State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A21-1722

State of Minnesota,
Respondent,

vs.

Brady Kevin Hanson,
Appellant.

Filed October 10, 2022
Affirmed
Bryan, Judge

Polk County District Court
File No. 60-CR-19-185

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Greg Widseth, Polk County Attorney, Clifford B. Wardlaw, Assistant County Attorney,
Crookston, Minnesota (for respondent)

Matthew S. Dearth, Vogel Law Firm, Fargo, North Dakota, (for appellant)

Considered and decided by Slieter, Presiding Judge; Bryan, Judge; and Klaphake,
Judge.
*

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
2
NONPRECEDENTIAL OPINION
BRYAN, Judge
Appellant challenges the district court’s denial of his motion to dismiss the charge
against him. Specifically appellant argues that the state acted in bad faith when it attempted
to unlock his cellphone, which resulted in the loss of text messages that appellant hoped to
use in his defense. Because we conclude that appellant did not establish that the state acted
in bad faith, we affirm the district court .
FACTS
In January 2019, respondent State of Minnesota charged appellant Brady Kevin
Hanson with burglary in the second degree under Minnesota Statutes section 609.582,
subdivision 2(a)(1) (2018), for entering B.Y.’s home without her consent and stealing her
dog. According to the complaint, Hanson wanted a romantic relationship with B.Y .
Hanson repeatedly contacted B.Y., but B.Y. did not respond to the majority of Hanson’s
phone calls and text messages. On January 26, B.Y. reported to law enforcement that her
dog was missing. B.Y. explained that Hanson called and texted her numerous times and
followed her as she drove around Fosston, Minnesota. B.Y. also reported that Hanson sent
her a snapchat video of her dog in a vehicle and the message “ maybe you’ll talk now”
appearing across the video. Hanson texted B.Y. threatening to release the dog 200 miles
away, in North Dakota. Five days after the dog was taken, B.Y. found it roaming a mile
outside of her town. Police ultimately arrested Hanson and confiscated his cellphone .
During the pretrial litigation, Hanson request ed that the state disclose evidence
obtained from his phone. Hanson expressed his intent to use this evidence —specifically
3
text messages—to show that B.Y. consented to him entering her residence but stated that
he had not received cellphone data from the state. Ultimately, the state informed Han son
that it was not able to retrieve text messages from Hanson’s cellphone and Hanson moved
to dismiss the charge. At a hearing on Hanson’s motion, the district court admitted
testimony from Hanson and Polk County Sheriff’s Deputy Jesse Haugen.
The evidence presented to the district court and the submissions of the parties to the
district court establish the following facts . Between July 29, 2019, and January 14, 2020,
the state informed Hanson’s counsel that it was “unable to access the defendant’s phone
because it is password protected.” Hanson provided three different possible passcodes to
the state and warned “that after five failed attempts, the phone will reset back to factory
settings.” Hanson al so offered to unlock the phone with his fingerprint. On or about
December 17, 2019, police attempted the three passcodes, but they did not work. Hanson
offered to unlock the phone in person, but on January 8, 2020, the state informed Hanson
that “[t]he cellphone reset” and that it “was wiped to the default.”
When asked about the standard law enforcement practices at his agency, Deputy
Haugen testified that during an investigation, the sheriff’s department typically sent phones
to a third -party agency for extraction of all cellphone data . Deputy Haugen also testified
that he seized Hanson’s cellphone because he believed that “there was potential evidence
that could have been on that cellphone.” According to Deputy Haugen and the information
he received from an investigator, the third-party agency could not extract any data until the
phone had been unlocked. Deputy Haugen also testified that on December 17, 2020, after
receiving the three possible passcodes, he tried to unlock the phone. Deputy Haugen
4
explained that after the first passcode was entered, a message appeared, but he did not recall
what it said. Deputy Haugen explained his process for trying to unlock the phone:
It was one after the next is what I tried. I physically looked at
the code. I had it on my desk. [Another investigator] was near
me. He observed me do the pattern and it didn’t work, so I
said, okay, let’s try the second one or the next one, and we tried
that, it didn’t work, and then we went on to the third code.

