United States District Court, D. Maine
ORDER ON MOTION TO SUPPRESS
JON D. LEVY, District Judge.
Paul Henry is charged with two counts of exploitation of children, 18 U.S.C. § 2251(a), in connection with the production of child pornography. He has moved to suppress as evidence his iPhone, its contents, and evidence derived from its search, as well as statements he made to law enforcement officers on February 12, 2014, after the police visited his motel room in search of a missing woman, and statements he made on April 16, 2014, following his arrest. ECF No. 26. A hearing was held on the motion on August 13 and 14, 2014, and the parties submitted post-hearing memoranda on the issue of whether I should grant Henry's request for a Franks hearing. See Franks v. Delaware, 438 U.S. 154 (1978). I have carefully considered the motion and the evidentiary record and, for reasons I will explain, I deny the motion.
I. Factual Background
A. Initial Investigation
On February 12, 2014, the Portland Police Department received a report from an agent of the Detroit, Michigan, office of the Department of Homeland Security Investigations (HSI) regarding a woman being held against her will in Portland. The substance of the report was that a young woman, who had previously been a victim of sex trafficking, had called her mother in Michigan stating that she was being held against her will at a hotel in Portland. Notwithstanding her mother's urging, the woman did not feel comfortable calling 9-1-1. The woman was identified by name, and is referred to in this decision by her initials, A.H. She had previously made calls to her mother from New York phone numbers that were linked to prostitution ads posted on the website Backpage.com. Prior to her arrival in Maine, the woman had worked as a prostitute in New York City. In addition, it was reported that A.H. is developmentally delayed and functions at the level of an 11 or 12-year-old child.
Portland Police Officer Daniel Townsend followed up on this information by contacting a detective working in the Queens precinct of the New York Police Department. The detective provided general information concerning A.H., including that she had been arrested in Manhattan at a hotel; that she had reported being raped and there were indicators that the rape was in relation to prostitution; and that A.H. may have been trafficked from Michigan to New York for purposes of prostitution.
After examining guest lists from several hotels and motels in the greater Portland area where prostitution and other illegal activity has been known to occur, Officer Mark Keller of the Portland Police Department identified that Paul Henry was staying at a motel in South Portland. Keller was familiar with Henry because Henry had previously been identified by the Portland Police Department, the Maine Drug Enforcement Agency, and federal agencies as a person involved in drug trafficking and sex trafficking in the Portland area. Henry had been summonsed by Portland police for being in possession of stolen property and then arrested for having refused to sign a summons related to marijuana, and a records check revealed that he had an extensive criminal history in New York related to charges of drug distribution, weapons, firearms, and resisting arrest or a similar offense.
The Portland police had no information at that point that linked Henry to A.H. They had previously received information, however, indicating that Henry had ties to New York and was involved in sex trafficking there. In addition, the Portland police had previously received information that connected Henry to the temporary disappearance of a 15-year-old girl from the Portland area in July 2013. The girl's aunt had reported her missing after she had abruptly left her home in the company of a man who went by the initials "L.T." The aunt reported that the girl may have been trafficked out-of-state for purposes of prostitution. The girl subsequently returned home in the company of L.T. a few hours after the police had spoken to someone who knew both L.T. and the girl, and that person had contacted L.T. or the girl by phone. Approximately two-weeks later, Henry's vehicle was stopped by Portland police and Officer Keller was called to the scene. Henry consented to Keller examining Henry's two cell phones. Keller found text messages on one of the phones between that phone and the girl's cell phone number, and also discovered the girl's name in the phone's contacts. Henry told another Portland police officer at the scene that he went by the initials L.T. Henry was not arrested at that time and was permitted to leave.
B. Investigation at the Motel
Officers Townsend and Keller travelled to the South Portland motel where they spotted Henry's car in the parking lot and learned that he had rented room 421. They were met at the motel by their supervisor, Sergeant Frank Gorham. At approximately 7:30 p.m. the three went to room 421 to conduct a "knock and talk" with Henry. See Florida v. Jardines, 133 S.Ct. 1409, 1423 (2013) (Alito, J., dissenting) (defining a "knock and talk" as knocking on the door and seeking to speak to an occupant for purposes of gathering evidence). Townsend and Keller were in plain clothes, with their badges in badge-holder lanyards around their necks. Sergeant Gorham was also in plain clothes, but was wearing a tactical police vest. Their guns were not drawn.
