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UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

United States of America,

Case No. 19-cr-250 (WMW/ECW)

Plaintiff,
v.

REPORT AND RECOMMENDATION

Johnnie Lamar Haynes,
Defendant.

On September 26, 2019, Defendant Johnnie Lamar Haynes (“Haynes” or
“Defendant”) was indicted on two counts of Felon in Possession of a Firearm in violation
of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). (Dkt. 1.) This matter is before the Court on
Defendant’s Motion to Suppress Search and Seizure (Dkt. 35) (“Motion”) and
Defendant’s Supplemental Motion to Suppress Search and Seizure (Dkt. 59)
(“Supplemental Motion”). The Court held a hearing on February 3, 2020, at which the
Government presented two witnesses and offered eight exhibits. Thomas CalhounLopez, Assistant U.S. Attorney, appeared on behalf of the United States of America and
George Dunn appeared on behalf of Defendant Johnnie Lamar Haynes, who was present
at the hearing. This case has been referred to the undersigned United States Magistrate
Judge for a report and recommendation pursuant to 28 U.S.C. § 636 and Local Rule 72.1.
For the reasons stated below, the Court recommends that Defendant’s Motion to
Suppress Search and Seizure (Dkt. 35) and Supplemental Motion to Suppress Search and
Seizure (Dkt. 59) be denied.

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I.
A.

FACTUAL BACKGROUND

TFO Lepinski’s Investigation and Arrest of Haynes
At the February 3, 2020 hearing, Sergeant Adam Lepinski of the Minneapolis

Police Department (“MPD”), who is assigned as a Task Force Officer (“TFO”) to the
Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”), testified about his
investigation of a shooting that occurred at a gas station in North Minneapolis, Minnesota
on August 5, 2019. (Tr. at 12-14.) 1 According to TFO Lepinski, an occupied vehicle
was shot at, but the occupants never came forward to the authorities about the incident.
(Id. at 14.) TFO Lepinski testified that Haynes was a suspect in the shooting. (Id.) TFO
Lepinski issued a probable cause pickup for Haynes. (Id. at 15.) He also sought Haynes’
arrest pursuant to an active Department of Corrections warrant in connection with a
parole violation. (Id.)
TFO Lepinski testified that on August 17, 2019, he was working an off-duty job at
a parking lot in the 500 block between Hennepin and 1st Avenue North in the bar district
of downtown Minneapolis. (Id. at 16.) On the same night, TFO Lepinski saw Haynes on
5th Street between Hennepin and 1st Avenue North. (Id. at 16-17.) Haynes was walking
down the sidewalk and TFO Lepinski was walking in the opposite direction. (Id. at 17.)
TFO Lepinski, who was in a full MPD uniform, stopped Haynes and placed him in
handcuffs. (Id.) TFO Lepinski patted down Haynes and did not feel any handguns or
any other obvious weapons. (Id. at 17-18.) However, TFO Lepinski felt what he

1

A copy of the hearing transcript (“Tr.”) can be found at Docket Entry 79.

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believed to be a cell phone in Haynes’s pocket. (Id. at 18.) TFO Lepinski left the cell
phone in Haynes’s pocket and walked him to the First Precinct, located one block from
the parking lot. (Id.)
Next, TFO Lepinski conducted a full search incident to arrest and removed
Haynes’s cell phone, an Apple iPhone, white in color with pinkish colored case and a
cracked screen protector, from his pocket. (Id. at 18, 20.) TFO Lepinski believed that
the phone was the same cell phone as one recorded in surveillance video of the shooting,
although he was not certain. (Id. at 31-32; Gov’t Ex. 4 at 1-3 (“August 2019 Affidavit”).)
TFO Lepinski testified that the cell phone was locked when he took the phone out of
Haynes’s pocket. (Tr. at 19.) Haynes was placed in a holding cell and TFO Lepinski
took possession of the cell phone. (Id. at 18-19.)
B.

Unlocking and Search of Haynes’s Cell Phone
TFO Lepinski’s body camera captured some of his interactions with Haynes. (Id.

at 22; Gov’t Exs. 1-3.) While Haynes was initially in the holding cell, TFO Lepinski
believed that Haynes was not telling the truth about his name. (Tr. at 19-20; Gov’t Ex. 1
(“Bodycam Footage No. 1”) at 0:42-1:42.) Haynes eventually told TFO Lepinski that he
was in fact Johnnie Haynes. (Id.)
While in the holding cell, Haynes asked TFO Lepinski for several phone numbers
from his cell phone when he learned he would be spending the night in jail. (Tr. at 18;
Gov’t Ex. 1 at 2:33-2:35.) TFO Lepinski responded “If you want me to write some
numbers down, I can do that out of your phone.” (Gov’t Ex. 1 at 2:35-2:39.) Haynes’
cell phone was locked at this point. (Tr. at 20.) TFO Lepinski provided the cell phone to

