United States District Court, D. Minnesota
OPINION AND ORDER ACCEPTING REPORT AND
C. TOSTRUD UNITED STATES DISTRICT COURT.
Otis Ray Mays, Jr. (“Mays”) appeals from
Magistrate Judge Hildy Bowbeer’s Order denying
Mays’s motion for a Franks hearing and objects to
Magistrate Judge Bowbeer’s Report and Recommendation
(“R&R”) to the extent it recommends denying
Mays’s motion to suppress evidence. Mays does not
object to the R&R insofar as it recommends granting in
part and denying in part his motion to suppress statements.
Because a motion for a Franks hearing is non-dispositive, the
May 24 Order is reviewed for clear error. The Order will be
affirmed. Upon de novo review, Mays’s motion to
suppress evidence will be denied because the private actor
exception to the warrant requirement permits government
agents to acquire stolen property and use it as evidence
against the true owner in a subsequent criminal prosecution.
Further, the 15-day delay between the Government’s
acquisition of the evidence (a laptop) and its application
for a search warrant was not unreasonable, and the affidavit
in support of the search warrant application supported a
probable cause finding.
charged with nine counts of production of child pornography
and one count of receipt of child pornography. The alleged
child pornography was discovered on Mays’s personal
laptop, which was searched pursuant to a warrant issued by
Magistrate Judge Becky R. Thorson on August 7, 2018.
23, 2018, FBI Special Agent Travis Yarbrough and Bloomington
Police Detective Caroline Kne interviewed Bernard Holmes,
Defendant Mays’s uncle and former housemate, in
relation to a theft-by-swindle scheme Mays allegedly was
running. Gov’t Mot. Hr’g Ex. 2 (“Waller
Aff.”) ¶ 19 [ECF No. 38-1]; Gov’t Mot.
Hr’g Ex. 3 (“Holmes Interview”). Holmes
told Detective Kne and Agent Yarbrough that from
approximately October 2017 to April 2018 Holmes and Mays had
lived together. Id. at ¶¶ 19–20.
Holmes and Mays had a dispute in April 2018; the police were
called, and Mays was arrested on an outstanding, unrelated
warrant. After the dispute, neither Mays nor Holmes lived in
that residence. Id.
Mays was in custody pursuant to the unrelated warrant, he
left his laptop at the residence the pair had shared.
Id. at ¶ 21. In April 2018, while Mays was in
jail, Holmes returned to the residence, “rifled
through” Mays’s room, and stole Mays’s
laptop. Id. ¶ 22; Holmes Interview at 1:14:32.
Holmes stated in the interview with Agent Yarbrough and
Detective Kne that he had seen, on Mays’s laptop,
videos of Mays having sex with various persons, as well as a
directory labeled “Evidence.” Holmes Interview at
11, after getting out of jail and learning that Holmes had
taken his laptop, Mays reported the laptop as stolen to the
Minneapolis Police Department and identified Holmes as the
suspected perpetrator. Def. Mot. Hr’g Ex. 2. Two days
later, Minneapolis Police Officer Troy Schoenberger called
Holmes and asked about the laptop. Id. Holmes said
he did not then, nor did he ever, have the laptop, and did
not know anything about it. Id. Contrary to what he
told Officer Schoenberger, Holmes kept the laptop in his
possession for the three months after he stole it and before
he was interviewed by Agent Yarbrough and Detective Kne.
Id. at 1:15:56.
the July 23 interview with Agent Yarbrough and Detective Kne,
Holmes stated that he had received phone calls from police
officers instructing him to return the laptop to Mays.
Id. at 1:16. Holmes stated that officers had left
messages stating that he needed to return their calls
“or else, ” and Agent Yarbrough suggested that
did not sound like a message a police officer would leave.
