Heinrich Ruling On Venue Evidence Unlawful Search

CASE 0:15-cr-00340-JRT-LIB Document 56 Filed 06/21/16 Page 1 of 53
UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA
UNITED STATES OF AMERICA,
Court File No. 15-cr-340 (JRT/LIB) (1)
Plaintiff,
v.
REPORT AND RECOMMENDATION
Danny James Heinrich,

Defendant.
This matter comes before the undersigned United States Magistrate Judge upon
Defendant Danny James Heinrichs (Defendant) Motion to Suppress Fruits of Unlawful Search
and Seizure, [Docket No. 34]; Motion to Suppress Statements, [Docket No. 37]; and Motion for
Change of Venue, [Docket No. 43]. This case has been referred to the undersigned Magistrate
Judge for a report and recommendation, in accordance with 28 U.S.C. 636(b)(1) and Local
Rule 72.1. The Court held a motions hearing on April 27, 2016, regarding the parties pretrial
motions.1
Following the motions hearing, the parties requested the opportunity to submit
supplemental briefing which was completed on June 1, 2016, and Defendants Motion to
Suppress Fruits of Unlawful Search and Seizure, [Docket No. 34]; Motion to Suppress
Statements, [Docket No. 37]; and Motion for Change of Venue, [Docket No. 43], were then
taken under advisement by the undersigned on June 1, 2016.
For reasons discussed herein, the Court recommends that Defendants Motion to
Suppress Fruits of Unlawful Search and Seizure, [Docket No. 34]; and Motion to Suppress
The Court addressed the parties pretrial discovery motions by separate order. [Docket No. 47].
Statements, [Docket No. 37] be DENIED. The Court also recommends that Defendants Motion
for Change of Venue, [Docket No. 43], be DENIED without prejudice.
I.
BACKGROUND2
Defendant is charged with ten counts of possession of child pornography printed
material, in violation of 18 U.S.C. 2252A(a)(5)(B), 2252A(b)(2), and 2256(8)(A); five counts

of possession of child pornography victim under twelve printed material, in violation of 18
U.S.C. 2252A(5)(b), 2252A(b)(2), and 2256(8)(A); one count of possession of child
pornography morphed image printed material, in violation of 18 U.S.C. 2252A(5)(b),
2252A(b)(2), and 2256(8)(C); one count of receipt of child pornography printed material, in
violation of 18 U.S.C. 2252A(a)(2)(A); 2252A(b)(1); and 2256(8)(A); one count of
possession of child pornography digital material, in violation of 18 U.S.C. 2252A(a)(5)(B),
2252A(b)(2), and 2256(8)(A); seven counts of receipt of child pornography digital material, in
violation of 18 U.S.C. 2252A(a)(2)(A), 2252A(b)(1), and 2256(8)(A); and one count of
possession of child pornography victim under twelve printed material, in violation of 18
U.S.C. 2252A(a)(5)(B), 2252A(b)(2), and 2256(8)(A). (Indictment [Docket No. 18]).
II.
DEFENDANTS MOTION TO SUPPRESS FRUITS OF UNLAWFUL SEARCH

AND SEIZURE. [DOCKET NO. 34].
Defendant moves the Court to suppress the images of child pornography forming the
basis of the charges now against him, as well as, any other evidence that was also gathered as a
result of the execution on July 28, 2015, of the state court warrant that authorized officers to
The Court has set forth the facts that are relevant to each motion in the section addressing each motion.
search his residence at 55 Myrtle Avenue South in Annandale, Minnesota (Defendants 2015
Residence), and to seize a buccal swab of Defendants DNA.3
A. Relevant Facts
On July 27, 2015, Investigator Dennis Kern (Investigator Kern) of the Wright County
Sheriffs Department, supervised by Stearns County Sheriffs Department Captain Pamela
Jensen, prepared an affidavit (the Kern Affidavit) in support of an application for a state court
warrant to search the Defendants 2015 Residence.4 (See, gen., Govt. Ex 8, Application 1-4 to 111; April 27, 2016, Motions Hearing, Digital Recording, at 10:40:25 a.m.). In the Affidavit,
Investigator Kern averred as follows:
Between 1986 and 1988, a series of incidents was reported as having occurred in
Paynesville, Minnesota, in which juvenile males were physically or sexually assaulted. (Govt. Ex
8, Application 1-4).
In August 1986, an unidentified white male, who was described as approximately 59
and husky with a mud-like substance on his face, struck a juvenile male and groped the font of
the juveniles pants before fleeing the scene. (Id.).
3
As drafted, Defendants motion asks the Court to suppress only evidence gathered as a result of the execution of
the state court search warrant for his house that also authorized the collection of a buccal swab sample of
Defendants DNA. (See Def.s Motion to Suppress Fruits of Unlawful Search and Seizure, [Docket No. 34]).
Similarly, Defendants motion papers refer only to the state court warrant to search his residence. (See, gen., Def.s
Memorandum in Support of Motion, [Docket No. 52]). However, at the motions hearing, the Government referred
to a second state court search warrant that authorized the installation of a tracking device on Defendants vehicle.
(April 27, 2016, Motions Hearing, Digital Recording at 10:28:08 a m.). The Government represented, and the
Defendant did not dispute, that the parties had met and conferred and had agreed that, because the affidavits in
support of the applications for both warrants were identical, the Government would submit only the affidavit in
support of the state court search warrant for Defendants residence for the Courts consideration. (Id.). Because the
Defendant has not, in the first instance, moved the Court to suppress any evidence gathered as a result of the state
court warrant that authorized the placement of a tracker on Defendants vehicle or offered any argument that the
placement was somehow unlawful, the Court concludes that the only state court search warrant at issue in the
present motion is the one that authorized the search of Defendants residence and the seizure of a buccal swab
sample of Defendants DNA.
4
The search warrant indicates that it was signed on July 24, 2015. (Govt. Ex. 8, Warrant 1-3). At the motions
hearing, the Government clarified, and Defendant did not dispute, that the search warrant was actually signed on
July 27, 2015. (April 27, 2016, Motion Hearing, Digital Transcript at 11:17:00 a.m.).
On August 21, 1986, an unidentified male, who was described as heavy set, between 56
and 58 tall, and wearing a long sleeve sweater and gloves, knocked a juvenile male to the
ground and groped the front of the juveniles pants, before fleeing the scene when a second
juvenile male approached. (Id.).
On November 30, 1986, an unidentified male, who was described as heavyset, having a
low, static filled voice, smelling strongly of cigarettes, and wearing a nylon windbreaker,
grabbed and dragged a juvenile male into some trees, where the unidentified male threatened to
kill the juvenile if he didnt remain silent. (Id.). The unidentified male rubbed the juveniles
testicles, then removed the juveniles stocking cap and cut off some of the juveniles hair using a
ragged edged knife. (Id.). The unidentified male then asked the juvenile his name and age,
threatened the juvenile again, and he left the scene still in possession of the juveniles stocking
cap and hair. (Id.).
On February 14, 1987, an unidentified male, who was described as heavy, approximately
56 tall, speaking in a low, deep whisper, and wearing a dark-colored quilted jacket with a mask
over his face, grabbed a juvenile male and threw him down some steps before threatening to kill
the juvenile if he did not remain silent. (Id.). The unidentified male groped the juveniles penis
and testicles, asked the juvenile what grade he was in, and threatened the juvenile with death if
he moved. (Id.). The unidentified male then left the scene with the juveniles wallet. (Id.).