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Haynes, who then unlocked it with his thumbprint. (Tr. at 19; Gov’t Ex. 1 at 2:40-2:51.)
Haynes then asked if he could call his wife, and TFO Lepinski replied “Let me write
down a couple of numbers for you, OK?” and “I don’t want you making any calls right
now, but you can write down some numbers, if you want, or I’ll write them down.”
(Gov’t Ex. 1 at 3:00-3:13.) TFO Lepinski handed the phone to Haynes, who held the
phone and read several phone numbers out loud while TFO Lepinski wrote them down on
a piece of paper. (Tr. at 19; Gov’t Ex. 1 at 3:14-4:26.) While reading numbers with the
phone in his hand, Haynes said “This the last number right here, man. And then I’m
going to turn my phone off.” (Gov’t Ex. 1 at 4:26-4:34.) Haynes then asked to speak to
someone at the front desk, and after TFO Lepinski said Haynes could not but that he was
“being real cool in giving [Haynes] all the numbers,” Haynes gave TFO Lepinski the
final number and handed the phone back to him, who took it, gave Haynes the paper with
the numbers, closed the holding cell door, and went to his computer. (Id. at 4:44-5:33.)
Bodycam Footage No. 1 shows the screen was dark when TFO Lepinski received the
phone from Haynes and that, when TFO Lepinski touched the screen after closing the
holding cell door, the screen lit up displaying icons, i.e., that the phone was in an
unlocked state. (Id. at 5:30-5:31.) Lepinski testified that while Haynes was in the
holding cell, Haynes asked TFO Lepinski about locking his cell phone as TFO Lepinski
was leaving the holding cell. (Id. at 29.)
TFO Lepinski testified that after the initial interaction with Haynes, he went to a
computer down the hallway and filled out some paperwork. (Id. at 23.) After “a matter
of minutes,” TFO Lepinski changed the settings on the cell phone, which was still
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unlocked. (Id.) TFO Lepinski disabled the automatic-lock feature by changing the
settings to a setting called “never lock” to prevent the screen from going to sleep or
locking. (Id. at 20.) TFO Lepinski believed this was the first instance where he had
changed the settings on a cell phone. (Id. at 33.) TFO Lepinski testified that he changed
the settings because he did not have the passcode for the phone and believed that he
would be able to get into the phone easier to get the data off the phone if it remained
unlocked. (Id. at 21, 30.) According to TFO Lepinski, the cell phone must go through a
certain process to extract data from it. (Id. at 32.) This process is easier for unlocked
phones. (Id. at 33.) However, he also testified that the same information can be retrieved
without the passcode, it just takes longer. (Id.) TFO further testified that he did not
know on August 17, 2019, when interacting with Haynes, that the lab could open phones
without a passcode, and that he only learned this information when preparing for the
February 3 hearing. (Id. at 51; see also id. at 39 (later learned crime lab could open
phones without a passcode).)
TFO Lepinski later testified that he did not remember the exact steps he took to
change the settings to prevent the phone from locking. (Id. at 34.) TFO Lepinski agreed
that there were at least “five different things” he had to do to successfully change the
settings. (Id. at 35.) TFO Lepinski also testified that he did not have access to a Faraday
box, which prevents the phone from having cellular communication or connection to a
network. (Id. at 35-36.) Consequently, TFO Lepinski set the phone to “airplane” mode
to prevent the phone from getting wiped remotely by the user or another party. (Id. at 3739.)
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TFO Lepinski testified that he intended to obtain a search warrant for Haynes’s
cell phone. (Id. at 21.) Other than looking through the cell phone’s contact list with
Haynes, TFO Lepinski testified that he did not view or access the phone’s content when
he changed the settings. (Id.) Specifically, TFO Lepinski testified that he did not look at
any photographs, videos, texts, or any contacts other than the ones he had shared with
Haynes at his request, or anything else substantive on the cell phone. (Id. at 21-22.)
TFO Lepinski testified that even though the cell phone was unlocked, he was still
interested in obtaining the cell phone’s passcode in case it locked. (Id. at 24.) TFO
Lepinski agreed that Haynes considered the information on his cell phone to be his
private information. (Id. at 30.) TFO Lepinski testified that it is his general practice to
ask for the passcode. (Id.) When Haynes was being transported from the holding cell to
the squad car, he asked for an additional phone number. (Gov’t Ex. 2 at 1:10-1:18.) TFO
Lepinski asked Haynes for the passcode “so I can get back into your phone,” and Haynes
indicated he would use his thumb to open the phone again because his phone did not have
a passcode. (Id. at 1:23-1:34.) As Haynes was being placed in the squad car, he asked
about his phone and TFO Lepinski told him “it’s still sitting open, it hasn’t locked yet.”
(Id. at 3:37-3:43.) TFO Lepinski told Haynes that if he was willing to give TFO Lepinski
the passcode, it would help him get his phone back faster. (Gov’t Ex. 2 at 3:48-3:58.) As
Haynes was being placed in the car, he asked, “is my phone still unlocked” and TFO
Lepinski responded, “I think so.” (Id. at 5:39-5:41.) TFO Lepinski testified that at this
juncture, he was still thinking about the warrant he was going to obtain for the cell phone.
(Tr. at 24-25.)
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At Haynes’s request, TFO Lepinski went back inside the precinct and retrieved
another phone number from Haynes’s cell phone. (Id. at 25.) After writing down the
phone number on a piece of paper, TFO Lepinski placed the cell phone in a manila
envelope, held the envelope flat to prevent the phone from locking, and returned to the
squad car. (Tr. at 25-26; Gov’t Ex. 3 (“Bodycam Footage No. 3”) at 0:00-0:38.) TFO
Lepinski handed the piece of paper to the officer in the squad car and notified Haynes of
that action. (Gov’t Ex. 3 at 0:37-0:40.) At that time, Haynes asked TFO Lepinski “Did
you lock my phone back up? Is it locked up?” (Id. at 0:45-0:49.) TFO Lepinski,
carrying the phone in the manila envelope, said the phone was “right here” and would be
property inventoried. (Id. at 0:47-0:50.) Haynes responded, “But did you lock it up” and
TFO Lepinski responded, “Yes, it is,” to which Haynes continued, “or did you go in it?”
(Id. at 0:50-0:52.) TFO Lepinski replied, “I got the number out of it. You asked me to,
right?” and Haynes responded, “Oh, OK. Yeah.” (Id. at 0:52-0:57.) TFO Lepinski
testified that the cell phone was actually unlocked when he told Haynes that it was
locked. (Tr. at 28.)
Next, TFO Lepinski had two uniformed officers transport Haynes to the jail before
returning to his job at the parking lot. (Tr. at 42.) At some point during or after his shift
at the parking lot, TFO Lepinski brought the phone to the violent crimes office in
downtown Minneapolis and plugged it in a docking station for phones awaiting search
warrants. (Id. at 43-44.) The phone sat unattended until TFO Lepinski returned to work
on Monday evening. (Id. at 44.)

