United States v. Streett

• Decision Date: 27 November 2018
• Docket Number: No. CR 14-3609 JB,CR 14-3609 JB
• Citation: 363 F.Supp.3d 1212
• Parties: UNITED STATES of America, Plaintiff, v. Bentley A. STREETT, Defendant.
• Court: U.S. District Court — District of New Mexico

363 F.Supp.3d 1212

UNITED STATES of America, Plaintiff,

v.Bentley A. STREETT, Defendant.

No. CR 14-3609 JB

United States District Court, D. New Mexico.

Filed November 27, 2018

John C. Anderson, United States Attorney, Nicholas Jon Ganjei, Alexander Mamoru Max Uballez, Sarah Jane Mease, Assistant United States Attorneys, United States Attorney's Office, Albuquerque, New Mexico, Attorneys for the Plaintiff.

Alexandra W. Jones, Jones Law Firm, LLC, Albuquerque, New Mexico --and-- Johnn S.L. Osborn, Robert R. Cooper, Robert Cooper Law Firm, Albuquerque, New Mexico --and-- Harry I. Zimmerman, Harry Ira Zimmerman Attorney at Law, Albuquerque, New Mexico --and-- Martin Lopez, III, Martin Lopez, III, P.C., Albuquerque, New Mexico, Attorneys for the Defendant.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on: (i) the Defendant's Motion to Suppress Evidence, filed December 1, 2017 (Doc. 78)("Motion"); (ii) the Defendant's Supplemental Motion to Suppress All Evidence Seized and Any Fruits of the Poisonous Tree Obtained as a Result of the Unlawful Search, filed July 24, 2018 (Doc. 141)("Supp. Motion"); (iii) the Defendant Bentley Streett's Motion to Suppress Proposed Findings of Fact and Conclusions of Law, filed November 3, 2018 (Doc. 174)("Streett's Proposed Findings"); and (iv) the United States' Proposed Findings of Fact and Conclusions of Law (September 11, 2018 Evidentiary Hearing), filed November 2, 2018 (Doc. 168)("United States' Proposed Findings"). The Court held an evidentiary hearing on September 11, 2018. The primary issues are: (i) whether the Grand Jury Subpoena Duces Tecum at 1 (issued November 4, 3013), filed July 24, 2018 (Doc. 141-1)("Subpoena"), constitutes a search under the Fourth Amendment to the Constitution of the United States; (ii) whether the Subpoena violates New Mexico law and the Due Process Clause of the Fifth and Fourteenth Amendments to the Constitution of the United States; (iii) whether the Affidavit for Search Warrant (undated), filed July 24, 2018 (Doc. 141-2)("First Affidavit"), provides probable cause to believe that evidence of Streett's alleged criminal activity would be found in his cellular telephone records; (iv) whether, even if the Search Warrant at 4 (issued February 12, 2014), filed July 24, 2018 (Doc. 141-2)("First Warrant"), issued based on the First Affidavit, lacks probable cause, Bernalillo County Sheriff's Office Detective Kyle Hartsock relied on the First Warrant in good faith when he obtained Streett's cellular telephone records; (v) whether the First Affidavit violates the Due Process Clause, because, as Streett argues, it lacks substantial evidence to support probable cause as required by New Mexico law; (vi) whether the Affidavit for Search Warrant (executed February 24, 2014), filed December 1, 2017 (Doc. 78-1)("Second Affidavit"), provides probable cause to believe that evidence of Streett's alleged criminal activity would be found at the residence at 4620 Plume Road NW, Albuquerque, New Mexico 87120 ("4620 Plume residence"); (vii) whether, even if the Search Warrant at 14 (issued February 24, 2014), filed August 15, 2018 (Doc. 144-5)("Second Warrant"), issued based on the Second Affidavit, lacks probable cause, Hartsock relied on the Second Warrant in good faith when he searched the 4620 Plume residence; (viii) whether, even if the Second Warrant lacks probable cause and Hartsock did not execute the Second Warrant in good faith, law enforcement inevitably would have obtained a warrant to search the 4620 Plume residence; and (ix) whether, even if the Second Warrant contains an incurable defect, even if Hartsock did not execute the Second Warrant in good faith, and even if law enforcement would not have inevitably obtained a search warrant for the 4620 Plume residence, Hartsock would have discovered the identities of the charged victims. The Court will deny the Motion and the Supp. Motion. The Court holds that the Subpoena is not a search under the Fourth Amendment, because of the third-party doctrine. The Court concludes that the Subpoena does not violate New Mexico law, because a grand jury issued it after presentment of evidence, and that the Subpoena does not violate the Due Process Clause, for the same reasons it does not violate the Fourth Amendment or New Mexico law. The Court holds that the First Affidavit provides probable cause to search Streett's cellular telephone records and, even if it does not provide probable cause, that Hartsock relied on the First Warrant in good faith. Finally, the Court holds that the Second Affidavit does not provide probable cause to search the 4620 Plume Residence, but the Court will not suppress the resulting evidence because it concludes that: (i) Hartsock acted in good faith when he executed the Second Warrant; (ii) Hartsock would have inevitably discovered the evidence, because he would have obtained a valid warrant had the Second Warrant not issued; and (iii) Hartsock would have inevitably discovered the victims' identities through Streett's telephone records. Accordingly, the Court will deny the Motion and Supp. Motion, and will not exclude the telephone records or evidence seized from the 4620 Plume residence from the trial.

