United States District Court, D. New Mexico
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
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
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 Fed.Appx. 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.”); United States v. Garcia, 324
Fed.Appx. 705, 708 (10th Cir. 2009) (unpublished) (“We
need not resolve whether Crawford [v.
Washington, 541 U.S. 36 (2004)]'s 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
The Online Tip.
October 31, 2013, the National Center for Missing and
Exploited Children (“NCMEC”) 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
NCMEC Tip lists the “Incident Time” as October
21, 2013, 5:00 UTC.NCMEC Tip at 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.”).
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).
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.” 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).
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.
submitter also provides Streett's address as
“Albuquerque, NM United States, ” his telephone
number as “(505) 242-2677, ” and his age as
approximately thirty-eight, but does not provide how she
knows this information. NCMEC Tip at 3.
Tip's submitter later emailed “NCMEC's general
email, ” saying “I just sent a report of child
exploitation in on-line. I realized after the fact that I
entered the wrong phone number for the subject” and,
after stating the original number provided is a contact
number for the Albuquerque Police Department, provided
Streett's correct telephone number as
“505-974-9704”. NCMEC Tip at 6.
According to a NCMEC note on the Tip, the first
“provided number for the reported user appears to
result back to the police department” and, per the
submitter's email, the correct “number is:
505-974-9704.” NCMEC Tip at 6-7.
note continues to provide an
“ITACT” for 505-974-9704, which provides the
subscriber name as “STREETT BENTLEY, ” the
“Phone In-Service Period: Active for 1 month or less,
” the carrier as T-Mobile USA, and the “Street
Address: Albuquerque NM 87102-3472.” NCMEC Tip at 7.
note also provides a “TLO” for Streett,
providing a date of birth of (redacted)/1975, other names and
dates of birth associated with him, and associated telephone
numbers besides the 974-9704 number: 505-550 (remainder
redacted), a mobile; 505-349 (remainder redacted), but does
not say with what type of telephone this number is
associated; and 505-877(redacted), a landline. NCMEC Tip at
TLO also notes that Streett is a deceased individual's
social security number, and provides the social security
number as (redacted)-6364. See NCMEC Tip at 8.
There are two “Possible Criminal Records” for
Streett in the note as well, NCMEC Tip at 8, but they do not
indicate “a previous significant criminal history,
” Tr. at 23:8-10 (Zimmerman, Whitsitt). See
id. at 46:8-13 (Zimmerman, Whitsitt) (stating
“there was no indication of any criminal history
of” Streett being a sex offender).
note concludes with an address summary, providing a list of
eight addresses, with the only non-redacted address being the
4620 Plume residence with associated dates of
“4/12/2004 to 10/30/2013.” NCMEC Tip at 9.
Another NCMEC note on the Tip states: “The victim did
not appear to engage with the reported user. Based on the
user, I will send to the NM ICAC.” NCMEC Tip at 10.
NMCEC Tip concludes by saying it “was made available to
the Law Enforcement Agencies listed below” and then
lists the New Mexico Attorney General's Office --naming
special agent Anthony M. Maez as the assigned investigator --
and the Bernalillo County Sheriff's Office -- listing
detective Kyle Hartsock as the assigned investigator. NCMEC
Tip at 11.
Special Agent Jon Whitsitt began his career in law
enforcement in June 2006, see Tr. at 9:14-15
(Whitsitt), and worked in the Attorney General's Office
as a criminal analyst, “primarily focus[ing] on cyber
tip management, ” from approximately September 2011,
until approximately September 2014, Tr. at 10:9-21
(Zimmerman, Whitsitt). See id. at 53:22 (Whitsitt)
(clarifying that he did not leave the Attorney General's
Office in 2013 as previously stated).
position of criminal analyst is not one of “sworn law
enforcement capacity”; it is a civilian position. Tr.
at 34:5-7 (Whitsitt, Zimmerman).
some date which Whitsitt could not recall, he transitioned to
the position of special agent -- which is a law enforcement
officer position. See Tr. at 54:3-11 (Whitsitt,
Whitsitt currently works at the Gallup Police Department.
See Tr. at 9:10 (Whitsitt).
Whitsitt was a special agent when investigating the NCMEC
Tip. See NCMEC Tip at 11 (releasing the tip on
November 1, 2013, to the Attorney General's Office);
Letter to Custodian of Records at T-Mobile from Special Agent
Jon R. Whitsitt at 1 (dated November 1, 2013) (submitted to
the Court at the September 11, 2018 evidentiary hearing as
Defendant's Hearing Exhibit B) (“Preservation
Letter”) (showing Whitsitt's signature on November
1, 2013, as “Jon R. Whitsitt, Special Agent -
Whitsitt had special training as a criminal analyst to review
NCMEC's cyber tips: he was “trained in [Internet
Crimes Against Children] procedures and NCMEC, and reading
those tip reports, ” and also “attended training
at the [NCMEC office] in cyber tip management.” Tr. at
16:8-16 (Zimmerman, Whitsitt).
“[C]yber tip management” refers to triaging the
tips that the New Mexico Attorney General's Internet
Crimes Against Children task force receives from NCMEC --
after NCMEC has screened them -- as New Mexico's
“ICAC coordinator.” Second Affidavit at 4.
See Tr. at 10:20-11:5 (Zimmerman, Whitsitt); First
Affidavit at 2.
NCMEC asks the ICAC coordinators to “validate the
information” in the cyber tips, because it forwards
every tip received without “vouch[ing] for the accuracy
of any of the information.” Tr. at 33:6-14 (Zimmerman,
Whitsitt's triage process is first “figuring out
the most information [he] could without launching a
full-fledged investigation, and then presenting the
information to [his] supervisor who would then assign the
case to the appropriate law enforcement agency.” Tr. at
Whitsitt “looked at the facts or the elements of the
cyber tip, ” and, if he believed that a child “is
in immediate threat or danger, ” that tip would take
“an ultimate priority.” Tr. at 13:6-12
Whitsitt would receive variable numbers of cyber tips on any
given day -- some days no tips, other days up to fourteen
tips -- but he could not recall how many cyber tips he
received on the day that he got the NCMEC Tip. See
Tr. at 12:23-13:3 (Whitsitt, Zimmerman).
