United States v. Henry

• Decision Date: 17 June 2016
• Docket Number: No. 15–1523,15–1523
• Parties: United States of America, Appellee, v. Paul Henry, a/k/a LT, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

827 F.3d 16

United States of America, Appellee

v.Paul Henry, a/k/a LT, Defendant, Appellant.

No. 15–1523

United States Court of Appeals, First Circuit.

June 17, 2016

Robert R. Herrick, Springfield, MA, for appellant.

Margaret D. McGaughey, Assistant United States Attorney, with whom Thomas E. Delahanty II, United States Attorney, was on brief, for appellee.

Before Kayatta and Barron, Circuit Judges, and McAuliffe,^* District Judge.

KAYATTA

, Circuit Judge.

Paul Henry entered a conditional guilty plea under Federal Rule of Criminal Procedure 11(a)(2)

to two counts of sexual exploitation of children in violation of section 2251(a) of Title 18 of the United States Code (“section 2251(a) ”). By agreement with the government, he reserved his right to appeal two issues: the district court's determination that he was not entitled to raise a “mistake of age” defense; and the district court's denial of his motion to suppress evidence found or seized in connection with a search of Henry's motel room. Finding that neither determination by the district court was in error, we affirm.

I. Background¹

On February 12, 2014, the police department in Portland, Maine, received a report from an agent in the Detroit, Michigan, office of the Department of Homeland Security Investigations (“HSI”) about a nineteen-year-old female (“A.H.”) being held against her will at a Portland hotel. A.H. had previously been a victim of sex trafficking and may have been trafficked from Michigan to New York for purposes of prostitution. She was developmentally delayed, functioning at the level of an eleven- or twelve-year-old.

Upon examining guest lists at Portland-area hotels where prostitution and other illegal activities were known to occur, Portland Police Officer Mark Keller discovered that Henry was staying at a nearby motel. Officer Keller was familiar with Henry because Henry had previously been identified by the Portland Police Department, the Maine Drug Enforcement Agency, and other federal agencies as a person involved in drug and sex trafficking in the Portland area. Henry also had an extensive criminal history in New York for charges related to drug distribution, weapons, firearms, and resisting arrest. The Portland police did not then have information specifically linking Henry to A.H., but they did know he was linked to sex trafficking in New York and to the temporary disappearance of a fifteen-year-old female from the Portland area in July 2013.²

When they arrived at the motel, Officer Keller and Officer Daniel Townsend observed Henry's car in the parking lot. They obtained Henry's room number and, joined by Sergeant Frank Gorham, went to his room to perform a “knock and talk.”³ In the hallway outside Henry's room, the officers observed drug paraphernalia and various people whom, the officers suspected, were engaged in drug- and prostitution-related activities.

After knocking and announcing their presence as police, the officers heard the sounds of a flushing toilet, running water, people moving about quickly inside the motel room, and something that sounded like a metal object hitting the floor. Approximately ninety seconds later, Henry opened the door to a room that smelled of recently smoked marijuana. Officer Townsend introduced himself and told Henry that the officers wished to speak with him and ask him questions. Officer Townsend asked whether the officers could step inside the motel room because of the activity and traffic in the hallway, and Henry agreed.

Officer Townsend performed a protective sweep of the room, during which he found a bag containing what appeared to be marijuana at the foot of one of the two beds. He then positioned himself in the middle of the room, facing the door. The officers observed that a light was on in the bathroom and they heard running water and movement inside. When asked who was in the bathroom, Henry responded “my girl,” who he referred to, after a pause, as “Big Sasha.” When asked for her real name, he said he thought it was “Allure.” Without being asked, Henry informed the officers that she was from Michigan, and he began to appear more anxious. Upon the officers' request, the young woman exited the bathroom and Officer Keller recognized her as A.H., whom he had seen in a photograph. When Officer Keller asked A.H. to step into the hallway so they could speak privately, Henry protested and yelled at A.H. that she did not have to speak to the officers or answer any questions.

