United States v. Hinson

681 F.Supp.3d 789

UNITED STATES of America, Plaintiff, v. Jeremy HINSON, Defendant.

Case No. 5:22-cr-00121

United States District Court, N.D. Ohio, Eastern Division

Signed July 7, 2023

Carol M. Skutnik, Office of the U.S. Attorney, Cleveland, OH, for Plaintiff.

Christian J. Grostic, David E. Johnson, Public Defenders, Office of the Federal Public Defender, Cleveland, OH, for Defendant.

OPINION AND ORDER

J. Philip Calabrese, United States District Judge

Defendant Jeremy Hinson, a transgender person also known as Alexia Conner, moves to suppress evidence federal agents obtained from her cellphone while executing a search warrant. The warrant at issue authorized federal agents to compel Ms. Conner to use biometrics to unlock the phone. However, it did not authorize them to request a password or other means for accessing the device. These terms of the warrant implicate the Fourth and Fifth Amendment in an emerging area of the law that has divided the lower courts. See In re Search of a White Google Pixel 3 XL Cellphone in a Black Incipio Case, 398 F. Supp. 3d 785, 790 (D. Idaho 2019).

Defendant seeks to suppress the evidence resulting from a search that occurred after agents accessed her cell phone using means the warrant did not authorize. Although agents exceeded the scope of the warrant in this regard, the United States argues that Defendant consented to the search. Alternatively, the United States argues that the exclusionary rule does not require suppression because discovery of the evidence at issue was inevitable. For the reasons explained below, the Court DENIES the motion to suppress.

STATEMENT OF THE CASE

On November 17, 2021, a United States Magistrate Judge issued a warrant to search Defendant and her home and to seize certain property, including her cell phone. (ECF No. 26-1, PageID #207). Federal agents executed that search the next day. (ECF No. 26-2, PageID #213.) On March 11, 2022, a grand jury returned an indictment charging Defendant with three counts involving child pornography. (ECF No. 1.) The United States arrested Defendant on April 20, 2022. (ECF No. 6.) Arguing that federal agents exceeded the permissible scope of the search warrant, Defendant seeks to suppress the evidence obtained from her cellphone. (ECF No. 25.) The United States opposes the motion. (ECF No. 26.) At the Court's request, the United States provided the Court with a recording of the interview of Defendant. (ECF No. 28.) On June 22, 2023, the Court heard oral argument and took the motion under advisement.

Both parties accept as accurate the report of the investigation that the Department of Homeland Security prepared. (ECF No. 26-2.) Additionally, counsel agree that the videotaped interview of Defendant, which captures the events at issue and the conversation between Defendant and two DHS agents, is part of the record. The Court reviewed that audio-video recording, which largely corroborates the report but contains some additional relevant details. (ECF No. 26-2, PageID #214.) As a result, an evidentiary hearing is unnecessary to rule on the pending motion. (See ECF No. 27, PageID #223 n.1.)

FINDINGS OF FACT

An undercover DHS agent joined an online chat room dedicated to the distribution of child pornography and discovered a user responsible for uploading some 147 files of such content. (ECF No. 26-2, PageID #213.) DHS suspected that Defendant was that user. (Id.)

A. The Warrant

The United States obtained a warrant to search Defendant and her home and to seize electronic devices and certain content on them. (ECF No. 26-1.) The warrant authorized a daytime search to occur between November 17 and December 1, 2021. (Id., PageID #207.) Further, it called for the seizure of several items that might contain evidence of child pornography, including laptops, tablets, cellphones, cameras, electronic storage devices, video tapes and recorders, computer software, computer passwords, and other records. (Id., ¶¶ 1-8, PageID #210-12.)

The warrant authorized law enforcement "to compel [Defendant] to provide biometric features" to access devices that unlock with facial or fingerprint recognition, if done "to search the contents as authorized by this warrant." (Id., ¶ 9, PageID #212.) Critically, the warrant "d[id] not authorize law enforcement personnel" to ask Defendant to "state or otherwise provide the password or any other means that may be used to unlock or access the computer devices" subject to the warrant. (Id. (emphasis added).) This limitation in the warrant extended to asking Defendant to identify "the specific biometric characteristics (including the unique finger(s) or other physical features) that may be used to unlock or access the computer devices." (Id.) In relevant part, the warrant provides:

During the execution of the search warrant, law enforcement personnel are also specifically authorized to compel [Defendant] to provide biometric features, including pressing his fingers (including thumbs) against and/or putting his face before the sensor, or any other security feature requiring biometric recognition . . . . for the purpose of attempting to unlock the computer device's security features in order to search the contents as authorized by this warrant.

