United States v. Streett

83 F.4th 842

UNITED STATES of America, Plaintiff - Appellee, v. Bentley STREETT, Defendant - Appellant.

No. 22-2056

United States Court of Appeals, Tenth Circuit

FILED October 5, 2023

Appeal from the United States District Court for the District of New Mexico (D.C. No. 1:14-CR-03609-JB-1)

Grant R. Smith, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, with him on the briefs), Denver, Colorado, for Defendant-Appellant.

C. Paige Messec, Assistant United States Attorney (Alexander M.M. Uballez, United States Attorney, with her on the brief), Albuquerque, New Mexico, for Plaintiff-Appellee.

Before TYMKOVICH, EBEL, and EID, Circuit Judges.

EBEL, Circuit Judge.

Defendant-Appellant Bentley Streett was arrested for—and eventually pleaded guilty to—various counts of child pornography and sexual activity with minors. His actions were discovered by the mother of one of the minors from whom Mr. Streett attempted to solicit pornography, prompting the mother to contact the National Center for Missing and Exploited Children. An investigation ensued, resulting in the production of Mr. Streett's cell phone records, followed by his arrest and a search of his home, computers, and phones.

Mr. Streett now appeals on two grounds. First, he argues that the search warrant permitting the search of his home lacked probable cause, and that the search could not be justified by an exception to the requirement that officers obtain a legitimate warrant. As such, he argues that all evidence obtained after this warrant was issued should be suppressed. Second, he argues that the district court erred in denying his motion to dismiss counts 3 through 7 of his indictment. Mr. Streett argues that the statute under which these charges were brought—18 U.S.C. § 2251(a)—is unconstitutionally overbroad because it criminalizes a substantial amount of protected speech.

Exercising jurisdiction under 28 U.S.C § 1291, we AFFIRM the denial of Mr. Streett's motion to suppress and motion to dismiss.

I. BACKGROUND

In October 2013, the National Center for Missing and Exploited Children received an online tip that Mr. Streett had been texting the tipster's 15-year-old daughter, M.Y., and had requested that M.Y. send him a nude photograph. The tipster said that she did not believe M.Y. had sent any photos to Mr. Streett but was concerned that Mr. Streett was soliciting photos from other minors. The tipster also stated that Mr. Streett was located in Albuquerque, New Mexico, and provided his telephone number. The note accompanying the tip provided additional details about Mr. Streett, including his birth date and other telephone numbers associated with him.

Special Agent Jon Whitsitt was assigned to investigate the tip. He began by gathering as much information as possible without launching a full investigation, before then presenting this information to a supervisor for assignment to the appropriate law enforcement agency. In investigating the tip, Whitsitt did not believe that there was probable cause that sexual exploitation had occurred. He did believe, however, that if the tip were true, a crime had been committed which justified further investigation. He prepared a subpoena duces tecum for the telephone number provided by the tip, as he did for most cases where possible sexual exploitation had occurred. To get authorization for a subpoena, he provided background information to his supervisor and an attorney at the New Mexico Attorney General's Office, Crimes Against Children Task Force. He then received authorization to seek a subpoena.

In November 2013, Whitsitt sent a preservation letter to T-Mobile requesting that all information relating to the phone number in the tip be preserved for 90 days pending a court order.¹ A few days later, a New Mexico state court issued a Grand Jury subpoena requesting records for the phone number, or in the alternative, that the records be sent to Special Agent Whitsitt. T-Mobile sent the information to Whitsitt and included Streett's telephone number, street address, birth year, and social security number.

In February 2014, the investigation was assigned to Detective Hartsock at the Bernalillo County Sheriff's Office Crimes Against Children Unit. Hartsock was provided with the tip, the subpoena, and the phone records that were received from the subpoena. He then obtained a search warrant for the telephone records received from T-Mobile. These telephone records did not disclose the content of communications, but did provide metadata regarding such communications. The records disclosed a high volume of communications between Mr. Streett and M.Y, including a mixed media message sent from Mr. Streett to M.Y. (which indicates that a photograph was sent). The records also showed that Mr. Streett had communicated with 135 different area codes, and that many of the messages had been mixed media (once again indicating that photographs were being exchanged).

