United States District Court, D. Minnesota
REPORT AND RECOMMENDATION AND ORDER
BRISBOIS U.S. MAGISTRATE JUDGE
matter comes before the undersigned United States Magistrate
Judge pursuant to a general assignment, made in accordance
with the provisions of 28 U.S.C. § 636 and Local Rule
72.1, and upon Defendant Arthur Dale Senty-Haugen's
(“Defendant”) Motion to Suppress, [Docket No.
On October 5, 2017, a hearing was held regarding the
parties' pretrial motions. At the motions hearing, the
parties requested the opportunity to submit supplemental
briefing which was completed on October 26, 2017, and
Defendant's Motion to Suppress, [Docket No. 24], was then
taken under advisement at that time. Also on October 26,
2017, Defendant filed a Motion for Leave to File Additional
Documents, [Docket No. 37], and the Government filed its
Motion to Strike Pro Se Filings. [Docket No. 38]. Thereafter,
the Court informed the parties that it would take all the
parties motions under advisements on October 26, 2017. (Text
Only Entry [Docket No. 39]).
reasons discussed herein, the Court recommends that
Defendant's Motion to Suppress, [Docket No. 24], be
DENIED. The Court also DENIES as
moot Defendant's Motion for Leave to File
Additional Documents, [Docket No. 37], as well as, the
Government's Motion to Strike Pro Se Filings. [Docket No.
BACKGROUND AND STATEMENT OF RELEVANT FACTS
is charged with one (1) count of conspiracy to defraud the
United States, in violation of 18 U.S.C. § 286, and four
(4) counts of false claims, in violation of 18 U.S.C.
§§ 287 and 2. (Indictment [Docket No. 1]).
Relevant Facts 
record presently before the Court indicates that in January
2012, Minnesota Sex Offender Program (“MSOP”)
Special Investigator Thane Murphy (“SI Murphy”)
was randomly monitoring recorded phone calls from clients
when he heard a call Defendant had placed that “didn't
sound right.” (October 5, 2017, Motions Hearing,
Digital Recording at 11:37-11:39 a.m.). SI Murphy then
began specifically listening to Defendant's phone calls
when he monitored phone calls. (Id. at 12:41-12:46
a series of monitored phone calls, SI Murphy heard Defendant
instruct a third party to do online banking, as well as,
instruct that third party to set up and check various email
accounts. (Id.). These online bank accounts, as well
as, the various email addresses discussed included the names
and social security numbers of other clients within the MSOP.
(Id. at 11:37- 11:39 a.m., 12:13-12:15 p.m.). Upon
listening to the phone calls and hearing Defendant discuss
the names and social security numbers of other MSOP clients,
SI Murphy became suspicious that criminal activity was afoot.
(Id. at 11:38-11:40 a.m.). SI Murphy continued to
monitor Defendant's phone calls, and he wrote an incident
report regarding each suspicious call. (Id. at
Murphy thereafter requested a history of Defendant through
the incident report database. (Id. at 11:40-11:41
a.m.). That history revealed that in 2010 another Special
Investigator requested that SI Murphy and his then-partner
search Defendant's room for financial reports related to
a mail fraud investigation at that time. (Id. at
11:40-11:42 a.m., 12:18-12:20 p.m.). However, SI Murphy
testified that the 2010 search was unrelated to the
investigation which is the subject of the present motion.
Murphy then continued to monitor Defendant's phone calls
and create incident reports because he was not sure who all
was involved in the suspicious conduct. (Id. at
11:46-11:47 a.m.). During this continued monitoring, SI
Murphy heard Defendant instruct another third party to go
online to complete tax forms again using other clients names
and social security numbers, to check various email accounts
under other clients' names, and to order merchandise
online to be sent to the MSOP at Moose Lake. (Id. at
11:43-11:46 a.m., 12:13-12:15 p.m.). Defendant also instruct
the third party to check the account balances on various
banks accounts under the names of other clients by giving the
third party the different names and all the identifying
information for other clients at the MSOP. (Id.).
During the phone calls, SI Murphy would also hear the
Defendant and the third party refer to individuals by a
numbered system and read numerical values correlating to
of his continued investigation, SI Murphy also obtained a
digital copy of Defendant's client network materials to
search for anything related to false taxes being filed.
