State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0834

State of Minnesota,
Respondent,

vs.

Daryll Gene Cagle,
Appellant.

Filed May 7, 2018
Reversed
Peterson, Judge

Renville County District Court
File No. 65-CR-16-278

Lori Swanson, Attorney General, St. Paul, Minnesota; and

David Torgelson, Renville County Attorney, Laurence Stratton, Assistant County
Attorney, Olivia, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Davi E. Axelson, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Worke, Presiding Judge; Peterson, Judge; and Ross,
Judge.
U N P U B L I S H E D O P I N I O N
PETERSON, Judge
In this appeal from his convictions of (1) possessing pornographic work involving
a minor, (2) soliciting a child to engage in sexual conduct, and (3) distributing electronic

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communication material describing sexual conduct to a child, appellant Daryll Gene Cagle
argues that the district court erred when it denied his motion to suppress evidence obtained
under search warrants for his cellphone and cellphone data. Because the search warrant
that authorized a search of Cagle’s cellphone data was invalid and the data obtained in the
search were inadmissible, we reverse Cagle’s convictions and sentence.
FACTS
At around 11:00 a.m. on May 2, 2016, law-enforcement officers responded to a call
that reported an unresponsive toddler at an apartment. After arriving at the scene, Renville
County Sheriff’s Department Investigators Thomas Hendrichs and Jason Mathwig
determined that the child was deceased. Investigators could not determine a cause of death,
and the child had no known medical conditions or signs of injury.
A May 2, 20 16 search-warrant application states that Mathwig interviewed the
child’s mother, who stated that, on the evening of May 1, 2016, she went to bed at a round
11:00 p.m., and Cagle—mother’s live-in boyfriend—remained awake using a computer.
She said that Cag le and other family members brought the child to a park on May 1 , and
the child appeared fine and did not suffer any injuries. Mother’s brother-in-law stated that
photographs of the child were taken while he was at the park. Both Cagle and mother
owned cellphones.
Hendrichs reviewed a February 5, 2016 child-protection report, which indicated that
mother sought medical attention for the child due to a “two day history of scrotal swelling”
and “significant bruising on the left part of the scrotum.” Mother said that she did not
know what caused the swelling and bruising.

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The district court determined that probable cause existed to issue a warrant to search
the child’s residence for, among other things, “personal electronic devices” and cellphones.
Law enfor cement seized five cellphones. O ne of them was Cagle’s Samsung Galaxy
cellphone, which was found in the master bedroom.
On May 3, 2016, Hendrichs applied for a second warrant to search the contents of
the seized cellphones, including Cagle’s Samsung phone. Hendrichs swore in the search-
warrant affidavit that the cellphones, “constitute[] evidence which tends to show a crime”
or that a particular person has committed a crime. Other than stating that police seized five
cellphones during the initial search, the second search-warrant application did not contain
any new material information regarding the investigation. The second warrant application
sought authorization to search the cellphones for “Cellular Telephone Data,” including:
a) Electronic Serial Number (ESN)
b) Integrated Circuit Card Identifier (ICCID)
c) International Mobile Station Equipment Identity (IMEI)
Number
d) Mobile Equipment Identifier (MEID)
e) Device Telephone Number
f) Cellular Network and/or Carrier Information
g) Wi-Fi Address
h) Media Access Control (MAC) Address
i) Bluetooth Address
j) Stored Data identifying the device user or owner
k) ‘Contacts’ Data or Lists
l) ‘Call Log’ Data
m) ‘Favorites’ Data
n) Data associated, linked, maintained or contained within,
software commonly referred to as a Mobile Application /
Application / “App”
o) Short Message Service (SMS) Messages/Text Message
Content
p) Multimedia Messaging Service (MMS) Media that includes
photographs, videos, audio files and text pages

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q) Electronic Notes and/or Memorandums
r) Electronic Mail (E-mail) Messages
s) Global Positioning System (GPS) Data associated with
Mobile Applications or as independent data
t) Internet Browsing History to include dates and times of
access, browsed/viewed sites and search history
u) Portable Storage Media Contained Within

On May 3, the district court determined that probable cause existed to issue a second
search warrant, which was executed that afternoon. Law enforcement then extracted all
data from the cellphones and placed it onto four Blu-Ray discs. More than two month s
later, on July 22, 2016, Mathwig received the cellphone data. Mathwig’s initial query of
Cagle’s cellphone data was limited to activity on the phone that occurred on May 1 and 2,
2016. Mathwig found a text message sent from Cagle’s phone to M.K.E. at 12:03 a.m. on
May 2, in which Cagle asked whether M.K.E. was awake. M.K.E. never responded. Using
a data “extraction report” program, Mathwig conducted a broader query for M.K.E.’s first
name, in order to identify M.K.E. The query was not limited to a particular period of time,
and it produced all data on the phone involving M.K.E., including calendar entries, text
messages, and phone -call records. The query returned 4,659 text messages between
M.K.E. and Cagle from October 2014 to May 2, 2016.
Before requesting an additional sear ch warrant, Mathwig discovered text
conversations between Cagle and M.K.E . that were sexual in nature and involved
exchanges of pornographic images. Initially, Mathwig did not know whether the images
were illegal. Mathwig then found a text message in which M.K.E. said that she was under
the age of 16. Mathwig realized that the images could be child pornogra phy, and he
stopped his search.

