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United States v. Streett.

No. 22-2056. 10/5/2023. D.N.M. Judge Ebel. Search Warrant—Inevitable Discovery Doctrine—Probable Cause—Constitutionality of 18 USC § 2251(a).

October 5, 2023

The National Center for Missing and Exploited Children received an online tip that Streett had been texting 15-year-old M.Y. and had asked her to send him a nude photograph. Deputy Hartsock obtained a search warrant for Streett’s telephone records, which disclosed a high volume of communications between Streett and M.Y, including a mixed media message sent from Streett to M.Y. indicating that a photograph was sent. The records also showed that Streett had communicated with 135 different area codes and that many of the messages had been mixed media, again indicating that photographs were being exchanged. Deputy Hartsock then obtained a search warrant for the residence associated with Streett’s phone records. Streett’s residence was searched, and he was charged with various counts of child pornography and sexual activity with minors. He moved to suppress all evidence obtained from the search warrant and additional searches, arguing that the search warrant failed to establish probable cause to search his residence. The district court determined that (1) the search warrant failed to establish probable cause but concluded that it was executed in good faith; and (2)  the evidence would inevitably have been discovered even if the search warrant had been denied, because the warrant affidavit would inevitably have been corrected and the search warrant would have subsequently been issued. Alternatively, the district court concluded that the victims’ identities would inevitably have been discovered from the phone records even without the search warrant. The district court thus denied the motion to suppress. The district court also denied Streett’s motion to dismiss four counts of his indictment, which was based on his assertion that 18 USC § 2251(a) is unconstitutionally overbroad under the First Amendment. Streett then pleaded guilty to each count, reserving his right to appeal.

On appeal, Streett argued that the district court erred in denying his motion to suppress because (1) the good faith exception did not apply to the warrant requirement; (2) the inevitable discovery doctrine does not generally apply to defective warrant cases, and even if it did, it did not apply to the search warrant here; and (3) it was erroneous to find that the victims’ identities would inevitably have been discovered without the search warrant. Here, all parties agreed that the search warrant was issued without probable cause. But the inevitable discovery doctrine can apply to cases where a warrant was improperly issued. Further, it is likely that a proper warrant inevitably would have been granted, and the evidence would inevitably have been discovered, because (1) Hartsock had actually received a warrant, so the warrant process had been completed (though defectively); (2) the government had strong probable cause that evidence of a crime would be found at Streett’s address; (3) it is likely that a more detailed amended affidavit would have secured a warrant since the warrant affidavit resulted in the issuance of the search warrant even though it ultimately failed to establish probable cause; and (4) Hartsock was confident that probable cause existed. Therefore, the district court did not err. Because the Tenth Circuit affirmed on this basis, it did not reach Streett’s remaining arguments on the search warrant.

Streett also contended that counts 3 through 7 of his indictment should have been dismissed because 18 USC § 2251(a) criminalizes a substantial amount of protected speech and is therefore facially overbroad. The overbreadth analysis requires courts to (1) construe the challenged statute to determine whether it covers protected speech and (2) determine whether the unconstitutional applications of the statute are “substantially disproportionate to the statute’s lawful sweep.” Section 2251(a) provides, in pertinent part, that a “person who employs, uses, persuades, induces, entices, or coerces any minor to engage in . . . sexually explicit conduct for the purpose of producing any visual depiction of such conduct or for the purpose of transmitting a live visual depiction of such conduct,” shall be punished under the statute. Streett maintained that “persuades” is overbroad. The Tenth Circuit first interpreted the “persuades” provision of § 2251(a) as requiring physical or psychological pressure to overcome a minor’s resistance to a requested depiction of sexual conduct and as covering only such depictions that would constitute “child pornography,” which falls outside First Amendment protections. Further, to the extent that Streett’s examples of unconstitutional applications generate some hypothetically unconstitutional applications of § 2251(a), such hypothetical situations have not been shown to constitute a substantial number of cases relative to the constitutional breadth of § 2251(a). Streett thus failed to show that any potentially unconstitutional applications of the “persuades” provision of § 2251(a) are substantial relative to the constitutional applications. Accordingly, the district court did not err in denying his motion to dismiss.

The denial of Streett’s motions was affirmed.

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

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