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United States v. Highbull

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

April 14, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
TERANCE MORICE HIGHBULL, Defendant.

          ORDER ADOPTING REPORT AND RECOMMENDATION AS MODIFIED AND DENYING MOTION TO SUPPRESS

          KAREN E. SCHREIER UNITED STATES DISTRICT JUDGE.

         Defendant, Terance Morice Highbull, is charged with sexual exploitation of a child in violation of 18 U.S.C. §§ 2251(a) and 2251(e). Docket 6. Highbull moves to suppress all evidence obtained from the search of his car on February 9, 2015, and all evidence obtained from a search of his cellular phone on May 21, 2015. Docket 31. The court referred the motion under 28 U.S.C. § 636(b)(1)(B) to United States Magistrate Judge Veronica L. Duffy for a report and recommendation.

         Magistrate Judge Duffy held an evidentiary hearing on March 2, 2017. On March 14, 2017, Magistrate Judge Duffy issued a report and recommendation denying Highbull's motion in full. Docket 40. Highbull filed objections to the report and recommendation. Docket 42. The report and recommendation is adopted as modified by this opinion.

         LEGAL STANDARD

         This court's review of a magistrate judge's report and recommendation is governed by 28 U.S.C. § 636 and Rule 72 of the Federal Rules of Civil Procedure. The court reviews de novo any objections to the magistrate judge's recommendations with respect to dispositive matters that are timely made and specific. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). Because motions to suppress evidence are considered dispositive matters, a magistrate judge's recommendation regarding such a motion is subject to de novo review. 28 U.S.C. § 636(b)(1)(A); see also United States v. Raddatz, 447 U.S. 667, 673 (1980). In conducting a de novo review, this court may then “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1); see also United States v. Craft, 30 F.3d 1044, 1045 (8th Cir. 1994).

         BACKGROUND

         Highbull does not object to Magistrate Judge Duffy's findings of fact. Docket 42 at 2. A full recitation of the facts can be found in Magistrate Judge Duffy's report and recommendation. Docket 40. Here, the court summarizes the facts relevant to Highbull's objections to the report and recommendation:

         The Sioux Falls Police Department received a call on February 9, 2015, that a family dispute was in progress at a Sioux Falls apartment. Officer Andrew Mattson responded to the call. When Officer Mattson arrived on scene, Michelle Janis waived him down. Janis told Officer Mattson that Highbull ran behind the apartment. Officer Mattson asked why Highbull was running, and Janis responded, “He knows I turned him in.” Officer Mattson asked what was happening, and Janis replied, “I wanted to sign a complaint on him. He went and had pictures of my daughter naked, and she's only 13. And I told him, he was just here, and he looked out the door and he seen you guys and he took off running.”

         Officer Mattson continued to talk with Janis as Janis entered her apartment and checked on the children in the apartment. Officer Mattson remained in the hallway with the door open. Janis then said, “That's his car running out there so you better watch his car.” Officer Mattson told dispatch and his cover officer who was in route to the scene that Highbull ran out the back door.

         Janis and Officer Mattson then went out to Highbull's car. Janis turned off the car and explained that Highbull was picking up his daughter. Janis told Officer Mattson she had her son call the police. Janis then went back into her apartment to lock her back door in case Highbull returned. Janis then stepped outside to talk with Officer Mattson. Janis explained that Highbull was harassing her because Janis refused to let Highbull see their infant daughter. Earlier Highbull had told Janis's son that Highbull had had sexual contact with Janis's 13 year old daughter (who was not his child). Janis had started looking through Highbull's phone and had seen nude pictures of her daughter.

         At this point, Officer Mattson asked, “Do you have the phone?” Janis responded by walking to Highbull's car and saying, “Um, I don't know if it's this . . . I think it's . . . I don't know . . . I think he does have one. He probably got rid of it or whatever . . . the one I went through had pictures of my daughter.” Janis then got into Highbull's car and withdrew Highbull's white Samsung Galaxy cell phone. Janis told Officer Mattson, “You see, I don't know how to get into ‘em, but I just so happened to look in the gallery, and it showed up.” Officer Mattson asked if this was the correct phone, and Janis replied, “I'm pretty sure it is.” Janis added, “I mean I've never seen it, or seen anything of it, but I know that I saw pictures of my naked, of my daughter naked, and she's only 13 years old.” Janis and Officer Mattson continued to talk, and Janis eventually handed Officer Mattson the phone. Officer Mattson looked through the phone's gallery and showed Janis some of the photographs. Officer Matson asked if any of the photographs were some of the photographs Janis had seen.

         Janis replied, “No. These were in the phone-I mean, I don't know how they popped up, but it just popped up. But deep in that phone where, in like passwords and s-t I can't get into. ‘Cause when I seen ‘em he took his phone.” Officer Mattson asked Janis what she meant by deeper in the phone, and Janis replied, “There . . . he's got a lot of pictures on Google and he's got passwords for all of ‘em.” Officer Mattson then asked how many pictures were in the phone, and Janis replied that there were about six pictures in the phone. Janis said that her daughter was nude in each picture and that her daughter was sitting on Janis's bed.

         Officer Mattson said he could not find the pictures on the phone and asked for more information about Highbull. Officer Mattson explained he could not arrest Highbull solely on Janis's statements, and Officer Mattson took the phone for further investigation. Officer Mattson entered the phone into evidence at police headquarters and completed a written report summarizing his investigation at Janis's apartment.

         On February 11, 2015, Sergeant Jessica Speckmeier with the Sioux Falls Police Department's Crimes Against Persons Unit began her investigation of Highbull. Sergeant Speckmeier, who was a detective at the time, contacted Janis to ask follow up questions. Janis explained that the photographs of her daughter were not in the phone's gallery, but in a hidden application. Sergeant Speckmeier thought this was both plausible and feasible given the type of phone Highbull owned and Janis's description of how she found the photographs. ...


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