Whitsitt could not recall what priority NCMEC assigned the
Tip in this case. See Tr. at 15:1-4 (Zimmerman,
NCMEC Tip was the only tip about Streett that Whitsitt
received. See Tr. at 45:19-23 (Zimmerman, Whitsitt);
id. at 46:1-7 (Zimmerman, Whitsitt) (discussing that
more tips could make an investigation a higher priority).
to the NCMEC Tip, Whitsitt completed
an initial assessment on the information provided, which
included accessing a system called TLO, which provides very
basic information such as date of birth, Social Security
numbers, previous addresses possible employment history, as
well as running an NCIC criminal check; that checks for
current wants/warrants, as well as Department of Motor
Vehicle records. [He] also check[ed] employment history to
see if [the Attorney General's Office] ha[s] a current
employer on file or previous employers.
Tr. at 18:25-19:11 (Whitsitt). See Office of the
Attorney General of New Mexico Investigations Division
Confidential Matter Report at 2 (undated) (submitted to the
Court at the September 11, 2018, evidentiary hearing as
Defendant's Hearing Exhibit E) (“AG Report”)
(describing the investigative actions Whitsitt took).
Nothing “raised a red flag” during Whitsitt's
investigation of the NCMEC Tip. Tr. at 14:16-18 (Zimmerman,
Whitsitt). See id. at 46:1-16 (Zimmerman, Whitsitt)
(discussing that, if there had been multiple tips involving
Streett or if he had a criminal history of being a sex
offender, Whitsitt would have had to assign the NCMEC Tip a
Whitsitt stated that there was not probable cause to believe
that sexual exploitation had occurred, see Tr. at
25:21-26:7 (Whitsitt, Zimmerman, Mease, Court), but believed
that, if the information in the NCMEC Tip were true, a crime
had been committed which justified further investigation,
see Tr. at 57:11-24 (Mease, Whitsitt).
crime “[s]exual exploitation of children” is
contained in N.M. Stat. Ann. § 30-6A-3, which provides,
in the relevant parts, that
[i]t is unlawful for a person to intentionally possess any
obscene visual or print medium depicting any prohibited
sexual act or simulation of such an act if that person knows
or has reason to know that the obscene medium depicts any
prohibited sexual act or simulation of such act and if that
person knows or has reason to know that one or more of the
participants in that act is a child under eighteen years of
age. . . . It is unlawful for a person to intentionally cause
or permit a child under eighteen years of age to engage in
any prohibited sexual act or simulation of such an act if
that person knows, has reason to know or intends that the act
may be recorded in any visual or print medium or performed
Stat. Ann. § 30-6A-3(A), (D).
“Prohibited sexual act” is defined in N.M. Stat.
Ann. § 30-6A-2, and includes “masturbation”
and “lewd and sexually explicit exhibition with a focus
on the genitals or pubic area of any person for the purpose
of sexual stimulation.” N.M. Stat. Ann. §
30-6A-2(A) (3), (5).
Whitsitt did not speak with the submitter's daughter --
identified as M.Y. -- to determine her relationship with
Streett or the nature of the text message communication with
him, and did not speak with the submitter to check the
credibility of the NCMEC Tip, see Tr. at 27:6-12
(Zimmerman, Whitsitt), although he could have called them,
see Tr. at 66:10-14 (Zimmerman, Whitsitt).
was not Whitsitt's job to “reach out to witnesses
and conduct interviews” when conducting cyber tip
maintenance, and nobody else at the Attorney General's
Office does so when they are doing cyber tip maintenance. Tr.
at 59:14-24 (Mease, Whitsitt).
Whitsitt acted under the assumption that the NCMEC Tip's
submitter did not want Streett alerted, see Tr. at
21:21-25 (Whitsitt), because of the Tip's language
“I do not want the subject alerted, ” NCMEC Tip
at 3. See also Tr. at 59:1-5 (Whitsitt)
(acknowledging that the word “subject” is
ambiguous and could refer to either the submitter's
daughter or to Streett); id. at 65:8-12 (Zimmerman,
Whitsitt) (reiterating it is unclear who
“subject” referred to).
Whitsitt then “prepared a subpoena duces tecum for the
telephone number provided in the [NCMEC] tip, ” Tr. at
24:20-21 (Whitsitt), as he did “for most cases”
where “it appeared that possible or alleged sexual
exploitation had occurred, ” as part of his job
“to obtain all possible information related to the
cyber tip, ” Tr. at 25:2-18 (Whitsitt, Zimmerman).
seek the subpoena duces tecum, Whitsitt first gave his
supervisor the information he had gathered on the NCMEC Tip
-- “that the mother reported that her daughter had
received a request from a man to send him a nude
photograph” and that Whitsitt had conducted a criminal
check -- and then recommended that they get “a grand
jury subpoena duces tecum.” Tr. at 26:8-27:3
subpoena is the “quickest and least intrusive way to
get . . . basic subscriber records back from a third party in
a case like this, ” Tr. at 85:11-13 (Whitsitt),
especially because ICAC cases normally start with limited
information, like “just an IP address or a user name
maybe, or a phone number, ” Tr. at 85:20-22 (Whitsitt).
Whitsitt recommends a subpoena duces tecum only if he
believes that a cyber tip “needs further
investigation” and if he believes “that
information can be garnered from a subpoena duces
tecum.” Tr. at 32:18-20 (Whitsitt).
every cyber tip gives rise to the need for a subpoena duces
tecum, because there has been no “possible violation of
New Mexico State statute or federal law” which requires
“further investigation.” Tr. at 32:23-33:5
Subpoenas are actively sought both in the
“inquiry” and “full-blown case”
stages of investigation in the Attorney General's Office.