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Based on these text messages, Mathwig sought a third warrant on August 16, 2016,
to continue the search of the data from Cagle’s cellphone for evidence of child pornography
or child exploitation. When the third warrant was executed, Mathwig found additional text
messages from Cagle that indicated that he requested and received pornographic images of
M.K.E., and that he knew that M.K.E. was a minor.
Cagle was charged with possession of pornographic work involving a minor , in
violation of Minn. Stat. § 617.246, subd. 4(a) (2014); solicitation of a child to engage in
sexual conduct, in violation of Minn. Stat. § 609.352, subd. 2 (2014); and distribution of
electronic communication material describing sexual conduct to a child , in violation of
Minn. Stat. § 609.352, subd. 2a(3) (2104). Cagle moved to suppress the evidence and to
dismiss the case for lack of probable cause, arguing that there was not a sufficient basis for
issuing the search warrants and that the scope of the search under the May 3 warrant was
overbroad. The district court denied the motions, and the case was presented to the district
court on stipulated evidence pursuant to Minn. R. Crim. P. 26.01, subd. 4, in order to obtain
review of the district court’s ruling on the validity of the search warrants. The district court
found Cagle guilty on all three counts, sentenced him to a stay of imposition of 25 months
and a fine for possession of pornographic work involving a minor, and placed him on
supervised probation for five years. Cagle appeals.
D E C I S I O N
Under the Fourth Amendment to the United States Constitution, “no Warrant shall
issue, but upon probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to be seized.” U.S. Con st.

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amend. IV; accord Minn. Const. art. I, § 10. In general, police must obtain a search warrant
before searching a cellphone. See Riley v. California , 134 S. Ct. 2473, 2485 (2014).
“Generally, a search is lawful only if it is executed pursuant to a valid search warrant . . .
after a finding of probable cause.” State v. Holiday , 749 N.W.2d 833, 839 (Minn. App.
2008).
Probable cause requires “that there is a fair probability that the evidence will be
found at the specific site to be searched.” State v. Yarbrough, 841 N.W.2d 619, 622 (Minn.
2014). This means that a sufficient nexus must exist between the alleged criminal behavior
and the particular place to be searched or the item to be seized. Warden, Md. Penitentiary
v. Hayden, 387 U.S. 294, 307, 87 S. Ct. 1642, 1650 (1967); Yarbrough, 841 N.W.2d at
622; State v. Souto, 578 N.W.2d 744, 747-48 (Minn. 1998).
[D]irect observation of evidence of a crime at the place to be
searched is not required. A nexus may be inferred from the
totality of the circumstances. Among the circumstances the
issuing judge—and our court on “substantial basis” review —
considers in determining whether there is probable cause to
believe that the evidence sought will be found at a particular
place are the type of crime, the nature of the items sought, the
extent of the defendant’s opportunity for concealment, and the
normal inferences as to where the defendant would usually
keep the items.

Yarbrough, 841 N.W.2d at 622-23 (citations and footnote omitted).
When reviewing a district court’s decision to issue a search warrant, appellate courts
consider whether the issuing judge “had a substantial basis for concluding that probable
cause existed.” State v. Fawcett, 884 N.W.2d 380, 384 (Minn. 2016) (quotation omitted).
Appellate review “is limited to the information prese nted in the warrant application and

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supporting affidavit.” Id. A district court’s f actual findings are reviewed for clear error.
State v. Jackson , 742 N.W.2d 163, 168 (Minn. 2007). Appellate courts afford a district
court “great deference” when reviewi ng its probable -cause determination and do not
engage in de novo review. State v. Rochefort , 631 N.W.2d 802, 804 (Minn. 2001).
“[D]oubtful or marginal cases should be largely determined by the preference to be
accorded to warrants.” Fawcett, 884 N.W.2d at 385 (quotation omitted).
Nexus
Cagle argues that the district court lacked a substantial basis to find probable cause
to issue the first and second search warrants because a sufficient nexus did not exist
between the property to be seized and searched and the suspected crime. We agree that a
substantial basis did not exist to issue the second search warrant because the second search-
warrant application did not contain sufficient information to establish a nexus between the
suspected crime of child abuse or neglect and Cagle’s cellphone data.
The Minnesota Supreme Court applied the nexus principle in a case that involved a
search of electronic devices owned by a man who was suspected of killing his wife. State
v. Holland, 865 N.W.2d 666, 668-69, 672, 675-76 (Minn. 2015). Holland argued on appeal
that the warrant s that authorized the search es of electronic device s, which included
“laptops, old cell phones, iPads, thumb drives, and hard drives,” lacked probable cause
connecting him to his wife’s death or showing that the devices would contain evidence
relevant to the crime. Id. at 675.
In Holland, the affidavits supporting the search warrants for the electronic devices
described (1) the 911 call that Holland made reporting that his wife was in cardiac arrest,

