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United States v. Highbull

United States Court of Appeals, Eighth Circuit

July 6, 2018

United States of America Plaintiff- Appellee
Terance Morice Highbull Defendant-Appellant

          Submitted: March 14, 2018

          Appeal from United States District Court for the District of South Dakota - Sioux Falls

          Before GRUENDER, BEAM, and KELLY, Circuit Judges.


         Terance Highbull pleaded guilty to one count of sexual exploitation of a child, see 18 U.S.C. § 2251(a), but reserved the right to challenge the denial of his motion to suppress evidence recovered from a cell phone that his girlfriend provided to law enforcement. On appeal, Highbull argues that the district court[1] erred in concluding that the girlfriend was acting as a private citizen-not a government agent-when she retrieved the phone from his vehicle and, thus, that the Fourth Amendment did not apply. Because the retrieval of the phone amounted to private conduct rather than government action, we affirm.


         On February 19, 2015, the Sioux Falls Police Department received a domestic-disturbance call from a young boy, who reported that a man was harassing his mother. Andrew Mattson was the first officer to respond to the call. Upon arriving at the scene, Officer Mattson was flagged down by Michelle Janis, the mother of the boy who placed the call. Janis can be heard on a recording from Officer Mattson's body microphone exclaiming that someone had just taken off running. Officer Mattson asked her what was going on, and she responded: "I wanted to sign a complaint on him. He went and had pictures of my daughter naked, and she's only 13."

         Janis identified the man as Highbull and informed Officer Mattson that the red Ford Taurus that was left running in front of her building belonged to him. A license plate check revealed that the Taurus was registered to Highbull at Janis's address. Janis then entered the vehicle, and Officer Mattson asked if she was "going to grab the keys." Although she said yes, Janis merely turned off the car, leaving the keys in the ignition. Rejoining Officer Mattson on the sidewalk in front of her apartment, Janis explained that she and Highbull had been arguing several days earlier because she refused to let him see their infant daughter. It was during this argument that she looked at Highbull's phone and saw the naked pictures of her thirteen-year-old daughter, who was not related to Highbull.

         At that point, Officer Mattson asked Janis, "Do you have the phone?" Without explanation, she began walking back toward the Taurus and stammered, "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." She then reentered the vehicle just as Officer Mattson's backup arrived. The two officers conferred several feet away from the Taurus for the thirty seconds Janis was inside the vehicle. Officer Mattson later testified that he never directed Janis to enter the Taurus or to look for the phone, that he himself neither opened nor entered the car, and that his attention was on the backup officer while Janis was in the vehicle.

         After her brief time in the Taurus, Janis emerged with Highbull's cell phone and handed it to Officer Mattson. She explained that there were nude photos of her daughter on the device but that she could no longer locate them because they were "deeper in the phone." When Officer Mattson could not find the pictures, Janis became upset, worrying that nothing was going to be done. Officer Mattson explained that he could not make an arrest solely on the basis of her statements but that he would take the phone for further investigation. A subsequent forensic analysis conducted pursuant to a search warrant uncovered the images.

         Highbull was later charged with one count of sexual exploitation of a child. Before trial, he filed a motion to suppress all evidence obtained as a result of what he described as an illegal search of his vehicle. See Wong Sun v. United States, 371 U.S. 471, 484-88 (1963). Among other things, he argued that the Fourth Amendment applied to Janis's search of the Taurus because she was acting as an agent or instrument of the government.

         The district court referred the motion to suppress to a magistrate judge, who conducted an evidentiary hearing and issued a report and recommendation ("R&R"). The R&R concluded that Highbull failed to carry his burden of showing Janis had acted as a government agent. Although the R&R adopted Highbull's position that Officer Mattson acquiesced in Janis's search of the Taurus, as he "had a pretty good idea she was going to look for the phone," it found no evidence suggesting that "Janis was motivated primarily by a desire to help police."

         Highbull accepted the R&R's factual summary but, as relevant here, objected to its legal conclusion that Janis's search of the car did not constitute government action. In particular, Highbull argued that Janis intended to aid law enforcement by retrieving the phone, as evidenced by her express desire to "sign a complaint on him." The district court acknowledged that Janis wanted to see Highbull arrested but noted that private citizens may have multiple reasons for assisting the police. It also rejected Highbull's contention that Janis performed her search at the request of Officer Mattson, concluding that his inquiry as to whether she had the phone was insufficient to "transform her into a government actor." Thus, the court adopted the R&R's determination that Highbull had not met his burden of proving that Janis was a government agent, and accordingly, it denied his motion to suppress.

         Highbull subsequently entered into a plea agreement in which he reserved the right to challenge the admissibility of the challenged evidence and was sentenced to 300 months' imprisonment. He now appeals his conviction, arguing that the district court erred in finding no Fourth ...

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