Tr. at 38:6-10 (Zimmerman, Whitsitt).
After receiving authorization to proceed from his supervisor,
Whitsitt then “had to consult with an attorney assigned
to the New Mexico Attorney General's Office, Crimes
Against Children Task Force.” Tr. at 27:23-28:1
This consultation involved Whitsitt providing that attorney
“a brief on what [he] had; basically the same
conversation [he] had with the supervisor; what the elements
of the cyber tip were, the legwork, so to speak, of what
[Whitsitt] had done thus far, and the reason [he] was asking
for the grand jury subpoena duces tecum.” Tr. at
November 1, 2014, Whitsitt sent T-Mobile USA a preservation
letter requesting “pursuant to 18 U.S.C. Section
2703(f) that all known information relating to the T-Mobile
telephone number (505) 974-9704, on the date of October 21,
2013 be preserved for a period of 90 days pending issuance of
a formal court order, ” because that “user is
suspected of criminal sexual communication with a
child.” Preservation Letter at 1. See Tr. at
29:15-30:10 (Zimmerman, Whitsitt).
“Criminal sexual communication with a child” is
contained in N.M. Stat. Ann. § 30-37-3.3, providing that
[c]riminal sexual communication with a child consists of a
person knowingly and intentionally communicating directly
with a specific child under sixteen years of age by sending
the child obscene images of the person's intimate parts
by means of an electronic communication device when the
perpetrator is at least four years older than the child,
Stat. Ann. § 30-37-3.3(A), and that
“‘intimate parts' means the primary genital
area, groin, buttocks, anus or breast, ” N.M. Stat.
Ann. § 30-37-3.3(C) (2).
Preservation Letter does not contain an Attorney
General's Office case or inquiry number, but provides the
NCMEC Tip number. See Preservation Letter (redacting
the NCMEC Tip number from the copy provided to the Court).
the time, there would not have been a case number as the
investigation was still in the “initial inquiry”
stage and would have only had an inquiry number. Tr. at
November 4, 2013, the Second Judicial District Court, County
of Bernalillo, State of New Mexico, issued a Grand Jury
subpoena duces tecum to T-Mobile commanding its appearance at
the Bernalillo County Courthouse on November 25, 2013.
See Subpoena at 1.
Subpoena requests the following records for disclosures:
Subscriber information for the telephone number (505)
974-[remainder redacted] that had been utilized on or about
October 21, 2013. Including the name(s) and addresses of the
person(s) who opened the account, the date the account was
opened, detailed method of payment, alternate telephone
number(s), email addresses, and any identifying information
which would tend to identify the person(s) subscribing to
the alternative, the Subpoena provides that the requested
records “may be turned over to Special Agent Jon R.
Whitsitt, a representative of the New Mexico Office of the
Attorney General, acting as an aid to the GRAND JURY.”
Subpoena at 1.
Subpoena does not contain an Attorney General's Office
case number or inquiry number. See Subpoena at 1.
Subpoena does not mention the Stored Communications Act, 18
U.S.C. § 2703. See Subpoena at 1.
Subpoena was issued on the basis of testimony regarding the
NCMEC Tip.See Tr. at 39:8-40:20
December 27, 2013, T-Mobile responded to the Subpoena, which
it states was served on it on December 27, 2013,
 by sending Whitsitt an email
containing the subscriber information for 505-974-9704.
See Email from Cathleen Rodriguez to SA Whitsitt
(dated December 27, 2013), filed August 15, 2018 (Doc. 144-3)
was “typical” that T-Mobile provide the
information requested in a subpoena duces tecum
“subsequent to the date they were asked to present it
or return” it. Tr. at 41:9-12 (Zimmerman, Whitsitt).
Subpoenas were normally served “the same day or the day
after” they are issued, Tr. at 55:4-8 (Zimmerman,
Whitsitt), and it is “unusual for a service provider to
turn something around on the exact same day that it's
received, ” Tr. at 63:5-8 (Mease, Whitsitt).
T-Mobile Email states that “Bentley A. Streett”
is the “Billing Account Name” and the
“Mobile Number Name, ” that the account was
established on “06/04/2010, ” that
“Telephone 1” and “Telephone 2” are
505-877-8596, that the address is the 4620 Plume residence,
that Streett was born in 1975, and that Streett's social
security number is (redacted)-6364. T-Mobile Email at 1.
While a social security number “could be” part of
the “basic identifying data” for which the
Subpoena asks, 18 U.S.C. § 2703(f) does not delineate a
social security number as “basic identifying
data.” Tr. at 42:15-23 (Zimmerman, Whitsitt).
Stored Communications Act, 18 U.S.C. § 2703, allows the
state or federal government to compel “a provider of
electronic communication service” to disclose
subscriber information with an administrative subpoena only
if seeking the:
(C) local and long distance telephone connection records, or
records of session times and durations;
(D) length of service (including start date) and types of
(E) telephone or instrument number or other subscriber number
or identity, including any temporarily assigned network
(F) means and source of payment for such service (including
any credit card or bank account number), of a subscriber to
or customer of such service . . . .
18 U.S.C. § 2703(c).
After receiving the T-Mobile Email, Whitsitt prepared a
“supplemental report, ” to add to the initial
report which contains “all the information from the
case file, ” for presentation to Whitsitt's
supervisor Anthony Maez. Tr. at 48:23-49:5 (Zimmerman,
Whitsitt). See AG Report at 4.
AG Report is undated, but the initial report provides the
investigatory actions Whitsitt took -- a TLO search, a New
Mexico Motor Vehicle Division (“MVD”) and
criminal history return, an employment history search, a
preservation letter to T-Mobile, and a subpoena duces tecum
to T-Mobile -- and the attached supplemental report states
that T-Mobile responded to the Subpoena on December 27, 2013,
and identifies the subscriber of 505-974 (remainder redacted)
as “Bentley Streett of (portion redacted) Albuquerque,
NM.” AG Report at 2, 4.