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TFO Lepinski submitted an Application for Search Warrant on August 19, 2019.
(Gov’t Ex. 4.) TFO Lepinski’s August 2019 Affidavit alleged the following relevant
facts in support of the Application:
• On 08/05/2019, Minneapolis Police responded to a ShotSpotter
activation at Lowry AV N and Logan AV N. Upon arrival, they
located multiple discharged cartridge casings and a handgun
magazine. The victim(s) and suspect(s) were gone when officers
arrived.
• Surveillance video was obtained from two sources that show what
transpired before and after the shooting. The suspect in the video is
shown at the gas station and shown purchasing a Western Union
using a fake name of “JOHN HART”. The suspect is then observed
on video surveillance taking a photograph of the Western Union
receipt with his cell phone, which is an Apple iPhone in a pinkish
colored case and believed to be the exact same phone listed on this
warrant. After taking the photograph of the receipt, the suspect then
goes outside the gas station, appears to obtain a handgun from
another individual and shoots at least 13 times at a blue Pontiac G6.
Two bullets travel into a nearby business that is occupied by
multiple employees. No victims from the Pontiac came forward to
police and it is believed that no occupants were struck, although the
vehicle was occupied by at least three individuals. The individual
who the shooter gets the gun from appears to come to the gas station
in a hurry and likely was called by the suspect to bring the gun to his
location.
• After shooting, the suspect fled the area and the handgun magazine
was recovered by police in the path of his flight.
• Prior to the shooting, the surveillance video shows the suspect
exiting the front passenger seat of a grey colored Dodge Challenger,
MN license WYXXX. The vehicle is in the gas station lot. A black
female, later identified as A.H., is the driver of this vehicle in the
video.
• TFO Lepinski spoke with a confidential reliable informant (“CRI”)
about the case and showed a still photo of the suspect from the
surveillance video to the CRI. The CRI identified the suspect as
“Bad Ass”. Minneapolis Police database shows the moniker of “Bad
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Ass” as belonging to Johnnie Lamar Haynes, date of birth
03/24/1989. Haynes is a multi-convicted felon and thus a person
prohibited from possessing a firearm.
• TFO Lepinski compared the surveillance video of the shooter to
HAYNES and they appear to be the same person.
• On 08/09/2019, Minneapolis Police patrol officers located the Dodge
Challenger and conducted a traffic stop on the vehicle. TFO
Lepinski had previously placed an Attempt to Locate on this vehicle
to the online MPD Daily Intelligence Board. When officers stopped
the vehicle, the registered owner, A.H., was the driver and sole
occupant of the vehicle. TFO Lepinski requested that the vehicle be
towed. A.H. said she was willing to provide a statement about the
shots fired incident. TFO Lepinski conducted an audio/video
recorded interview with A.H. During that interview, she said she
was at the gas station with “Johnnie” and identified HAYNES in a
video surveillance still shot. A.H. provided TFO Lepinski her phone
number as 773-368-XXXX and showed TFO Lepinski her phone
call log from 8/5/19. TFO Lepinski observed the phone number of
320-455-XXXX listed multiple times on her call log on 8/5/19. A
query was done on this number, which showed the subscriber as
“JOHN HART”, which is the same name that was listed on the
Western Union receipt. “John Hart” appears to be an alias used by
HAYNES.
• TFO Lepinski drafted a search warrant for “Call detail records” with
historical cell tower data for numbers for HAYNES and A.H. The
records showed both HAYNES and A.H. at the scene of the
shooting. Furthermore, the records for HAYNES showed that he
had contact with two numbers right before the shooting, one of
which is presumably the person who brought him the handgun.
Through various investigative techniques, TFO Lepinski believed
the person who brought the handgun to HAYNES is Cortez L.
SHIPP, a known associate of HAYNES. By viewing HAYNES’
phone contact list, TFO Lepinski stated that he would be able to
compare the numbers from the call detail records to the contacts
listed in his phone.
• On 8/17/2019, at approximately 0130 hrs, TFO Lepinski was
working off-duty in downtown Minneapolis, when he observed
HAYNES walking down 5th Street North by 1st Avenue North.
TFO Lepinski approached and arrested HAYNES for PC
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Assault/Felon in possession of a weapon related to this case, along
with an outstanding warrant from DOC. When TFO Lepinski
searched Haynes incident to arrest, the listed Apple iPhone, was
located in HAYNES’ pants pocket. The phone was taken into
evidence and HAYNES was booked into jail, where he remains.
• Furthermore, TFO Lepinski believes the listed phone will contain
contact information for the person who HAYNES called (Cortez
Shipp) to bring the gun to the scene.
(Gov’t Ex. 4 at 1-3.) TFO Lepinski believed Haynes’ phone would contain the
photograph he took of the Western Union receipt, which he thought would confirm
whether he was the shooter in the case. (Id. at 3.) TFO Lepinski also believed that
Haynes’s cell phone would contain contact information for the individual that allegedly
brought the gun to Haynes. (Id.)
On August 20, 2019, TFO Lepinski obtained the search warrant for Haynes’s cell
phone. (Tr. at 26-27; Gov’t Ex. 4.) TFO Lepinski testified that he did not include
anything in the probable cause section of the warrant’s application relating to what he
saw in the cell phone while changing its settings. (Tr. at 27.) TFO Lepinski also testified
that the change in the lock settings did not affect the affidavit for the warrant he
submitted. (Id. at 28.) After TFO Lepinski obtained the search warrant, he brought
Haynes’s cell phone to the crime lab. (Id. at 48.) TFO Lepinski testified that he did not
look through the phone after he brought it to the crime lab. (Id. at 49.) TFO Lepinski
submitted a work request form asking the crime lab to search the phone. (Id. at 56.)
Officer Michael Gustafson, a computer forensic examiner with the MPD Crime
Lab, also testified at the February 3, 2020 hearing. (Id. at 53-68.) Officer Gustafson
testified that he searched Haynes’s cell phone on August 21, 2019 using a forensic tool
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called GrayKey. (Id. at 55.) GrayKey is only available only to law enforcement. (Id. at
57.) Officer Gustafson testified that GrayKey analyzes devices with an automated
process. (Id.) According to Officer Gustafson, if the device is unlocked, the device will
“ask you to trust it, which is called paired mode.” (Id.) Officer Gustafson testified that
when TFO Lepinski delivered Haynes’s cell phone, “it was on, the screen was on, and the
phone appeared to be unlocked.” (Id.)
When Officer Gustafson connected Haynes’s cell phone to GrayKey, the cell
phone asked him if he wanted to trust the device. (Id.) Officer Gustafson told the cell
phone to trust GrayKey, which then prompted him to enter the cell phone’s passcode.
(Id. at 58.) In order to trust the cell phone and put it into paired mode, the passcode is
still required. (Id. at 61.) At that point, GrayKey allows one minute to enter the passcode
before proceeding with its procedure as though the device was locked. (Id.) Gustafson
testified that because he did not enter the passcode, GrayKey began its initial access
procedure and attempted to gain access to the cell phone by working around the cell
phone’s security. (Id. at 59.)
The initial access procedure would have processed faster had the passcode been
entered. (Id.) Without the passcode, some of the cell phone’s information could not be
accessed including some health-related data, some pictures, and some videos. (Id.)
Officer Gustafson testified that even if the phone had been locked when connected to the
GrayKey, it would have made “no difference” on his search. (Id.) Officer Gustafson
explained that “because [he] didn’t have the passcode to trust the GrayKey and [he]
couldn’t complete that digital handshake, the GrayKey proceeded as though the device’s
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passcode was active.” (Id. at 60.) When a cell phone is left on, Officer Gustafson
testified that it is in a less secure state called “after first unlock” or “AFU.” (Id.) In these
circumstances, GrayKey can extract most of the cell phone’s data, even without a
passcode. (Id.) Because Officer Gustafson did not have the passcode, GrayKey treated
the phone as if it was locked. (Id.) Officer Gustafson was unaware that TFO Lepinski
had changed the settings on the phone until he attempted to trust the device. (Id.)
Officer Gustafson later testified that “[t]he GrayKey cannot access 100 percent of
Apple devices, but I would say if the device is left on at the time it is seized, whether it is
locked or unlocked, and the user has been using the device, I would say roughly 90
percent or more of Apple devices can be accessed.” (Id. at 62.) If the cell phone is left
on, the chances increase of being able to access it with GrayKey. (Id.) Changing the
screen lock time-out settings had no effect on Officer Gustafson’s procedures. (Id.)
Officer Gustafson testified about the cell phone’s thumbprint capabilities, known
as Apple biometrics or Touch ID, and indicated that “for our purposes, the biometrics and
the passcode are one and the same.” (Id. at 63.) Normally, Officer Gustafson would
perform a timestamp verification to verify the information in his report is the same as the
phone. (Id. at 65.) However, Officer Gustafson was unable to perform the verification
because the cell phone relocked after the data extraction. (Id.) Officer Gustafson
estimated that he retrieved over 95 percent of the data that was on Haynes’s cell phone.
(Id. at 67.)

