United States v. Mays

• Decision Date: 06 April 2021
• Docket Number: No. 20-1333, No. 20-1359,20-1333
• Parties: UNITED STATES of America, Plaintiff - Appellee v. Otis Ray MAYS, Jr., Defendant - Appellant United States of America, Plaintiff - Appellee v. Otis Ray Mays, Jr., Defendant - Appellant
• Court: U.S. Court of Appeals — Eighth Circuit

993 F.3d 607

UNITED STATES of America, Plaintiff - Appellee

v.Otis Ray MAYS, Jr., Defendant - Appellant

United States of America, Plaintiff - Appellee

v.Otis Ray Mays, Jr., Defendant - Appellant

No. 20-1333

No. 20-1359

United States Court of Appeals, Eighth Circuit.

Submitted: December 18, 2020

Filed: April 6, 2021

Craig Raymond Baune, John Francis Docherty, Assistant U.S. Attorneys, U.S. Attorney's Office, District of Minnesota, Minneapolis, MN, for Plaintiff - Appellee in No. 20-1333.

John Francis Docherty, Assistant U.S. Attorneys, U.S. Attorney's Office, District of Minnesota, Minneapolis, MN, for Plaintiff - Appellee in No. 20-1359.

Otis Ray Mays, Jr., Pro Se.

Rachel K. Paulose, University of St. Thomas, Minneapolis, MN, Saint Louis Park, MN, Saint Louis Park, MN, for Defendants - Appellants.

Before GRUENDER, ERICKSON, and KOBES, Circuit Judges.

GRUENDER, Circuit Judge.

In this appeal, Otis Ray Mays, Jr. challenges the district court's denial of his motion to suppress, argues the district court procedurally erred in sentencing him to 132 months' imprisonment, and contends the district court abused its discretion in imposing several special conditions of supervised release. We affirm in part, vacate in part, and remand for further proceedings consistent with this opinion.

I.

In May 2017, Mays (who is not an attorney) approached a married couple at the Hennepin County, Minnesota courthouse, told them he was a lawyer named Chris Harrison, and offered to assist them with some legal issues they were having. They hired him, and Mays subsequently defrauded them out of more than $300,000. The couple eventually discovered the fraud and reported Mays to law enforcement. Thereafter, in September 2017, the Bloomington, Minnesota Police Department and the Federal Bureau of Investigation ("FBI") commenced a joint investigation into Mays's alleged fraud. Later in 2017, the FBI and the Richfield, Minnesota Police Department began a joint investigation into allegations that Mays was involved in a juvenile sex-trafficking ring.

On July 23, 2018, Mays's uncle, Bernard Holmes, met with an FBI agent and a Bloomington Police Department detective who were working on the fraud investigation. Holmes told these investigators that he had heard from more than one person that Mays had defrauded them by pretending to be an attorney, explaining that Mays frequently would "run[ ] through the courthouse ... playing around like he's Perry Mason." Holmes also told the investigators that Mays "always" had his laptop with him, including when he went to court, and that Mays constantly used it. Holmes then told investigators that he had taken Mays's laptop without Mays's permission in April 2018 and still had it in his possession. Holmes also informed them that he had accessed the laptop and found on it a file labeled "Evidence" as well as video recordings of Mays having sex with various women.

Holmes then mentioned how Mays (who was in jail when Holmes took the laptop but had been released soon thereafter) was "gung ho" about recovering the laptop and recently had been trying to reclaim it from Holmes,¹ possibly going so far as having someone impersonate a police officer, call Holmes, and leave him threatening voicemails about returning the laptop. One of the investigators told Holmes that the investigators wanted to obtain the laptop, and Holmes responded that he had it at his current residence and that they could come retrieve it. After the interview ended, the investigators followed Holmes to his residence, and Holmes gave them Mays's laptop. They did not have a warrant.

Fifteen days later, an FBI agent working on the sex-trafficking investigation applied for a search warrant for the laptop, including in the supporting affidavit extensive details learned about Mays during the joint investigations. A federal magistrate judge issued a search warrant that same day. Investigators then discovered what they believed to be child pornography on the laptop, which later was confirmed to be video recordings of Mays engaged in sexual activity with a then-seventeen-year-old girl.

Subsequently, in two separate indictments, a federal grand jury charged Mays with nine counts of producing child pornography, 18 U.S.C. § 2251(a), (e), one count of receiving child pornography, 18 U.S.C. § 2252(a)(2), (b)(1), and three counts of wire fraud, 18 U.S.C. § 1343. Mays moved to suppress the video recordings discovered on his laptop, arguing that they were the fruit of an illegal warrantless seizure. The district court denied this motion.

