United States District Court, D. South Dakota, Southern Division
REPORT & RECOMMENDATION
VERONICA L. DUFFY, United States Magistrate Judge
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,
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.
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.
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
police department, Detective Gene Miller interviewed Mr.
Hulscher in the presence of Sgt. Johnson. Id. After
being advised of his Miranda 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.
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.
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
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
1. The content of any texts, including but not limited to
incoellular communication devices.
3. The content of the address book for the cellular
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
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.
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.
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.
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.
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
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.
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.
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
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.
Fourth Amendment Law
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.
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).
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).
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.
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