On May 17, 1987, an unidentified male, who was described as pudgy, about 56 tall,
with a dark looking face and dark colored clothing, grabbed the same juvenile male who had
been groped during the February 14, 1987, incident, and threw the juvenile to the ground. (Id.).
The suspect fled the scene, leaving behind a baseball cap, when the juvenile began to scream.
(Id.).
On September 20, 1987, an unidentified male, who was described as chubby, between
57 and 58 tall, with short legs and with either a painted face or a facemask, approached two
juvenile males but fled when the juveniles screamed and ran. (Id. at 1-5).
In late summer of 1988, an unidentified white male, who was described as husky, with a
raspy voice, and was wearing pantyhose over his head, camouflage colored pants, a green army
type jacket, black boots, and black gloves, tackled one of two juveniles who were walking
together. (Id.) The unidentified male sat on the tackled juvenile, held a small knife to the
juveniles throat, and he threatened to kill the juvenile if the juvenile did not stop screaming.
(Id.). The juvenile fought back against the unidentified male and eventually the juvenile escaped
without being groped or harmed. (Id.).
In late fall of 1988, an unidentified white male, who was described as husky,
approximately 56 tall, and wearing a ski mask, a dark colored stocking hat, a black shirt, black
pants, and black gloves, knocked a juvenile male off of his bicycle before fleeing the scene on
foot. (Id.).
Investigator Kern stated that Defendant lived in Paynesville at the time of the aboveidentified incidents and that the incidents all occurred within several blocks of Defendants then
residence. (Id.). No arrests were ever made with regard to the above-listed incidents. (Id. at 1-7).
On January 13, 1989, at approximately 9:45 p.m., JNS, who was at the time twelve years
old, was kidnapped and sexually assaulted by an unidentified adult male. (Id.). JNS reported to
police that he had been grabbed by an adult white male and forced into the backseat of a car
approximately three blocks from his home in Cold Spring, Minnesota. (Id.).5 JNS told the police
that the adult male told JNS that he had a gun, and he instructed JNS to cover his face and lay
5
Cold Spring, Minnesota, is approximately 18 miles from Paynesville, Minnesota. Fed. R. Evid. 201(b).
down in the back seat. (Id.). JNS reported to police that he had noticed that the unidentified male
had a scratched, duct taped, handheld radio walkie talkie type device on the backseat, from
which JNS could hear voices coming until the driver turned the device off. (Id.). JNS reported to
police that he believed that he had been driven out of Cold Spring to a gravel road, where the
adult male stopped the car and then got into the backseat with JNS. (Id.).
JNS reported to the police that, after being ordered to do so by the unidentified adult male
driver, he had removed his snowsuit and pulled down his pants and underwear. (Id.). JNS
reported that the unidentified adult male had lowered his own pants, then he touched JNS penis
with his hand and ordered JNS to touch his penis, to which JNS complied. (Id.). JNS reported
that the driver then took JNSs penis into his mouth and ordered JNS to take the adult males
penis into his mouth, to which JNS complied. (Id.). JNS later reported to police that he had
wiped his mouth on his sweatshirt several times during the incident. (Id.). JNS reported that the
driver then unsuccessfully attempted to engage in anal sex with him before he returned to the
front seat of the car, which JNS described as a dark blue, new-smelling, four-door automatic
transmission passenger car with a luggage rack on the trunk, a center console shifter, a blue cloth
interior with dark blue leather or vinyl trim, and front bucket seats. (Id. at 1-6).
JNS reported that the adult male took and kept JNSs pants and underwear, but gave
JNSs snowsuit back to him and he allowed JNS to dress himself in it. (Id.). The adult male
drove JNS back to near Cold Spring, where he ordered JNS to exit the vehicle and to roll around
in the snow in his snow suit. (Id.). The adult male then ordered JNS to run away and he
threatened to shoot JNS if he looked back. (Id.).
JNS described the adult male as white with a darker complexion, in his mid-thirties,
approximately 56 to 57 tall, approximately 170 lbs., with dark brown mid-length hair, brown
eyes, fat ears that stuck out, a fat nose, bushy eyebrows, rough wrinkled skin, a broad neck, thick
shoulders, rough thick hands, a pudgy beer belly stomach, crooked bottom teeth, an
indentation of a ring on his right ring finger, and a deep raspy voice. (Id.). According to JNS, the
unidentified male wore a brown baseball cap with unknown lettering on it, a dark colored zip up
vest, camouflage fatigues, black Army boots, and a military style watch. (Id.).
Investigator Kern stated that, based on his review of documents and photographs from
that time period, Defendants physical description during the late 1980s was: white male, 55,
160 lbs., with brown hair and brown eyes. (Id.).
On January 16, 1989, a Stearns County Sheriffs Office Deputy identified Defendant as a
possible suspect in the kidnapping and sexual assault of JNS. (Id.). The deputy reported that
Defendant was driving a 1987 dark blue four-door Mercury Topaz that had a light blue interior
and bore Minnesota license plate #086CEZ. (Id.).6 The deputy also reported that Defendant was
at that time currently in either the National Guard or Army Reserve and had been seen wearing
military fatigues on a regular basis. (Id.).
On January 17, 1989, JNS was shown a photographic lineup of six photographs of males
with similar builds and characteristics. (Id.). Upon viewing the photographic lineup, JNS
identified two of the men in the photos, including Defendant, as somewhat resembling the
unidentified male who had kidnapped and sexually assaulted him. (Id.). Also on that date, a
Stearns County Sheriffs Office detective confirmed that Defendant was at that time a member of
the National Guard in the Willmar, Minnesota, area. (Id.).
On January 18, 1989, two Stearns County Sheriffs Office detectives observed a 1987 dark blue four-door Mercury
Topaz bearing Minnesota license plate # 086CEZ at Defendants then place of employment. (Id.). The detectives
observed that the vehicle did not have a luggage rack on it and that the interior of the vehicle appeared to be a light
gray. (Id.).
On October 22, 1989, at approximately 9:15 p.m. in the area of 29748 91st Avenue of St.
Joseph Township, which is located in Stearns County, Minnesota, a masked unidentified adult
male armed with a silver handgun approached three juveniles, identified in the Kern Affidavit as
TW, AL, and Jacob Wetterling. (Id. at 1-6, 1-7). The unidentified male ordered the juveniles into
a ditch, asked the juveniles their ages, and then grabbed ALs penis. (Id. at 1-7). The unidentified
male then ordered TW and AL to run away, and he threatened to shoot them if they looked back.
(Id.). The unidentified male then walked away from the scene with Jacob Wetterling, who has
not been seen since. (Id.). The unidentified male was described as between 59 and 510 tall,
approximately 180 lbs., with a low rough voice, and wearing a smooth nylon-type mask over his
face, a dark coat, dark pants, and dark shoes. (Id.)
TW and AL reported that they had not seen any vehicles parked near where the incident
occurred. (Id.). However, investigating officers later found both shoe and tire impressions in a
gravel driveway at 29748 91st Avenue in St. Joseph, approximately seventy-five (75) yards away
from the scene of the abduction. (Id.). The officers took cast impressions of the tire and shoe
impressions. (Id.). Investigator Kern stated that one of the shoe impressions looked similar to the
shoes that Jacob Wetterling had been wearing when he was abducted. (Id.).
On December 13, 1989, JNS worked with agents of the Federal Bureau of Investigation
(FBI) to create an artists rendering of his abductor. (Id.).