Mays then entered into a plea agreement, in which he agreed to plead guilty conditionally to one count of receiving child pornography and to plead guilty unconditionally to one count of wire fraud. See Fed. R. Crim. P. 11(a)(2). Mays reserved the right to appeal the denial of his motion to suppress as well as the right to appeal his sentence if it exceeded 120 months' imprisonment. The district court later sentenced Mays to 132 months' imprisonment on each count (to be served concurrently), and it imposed 10 years' supervised release on the child-pornography count as well as 3 years' supervised release on the wire-fraud count (to be served concurrently). Additionally, the district court imposed a number of special conditions of supervised release.

Mays appeals, challenging the denial of his motion to suppress, his sentence of imprisonment, and four special conditions of supervised release.

II.

Mays first argues that the district court erred in denying his motion to suppress the evidence obtained from his laptop. In reviewing the denial of a motion to suppress, we review the district court's findings of fact for clear error and its ultimate conclusion whether the Fourth Amendment was violated de novo . United States v. Holly , 983 F.3d 361, 363 (8th Cir. 2020). "We may affirm the district court's denial of a motion to suppress on any ground supported by the record." United States v. LaGrange , 981 F.3d 1119, 1121 (8th Cir. 2020).

A.

Mays primarily argues that the investigators' acquisition of his laptop from Holmes constituted an unreasonable seizure under the Fourth Amendment. The district court rejected this argument, reasoning that the investigators' actions did not constitute a Fourth Amendment seizure. We need not address this rationale because we agree with the Government's alternative argument for affirmance that probable cause combined with exigent circumstances justified this warrantless seizure. See, e.g. , United States v. Stephen , 984 F.3d 625, 630 (8th Cir. 2021).

Thus, we assume without deciding that the investigators' acquisition of the laptop was a Fourth Amendment seizure. The Fourth Amendment prohibits "unreasonable seizures." Robbins v. City of Des Moines , 984 F.3d 673, 680 (8th Cir. 2021). "The warrantless seizure of property is per se unreasonable unless it falls within a well-defined exception to the warrant requirement." Id. One such exception is when "law enforcement authorities have probable cause to believe" property "holds contraband or evidence of a crime" and "the exigencies of the circumstances demand" immediate seizure "pending issuance of a warrant to examine its contents." United States v. Place , 462 U.S. 696, 701, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983). Accordingly, the investigators' warrantless seizure of Mays's laptop was not unreasonable under the Fourth Amendment if (1) they had probable cause to believe it contained contraband or evidence of a crime and (2) exigent circumstances demanded immediate seizure. See Stephen , 984 F.3d at 630-31.

First, based on Holmes's statements to them, the investigators had probable cause to believe the laptop contained evidence of a crime. "Probable cause exists when, viewing the totality of the circumstances, ‘there is a fair probability that contraband or evidence of a crime will be found in a particular place.’ " United States v. Reed , 921 F.3d 751, 757 (8th Cir. 2019) (quoting Illinois v. Gates , 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) ). Holmes told investigators that part of Mays's fraud scheme involved going to court and pretending to be an attorney as well as that Mays would bring his laptop to court. He also informed them that he had searched the laptop himself and found a file labeled "Evidence" on it, which in context sounded like it may have related to his fraud scheme. In other words, investigators learned from Holmes that the "laptop likely was used to further [Mays's] scheme" and that evidence of that scheme may be on the laptop. See United States v. Smith , 715 F.3d 1110, 1113-14, 1116-17 (8th Cir. 2013) (concluding that the warrantless seizure of the defendant's messenger bag was supported by probable cause because the investigators had learned that a laptop likely was used to further the defendant's fraud scheme and believed the bag contained a laptop given its size and shape). These statements made it fairly probable that evidence of Mays's fraud would be found on the laptop, furnishing investigators with probable cause to seize it.

Mays contends that Holmes was neither a credible nor a reliable informant, and, because his statements are the only undisputed basis in the record to support a finding of probable cause, these deficiencies prohibit such a finding. We consider the totality of the circumstances in determining whether an informant's statements provide probable cause. United States v. Lewis , 738 F.2d 916, 922 (8th Cir. 1984). "The credibility and reliability of a person providing information to the police are important factors to be considered" in this analysis. United States v. LaMorie , 100 F.3d 547, 553 (8th Cir. 1996)

One "important" consideration in assessing an informant's credibility and reliability is whether the informant is known or anonymous. United States v. Nolen , 536 F.3d 834, 839-40 (8th Cir. 2008). "[A] tip received from a known informant will more readily support a finding of probable cause," as the...