a couple seconds" or "like half a minute." Exs. 16, 17 at 6. After
using the phone,^ according to A.P., Good Voice plugged it back in and then continued to sexually
assault her. Exs. 16,17 at 6, T. 103.
When asked if Good Voice would ever take pictures or videos with his phone, A.D.
answered "hm-mm"(negative). Exs. 16, 17 at 4-7, T. 101. After the interviewer confirmed the
answer was a negative, A.D. explained "Cause, 1 don't hear the um, clicking um, like when he s
taking the picture." Exs. 16, 17 at 7, T. 101. The interviewer replied, "I see. So you see the
flashlight light, but you don't hear the clicking sound?" Exs. 16, 17 at7,T. 101. A.D. responded
"mm-hmm"(affirmative). Exs. 16, 17 at 7, T. 101.
Using this information, Plante applied for, and received, a warrant to search the phone that
officers seized during their search of the Sicangu Village residence. Ex. 18, 19, T. 107.
Examination ofthe phone led to more information,^ and in turn, to search warrant applications for
Good Voice's Faeebook and Snapchat accounts. Ex. 20-23, T. 107-09. The federal magistrate
judge found that probable cause existed and granted the corresponding warrants. T. 108-09.
After Good Voice's indictment, he moved to suppress(1)statements made during and after
his arrest and(2)evidence obtained from his phone and social media accounts. Docs. 48,53. The
government opposed those motions. Docs. 50, 57.
United States Magistrate Judge Mark A. Moreno held an evidentiary hearing and issued a
Report and Recommendation recommending that Good Voice's Motions to Suppress be denied.
^ During the original March 2 interview, A.D. said Good Voice had done this with his phone on
about five different occasions. Exs. A,B at 54, 18 at 5.
^ Examination of the phone revealed images of child pornography from a known series, and two
videos that appeared to be surreptitious recordings of two different women that follow up
investigations revealed were made without their consent. T. 108.
Case 3:21-cr-30059-RAL Document 87 Filed 05/09/22 Page 6 of 29 PageID #: <pageID>

Doc. 79. Good Voice filed objections to the Report and Recommendation. Doc. 81. For the
reasons set forth below, and based on a full, de novo review ofthe files, motion hearing transcript
and records, this Court adopts the Report and Recommendation, Doc. 79. Good Voice's Motions
to Suppress, Does. 48, 53, are denied.
II. Standard of Review
In considering a magistrate judge's recommendation on a dispositive matter, such as a
motion to suppress evidence, a district court must make a"de novo determination ofthose portions
ofthe report or ... recommendations to which objection is made." 28 U.S.C. § 636(b)(1)(C). A de
novo review requires a district court to make its own determination of disputed issues. United
States V. Portmann, 207 F.3d 1032, 1033 (8th Cir. 2000).
III. Discussion
A. The Home
1. Consent to Enter the Home
Good Voice asserts that the officers' warrantless entry into the house violated the Fourth
Amendment to the United States Constitution and the statements he made following his arrest must
be suppressed under the Exclusionary Rule to the Fourth Amendment and under Wong Sun v.
United States. 371 U.S. 471, 484 (1963). Furthermore, Good Voice objects to the warrantless
arrest inside the home under Pavton v. New York. 445 U.S. 573, 586(1980).
The Fourth Amendment protects "[t]he right of the people to be secure in their persons,
houses, papers and effects, against unreasonable searches and seizures." U.S. Const, amend IV.
"It is a well-established constitutional principle that law enforcement officers may not enter a
person's home without a warrant unless the entry is justified by exigent circumstances or the
consent of the oecupant." United States v. Conner. 127 F.3d 663, 666 (8th Cir. 1997); see also
Case 3:21-cr-30059-RAL Document 87 Filed 05/09/22 Page 7 of 29 PageID #: <pageID>

Pavton. 445 U.S. at 576 (stating the Fourth Amendment "prohibits the police from making a
warrantless and nonconsensual entry into a suspect's home in order to make a routine felony
arrest"). In Pavton,the Supreme Court ofthe United States recognized that"no zone of privacy is
more clearly defined than a person's home[.]" Conner. 127 F.3d at 666. This protection extends
to temporary dwelling places. Id.
"While Pavton did not deal with the issues of whether an initial consensual entry would
justify a subsequent warrantless arrest,[the Eighth Circuit Court of Appeals has] held that a valid
and voluntary consent may be followed by a warrantless in-home arrest." United States v. Brilev,
726 F.2d 1301, 1303-04(8th Cir. 1984)(cleaned up and citations omitted); see also United States
V. Hampton. 260 F.3d 832, 835 (8th Cir. 2001)(finding that a defendant's in-home arrest "was
constitutionally valid if he voluntarily and without coercion consented to the officers' entry").
Consent may be either express or implied. See United States v. Faler. 832 F.3d 849, 853
(8th Cir. 2016). Whether consent was voluntarily given to enter "is a question of fact to be
determined from all the circumstances, and the government bears the burden of showing that the
consent was freely given." Hampton. 260 F.3d at 835. "[T]he ultimate inquiry is not whether the
defendant subjectively consented, but whether a reasonable officer would believe consent was
given." United States v. Rodriguez. 834 F.3d 937, 940(8th Cir. 2016)(citation omitted).
Good Voice objects to the Magistrate Judge's conclusion that he consented—either
expressly or implicitly—^to the entry of the home. Docs. 49, 81. Good Voice disputes the Report
and Recommendation's findings of what Good Voice said when Dillon knocked on the door to
the Sicangu Village home and made contact with him. Doc. 81. Contending the statement is
ambiguous or if the Court determines the response to be a "no," Good Voice argues that such a
negative answer meant that no consent was given. Doc. 49 at 2-3.
Case 3:21-cr-30059-RAL Document 87 Filed 05/09/22 Page 8 of 29 PageID #: <pageID>