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II.

DISCUSSION

Haynes moves to suppress the following evidence:
[a]ll physical evidence discovered, recovered, and/or seized arising out of the
search and seizure of electronically stored data on Apple iPhone, white in
color with pinkish colored case, crack screen protector (PI # 84339-002),
including all SMS/MMS messaging, call log, contact list, all photo/video
content, SIM card data, account information for email and social media
accounts and any stored GPS locations, noted in the Application for Search
Warrant by Officer Adam Lepinski, electronically signed 08/19/2019, and in
the Search Warrant electronically signed by Judge Martha Holton Dimick on
08/20/2019.
(Dkts. 35, 59.)
The Court addresses Defendant’s Motion and Supplemental Motion collectively
below.
A.

Motion to Suppress Evidence Obtained by Search and Seizure
In support of his motion to suppress the evidence arising out of the search and

seizure of his cell phone, Haynes argues that “the opening of [his] phone and changing of
his phone’s settings constitute a search which was not supported by a search warrant or
pursuant to any recognized exception to the search warrant-requirement, and therefore,
the evidence should be excluded.” (Dkt. 89 at 8.) Haynes further argues that TFO
Lepinski’s “action in going into the settings of Mr. Haynes’ phone and changing those
settings exceeded the scope of the consent authorization Mr. Haynes gave the police
officer to retrieve phone numbers from the phone” and identified “consent searches” as
one of the exceptions that did not apply to the changing of the settings. (Dkt. 59 at 3;
Dkt. 89 at 8.) The Government counters that TFO Lepinski was justified in securing
Haynes’s cell phone. (Dkt. 94 at 5.) The Government argues that TFO Lepinski’s

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actions were reasonable and “tantamount to securing a scene in order to maintain the
status quo while a search warrant was obtained.” (Id. at 5-6.) In the alternative, the
Government argues that the contents of Haynes’s cell phone would be admissible under
the independence source doctrine and inevitable discovery doctrine. (Id. at 8-11.)
1.

Whether TFO Lepinski’s Changes to the Settings Violated the Fourth
Amendment

The Court first considers whether TFO Lepinski’s changing of the cell phone
settings to airplane mode and “never lock” violated the Fourth Amendment. 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 basic purpose of the Fourth Amendment “‘is to safeguard the privacy and
security of individuals against arbitrary invasions by governmental officials.’” Carpenter
v. United States, 138 S. Ct. 2206, 2213 (2018) (quoting Camara v. Municipal Court, 387
U.S. 523, 528 (1967)). “When an individual ‘seeks to preserve something as private,’
and his expectation of privacy is ‘one that society is prepared to recognize as reasonable,’
we have held that official intrusion into that private sphere generally qualifies as a search
and requires a warrant supported by probable cause.” Id. (quoting Smith v. Maryland,
442 U.S. 735, 740 (1979)).
Haynes argues that he had a reasonable expectation of privacy that the police
would not be searching his phone to change the settings. (Dkt. 89 at 7.) Haynes also
argues that TFO Lepinski’s decision to change the settings constitutes a warrantless
search that does not fall within any of the exceptions to the warrant requirement,

