Case 4:16-cr-40070-KES Document 262 Filed 02/17/17 Page 4 of 11 PageID #: 896
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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