FACTUAL BACKGROUND

Rule 12(d) of the Federal Rules of Criminal Procedure requires the Court to state its essential findings on the record when deciding a motion that involves factual issues. See Fed. R. Crim. P. 12(d) ("When factual issues are involved in deciding a motion, the court must state its essential findings on the record."). The findings of fact in this Memorandum Opinion and Order shall serve as the Court's essential findings for rule 12(d) purposes. The Court makes these findings under the authority of rule 104(a) of the Federal Rules of Evidence, which requires a judge to decide preliminary questions relating to the admissibility of evidence, including the legality of a search or seizure and the voluntariness of an individual's confession or consent to a search. See United States v. Merritt, 695 F.2d 1263, 1269-70 (10th Cir. 1982). In deciding such preliminary questions, the other rules of evidence, except those with respect to privileges, do not bind the Court. See Fed. R. Evid. 104(a) ("The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so doing, the court is not bound by evidence rules, except those on privilege."). Thus, the Court may consider hearsay in ruling on a motion to suppress. See United States v. Ramirez, 388 F. App'x 807, 810 (10th Cir. 2010) (unpublished)("It is beyond reasonable debate that Ramirez's counsel were not ineffective in failing to make a Confrontation Clause challenge to the use of the confidential informant. The Supreme Court has not yet indicated whether the Confrontation Clause applies to hearsay statements made in suppression hearings.");¹ United States v. Garcia, 324 F. App'x 705, 708 (10th Cir. 2009) (unpublished)("We need not resolve whether Crawford [v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) ]'s^{[2 ]} protection of an accused's Sixth Amendment confrontation right applies to suppression hearings, because even if we were to assume this protection does apply, we would conclude that the district court's error cannot be adjudged ‘plain.’ "); United States v. Merritt, 695 F.2d at 1269 ("The purpose of the suppression hearing was, of course, to determine preliminarily the admissibility of certain evidence allegedly obtained in violation of defendant's rights under the Fourth and Fifth Amendments. In this type of hearing the judge had latitude to receive it, notwithstanding the hearsay rule."). Cf. United States v. Hernandez, 778 F.Supp.2d 1211, 1226 (D.N.M. 2011) (Browning, J.)(concluding that " Crawford v. Washington does not apply to detention hearings").³

1. The Online Tip.

1. On October 31, 2013, the National Center for Missing and Exploited Children ("NCMEC")⁴ received an online tip stating that Streett "requested a nude photograph by text message from my 15 year old daughter." CyberTipline Report at 1, 3 (dated October 31, 2013), filed August 15, 2018 (Doc. 144-1)("NCMEC Tip").⁵

2. The NCMEC Tip lists the "Incident Time" as October 21, 2013, 5:00 UTC.⁶ NCMEC Tip at 3.

3. NCMEC assigns its cyber tips priority levels from 1 to 4, with 1 being the highest-priority and 4 being the lowest, based on the threat or danger to the child victim. See Transcript of Motion to Suppress Proceedings at 13:17-25 (Zimmerman, Whitsitt)(taken September 11, 2018), filed September 28, 2018 (Doc. 159)("Tr.").

4. The NCMEC Tip states that it has a priority level of 3, the second-lowest priority level which NCMEC assigns its cyber tips and the lowest level assigned to submissions from an individual person, and that "[a]dditional information [is] required to determine possible risk." NCMEC Tip at 1. See Tr. at 13:17-24 (Zimmerman, Whitsitt); id. at 17:9-18 (Zimmerman, Whitsitt).

5. The NCMEC Tip was not provided confidentially; the submitter provides her name and provides her cellphone number while writing: "[My daughter] does not know that I saw the text and am reporting it. I do not want the subject alerted."⁷ NCMEC Tip at 3 (redacting the "Submitter" portion from the copy filed with the Court). See Tr. at 23:15-24 (Zimmerman, Whitsitt)(stating that there is no "indication that the mother wished to remain confidential"); id. at 96:8-10 (Mease, Hartsock)(stating that the submitter provided her name and it is redacted).

6. The submitter states that "[i]t does not appear that my daugher [sic] sent this man any photos as he requested. My concern is that he is on-line solicitating [sic] nude photos from other minor children and could possibly have received some." NCMEC Tip at 4.

7. The submitter also provides Streett's address as "Albuquerque, NM United States," his telephone number as "(505) 242-2677," and his...