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United States v. Streett

United States District Court, D. New Mexico

November 27, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
BENTLEY A. STREETT, Defendant.

          John 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

         THIS 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 the trial.

         FACTUAL BACKGROUND

         Rule 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.”);[1] 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[2] 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 detention hearings”).[3]

         1. The Online Tip.

         1. On October 31, 2013, the National Center for Missing and Exploited Children (“NCMEC”)[4] 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 Tip”).[5]

         2. The NCMEC Tip lists the “Incident Time” as October 21, 2013, 5:00 UTC.[6]NCMEC Tip at 3.

         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.”).

         4. The 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).

         5. The 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.”[7] 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).

         6. The 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.

         7. The 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.[8] NCMEC Tip at 3.

         8. The 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.

         9. 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.

         10. The note continues to provide an “ITACT”[9] 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.

         11. The note also provides a “TLO”[10] 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 8.

         12. The 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.

         13. 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).

         14. The 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.

         15. 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.”[11] NCMEC Tip at 10.

         16. The 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.

         17. 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).

         18. The position of criminal analyst is not one of “sworn law enforcement capacity”; it is a civilian position. Tr. at 34:5-7 (Whitsitt, Zimmerman).

         19. At 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, Zimmerman).

         20. Whitsitt currently works at the Gallup Police Department. See Tr. at 9:10 (Whitsitt).

         21. 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 - ICAC”).

         22. 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).

         23. “[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.

         24. 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).

         25. 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 11:4-9 (Whitsitt).

         26. 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).

         27. 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).

         28. Whitsitt could not recall what priority NCMEC assigned the Tip in this case. See Tr. at 15:1-4 (Zimmerman, Whitsitt).[12]

         29. The 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).

         30. As 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).

         31. 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 higher priority).

         32. 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).[13]

         33. The 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 publicly.

         N.M. Stat. Ann. § 30-6A-3(A), (D).

         34. “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).

         35. 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).

         36. It 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).

         37. 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).

         38. 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).

         39. To 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 (Zimmerman, Whitsitt).

         40. A 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).

         41. 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).

         42. Not 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 (Zimmerman, Whitsitt).

         43. 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).

         44. 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 (Whitsitt).

         45. 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 28:6-11 (Whitsitt).

         2. The Subpoena.

         46. On 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).

         47. “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,

         N.M. 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).

         48. The 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).

         49. At 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 37:7-12 (Whitsitt).

         50. On 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.

         51. The 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 this service.

         Subpoena at 1.

         52. In 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.

         53. The Subpoena does not contain an Attorney General's Office case number or inquiry number. See Subpoena at 1.

         54. The Subpoena does not mention the Stored Communications Act, 18 U.S.C. § 2703. See Subpoena at 1.

         55. The Subpoena was issued on the basis of testimony regarding the NCMEC Tip.[14]See Tr. at 39:8-40:20 (Zimmerman, Whitsitt).

         56. On December 27, 2013, T-Mobile responded to the Subpoena, which it states was served on it on December 27, 2013, [15] 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) (“T-Mobile Email”).

         57. It 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).

         58. 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).

         59. The 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.

         60. 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).

         61. The 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:

(A) name;
(B) address;
(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 service utilized;
(E) telephone or instrument number or other subscriber number or identity, including any temporarily assigned network address; and
(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).

         62. 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.

         63. The 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.

         64. On 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[16] 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”).

         65. The 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).

         66. Hartsock currently is a Special Agent in Charge at the Second Judicial District Attorney's Office. Tr. at 71:18-21 (Hartsock, Mease).

         67. 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).

         68. The 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).

         69. In 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, Hartsock).

         70. 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).

         71. 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).

         72. In 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).

         73. 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”).

         3. The Cellular Telephone Records Search for 505-974-9704.

         74. The 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).

         75. This was the first ICAC referral Hartsock had ever received as the case agent. See 80:13-23 (Mease, Hartsock).

         76. 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).

         77. On 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).

         78. The 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.

         79. The 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).

         80. The 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.

         81. 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, Hartsock).

         82. 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).

         83. The 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.

         84. The 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).

         85. The 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).

         86. 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 94:14-17 (Hartsock).

         87. Hartsock recalls only one other time he kept an informant's name confidential in a warrant. See Tr. at 133:20-134:3 (Hartsock).

         88. 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).

         89. 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).

         90. The 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.

         91. The 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.

         92. The 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

         93. The First Affidavit does not discuss whether the tipster had provided accurate information to law enforcement in the past. See First Affidavit at 2.

         94. 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.

         95. The 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.

         96. 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, Zimmerman).[17]

         97. 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 2.

         98. A person requesting nude photographs “has to make many requests before they attain a nude photograph.” First Affidavit at 2.

         99. 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.

         100. 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).

         101. 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).

         102. 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.

         103. As 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).

         104. 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[18]), filed July 24, 2018 (Doc. 141-2) (“First Warrant Return”); Hartsock Report at 3.

         105. 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).[19] See Hartsock Report at 3.

         106. 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).

         107. 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).

         108. 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”).

         109. 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).

         110. Hartsock also used Streett's telephone records to generate a pivot table[20] 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 Exhibit 2).

         111. Hartsock thought that “every MMS message in the records is potentially of interest because it's showing pictures being communicated.”[21] Tr. at 122:3-5 (Hartsock).

         112. 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.

         113. 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).

         114. 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).

         115. 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).

         116. 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).

         117. 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).

         118. 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”).

         119. 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, Hartsock).

         120. The telephone records reveal 591 text messages and six MMS messages exchanged with Jane Doe 1. Excel Table at 2, 10.

         121. 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, Zimmerman).

         122. Hartsock could not charge a crime based on the telephone records. See Tr. at 181:16-17 (Hartsock).

         4. The February 24, 2014, Search of the 4620 Plume Residence.

         123. On 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.

         124. 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.

         125. The Second Warrant incorporates the Second Affidavit, stating it is “hereby made part of this warrant.” Second Warrant at 14.

         126. 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.

         127. The Second Affidavit does not provide to whom the brown Fiat is registered. See Second Affidavit at 1-13.

         128. 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 (same).

         129. 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).[22] 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).

         130. 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).

         131. In 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).

         132. 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).

         133. 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.

         134. 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.

         135. 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.

         136. Again, the Second Affidavit does not include Streett's lack of outstanding warrants or criminal history. See Second Affidavit at 4-13.

         137. 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.

         138. 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.

         139. On 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.

         140. At 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 180:4-6 (Hartsock).

         141. 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).

         142. On 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.

         143. Vig took a statement from M.Y., who said she was fourteen-years-old at the time[23]and 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.

         144. 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.

         145. 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.

         146. 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”).[24]

         147. 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).

         148. 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.

         149. New Mexico Stat. Ann. § 30-37-3.2 provides that the crime of

[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).

         150. 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).

         151. 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.

         152. 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.

         153. The Second Affidavit does not discuss the information gleaned from the telephone records that Hartsock obtained under the First Warrant. See Second Affidavit at 2-13.[25]

         154. 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).

         155. 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).

         156. 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.

         157. 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.

         158. Hartsock escorted Street, unhandcuffed, to his unmarked vehicle and, after Hartsock read Streett his Miranda[26] warnings, Streett agreed to speak. See Hartsock Report at 4.

         159. 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.

         160. 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 ...


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