On December 16, 1989, two FBI agents interviewed Defendant. (Id.). Defendant told the
agents that he belonged to an Army National Guard unit in Willmar, Minnesota; that he only
wore camouflage clothing or Army boots while he was on guard duty; that he could not recall
where he had been on either January 13, 1989, or October 22, 1989; that, prior to February,
1989, he alternated between living at his fathers residence and his mothers residence, both of
which were in Paynesville; that between February 1989 and November 1989, he had lived at his
mothers residence; and that he moved to live at his fathers residence in November 1989. (Id.).
Defendant also told the agents that he had been driving a 1975 gray Ford Grenada until July
1989, when he sold the vehicle, and that he had begun driving a light or medium blue 1982 Ford
EXP in June of 1989. (Id.). Defendant denied having any knowledge of the abductions of JNS or
Jacob Wetterling. (Id.).
On January 8, 1990, Paynesville Police Chief Robert Schmiginsky informed the officers
investigating the Wetterling abduction about a number of reported incidents that had occurred in
Paynesville beginning in 1986, including the eight incidents listed above, in which an
unidentified adult male chased or groped juvenile males. (Id.). Chief Schmiginsky told the
investigating officers that he believed that Defendant should have been considered as a suspect in
the incidents. (Id.).
On January 12, 1990, law enforcement officers interviewed Defendant again. (Id.).
Defendant voluntarily provided his tennis shoes and some body hair samples to law enforcement.
(Id. 1-7, 1-9). Defendant also voluntarily authorized law enforcement officers to remove the rear
tires from his Ford EXP. (Id. at 1-7).
On January 15, 1990, a Stearns County detective reviewed documentation indicating that
Defendant had purchased a blue, four-door, automatic transmission 1987Mercury Topaz with a
blue interior on March 10, 1988, that was later repossessed from Defendant on March 10, 1989.
(Id. at 7). The Stearns County detective contacted the then current owner of the Mercury Topaz
who drove the car to the detective the next day. (Id.). On January 16, 1990, JNS sat inside the
Mercury Topaz to examine the vehicle. (Id. at 1-8). JNS said that the Mercury Topaz was highly
similar to, and felt like, the vehicle in which he had been kidnapped and sexually assaulted.
(Id.). Law enforcement took samples from the Mercury Topazs back seat carpet and back seat.
(Id.).
On January 24, 1990, the Stearns County Sheriffs Office executed a state court search
warrant for the residence of Defendants father, with whom Defendant was living at that time.
(Id.). The executing officers seized two radio scanners with operating manuals and lists of
scanner frequencies, a pair of black lace up boots, two brown caps, a camouflage shirt, a pair of
camouflage trousers, a vest, and some financial documents with Defendants name on them.
(Id.). Defendant produced six photographs to the officers while one of his locked trunks was
being searched. (Id.). One photo depicted a male child coming out of a shower with a towel
wrapped around him. (Id.). A second photo depicted a male child in his underwear. (Id.). A third
photo depicted three fully clothed children. (Id.). The last three photos were school type photos
of children with the last name Wurm. (Id.). Defendant told the officers that the photos were of
children from the Twin Cities area that he had met while he was a patient at the Willmar
Regional Treatment Center. (Id.). Law enforcement later confirmed that Defendant had been a
patient at that treatment facility. (Id.).
Officers interviewed Defendant while the state court search warrant for his fathers
residence was being executed. (Id.). Defendant told the officers during the interview that he had
been unemployed from October 8, 1989, until November 12, 1989; that he had not been in St.
Joseph on the weekend which included October 22, 1989; and that he could not recall where he
had been on October 22, 1989. (Id.).
On January 26, 1990, Defendant voluntarily appeared in a physical lineup that included
six individuals. (Id.). JNS was shown the lineup but could not positively identify any of the
individuals in the lineup as his abductor. (Id.). However, JNS identified Defendant and another
10
man as similar to his abductor in the build of their chests and stomachs. (Id.). JNS rated
Defendant as a four on a one-to-ten scale of similarity to his kidnapper, and the other man as a
seven. (Id.).
Also on January 26, 1990, the FBI Laboratory informed the officers investigating the
Wetterling abduction that the tires from Defendant Ford EXP were consistent with, but not an
exact match for, the tire impressions recovered from near the scene of the abduction. (Id. at 1-9).
On February 5, 1990, an FBI agent interviewed a James Wurm. (Id.). Wurm told the
agent that he had a sister who lived in Paynesville; that he and his wife had five boys ranging in
age from twenty-two to eleven; that two of his sons would often stay at his sisters residence in
Paynesville; and that he recalled a Tommy Heinrich playing football with his boys there. (Id.).
The agent showed Wurm a photograph of Defendant. (Id.). Wurm told the agent that Defendant
would often accompany Tommy Heinrich to his sisters residence but would not play football
with his boys; that his sisters residence had been burglarized five or six years earlier and had
also been burglarized and set on fire in November 1989. (Id.). Wurm also provided the agent
with pictures of his sons that had often stayed at his sisters residence, which the agent noted
looked similar to the photographs Defendant had produced during the execution of the state court
search warrant for his fathers residence. (Id.).
On February 9, 1990, Defendant was arrested in relation to the kidnapping and sexual
assault of JNS, but was later released without being charged. (Id.).
On March 5, 1990, the FBI Laboratory provided a report indicating that synthetic fibers
found on JNSs snowsuit exhibited the same microscopic characteristics and optical properties as
the fibers in the sample taken from the seat of the Mercury Topaz. (Id. at 1-8).
11
On April 13, 1990, the FBI Laboratory produced a report indicating that a shoe print
taken near the scene of the Wetterling abduction corresponded in design with Defendants right
shoe but, due to lack of sufficient detail, it could not be determined whether the impression at the
scene had been made by Defendants right shoe. (Id. 1-9). The report also indicated that the tread
pattern from the tires of Defendants Ford EXP was consistent with the tire impression taken
near the scene of the Wetterling abduction. (Id.).
On July 18, 2012, a Minnesota Bureau of Criminal Apprehension (MNBCA) report
indicated for the first time that a DNA profile had been obtained from JNSs snowsuit,
sweatshirt, and shirt. (Id.). DNA profiling results indicated that the samples taken from the right
wrist, neck, and chest of the sweatshirt, as well as, the center chest of the snowsuit, contained a
mixture of DNA from two or more individuals. (Id.). The profiling results indicated that JNS
could not be excluded as a contributor from the samples, but that 99.5% of the general
population could be excluded from being contributors. (Id.). The profiling results indicated that
the predominant male DNA profile from the right wrist of the sweatshirt did not, however, match
JNS. (Id.).
On March 5, 2014, a MNBCA lab report indicated that DNA profiling of a sample taken
from the baseball hat collected following the May 17, 1987, Paynesville incident, indicated that a
mixture of three of more unknown individuals was present in the sample. (Id.).
On July 10, 2015, Investigator Kern received a report indicating that recent MNBCA
testing of the hair samples Defendant had previously provided in 1990 indicated that the
predominant male DNA profile in the mixed sample taken from the right wrist of JNSs
sweatshirt was a match for Defendant, as well as, that the predominant profile could not be
expected to occur more than once among unrelated individuals in the world population. (Id. 1-9
12
to 1-10). The report also indicated that approximately 80.5% of the general population, but not
Defendant, could be excluded from the mixed sample taken from the baseball cap that had been
collected from one of the sexual assault scenes in Paynesville in 1987. (Id. at 1-10).
