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United States v. Fife

United States District Court, N.D. Iowa, Western Division

December 26, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
TERRY ALLEN FIFE II, Defendant.

          REPORT AND RECOMMENDATION

          Kelly K.E. Mahoney Chief United States Magistrate Judge.

         TABLE OF CONTENTS

         I. BACKGROUND........................................................................... 2

         II. DISCUSSION................................................................................ 6

         A. Whether the Delay in Obtaining a Search Warrant Rendered the Seizure Unreasonable...................................................................................... 6

         B. Whether Suppression Is an Appropriate Remedy ................................. 24

         III. CONCLUSION............................................................................. 26

         Defendant Terry Allen Fife II moves to suppress videos and photos depicting nude images of minors that were first found on his computer hard drive by his friends and family. Doc. 41. After one of his friends gave the hard drive to a police officer, the officer waited six months before obtaining a search warrant for the hard drive. Fife argues that this six-month delay rendered the hard drive unreasonably seized in violation of the Fourth Amendment. The Government resists. Doc. 49. I recommend granting the motion to suppress (Doc. 41).

         I. BACKGROUND [1]

         On Saturday, September 4, 2016, Fife was involved in a car accident that resulted in his hospitalization and caused his friends and family to be concerned about his possible drug use. Fife had been staying with his mother and sister, Sheryl McKevitt, on property his mother and sister co-owned in Milford, Iowa. The property contained a trailer and a shed, and Fife spent a lot of time in the shed, even sleeping there on occasion (he also slept in the trailer sometimes). While Fife was still in the hospital, Fife's mother and sister sent Fife's nephew and a close family friend, Chad Wellendorf, to search the shed for drugs.

         Fife's mother and sister told Wellendorf and Fife's nephew where the key to the shed was located, and they were able to gain access to the locked shed. Inside, they found needles and baggies containing what appeared to be drug residue. Other friends and family members arrived, and they gathered the drug paraphernalia for disposal. Eventually, someone called Milford Police Officer Matt Myhre (Officer Myhre), who agreed to dispose of the drug paraphernalia in a safe manner. Officer Myhre was on the property for this purpose at some point during the day, but he never entered the shed, and he did not learn about the search of Fife's computer that day.

         Believing they might find more evidence of drug use, [2] Fife's friends and family decided to search Fife's computer[3] located in the shed. After two people failed to guess Fife's password, McKevitt-a computer whiz-booted the computer in safe mode and deleted the file containing the password so that she could gain access to the computer. Once in the computer, she saw two folders named for Fife's former stepdaughters. When she opened the folders, she saw videos depicting Fife's former stepdaughters, both minors, getting in and out of the shower in the nude, as well as still images taken from the videos. In addition to McKevitt, at least three other people saw some of the nude images or videos that day: Wellendorf; Matt Hallow, a family friend; and Fife's brother Travis Fife (who I will refer to as Travis to avoid confusion with Defendant). After seeing the images, the group discussed what to do. They decided to destroy the hard drive to protect Fife. McKevitt and Wellendorf took the hard drive out of the computer and gave it to Hallow to destroy. After the hard drive was taken out, they destroyed what remained of the computer.[4]

         Later that same day, Hallow began to feel guilty about destroying the hard drive. He called Wellendorf and described how he was feeling. Wellendorf then contacted Travis, who agreed that the hard drive should not be destroyed. Wellendorf called Hallow back and relayed what Travis had said, concluding that Hallow should do what he needed to do. Hallow asked Wellendorf to contact Officer Myhre, who they both knew by virtue of living in the same small town. Wellendorf called Officer Myhre and told him that Hallow would be dropping something off. He did not give any more information about the hard drive, where it came from, or what it contained.