(Id. at 12:01-12:06 p.m.). In this search of
Defendant's client network, SI Murphy discovered a
spreadsheet with clients' initials and a list of
numerical values on it, as well as, tax forms with other
clients' names on the forms. (Id. at 12:10-12:14
p.m.). SI Murphy testified at the motions hearing that this
spreadsheet matched the numbers he had heard the Defendant
and the third party referring to in various phone calls.
April 16, 2013, after SI Murphy had continued to monitor
Defendant's phone calls and reviewed his incident report
history, SI Murphy asked the Officer of the Day to search
Defendant's room to look for tax forms, address books,
financial information, or anything financially suspicious
that might help SI Murphy collect addition materials for his
investigation. (Id. at 11:41-11:43 a.m., 12:13-12:15
p.m.). As a result of that room search, officers seized tax
and financial related paperwork, including a hard copy of the
spreadsheet SI Murphy discovered on Defendant's client
network, as well as, an address book. (Id. at
Murphy also-with the approval of his supervisors-monitored
Defendant's mail going in and out of the MSOP except for
Defendant's legal mail. (Id. at 12:18-12:22
p.m.). Upon SI Murphy's request, the mail room at the
MSOP began specifically monitoring Defendant's ingoing
and outgoing non-legal mail. (Id.). SI Murphy
testified at the motions hearing that he only remembered one
or two pieces of mail belonging to Defendant being brought to
SI Murphy's attention while Defendant's mail was
being monitored. (Id. at 12:22-12:24 p.m.).
the above investigation, SI Murphy created two Investigation
Reports: Investigation Report 2012-0291 and Investigation
Report 2012-0356. (Def.'s Ex. 6, 7). SI Murphy
testified that he created two reports because, after he
completed his first report, Defendant began communicating
with a second third party in the same manner he had been
communicating with the original third party. (October 5,
2017, Motions Hearing, Digital Recording at 11:46-11:48
a.m.). In January 2014, SI Murphy turned his Investigation
Reports, including all of his findings, over to Brian Belich,
an investigator at the Internal Revenue Service.
(Id. at 12:24-12:26 p.m.). SI Murphy continued to
monitor Defendant after he provided his reports to the
Internal Revenue Service. (Id.).
DEFENDANT'S MOTION TO SUPPRESS. [DOCKET NO. 24].
moves this Court for an Order suppressing any evidence
obtained as a result of any warrantless search of his phone
calls, mail, computer network, and room after he became the
suspect of suspicious criminal activity. (Def.'s Mot. to
Suppress [Docket No. 24]).
argues that “[t]he warrantless searches and seizures of
[Defendant's] property and communications after he became
the focus of an investigation were an unconstitutional
violation of his right to be free from unreasonable searches
and searches under the state and federal
constitutions.” (Def. Mem., [Docket No. 36], at 6).
Defendant reasons that “the Minnesota Patient's
Bill of Rights is a declaration of the understanding of
patients' retention of civil liberties that are
recognized and permitted by society and is a source of a
reasonable expectation of privacy under the Minnesota and
federal constitutions.” (Id. at 7).
also submitted a pro se memorandum in which his only
constitutional argument unique from that of his legal counsel
is that he was in the first instance unlawfully detained at
the MSOP, and therefore, according to Defendant, he retains
the Fourth Amendment right and protections of a private
citizen. (Pro Se Mem., [Docket No. 36-1], at
Court takes each of these arguments in turn.
Defendant's Pro Se Argument
pro se memorandum specifically argues that “Defendant
has been unlawfully detained by MSOP since January 6, 2009,
” and therefore SI Murphy “did not have legal
jurisdiction to conduct searches of the Defendant's
phone, mail and/or computers without first obtaining search
warrants or subpoenas.” (Id. at 8-9). This
argument is based on Defendant's assertion that he
“had all the rights afforded to a private United States
citizen.” (Id. at 9).
argument, Defendant acknowledges that on April 1, 1996, he
was committed to the MSOP as a sexually psychopathic person
and sexually dangerous person for an indeterminate period of
time. (Id. at 1).
further acknowledges that in November 2004, he “was
indicted by a grand jury on federal charges and eventually
pled guilty to five counts of aiding and abetting false
claims and one count of conspiracy to defraud the government
in connection with a tax fraud scheme, and was sentenced to
57 months' imprisonment in a federal facility.”