Investigator Kern stated in his affidavit that, based on his training and experience and the
knowledge and experience of other law enforcement officers involved in this investigation and
the investigation of other crimes against children, he was aware that serial sexual offenders who
engage in sexual fantasies may keep articles from their victims for years after the crime has been
committed; that the articles often consist of biological samples or clothing; and that some
offenders may also keep written or digital records in which they describe their fantasies or
crimes in detail. (Id.).
Investigator Kern further stated in his affidavit that, based on his training and experience
and the knowledge and experience of other officers in this investigation and other investigations
of crimes against children, he was aware that individuals who are sexually attracted to children
may collect and save sexually-explicit materials; that computers are often used to collect or
traffic in child pornography; that child pornographers and individuals with a sexual attraction to
children typically possess and retain for long periods of time sexually explicit materials in
various forms, as well as, correspondence relating to child pornography and an interest in
children; that child pornographers and individuals with a sexual interest in children rarely
voluntarily dispose of their sexually-explicit materials; and that individuals who share child
pornography are often individuals who have a sexual interest in children. (Id. at 1-10).
Investigator Kern also stated in his affidavit that, based on his training and experience
and the knowledge and experience of other officers in this investigation and other investigations
of crimes against children, that there are characteristics common to individuals involved in the
13
receipt and collection of child pornography including: the possible receiving of sexual
gratification, stimulation, or satisfaction from contact with children, from fantasies they may
have when viewing children involved in sexual activity or sexually suggestive poses in person or
in images or literature; the possible collecting of sexually explicit materials in various forms for
their own arousal or to use when attempting to seduce a child partner; the frequent possession
and retention over many years of various forms of digital and non-digital copies of their
sexually-explicit materials; the possible correspondence with others who shared similar interests;
and a preference to not be without their sexually explicit materials for long periods. (Id. at 1-10
to 1-11).
Investigator Kern attached to the Kern Affidavit now at issue copies of: the FBIs artist
rendering of the individual who had kidnapped and sexually assaulted JNS; a photograph of
Defendant taken in 1990; photographs from the interior of Defendants 1987 Mercury Topaz;
photographs of Defendants 1982 Ford EXP; photographs of the Defendants Ford EXPs tires;
photographs of the castings made and the footprints from the scene of the Wetterling Abduction;
photographs of Defendants shoes and the shoe prints from the scene of the Wetterling
abduction; the affidavit in support of the application for the state court warrant to search
Defendants fathers house in January 1990; the state court warrant authorizing the search of
Defendants fathers house in January 1990; and the search warrant return from the execution of
the state court warrant authorizing the search of Defendants fathers house in January 1990. (Id.
at 1-12 to 1-27).
On July 27, 2015, the Honorable Geoffrey W. Tenney, District Court Judge, Wright
County, Tenth Judicial District of the State of Minnesota, reviewed Investigator Kerns affidavit
and application for a state court warrant to search Defendants 2015 Residence. (See Govt. Ex. 8,
14
Warrant 1-3). Judge Tenney then issued a state court warrant authorizing a search of the
Defendants 2015 Residence, and the collection of a buccal swab sample of Defendants DNA.
(Id.).
When executing the state court search warrant, law enforcement officers collected a
buccal swab sample of Defendants DNA and they also seized a box, several photo albums,
nineteen three ring binders, and a computer containing the images of child pornography that
form the basis for the charges for which Defendant has been indicted in the present case, as well
as, a number of other items. (Govt. Ex. 8, Receipt, Inventory, and Return, 1-1, 3-2; see also
Indictment, [Docket No. 18], 1-2). The officers did not, however, seize anything that has been
connected to the Paynesville incidents, the kidnapping and sexual assault of JNS, or the
Wetterling abduction. (See Govt. Ex. 8, Receipt, Inventory, and Return, 1-1, 3-2).
B. Standard of Review
The Fourth Amendment guarantees the right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures, and that no warrants
shall issue, but upon probable cause, supported by Oath or affirmation. U.S. Const. Amend. IV.
The Eighth Circuit has held that [a]n affidavit establishes probable cause for a warrant if it sets
forth sufficient facts to establish that there is a fair probability that contraband or evidence of
criminal activity will be found in the particular place to be searched. United States v.
Mutschelknaus, 592 F.3d 826, 828 (8th Cir. 2010) (internal quotation marks and citation
omitted). Probable cause is a fluid concept that focuses on the factual and practical
considerations of everyday life on which reasonable and prudent men, not legal technicians,
act. United States v. Colbert, 605 F.3d 573, 576 (8th Cir. 2010) (quoting Illinois v. Gates, 462
U.S. 213, 231 (1983)). Courts use a totality of the circumstances test . . . to determine whether
15
probable cause exists. United States v. Hager, 710 F.3d 830, 836 (8th Cir. 2013) (citation
omitted).
The sufficiency of a search warrant affidavit is examined using common sense and not a
hypertechnical approach. United States v. Grant, 490 F.3d 627, 632 (8th Cir. 2007) (citation and
internal quotations omitted). In ruling on a motion to suppress, probable cause is determined
based on the information before the issuing judicial officer. United States v. Smith, 581 F.3d
692, 694 (8th Cir. 2009) (quoting United States v. Reivich, 793 F.2d 957, 959 (8th Cir. 1986)).
Therefore, [w]hen the [issuing judge] relied solely upon the supporting affidavit to issue the
warrant, only that information which is found in the four corners of the affidavit may be
considered in determining the existence of probable cause. United States v. Wiley, No. 09-cr239 (JRT/FLN), 2009 WL 5033956, at *2 (D. Minn. Dec. 15, 2009) (Tunheim, J.) (quoting
United States v. Solomon, 432 F.3d 824, 827 (8th Cir. 2005); edits in Wiley). In addition, the
issuing courts determination of probable cause should be paid great deference by reviewing
courts, Gates, 462 U.S. at 236 (quoting Spinelli v. United States, 393 U.S. 410, 419 (1969)).
[T]he duty of a reviewing court is simply to ensure that the issuing court] had a substantial
basis for . . . [concluding] that probable cause existed. Id. at 238-39 (quoting Jones v. United
States, 362 U.S. 257, 271 (1960)).
B.
Analysis
Defendant contends that the Kern affidavit did not provide sufficient probable cause for
the state court warrant to search his then residence in 2015, arguing that the information
contained in the Kern Affidavit was stale and, in any event, the information contained in the
Kern Affidavit did not establish a nexus to his then 2015 residence.
16
Defendant further argues that the Kern Affidavit was so lacking in indicia of probable
cause that the officers executing the search warrant could not rely in good faith on Judge
Tenneys determination that probable cause existed.
1. Sufficiency of the Affidavit
In the present case, the Kern Affidavit focuses on two primary bases to establish probable
cause to search Defendants 2015 Residence, namely: 1) child pornography; and 2) Defendants
connection to the Paynesville incidents and the JNS kidnapping and sexual assault.
a. Child Pornography
The evidence in the Kern Affidavit purporting to link Defendant to the possession of
child pornography consists only of the reference that, during the execution of the state court
warrant to search Defendants fathers residence in 1990, Defendant produced to the executing
officers a photograph of a child in his underwear, and a photograph of a child coming out of a
shower with a towel wrapped around him. The only information concerning those photographs in
the record presently before the Court consists of the above description and the fact that those
photographs were not seized by the officers investigating Defendant at that time in connection
with the Paynesville incidents and the kidnapping and sexual assault of JNS. There is no new
information since 1990 set forth in the Kern Affidavit which suggests possession or distribution
of child pornography. Moreover, the above information is not sufficient to convince the Court
that those earlier photographs from the 1990 search actually constituted child pornography in and
of themselves. However, when considered together with the totality of the other information in
the Kern Affidavit, as discussed in more detail below, there was information which could have
supplied Judge Tenney with a basis on which to conclude that Defendant had a possible interest
in children and that Defendant may have supported that interest with photographs of children.