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including the consent exception, and that changing the settings exceeded the scope of the
consent authorization Haynes gave TFO Lepinski to retrieve phone numbers. (Id. at 7-8;
Dkt. 59 at 3.) Relying on Riley v. California, 573 U.S. 373 (2014), the Government
counters that TFO Lepinski took reasonable steps to secure Haynes’s cell phone and to
prevent the loss of evidence while he sought a warrant. (Dkt. 94 at 6-7.)
The U.S. Supreme Court in Riley held that the police generally may not, without a
valid search warrant, search digital information on a cell phone seized from an individual
who has been arrested. See 573 U.S. at 386. In so holding, the Supreme Court
concluded: “Modern cell phones are not just another technological convenience. With all
they contain and all they may reveal, they hold for many Americans the privacies of life.
The fact that technology now allows an individual to carry such information in his hand
does not make the information any less worthy of the protection for which the Founders
fought.” Id. at 403 (cleaned up). Data stored on cell phones is “qualitatively different”
from physical records because searching a cell phone “would typically expose to the
government far more than the most exhaustive search of a house: A phone not only
contains in digital form many sensitive records previously found in the home; it also
contains a broad array of private information never found in a home in any form—unless
the phone is.” Id. at 393-98.
The Supreme Court recognized, however, that a cell phone may be seized and
secured to prevent destruction of evidence. Id. at 388-91. The Supreme Court focused
on two types of destruction of evidence: remote wiping and encryption (which occurs
when a phone is locked). See id. As explained in Riley:
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Remote wiping occurs when a phone, connected to a wireless network,
receives a signal that erases stored data. This can happen when a third party
sends a remote signal or when a phone is preprogrammed to delete data upon
entering or leaving certain geographic areas (so-called “geofencing”).
Encryption is a security feature that some modern cell phones use in addition
to password protection. When such phones lock, data becomes protected by
sophisticated encryption that renders a phone all but ‘unbreakable’ unless
police know the password.
Id. at 388-89 (citations omitted).
The Supreme Court, however, had “been given little reason to believe that either
problem is prevalent.” Id. at 389. The briefing in Riley “revealed only a couple of
anecdotal examples of remote wiping triggered by an arrest.” Id. Further, “[l]aw
enforcement officers are very unlikely to come upon such a phone in an unlocked state
because most phones lock at the touch of a button or, as a default, after some very short
period of inactivity,” and “an officer who seizes a phone in an unlocked state might not
be able to begin his search in the short time remaining before the phone locks and data
becomes encrypted.” Id. at 389-90. However, the Supreme Court suggested that, “if
officers happen to seize a phone in an unlocked state, they may be able to disable a
phone’s automatic-lock feature in order to prevent the phone from locking and encrypting
data.” Id. at 391. It further explained that “[s]uch a preventative measure could be
analyzed under the principles set forth in our decision in McArthur, 531 U.S. 326, 121 S.
Ct. 946, which approved officers’ reasonable steps to secure a scene to preserve evidence
while they awaited a warrant.” Id.

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As to remote wiping, the Supreme Court explained that:
Remote wiping can be fully prevented by disconnecting a phone from the
network. There are at least two simple ways to do this: First, law
enforcement officers can turn the phone off or remove its battery. Second, if
they are concerned about encryption or other potential problems, they can
leave a phone powered on and place it in an enclosure that isolates the phone
from radio waves. Such devices are commonly called “Faraday bags,” after
the English scientist Michael Faraday. They are essentially sandwich bags
made of aluminum foil: cheap, lightweight, and easy to use.
Id. at 390 (citations omitted).
Haynes argues that the Supreme Court’s language in Riley is mere dicta and not
the holding of the case. (Dkt. 89 at 9.) However, as the Government points out, the
authority to secure a scene to maintain the status quo while obtaining a warrant existed
prior to the holding in Riley. See Segura v. United States, 468 U.S. 796, 798 (1984)
(“[W]here officers, having probable cause, enter premises, and with probable cause,
secure the premises from within to preserve the status quo while others, in good faith, are
in the process of obtaining a warrant, they do not violate the Fourth Amendment’s
proscription against unreasonable seizures.”); see also, e.g., United States v. RuizEstrada, 312 F.3d 398, 404 (8th Cir. 2002) (securing an apartment to prevent the
destruction of suspected narcotics supply while awaiting search warrant for 19 hours
comports with the Fourth Amendment); United States v. Roby, 122 F.3d 1120, 1125 (8th
Cir. 1997) (citing United States v. Kulcsar, 586 F.2d 1283, 1287 (8th Cir. 1978)) (“The
officers entered, but took no investigative steps; they merely preserved the space and
checked to assure their own safety. There was full compliance with the mandate of the
Fourth Amendment.”); United States v. Burrell, No. 06-81 (JNE/RLE), 2006 WL

