United States v. Mays

          OPINION AND ORDER ACCEPTING REPORT AND RECOMMENTATION

          ERIC C. TOSTRUD UNITED STATES DISTRICT COURT.

         Defendant 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.

         I

         Mays is 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.

         On July 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.

         While 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 1:14:35.

         On July 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.

         During 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.

         In his 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.” Id.

         Agent 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 trafficked. Id.

         Agent 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 hot.’” Id.

         Agent 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.

         SD also 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.

         Agent 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 at 1.

         The 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.

         II

         A

         A 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).

         There 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. “Accordingly, ...