17
Defendant argues that the evidence in the Kern Affidavit that Defendant has a sexual
interest in children and used photographs to support that interest referred to incidents that
occurred more than twenty-five years before the affidavit was drafted and, therefore, was too
stale to provide probable cause to believe that evidence of child pornography could be found at
Defendants 2015 Residence. If this were the sole basis for support relied upon by Judge Tenney
to issue the search warrant now at issue, the Court might agree.
Importantly probable cause must exist at the time of the search and not merely at some
earlier time. United States v. Gragg, 576 F. Appx 656, 658 (8th Cir. 2014) (quoting United
States v. Kennedy, 427 F.3d 1136, 1141 (8th Cir. 2005)). As such, a warrant will become stale
if the information supporting the warrant is not sufficiently close in time to the issuance of the
warrant and the subsequent search conducted so that probable cause can be said to exist as of the
time of the search. United States v. Brewer, 588 F.3d 1165, 1173 (8th Cir. 2009) (quoting
United States v. Palega, 556 F.3d 709, 715 (8th Cir. 2009)).
There is no fixed formula for determining when information has become stale. United
States v. Smith, 266 F.3d 902, 904-05 (8th Cir. 2001) (citing United States v. Koelling, 992 F.2d
817, 822 (8th Cir. 1993). The Eighth Circuit has explained that the vitality of probable cause
cannot be quantified by simply counting the number of days between the occurrence of the facts
supplied and the issuance of the affidavit[.] United States v. Tyler, 238 F.3d 1036, 1039 (8th
Cir. 2001) (citing Koelling, 992 F.2d at 822). Rather, [i]n determining whether probable cause
dissipated over time, a court must evaluate the nature of the criminal activity and the kind of
property for which authorization to search is sought. United States v. Tenerelli, 614 F.3d 764,
770 (8th Cir. 2010) (quoting United States v. Simpkins, 914 F.2d 1054, 1059 (8th Cir. 1990)). As
some courts have noted, [t]he observation of a half-smoked marijuana cigarette in an ashtray at
18
a cocktail party may well be stale the day after the cleaning lady has been in; the observation of
the burial of a corpse in a cellar may well not be stale three decades later. Tuzman v. State, 145
Ga. App. 761, 765, 244 S.E.2d 882, 886 (1978).7
The Courts independent research has not unearthed any case in which the information
giving rise to believe that images of child pornography could be found at a suspects residence
was deemed to still not be stale after the passage of a quarter-century.8 Further, there is no
indication in the Kern Affidavit that Defendant was, even in the 1990s, in possession of any
actual images of child pornography, nor any new information that Defendant, more recently,
used the internet to obtain or disseminate such images. In light of the particular circumstances in
this case, the information in Investigator Kerns affidavit in support of his application for the
state court search warrant was too stale to provide Judge Tenney with an independent basis to
conclude that evidence of child pornography could be found at Defendants 2015 Residence.
However, that does not end the Courts inquiry in regard to the 2015 search of Defendants then
Residence.
7
Courts have concluded that the nature of the crime of possession of child pornography, the electronic method of
storing such images, and the nature of the relationship that those who possess such images have with the images
warrant special consideration when determining how long probable cause may last to believe that such images may
be found at a suspects residence. See, e.g., United States v. Hyer, 498 F. Appx 658, 660 (8th Cir. 2013) (Given
the compulsive nature of the crime of possession of child pornography, information that might, in other
circumstances, be deemed stale can have substantial probative value.); United States v. Seiver, 692 F.3d 774, 777
(7th Cir. 2012) (noting that staleness is rarely relevant when the object to be found is a computer file); United States
v. Paull, 551 F.3d 516, 522 (6th Cir. 2009) [B]ecause the crime [of child pornography] is generally carried out in
the secrecy of the home and over a long period, the same time limitations that have been applied to more fleeting
crimes do not control the staleness inquiry for child pornography.). As a result, courts have concluded that probable
cause to search a suspects home for evidence of child pornography may persist for years after the evidence first
giving rise to the basis to believe that such images may be in the suspects home. See, e.g., United States v. Carroll,
750 F.3d 700, 707 (7th Cir. 2014) (victims statement that defendant had taken pornographic pictures of her as a
child five years previously was not too stale to support probable cause to search); Hyer, 498 F. Appx at 659
(information that defendant had admitted four years previously to possession images of child pornography was not
too stale to support probable cause).
8
The Court also notes that the electronic methods of maintaining child pornography that courts have recently cited
as a basis to conclude that possible child pornography warrants special consideration when determining the staleness
of probable cause were still relatively new in 1990, at the time that Defendant presented officers with the physical
photographs of the children that were identified in the Kern Affidavit.
19
b. Connection to previous incidents, abductions, and sexual assault

With regard to Defendants connection to the Paynesville incidents and the kidnapping
and sexual assault of JNS, the Kern Affidavit indicates that new DNA testing in 2014 and 2015,
of hair samples that Defendant had voluntarily provided in 1990, compared to DNA samples
taken from the clothing of JNS in 1990, had indicated that Defendants DNA was a statistical
match for the individual who had kidnapped and sexually assaulted JNS in January 1990. That
new information, when considered in context of the totality of the information which included
related to the events and investigations from 1989 and 1990, provided Judge Tenney with a basis
upon which to conclude that there was a fair probability to believe that Defendant kidnapped and
sexually assaulted JNS in 1989. In addition, there are a number of similarities between the
kidnapping and sexual assault of JNS and the earlier Paynesville incidents, including: the
geographical and temporal proximity of all of the incidents; that the perpetrators victims were
all juvenile males; that the perpetrator often groped the genitalia of his victims; the perpetrators
use of threats to get his victims to do his bidding; the consistent description of the perpetrator as
heavyset or husky; the common description of the perpetrators voice as low and rough; the
common description that the perpetrator attempted to cover his face; and the common description
that the perpetrator often wore dark clothing and gloves. As such, the new evidence in the Kern
Affidavit linking Defendant to the 1989 kidnapping and sexual assault of JNS, together with the
number and character of the similarities between that incident and the Paynesville incidents,
provided Judge Tenney with a basis to conclude that there was a fair probability that Defendant
was also the perpetrator of at least one the Paynesville incidents.
Further, the information in the Kern Affidavit indicates that the perpetrator of the
Paynesville incidents took hair and a stocking cap from one of the victims, and the perpetrator of
20
the kidnapping and assault of JNS also took articles of JNS clothing. The foregoing, together
with Investigator Kerns statements based on his training and experience that serial sexual
offenders are known to sometimes take biological materials and articles of clothing from their
victims and that they retain those items for years, provided Judge Tenney with some evidence to
conclude that there was a fair probability that Defendant had taken and kept items of clothing
and biological material from the Paynesville incidents and the JNS kidnapping and sexual
assault.