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1715608, at *21 (D. Minn. June 19, 2006) (“[W]e find that the ‘freezing,’ or seizure, of
Brown’s residence, until the issuance of a Search Warrant, was reasonable.”). While
these cases generally relate to securing the scene of a dwelling, this doctrine, as outlined
in McArthur, could nevertheless be applied in the context of securing a cell phone as
noted in Riley. See 573 U.S. at 373.
With that background, the Court considers whether TFO Lepinski’s changing of
the settings of Haynes’ cell phone constitutes a search of his phone that violated the
Fourth Amendment. The Government argues that TFO Lepinski’s act in changing the
settings was tantamount to securing a scene pending a search warrant. (Dkt. 95 at 5-7.)
The Court has some concerns about this argument. TFO Lepinski did not “happen to
seize a phone in an unlocked state” as contemplated in Riley. The cell phone was seized
when TFO Lepinski walked Haynes to the First Precinct and searched him incident to
arrest. (Tr. at 18.) The phone was locked when TFO Lepinski took it out of Haynes’
pocket during the search incident to arrest. (Id. at 19 (phone locked when removed from
Haynes’ pocket); see id. at 18 (TFO Lepinski removed phone from Haynes’ pocket
during search incident to arrest).) It was not unlocked until TFO Lepinski retrieved it to
obtain the phone numbers requested by Haynes and Haynes unlocked it with his
thumbprint for that purpose. (Id. at 19.)
Further, Haynes unlocked the phone for TFO Lepinski so that he could obtain
certain phone numbers (Gov’t Ex. 1 at 2:35-2:51), but there is nothing in the record that
suggests Haynes consented to TFO Lepinski’s changing of the settings—particularly to a
“never lock” setting. Rather, Haynes intended to turn the phone off when he returned it
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to TFO Lepinski, Haynes was concerned about keeping his phone locked, and TFO
Lepinski obfuscated as to whether the phone was locked after it was returned to him by
Haynes in the holding cell. (Gov’t Ex. 1 at 4:26-4:34 (Haynes saying he intended to turn
phone off); Gov’t Ex. 2 at 1:23-1:24 (TFO Lepinski asking Haynes for passcode “so I can
get back into your phone” after he had already set the phone to “never lock”); Gov’t Ex. 3
at 0:50-52 (TFO Lepinski responding “Yes, it is” when asked if the phone was locked
up); Tr. at 28 (TFO Lepinski testifying that phone was unlocked when he told Haynes it
was locked).) “When an official search is properly authorized—whether by consent or by
the issuance of a valid warrant—the scope of the search is limited by the terms of its
authorization.” Walter v. United States, 447 U.S. 649, 656 (1980). The scope of consent
to search is measured by a standard of objective reasonableness, United States v. Urbina,
431 F.3d 305, 310 (8th Cir. 2005), where the issue is what “the typical reasonable person
[would] have understood by the exchange between the officer and the suspect,” Florida
v. Jimeno, 500 U.S. 248, 251 (1991). Here, a typical reasonable person would have
understood that Haynes was not authorizing TFO Lepinski to change the settings in his
phone.
Under these circumstances, it is not clear that the dicta in Riley suggesting that law
enforcement can change settings on a phone to prevent encryption if they happen to seize
a phone in an unlocked state or the case law authorizing securing a scene to maintain the
status quo pending a warrant would apply to the facts of this case. Compare United
States v. Bell, Case No. 15-10029, 2016 WL 1588098, at *2-6 (C.D. Ill. April 20, 2016)
(opening flip phone to turn it off constituted warrantless search of phone not subject to
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preservation of evidence exception where phone could have been turned off or the battery
removed), with United States v. Cain, Case No. 1:15-cr-00103-JAW, 2017 WL 1507422,
at *4-5 (D. Me. April 27, 2017) (“The steps taken by Agent Collier to activate airplane
mode, after Defendant told Agent Collier he could look at the phone and after Defendant
provided the security code, were no more intrusive than the steps that would be required
to ‘disable a phone’s automatic-lock feature in order to prevent the phone from locking
and encrypting data,’ a measure the Supreme Court described as one reasonable approach
to preserve data on an unlocked cellular phone.”) (citing Riley, 573 U.S. at 391). The
Court need not decide this question, however, because even if TFO Lepinski’s actions
constituted a search that violated the Fourth Amendment, the Court concludes for the
reasons explained below that the evidence from the cell phone obtained pursuant to the
search warrant is admissible under the independent source and inevitable discovery
doctrines.
2.

Independent Source Doctrine

The Government argues that the independent source doctrine would render the
evidence obtained pursuant to the search warrant admissible notwithstanding any error
made by TFO Lepinski in securing Haynes’s cell phone. (Dkt. 94 at 8-10.) Haynes
argues that the Government has failed to establish that the tainted evidence would have
been obtained independently after the search warrant was secured. (Dkt. 89 at 10.) The
Court agrees with the Government.
“The independent source doctrine allows admission of ‘evidence initially
discovered during, or as a consequence of, an unlawful search, but later obtained
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independently from activities untainted by the initial illegality.’” United States v.
Anguiano, 934 F.3d 871, 874 (8th Cir. 2019) (quoting Murray v. United States, 487 U.S.
533, 537 (1988)). To invoke the independent source doctrine, the Eighth Circuit requires
the Government to demonstrate: “(1) that the decision to seek the warrant was
independent of the unlawful entry—i.e., that police would have sought the warrant even
if the initial entry had not occurred—and (2) that the information obtained through the
unlawful entry did not affect the magistrate’s decision to issue the warrant.’” Anguiano,
934 F.3d at 874 (quoting United States v. Khabeer, 410 F.3d 477, 483 (8th Cir. 2005)).
Here, the record shows that TFO Lepinski’s decision to seek the warrant was
independent of the unlawful entry. With respect to the first prong, TFO Lepinski testified
that his intention was to obtain a warrant to search the phone and that he only changed
the settings in order to facilitate the warrant. (Tr. at 21, 25-25.) As to the second prong,
TFO Lepinski testified that he never attempted to obtain or actually obtained any
substantive content from the phone (other than the contact information requested by
Haynes) when changing the settings. (Id. at 21-22, 27-28.) In addition, TFO Lepinski
testified that he did not mention anything in the probable cause section of the warrant’s
application about changing the settings or anything he saw while doing so. (Tr. at 27.)
Therefore, the record shows that TFO Lepinski’s decision to change the settings to
airplane mode and “never lock” did not affect Judge Dimick’s decision to issue the search
warrant.
Haynes argues that if TFO Lepinski “had secured the phone by turning it off or
removing the battery, as suggested by the Supreme Court in Riley, it would have been
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more difficult for the Government to obtain the protected data” because, according to
Haynes, “Officer Gustafson’s testimony is that if the phone is turned off, the workaround
to bypass password protection is more difficult and would only be successful 90% of the
time.” (Dkt. 89 at 10 (citing Tr. at 62).) Officer Gustafson actually testified that “I
would say if the device is left on at the time it is seized, whether it is locked or unlocked,
and the user has been using the device, I would say roughly 90 percent or more of Apple
devices can be accessed.” (Tr. at 62:2-7.)
The Government argues that Haynes is conflating locking and remote wiping.
(Dkt. 94 at 9.) When TFO Lepinski changed the settings to “never lock,” he believed
(apparently erroneously, as it turned out) that he was preventing the destruction of
evidence that could occur if the phone locked, thereby encrypting the data. (Tr. at 3839.) By placing the phone in airplane mode, TFO Lepinski—who did not have a Faraday
bag or box or any other equipment for securing the cell phone such that it could not
communicate with a network (Tr. at 36-37)—sought to prevent evidence destruction by
remote wiping.
Haynes’ argument assumes that the only options TFO Lepinski had were (1) turn
the phone off to prevent remote wiping or (2) place the phone in airplane mode (which he
contends is an illegal search). That is not accurate. TFO Lepinski had the option of
doing nothing, and leaving the phone in a powered-on, locked state—the status quo of the
phone when seized. Indeed, it appears unlikely that TFO Lepinski would have turned the
cell phone off due to remote wiping concerns, because that would lock the phone. (See
Tr. at 66.) If the phone had been kept in its powered-on, locked state, it would have been
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in an AFU state, and GrayKey would have extracted the same data that was extracted
from the phone in its unlocked state. (Tr. at 59-60.) For these reasons, the Court finds
that the results of the search of Haynes’ cell phone after TFO Lepinski obtained a warrant
constitute an independent source of the evidence, and recommends denial of the Motion
and Supplemental Motion on that basis.
3.