Id. Agent Yarbrough and Detective Kne then asked
Holmes if he would be willing to surrender possession of the
laptop to them. Id. Holmes agreed, and Agent
Yarbrough and Detective Kne went with Holmes, in separate
vehicles, to his residence where he voluntarily provided the
laptop. Id. The laptop was brought to the
Minneapolis FBI Field Office for storage on that same day,
July 23, 2018. Waller Aff. ¶ 22. Fifteen days later, on
August 7, 2019, FBI Special Agent Richard Waller submitted an
18-page affidavit in support of a search warrant to perform a
forensic analysis on the laptop. See generally id.
affidavit, Agent Waller averred that on October 5, 2017, as
part of a separate investigation, the Bloomington Police
Department obtained a search warrant authorizing a search of
Mays’s home, vehicle, and person. Gov’t Mot.
Hr’g Ex. 2 ¶¶ 6–7. During this search
several digital media devices were discovered, and
investigators found sexually explicit videos and images on
those devices. Id. ¶ 8. Those devices also
contained a “chat” between Mays and an
individual, in which the individual stated “I’m
not in the lifestyle of stripping or selling myself as a part
of an attempt to bust a sex trafficking ring.”
Waller further averred that in December 2017, the FBI
received information from the Richfield Police Department
regarding sex trafficking of minors. Id. ¶ 9.
Richfield police had interviewed a minor, SD, who had been
identified as a victim of sex trafficking. Id. S.D.
identified Mays in a photograph as an individual who
“played a role” in her being commercially sex
Waller stated that on December 12, 2017, he met with
Richfield police officers who informed Agent Waller that
members of the gang “Black P Stone Nation” were
allegedly sex trafficking juvenile girls ranging from
11–17 years old. Id. ¶ 10. Mays was
allegedly one of the gang members involved in the sex
trafficking. Id. ¶ 11. During his meeting with
Richfield police, Agent Waller viewed a video Mays had
provided to the Richfield police. Id. ¶ 12. The
video was a recording of a conversation between Mays and
another alleged gang member, Rafael Hassan. Id. Mays
and Hassan were discussing “moving away from posting
ads on Backpage and moving into the ‘escort’
business because ‘the pimping game is getting
Waller averred that on January 3, 2018, he, along with two
Richfield police officers, interviewed SD. Id.
¶ 13. During that interview, S.D. recalled being sold
for commercial sex in an apartment near where Hassan lived.
Id. S.D. stated that both Mays and Hassan had made
money by prostituting her. Id. S.D. stated Hassan
wanted to “sell her vagina” to the point that she
could recruit other girls into the sex trafficking operation.
Id. S.D. stated that Mays told her that Mays felt
each girl was worth $10, 000. Id. S.D. told the law
enforcement officers that aside from marijuana, she never
received anything of value from Hassan selling her for
commercial sex. Id.
told Agent Waller that she and Mays had nonconsensual sex on
three separate occasions. Id. ¶¶
13–15. S.D. felt she had no other choice but to have
sex with Mays on those occasions. Id. ¶ 15.
S.D. stated that Mays had used his cell phone to make video
recordings of the nonconsensual sex. Id. ¶ 16.
Given that S.D. was a minor at the time, those alleged
recordings would constitute child pornography. Id.
S.D. also told Agent Waller that Mays requested S.D. take
pictures of herself with her cell phone and send them to Mays
from SD’s phone. Id. S.D. did not send
pictures to Mays; however, S.D. believed that Mays had
downloaded some pictures from SD’s phone to a laptop
S.D. thought was owned by Hassan. Id. S.D. also
believed that Mays had sex with another juvenile known as
AMO, and that AMO may have also been sex trafficked by Hassan
and Mays. Id. ¶ 18. Agent Waller’s
affidavit then transitions to assertions regarding
Holmes’s interview with Agent Yarbrough and Detective
Kne, detailed above. Id. ¶ 19.
Waller “believe[d] Mays used [the laptop] to maintain
images, videos, and other data involving commercial sex acts,
commercial sex trafficking of juveniles, money laundering,
and the production of child pornography.” Id.