Defendant again argues that the fact that the above-identified incidents occurred two-anda-half decades before Judge Tenney issued the state court search warrant rendered the
information about those incidents too stale to provide probable cause in 2015 that Defendant still
possessed the items taken or that any evidence from those incidents could be now found at
Defendants 2015 Residence. 9
The Court notes that some of the same factors that might support a finding that probable
cause may continue to exist with respect to child pornography for many years are pertinent with
respect to the physical items taken from serial sexual assault victims. Investigator Kern stated in
9
At the motions hearing, Defendant spent a significant amount of time eliciting testimony regarding whether Captain
Jensen and the other investigating officers might have believed that the information in the Kern Affidavit concerning
the kidnapping and sexual assault of JNS and the Wetterling abduction might be stale as a result of the passing of the
statute of limitations. (See April 27, 2016, Motion Hearing, Digital Recording, at 11:21:40 a m.-11:22:30 a.m.; Id. at
11:42:00 a.m.-11:46:20 a.m.; Id. at 11:47:05 a.m.-11:49:20 a m.; Id. at 11:52:15 a.m.-12:01:35 a.m.). Courts of this
Circuit treat the statute of limitations as an affirmative defense. See, e.g., United States v. Soriano-Hernandez, 310
F.3d 1099, 1103 (8th Cir. 2002). The Court finds persuasive the reasoning of those courts that have directly
considered the issue that have concluded that a court deciding whether probable cause exists to issue a search
warrant is not required to consider the applicability of the statute of limitations or other affirmative defenses. See,
e.g., Kitch v. City of Kirkland, No. C11-823RAJ, 2012 WL 924345, at *9 (W.D. Wash. Mar. 19, 2012) (concluding
that no authority existed that required a judicial officer to consider the statute of limitations when issuing a search
warrant). The Court also finds persuasive the reasoning of those courts that have similarly held that an officer
executing a warrant is not required to independently determine the applicability of the statute of limitations. See,
e.g., Pickens v. Hollowell, 59 F.3d 1203, 1207-08 (11th Cir. 1995) (The existence of a statute of limitations bar is a
legal question that is appropriately evaluated by the district attorney or by a court after a prosecution is begun[.])
(Emphasis added).
21
his affidavit that based on his training and experience, as well as that of other involved
investigating officers, that serial sexual offenders may take and keep biological materials or
articles of clothing from their victims for years. The Kern Affidavit gave Judge Tenney a basis to
conclude that there was a fair probability that Defendant had taken articles of clothing from JNS,
and there is further information on which to conclude that there is a fair probability that
Defendant was also the perpetrator of at least one of the similar Paynesville incidents, in which
hair and clothing articles were taken and a baseball cap of the perpetrator in one of the incidents
resulted in new DNA test results which linked Defendant to the baseball cap. Further, unlike
images of child pornography, which are fungible in that that are easily obtained and disseminated
electronically, items taken from JNS and the victims of the Paynesville incidents are unique in
that they can come only from the perpetrators specific victims.10 As such, the passage of time is
of less importance in the present case and the Court concludes that the evidence in Investigator
Kerns affidavit in support of his application for the state court search warrant provided Judge
Tenney with a basis to believe that there was a fair probability that Defendant is linked to the
kidnapping and sexual assault of JNS and took items from him, when considered together with
the new 2014 and 2015 DNA testing result information contained in Investigator Kerns
affidavit, was not too stale to provide probable cause to search Defendants 2015 Residence or
collect a buccal swab sample of Defendants DNA.
10
With regards to the unique items from the Paynesville incidents and the JNS kidnapping and sexual assault, the
Court finds the reasoning of State v. Multaler, 643 N.W.2d 437 (April 25, 2002), at least informative. In Multaler,
the Supreme Court of Wisconsin rejected the argument that the information contained in an affidavit in support of a
search warrant application was too stale to provide probable cause to link the defendant to four homicides that had
occurred more than twenty years before the warrant issued; the focus in Multaler was a search for items taken from
the victims that might be found at the defendants residence. See, gen., Id. The affidavit in support of the application
for the state court search warrant in Multaler connected the victims to each other, and as in the present case, it
directly connected the defendant to some of the victims, and circumstantially connected the defendant to other
victims. Id. at 442-43. Also, as in this case, the affidavit in Multaler said that items had been taken from some of the
victims by the perpetrator. Id.
22
Defendant further contends that the information in the Kern Affidavit does not provide a
nexus to Defendants 2015 Residence, arguing that there was not sufficient evidence in the
affidavit to indicate that Defendant actually lived at 55 Myrtle Avenue, and that there was no
evidence linking evidence of the crime to the residence.
To establish a nexus between the crime at issue and probable cause to search the place
specified in the search warrant, an affidavit in support of search warrant application must set
forth only a fair probability that, given the circumstances set forth in the affidavit, contraband or
evidence of a crime will be found in a particular place. United States v. Tellez, 217 F.3d 547,
549 (8th Cir. 2000) (citations omitted).
Defendant first contends that there was a lack of evidence establishing that he actually
lived in the house at 55 Myrtle Avenue. The only indication in the Kern Affidavit that Defendant
lives at 55 Myrtle Avenue in Annandale, Minnesota, is Investigator Kerns single reference to
the house at that location as Defendants home. The Court notes that the affidavit at issue in
United States v. Colbert contained a similarly conclusory statement that the address to be
searched was the defendants home. See Colbert, 605 F.3d 573, 575 (8th Cir. 2010). Although
the Colbert court noted that the affidavit in that case was not a model of detailed police work[,]
the court concluded that the affidavit contained sufficient other specific facts and it rejected the
argument that the affidavit was too conclusory to establish probable cause. Id. at 576. The same
conclusion is warranted here.
Defendant next contends that there was nothing in the affidavit that directly indicated that
any evidence of the Paynesville incidents or the JNC kidnapping and sexual assault would be at
Defendants 2015 Residence. However, a court may draw reasonable inferences from the
circumstances when determining whether an affidavit in support of a search warrant application
23
establishes a nexus between the items to be found and the place to be searched. United States v.
Summage, 481 F.3d 1075, 1078 (8th Cir. 2007) (quoting United States v. Thompson, 210 F.3d
855, 860 (8th Cir. 2000)).
In the present case, the Court concludes that there was sufficient specific information
contained in the Kern Affidavit on which Judge Tenney could reasonably infer that there was a
fair probability Defendant would keep evidence of at least one of the Paynesville Incidents and
the kidnapping and sexual assault of JNS at his home. Numerous courts have found the inference
reasonable that a possessor of child pornography will keep images of such in his home due to the
private nature of the images and the need to keep the images in a secure place like the home. See,
e.g., United States v. McArthur, 573 F.3d 608, 613 (8th Cir. 2009). As discussed above, the
information in the Kern Affidavit pertaining to child pornography was too stale on its own as a
singular basis to provide probable cause to search Defendants 2015 Residence. However, many
of the characteristics of child pornography which make it reasonable to infer that a suspect would
keep such at their home also make it reasonable to infer that an alleged serial sex offender would
keep physical items taken from his victims at a secure, private place like his home. See United
States v. Cortes, No. CRIM. 12-293 ADM/JJG, 2013 WL 828866, at *3 (D. Minn. Mar. 6, 2013)
(noting that affidavit had identified items associated with sexual assault, including clothing, as
items typically kept in the home).11
Based on all of the foregoing, the Court concludes that Investigator Kerns affidavit in
support of the application for the state court search warrant provided Judge Tenney with a
substantial basis to reasonably conclude that a fair probability existed to believe that evidence
11
Probable cause to search a residence could be because it was the site of an alleged criminal act, but probable cause
to search a residence could also, independently be established because evidence of a crime might be found or kept
there even though the crime was not committed there. The two bases are not interdependent.
24
relating to the Paynesville incidents and the kidnapping and sexual assault of JNS could be found
at 55 Myrtle Avenue in 2015.