The body camera footage undermines Good Voice's argument by showing Good Voice
stepping,aside to allow the officers through the doorway and into the home after stating what
appears to sound like "no" after being asked whether he minded if Dillon "came in for a minute."
Ex. 6. That and subsequent interactions inside the home also appear to show Good Voice
consenting to the officers' presence in the home, and Good Voice certainly did and said nothing
to contest the officers remaining in the home. Ex. 6, 8. The Eighth Circuit has held that similar
conduct amounts to implied consent. See e.g.. Hampton. 260 F.3d at 835 (finding voluntary
consent where record reflected that the defendant "literally opened the door to admit [police
officers] into his home"); see also Rodriguez. 834 F.3d at 941 (finding an invitation to enter when,
without words or protest, the defendant opened the door wider "and walked inside with his back
to officers" after an officer asked to come inside); Faler. 832 F.3d at 853 (holding that stepping
aside, after officers asked ifthey could come in, was implied consent); United States v. Greer. 607
F.3d 559, 563(8th Cir. 2010)("[WJhen [the defendant] opened the door to the porch and stepped
back, he impliedly invited the officers to enter."); United States v. Turbvfill. 525 F.2d 57, 59(8th
Cir. 1975) ("[T]he action of [the defendant] in the opening of the door and stepping back
constituted an implied invitation to enter."). The officers were reasonable in their beliefthat Good
Voice consented to their entry.^ Good Voice's consent, whether express or implied, was voluntary
under the totality of the circumstances. See also United States v. Ortega-Montalvo. 850 F.3d 429,
® T. 61 ("Q.[D]id the Defendant say or do anything that made you think that he did not consent to
you and Officer Cook waiting in the residence for Agent Tucker to arrive? (Plante): No[.]") T. 61
("The way the word "no" was used was more -1 felt invited, I mean, he stepped back — ... held
the door open for me,I took it as a come on in.").
Case 3:21-cr-30059-RAL Document 87 Filed 05/09/22 Page 9 of 29 PageID #: <pageID>

433 (8th Cir. 2017)(examining the totality of the circumstances and finding voluntary consent to
enter, based in part, on the consenter's prior criminal history'®).
2. Consent to Search
Generally, law enforcement must obtain a warrant before entering or searching a home.
See Steagald v. United States. 451 U.S. 204, 211-12 (1981). Probable cause does not entitle
officers to arrest someone within their home without a warrant, but there are two limited
exceptions: 1) when police face exigent circumstances, s^ Payton, 445 U.S. at 590, and 2) when
police have received consent from someone with authority to provide it, see Hampton,260 F.3d at
835. Consent can be provided by the principal or a third-party such an individual possessing
authority over the premises, see Georgia v. Randolph, 547 U.S. 103, 109 (2006); Illinois v.
Rodriguez, 497 U.S. 177, 181 (1990), homeowner,^Fernandez v. California, 571 U.S. 292,
298-99(2014), or a fellow occupant who shares common authority over the property with another
person, see United States v. Matlock,415 U.S. 164, 170 G9741: United States v. Story, No. 3:20-
CR-30088-RAL, 2021 WL 1423378, at *2(D.S.D. Apr. 15, 2021).
Good Voice objected at the suppression hearing, T. 64-69, on hearsay and Confrontation
Clause grounds, to the testimony and evidence which the government relied upon to show that
Searby provided voluntary consent to search the home. Doc. 81. Rather than calling Searby to
the stand, the government had an FBI Agent testify that the consent he received from Searby was
voluntary. Doc. 81. Thus, the question is whether Searby needed to testify at the suppression
hearing to prove she voluntarily consented to the search of her home.
'® Good Voice in a separate case had recently been acquitted of aggravated sexual abuse by a jury
in October 2020,and thus had some familiarity with the criminaljustice system. S^ United States
V. Good Voice, 3:20-CR-30019.
10
Case 3:21-cr-30059-RAL Document 87 Filed 05/09/22 Page 10 of 29 PageID #: <pageID>

The Sixth Amendment states that in "all criminal prosecutions, the accused shall enjoy the
right ... to be confronted with the witnesses against him." U.S. Const, amend. VI. The
Confrontation Clause thus "bars the admission of testimonial statements of a witness who did not
appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity
for cross-examination." United States v. Johnson, 688 F.3d 494, 504 (8th Cir. 2012)(cleaned up
and citation omitted). While there is no comprehensive definition of"testimonial," the Supreme
Court ofthe United States stated in Crawford v. Washington that "[wjhatever else the term covers,
it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a
former trial; and to police interrogations." 541 U.S. 36, 68 (2004); see also United States v.
Waldron. No. CR. 07-50025, 2007 WL 2080520, at *4-6 (D.S.D. July 17, 2007) (rejecting
Confrontation Clause and hearsay challenges to the admission oftranscripts at suppression hearing
but stating that the defendant could renew objections at trial if witnesses did not testify).
Several courts have held that the Confrontation Clause as described in Crawford applies
only to trial and "the trial court may accept hearsay evidence at a suppression hearing if the court
is satisfied that the statements were made and that there is nothing to raise serious doubt about
their truthfulness." United States v. Bovce, 797 F.2d 691, 693 (8th Cir. 1986); see also United
States V. Raddatz. 447 U.S. 667, 679 (1980)("At a suppression hearing, the court may rely on
hearsay and other evidence, even though that evidence would not he admissible at trial."); United
States V. Perrin. No. CR 09-40052,2009 WL 4906874, at *5 n.5 (D.S.D. Dec. 17,2009), 659
F.3d 718 (8th Cir. 2011)(rejecting a hearsay challenge at a suppression hearing when the court
held documents were authenticated); Washbum v. United States. No. 303-CR—1701, 2006 WL
3715393,at *4(N.D.Ind. Dec. 14,2006), affd,248 F. App'x 731 (7th Cir. 2007)("[Cjases decided
after [Crawford] reaffirm the admissibility of hearsay statements at suppression hearings."). This
11
Case 3:21-cr-30059-RAL Document 87 Filed 05/09/22 Page 11 of 29 PageID #: <pageID>

