United States v. Lofstead

• Decision Date: 22 November 2021
• Docket Number: Case No. 3:20-cr-00053-MMD-WGC
• Citation: 574 F.Supp.3d 831
• Parties: UNITED STATES of America, Plaintiff, v. Jeffrey LOFSTEAD, Defendant.
• Court: U.S. District Court — District of Nevada

574 F.Supp.3d 831

UNITED STATES of America, Plaintiff,

v.Jeffrey LOFSTEAD, Defendant.

Case No. 3:20-cr-00053-MMD-WGC

United States District Court, D. Nevada.

Signed November 22, 2021

Penelope Brady, Elizabeth Olson White, Peter Walkingshaw, United States Attorney's Office US Attorney's Office, Reno, NV, for Plaintiff.

ORDER

MIRANDA M. DU, CHIEF UNITED STATES DISTRICT JUDGE

I. SUMMARY

Defendant Jeffrey Lofstead was indicted on one count of attempted sex trafficking of children in violation of 18 U.S.C. §§ 1591(a), 1591(b)(2), and 1594(a). (ECF No. 1.) Lofstead now moves to dismiss the indictment, arguing the underlying investigation violated fundamental notions of fairness and his Fifth Amendment right to due process. (ECF No. 21.) Lofstead also moves to suppress the results of the search of his cell phone, arguing the search was performed pursuant to an impermissibly broad warrant. (ECF No. 22.) The Court heard argument on both motions on October 15, 2021 ("the Hearing"). (ECF No. 41.) As explained further below, the Court will grant the motion to suppress because the warrant was fatally overbroad and lacked particularity. However, because the Court finds the government's reverse sting operation violated fundamental fairness, the Court will dismiss the indictment.

II. FACTUAL BACKGROUND

A. The Task Force and Operation

In October 2020, the FBI's Northern Nevada Child Exploitation and Human Trafficking Task Force ("Task Force") initiated a reverse-sting operation ("Operation") targeting individuals seeking to purchase commercial sex from minors. (ECF No. 21 at 3.) The Operation's stated purpose is to "directly address the intentional purchase of sex from minors utilizing common escort websites." (ECF No. 40-1 at 2.) Per the operational plan, the "driving legal authority" was Nevada statute found at NRS § 201.354(1)-(2), which the operational plan describes as criminalizing "solicitation of a child."¹ (Id. ) Although Nevada does not criminalize general consensual sex between parties who are both over 16,² commercial sex is restricted to those over 18.³ In other words, a 63-year-old man could engage in sexual activity with a 16-year-old girl without criminal penalty under Nevada law, but would commit a class B felony if he solicits commercial sex from that same girl or engages in non-commercial sexual activity with anyone younger than 16. The Operation targeted the latter offense.

Task Force agents posted an advertisement on the website www.skipthegames.com, which is known to law enforcement as a place where commercial sex is solicited and arranged. (ECF Nos. 21 at 3, 40-1 at 2.) Per the operational plan, the advertisements were placed "prior to the operation" and detectives had "established a client base." (ECF No. 40-1 at 2.) The Task Force's advertisement stated it was posted by "Emma," a 19-year-old "young busty brunette." (ECF No. 21-1 at 2-4.) Four pictures of a 23-year-old woman depicted "Emma" to users. (ECF No. 21 at 4.) A phone number was available for prospective clients to text, which was operated by an undercover detective. (ECF Nos. 21-1 at 3, 29 at 3.)

In total, the operation resulted in 28 arrests within a four-day period. (ECF Nos. 21 at 8, 29 at 15.)

B. Lofstead's Involvement

Lofstead responded to the "Emma" advertisement on Skip the Games by calling the listed number at 7:24 p.m. on October 7, 2020. (ECF No. 21-2 at 2.) When "Emma" did not pick up, he texted "Hey." (Id. ) A Task Force agent responded, and Lofstead then texted and talked on the phone with the agent intermittently for around three and a half hours. (Id. at 2-4.)

After saying hello, Lofstead asked how much "Emma" charged and whether she had "incall," a term commonly used in commercial sex work that means the provider has a location to meet with clients. (ECF No. 29 at 3.) Law enforcement noted that Lofstead appeared to be familiar with commonly used commercial sex terms, including slang for hourly rates and oral sex. (Id. )

When the agent responded that she had a house in South Reno, Lofstead asked "If your [sic] in a house, aren't there roomates [sic]." (ECF No. 21-2 at 2.) The agent responded "no my parents are out of town rn." (Id. ) Less than a minute later Lofstead asked the agent "how old are you really," clarifying "I don't want 15," asking for confirmation that the person he was texting was at least 16. (Id. ) The agent said "Emma" was 16. (Id. ) After receiving that reassurance, Lofstead asked if she would be interested in smoking marijuana, and if she would join him at his house "at the lake" instead of meeting at her parents' house. (Id. ) The agent responded that "Emma" would meet with Lofstead if he would pick her up because she did not have a car. (Id. )