Inevitable Discovery Doctrine

The Government also argues that the evidence retrieved from Haynes’s cell phone
would be admissible under the inevitable discovery doctrine. (Dkt. 94 at 10.) Under the
inevitable discovery doctrine, evidence need not be suppressed if the Government can
prove by a preponderance of the evidence that: “(1) there is a reasonable probability the
evidence would have been discovered by lawful means in the absence of police
misconduct, and (2) the government was actively pursuing a substantial, alternative line
of investigation at the time of the constitutional violation.” United States v. Thomas, 524
F.3d 855, 859 (8th Cir. 2008) (citing United States v. Glenn, 152 F.3d 1047, 1049 (8th
Cir. 1998)).
Here, the record shows that there was, at a minimum, a reasonable probability that
the evidence obtained from the cell phone would have been obtained pursuant to the
warrant even if TFO Lepinski had not changed the settings. First, as discussed above,
TFO Lepinski intended to seek a warrant for the cell phone and the change in settings did
not affect the affidavit he submitted. (Tr. at 21, 27-28.) Second, the record reflects that if
TFO Lepinski had not changed the settings to “never lock” and airplane mode (but kept
the phone on), GrayKey would have obtained the same data off the phone. (Id. at 59.)
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Finally, in view of Officer Gustafson’s testimony that even if the cell phone had been
turned off, GrayKey would have been able to obtain “some pictures, some videos, some
user account information, things of that nature, but it won’t get any communication data”
unless a “brute force” method was successful (Tr. at 67), and in the absence of any
evidence identified by Haynes for suppression that GrayKey would not have been able to
obtain if the cell phone had been turned off, the Court finds that the Government has
shown by a reasonable probability that the evidence would have been obtained pursuant
to the warrant. Accordingly, the Court finds that the inevitable discovery doctrine
applies, and recommends denial of the Motion and Supplemental Motion on that ground
as well.
B.

Whether the August 2019 Search Warrant is Supported by Probable Cause
In his Motion to Suppress Search and Seizure filed on November 12, 2019,

Haynes argues that the August 2019 Search Warrant was not supported by probable
cause, contains information supplied by a confidential informant whose reliability and
trustworthiness was not established, and contains inaccurate information and unsupported
allegations. (Dkt. 35 at 2.) Haynes reasserts these bases in his Supplemental Motion.
(Dkt. 59 at 2.) He did not include any argument on these points in his post-hearing
briefing.
A reviewing court must evaluate a search warrant in its entirety and in a
commonsense manner. See Illinois v. Gates, 462 U.S. 213, 230-31 (1983). Ordinarily,
searches pursuant to a warrant are reviewed to determine if there was probable cause for
the search in the search warrant application and affidavit. See id. at 236. “Probable

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cause exists when, given the totality of the circumstances, a reasonable person could
believe there is a fair probability that contraband or evidence of a crime would be found
in a particular place.” United States v. Fladten, 230 F.3d 1083, 1085 (8th Cir. 2000)
(citing Gates, 462 U.S. at 238). The task of a court issuing a search warrant is “simply to
make a practical, common-sense decision whether, given all the circumstances set forth
in the affidavit . . . including the ‘veracity’ and ‘basis of knowledge’ of persons
supplying hearsay information, there is a fair probability that contraband or evidence of a
crime will be found in a particular place.” Gates, 462 U.S. at 238. “Probable cause is a
fluid concept that focuses on ‘the factual and practical considerations of everyday life on
which reasonable and prudent men, not legal technicians, act.’” United States v. Colbert,
605 F.3d 573, 576 (8th Cir. 2010) (quoting Gates, 462 U.S. at 231). In reviewing the
decision of the issuing court, the duty of the reviewing court is simply to ensure that the
court had a substantial basis for concluding that probable cause existed. See Gates, 462
U.S. at 238-39 (citation omitted); see also United States v. LaMorie, 100 F.3d 547, 552
(8th Cir. 1996) (citation omitted) (“Our duty as a reviewing court is to ensure that the
issuing judge had a ‘substantial basis’ for concluding that probable cause existed, and we
owe substantial deference to the determination of probable cause by the issuing judge.”).
As to what this Court should consider when reviewing a search warrant for probable
cause, “[w]hen the [issuing judge] relied solely on the affidavit presented to him, ‘only
that information which is found within the four corners of the affidavit may be considered
in determining the existence of probable cause.’” United States v. Solomon, 432 F.3d
824, 827 (8th Cir. 2005) (citing United States v. Etheridge, 165 F.3d 655, 656 (8th Cir.
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1999), quoting United States v. Gladney, 48 F.3d 309, 312 (8th Cir. 1995)); United States
v. Smith, 581 F.3d 692, 694 (8th Cir. 2009) (quoting United States v. Reivich, 793 F.2d
957, 959 (8th Cir. 1986)).
Here, Haynes has not identified any specific deficiencies, including the alleged
“inaccurate information and unsupported allegations” in the August 2019 Affidavit, nor
can the Court discern any after careful review. The facts in the affidavit as set forth
above, including the surveillance video showing the suspect using an iPhone in a pinkish
case to take a photograph of a Western Union receipt before apparently obtaining the
handgun used in the shooting, the interview with A.H., the identification by the CRI of a
photo of the suspect from the surveillance video as “Bad Ass,” the database showing
Haynes uses the moniker “Bad Ass,” and cell phone call records showing Haynes’ and
A.H.’s cell phones at the scene of the shooting, along with the reasonable inferences
drawn therefrom, established a sufficient nexus between the evidence sought—the
photograph of the receipt and contact information for the person believed to have brought
the handgun to the scene of the shooting—and the cell phone. To the extent Haynes
challenges the reliability of the CRI, the CRI’s identification of the suspect as “Bad Ass,”
where that moniker is recorded as belonging to Haynes, is corroborated by the interview
with A.H. and the cell phone call detail records. See United States v. Faulkner, 826 F.3d
1139, 1144 (8th Cir. 2016) (holding reliability of confidential informant “can be
established through independent corroboration”). Accordingly, based on the totality of
the circumstances, the Court concludes that the search warrant was supported by probable
cause.
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C.