is supported by the Federal Rules of Evidence and various cases and other authority. Fed. R.
Evid. 104(a), 1101(d)(1); Matlock. 415 U.S. atl73-74.
Here, the government laid the foundation for Searby's signature consenting to the search
by asking Carlson to explain how he obtained it. T. 64-68, 77. Good Voice has not offered any
evidence to contest the voluntariness of Searby's consent. Indeed, it was Searby who helped
initiate the investigation by taking the alleged victims to the hospital when they reported being
sexually assaulted by Good Voice and then transporting them to Pierre for the assessment at
CSDCAC, which at a minimum suggests that she was cooperating with the investigation despite
her incredulity that Good Voice would commit such offenses.^' In addition to consenting to the
search of her home, Searby consented to and provided a buccal DNA sample. T. 64-65. Good
Voiee's Confrontation Clause right was not violated by having an FBI agent testily at the
suppression hearing about Searby giving consent to search her home.
Good Voice also contends he was removed from the premises to prevent him from
objecting to a search. Doc. 49 at 6. While one person's consent to search a jointly occupied home
is generally sufficient to justify a warrantless entry, there is a narrow exception to this rule. If an
inhabitant is physically present, he may expressly refuse consent to a police entry into the
residence,regardless ofthe consent ofa fellow occupant. See Randolph,547 U.S. at 122—23. This
narrow exception is limited to situations in which the objecting occupant is present. See
Fernandez. 571 U.S. at 301. Thus, the complaining occupant must be personally present unless
"there is evidence that the police have removed [him or her] from the entrance for the sake of
avoiding possible objection." Id at 302(cleaned up and citation omitted).
" This Court notes that Searby initially refused consent to Plante because of something he
reportedly said before Carlson ultimately obtained the consent. T. 64-68, 77.
12
Case 3:21-cr-30059-RAL Document 87 Filed 05/09/22 Page 12 of 29 PageID #: <pageID>

Here, Searby, who was the homeowner, provided valid third-party eonsent to search the
premises. The police testified that Good Voice was removed from the residence because they had
probable cause to make an arrest, and Good Voice offers no evidence that he was removed
explicitly to search the home. T. 18-19, 38. Thus, Good Voice's objections concerning the
propriety ofthe search of the home are overruled.
Next, Good Voice argues that the consent obtained from Searby was overbroad because
the FBI used a general consent to search form without providing any limitation on the scope ofthe
search or the items to be seized. Doc. 81. However, that is exactly the type of search to which
Searby consented. Besides, most of the items seized were within a shared bedroom or other
communal areas in the home for which Searby had authority to eonsent to search.'^ See United
States V. Amratiel. 622 F.3d 914, 916(8th Cir. 2010)("[0]ne spouse presumptively has authority
to consent to a search of all areas of the homestead."(cleaned up and citation omitted)). For the
above stated reasons, all of Good Voice's objections to the home search are overruled.
3. Fruit of the poisonous tree
Good Voice moves for suppression of statements and evidence, including the alleged
telephone calls between Good Voice and others while at the RSTACF, as fmits of the poisonous
tree under Wong Sun. 371 U.S. at 484. Doe. 49. Good Voice relies on the arguments made in his
motion and memorandum to suppress, and objects to the Magistrate Judge's rejection of these
arguments in the Report and Recommendation. Docs. 49, 81. He argues "but for" the illegal
arrest, he would not have been jailed and thus would not have made any recorded telephone calls.
T. 68("Q: Did she say anything when you met with her that in any way limited the scope of the
search that you were striving to do?"[Carlson]"No.")
The cell phone was seized in Searby and Good Voice's shared bedroom. T. 76-77. The police
also seized tissue that they suspected may contain blood and laundry. T. 96-98, Ex. 12, 13.
13
Case 3:21-cr-30059-RAL Document 87 Filed 05/09/22 Page 13 of 29 PageID #: <pageID>

Doc. 49 at 5. The government counters that even assuming the arrest was made illegally, the
telephone recordings made at the RSTACF should not be suppressed as they had been cured of
any poisonous taint. Doc. 50 at 9-10. As previously discussed, Good Voice's arrest was proper
because officers had sufficient consent to enter the premises and probable cause that a crime had
been committed to make an arrest. Thus, statements Good Voice made in custody to third parties
are not subject to being suppressed.
Even if Good Voice's arrest was somehow illegal, the telephone recordings would not be
suppressed. "Verbal statements obtained as a result ofa Fourth Amendment violation are as much
subject to the exclusionary rule as are items of physical evidence discovered during an illegal
search." United States v. Yousif. 308 F.3d 820, 832 (8th Cir. 2002)(cleaned up and citation
omitted). "To break the causal chain between an illegal arrest and a statement given later, the
statement must be sufficiently an act of free will to purge the primary taint." United States v.
Vega-Rico,417 F.3d 976,979(8th Cir. 2005)(cleaned up and eitations omitted). Courts consider
factors such as ''Miranda warnings, the temporal proximity of the arrest and the confession, the
presence of intervening cireumstances, and particularly, the purpose and flagrancy of the official
misconduct." Id
Good Voice was not induced into making the phone calls based on any nefarious police
misconduct. The eommunications were made, unprompted by law enforcement, to third parties.
He had the presenee of mind to refuse to speak with law enforeement after his arrest without an
attorney present, T. 33, 98, and has prior experience with law enforeement and legal court
proceedings due to a prior indictment which had proceeded to a jury trial. See Doc 5 in USA v.
Conrad Good Voice, Jr. Case No.: 3:20-CR-30019. Such factors would tend to show Good Voice
made these statements in telephone ealls based on his own free will and weigh against exclusion.
14
Case 3:21-cr-30059-RAL Document 87 Filed 05/09/22 Page 14 of 29 PageID #: <pageID>

