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United States v. Kuhnel

United States District Court, D. Minnesota

January 19, 2018


          Gregory G. Brooker, Acting United States Attorney; Manda M. Sertich, Assistant United States Attorney for plaintiff.

          Robert M. Paule, for defendant.


          JOHN R. TUNHEIM Chief Judge United States District Court

         Defendant John Kuhnel moves to suppress evidence obtained from a warrantless search of his vehicle, which led to the recovery of a laptop containing child pornography. On November 28, 2017, Magistrate Judge Becky R. Thorson issued a Report and Recommendation (R&R) recommending that Kuhnel's motion be denied because the probation officer had a reasonable suspicion that Kunhel was violating the terms of his supervised release. After an independent review of the files, records, and proceedings, the Court will overrule Kuhnel's objections, adopt the R&R, and deny Kuhnel's motion to suppress.



         In 2010, Kuhnel was convicted of second-degree criminal sexual conduct after engaging in sexual contact with his then-three-year-old daughter. (Hr'g Tr. at 7:17-9:10, Sept. 28, 2017, Docket No. 35.) Kuhnel's sentence was stayed for five years, and he was placed on probation. (Id. at 9:12-14.) Ultimately, Kuhnel violated the conditions of his probation and was given an executed sentence of 36 months. (Id. at 11:6-15.) He served two-thirds of his sentence before being released on September 2, 2014. (Id. at 11:14-20, 13:25-14:16, 17:1-3.) He was placed on supervised release for the remaining third of his sentence. (Id.) Concurrent with his supervised-release term, Kuhnel began serving a mandatory ten-year conditional-release period. (Id. at 11:18-20, 14:12-15:6.)

         The same conditions applied to Kuhnel's supervised release and conditional release. (Id. at 14:12-15:6.) Special Condition No. 2 states that Kuhnel “[m]ust 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.” (Id. at 19:12-18.) Special Condition No. 3 states that Kuhnel “[m]ust 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 websites/blogs without prior approval of agent/designee.” (Id. at 19:23-20:4.) Relatedly, Special Condition No. 4 states that Kuhnel “[m]ay 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 access sex/chat/social/dating websites/blogs without prior approval of the agent/designee.” (Id. at 21:11-18.) Finally, Special Condition No. 13 specifies, “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.” (Id. at 26:9-13.)

         Kuhnel did not have permission to access social or dating websites, such as Facebook or Craigslist. (See Id. at 20:5-21:22.) Kuhnel was provided access to electronic devices - namely a cellphone and a work computer - under strict conditions. (Id. at 21:24-22:11.) His cellphone was monitored with software that allowed the probation officer to view Kuhnel's use of his cellphone. (Id. at 22:3-11.) Kuhnel was not permitted to use his work computer for personal use. (Id. at 22:12-14.) Additionally, Kuhnel was required to provide his usernames and passwords to the probation officer so that the officer could manually view his accounts. (Id. at 22:18-25.) Kuhnel requested to use services like Facebook on multiple occasions but this permission was never granted. (Id. at 23:23-24:22.)


         In June 2016, the monitoring software detected that Kuhnel had taken photos of his genitals and was sending those photos to an unknown party. (Id. at 30:13-25.) The probation officer confronted Kuhnel about the photos, and Kuhnel admitted that he had violated the terms of his release in possessing the photos. (Id. at 31:4-7.)

         In November 2016, the probation officer found e-mail evidence that Kuhnel was accessing websites that he did not have authorization to access, such as Craigslist and Facebook. (Id. at 31:12-32:1.) In the sent folder of his e-mail, the probation officer found an e-mail related to Craigslist in which Kuhnel offered to “entertain” a female who said “she was going to be in the area.” (Id. at 32:11-18.) The probation officer also found e-mails suggesting that he had made a post from a Facebook account. (Id. at 32:19-33:2.) The probation officer was able to find a Facebook account with Kuhnel's picture and name. (Id. at 33:7-9.)

         On November 29, 2016, the probation officer confronted Kuhnel about concerns that Kuhnel was violating the conditions of his release. (Id. at 34:1-7.) Kuhnel admitted that he had used Facebook on his work computer. (Id. at 34:7-18.) Kuhnel initially denied that he had contacted someone on Craigslist but eventually wavered and stated that he had. (Id. at 35:4-12.) After the probation officer discussed his concerns with Kuhnel, the probation officer asked to search Kuhnel's vehicle. (Id. at 36:14-17.) The probation officer testified as to the reasons he decided it would be appropriate to search Kuhnel's vehicle:

[T]here was a lot of inconsistencies with what he was telling me and what I was seeing on the accounts. I believe I had actually seen a recent update through his e-mail account that was in close proximity to the time he arrived at my office ...

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