United States v. Highbull, 070618 FED8, 17-2728

Docket Nº:17-2728
Party Name:United States of America Plaintiff- Appellee v. Terance Morice Highbull Defendant-Appellant
Judge Panel:Before GRUENDER, BEAM, and KELLY, Circuit Judges.
Case Date:July 06, 2018
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

United States of America Plaintiff- Appellee


Terance Morice Highbull Defendant-Appellant

No. 17-2728

United States Court of Appeals, Eighth Circuit

July 6, 2018

          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 court1 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...

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