Additionally,"[i]f someone agrees that the poliee may listen to his conversations and may
record them, all reasonable expectation of privacy is lost, and there is no legitimate reason to think
that the recordings, like any other evidence lawfully discovered, would not be admissible." United
States V. Eggleston, 165 F.3d 624,626 (8th Cir. 1999). It is likely, though not entirely clear, that
Good Voice received such a warning,''^ putting Good Voice on notice of the possibility his
communications were being recorded. With such a warning, any statements made in the taped
prison telephone calls would be an act of free will, cured of any poisonous taint from an illegal
arrest and thus not subject to the exclusionary rule. See e.g.. United States v, Horr,963 F.2d 1124,
1126 (8th Cir. 1992)(finding the defendant impliedly consented to the taping of his telephone
conversations when he was on notice that they would be recorded); United States v. Lucas, 499
F.3d 769,780(8th Cir. 2007)(finding implied consent to recordings of prison phone call when the
defendant was on notice that the calls were recorded from placards posted in the corrections facility
and an audio warning before calls); United States v. Morin. 437 F.3d 777, 780 (8th Cir. 2006)
(finding implied consent to recording phone calls when signs were posted and the defendant had
been given handbook with warnings that calls would be monitored). Good Voice's objection to
not suppressing the recorded phone calls is overruled.
B. Warrants
1. The Phone
T. 130("Q: What's your understanding about what inmates at those facilities are told about their
calls or text messages being subject to monitoring?
[Plante] I'm ~ I understand that they are usually ~ there's like a playback that tells them that the
conversation is being recorded.
[Defendant]: Your Honor, I'm going to object. I'm going to object on grounds of confrontation
because number one, he hasn't identified what ~ what jail he's referring to this playback for; and
number two, unless he's heard it himself, he's testifying to hearsay.
[THE COURT:] Well, he's talking about usually and generalities, not necessarily as to specific
facilities that Mr. Good Voice was at. Objection is overruled.")
15
Case 3:21-cr-30059-RAL Document 87 Filed 05/09/22 Page 15 of 29 PageID #: <pageID>

Good Voice objects to the Magistrate Judge's factual findings and recommendation
denying the motion to suppress the evidence taken from his cell phone. Doc. 81 at 4. Good Voice
asserts that the affidavit for the search warrant on the cell phone was lacking probable cause to
justify its issuance because the affidavit inaccurately characterized A.D.'s response as to whether
she believed Good Voice took any photos or videos ofthe assaults. Ex. 18. Good Voice points to
the last sentence of paragraph 13 of the affidavit, but context being important, it is quoted here in
its entirety:
During A.D.'s forensic interview on March 2, 2021, A.D. disclosed that the
incidents with Conrad began about two years ago. On March 9, 2021,A.D. was
further forensically interviewed at the CSDCAC in Pierre, South Dakota. A.D.
disclosed that Conrad would be on top of her on the bed before he would grab a
black phone, a phone that kind of looked like an Iphone, from a charger, turn on
the flashlight, and look at her private part. Comad held the phone while on his
knees, and A.D. did not know why he used the flashlight. A.D. further disclosed
that after using the phone a little bit he would put the phone back on the charger
and continue being on top of her. A.D. disclosed that this happened on
approximately five different occasions. According to A.D., she did not think
Comad was taking pictures or videos with the phone because she did not hear a
clicking sound.
Ex. 18 at 5 113.
The Fourth Amendment demands that a search warrant be supported by probable cause.
United States v. Stevens, 530 F.3d 714, 717-18 (8th Cir. 2008). "Probable cause exists when a
practical, common-sense inquiry that considers the totality of the circumstances set forth in the
information before the issuing judge yields a fair probability that contraband or evidence ofa crime
will be found in a particular place." Id at 718(cleaned up and citations omitted). Great deference
should be afforded the issuing judge, and the search warrant "should be upheld if the judge had a
substantial basis for concluding that a search would uncover evidence of wrongdoing." Id
(cleaned up and citation omitted). "[Cjourts should not invalidate [a] warrant by construing the
affidavit" supporting the warrant "in a hypertechnical" manner. United States v. Ventresca, 380
16
Case 3:21-cr-30059-RAL Document 87 Filed 05/09/22 Page 16 of 29 PageID #: <pageID>

U.S. 102,109(1965). Rather, the "affidavit is judged on the adequacy of what it does contain, not
on what it lacks, or on what a critic might say should have been added." United States v. Daigle,
947 F.3d 1076, 1081 (8th Cir. 2020)(cleaned up and citation omitted).
"A search warrant is void and the resulting evidence must be suppressed, however, if the
defendant proves by a preponderance ofthe evidence that the affiant knowingly and intentionally,
or with reckless disregard for the truth, included a false statement in the warrant affidavit and the
affidavit does not establish probable cause without the false statement." Stevens, 530 F.3d at 718.
"An affiant knowingly and intentionally or recklessly includes a false statement if he in fact
entertains serious doubts as to the truth ofthe affidavit or has obvious reasons to doubt the accuracy
ofthe information contained therein." li(cleaned up and citation omitted). Negligent or innocent
mistakes resulting in inaccurate statements are insufficient to trigger relief. Id
Here, Good Voice uses an inapt analogy to argue that the officer writing the warrant
wrongly equated a negative answer by A.D. to "I don't think so." Doc. 81. A.D., who was nine
years old, was asked whether she thought Good Voice took photos or videos and responded "hm-
mm"(negative). Exs. 16, 17 at 7, T. 101. When asked why she thought that way, she said that
she did not hear the "clicking sound" she associated with the taking of a photo. Exs. 16, 17 at 7,
T. 101. So, the officer vwiting the warrant accurately characterized her response as she "did not
think [Good Voice] was taking pictures or videos with the phone because she did not hear a
clicking sound." Ex. 18 at 5 t 13. After all, being the subject of the recording rather than the
creator limits her actual knowledge of whether child pornography was produced.
Good Voice places much emphasis on the ability of a nine-year old to discern whether her
alleged perpetrator was creating child pornography while simultaneously raping her, as if her
response can conclusively end the inquiry. But as was explained during the suppression hearing.
17
Case 3:21-cr-30059-RAL Document 87 Filed 05/09/22 Page 17 of 29 PageID #: <pageID>