It must be noted that the Kern Affidavit did not provide probable cause to search
Defendants residence for images of child pornography, and such images constitute the primary
evidence that Defendant now seeks to suppress as they form the basis for the charges now
against him. However, because the Kern Affidavit established probable cause to search
Defendants 2015 Residence for evidence connected to the Paynesville incidents and the
kidnapping and sexual assault of JNS, those officers were still lawfully present in Defendants
home when executing the state court search warrant even if the officers ultimately did not find
any such evidence. It is well established that officers who are on a suspects premises when
executing a valid search warrant may lawfully seize contraband beyond that authorized by the
warrant, provided that the contraband is in plain view of the officer and the officer is in a
location where the officer was lawfully allowed to be. See, e.g., Horton v. California, 496 U.S.
128, 135 (1990). It is also well established that [a] lawful search extends to all areas and
containers in which the object of the search may be found. United States v. Hughes, 940 F.2d
1125, 1127 (8th Cir. 1991) (citations omitted). Because the officers were lawfully allowed to
search for evidence in Defendants 2015 Residence, that may be connected to the Paynesville
incidents and the kidnapping and sexual assault of JNS, the officers could search anywhere such
evidence could be found, and consequently, the officers were lawfully able to seize the images of
child pornography in their plain view while doing so. Horton, 496 U.S. at 135.
2. Good Faith
Assuming solely for the sake of argument and in the interest of completeness that
Investigator Kerns affidavit in support of the application for the search warrant at issue did not
25
provide Judge Tenney with a substantial basis to conclude that probable cause existed to search
Defendants 2015 Residence and seize a buccal swab sample of Defendants DNA, the court
concludes that the officers executing the search warrant did so in good faith reliance on Judge
Tenneys determination that probable cause existed. See, gen., United States v. Leon, 468 U.S.
897, 901 (1984).
Under the Leon good-faith exception, disputed evidence will be admitted if it was
objectively reasonable for the officer executing a search warrant to have relied in good faith on
the judges determination that there was probable cause to issue the warrant. Grant, 490 F.3d at
632 (citing Leon, 468 U.S. at 922).
There are four circumstances, however, in which the Leon good faith exception does not
apply:
(1) the magistrate judge issuing the warrant was misled by statements made by the
affiant that were false or made in reckless disregard for the truth; (2) the
issuing magistrate judge wholly abandoned his [or her] judicial role; (3) the
affidavit in support of the warrant is so lacking in indicia of probable cause as to
render official belief in its existence entirely unreasonable; or (4) the warrant is
so facially deficient ... that the executing officers cannot reasonably presume it to
be valid.
United States v. Marion, 238 F.3d 965, 969 (8th Cir. 2001) (quoting United States v. Taylor, 119
F.3d 625, 629 (8th Cir. 1997)). Defendant contends that the third situation applies to the
circumstances of the present case, arguing, as he has above, that the information in the Kern
Affidavit was too stale to provide probable cause and that it failed to establish a nexus between
the items to be found and Defendants residence. The Court disagrees for all of the reasons
discussed in section II.B.1.b., above.
The courts review above of the Kern Affidavit indicates that Investigator Kern provided
Judge Tenney with specific evidence from the lengthy investigation, including new DNA
26
evidence information from 2014 and 2015 linking Defendant to the kidnapping and assault of
JNS, and circumstantially linking Defendant to at least one of the Paynesville incidents. As
discussed above, and as noted in Investigator Kerns affidavit, there is a basis to believe that
serial sexual offenders will often retain physical items taken from their victims for long periods
of time. In addition, the officers were aware that the perpetrator of the above incidents had in fact
taken such items.
Accordingly, when executing the search warrant for Defendants residence, law
enforcement relied in good faith on the search warrant issued by Judge Tenney.
Based on all of the foregoing, the undersigned recommends DENYING Defendants
Motion to Suppress Fruits of Unlawful Search and Seizure, [Docket No. 34].12
III.
DEFENDANTS MOTION TO SUPPRESS STATEMENTS. [DOCKET NO. 37].

Defendants motion asks the Court to suppress statements that the Defendant made on
July 28, 2015, October 26, 2015, October 28, 2015, and October 29, 2015.13 At the motions
hearing, the Government stated that it did not intend to offer into evidence at trial the statements
that Defendant had made on October 28, 2015 and October 29, 2015. (April 27, 2016, Motion
Hearing, Digital Recording at 10:27:20 a.m.). At the hearing, the Court confirmed, therefore,
with the parties that the motion to suppress statements pertained only to the statements made on
July 28, 2015, and October 26, 2015. (Id. at 10:28:00 a.m.).
12
Because the undersigned concludes that the information provided in Investigator Kerns affidavit in support of his
application for the state court search warrant provided Judge Tenney with a substantial basis on which to conclude
that probable cause existed to search Defendants home and to seize a buccal swab sample of Defendants DNA,
and that, in any event, the officers executing the search warrant relied in good faith on Judge Tenneys
determination that probable cause existed for the state court search warrant to issue, the undersigned need not
address the Governments alternative argument that the evidence obtained during the execution of the search warrant
need not be suppressed because the officers would have inevitably discovered it.
13
At the motion hearing, the Court confirmed with the parties that the statement Defendant originally misidentified
in his moving papers as having been made on November 2, 2015, was in fact made on October 29, 2015. (April 27,
2016, Motion Hearing, Digital Recording at 10:26:45 a m.).
27
A. Relevant Facts
1. July 28, 2016
Shortly after 8:30 a.m. on July 28, 2015, Captain Jensen and MNBCA agent Ken
McDonald went to Buffalo Veneer and Plywood, in Buffalo, Minnesota, Defendants place of
employment, in an unmarked squad car to ask Defendant to either provide the officers with a key
to his residence or, in the alternative, to accompany the officers to the residence to unlock it to
allow the officers to enter it in order to execute the state court search warrant for Defendants
residence issued by Judge Tenney on July 27, 2016. (April 27, 2016, Motions Hearing, Digital
Recording at 10:42:55 a.m.; Id. at 10:43:20 a.m.; Id. at10:44:40 a.m.; Id. at 10:44:50 a.m.). The
officers hoped that Defendant might make statements during the encounter that would further
their investigation and they made an audio recording of the encounter using concealed recording
devices. (Id. at 10:43:30 a.m.).
Captain Jensen and Agent McDonald wore street clothes when they went to Defendants
place of employment. (Id. at 10:44:50 a.m.). The officers were armed but their duty weapons and
badges were beneath their jackets and not visible. (Id. at 10:44:55 a.m.). The building which
houses Buffalo Veneer and Plywood is structured so that the front part of the building contains
offices while the rear part of the building contains a production line. (Id. at 10:45:00 a.m.). Upon
entering, the officers identified themselves as members of law enforcement and asked one of the
business employees in the front office area if they could speak to Defendant. (Id. at 11:24:02
a.m.). The business employee paged Defendant, who came from the production line area to the
front office area to speak with the officers. (Id. at 10:46:00 a.m.).
The two officers were allowed to use one the front offices to speak to Defendant. (Id. at
10:52:10 a.m.). The officers were alone with Defendant in the office, which measured
28
approximately 8 by 10. (Id. at 10:52:20 a.m.; Id. at 11:24:29 a.m.). Captain Jensen shut the
door to the office, but there was a window between the office and the general area at the front of
the building. (Id. at 10:52:35 a.m.; Id. at 11:24:44 a.m.).