February 5, 2014, Whitsitt's supervisor at the Attorney
General's Office assigned the NCMEC Tip “to the
particular law enforcement agency that would have been
responsible for further investigation, ” Tr. at 53:5-12
(Zimmerman, Whitsitt) -- specifically, the Bernalillo County
Sheriff's Office Crimes Against Children Unit, with
Hartsock as the case agent, see Tr.
at 80:13-23 (Mease, Hartsock); id. at 140:11-14
(Zimmerman, Hartsock). See also Bernalillo County
Sheriff's Office Initial Detective Report at 3 (dated
October 3, 2014) (submitted to the Court at the September 11,
2018, evidentiary hearing as Defendant's Hearing Exhibit
G) (“Hartsock Report”).
Bernalillo County Sheriff's Office Crimes Against
Children Unit is affiliated with the ICAC task force,
investigating a cyber tip if the Attorney General's
Office believes that the Bernalillo County Sheriff's
Office is best “geographically located to
investigate” and “has the right resources to do
an investigation.” Tr. at 73:25-74:20 (Mease,
Hartsock currently is a Special Agent in Charge at the Second
Judicial District Attorney's Office. Tr. at 71:18-21
Hartsock graduated from the Academy in 2004, see Tr.
at 128:18-19 (Hartsock), then worked at the Bernalillo County
Sheriff's Office for about fifteen years; where he worked
in the driving-while-intoxicated unit for about three years
after patrol, see 72:6-7 (Hartsock).
training at the Academy included two to three weeks of
training on search warrants, and after graduation Hartsock
received on-the-job training. See Tr. at
132:11-133:1 (Zimmerman, Hartsock).
2009, Hartsock became a detective in the Crimes Against
Children Unit, and in 2010 he started “a task force
position with the [Federal Bureau of Investigation's
(‘FBI')] Regional Computer Forensic Laboratory,
” doing digital forensics for about three and a half
years before returning to the Crimes Against Children Unit.
Tr. at 72:7-12 (Hartsock). See 72:20-73:6 (Mease,
While at the FBI's Regional Computer Forensic Laboratory,
Hartsock became a certified forensic examiner after
completing the FBI's training program for digital
evidence, and has experience handling large data sets and
drawing inferences from the data. See Tr. at 75:1-5
(Mease, Hartsock); id. at 77:2-7 (Mease, Hartsock).
When Hartsock returned to the Crimes Against Children Unit,
it had “transitioned to what's called the Ghost
Unit, ” which “specialized in juvenile sex
trafficking, missing persons, and child exploitation
cases.” Tr. at 72:16-19 (Hartsock).
Hartsock's ten years working in the field, he prepared
approximately 100 affidavits for search warrants,
see Tr. at 133:2-10 (Zimmerman, Hartsock), and
worked on “several dozen” cases involving sexual
abuse of children, Tr. at 132:5-7 (Hartsock).
Hartsock is familiar with Bernalillo County Sheriff's
Department Rules and Regulations (dated June 10, 2014)
(submitted to the Court at the September 11, 2018,
evidentiary hearing as Defendant's Exhibit F)
(“BCSO Rules”), see Tr. at 134:11-19
(Zimmerman, Hartsock), but said he had never looked up New
Mexico's rule on probable cause in warrants, see
Tr. at 135:24-136:18 (Zimmerman, Hartsock), although he
“knew the rule existed, ” Tr. at 189:1
(Hartsock). Compare BCSO Rules at 1 (stating that
“[p]robable cause must be based on what the Deputy
believes to be reasonably trustworthy information”),
with N.M. Ct. R. 5-211 (stating that probable cause
must “be based on substantial evidence, ” which
could be hearsay if “there is a substantial basis for
believing the source of the hearsay to be credible”).
The Cellular Telephone Records Search for
referral that Hartsock received from the Attorney
General's Office contained the NCMEC Tip, the Subpoena,
and the Subpoena's results. See Tr. at
83:13-84:13 (Mease, Hartsock).
This was the first ICAC referral Hartsock had ever received
as the case agent. See 80:13-23 (Mease, Hartsock).
Hartsock believed that the nature of the NCMEC Tip -- that
Streett allegedly requested a nude photograph from a
fifteen-year-old girl -- warranted further investigation,
because New Mexico law prohibits the asking or possessing of
sexually explicit images of a child under the age of
eighteen. See Tr. at 87:19-88:15 (Hartsock, Mease).
February 12, 2014, Hartsock obtained a search warrant for the
T-Mobile telephone records for 505-974-9704 on the basis of
an undated affidavit that he submitted, which was
incorporated into the warrant. See First Affidavit
at 3; First Warrant at 4; Tr. at 72:1-2 (Hartsock);
id. at 72:8-9 (Hartsock).
Honorable Ross C, Sanchez, former New Mexico District Court
Judge for the Second Judicial District Court, approved the
First Warrant. See First Warrant at 1.
First Warrant, like all warrants, must be supported by
probable cause to be valid under the Fourth Amendment.
See Tr. at 145:23-25 (Zimmerman, Hartsock).
First Affidavit requests the: (i) “Account Subscriber
Information identifying the name(s), address and other phone
number associated with [the 505-974-9704] account”;
(ii) “all phone calls made and received, listing the
phone numbers called or calling from and the dates, times and
durations from 7/31/2013-2/5/2014”; and (iii)
“all text and mixed messages made and received, listing
the phone number(s) texted or texted from and the dates and
times from 7/31/2013-2/5/2014.” First Affidavit at 1.