interviewers are trained to ask follow-up questions to determine why the alleged victim did not
think images or videos were created. T. 101. It was during that exchange that A.D. revealed
information suggesting Good Voice was using his cell phone in a manner that would be consistent
with the creation ofchild pornography—i.e., describing Good Voice interrupting the sexual assault
to grab his phone off a charger and the flash of the light behind her directed at her private parts
that could be consistent with the flash of a camera. T. 100-101.
Read in full, the affidavit adequately summarized information provided by A.D. about
whether she thought Good Voice took video or pictures and how, from her perspective. Good
Voice used the phone during the alleged sexual abuse. The affidavit does not include A.D.'s
verbatim responses given during her forensic interviews, but it does not mislead, hide or recklessly
misrepresent her responses either.
Further, as explained in the Magistrate Judge's Report and Recommendation, the rest of
the affidavit included information that solidified a finding ofprobable cause for a warrant to search
the phone. Doc. 79 at 19. Plante provided an overview of A.D. and A.K.'s statements at IHS and
during their CSDCAC interviews where they described Good Voice engaging in sex acts with
them in the house. Ex. 18 at 3-5, 7-10, 13; s^ Daigle, 947 F.3d at 1082 (finding an affidavit
established probable cause when it contained statements from the victim during the forensic
interview that the author of the affidavit also observed); see also United States v. Brackett, 846
F.3d 987, 992-93 (8th Cir. 2017)(finding probable cause to search a residence for evidence of
child pornography where an affidavit included information from the victim that the defendant
engaged in sexual acts with her and took nude photos of her). Plante related that he and Tucker
located a black phone, with Good Voice's name on it, in plain sight in a bedroom Searby and Good
Voice shared, and that Searby had confirmed the phone belonged to Good Voice. Ex. 18 at 4-5,
18
Case 3:21-cr-30059-RAL Document 87 Filed 05/09/22 Page 18 of 29 PageID #: <pageID>

12, at 13, 15. Plante also stated that based on his own knowledge and experience, cellular
phones could contain information or communications related to the sexual abuse offenses. Ex. 18
at 5-6, 16-18. United States v. Green, 954 F.3d 1119, 1123 (8th Cir. 2020) (finding
probable cause to search a cell phone based, in part, on an officer's experience in ehild
pomography cases); United States v. Stults, 575 F.3d 834, 843-44 (8th Cir. 2009) (finding
probable cause to search files on a defendant's computer based in part on an officer's experience
in child pomography cases).
Good Voice further asserts that the lack of evidence that he allegedly took photos or videos
results in the lack of probable cause to issue the search warrant. Doc. 81. However, as explained
above, A.D.'s response that Good Voice would shine his phone's flashlight on her private parts
during alleged acts ofsexual assault supports a finding of probable cause that evidence ofcriminal
activity existed on the phone. A practical, common-sense inquiry considering the totality of the
circumstances supports the issuing judge's decision that there was a substantial basis that evidence
of a crime would be found on the cell phone and therefore suppression of the evidence seized on
the cellphone is denied.
2. Snapchat and Facebook search warrants
Good Voice objects to the Magistrate Judge's factual findings and recommendation
denying his motion to suppress certain information contained within his Snapchat and Facebook^^
Good Voice acknowledges that the arguments to suppress the Facebook communications are the
same as to suppress the Snapchat communications, so this Court will address them together and
note where different analysis applies. Doe. 81 at 6. Both search warrants contained the same
information identifying the account in Attachment A, listing the speetmm of information to be
seized in Attachment B, Section I, and then contained within Section II the restriction to all
information described in Section I that constitutes fmits, evidence and instrumentalities of
violations of 18 U.S.C. §§ 1153 and 2241(c), for the period of Febmary 1, 2021, through March
16,2021. Ex. 21,23.
19
Case 3:21-cr-30059-RAL Document 87 Filed 05/09/22 Page 19 of 29 PageID #: <pageID>