Senty-Haugen v. Ludeman, 10-cv-3073 (ADM/FLN),
Docket No. 15 at 2 (D. Minn. June 8, 2011); (Pro Se Mem.,
[Docket No. 36-1], at 2). Thereafter, Defendant was
transferred from the MSOP to federal custody.
argues that the MSOP voluntarily relinquished jurisdiction
over him when he was transferred into federal custody, and
therefore, Defendant argues, the MSOP “did not have the
legal jurisdiction to take custody [of Defendant] after the
Defendant [was] discharged from his federal sentence.”
(Id. at 3-4). Essentially, Defendant argues that
upon his discharge from federal custody he was a private
citizen, and therefore, the MSOP unlawfully took custody of
him upon his return to the MSOP. (Id.).
as Defendant must concede, he has already presented this
argument to the Court in Senty-Haugen v. Ludeman,
10-cv-3073 (ADM/FLN) (D. Minn.), and the Court rejected
Defendant's argument. In fact, Defendant not only
acknowledges his prior presentation of this argument
challenging his underling commitment, he quotes the
Court's previous Order at length. (See, Pro Se
Mem., [Docket No. 36-1], at 5).
Defendant previously challenged his underlying civil
commitment raising the same arguments as he again raises
here, the Honorable Ann D. Montgomery, United States District
Court Judge for the District of Minnesota, held that
Defendant's claim was procedurally defaulted and that
“[e]ven assuming that cause exist[ed] to excuse
[Defendant's] procedural default, his claim fails on the
merits.” Senty-Haugen v. Ludeman, 10-cv-3073
(ADM/FLN), Order [Docket No. 15], at 3 (D. Minn. June 8,
2011). Judge Montgomery reasoned that as Defendant was
committed to the MSOP indefinitely, and as the MSOP was the
first to obtain custody of Defendant, it had primary
jurisdiction over him indefinitely. (Id. at 3-4).
Judge Montgomery concluded that Defendant “was, in
effect, temporarily removed or ‘on loan' from the
primary jurisdiction of the MSOP pursuant to the federal
writ, ” and that “[o]nce [Defendant's]
federal sentence was completed, he was properly returned to
the custody of the MSOP to carry out an indefinite
sentence.” (Id. at 4). Accordingly, Judge
Montgomery denied Defendant's Petitioner for a Writ of
Habeas Corpus. Judge Montgomery also declined to grant
Defendant a certificate of appealability.
Defendant attempts to here again raise the argument he
present to Judge Montgomery and challenge her holding as in
err, this is not the proper forum for such a challenge. Judge
Montgomery has already held that Defendant is lawfully
committed to the MSOP; he cannot again challenge that
commitment on the same grounds presented to Judge Montgomery.
Defendant's avenue to a remedy, if any, is to the Eighth
Circuit Court of Appeals, not a collateral attack with this
Defendant's Fourth Amendment Based Arguments
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.
“[a]n individual asserting Fourth Amendment rights
‘must demonstrate that he personally has an expectation
of privacy in the place searched, and that his expectation is
reasonable.'” United States v. Barragan,
379 F.3d 524, 529 (8th Cir. 2004) (citing Minnesota v.
Carter, 525 U.S. 83, 88 (1998)); Rakas v.
Illinois, 439 U.S. 128, 133-34 (1978). In any Fourth
Amendment challenge, the Court must first determine whether a
justifiable expectation of privacy is at issue; stated
differently, the Court must determine whether the defendant
challenger invoking the protection of the Fourth Amendment
can claim a legitimate expectation of privacy that has been
invaded by government action. See, e.g., Smith
v. Maryland, 442 U.S. 735, 740 (1979). The defendant
bears the burden of proving a reasonable expectation of
privacy in the area searched. Rakas, 439 U.S. at
130-31. To establish a legitimate expectation of privacy, the
defendant must show a subjective expectation of privacy
and that his expectation of privacy is one that
society is prepared to recognize as objectively reasonable.
See, United States v. Mathias, 721 F.3d
952, 957 (8th Cir. 2013) (“The question of whether a
person has a constitutionally protected reasonable
expectation of privacy in an area requires us to ask (1)
whether the individual manifested a subjective expectation of
privacy in the area; and (2) whether society is willing to
recognize the expectation as reasonable.”) (citing
California v. Ciraolo, 476 U.S. ...