Lofstead again attempted to confirm "Emma" ’s age, asking her to send a picture of her ID "so I know your [sic] at least 16." (Id. ) The agent responded that she did not have an ID with her date of birth. (Id. ) Lofstead also asked for a photo that was different from the ones posted on the website, for a "kind of verification." (Id. at 3.) The agent sent another photo. (Id. ) After they had been texting for about an hour, the agent asked, "So u coming or what?" (Id. ) Lofstead responded, "To be honest I'm worried you may not be 16." (Id. ) After the agent again assured him "Emma" was 16, Lofstead responded "Maybe I'll come you can Get high and we can meet each other." (Id. ) The agent rejected this offer, texting "Not to be rude baby, but if ur coming I need the $$ for the time ya know." (Id. )

After this exchange, Lofstead attempted to call the agent, but she did not pick up and said that her "girlfriend" had come over. (Id. ) Lofstead asked "Does she do this too," to which the agent responded yes, but said "she's under your limit tho." (Id. ) Lofstead then changed the subject back to the agent, asking her how long she had been "doing this" and asking if she was aroused. (Id. ) The agent affirmed, and reintroduced the subject of her "under-limit" friend. (Id. ) The agent and Lofstead then spoke on the phone, and Lofstead responded that he "can't do that." (ECF No. 21 at 5.) When the agent responded that it was only "a year difference," Lofstead said that in Nevada "that's a big thing." (Id. at 6.)

Having clarified that Lofstead was not interested in paying for sex with "Emma" ’s 15-year-old friend and that "Emma" was 16, Lofstead texted that he was getting ready to leave at 9:46 p.m. (ECF No. 21-2 at 3.) The agent told him to "hurry." (Id. ) Less than 15 minutes later, the agent asked "on ur way still?" (Id. at 4.) When Lofstead arrived at the agreed upon location at approximately 10:45 p.m., he was arrested. (Id. ; ECF No. 21 at 6.)

C. Warrant and Search

Upon Lofstead's arrest on October 7, 2020, law enforcement seized his smartphone. (ECF No. 22 at 2.) On November 3, 2020, FBI Special Agent Paul Cline applied for a search warrant for the phone. (ECF No. 31-1.) Special Agent Cline stated in the warrant affidavit that there was probable cause to believe the phone contained evidence of or was used in the commission of: (1) the charged offenses, (2) attempting to transport an individual under 18 with the intent to engage in criminal sexual activity, and (3) attempting to travel over state lines with another person for the purpose of engaging in illicit sexual conduct. (Id. at 4.)

The attached list of items to be searched for and seized within the phone included, but was not limited to:

• Item 1: "Any and all records and materials that may be found within [the phone], in any format and media (including, but not limited to; images videos, e-mails, chat logs, text messages, instant messages and electronic messages), pertaining to the Target Offenses." (Id. at 13.)

• Item 2: "Any and all documents, records, or correspondence, in any format or medium (including but not limited to, e-mail messages, chat logs and electronic messages, and other digital data files) pertaining to the Target Offenses." (Id. )

• Item 3: "Evidence of any online storage, e-mail or other remote computer storage subscription to include unique software of such subscription, user logs or archived data that show connection to such service, and user login and passwords for such service." (Id. )

• Item 6: "Any and all material depicting or concerning the sexual exploitation of children, including but not limited to any child pornography ... or any type of sexually explicit conduct involving children." (Id. at 14.)

The warrant affidavit did not include a temporal limitation on materials to be searched. It also authorized the FBI to "deliver a complete copy of the seized or copied electronic data to the custody and control of attorneys for the government and their support staff for their independent review." (Id. at 16.)

United States Magistrate Judge William G. Cobb issued the warrant on November 3, 2020 ("the Warrant"). (Id. at 2.)

III. MOTION TO SUPPRESS

Lofstead argues the results of the search of his smartphone must be suppressed because the warrant relies on unlawfully intercepted wire communications, is unsupported by probable cause, is overbroad, and lacks sufficient particularity. (ECF No. 22.) Because federal law allows any party to a conversation to record that conversation, see 18 U.S.C. § 2511(2)(c),⁴ the Court considers only whether the warrant was supported by probable cause and sufficiently specific.

Lofstead claims that evidence seized from his cell phone should be suppressed because the Warrant amounts to a general warrant, lacking any cognizable limitations and exceeding the government's demonstrated probable cause. (ECF No. 22.) The government concedes that the Warrant is in some ways overbroad,⁵ but counters first that exclusion is not justified because the good faith exception applies, and in the alternative that only evidence obtained from an overbroad aspect of a warrant should be suppressed. (ECF No. 31.) As explained further below, the Court agrees that the Warrant is overbroad and lacks the requisite...