accounts because the FBI agent's affidavit and the resulting search warrants issued by the
Magistrate Judge lacked particularity and were overly broad. Docs. 54, 81 at 5. Good Voice has
not asserted that the affidavits submitted to obtain the warrants failed to establish probable cause
to search Good Voice's social media accounts for at least some communications. However, Good
Voice asserts that the only probable cause set forth in the affidavit was to search the Snapchat and
Facebook logs relating to communications between Good Voice and Searby, not the entirety of his
Snapchat or Facebook accounts including communications Good Voice had with others. Docs. 54
at3-5, 81 at 5-7. Good Voice moved to suppress all Snapchat and Facebook communications
under the exclusionary rule, citing Murrav v. United States, 487 U.S. 533, 536 (1988), or at least
those outside the temporal limitations of the search warrants, being periods between February 1,
2021,through March 16, 2021. Docs. 54 at 4, 81 at 6.
The Fourth Amendment requires that warrants must "particularly describ[e] the place to be
searched, and the persons or things to be seized." U.S. CONST, amend. IV. "To satisfy the
particularity requirement of the Fourth Amendment, the items to be seized and the places to be
searched must be described with suffieient particularity as to enable the searcher to locate and
identify the places and items with reasonable effort and to avoid mistakenly searching the wrong
places or seizing the wrong items." United States v. Gleich, 397 F.3d 608, 611 (8th Cir. 2005).
"The degree of specificity required will depend on the circumstances of the case and on the type
of items involved." United States v. Horn. 187 F.3d 781, 788 (8th Cir. 1999). Therefore, courts
consider the totality ofthe circumstances to determine whether there was probable eause sufficient
to support the breadth of a warrant. United States v. Hernandez, No. 09 CR 625 (HE), 2010 WL
26544, at *8 (S.D.N.Y. Jan. 6, 2010); Illinois v. Gates. 462 U.S. 213, 238-39 (1983). Courts
should evaluate the sufficiency of a search warrant affidavit "using a common sense and not a
20
Case 3:21-cr-30059-RAL Document 87 Filed 05/09/22 Page 20 of 29 PageID #: <pageID>

hypertechnical approach." United States v. Grant, 490 F.3d 621,632(8th Cir. 2007)(cleaned up
and citations omitted). "A warrant naming only a generic class of items may suffice if the
individual goods to be seized cannot be more precisely identified at the time that the warrant is
issued." Horn, 187 F.3d at 788. However, a warrant that encourages general, exploratory
rummaging is not allowed. See Anderson v. Marvland. 427 U.S. 463,480(1976).
Various courts have commented on the dangers to privacy presented by social media
applieations that capture a wide variety of sensitive data in an often precise manner. See, e.g..
United States v. Ulbricht, 858 F.3d 71,99(2d Cir. 20171 overruled on other grounds by Carpenter
V. United States, 138 S. Ct. 2206 (2018)("A general search of electronic data is an especially
potent threat to privacy because hard drives and e-mail accounts may be akin to a residence in
terms of the scope and quantity of private information [they] may eontain." (cleaned up and
citations omitted)); United States v. Shipp,392 F. Supp. 3d 300, 308(E.D.N.Y. 2019)("Facebook
is designed to replicate, record, and facilitate personal, familial, social, professional, and financial
activity and networks. Users not only voluntarily entrust information concerning just about every
aspect of their lives to the service, but Facebook also proactively collects and aggregates
information about its users and non-users in ways that we are only just beginning to understand.").
In United States v. Burkhow, the district court considered the different approaches courts
have taken when analyzing the breadth of a warrant to search an individual's social media
accounts. No. 19-CR-59-CJW-MAR, 2020 WL 589536, at *9 (N.D. Iowa Feb. 6, 2020). It
outlined that "[sjome eourts have held that a warrant to search a defendant's social media account
is not overbroad if it particularly describes the information to be disclosed and the offense being
investigated." Id (listing cases). "Such decisions emphasize that the mere fact that a warrant calls
for a broad seizure ofitems does not alone dictate that the warrant is overbroad." Id Other courts
21
Case 3:21-cr-30059-RAL Document 87 Filed 05/09/22 Page 21 of 29 PageID #: <pageID>

"have held that it is not enough that the warrant makes referenee to a particular offense; the warrant
must ensure that the search is confined in scope to particularly described evidence relating to a
specific crime for which there is demonstrated probable cause." Id.(listing cases including United
States V. Irving, 347 F. Supp. 3d 615, 624 (D. Kan. 2018)). Courts have further "noted that
warrants for social media accounts should be tailored in time or to relevant persons to prevent a
general rummaging." Id. Ultimately, the Burkhow court stated that "[t]he mere fact that the
government could not determine when the alleged criminal conduct began does notjustify a search
without any temporal limitations." Id, at *10. Yet it acknowledged "setting reasonable temporal
limitations can be difficult and varies based on the specific facts of each case." Id
Good Voice cites to United States v. Irving for the contention that a search warrant for an
entire social media account, in that case Facebook, is overbroad: "the warrant must ensure that the
search is confined in scope to particularly described evidence relating to a specific crime for which
there is demonstrated probable cause." 347 F. Supp. 3d at 623; Doc. 81 at 5. In Irving, the warrant
contained no temporal limitation, unlike the warrants approved to search Good Voice's social
media accounts. Irving, 347 F. Supp. 3d at 623-24; Doc. 57 at 4-5.
The government argues that the search warrants for Good Voice's social media accounts
contained specific limitations: 1)the evidence to be seized was particularly described and limited
to evidence of violations of 18 U.S.C. §§ 1153 and 2241(c) aggravated sexual abuse of a child;
and 2) the warrants set a temporal limitation, specifically for the period of February 1, 2021,
through March 16, 2021. Doc. 57 at 4, Ex. 21 at 6, 23 at 5.
22
Case 3:21-cr-30059-RAL Document 87 Filed 05/09/22 Page 22 of 29 PageID #: <pageID>