Hartsock chose the “7/31/2013-2/5/2014” period,
First Affidavit at 1, because he “decided to do 90 days
prior to when the incident was reported to NCMEC”
through the current date, but did not say why he decided on
the “90 days prior, ” Tr. at 148:22-23
(Hartsock). See Tr. at 148:21-25 (Zimmerman,
With the First Warrant, Hartsock sought to determine if
Streett was texting M.Y. and if any “picture messages
were being sent.” Tr. at 91:8-12 (Hartsock).
First Affidavit describes how NCMEC “received an online
tip about an adult male soliciting a nude photograph of a
fifteen year old girl over text message conversation”
on October 31, 2013. First Affidavit at 2. See NCMEC
Tip at 1.
First Affidavit describes the tipster as a
“confidential informant, ” First Affidavit at 2,
because Hartsock wanted “to keep the identity of the
mother private, ” Tr. at 94:17-18 (Hartsock).
NCMEC Tip does not say “keep my name out of [the
investigation]”; rather, Hartsock interpreted the NCMEC
Tip in that manner. Tr. at 12-17 (Mease, Hartsock).
This was the first time Hartsock had relied on information
coming from a person who he believed “didn't want
to be named in a search warrant, ” Tr. at 94:11-13
(Hartsock), and relied on advice from “someone in
narcotics” to refer to the tipster as a CI, Tr. at
Hartsock recalls only one other time he kept an
informant's name confidential in a warrant. See
Tr. at 133:20-134:3 (Hartsock).
Hartsock should not have used the term “confidential
informant” and should “have identified that her
identity is known to me, or identified her as a relative to
the child who could be at risk . . . . Or . . . just put her
name, because she's going to have to be disclosed in my
case eventually, no matter what.” Tr. at 95:21-24.
See id. at 143:9-19 (Zimmerman, Hartsock)
(discussing how Hartsock misused the term “confidential
informant, ” clarifying that the tipster wished to
remain anonymous but was not anonymous).
Hartsock found the tipster “trustworthy” as the
victim's mother, but did not put this fact in the First
Affidavit. Tr. at 144:5-19 (Hartsock, Zimmerman)
(acknowledging that “the judge wouldn't have seen
[the CI] as the mother” from the four corners of the
First Affidavit). See First Affidavit at 2 (not
revealing the CI as M.Y.'s mother).
First Affidavit states that the tipster “physically
observed the cell phone of the fifteen year old female,
” and that the tipster said that “the
conversation was between MY and a male named Bentley Streett
who lived in Albuquerque, NM.” First Affidavit at 2.
First Affidavit states that the tipster did not provide how
she knew Streett was the male who requested the photograph
nor how she knew that he resides in Albuquerque. See
First Affidavit at 2.
First Affidavit states that the tipster said that she
“did not see a photograph or other media transmitted
from MY to the requester, but was concerned that it could
happen in the future.” First Affidavit at 2.
See NCMEC Tip at 4
First Affidavit does not discuss whether the tipster had
provided accurate information to law enforcement in the past.
See First Affidavit at 2.
Hartsock tried to contact the tipster “to gather more
information[, ] but ha[d] failed to do so at the time of
writing” of his affidavit, First Affidavit at 2, but
did not try harder to contact her, believing he had “a
small likelihood of actually getting her to participate in
the investigation” because “she didn't want
her daughter to know, ” Tr. at 239:13-16 (Hartsock).
See Tr. at 140:23-141:11 (Hartsock, Zimmerman)
(discussing how Hartsock tried to reach M.Y.'s mother,
but failed, and did not contact local police for help);
id. at 157:20-158:2 (Zimmerman, Hartsock)
(elaborating that Hartsock only called the tipster once, and
she did not answer). See also Hartsock Report at 3.
First Affidavit states that “[t]he New Mexico Attorney
Generals [sic] Internet Crimes Against Children task force
received the tip and issued a subpoena to T-Mobile USA for
the account information related to 505-974-9704, and
discovered it was registered to Bentley Streett, who lives in
Bernalillo County.” First Affidavit at 2.
Hartsock believed that the Subpoena corroborated the NCMEC
Tip, because T-Mobile's return verified that Streett
owned the number and lived in Albuquerque. See Tr.
at 87:2-16 (Hartsock, Mease); id. at 152:21-153:9
Hartsock requested the call, text, and mixed media message
history for 505-974-9704 to confirm the online tip “and
find out if any mixed media messages that contain nudity of
MY or the requester” had been sent. First Affidavit at
person requesting nude photographs “has to make many
requests before they attain a nude photograph.” First
Affidavit at 2.
Hartsock averred that he needs the telephone records,
because, based on the NCMEC Tip, “the frequency or
infrequency of mixed media messages” between M.Y. and
Streett could evidence such requests, and “contain
child pornography or the attempt to entice sex from a
minor.” First Affidavit at 3.
Hartsock had no information that sexually explicit images had
been sought or that sexually explicit images existed.
See Tr. at 172:21-173:16 (Zimmerman, Hartsock).
Hartsock thought he had probable cause to believe that a
crime had been committed, because “[e]ven if the
underage person doesn't send an image, simply soliciting
. . . a nude or a sexually explicit image” is a crime,
Tr. at 169:9-13 (Hartsock, Zimmerman), and in his
“training and experience . . . usually when 40-year-old
men text 15 year olds for nude pictures, they're not for
medical reasons. They're going to be sexually explicit,
” Tr. at 169:23-170:1 (Hartsock).
Hartsock had run searches to determine if Streett had any
outstanding warrants for his arrest or significant criminal
history and did not find anything, but did not include this
information in the First Affidavit. See 163:1-19
(Zimmerman, Hartsock); First Affidavit at 1-3.
a matter of course, however, Hartsock does not include the
criminal history of the suspect in his search warrants,
because he is not sure if he can due to bias and prejudice.
See Tr. at 166:17-22 (Hartsock).
Hartsock executed the First Warrant on February 12, 2014, and
T-Mobile thereafter emailed the requested records to him on
February 18, 2014. See Search Warrant Return of
Inventory at 5 (dated March 11, 2014), filed July 24,
2018 (Doc. 141-2) (“First Warrant Return”);
Hartsock Report at 3.