In mid-February 2014, Hartsock filed an affidavit (the "Warrant Affidavit") seeking a warrant (the "Search Warrant") to search the residence associated with Mr. Streett in the T-Mobile records, located at 4620 Plume St. in Albuquerque. The Warrant Affidavit provided a description of the appearance of the 4620 Plume residence and stated that the only car not backed into the driveway was a brown Fiat with a New Mexico license plate number of PL8SPCL. The Warrant Affidavit also described the tip and the T-Mobile records. Moreover, before submitting the Warrant Affidavit, Kittson County officers in Minnesota spoke to M.Y. and learned that she was fourteen at the time Mr. Street requested the nude photo (which Mr. Streett allegedly knew), and that Mr. Streett had asked her to send him nude photographs multiple times (requests with which she had never complied).² The Warrant Affidavit detailed this interview. Hartsock also stated that his training and experience led him to believe that a person does not try to get child pornography just once and only in one way. However, the Warrant Affidavit did not discuss information gleaned from the phone records, why Hartsock decided to search the 4620 Plume residence, or why he believed evidence of criminal activity would be found there.

The Search Warrant was approved telephonically on February 24, 2014, and was then executed on February 25, 2014.³ When he arrived at the 4620 Plume residence, Hartsock left a copy of the Search Warrant with Mr. Streett's live-in girlfriend, and then proceeded to seize a Mac laptop, a Mac desktop, one smart phone, and one regular phone. Mr. Streett was present, and once the search was completed, he was escorted to an unmarked vehicle and read his Miranda warnings. He then voluntarily spoke to the police and admitted that he uses his Twitter account to meet women, but also said that he asks his followers to be at least eighteen years old. Mr. Streett also admitted, though, that he may have asked some girls under eighteen for nude photographs of themselves—but didn't believe he had any child pornography on his cell phone.

After various other search warrants were executed (none of which are relevant to this appeal), and the identities of various other underaged victims were discovered, a grand jury returned a Second Superseding Indictment charging Mr. Streett for his conduct involving five of the minors. Mr. Streett was charged with two counts of traveling in interstate commerce "for the purpose of engaging in any illicit sexual conduct" with a person under eighteen, in violation of 18 U.S.C. § 2423(b), and five counts of persuading and attempting to persuade a minor "to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct," in violation of 18 U.S.C. §§ 2251(a), (e), and 2256. He was also charged with one count of distributing visual depictions of minors engaged in sexually explicit conduct, in violation of 18 U.S.C. §§ 2252(a)(2), (b)(1), and 2256; two counts of transferring obscene materials to minors, in violation of 18 U.S.C. § 1470; and two counts of possessing child pornography, in violation of 18 U.S.C. §§ 2252A(a)(5)(B), (b)(2), and 2256.

Mr. Streett filed a motion to suppress on the basis that the Search Warrant failed to establish probable cause to search the 4620 Plume residence because it did not connect Mr. Streett to this address via the T-Mobile records. Accordingly, Mr. Streett argued that all evidence obtained from this warrant and all additional searches must be suppressed.⁴ In addition, Mr. Streett filed a motion to dismiss four counts of his indictment on the basis that 18 U.S.C. § 2251(a) is unconstitutionally overbroad under the First Amendment.

The district court denied Mr. Streett's motion to suppress and motion to dismiss. The court agreed with Mr. Streett that the Search Warrant failed to establish probable cause because it did not explicitly link Mr. Streett to the 4620 Plume residence. However, the district court concluded that the Search Warrant was executed in good faith. The district court also ruled that the evidence would inevitably have been discovered even if the Search Warrant had been denied due to its deficiencies because the Warrant Affidavit would inevitably have been corrected and the Search Warrant would have subsequently been issued. Alternatively, the district court concluded that the five victims' identities would inevitably have been discovered from the T-Mobile records even without the Search Warrant. Finally, on the motion to dismiss, the district court concluded that § 2251(a) is not unconstitutionally overbroad. Mr. Streett then pled guilty to each count, reserving his right to appeal the issues before us.

On appeal, Mr. Streett argues that the district court erred in applying the good faith exception to the warrant requirement. He also argues that the inevitable discovery doctrine does not generally apply to defective warrant cases, and even if it did, it does not apply to the Search Warrant...