What makes this case unique is that Snapchat provided more data than requested.'^ Doc.
54 at 4. Good Voice has a legitimate argument that communications that were provided beyond
the scope of what was particularly described and outside the temporal limitations should be
suppressed under the Irving decision. However, this Court ultimately adopts the Report and
Recommendation's reasoning that the limiting language in the warrants satisfies the particularity
requirement established by Eighth Circuit precedent, which focuses on whether the offense being
investigated was sufficiently identified in the warrant. Doc. 79 at 22;^ United States v.
Sherman. 372 F. App'x 668, 676 (8th Cir. 2010)(holding a warrant tying information sought to
specific crimes was not overbroad); United States v. Nieman, 520 F.3d 834, 839 (8th Cir. 2008)
(holding a warrant containing "a specific limitation" that was tailored to items relevant to charge
was not overbroad); Gleich. 397 F.3d at 612 (holding that warrants satisfied the particularity
requirement because language in them limited the search to "items specifically prohibited by
statute"!: see also United States v. Jones. No. 19-CR341,2021 WL 1321270,at **11-12(D.Miim.
Jan. 7, 2021)(holding a warrant authorizing search of a Facebook account was not overbroad and
finding that the Eighth Circuit honors limiting language similar to language in Good Voice's case);
United States v. Harris. No. 20-CR-98 (SRN/TNL), 2021 WL 4847832, at *6(D. Minn. July 16,
2021), report and recommendation adopted. No. 20-CR-98 (SRN/TNL), 2021 WL 3929270 (D.
Minn. Sept. 2, 2021)(finding that the focus of the Eighth Circuit is whether the offense being
investigated was sufficiently identified in the warrant). Under these eases, the search warrants for
Good Voice states that communications from Snapchat were provided as far back as March
2019. Doc. 54 at 4. Courts have commented on the difficulties of establishing a temporal
limitation which will vary based on the complexities of the ease. Burkhow, No. 19-CR-59-CJW-
MAR, 2020 WL 589536, at *9 ("The extent to which a search can be limited, however, turns
greatly on the posture of the investigation at issue."). Although the search warrant specified a
limited window, between February 1, 2021 and March 16, 2021, it is worth noting that A.D. had
alleged the abuse had been going on for two years.
23
Case 3:21-cr-30059-RAL Document 87 Filed 05/09/22 Page 23 of 29 PageID #: <pageID>

Good Voice's Snapchat and Facebook accounts were sufficiently limited in scope and breadth to
comply with the Fourth Amendment. See United States v. Young. No. 21-CR-00098-BLW,2021
WL 5889526, at **2-4 (D. Idaho Dec. 13, 2021)(holding that probable cause existed for the
issuance of a warrant to search a Snapchat account and the warrant was not overbroad); United
States V. Woods. No. 17-CR-103V, 2019 WL 7630758, at ** 2-5 (W.D.N.Y. Aug. 30, 2019),
report and recommendation adopted. No. 17-CR-103-V, 2019 WL 5781859 (W.D.N.Y. Nov. 6,
2019)(holding a warrant to search a Snapchat account was sufficiently particular to comply with
Fourth Amendment). Of course, merely because this Court denies a suppression motion does not
thereby render the Snapchat evidence admissible.
Good Voice also argues that seizing any communications beyond those between himself
and Searby would be overbroad in regards to the aggravated sexual abuse charges as listed in the
indictment. Doc. 54 at 4, Doc. 81. Other conversations. Good Voice asserts, are beyond the
permissible scope of the search warrant. Doc. 81 at 6. However, information contained within
social media accounts that may not seem relevant on face to an investigation into sexual abuse
may nevertheless be reasonably within the limits ofthe search warrant,for example, by identifying
a defendant's locations at specific dates and times within a period of criminal activity. Jones,
No. 19-CR-341 (NEB/LIB), 2021 WL 1321270, at *11-12 (rejecting an overbroad challenge to
suppress Facebook data which included locations related to specific dates). Additionally, it was
reasonable that the search warrants would uncover messages within the accounts that had been
deleted or altered after the investigation had been initiated. Just because the government could not
anticipate the communications it encountered in the search, does not mean the warrants were
deficient, especially when limited to a specific type of offense. The Eighth Circuit has stated that
"[t]he failure ofthe warrant to anticipate the precise form in which [the sought information] would
24
Case 3:21-cr-30059-RAL Document 87 Filed 05/09/22 Page 24 of 29 PageID #: <pageID>

appear is not fatal." United States v. Lowe, 50 F.3d 604, 607 (8th Cir. 1995). Thus, this Court
adopts the Report and Recommendation's finding regarding the legality ofthe search warrants that
authorized law enforcement to receive information from Good Voice's Snapchat and Facebook
accounts. Good Voice's objections to the Report and Recommendation regarding the social media
accounts are overruled.
3. Leon Exception
Even ifthere is a defect in the warrant for social media accounts concerning particularity,''
this Court agrees with the Report and Recommendation's analysis that the Leon good-faith reliance
exception would apply and thus any evidence seized from the Snapchat and Facebook accounts is
not subject to suppression. Good Voice asserts this Court should follow Irving to conclude that
the Leon good faith exception is not applicable because the warrants were "so facially deficient
that the executing officer could not reasonably believe [them] valid." Irving, 347 F. Supp. 3d at
625 (citation omitted). Good Voice notes that the same officer who executed the search warrant
in the present case was the same one who prepared the affidavit, a fact identical to Irving, where
the affidavit was deemed lacking in good faith. I^ For the same reasons described in Irving, Good
Voice asserts that the good faith exception is not applicable because the officer should have been
aware that the search warrants would amount to general rummaging.
The Fourth Amendment does not expressly preclude the use of improperly obtained
evidence, which spawned the creation ofthe good-faith exception to the exclusionary rule. United
States V. Leon. 468 U.S. 897, 906 (1984). "Under the good-faith exception, evidence seized
"The Leon "good-faith exception applies to the assertion that the warrant was overbroad with the
same force and effect as it does to the assertion that the warrant lacked probable cause." United
States V. Stephen, No. 18-CR-31-CJW, 2018 WL 4839065, at *12(N.D. Iowa Oct. 4, 2018) uff d,
984 F.3d 625 (8th Cir. 2021).
25
Case 3:21-cr-30059-RAL Document 87 Filed 05/09/22 Page 25 of 29 PageID #: <pageID>

