United States District Court, D. South Dakota, Southern Division
ORDER ADOPTING REPORT AND RECOMMENDATION AS MODIFIED
AND DENYING MOTION TO SUPPRESS
E. SCHREIER UNITED STATES DISTRICT JUDGE.
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.
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.
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).
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
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.”
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.
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
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.
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.
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
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.