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United States v. Kuhnel

United States District Court, D. Minnesota

November 28, 2017

United States of America, Plaintiff,
v.
John Edwin Kuhnel, Defendant.

          Miranda Dugi, Esq., United States Attorney's Office, counsel for Plaintiff.

          Robert M. Paule, Esq., Robert M. Paule, PA, counsel for Defendant.

          REPORT AND RECOMMENDATION

          BECKY R. THORSON, UNITED STATES MAGISTRATE JUDGE.

         Defendant John Edward Kuhnel was charged with one count of possessing child pornography as a person previously convicted of sexually abusing a minor. (Doc. No. 1, Criminal Complaint); see 18 U.S.C. §§ 2252(a)(4)(B), 2252(b)(2). On August 7, 2017, Defendant moved to suppress evidence seized following a warrantless search of his car on or about November 29, 2016. (Doc. No. 20.) This Court held a hearing on this motion on September 14, 2017. (Doc. No. 31.) At the hearing, former Hennepin County probation officer Brian James testified about how he monitored Defendant's online activities as a condition of Defendant's supervised release, which led to the search of Defendant's car and the recovery of two laptop computers. (Doc. No. 35, 9/14/17 Mot. Hr'g Tr. (hereinafter “Tr.”) 6-64.) The Government also introduced three exhibits: (1) records from Defendant's criminal case in Hennepin County, Case Number 27-CR-10-6587; (2) conditions of Defendant's supervised release, effective from 9/2/14 through 9/2/24; and (3) a Hennepin County search warrant application, search warrant, and return. (Doc. No. 40, Exhibit List, Gov't Exs. 1-3.) Defendant offered one exhibit, a Uniform Case Report for Defendant issued by Hennepin County Adult Field Services. (Id., Gov't Ex. 1.)

         Based on the evidence presented at the hearing, and for the reasons detailed below, this Court recommends that Defendant's Motion to Suppress Evidence Seized Without a Warrant (Doc. No. 20) be denied.

         I. Factual Background

         A. Defendant's Conviction, Revocation, and Conditional Release Period

         In 2010, Defendant pled guilty to second degree criminal sexual conduct in Hennepin County. (Tr. 7; Gov't Ex. 1.) Defendant engaged in sexual contact with his three-year-old daughter and masturbated in her presence. (Tr. 9; Gov't Ex. 1 at 9-10.) Defendant's sentence was stayed for five years, subject to conditions of supervision, and Defendant served eighty-eight days at the Hennepin County Workhouse. (Tr. 9.) Defendant, however, violated his conditions of supervision by using alcohol and other controlled substances. (Id. at 11, 25.) The stay was therefore revoked and Defendant was given an executed sentence of thirty-six months. (Id. at 11.) Defendant served two-thirds of that sentence in prison, minus credit for time served, and the last year was considered good time credit, which he served on supervised release, commonly called parole. (Id. at 14, 49.) Concurrent to the beginning of the supervised release term, Defendant began serving a mandatory ten-year conditional release period pursuant to state statute. (Id.); Minn. Stat. §§ 609.343, subd. 2(c), 609.3455, subd. 6. Defendant was released from prison on September 2, 2014, and his conditional release period was projected to expire on September 2, 2024. (Tr. 17-18; Gov't Ex. 2.)[1]

         B. Officer Brian James

         Brian James is currently a United States Probation Officer, a position he has held since December 2016. (Tr. 6.) Prior to that, Officer James was a probation officer for over ten years with Hennepin County. (Id.) During the last four years of his time with Hennepin County, Officer James worked in the sex offender unit, supervising sex offenders such as Defendant. (Id. at 6-7.) Officer James supervised Defendant for about a year and a half, from the summer of 2015 until he left Hennepin County in December 2016. (Id. at 18.) Officer Mark Walz supervised Defendant before Defendant was transferred to the supervision of Officer James. (Id.)

         C. Defendant's Release Conditions

         Upon his release from custody on September 2, 2014, Defendant was subject to a variety of standard and special conditions of release. (Id. at 17-19; Gov't Ex. 2.) Any “request to restructure the conditions of release” were required to be “submitted in writing by the offender to the agent/designee.” (Tr. 26; Gov't Ex. 2 at 2.) His Conditions of Release stated that “[t]he Executive Officer of Hearings and Release or designee will have the final authority to grant or deny restructuring of the above conditions of release and any such changes will be set forth in writing.” (Tr. 26; Gov't Ex. 2 at 2.) None of the special or standard conditions were ever altered during the term of Defendant's conditional release period. (Tr. 26.) Defendant signed the document on August 27, 2014, certifying that he “fully understand[s] all the rules, regulations and conditions in this document” and that he “received a copy of the document.” (Tr. 27; Gov't Ex. 2 at 1.)[2]Defendant was subject to these conditions in 2016. (Tr. 67.)

         Standard Condition No. 13 provides that the “offender will submit at any time to an unannounced visit and/or search of the offender's person, vehicle or premises by the agent/designee.” (Tr. 26; Gov't Ex. 2 at 2.)

         Special Condition No. 2 provides: “Must not purchase or possess or allow in his or her residence . . . sexually explicit materials, nor enter an establishment that has sexual entertainment as its primary business as determined by the agent/designee.” (Tr. 19; Gov't Ex. 2 at 1.)

         Special Condition No. 3 provides: “Must not own or operate any device that allows for Internet capabilities or access to the Internet through any technology or third party, call sex/chat/dating or social lines without documented approval of the agent/designee. If Internet access is approved by the agent, must not access sex/chat/social/dating web sites/blogs without prior approval of agent/designee.” (Id. at 19-20; Gov't Ex. 2 at 1.) Examples of forbidden services include Facebook, Twitter, Instagram, Tinder, or Craigslist. (Tr. 20-21.) The concern with these services is that it is very difficult to monitor whether there is any inappropriate activity, such as contacting someone who is underage, and also the temptation involved with their use. (Id.) Defendant did not have permission to use these sites. (Id. at 20-21.)

         Special Condition No. 8 provides: “May not create/use any media method for personal contact and/or advertisement for solicitation purposes without prior written approval of the agent/designee. If Internet access is approved by agent, must not access sex/chat/social/dating websites/blogs without prior approval of the agent/designee.” (Id. at 21; Gov't Ex. 2 at 1.) Once again, Defendant did not have permission to use social media/sex/chat/dating websites, including Facebook or Craigslist. (Tr. 21.)

         Defendant had permission to use electronic devices that could access the Internet, but under very strict conditions. (Id. at 21-22.) Defendant was allowed to have a phone that was monitored under a program called WebWatcher, which allowed Officer James to see what Defendant was doing on that phone. (Id. at 22.) Defendant was also authorized to use a work computer, but not for personal reasons, and not for sites such as Facebook or Craigslist. (Id.) Defendant was also required to give Officer James all of his various access codes and passwords so Officer James could inspect Defendant's use of his phone. (Id.) On numerous occasions, Defendant sought authorization to use more devices and websites, such as Facebook, from Officer James. (Id. at 23-24.) Officer James did not grant these requests because Defendant had a history of impulsive behavior, and monitoring ...


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