         Still on September 4, Hallow gave the hard drive to Officer Myhre and described what it contained. On September 7 and 8, 2016, Officer Myhre interviewed Hallow, Wellendorf, McKevitt, and Travis. They all confirmed that the hard drive belonged to Fife and that they had seen videos and nude images of Fife's former stepdaughters that appeared to have been taken surreptitiously. Although Fife's mother was not interviewed, someone told Officer Myhre that she had also seen some of the images.[5]

         Officer Myhre did not investigate the matter further until he obtained a search warrant for the hard drive on March 6, 2017. Doc. 42-2. Officer Myhre gave no reason for the delay, other than that he was unaware of any deadline to obtain a warrant. The hard drive was given to the Federal Bureau of Investigation for a forensic evaluation, which was completed in August 2017. In November 2017, Officer Myhre and Special Agent Rob Larsen of the Iowa Division of Criminal Investigation interviewed Fife for the first time about the images on the hard drive. See Doc. 52. Officers interviewed Fife again in June 2018, and on June 21, 2018, a federal grand jury issued an indictment (Doc. 1) charging Fife with one count of sexual exploitation of a child, in violation of 18 U.S.C. § 2251(a), (e); and one count of possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B), (b)(2).

         At no point did Fife request that officers return the hard drive, but I find that the evidence does not establish that Fife had any idea police had the hard drive until he was first interviewed in November 2017 (and even then, he perhaps did not know the hard drive was in police possession). Wellendorf testified that word spread around their small town that Fife's computer contained nude videos and images of his former stepdaughters shortly after the images were discovered in September 2016. He further testified that he believed Fife's mother knew that the hard drive had not been destroyed because after Officer Myhre conducted the September 2016 interviews, Fife's mother was angry with Hallow and seemed to blame him. McKevitt testified that she was unaware that officers had the hard drive until Fife was indicted and arrested in June 2018. Similarly, Fife submitted an affidavit averring that “a family member told [him] . . . the hard drive had been destroyed”; that “although the officers suggested [in November 2017] that they had viewed images from a hidden camera, they never told [him] that police actually had possession of [his] hard drive”; and that he “did not know Hallow had given police the hard drive until the indictment was returned in June 2018.” Doc. 50-1. The transcript[6]of Fife's November 2017 interview shows that Special Agent Larsen suggested that they had evidence of the videos but never mentioned the hard drive, saying:

• “Uhm, have, have, uhm, some, some videos that, uhm, have come into our hands, uhm, and, uhm, you know, it shows you adjusting the camera.”
• “Would it surprise if I had evidence to indicate otherwise [with regard to whether Fife ever set up cameras in the bathroom]?”
• “I can tell you what I have.”
• “Well, you, you're gonna have to do a helluva lot better job of, of that to convince me and, and Matt on, on that [that he meant only to record himself and his wife]. . . . [A]nd anybody else who had, who, uh, will view that, uh, recording.”
• “[W]e don't have just some raw video that came off an S.D. card. We have a lot more than that.”
• “[T]he damage has already been done . . . . [b]ased on the videos I've seen

Doc. 52. It does not seem that Fife knew officers had access to the videos prior to that interview, as he repeatedly denied the existence of such videos or that any videos were anything other than accidental, and he expressed several times that he felt sick to his stomach when the officers described the recordings they had seen. Id. When Special Agent Larsen asked what Fife had done with recordings from S.D. cards, he said he had “put it on a computer and then in a file, but I don't even have a computer anymore.” Id. He also indicated that he knew people went through his computer after his accident, but he did not know anything about videos of his former stepdaughters. When Special Agent Larsen indicated he had already seen the videos, Fife asked, “if they turn in those videos, why not turn in all of ‘em that are, if they got these S.D. cards or are on the computer?” Viewing the transcript in whole, it does not appear to me that Fife knew officers had any evidence of the videos prior to the November 2017 interview. Moreover, it is not even clear if he knew they had the hard drive after the interview.

         Fife filed the pending motion to suppress on October 19, 2018. Doc. 41. The Government sought an extension of time to file a responsive pleading, which was granted. Docs. 44, 45. The Government's responsive pleading was filed on November 5, 2018. Doc. 49. Defendant's reply brief was filed on November 12, 2018. Doc. 50. I held a hearing on the motion on November 14, 2018, at which Officer Myhre, Special Agent ...


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