The hallway outside the motel room was strewn with drug paraphernalia and the officers observed various people in the hallway who, they suspected, were engaged in drug and prostitution-related activities. After knocking on the door of Henry's room and then announcing their presence as police officers, the police could hear movement inside the room, the sounds of a toilet flushing and water running, people moving about quickly, and the sound of something like a metal object hitting the floor. Henry opened the door to the room after approximately 90 seconds. The officers recognized him from a prior booking photograph and from previously seeing him around the city. The motel room was in disarray, it had the haze and smell of recently smoked marijuana, and there was a towel that had been wrapped around the door opening to mask the smell of marijuana from the hall.
Townsend introduced himself as a Portland police officer and told Henry they wanted to speak to him and ask him questions, and, mentioning the activity and traffic in the hallway, asked if they could step inside so that other persons in the hallway would not be able to hear their conversation. Henry told the officers to come in and he stepped aside and held the door open as the officers entered.
As Townsend and the other officers walked past Henry and entered the motel room, Townsend performed a protective sweep of the room to, in his words, "make sure there was not anyone who was going to pose a threat." He checked in-between the two beds, the space between the first bed and the bathroom, and in the far corner of the room past the second bed. In so doing, he observed a bag containing what appeared to be marijuana on a chair at the foot of one of the beds. Townsend estimated that the bag contained 1.5 grams of marijuana.
Having completed his sweep, Townsend positioned himself in the middle of the room facing the door and engaged in conversation with Henry, speaking in a cordial and normal manner. The officers could see that a light was on in the bathroom and heard water running and movements coming from inside it. Townsend asked Henry who was in the bathroom, and he responded, "my girl." When asked her name, Henry paused and then responded, "Big Sasha." When asked what her real name was, Henry paused and then said he thought her name was "Allure" or something to that effect. The fact that Henry was not sure of the woman's name and did not know her last name caused Townsend to believe "we were on to something." Henry then told Townsend that the girl was from Michigan and he appeared much more anxious than he had been at first.
The officers requested the person in the bathroom to step out. The bathroom door opened and a young woman, later identified as A.H., exited. Officer Keller recognized A.H. from a photograph and he asked her to step into the hallway so that he could speak to her in private. Henry protested and yelled at A.H. that she did not need to speak to the police or answer their questions. Because Henry became increasingly excited as A.H. left the room, Townsend asked Henry to sit in a chair near the corner of the room, which he did.
Townsend spoke to Henry in a conversational manner and Sergeant Gorham remained in the room with Townsend and Henry. Townsend intentionally kept a clear passage between where Henry was seated and the room's door so that Henry could exit if he wished, because Townsend did not want to create a custodial situation.
From their conversation, Townsend learned that Henry did not have a fixed address and knew very little about A.H. Townsend observed Henry becoming more nervous and glancing repeatedly at a leather jacket hanging on the clothes rack in the corner of the room. Henry appeared concerned about whatever was over there. There was a metal hanger on the floor near the rack, and Townsend surmised that the hanger was the source of the metal sound they had heard immediately after they had knocked on the door. Townsend had also observed that one of the coat hangers on the rack was swaying when he first entered the room.
Henry glanced repeatedly at a visible bulge in one of the pockets of the leather jacket. Knowing that Henry had a weapons history, Townsend became concerned that there might be a weapon in the jacket. Accordingly, Townsend patted the outside of the jacket and could feel and hear the distinct sound of something that was familiar and which he recognized as being a large amount of cash wrapped in plastic. He took the object out of the pocket and it was a single plastic bag with a large amount of U.S. currency wrapped in three separate plastic bags, about four inches thick in all, folded in different denominations with rubber bands. The cash was later determined to total approximately $12, 700. Henry claimed the money was given to him by his mother, but he could not explain why he did not keep it in a more secure location.
Townsend next searched a suitcase that was resting underneath the leather jacket at the bottom of the clothes rack, but he found no weapons in it. Finally, Townsend patted down Henry, who was clothed only in shorts and a t-shirt, and found an additional $300 on his person.
