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United States v. Furman

United States District Court, D. Minnesota

February 18, 2015

Rex Lee Furman, Defendant.


LEO I. BRISBOIS, Magistrate Judge.

This matter comes before the undersigned United States Magistrate Judge upon Defendant Rex Lee Furman's ("Defendant") Motion to Suppress Evidence Obtained as a Result of Search and Seizure, [Docket No. 21], and Motion to Suppress Statements, Admissions, and Answers, [Docket No. 22]. This case has been referred to the undersigned Magistrate Judge for a report and recommendation, in accordance with 28 U.S.C. § 636(b)(1) and Local Rule 72.1. The Court held a motions hearing on February 2, 2015, regarding the parties' pretrial motions.[1]

For reasons discussed herein, the Court recommends that Defendant's Motion to Suppress Evidence Obtained as a Result of Search and Seizure, [Docket No. 21], and Motion to Suppress Statements, Admissions, and Answers, [Docket No. 22], be DENIED.


A. Background

Defendant is charged with thirteen counts of production of child pornography, in violation of 18 U.S.C. §§ 2251(a), 2251(e), and 3559(e); two counts of distribution of child pornography, in violation of 18 U.S.C. §§ 2252(a)(2) and 2252(b)(1); one count of receipt of child pornography, in violation of 18 U.S.C. §§ 2252(a)(2) and 2252(b)(1); one count of possession of child pornography, in violation of 18 U.S.C. §§ 2252(a)(4)(B) and 2252(b)(2); and one count of commission of a felony offense involving a minor when required to register as a sex offender, in violation of 18 U.S.C. 2260A. (Indictment [Docket No. 1]).

B. Facts[2]

The record presently before the Court indicates that Defendant resides in Gould Township, Minnesota, in a house located at 10578 Sugar Point Drive Northwest. (Government's Ex. 2 at 8). Defendant's brother resides in a second house located on the same property, which has the street address 10580 Sugar Point Drive Northwest. (Id.). Defendant's brother pays for an internet account for the two residences that Defendant uses to wirelessly access the internet. (Government's Ex. 1 at 3:00-3:15). As a result, Defendant and his brother access the internet through a single account with one IP address. (See, Government's Ex. 2 at 8; Government's Ex.

1 at 3:00-3:15).

In August 2013, Special Agent David Giguere ("SA Giguere") of the Minnesota Bureau of Criminal Apprehension discovered that someone using a computer associated with IP address was sharing digital images of child pornography via the ARES peer-to-peer file sharing program. SA Giguere's subsequent investigation indicated that an association could be established between the computer with IP address on the ARES file sharing network and the IP address most recently assigned to 10580 and 10578 Sugar Point Drive Northwest in Gould Township, Minnesota. (See Gen., Government's Ex. 2).

On February 13, 2014, SA Giguere applied for two warrants, one to search each of the houses on the property. (Id.). The Honorable Jana Austad, District Judge for the Ninth District of the State of Minnesota, determined that probable cause supported the issuance of the two search warrants. (Id.). Only the warrant authorizing the search of Defendant's residence is presently at issue. That warrant authorized law enforcement officers to search Defendant's residence for computers, electronic devices, electronic storage media, cameras, papers, and data showing the receipt, possession, and/or distribution of child pornography and the sexual exploitation of children. (Id. at 10-11).

After the warrants were issued on February 13, 2014, eight law enforcement officers went to the property to execute the warrants for the two residences simultaneously. Six or seven of the officers, including SA Giguere, executed the warrant to search Defendant's residence. Only one of the officers executing the warrants was in uniform. The rest wore raid vests indicating their status as law enforcement officers. Defendant and his niece were at his residence when the officers executed the warrant. Defendant met the officers at or near the door of the residence. The officers informed Defendant that they suspected that someone at Defendant's residence had been downloading child pornography from the internet and that the officers were there to execute a warrant to search the residence. SA Giguere later testified that Defendant made at least one statement at that time that was not recorded.[3]

Upon the officers' entry, the uniformed officer took a position at the front door while the other officers, except for SA Giguere, began to search the residence. Shortly after entering, while still near the front door of the residence, SA Giguere approached Defendant and asked to speak to him. Defendant agreed, and he and SA Giguere took seats in the living room of Defendant's residence. SA Giguere began the interview, which was recorded, by telling Defendant that he was not under arrest at that time. (Government's Ex. 1 at 00:30-00:35). SA Giguere then read Defendant the Miranda warnings and asked if Defendant would be willing to speak with him. (Id. at 1:24-2:00). Defendant responded affirmatively, stating he had "no problem with that." (Id. at 2:00-2:08).