Haynes’s Motion for a Franks Hearing
Finally, in his Supplemental Motion, Haynes seeks a Franks hearing regarding the

August 2019 Affidavit. 2 (Dkt. 59 at 4-5, see Dkt. 60 (affidavit of counsel).) Haynes
argues that TFO Lepinski made a material omission, in reckless disregard of the truth, in
his allegation of facts in support of the issuance of the search warrant by failing to
disclose to the Court that he had accessed Mr. Haynes’ cell phone to change the settings.
(Dkt. 60.) The Government contends that Haynes has failed to show that the August
2019 Affidavit contained any false statements or material omissions or that statements or
omissions were made knowingly and intentionally, or in reckless disregard for the truth.
(Dkt. 62 at 4.) In addition, the Government argues that even if Haynes had shown TFO
Lepinski made a false statement that was knowingly and intentionally made, or made in
reckless disregard of the truth, he has not shown that including the fact that he changed
the phone settings in the August 2019 Affidavit would have affected the finding of
probable cause. (Dkt. 62 at 4-5.) The Court agrees.
Pursuant to Franks v. Delaware, 438 U.S. 154 (1978), a defendant may seek a
hearing to challenge a search warrant on the ground that the supporting affidavit contains
factual misrepresentations or omissions relevant to the probable cause determination. See
United States v. Daigle, 947 F.3d 1076, 1084 (8th Cir. 2020). “However, in order to
merit a Franks hearing, a defendant must show both (1) that the affiant knowingly and
intentionally made false statements or made them in reckless disregard for the truth and

2

Haynes did not address his request for a Franks hearing in his post-hearing brief;
nevertheless, the Court addresses the request here.
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(2) if the false information is excised (or the omitted information is included), the
affidavit no longer establishes probable cause.” Id. This “requirement is not met lightly
and requires a defendant to offer specific allegations along with supporting affidavits or
similarly reliable statements.” United States v. Gonzalez, 781 F.3d 422, 430 (8th Cir.
2015) (citation omitted); see also Franks, 438 U.S. at 171 (“Affidavits or sworn or
otherwise reliable statements of witnesses should be furnished, or their absence
satisfactorily explained.”); United States v. Mathison, 157 F.3d 541, 548 (8th Cir. 1998)
(“A mere allegation standing alone, without an offer of proof in the form of a sworn
affidavit of a witness or some other reliable corroboration, is insufficient to make the
difficult preliminary showing [under Franks ].”). Moreover, “[a] Franks hearing must be
denied unless the defendant makes a strong initial showing of deliberate falsehood or
reckless disregard of the truth.” United States v. Freeman, 625 F.3d 1049, 1052 (8th Cir.
2010) (internal quotations and citation omitted) (emphasis added).
Here, even if the Court assumed TFO Lepinski’s failure to disclose that he had
changed the settings on the phone to airplane mode and “never lock” constituted an
omission that was made intentionally and knowingly or with reckless disregard for the
truth, there is no reason to believe that learning of the change in settings would have
affected Judge Dimick’s probable cause decision. TFO Lepinski has testified that he only
changed those two settings, and Haynes has not explained how changing those settings
would have affected the likelihood that the sought-after evidence relating to the shooting
(photos and contact information) would be found on the cellular phone or any other
aspect of the probable cause finding, much less that the omission was necessary to the
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finding of probable cause. As discussed in Section II.B, supra, the Court finds ample
probable cause to support the warrant. Consequently, the Court recommends denial of
Haynes’ request for a Franks hearing on the information provided in the August 2019
Affidavit.
III.

RECOMMENDATION

Based on the files, records, and proceedings herein, IT IS RECOMMENDED
THAT:
1.

Defendant’s Motion to Suppress Search and Seizure (Dkt. 35) be DENIED;

2.

Defendant’s Supplemental Motion to Suppress Search and Seizure (Dkt.

and

59) be DENIED; and
3.

Defendant’s request for a Franks Hearing be DENIED.

s/Elizabeth Cowan Wright
ELIZABETH COWAN WRIGHT
United States Magistrate Judge

DATED: April 27, 2020

NOTICE
Filing Objections: This Report and Recommendation is not an order or judgment of the
District Court and is therefore not appealable directly to the Eighth Circuit Court of
Appeals.
Under District of Minnesota Local Rule 72.2(b)(1), “a party may file and serve specific
written objections to a magistrate judge’s proposed finding and recommendations within
14 days after being served a copy” of the Report and Recommendation. A party may
respond to those objections within 14 days after being served a copy of the objections. D.

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Minn. LR 72.2(b)(2). All objections and responses must comply with the word or line
limits set for in D. Minn. LR 72.2(c).

30