Townsend also observed two cell phones in the room: an iPhone sitting on the bed and a Nokia plugged into the wall next to the television. When questioned, Henry stated that he used the iPhone for pictures and similar things, and that the Nokia telephone "really wasn't his." Townsend observed Henry become very anxious when he was asked about the cell phones. Henry's statement that he used the iPhone to take pictures was significant to Townsend because people engaged in sex trafficking often take photographs of their prostitutes and post the photographs on websites, and cell phones are needed to set up "dates" and communicate with prostitutes. Townsend asked Henry for the phone numbers of the phones and for the password for the iPhone, which Henry provided.
The only belongings in the room that appeared to be A.H.'s were a purse, deodorant, women's hygiene products, and a notebook with a photograph of Marilyn Monroe in it. A.H. had no clothing or luggage in the room, suggesting to Townsend that A.H. had arrived in Portland without any clothing or money to buy clothing. The fact that A.H. had few possessions suggested to Townsend that A.H. had been coerced by Henry to come with him to Maine.
A.H. was interviewed separately by Officer Keller. A.H. confirmed that she did not have any clothing with her other than the clothing she was wearing, and that she had no money in her possession. She stated that she had met Henry in Brooklyn, New York, they had driven to Maine, she had known him for a couple of days, and she was unable to tell Keller his-Henry's-name. She stated that Henry treats her "okay, " but that she did not want to stay with him and did not want to go back to the room. She also told Keller that she had seen a silver firearm in the room the day before. After the interview, Keller assisted A.H., who he learned was 19-years-old, in finding a safe place for her to stay.
After speaking to Keller, Townsend called Maine Assistant Attorney General Leanne Sutton. She told Townsend to seize the phones and the money, and to apply for a search warrant.
Townsend told Henry that the police would seek a search warrant to search the motel room and that if he did not want to wait while the search warrant was obtained, he could leave after Townsend checked the clothing and any other items Henry wanted to take with him. Townsend issued Henry a summons for possession of a useable amount of marijuana. Henry got dressed and left. The entire encounter in the motel room lasted between 10 to 15 minutes.
C. First Search Warrant
The police secured the motel room. Keller applied for and obtained a search warrant that was issued by a Maine Superior Court Justice at 12:56 a.m. on February 13. ECF No. 31-1, p. 4. The subsequent search of the motel room and Henry's car failed to uncover any additional evidence of drug or sex trafficking, or a firearm.
D. Second Search Warrant
Townsend sought a second state search warrant a week later on February 20. The warrant request was supported by Townsend's affidavit that included the following information he and Keller obtained from A.H. when they conducted a second interview with her on February 13, the day after their initial encounter:
VII. On 02/13/14, Officer Keller and I spoke with H[ ] about how she came to Portland, ME. In substance, H[ ] told me that she had worked as a prostitute in the past, and around the time of 02/09/14, she was walking around the area of Brooklyn. H[ ] describes that Henry approached her, and asked her if she would work for him (as a prostitute). Henry told her that he was going to come to Boston, MA, but they eventually came to Portland, ME for the purposes of prostitution. Henry took photographs of her body to post on the website of backpage.com with his Apple iPhone. H[ ] said that he had tried to post the advertisements to backpage.com, but was unable to do so because of a setting on his phone.
VIII. H[ ] said that her movements were controlled while she was in the room, and Henry had told her she was not allowed to make outgoing calls. H[ ] described Henry threatening her multiple times over the course of the previous 3 or 4 days that she was staying in the hotel room. H[ ] also described a gross sexual assault in which Henry forced H[ ] to perform oral sex on Henry. H[ ] said that she did not push Henry off or tell him no, because she feared Henry had the firearm, and feared that he would kick her out onto the street. [Affiant Note: Due to my education training and experience, I know that subjects who traffic female victims utilize force, fraud, and coercion to control their victims.] H[ ] also described Henry forcing her to place cocaine base (crack) in her vagina to transport the drugs to 2 residences.
ECF No. 31-2, p. 6.
The second warrant authorized the search of the iPhone and Nokia cell phone that had been seized pursuant to the first search warrant and stored at the Portland Police Headquarters. The warrant specifically authorized the seizure of evidence related to the crimes of Aggravated Sex Trafficking (Class B) and Aggravated Trafficking of Scheduled Drugs (Class A), including the following provisions which are relevant to the issues at hand:
7. All Stored communications - (without date range) to include:
i. All audio files to include voicemail messages and voice notes
ii. All phonebook and contact lists to include phone numbers ...