Case 4:16-cr-40070-KES Document 262 Filed 02/17/17 Page 1 of 11 PageID #: 893

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
vs.

4:16-CR-40070-01-KES
ORDER ADOPTING REPORT AND
RECOMMENDATION GRANTING
MOTION TO SUPPRESS

ROBERT JOHN HULSCHER,
Defendant.

NATURE AND PROCEDURE OF THE CASE
Defendant Robert John Hulscher is charged with two counts: (1) stealing
firearms and aiding and abetting stealing firearms under 18 U.S.C. §§ 924(1)
and 924(2); and (2) felon in possession of firearms under 18 U.S.C. § 922(g)(1).
Hulscher moves to suppress “all evidence from the advanced logical extraction”
of his cell phone. Docket 223 at 1. The motion was referred to United States
Magistrate Judge Duffy for a report and recommendation pursuant to 28
U.S.C. § 636(b)(1)(B).
During the evidentiary hearing, neither party provided testimony, but the
court received eleven exhibits. The court also took judicial notice of the exhibits
submitted with the parties’ briefs on Hulscher’s motion to suppress. For the
following reasons, the report and recommendation is adopted as modified by
this opinion.

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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 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).
FACTS
Hulscher’s motion to suppress revolves around the review of his cell
phone data by two law enforcement agencies: (1) the Huron Police Department
and (2) the Bureau of Alcohol, Tobacco, and Firearms (ATF). Both agencies
investigated Hulscher on unrelated charges. The Huron Police Department
investigated Hulscher on forgery, counterfeiting, and identity theft charges.
ATF investigated Hulscher for various firearm offenses. During the
investigation by the Huron Police Department, Sergeant Mark Johnson applied
for a warrant to search Hulscher’s Apple iPhone. The Third Judicial Circuit of
South Dakota issued a search warrant allowing any law enforcement officer in
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Beadle County to search the iPhone for “(1) The content of any texts, including
but not limited to incoming 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 cellular communication devices. (3) The
content of the address book for the cellular communication devices. (4) Video
and/or photographs on the phones 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.” Exhibit 2 at 1-2.
Detective Casey Spinsby of the Huron Police Department extracted the
data from the iPhone and created a digital copy. Detective Spinsby performed a
search of the data, and in his official report, Detective Spinsby noted several
pieces of evidence related to the Huron investigation. Detective Spinsby also
noted 531 messages related to the sale, use, or purchase of illegal drugs. As
part of his analysis of the cell phone, Detective Spinsby “segregated the data on
the phone that was relevant to the Huron state court prosecution and saved
that data separately.” Docket 251 at 6 (citing Exhibit F). Hulscher later pleaded
guilty to one charge of Grand Theft-More than $1,000 and Less than or equal
to $2,500. Detective Spinsby was not looking for and did not find any
information related to the illegal possession of firearms.
In preparation for Hulscher’s federal trial, ATF Agent Brent Fair reviewed
a National Crime Information Center report on Hulscher. The report indicated
that Hulscher had been arrested by the Huron Police Department. Agent Fair
contacted the Huron Police Department and learned that it had data taken
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from Hulscher’s iPhone. Agent Fair requested a copy of the data and initially
received a DVD disc containing Detective Spinsby’s segregated data (Exhibit F)
that related only to the state charges. Agent Fair then contacted the Huron
Police Department again and discovered that the Huron Police Department also
had a complete, unsegregated digital copy of Hulscher’s iPhone data. Because
the complete digital copy of Hulscher’s iPhone data could not be sent
electronically, Agent Fair drove to Huron with another ATF agent, obtained a
complete digital copy of Hulscher’s iPhone data, and reviewed the data on his
return to Sioux Falls. Agent Fair did not get a search warrant before he
reviewed the data.
The government then notified Hulscher’s counsel that it intended to use
the complete, unsegregated iPhone data (Exhibit E) at trial. Hulscher
responded by filing this motion to suppress the complete, unsegregated iPhone
data (Exhibit E). Hulscher does not appear to object to the admission of the
segregated data (Exhibit F). See Docket 224 at 5, 7, 9, and 10. Magistrate
Judge Duffy held a hearing on the motion and issued a report and
recommendation granting Hulscher’s motion to suppress. The government has
filed its responsive brief and has four primary objections: (1) that Agent Fair’s
review of the iPhone data constituted a search within the meaning of the
Fourth Amendment; (2) that Agent Fair did not have knowledge of the Beadle
County warrant; (3) that the plain view doctrine does not apply; and (4) that
the exclusionary rule should apply to this case.

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DISCUSSION
I.