The telephone records show about “136 communications
back and forth between Bentley Streett's listed phone
number on the cyber tip and the alleged victim's phone
number, including right around the October 30th, 31st date of
the cyber tip, ” and a mixed media message sent from
Streett to the alleged victim. Tr. at 97:12-18
(Hartsock). See Hartsock Report at 3.
Hartsock described the returned telephone records as being of
a “very large size” and that he counted
communications with “135 different area codes, ”
Tr. at 107:3-13 (Hartsock), with a total of approximately 56,
000 calls and text messages, see Tr. at 97:7-9
(Hartsock); id at 259:6-9 (Hartsock) (describing a
large majority of the records as text messages).
Hartsock generated a map with multiple colored dots which
“represent the approximate location of the different
area codes that were found” in the telephone records,
Tr. 110:4-12 (Mease, Hartsock), spread across the United
States and parts of Canada, and showing “that this
person's phone is in communication with virtually every
geographical region of the country, ” Tr. at 110:16-18.
See Map (undated) (submitted to the Court at the
September 11, 2018, evidentiary hearing as Government's
Hearing Exhibit 1).
The Map's dots indicate Streett was communicating with
two people in Minnesota, where the NCMEC Tip submitter and
her daughter, M.Y., reside. See Map at 1; Hartsock
Report at 3-4; Kittson County Sheriff's Department Report
at 1 (dated February 23, 2014) (submitted to the Court at the
September 11, 2018, evidentiary hearing as Defendant's
Hearing Exhibit L) (“Vig Report”).
The number of area codes with which Streett was texting fits
the mold of someone who meets people on the internet, which
“has no geographical boundaries.” Tr. at 111:3-16
(Hartsock). See Vig Report at 1 (stating that M.Y.
told officers that she met Streett on Twitter); Second
Affidavit at 4 (same).
Hartsock also used Streett's telephone records to
generate a pivot table on Excel to “show in
order . . . what numbers were on his phone records the most
to least.” Tr. at 111:13-16 (Hartsock). See
Excel Table (undated) (submitted to the Court at the
September 11, 2018, evidentiary hearing as Government's
Hartsock thought that “every MMS message in the records
is potentially of interest because it's showing pictures
being communicated.” Tr. at 122:3-5
The highest frequency number in the telephone records is for
the number 40404, which “is a short message text code
used by Twitter to indicate to a person's cellphone that
they either have a notification or someone is responding to a
post or direct massage on Twitter.” Tr. at 113:17-21
(Mease, Hartsock). See Excel Table at 1.
The second highest frequency number in the telephone records
is for a telephone number with a 740 area code and a total of
4, 218 text messages exchanged in the approximately six-month
scope of the First Warrant, see Excel Table at 1;
First Affidavit at 1; indicating that this individual
“is probably one of the most important people in
[Streett's] life, ” Tr. at 114:13-16 (Mease,
Hartsock called this telephone number and spoke with a girl
identified as M.S., who indicated that she is under eighteen,
does not live in New Mexico, knew she was speaking to
Streett, that she met Streett on Twitter, and that they had
“sexual conversations.” Tr. at 116:10-13
(Hartsock). See Tr. at 114:17-24 (Mease, Hartsock).
M.S. indicated she knew a minor male who also communicated
with Streett --identified in the Second Superseding
Indictment as “John Doe” -- and law enforcement
later interviewed this male based on M.S.' information.
See Tr. at 116:14-3 (Mease, Hartsock).
The third highest frequency number in the telephone records
is for a telephone number with a 915 area code with a total
of 3, 211 text messages and fifty MMS messages exchanged in
the approximately six-month scope of the First Warrant.
See Excel Table at 1, 5, 6; First Affidavit at 1.
See also Tr. at 120:21-121:8 (Mease, Hartsock)
(describing how T-Mobile codes MMS messages differently and
how to tell if the record is of MMS messages).
The 915 telephone number belongs to the girl identified as
Jane Doe 3 in the Second Superseding Indictment, who was
later interviewed and who provided her electronics to law
enforcement for investigation, which revealed
“photographs that are the subject of the
indictment.” Tr. at 118:17-20 (Mease, Hartsock).
See Tr. at 117:7-11 (Mease, Hartsock); id.
at 118:6-16 (Mease, Hartsock).
The telephone records reveal the telephone numbers and number
of messages exchanged in the approximately six-month scope of
the First Warrant with Jane Doe 1 (telephone number beginning
with 815), Jane Doe 2 (telephone number beginning with 416),
Jane Doe 4 (telephone number beginning with 605), and John
Doe (telephone number beginning with 707). See Tr.
at 119:20-120:2 (Mease, Harstock) (discussing Jane Doe 1 in
the records); id. at 120:18-20 (Mease, Hartsock)
(John Doe); id. at 122:10-12 (Mease, Hartsock) (Jane
Doe 2); id. at 122:18-23 (Mease, Hartsock) (Jane Doe
4); Excel Table at 2, 6, 10; First Affidavit at 1. See
also Tr. at 178:15-19 (Zimmerman, Hartsock) (verifying
that the telephone records “contained all of the
alleged victims named in the indictment”).
Law enforcement interviewed Jane Doe 1, who also turned over
her electronics, which revealed “photographs relating
to the underlying indictment.” Tr. at 120:6-14 (Mease,
The telephone records reveal 591 text messages and six MMS
messages exchanged with Jane Doe 1. Excel Table at 2, 10.
None of the alleged victims named in the indictment
independently contacted police to make a complaint.
See Tr. at 125:14-25 (Mease, Hartsock, Court,
Hartsock could not charge a crime based on the telephone
records. See Tr. at 181:16-17 (Hartsock).
The February 24, 2014, Search of the 4620 Plume
February 24, 2014, Hartsock swore an affidavit supporting an
application for a search warrant to search the 4620 Plume
residence and obtained the search warrant the same day.