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unconscious, not breathing, and cold; (2) the medical examiner’s report about Holland’s
wife’s injuries; and (3) the medical examiner’s conclusion that Holland’s wife’s death was
caused by an ass ault by another human being . Id. at 668, 675. The affidavits connected
Holland to the suspected crime because they stated that police saw several scratches on
Holland’s face and neck and that evidence discovered from previously searched cellphones
and surveillance video contradicted Holland’s statements to police. Id. at 674-75. Finally,
the affidavits stated that Holland admitted to police that he searched the phrase “can you
break your neck falling down the stairs” on his phone and iPad and claimed that he searched
the phrase because his wife had a dream about becoming paralyzed. Id. at 675.
The s upreme court determined that Holland’s electronic devices “could have
contained . . . search terms that woul d confirm or dispute Holland’ s statements about the
research” and concluded “that there was a substantial basis to determine that probable cause
existed and that the district court did not err in denying Holland’s motion to suppress
evidence obtained from [searching the electronic devices].” Id.
Unlike Holland, the second search -warrant application here did not contain
sufficient information to e stablish a nexus between the suspected crime of child abuse or
neglect and Cagle’s cellphone data. While photographs of the child were taken at the park
one day before the child’s death, the affidavit for the second search warrant contained no
information about whether Cagle’s cellphone was used to take the photographs. The child
had no signs of injury, and the child’s mother told law enforcement that the child appeared
fine after going to the park and had not suffered any noticeable injuries. Therefore, even
if we assume that there were photographs on Cagle’s phone, there was not a fair probability

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that they would be evidence of a crime . And, although the warrant application stated that
Cagle used a computer the night before the child’s death, it s aid nothing about Cagle ’s
general cellphone use or his cellphone use near the time of the child’s death. Also, the
second search-warrant application did not establish how or why certain cellphone data—
e.g., text messages, emails, internet browsing history, or GPS information—would tend to
be evidence in this case.
We recognize that the February 2 child-protection report could be evidence that the
child suffered sexual or physical abuse. But, to establish a nexus between abuse and the
child’s death, “the proof must be of facts so closely related to the time of the issue of the
warrant as to justify a finding of probable cause at that time.” Souto, 578 N.W.2d at 750
(quotation omitted). “When an activity is of an ongoing, protracted nature, the passage of
time is less significant.” Id. The child-protection report was dated three months before the
child’s death, and there was no information that would support an inference of o ngoing
abuse that would make the passage of time less significant. Also, the second search -
warrant application included no information to establish that Cagle was a caregiver for the
child at the time of the report or at the time of the child’s death or that Cagle’s cellphone
might contain information about possible abuse.
The state argues that , viewing the totality of the circumstances , a sufficient nexus
existed for the district court to find probable cause because a child was found dead and the
police had no rea sonable and obvious explanation for the death . According to the state,
law enforcement had a reason to suspect eit her a deliberate act or neglect, and s earching
the data on Cagle’s cellphone could help police “determine what happened to the child, to

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piece together the circumstance [s] surrounding his death, to identify potential witnesses
and suspects, to find motive, and to confirm or deny alibis.”
We are not persuaded, because t he state’s argument is based on the fact that
cellphones can hold a wealth of information about what a person is doing at any moment.
While it is possible that Cagle’s cellphone data could reveal something about the child’s
unexplained death, establishing probable cause requires more than a possibility. There
must be a fair probability that the cellphone data will include evidence about the death. See
Yarbrough, 841 N.W.2d at 622.
In holding that a warrant is generally required before searc hing cellphone data, the
Supreme Court explained in Riley that the breadth of information potentially available in a
cellphone increased the scope of the privacy interests at stake in a cellphone search. 134
S. Ct. at 2491. The court said:
Indeed, a cell phone search would typically expose to the
government far more than the most exhaustive search of a
house: A phone not only contains in digital form many
sensitive records previously found in the home; it also contains
a broad array of priva te information never found in a home in
any form—unless the phone is.