After the third attempt, the phone shut off. Deputy Haugen did not recall any
wording appearing on the screen before the phone shut off. H e emailed the prosecutor to
explain what happened. Deputy Haugen testified that he had no way of confirming that
the contents of the cellphone were wiped or cleared, but he assumed they were no longer
accessible. H e also testified that he was unaware of the data contained on the phone and
unaware of other attemp ts to extract the data before or after his attempts in December.
Hanson also testified and stated that B.Y. allowed him to enter her home “quite
frequently.” Hanson believed that his text messages to her supported this claim. Hanson
stated that he had had permission to enter B.Y.’s home to spend time with B.Y., sometimes
spend the night, or sometimes to let her dog out when she worked late. Hanson gave three
different possible passcodes to unlock the phone, explaining that he “forgot [the passcode]
when [he] was asked for it.” Hanson stated that he believed one of the three passcodes
would unlock the phone and that his phone would allow nine failed attempts to login.
Hanson explained that after each failed attempt, he believed a message would appear
showing how many attempts remained. Hanson provided no testimony regarding the exact
wording of this message. Hanson agreed that he told his attorney that a user had five
chances to input the passcode, even though he actually believed the user had nine chances
5
because he “didn’t want it to get higher” and risk losing “all of [the] evidence of [B.Y.]
telling [him] to come over and let her dog out.” Hanson did not specif y the dates of the
text messages from B.Y. purporting to give him permission to enter her residence.
On July 23, 2020, the district court denied Hanson’s motion to dismiss the case.
The district court found that Hanson had not testified regarding when B.Y. gave her
permission for him to enter her home or what time period her consent may have covered.
More specifically, the district court reasoned that Hanson may have had permission in the
past, but B.Y. revoked this permission when she told him that she no longer wanted to have
contact with him. The district court determined that Hanson had not established “that [the
phone data] would have been material” and , therefore, the evidence “had no apparent and
material exculpatory value . . . to invoke the government’s duty of preservation.” The
district court also concluded that Deputy Haugen was not conducting an investigative
search when he tried to unlock the phone; he was responding to a discovery request and
acted in good faith when “relying on the passcodes that had been provided by [Hanson] .”
After a bench trial in May 2021, the district court found Hanson guilty of second-
degree burglary. The district court sentenced Hanson to eighteen months’ imprisonment
but stayed execution of that sentence for three years. Hanson appeals.
DECISION
Hanson argues we should reverse the district court’s denial of his motion to dismiss
because his due process rights were violated when Deputy Haugen deviated from a
standard practice, causing the destruction of the text messages from Hanson’s cellphone.
Because the evidence does not show that Deputy Haugen deviated from a standard practice
6
when he inputted the passcodes provided to him by Hanson, we conclude that the state did
not act in bad faith.
A defendant’s right to due process of law may be implicated if the state loses or
destroys material evidence , State v. Jenkins, 782 N.W.2d 211, 235 (Minn. 2010) , and the
prosecution has a duty to disclose “favorable and material” evidence to the def ense, State
v. Williams, 593 N.W.2d 227, 234 (Minn. 1999) (citing Brady v. Maryland, 373 U.S. 83,
87 (1963)). However, “unless a criminal defendant can show bad faith on the part of police,
failure to preserve potentially useful evidence does not constitute a denial of due process
of law.” Arizona v. Youngblood, 488 U.S. 51, 58 (1988).
1 The Minnesota and United
States Supreme Courts “have previously identified two indices of bad faith: (1) whether
the State purposefully destroyed evidence favorable to a defendant so as to hide it; and
(2) whether the State failed to follow standard procedures when it destroyed the evidence.”
State v. Hawkinson, 829 N.W.2d 367, 373 (Minn. 2013) (citations omitted). Whether a
due-process violation has occurred presents a question of law, which appellate courts
review de novo. State v. Beecroft, 813 N.W.2d 814, 836 (Minn. 2012).
In this case, Hanson asserts that the second portion of Hawkinson applies, arguing
that Deputy Haugen failed to follow the standard practice of having a third -party agency