After A.H. left the room with Officer Keller, Officer Townsend asked Henry to sit down in a chair near the corner of the room because Henry had become increasingly excited as A.H. left the room. Henry obliged. Officer Townsend spoke with Henry in a conversational manner, keeping a clear passage between where Henry was seated and the room's door in order to avoid creating a custodial situation. From his conversation with Henry, Officer Townsend learned that Henry knew very little about A.H. Henry became increasingly nervous, glancing repeatedly at a jacket hanging on a clothes rack in the corner of the room, appearing concerned about something in that area. On the floor near the rack, Officer Townsend saw a metal hanger, which he inferred had created the metal sound he had heard immediately after the officers had knocked on the door. He also recalled having seen one of the hangers swaying on the rack when he first entered the room. Henry continued to glance at the jacket, which had a visible bulge in one of its pockets. Officer Townsend grew concerned that there might be a weapon in the pocket, so he patted the outside of the jacket. From the feel and sound of the object inside the pocket, he recognized it as being a large amount of cash wrapped in plastic. Officer Townsend removed the item from the pocket, finding a single plastic bag containing wads of cash wrapped in three separate plastic bags, about four inches thick in total, folded in different denominations with rubber bands. The money was later determined to total approximately $12,700. Henry initially claimed that his mother had given him the money, but he could not explain why he did not keep it in a more secure location.

Officer Townsend observed two smart phones sitting in plain view: an iPhone sitting on the bed and a Nokia plugged into the wall next to the television. When asked about the phones, Henry became nervous, answering that he used the iPhone to take pictures and that the Nokia “really wasn't his.” Knowing that people involved in sex trafficking often use cell phones to set up “dates,” communicate with prostitutes, and take pictures of prostitutes to post on websites, Officer Townsend asked Henry for the phone numbers of the phones and for the iPhone's password, all of which Henry provided.

Officer Keller interviewed A.H. separately. She stated that she had met Henry in Brooklyn, New York, that they had driven together to Maine, and that she had known him only for a couple of days. She did not know his name, and although she said that Henry treated her “okay,” she said that she did not want to stay with him or go back in to the room, and that she had seen a silver firearm in the motel room the previous day. After speaking with Officer Keller, Officer Townsend called Maine Assistant Attorney General Leanne Sutton, who told him to seize the phones and money and to apply for a search warrant.

Officer Townsend told Henry that the police would seek a search warrant to search the motel room and that if he did not want to wait while the warrant was obtained, he could leave after Officer Townsend checked his clothing and any other items Henry wanted to take with him. Henry was issued a summons for possession of a useable amount of marijuana, got dressed, and left. The entire encounter in the motel room lasted approximately ten to fifteen minutes.

A series of search warrants was subsequently issued, the first to search the motel room and Henry's car. The second search warrant, issued a week later, authorized the search of the iPhone and Nokia phone that had been seized without a warrant and then retained pursuant to the first search warrant at Portland Police headquarters. The affidavits for the first and second warrants included information obtained from the officers' conversations with A.H. The affidavits did not include any information about A.H.'s developmental disability.

The search of the iPhone conducted pursuant to the second warrant yielded a video located in an application on the phone that depicted Henry engaging in sexual intercourse with a young woman whom Officer Keller recognized as the fifteen-year-old girl (“M.V.”) who had been reported missing and connected to Henry in July 2013. The video was stored in an application named “TangoME,” which had been used to send the video to a Yahoo.com email account. A third search warrant authorized a more in-depth search of the iPhone and the ensuing search revealed additional videos of M.V. and Henry engaged in sexual conduct. A federal arrest warrant was then sought and obtained.

The two counts of violating section 2251(a)

to which Henry pleaded guilty arose out of the videos discovered on the iPhone. Henry sought to suppress, among other things, the cash, his possession of which was cited in the affidavits to obtain the warrant to search the videos, and the videos themselves, contending that the searches leading to their discovery were unlawful. He also filed a motion in limine asking the district court to rule that, at trial, he would be entitled to assert a “mistake of age” defense based on his contention that M.V. told him that she was nineteen years old. After the district court denied both motions, Henry entered and the court accepted his conditional guilty plea. In accepting the plea, Henry admitted that on January 25 and 26, 2014, he used the video function of his iPhone to film two videos of himself and M.V. engaging in sexual activity, and that between January 27 and January 30, 2014, he used an...