* * *

Further, this warrant does not authorize law enforcement personnel to request that [Defendant] state or otherwise provide the password or any other means that may be used to unlock or access the computer devices, including by identifying the specific biometric characteristics (including the unique finger(s) or other physical features) that may be used to unlock or access the computer devices.

(Id.)

DHS agents executed the search warrant and seized Defendant's cellphone, a Samsung Note 10+ with service on the Verizon Wireless network. (ECF No. 26-2, PageID #213 & #216.) The phone was password protected. Unlocking it required tracing a designated pattern or using fingerprint recognition (a biometric feature). (Id., PageID #215.)

B. Interview of Defendant

As the search commenced, Defendant agreed to speak with law enforcement. (ECF No. 26-2, PageID #214.) For nearly 90 minutes, two DHS agents questioned Defendant in an interview room within a mobile forensic vehicle of the Ohio Internet Crimes Against Children Task Force. (Id.) The record shows that the interview room is situated in the rear of a modified trailer and has a table with bench seats on either side and an exit door accessible immediately to the right of the subject's seat. Overall, the tenor of the interview was conversational; the agents mixed small talk with questions about Defendant's online activity. They advised Defendant that she was not under arrest and free to leave. (ECF No. 26-2, PageID #214-15.) The record confirms that Defendant understood each point.

During the interview, Defendant sat near the exit. She had a clear and unobstructed path—just a few steps—if she wished to leave. (Id., PageID #214.) One agent informed Defendant that she was "free to leave the interview room at any time" and, by opening the exit door, showed her the way out. (Id.) Agents provided Defendant a copy of the search warrant, resulting in noticeable nervousness as she paged through it. (Id.)

Defendant voluntarily conversed with the agents. As she reviewed the warrant and read its contents, Defendant exclaimed, "Oh my God!" Pointing to a reference in the warrant to child pornography, Defendant volunteered that she had a friend who used her phone and that she later discovered and "immediately erased" a photograph of a "little girl." (Id.) Defendant offered to tell the agents "exactly who and how it got there." (Id.) Further, she volunteered: "I'm on this app, called Kik"; "I'm not a pedophile," and strongly opposed such material. (Id., PageID #215.)

Approximately five minutes and twenty seconds into the video of the interview, agents advised Defendant that they seized her cell phone and stated, "within the warrant, we're going to need to look through that." Defendant briefly acknowledged the statement, and an agent asked, "How do you unlock your phone?" Without hesitation, Defendant described the pattern used to unlock the phone.

At this point, Defendant added, "I will tell you, I have bestiality [on my phone]." Then, in her nervousness, Defendant realized that she provided incorrect information to unlock the phone. After taking a moment to regain her composure, approximately six minutes and twenty seconds into the video, Defendant corrected herself and identified the pattern she thought would open the phone. An agent asked whether a passcode or number sequence would also open the phone, and Defendant answered that question in the negative but indicated that a biometric marker (a fingerprint) would.

The agents did not give the phone to Defendant to unlock with her finger or by using another biometric marker. Instead, they provided Defendant with blank paper and asked if she would draw the pattern used to unlock the phone. Defendant demurred, and agents moved on to other topics. At one point, approximately 37 minutes into the interview, Defendant asked if she could have her phone back. Agents responded, "Provided we get in there because, I think you may have seen the warrant. I think that's probably the main thing we need to search." Earlier, agents told Defendant that they did not want to seize the phone and leave her without one for an extended period of time.

During the course of the interview, Defendant stated that she administers several chatgroups on the platform Kik, including groups devoted to bestiality and nudity. (Id., PageID #216.) Defendant acknowledged that "people associate bestiality with [child pornography]" and admitted to seeing child pornography in Kik chatrooms on roughly "a dozen" occasions. (Id., PageID #219.) When asked if she was familiar with the Kik username associated with uploading 147 files of minors, Defendant answered: "I remember the name and picture," but it does not "hold any significance to me...