1 Youngblood distinguishes between the loss of exculpatory evidence (which constitutes a
due process violation without regard to whether the state acted in bad f aith) and the loss of
only “potentially useful evidence” (which constitutes a due process violation only when
the defendant establishes that the state acted in bad faith ). 488 U.S. at 57- 58 (citing
California v. Trombetta, 467 U.S. 479, 486 (1984) ). Hanson characterizes the text
messages as potentially useful evidence and concedes he must show bad faith to prevail.
7
search the phone.2 We conclude that Hanson has not established that Deputy Haugen
intentionally destroyed the text messages in violation of a standard practice.3 The evidence
in the record relates to a s ingle standard practice: Deputy Haugen stated that when
extracting all of a cellphone ’s data during an ongoing criminal investigation, the sheriff’s
department transfers the phone to a third-party agency. There is no evidence of any policy
regarding informally viewing a phone or formally searching a phone for non- investigative
purposes, and no evidence regarding any policy for responding to a criminal defendant’s
discovery request. Likewise, and more importantly, there is no evidence of any policy
regarding unlocking a device or prioritizing different methods of unlocking a device , such
as using a fingerprint instead of a passcode . Because the conduct in this case involved
Deputy Haugen’s attempts to unlock the cellphone, we cannot conclude that this conduct
deviated from a standard practice a bsent some evidence of a policy or convention for
unlocking a device.

2 Hanson does not argue that the first portion of Hawkinson applies to the facts in this case
or that Deputy Haugen purposefully sought to hide potentially useful evidence.
3 We are concerned that the record does not establish that the messages Hanson sought
were actually destroyed. See Trombetta, 467 U.S. at 489 (a defendant must show that they
are “unable to obtain comparable evidence by other reasonably available means”); State v.
Heath, 685 N.W.2d 48, 55- 56 (Minn. App. 2004) (same). There is no evidence regarding
what happens to text messages upon a “factory reset” or whether the messages remain on
the phone but are inaccessible without additional software or expertise. In addition, there
is no evidence that the data was also erased from any archive or backups —manual or
automatic, whether on Hanson’s own storage devices or on an internet server —that may
exist. The evidence may also be available through Hanson’s service provider or other third
party, in addition to B.Y.’s phone. Nevertheless, in light of our decision that the evidence
does not establish Deputy Haugen deviated from a standard practice, we need not
determine whether the evidence establishes that the data was actually destroyed.
8
To the extent that portions of Hanson’s brief argue that even in the absence of
evidence that Deputy Haugen violat ed a standard procedure , Deputy Haugen’s actions
were in bad faith because those actions were done after receiving a discovery request and
after seeing the phone’s warning message, we remain unconvinced for two reasons. First,
in Hawkinson, the supreme court declined to hold that destruction of evidence after
receiving a defendant ’s discovery request is evidence of bad faith. Id. at 375-76. Further,
the context of Deputy Haugen’s actions undercut Hanson’s argument. For instance,
Deputy Haugen testified that he hoped Hanson’s phone would contain inculpatory evidence
and there is no reason to believe that Deputy Haugen would intend to destroy inculpatory
evidence. In addition, Deputy Haugen made no attempts to view the contents of the phone
until after Hanson provided three incorrect passcodes . Given that context, the sequence of
the discovery request occurring prior to the loss of the text messages does not indicate bad
faith.
Second, we cannot inf er bad faith, as Hansen does, based on the fact that Deputy
Haugen inputted the three passcodes, despite the phone’s warnings. The evidence contains
no evidence of what the warning actually stated , whether it warned of data loss, or whether
it described any other consequences of inputting an incorrect passcode. Deputy Haugen’s
testimony does not establish that he read or understood the warning on the phone; it only
shows that Deputy Haugen did not recall what the message said. As noted above, Hanson
bears the burden to show Deputy Haugen acted in bad faith. Without knowing the precise
language of the error message, we cannot conclude that Deputy Haugen acted in bad faith.
Affirmed.