See Second Affidavit at 13; Second Warrant at 14.
The Honorable Christina T. Jaramillo, then-New Mexico
Magistrate Judge for the Bernalillo County Metropolitan
Court, approved the Second Warrant telephonically.
See Second Warrant at 14.
The Second Warrant incorporates the Second Affidavit, stating
it is “hereby made part of this warrant.” Second
Warrant at 14.
The Second Affidavit begins by providing a description of the
appearance of the 4620 Plume residence, including that the
only car not “backed in” the driveway was a brown
Fiat with the New Mexico license plate “PL8SPCL.”
Second Affidavit at 1.
The Second Affidavit does not provide to whom the brown Fiat
is registered. See Second Affidavit at 1-13.
Hartsock did not run the MVD records for the brown Fiat, nor
did he look up assessor information for the 4620 Plume
residence. See Tr. at 193:5-194:1 (Zimmerman,
Hartsock) (discussing Hartsock's lack of recollection and
not having this information anywhere); Hartsock Report at 3-4
(not providing this information); Second Affidavit at 1-13
The MVD records reveal a brown Fiat with New Mexico license
plate PL8SPCL has been titled to and registered by Pamela
Lesiak since August 8, 2013, at the 4620 Plume residence.
See PL8SPCL - NM -Vehicles at 1 (dated September 13,
2018) (filed with the Court at the September 11, 2018,
evidentiary hearing as Government's Exhibit
5). See also State of New
Mexico Motor Vehicle Division Certificate of Vehicle
Registration (undated) (filed with the Court at the September
11, 2018, evidentiary hearing as Defendant's Exhibit N)
(showing a Fiat with license plate PL8SPCL registered to
Lesiak from 2013-2014).
The assessor records also show that Lesiak paid the 2013 tax
bill for the 4620 Plume residence and that Streett granted
her the property in 2005. See 2013 Tax Bill at 2
(undated) (filed with the Court at the September 11, 2018,
evidentiary hearing as Defendant's Exhibit J); Warranty
Deed at 3 (dated October 7, 2005) (filed with the Court at
the September 11, 2018, evidentiary hearing as
Defendant's Exhibit J).
hindsight, knowing that the Fiat and home are tied to Lesiak
in the MVD and assessor records, Hartsock “wouldn't
have changed [his] mind to go forward with the
warrant.” Tr. at 201:10-11 (Hartsock); id. at
244:10-13 (Hartsock) (elaborating that this is because he
“had no more recent information than what I felt those
records to be, and to me, more reliable information, ”
noting the telephone subscriber information).
This description of the 4620 Plume residence came from a
“limited surveillance” that Hartsock conducted
“during daytime hours, so [he] could get a description
for [his] warrant and try to see if [he] could learn anything
more about the house.” Tr. at 101:6-9 (Hartsock).
The Second Affidavit provides that the 4620 Plume residence
contains many pieces of personal property that constitute a
criminal offense and/or are material evidence of a criminal
offense, including, but not limited to: (i) any electronic
device “capable of sending text, photos and video using
online based communication services, ” and any device
enabling a computer to do so; (ii) any storage device
“that can store images or other files that could
contain child pornography”; (iii) “[a]ll
documents which indicate proof of residence at 460 [sic]
Plume Rd NW”; (iv) “[a]ll photographs . . . which
depict a minor posed or candid in a sexual manner”; (v)
“contracts, agreement records and accounts with
Internet providers, computer bulletin boards or other
computer on line service provider, and accounts with other
persons, companies or corporations evidencing manufacturing,
production, distribution, receiving, possessing, or
sales” of any materials or documents “relating to
sexual conduct of persons under the age of 18”; (vi)
“personal property tending to establish the identity of
person or persons having the dominion and control over the
computer equipment”; (vii) lock boxes or safes, or
evidence of such off-site containers, where “evidence
of crimes against children may be stored for safekeeping
against seizure”; and (viii) “[a]ll phones and
all cell phone records to establish ownership.” Second
Affidavit at 1-3.
The Second Affidavit again describes the NCMEC Tip and
subsequent Subpoena issued to T-Mobile in same manner as in
the First Affidavit. See Second Affidavit at 4.
The Second Affidavit does not identify the CI as the alleged
victim's mother nor provide whether she has provided
accurate information in the past. See Second
Affidavit at 3-4.
Again, the Second Affidavit does not include Streett's
lack of outstanding warrants or criminal history.
See Second Affidavit at 4-13.
The Second Affidavit provides some additional background
information on the partnership between NCMEC and the New
Mexico Attorney General's Office, stating that NCMEC
screens the online tip first -- because anybody can submit
one through its website -- then assign it to the appropriate
state's “ICAC coordinator, ” who
“conducts a basic investigation to find out what county
or city has jurisdiction over the case.” Second
Affidavit at 4.
The Second Affidavit then discusses what Hartsock learned
from Minnesota law enforcement's interviews with M.Y. and
with her mother. See Second Affidavit at 4.
February 21, 2014, Hartsock reached out through the ICAC
network to law enforcement in Minnesota, where M.Y. resided,
to attempt to make “in-person contact with mom and
daughter, to get more information about what had
occurred” -- especially because Hartsock believed the
mixed media message “could have been child
pornography.” Tr. at 98:1-16 (Hartsock). See
Hartsock Report at 3.
the time that Hartsock reached out to local law enforcement,
he lacked “specific knowledge of” how to contact
law enforcement in another state, Tr. at 182:9-10 (Hartsock),
because he wanted “to make sure someone with ICAC
background” would contact M.Y. and her mother, Tr. at
Hartsock waited to contact local law enforcement until after
he executed the First Warrant, because he wanted to establish
if M.Y. was still talking to Streett, as it would
“affect [his] ability to interview someone over the
phone or law enforcement's ability to interview [M.Y.] in
person if [she is] still in contact with [Streett].”
