United States v. Wylie

• Decision Date: 18 July 2016
• Docket Number: Court File No. 16-cr-144 (RHK/LIB)
• Citation: United States v. Wylie, Court File No. 16-cr-144 (RHK/LIB) (D. Minn. Jul 18, 2016)
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. Justin Edward Wylie, Defendant.
• Court: U.S. District Court — District of Minnesota

UNITED STATES OF AMERICA, Plaintiff, v. Justin Edward Wylie, Defendant.

Court File No. 16-cr-144 (RHK/LIB)

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

July 18, 2016

REPORT AND RECOMMENDATION

This matter comes before the undersigned United States Magistrate Judge pursuant to a general assignment, made in accordance with the provisions of Title 28 U.S.C. § 636(b)(1) and Local Rule 72.1, upon Defendant Justin Edward Wylie's ("Defendant")Motion to Suppress Any Statements Made By Defendant, [DocketNo. 26], and upon Defendant's Motion to Suppress Any Evidence Obtained as a Result of Any Illegal Searches.[DocketNo. 27].The Court held a motions hearing on June 30, 2016, regarding the parties' pretrial motions.¹The Court took the parties' pretrial motions under advisement at that time.

For reasons discussed herein, the Court recommends that Defendant's Motion to Suppress Any Statements Made By Defendant, [DocketNo. 26], be DENIED, and that Defendant's Motion to Suppress Any Evidence Obtained as a Result of Any Illegal Searches, [DocketNo. 27], be DENIED.

I.BACKGROUND AND STATEMENT OF FACTS

A.Background

Defendant is charged with fifteen (15) counts of production of child pornography, in violation of 18 U.S.C. §§ 2251(a)and2251(e); five (5) counts of distribution of childpornography, in violation of 18 U.S.C. §§ 2252(a)(2)and2252(b)(1); one (1) count of receipt of child pornography, in violation of 18 U.S.C. §§ 2252(a)(2)and2252(b)(1); and one (1) count of possession of child pornography, in violation of 18 U.S.C. §§ 2252(a)(4)(B)and2252(b)(2).(Indictment [DocketNo. 1]).

B.Facts

The record presently before the Court indicates that in February of 2014, Special Agent Jesse Smith("SA Smith") of the North Dakota Bureau of Criminal Investigation conducted an undercover peer-to-peer file sharing investigation of Internet Protocol ("IP") address 24.11.236.180, which was associated with a target in Breckenridge, Minnesota.(Gov't's Ex. 27-1at 3-4).²During the investigation, SA Smith used undercover investigative software to download computer files containing known images of child pornography from a host computer with IP address 24.11.236.180 that was running peer-to-peer file sharing software.(Id.).Pursuant to an administrative subpoena, SA Smith learned that IP address 24.11.236.180 was registered under the name A.H.at 405 South 9th Street Apt.A, in Breckenridge, Minnesota.(Id. at 3).

On February 2, 2014, SA Smith was able to successfully download from the host computer associated with IP address 24.11.236.180 a three (3) minute and twenty (20) second movie file containing what readily appeared to SA Smith to be child pornography.(Id.).On February 5, 2014, SA Smith also downloaded from the host computer associated with IP address 24.11.236.180 three (3) additional movie files which also contained what readily appeared to SA Smith to be child pornography.(Id.).

On February 27, 2014, SA Smith informed Detective Sergeant Natalie Butenhoff("DS Butenhoff") of the Breckenridge Police Department of his investigation, and he provided her with a DVD containing the files downloaded from the host computer associated with IP address 24.11.236.180.(Id.).On March 14, 2014, DS Butenhoff verified with the Breckenridge Public Utilities Department that 405 South 9th Street, Apt.A, in Breckenridge, Minnesota, was registered in the name of A.H. attention Justin Wylie.

On March 14, 2014, DS Butenhoff drafted an application for a warrant to search the premises described as 405 South 9th Street, Apt.A, in Breckenridge, Minnesota.(Id.).DS Butenhoff's affidavit in support of the application for a warrant to search 405 South 9th Street, Apt.A, in Breckenridge, Minnesota, contained the details of SA Smith's and DS Butenhoff's investigations as set forth above.(Id.).The affidavit also contained SA Smith's qualifications, DS Butenhoff's qualifications, and descriptions of the contents of each movie file SA Smith downloaded from the host computer associated with IP address 24.11.236.180.(Id.).In that application, DS Butenhoff also attested that, based on her knowledge, experience, and training on cases involving child exploitation and child pornography, collectors of child pornography often keep it in their home and that she had good reason to believe that evidence of child pornography would be found at the property described in the application for a search warrant.(Id.).