¶ 23. Agent Waller “also believe[d] Mays used [the
laptop] in furtherance of his alleged theft by swindle
scheme, which resulted in two victims being defrauded of
approximately $305, 000.” Id. Agent Waller
averred that in his training and experience, he
“know[s] computers such as laptops are used to
communicate with victims, co-conspirators, and potential
‘johns’ or commercial sex purchasers through text
messages, Facebook Messenger, and various other apps.”
Id. ¶ 26. Accordingly, Agent Waller believed
the laptop could “include contact information,
photographs, text messages, and other communication[s]
between the trafficker and victims and commercial sex
purchasers.” Id. Further, Agent Waller
“kn[e]w that computers and cellular telephones are used
to share photographs and/or videos to advertise (via the
Internet) victims for commercial sex acts, often wearing
minimal to no clothing, some of which may constitute child
pornography. They also may be used to share recorded sex acts
as part of the grooming or recruiting process.”
Id. Based on Agent Waller’s training and
experience, he averred that data created on cell phones can
be synced and backed up on laptops, such that the information
created on the phone will then be available on the laptop as
well. Id. ¶ 27. On August 7, 2019, Magistrate
Judge Thorson issued a search warrant authorizing a forensic
examination of the laptop. Gov’t Mot. Hr’g Ex. 2
facts relevant to Mays’s Motion to Suppress Statements
are detailed clearly and at length in Magistrate Judge
Bowbeer’s R&R. R&R at 18–22. Briefly, On
March 13, 2019, Mays was arrested and interviewed by two FBI
agents while he was in custody. Gov’t Mot. Hr’g
Ex. 1 (“Mays Interview”). Mays was advised of and
waived his Miranda rights at the beginning of the custodial
interrogation. Gov’t Mot. Hr’g Ex. 4. During the
interview, Agent Waller told Mays he could be subjected to
additional charges if he “lie[d] through
omission” by “keeping [his] mouth shut[.]”
Id. 25:26. Agent Waller’s assertion seemed to
confuse Mays’s understanding of his Miranda rights, as
he responded, “You told me that I have a right to keep
my mouth shut; now, I lie if I keep my mouth shut?”
Id. 25:38. Magistrate Judge Bowbeer recommends
suppressing Mays’s statements made after this exchange,
and no party has objected to this recommendation.
magistrate judge may be designated to hear and determine any
non-dispositive matter pending before the court. 28 U.S.C.
§ 636(b); Fed. R. Crim. P. 59. Upon timely objection by
either party, the district judge must review the magistrate
judge’s order and set it aside to the extent it is
clearly erroneous or contrary to law. 28 U.S.C. §
636(b)(1)(A); Fed. R. Crim. P. 59(a). A district judge may
also refer dispositive matters to a magistrate judge, after
which referral the magistrate judge makes recommended
findings and rulings. 28 U.S.C. § 636(b)(1)(B); Fed. R.
Crim. P. 59(b)(1). Upon timely objection to a report and
recommendation of a magistrate judge, the district judge
reviews the recommendation de novo. 28 U.S.C. § 636(b);
Fed. R. Crim. P. 59(b)(3). Motions to suppress evidence are
dispositive, and thus magistrate judges offer recommendations
as to their disposition. 28 U.S.C. § 636(b)(1)(A); Fed.
R. Crim. P. 59(b)(1).
is a threshold question whether a motion for a Franks hearing
is dispositive or non-dispositive. Mays argues that such a
motion is dispositive, while the Government argues it is
non-dispositive. See Obj. to Order at 4; Gov’t Mem. in
Opp’n at 2–5 [ECF No. 54]. Mays cites no cases to
support his position that a motion for a Franks hearing is
dispositive, and his argument relies upon the assertion that
“[b]y denying Mr. Mays’ motion for a Franks
hearing, the Magistrate Judge by necessity denied his motion
to suppress the search on the ground that the affidavit was
incomplete and false.” Obj. to Order at 5.