Agent Fair conducted a search of Hulscher’s iPhone.
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. The government, however, argues that
Agent Fair never conducted a search of Hulscher’s iPhone. Docket 255 at 1-2.
The government argues Agent Fair merely conducted a subsequent viewing of
evidence that had already been seized.1 Id. Thus, the issue before the court is
whether a subsequent viewing of a copy of electronic data from a cell phone
constitutes a search when the data was collected under a valid search warrant
and was unresponsive to that warrant.
This specific fact scenario is relatively new to Fourth Amendment
analysis, and as noted by Professor Orin Kerr, “[e]xisting precedents dealing
with the treatment of copies of seized property are surprisingly difficult to find.”
Searches and Seizures in a Digital World, 119 Harv. L. Rev. 531, 562 (2005).
Despite the lack of precedent on how courts should treat digital copies of
electronic information, “[t]here are two obvious choices: courts can treat
searches of copies just like searches of originals or else treat copies merely as
data stored on government-owned property.” Id. Here, the government argues
for the latter. The government argues that cell phone data can be shared
among law enforcement agencies like a box of physical evidence.
Hulscher’s brief appears only to object to the search of the non-segregated,
nonresponsive data (Exhibit E). See Docket 224 at 5, 7, 9, and 10. Because the
parties’ disagreement is limited to the complete, unsegregated data, the court
limits the application of this opinion to the data in dispute.
1

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As the Supreme Court explained in Riley, however, cell phone data is not
the same as physical evidence. In Riley, the issue before the Supreme Court
was whether cell phones could be searched incident to arrest like other
physical objects found on arrestees. Riley v. California, 134 S. Ct. 2473, 2482
(2014). The court held that because cell phones contain immense amounts of
personal information about people’s lives, they are unique, and law
enforcement “officers must generally secure a warrant before conducting such
a search.” Id. at 2485. This court reaches a similar conclusion. As explained by
Magistrate Judge Duffy, “[t]he chief evil [that] the Fourth Amendment was
intended to address was the hated ‘general warrant’ of the British crown.”
Docket 251 at 10 (citing Payton v. New York, 445 U.S. 573, 583-84 (1980)). If
the scope of the Beadle County warrant was not limited to the Hurron Police
Department’s counterfeiting investigation, the search warrant would have been
an invalid “general warrant.” Id. at 16 (citations omitted). As explained by
Magistrate Judge Duffy, “[t]he conclusion is inescapable: Agent Fair should
have applied for and obtained a second warrant [that] would have authorized
him to search Mr. Hulscher’s cell phone data for evidence of firearms offenses.”
Id. at 32 (citations omitted).
The government argues that this conclusion is “impractical and is
contrary to the nature of police investigations and collaborative law
enforcement among different agencies.” Docket 255 at 1-2. The government’s
position, however, overlooks the ultimate touchstone of the Fourth
Amendment: reasonableness. Riley, 134 S. Ct. at 2482. According to the
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government, law enforcement agencies can permanently save all unresponsive
data collected from a cell phone after a search for future prosecutions on
unrelated charges. If the government’s argument is taken to its natural
conclusion, then this opens the door to pretextual searches of a person’s cell
phone for evidence of other crimes. Under the government’s view, law
enforcement officers could get a warrant to search an individual’s cell phone for
minor infractions and then use the data to prosecute felony crimes. No limit
would be placed on the government’s use or retention of unresponsive cell
phone data collected under a valid warrant.
As the Supreme Court noted in Riley, cell phone data can include
immense amounts of information such as “thousands of photos,” months of
correspondence, or “every bank statement from the last five years.” Id. at 2493.
The search of a cell phone can provide far more information than the most
exhaustive search of a house. Id. at 2491. This is especially true because cell
phones collect many different kinds of data in one place such as “an address, a
note, a prescription, a bank statement, a video . . . .” Id. at 2489. “The sum of
an individual’s private life can be reconstructed through a thousand
photographs labeled with dates, locations, and descriptions . . . .” Id. The
government’s position, which would allow for mass retention of unresponsive
cell phone data, is simply inconsistent with the protections of the Fourth
Amendment. The government’s objection on this point is overruled.

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II.