Tr. at 151:23-182:2 (Hartsock).
February 23, 2014, Matthew Vig, with the Kittson County
Sheriff's Office, made contact with M.Y. and her mother
at the Kittson County Sheriff's Office in Minnesota.
See Hartsock Report at 4; Vig Report at 1.
Vig took a statement from M.Y., who said she was
fourteen-years-old at the timeand that Streett knew
of her age, because her Twitter page showed her age of
fourteen and because she told Streett that she was fourteen.
See Vig Report at 1.
Vig reported that M.Y. said that Streett asked her “to
send him nude photos to him, two or three times, ” but
that she did not send him any photographs. Vig Report at 1.
The Vig Report states that M.Y. said Streett sent her a
“face photo, no nudity, ” and that he “was
older, ” but that she “did not know his true
age.” Vig Report at 1.
The Second Affidavit states that M.Y. “consensually
gave her cellphone to Deputy Vig so he could download it and
confirm the details of her relationship with Bentley.”
Second Affidavit at 5. See Vig Report at 1 (stating
that, “with consent, I received M (remainder
redacted)'s cell phone as evidence”).
Hartsock believed that the Vig Report “more strongly
corroborated” the NCMEC Tip and that this
corroboration, combined with “the phone records showing
the high amount of communication, and that mixed media
message being sent, ” led Hartsock to draft a search
warrant for Streett's home. Tr. at 100:13-18 (Hartsock).
The Second Affidavit concedes there is no evidence that M.Y.
sent Streett any nude photographs, but notes that
Streett's asking constitutes a crime under N.M. Stat.
Ann. § 30-37-3.2. See Second Affidavit at 5.
New Mexico Stat. Ann. § 30-37-3.2 provides that the
[c]hild solicitation by electronic communication device
consists of a person knowingly and intelligently soliciting a
child under sixteen years of age, by means of an electronic
communication device, to engage in sexual intercourse, sexual
contact or in a sexual or obscene performance, or to engage
in any other sexual conduct when the perpetrator is at least
four years older than the child,
and that “electronic communication device”
includes a computer and cellphone. N.M. Stat. Ann. §
30-37-3.2(A) & (F).
New Mexico Statute § 30-37-1 does not define
“sexual or obscene performance, ” but defines
“sexual conduct” as an “act of
masturbation, homosexuality, sodomy, sexual intercourse or
physical contact with a person's clothed or unclothed
genitals, pubic area, buttocks or, if such person be female,
breast.” N.M. Stat. Ann. § 30-37-1(C).
Hartsock states that, in his “training and experience[,
] a person does not try to gain child pornography only once
and one way, ” and thus he “seeks to ensure no
photographs were received from our victim that would violate
further law of child exploitation and to ensure there were no
other victims that our suspect has contacted asking for
explicit images of minors.” Second Affidavit at 5.
The remainder of the Second Affidavit provides how
Hartsock's “training and experience” leads
him to believe that evidence of child pornography may be
found in the various pieces of personal property which he
wants to search and seize. Second Affidavit at 5-13.
The Second Affidavit does not discuss the information gleaned
from the telephone records that Hartsock obtained under the
First Warrant. See Second Affidavit at
The Second Affidavit does not provide how Hartsock decided to
search the 4620 Plume residence or why he believes
Streett's personal property or evidence of Streett's
alleged criminal activity will be found at the residence,
see Second Affidavit at 1-13; Motion at 3, but
Hartsock would have been able to add that information to the
Second Warrant if the judge to whom he presented the Second
Affidavit had asked where in Bernalillo County Streett lived,
see Tr. at 103:4-9 (Mease, Hartsock). See
also Tr. at 192:15-17 (Hartsock) (admitting it was a
mistake to connect the address to Streett); id. at
204:15-17 (Hartsock) (same).
The 4620 Plume address “came from the cyber tip; it
came from the grand jury subpoena returns, and T-Mobile also
provided it to [Hartsock] when they returned [Hartsock's]
search warrant records, ” Tr. at 100:24-101:2
(Hartsock); the Hartsock Report provides that Streett's
“New Mexico driver's license also showed this as
his address, ” Hartsock Report at 4. See Tr.
at 161:7-14 (Hartsock) (stating that Hartsock had no
indication that Streett “was living anywhere else,
” because his driver's license and the subscriber
billing information returned to 4620 Plume and that,
“reasonably, to the best of my ability, without
knocking on his door beforehand without a warrant, I was able
to verify he lived there”); id. at 199:5-14
(Hartsock) (describing why he chose to search 4620 Plume).
Hartsock executed the Second Warrant on February 25, 2014,
leaving a copy of the Warrant with Lesiak, Streett's
live-in girlfriend, and taking the following property: one
Mac laptop, one Mac desktop, one “smart phone, ”
and one “regular cell phone.” Search Warrant
Return and Inventory at 15 (dated March 4, 2014), filed
August 15, 2018 (Doc. 144-5). See Tr. at 103:10-14
(Mease, Hartsock); Hartsock Report at 4.
Streett was also present at the 4620 Plume residence upon
execution of the Second Warrant. See Tr. at
103:13-14 (Mease, Hartsock); Hartsock Report at 4.
Hartsock escorted Street, unhandcuffed, to his unmarked
vehicle and, after Hartsock read Streett his
Miranda warnings, Streett agreed to speak.
See Hartsock Report at 4.
Streett stated that only he and his girlfriend, Lesiak, lived
in the 4620 Plume residence and that they were in a
“‘somewhat' open relationship.”
Hartsock Report at 4.
Streett confirmed that he uses his personal Twitter account
-- @thebiguy69 -- “to meet and interact with woman
[sic] and girls, ” and, while “he asks his
followers to be at least 18 years of age, ” he
“texts some of the girls he meets on [Twitter with] his
cell phone, ” and “did recall a couple of users
that he knew were under 19 ...