Id. (emphasis in original). And, in rejecting the proposal that a warrantless search of an
arrestee’s cellphone should be allowed whenever it is reasonable to believe that the phone
contains evidence of the crime of arrest, the Riley court noted that “[i]t would be a
particularly inexperienced or unimaginative law enforcement officer who could not come
up with several reasons to suppose evidence of just about any crime could be found on a

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cell phone.” Id. at 2492. Simply suggesting reasons to suppose that Cagle’s cellphone data
could reveal something about the child’s death does not establish probable cause.
Particularity
The second search warrant was also invalid because it lacked par ticularity and
resulted in an overbroad search. The Fourth Amendment requires that a search warrant
particularly describe “the place to be searched, and the persons or things to be seized.”
U.S. Const. amend. IV.
This requirement is intended to prevent “general searches” and to “assure the
individual whose property is searched or seized of the lawful authority of the executing
officer, his need to search, and the limits of his power to search.” Groh v. Ramirez, 540
U.S. 551, 561, 124 S. Ct. 1284, 1292 (2004). “[T]he specific evil is the ‘general warrant’
abhorred by the colonists, and the problem is not that of intrusion per se, but of a general,
exploratory rummaging in a person’s belongings.” Coolidge v. New Hampshire, 403 U.S.
443, 467, 91 S. Ct. 2022, 2038 (1971). A sufficiently particular warrant should leave
nothing to the discretion of the officer executing the warrant. Marron v. United States, 275
U.S. 192, 196, 48 S. Ct. 74, 76 (1927). “By limiting the authorization to search to the
specific areas and things for which there is probable cause to search, the requirement
ensures that the search will be carefully tailored to its justifications.” Maryland v.
Garrison, 480 U.S. 79, 84, 107 S. Ct. 1013, 1016 (1987). A search executed pursuant to a
warrant that fails to conform to the particularity requirement is unconstitutional.
Massachusetts v. Sheppard, 468 U.S. 981, 988 n.5, 104 S. Ct. 3424, 3427 n.5 (1984).

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“[W]hen determining whether a clause in a search warrant is sufficiently particular,
the circumstances of the case must be considered, as well as the nature of the crime under
investigation and whether a more precise description is possible under the circumstances.”
Fawcett, 884 N.W.2d at 387. “The standard to be used in this determination is one of
practical accuracy rather than technical nicety.” State v. Miller , 666 N.W.2d 703, 713
(Minn. 2003) (quotation omitted).
The second warrant authorized the search of Cagle’s cellphone for “C ellular
Telephone Data” and listed 21 types of information found on cellphones. In its order
denying Cagle’s motion to suppress, the district court found that it signed the second search
warrant requesting permission to search Cagle’s cellphone “for information a nd phone
activity during the dates of May 1st through May 2nd.” This finding is clearly erroneous
because the second search warrant placed no temporal limitation on the data to be searched.
There was also no subject -matter limitation . The warrant allowed police to search for
anything on Cagle’s phone going back ye ars, which resulted in law enforcement reading
text messages from 2014. Under the circumstances of this case, it was practical for law
enforcement to carefully tailor the search of the cellphone data to the purpose of finding
evidence regarding the child’s death by more precisely describing the data to be searched
and limiting the search to the time near the child’s death.
Fruit of the Poisonous Tree
Evidence obtained by searches and seizu res in vi olation of the Constitution is
inadmissible in state court. Mapp v. Ohio, 367 U.S. 643, 655, 81 S. Ct. 1684, 1691 (1961).
Evidence that is the fruit of illegal state action is inadmissible fruit of the poisonous tree.

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Wong Sun v. United States , 371 U.S. 471, 488, 83 S. Ct. 407, 417 (1963). The evidence
obtained under the second search warrant—Cagle’s text messages with M.K.E. going back
to 2014—is inadmissible because it was obtained in violation of the Fourth Amendment.
All evidence obtained under the third search warrant is inadmissible as fruit of the
poisonous tree because the third search warrant was based on information illegally
discovered under the second search warrant.
Citing State v. Lindquist , 869 N.W.2d 863 (Minn. 2015), t he state argues that the
good-faith exception to the exclusionary rule should apply. In Lindquist, the Minnesota
Supreme Court held that “the exclusionary rule does not apply to violations of the Fourth
Amendment . . . when law enforcement acts in objectively reasonable reliance on binding
appellate precedent .” Id. at 876 (emphasis added). The state does not identify any
“binding appellate precedent” that law enforcement reasonably relied on. Also, the state
failed to raise this issue below, and appellate courts “generally will not decide issues which
were not raised before the district court.” Roby v. State , 547 N.W.2d 354, 357 (Minn.
1996). The state forfeited the good-faith issue by not raising it at the omnibus hearing.
Because the evidence obtained under the second and third search warrants w as
inadmissible and Cag le’s convictions were based on this evidence, we reverse all of
Cagle’s convictions and his sentence.
Reversed.