D.S.D.: Asking def’s GF if she had the phone she saw naked pictures of her 13-year-old daughter in didn’t make her an agent

Defendant’s girlfriend reported to police that she saw nude pictures of her 13 year old daughter on defendant’s cell phone. The officer asked if she had the phone, and she hesitated, located it, and handed it over. She was not enlisted as a government agent just because he asked whether she had the phone. “Highbull also argues that Janis performed the search at the government’s request because Officer Mattson asked Janis if she had the phone. This fact situation is similar to Wiest, where police asked a home’s owner whether the defendant had any items in the home. Wiest, 596 F.3d at 910. In Wiest, the Eighth Circuit affirmed the district court’s factual finding that the home owner’s act was a ‘voluntary and unsolicited act.’ Id. The fact the police officer asked the home owner a question did not transform her into a government actor. The same reasoning applies here. Highbull has not met his burden of proving Janis was a government actor.” United States v. Highbull, 2017 U.S. Dist. LEXIS 57408 (D.S.D. April 14, 2017).

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