On March 14, 2014, a District Court Judge for the State of Minnesota, Eighth Judicial District, County of Wilkin, determined that probable cause supported the issuance of the search warrant for the property now at issue.(Id.).That search warrant authorized a search for child pornography; information, correspondence, records, documents, or other materials pertaining to the possession, receipt, or distribution of child pornography; records evidencing ownership ofdigital media devices and removable storage; any computer, computer system, and related peripherals; digital cameras; scanners; any input/output peripheral devices; hardware and software manuals; and any electronic data storage devices.(Id.).

On March 14, 2014, six officers, including DS Butenhoff, her Chief, and four other agents, executed the search warrant for the property located at 405 South 9th Street, Apt.A, in Breckenridge, Minnesota.(June 30, 2016, Motions Hearing, Digital Recording at 11:00-11:03 a.m.).The four agents were dressed in tactical gear, DS Butenhoff was in tactical pants with a polo shirt, and the Chief was wearing a police uniform.(Id.).Each of the officers was armed with a service weapon, however, no weapons were ever drawn.(Id.).When the search warrant was executed, the Defendant, his girlfriend, and her nine month old child were present in the apartment.Defendant and his girlfriend were pat searched upon initiation of the search warrant execution, and then his girlfriend was allowed to stay in the kitchen to feed her nine month old child.(Id. at 11:03-11:05 a.m.).Defendant was seated in the living room.(Id.).DS Butenhoff testified that upon her entry into the apartment upon the execution of the search warrant, she personally told Defendanthe was not under arrest, and she further testified that she did not hear anyone tell him anything to the contrary.(Id. at 11:04-11:06 a.m.).³

After the apartment had been secured, but before the officers began conducting their search, DS Butenhoff asked Defendant if he would be willing to be interview, and if he would be willing to step outside to conduct that interview.(Id. at 11:07-11:08 a.m.).Defendant acknowledged that he was willing to speak with DS Butenhoff, at which time the two stepped out of the apartment.(Id.).Upon exiting the apartment, DS Butenhoff and Defendant walked to the entrance of the apartment building which had an unlocked exit on each end of the publichallway.(Id. 11:07-11:09 a.m.).Upon reaching the building's doorway, DS Butenhoff turned on her recorder and proceeded to interview Defendant.(Id. at 11:08 a.m.-11:09 a.m.).

Defendant was not restrained during the interview.(Id. at 11:07-11:09 a.m.).No threats were made to Defendant during the interview, and at no time did DS Butenhoff raise her voice to Defendant.(Gov't'sEx. 26-1).Defendant did not attempt to leave the public hallway area where DS Butenhoff was interviewing him.(June 30, 2016, Motions Hearing, Digital Recording at 11:08-11:09 a.m.).DS Butenhoff testified that the recorder she used to record the interview was at all times in plain view of Defendant.(Id. at 11:08-11:10 a.m.).

DS Butenhoff began the interview by stating date, time, and location information, and asking Defendant his basic identification information.(Gov't's Ex. 26-1 at 00:00-00:46).⁴After the identification information, DS Butenhoff proceeded to ask Defendant questions regarding his cell phone service and provider information.(Id. at 0:46-1:14).DS Butenhoff then informed Defendant that he was not under arrest, and she read Defendanta Miranda warning.(Id. at 1:15-1:46).

Shortly after the interview began, Defendant asserted that he did not know why the police were at his house, and DS Butenhoff informed Defendantshe would give him a copy of the search warrant and that the police had information concerning child pornography on the computer located in Defendant's apartment.(Id. at 1:44-2:35).After explaining the reasons the police were at Defendant's apartment, DS Butenhoff asked Defendant the type of electronic devices he had, if he wanted to share his passwords with DS Butenhoff, and for any alternative email addresses Defendant had.(Id. at 2:36-13:07).DS Butenhoff then questioned Defendant about the contents of his electronic data storage, which of those device contained childpornography, and the source from which he had obtained that child pornography.(Id. at 13:08-18:35).

Approximately eighteen minutes into the interview the following exchange took place:

Butenhoff: Ok.And this is kind of your time to tell me the truth because otherwise you know I probably wouldn't be here if I didn't know that you did share.

Defendant: [Inaudible] share [inaudible].

Butenhoff: Ok.

Defendant: [Inaudible].

(Id. at 18:35-19:00).Approximately twenty minutes into the interview the recorder accidently turns off and is then restarted.(Id. at 20:00).The majority of the remainder of the interview concerns the subjects of the child pornography, the source of the child pornography, and other people who would have had access to Defendant's apartment.(20:00-29:16).The last two minutes of the interview concern additional cell phones found in Defendants apartment.(Id. at 29:16-31:15).

Defendant was not arrested at the conclusion of the interview with DS Butenhoff.(Id. at 11:09 a.m.).At no time while police were at his apartment was Defendant ever placed in handcuffs.

Defendant was interview a second time, on January 26, 2016, approximately two years...