pursuant to a search warrant that lacked probable cause is admissible if the exeeuting officer's
good-faith reliance on the warrant is objectively reasonable." United States v. Perry, 531 F.3d
662, 665 (8tb Cir. 2008). "The operative test is whether a reasonably well trained officer would
have known that the search was illegal." United States v. Mavweatber, 993 F.3d 1035, 1041 (8tb
Cir. 2021)(cleaned up and citation omitted). This is beeause the purpose ofthe exclusionary rule
is to deter police miseonduct. See United States v. Simpkins,914 F.2d 1054,1058(8tb Cir. 1990).
The rule is "based on the theory that where there has been no poliee illegality, there is no conduet
the courts need to deter and therefore no basis to enforce the exelusionary rule." Conner, 127 F.3d
at 667. "As the Supreme Court stated: Penalizing the officer for the magistrate's error, rather than
his own, cannot logically contribute to the deterrence of Fourth Amendment violations." Id.
(cleaned up and citation omitted). Thus,"the fact that a neutral magistrate has issued a warrant is
the clearest indication that the officers acted in an objectively reasonable manner . . . ."
Messerschmidt v. Millender. 565 U.S. 535, 546 (2012). However, if "the offieers' pre-warrant
conduct is clearly illegal, the good-faith exception does not apply." Conner, 127 F.3d at 667
(cleaned up and citation omitted).
Thus, in general,"an officer cannot be expected to question a magistrate's probable cause
determination," Leon, 468 U.S. at 921; however, Leon outlines four situations where an offieer's
reliance on a warrant would be unreasonable:
(1) when the affidavit or testimony supporting the warrant eontained a false
statement made knowingly and intentionally or with reckless disregard for its truth,
thus misleading the issuing judge;(2)when the issuing judge wholly abandoned his
judicial role in issuing the warrant;(3) when the affidavit in support of the warrant
is so lacking in indicia of probable cause as to render official belief in its existence
entirely unreasonable; and (4) when the warrant is so facially deficient that no
poliee officer could reasonably presume the warrant to be valid.
26
Case 3:21-cr-30059-RAL Document 87 Filed 05/09/22 Page 26 of 29 PageID #: <pageID>

United States v. Proell. 485 F.3d 427,431 (8th Cir. 2007)(cleaned up and citation omitted). None
of those situations apply in Good Voice's case. As discussed, the affidavit did not contain any
false statements and the issuing judge had probable cause to issue the warrants subject to the
limitations provided. Finally, the warrants were not so facially deficient that no reasonable officer
could rely upon them.
It was this last area that the Irving court used to find a lack of good faith. In Irving, the
search warrant requested virtually all information contained within a Facebook account when the
crime being investigated (failure to register a social media account) required only limited
information. Irving.347 F. Supp. 3d at 624. The search warrants at issue here are not so expansive;
the search warrants limited the information sought to evidence of aggravated sexual abuse which
could include communications to others besides Searhy and set forth a temporal limit, which the
search warrant in Irving did not. The Irving court stated, "the affidavit indicates the broad view
that the officer took ofthe search warrant. There does not appear to be an objective reason that the
officer should have believed that this general rummaging would be permitted." Id at 625. Here,
the officers by applying for warrants limited to an investigation into violations of aggravated
sexual abuse within a reasonable temporal limit attempted to narrow their inquiry in good faith.
Snapchat providing more information than requested does not equate to governmental misconduct
or general rummaging that requires suppression. Moreover, Irving seems to follow the line of
cases requiring a greater degree of specificity than what is required in the Eighth Circuit to satisfy
the particularity requirement.
Morever, many courts have found that "good faith is often present despite the overbreadth
of a warrant to search a social media profile." Burkhow. No. 19-CR-59-CJW-MAR, 2020 WL
589536, at *11 (listing cases finding good faith despite particularity concerns regarding social
27
Case 3:21-cr-30059-RAL Document 87 Filed 05/09/22 Page 27 of 29 PageID #: <pageID>

media accounts); see also United States v. Mize, No. l:18-CR-74, 2020 WL 5505793, at *5 (S.D.
Ohio Sept 11,2020)(cleaned up and citations omitted)(finding an emerging pattern ofcases across
the country holding "search warrants that ask for an entire copy of a Facebook account. .. are
likely overbroad, but evidence obtained therefrom is still admissible under the Leon good-faith
exception); Shinn. 392 F. Supp. 3d at 312(finding reliance on a warrant for Facebook data by law
enforcement officers was not objectively unreasonable). This Court does not believe that the
purpose of the exclusionary rule, to deter police misconduct, would be furthered by suppression
under these circumstances. See Burkhow. No. 19-CR-59-CJW-MAR, 2020 WL 589536, at *12.
The police identified the account to be searched, the evidence to be seized was particularly
described and limited to violations of aggravated sexual abuse of a child, and the search warrants
set temporal limitations. This differs vastly in scope than the type of general search the Irving
court warned lacked good faith and the Fourth Amendment forbids.
Therefore, even if the search into Good Voice's social media accounts was overbroad, law
enforcement relied upon the issuing judge's warrants in good faith and thus evidence seized from
Good Voice's Snapchat and Facebook accounts are not subject to suppression. Good Voice's
objections to the contrary are overruled.
IV. Conclusion
For the foregoing reasons, it is hereby
ORDERED that Good Voice's Objections to the Report and Recommendation, Doc. 81,
are overruled. It is further
ORDERED that the Report and Recommendation for Disposition of Motions to Suppress,
Doc. 79, is adopted. It is finally
ORDERED that Good Voice's Motions to Suppress, Docs. 48, 53, are denied.
28
Case 3:21-cr-30059-RAL Document 87 Filed 05/09/22 Page 28 of 29 PageID #: <pageID>

DATED this 9th day of May,2022.
BY THE COURT:
ROBERTO A. LAN(
CHIEF JUDGE
29
Case 3:21-cr-30059-RAL Document 87 Filed 05/09/22 Page 29 of 29 PageID #: <pageID>