Whether Agent Fair knew about the Beadle County warrant is not
relevant.
The government objects to Magistrate Judge Duffy’s conclusion that

“Agent Fair cannot be said to have acted pursuant to a search warrant . . . .”
Docket 255 at 2; Docket 251 at 15. The government, however, introduced no
evidence that Agent Fair knew about the warrant. But even if Agent Fair was
aware of the Beadle County warrant, the warrant was limited to a search for
evidence relating to the counterfeiting charges, and “a reasonable officer who
read the search warrant would have known that.” Docket 251 at 20. Thus, at
best, the government’s position is that Agent Fair knew about the Beadle
County search warrant and disregarded its parameters. Under either fact
scenario— Agent Fair knew about the warrant or did not know about the
warrant—a “reasonably well-trained officer would have known that the search
was illegal despite the issuing judge’s authorization.” Docket 251 at 19-20
(citing United States v. Hudspeth, 525 F.3d 667, 676 (8th Cir. 2008).
III.

The plain view exception does not apply to this case.
The government “objects to the conclusion that the plain view exception

is not applicable [to this case].” Docket 255 at 3. In Horton v. California, 496
U.S. 128, 135 (1990), the United States Supreme Court explained that the
plain view doctrine applies when law enforcement has a prior justification for a
search and inadvertently comes across a piece of incriminating evidence. As
explained above, Agent Fair’s search of the complete, unsegregated iPhone data
lacked a sufficient justification. Thus, the plain view doctrine does not apply.
The government’s objection on this point is overruled.
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The government also objects to the conclusion that the plain view
doctrine does not apply to digital searches generally. Because this court can
rule on the suppression motion based solely on the facts of this case, the
government’s objection is sustained on this point.
IV.

The exclusionary rule applies to the iPhone data.
A violation of the Fourth Amendment does not automatically trigger the

application of the exclusionary rule. Herring v. United States, 555 U.S. 135, 141
(2009) (citing United States v. Leon, 468 U.S. 897, 905-06 (1984)). The court
must determine “the efficacy of the rule in deterring Fourth Amendment
violations in the future.” Id. at 141 (citing United States v. Calandra, 414 U.S.
338, 347-355 (1974); Stone v. Powell, 428 U.S. 465, 486 (1976)). The court
must weigh the benefits of applying the rule against its costs. Id. When
weighing these competing values, the balance—in this case—tips toward
excluding the iPhone data. See id. (citing Leon, 468 U.S. at 910).
As noted by the Supreme Court in Herring, “[t]he principle cost of
applying the [exclusionary] rule is, of course, letting guilty and possibly
dangerous defendants go free . . . .” Id. (quoting Leon, 468 U.S. at 908). Here,
the cost of applying the exclusionary rule is minimized because the evidence is
peripheral in nature and not directly related to the firearms offense. The
government’s actions also suggest the evidence is not necessary for a
conviction. Prior to Agent Fair’s search of the iPhone data, the government was
ready to proceed with trial on January 3, 2017. Minutes before voir dire, the
parties addressed a late discovery issue, and the court granted a continuance.
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If the issue had not come before the court, the government would have tried its
case, and the iPhone data would not have been used. In contrast, the benefits
of applying the exclusionary rule in this case are clear. If the exclusionary rule
is not applied, law enforcement agencies will have carte blanche authority to
obtain a warrant for all data on a cell phone, keep the unresponsive data
forever, and then later use the data for criminal prosecutions on unrelated
charges—erasing the protections specifically contemplated in Riley. Based on
this weighing, the government’s objection is overruled on this point. The
unsegregated iPhone data (Exhibit E) is suppressed.
Although the issue was not explicitly addressed in the parties’ briefs or
the hearing before Magistrate Judge Duffy, the court notes that the iPhone data
may be used for impeachment purposes if Hulscher testifies at trial. The Eighth
Circuit Court of Appeals has explained that “illegally seized evidence, even if
inadmissible, may be used to impeach a testifying defendant.” United States v.
Rowley, 975 F.2d 1357, 1361 (8th Cir. 1992). Thus, if Hulsher testifies at trial
and his testimony is inconsistent with the iPhone data, the data may be used
for impeachment.
CONCLUSION
The government’s review of Hulscher’s unsegregated iPhone data
constituted a search under the Fourth Amendment. Because the Leon good
faith exception and the plain view doctrine do not apply, the government’s
search of Hulscher’s iPhone data violated Hulcher’s Fourth Amendment rights.
Because the benefits of applying the exclusionary rule outweigh the costs of
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applying the rule, the unsegregated iPhone data is excluded. Therefore, it is
ORDERED
(1) That government’s objections 1, 2, 4, 5, and 6 are overruled.
(2) That government’s objection 3 is sustained.
(3) That Magistrate Judge Duffy’s report and recommendation
[Docket 251] is adopted as modified by this order.
(4) That Hulscher’s motion to suppress Exhibit E and all evidence related
to Exhibit E (Docket 223) is granted.
DATED this 17th day of February, 2017.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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