During the interview, Defendant admitted multiple times to having images of child pornography on his computer and to having obtained such images via internet file-sharing programs. (See, Id. at 4:30-5:15, 6:45-6:55, 15:00-15:03, 21:15-21:35, 23:15-23:42, 24:00-24:15, 34:40-34:50, 35:40-36:10, 36:30-36:40). SA Giguere asked Defendant to provide him with the password to Defendant's computer. (Id. at 3:50-3:55, 25:25-25:30, 30:00-30:05). Defendant initially refused the request, but ultimately provided the password to SA Giguere. (Id. at 3:55-4:00, 25:30-25:45, 30:05-30:10). The interview lasted approximately forty-six (46) minutes. (See Gen., Id.). SA Giguere asked Defendant at the end of the interview whether he had participated voluntarily, to which Defendant responded that he had. (Id. at 45:10-45:15). SA Giguere asked Defendant whether SA Giguere had made any threats or promises to secure Defendant's participation, to which Defendant responded that SA Giguere had not. (Id. at 45:15-45:20).

Defendant did not appear to SA Giguere to have any difficulty understanding the questions during the interview. Defendant also appeared to provide coherent, appropriate responses to SA Giguere's questions. Defendant was not placed in handcuffs or otherwise physically restrained at any time before, during, or after the interview. The interview took place in the living room of the residence close to the front door. Only the uniformed officer and one other officer were in or near the living room as SA Giguere interviewed Defendant, and the other officers were otherwise involved in searching the residence while the interview was going on.

Well after the interview had ended, while the officers were preparing to leave the residence, Defendant spontaneously told SA Giguere that one of the computer disks that had been seized during the execution of the search warrant contained images depicting Defendant and his daughter applying medicine to Defendant's granddaughter's pubic area. SA Giguere was not asking Defendant any questions prior to this statement by Defendant.[4]

The officers did not arrest Defendant at the conclusion of the search of his residence on February 13, 2014. Defendant was not arrested until after being indicted with the charges now against him. Defendant then filed the motions to suppress his February 13, 2014, statement and the results of the February 13, 2014, search of his residence presently before the Court, [Docket Nos. 21, 22].


Defendant moves the Court for an order suppressing any physical evidence obtained as a result of the February 13, 2014, execution of the search warrant at his residence. (Def.'s Motion to Suppress Evidence Obtained as a Result of Search and Seizure, [Docket No. 21]).

At the February 2, 2015, motion hearing, Defense counsel represented on the record that the present motion is limited to a "four-corners" challenge concerning the sufficiency of the probable cause articulated in the affidavit submitted in support of the application for the state court search warrant.

A. Standard of Review

The Fourth Amendment guarantees the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, " and that "no warrants shall issue, but upon probable cause, supported by Oath or affirmation." U.S. Const. Amend. IV. The Eighth Circuit has held that "[a]n affidavit establishes probable cause for a warrant if it sets forth sufficient facts to establish that there is a fair probability that contraband or evidence of criminal activity will be found in the particular place to be searched." United States v. Mutschelknaus, 592 F.3d 826, 828 (8th Cir. 2010) (internal quotation marks and citation omitted). "Probable cause is a fluid concept that focuses on the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.'" United States v. Colbert, 605 F.3d 573, 576 (8th Cir. 2010) (quoting Illinois v. Gates, 462 U.S. 213, 231 (1983)). Courts use a "totality of the circumstances test... to determine whether probable cause exists." United States v. Hager, 710 F.3d 830, 836 (8th Cir. 2013) (citation omitted).

The sufficiency of a search warrant affidavit is examined using "common sense and not a hypertechnical approach." United States v. Grant, 490 F.3d 627, 632 (8th Cir. 2007) (citation and internal quotations omitted). "In ruling on a motion to suppress, probable cause is determined based on the information before the issuing judicial officer.'" United States v. Smith, 581 F.3d 692, 694 (8th Cir. 2009) (quoting United States v. Reivich, 793 F.2d 957, 959 (8th Cir. 1986)). "Therefore, [w]hen the [issuing judge] relied solely upon the supporting affidavit to issue the warrant, only that information which is found in the four corners of the affidavit may be considered in determining the existence of probable cause.'" United States v. Wiley, No. 09-cr-239 (JRT/FLN), 2009 WL 5033956, at *2 (D. Minn. Dec. 15, 2009) (Tunheim, J.) (quoting United States v. Solomon, 432 F.3d 824, 827 (8th Cir. 2005); edits in Wiley). In addition, the issuing court's "determination of probable cause should be paid great deference by reviewing courts, '" Gates, 462 U.S. at 236 (quoting ...

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