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United States v. Hulscher

United States District Court, D. South Dakota, Southern Division

February 10, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
ROBERT JOHN HULSCHER, Defendant.

          REPORT & RECOMMENDATION

          VERONICA L. DUFFY, United States Magistrate Judge

         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(1) 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.

         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 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 Miranda[1] 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 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 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 incoellular 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.ming 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 c

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 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 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. 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 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).

         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.

         “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 ...


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