After Defendant entered the office, Captain Jensen introduced herself and identified
herself as a law enforcement officer. (Govt. Ex. 1 File Voice0003.MP3 at 3:10). She told
Defendant that the officers had a state court warrant to search Defendants residence, and she
asked Defendant to accompany the officers to unlock the house to allow them to execute the
warrant. (Id. at 3:25). At Defendants request, Captain Jensen provided Defendant with a copy of
the warrant. (Id. at 3:40). While Defendant was reviewing the search warrant, Captain Jensen
told him that he was not under arrest and he did not have to accompany the officers. (Id. at 3:59).
Agent McDonald told Defendant that the officers did not want to break into the residence and
had come to Defendant to ask him to provide a key to the residence. (Id. at 4:04). Defendant
ultimately agreed to go with the officers to open his residence. (Id. at 5:15). After Defendant had
reviewed the search warrant, Captain Jensen retrieved it. (April 27, 2016, Motions Hearing at
10:51:35 a.m.). The officers initial encounter with Defendant lasted approximately three
minutes. (See, gen., Govt. Ex. 1 File Voice0003.MP3).
The officers told Defendant that they would wait for him outside the building near where
he had parked his car. (Id. at 5:50). While Defendant went to his locker in the production area to
obtain his keys, the officers exited the business by the front door and went to sit in their car.
(April 27, 2016, Motion Hearing, Digital Recording at 10:54:48 a.m.). The officers then
followed Defendant as he drove his own vehicle to his residence. (Id. at 10:55:08 a.m.). The
officers remained in visual sight of Defendant at all times during the drive. (Id. at 11:26:11 a.m.).
29
The officers did not activate their emergency lights or sirens during the drive to Defendants
residence. (Id. at 10:56:05 a.m.).
Once Defendant and the officers arrived at Defendants 2015 Residence, Defendant
pulled his vehicle into the driveway while the officers parked their unmarked squad car on the
street in front of the house. (Id. at 10:56:23 a.m.). At the residence, the officers made both audio
and video recordings of their interactions with Defendant. (April 27, 2016, Motions Hearing,
Digital Recording at 10:44:15 a.m.). Defendant exited his vehicle and began walking towards the
residence with Captain Jensen and Agent McDonald following closely behind him. (Id. at
10:56:52 a.m.). As Defendant was going to open the door, Captain Jensen asked Defendant
whether he planned to stay until the officers finished executing the search warrant to lock the
house afterwards. (Govt. Ex. 1 File VOICE004.MP3 at 0:25). Defendant responded that he
planned to stay during the execution of the warrant. (Id. at 0:40). Captain Jensen indicated that
Defendant and the officers could sit and wait under a portable gazebo in Defendants backyard
while the search warrant was being executed. (Id. at 0:45). Defendant responded that he would
rather wait in the house during the execution of the warrant, (Id. at 0:50), but Captain Jensen told
Defendant that he could not wait in the house while the warrant was being executed. (Id. at 0:53).
Defendant asked the officers if he could enter the house to put his lunch container in the
refrigerator and the officers allowed him to do so. (Id. at 0:56). Captain Jensen, who wanted to
make sure that Defendant did not move anything before the state court search warrant was
executed or try to obtain something harmful to the officers, told Defendant that she needed to
enter the residence with him. (Id. at 1:03; April 27, 2016, Motion Hearing, Digital Recording at
10:57:20 a.m.; Id. at 10:58:20 a.m.). Defendant allowed both Captain Jensen and Agent
McDonald into the residence. (Id.).
30
Once the three were inside the residence, Captain Jensen asked Defendant to surrender
his cellular phone because it was listed as one of the items to be seized in the search warrant.
(Govt. Ex. 1 File VOICE004.MP3 at 1:10; April 27, 2016, Motions hearing, Digital Recording at
10:51:45 a.m.). After Defendant provided Captain Jensen with his cellular phone, Captain Jensen
told Defendant that if he needed to call anyone they could talk about it. (Govt. Ex. 1 File
VOICE004.MP3 at 1:50).14
Defendant put his lunch container in the refrigerator. (April 27, 2016, Motions hearing,
Digital Recording at 10:54:28 a.m.). Defendant then offered the officers a beverage, which they
declined. (Id. at 10:57:34 a.m.; Id. at 11:04:22 a.m.).
Captain Jensen suggested that Defendant get himself some beverages and snacks. (Govt.
Ex. 1 File VOICE004.MP3 at 1:40). Defendant then grabbed two containers of beer from the
refrigerator and carried them with him as Defendant, Captain Jensen, and Agent McDonald
exited the residence. (April 27, 2016, Motions hearing, Digital Recording at 10:57:37 a.m.; (Id.
at 11:04:30 a.m.).
Eight other officers from the Stearns County Sheriffs Office, the FBI, and the MNBCA,
who had been assigned to physically execute the state court search warrant for Defendants 2015
Residence delayed their arrival at the residence until Captain Jensen, Agent McDonald and
Defendant had arrived at the residence. (Id. at 10:59:29 a.m.; Id. at 11:27:25 a.m.). Captain
Jensen, Agent McDonald, and Defendant went to sit at the portable gazebo in Defendants
backyard.
(Id. at 10:59:22 a.m.). The other officers parked three or four unmarked law
enforcement vehicles around the residence. (Id. at 11:28:42 a.m.).
14
Captain Jensen later testified at the motions hearing that she was not attempting to restrict Defendants ability to
contact others by asking for Defendants cellular phone. (April 27, 2016, Motions hearing, Digital Recording at
10:51:55 a m.).
31
The execution of the search warrant took approximately five hours. (See Id. at 11:01:08
a.m.). During the entire time the other officers executed the search warrant, either Captain Jensen
or Agent McDonald or both waited with Defendant in his back yard, where they continued to
converse with him. (Id. at 11:01:22 a.m.). Captain Jensen later testified at the motions hearing
that she and Agent McDonald had removed their jackets at some point while the other officers
were executing the search warrant, such that Defendant might have seen their badge and service
weapons. (Id. at 11:29:22 a.m.). However, neither Captain Jensen nor Agent McDonald
brandished their weapons at any time during the encounter. (Id. at 11:46:30 a.m.).
Shortly after the three sat at the gazebo, Captain Jensen reminded Defendant that he was
not under arrest and he could leave whenever he wished. (Id. at Govt. Ex. 1 File VOICE004.MP3
at 3:17). The subsequent conversation that Defendant had with Captain Jensen and Agent
McDonald covered a very wide range of topics. (See, gen., Govt. Ex. 1 File VOICE004.MP3;
Govt. Ex. 1 File VOICE005.MP3; Govt. Ex. 1 VOICE006.MP3; Govt. Ex. 1 File
VOICE007.MP3; Govt. Ex. 1 VOICE008.MP3; Govt. Ex. 1 VOICE009.MP3; Govt. Ex. 1 File
VOICE010.MP3). For purposes of the present motion, the Court notes that its independent
review of the audio recording of the encounter indicates that Defendant and the two officers
engaged each other casually and in conversational tones throughout the five hours they waited
for the other officers to finish executing the search warrant. (See, gen., Govt. Ex. 1 File
VOICE004.MP3; Govt. Ex. 1 File VOICE005.MP3; Govt. Ex. 1 VOICE006.MP3; Govt. Ex. 1
File VOICE007.MP3; Govt. Ex. 1 VOICE008.MP3; Govt. Ex. 1 VOICE009.MP3; Govt. Ex. 1
File VOICE010.MP3).
While the other officers were executing the search warrant, Defendant consumed the two
beers that he had brought out of the house with him while the three waited at the gazebo. (April
32
27, 2016, Motions Hearing, Digital Recording at 11:04:33 a.m.). However, Defendant did not
appear to Captain Jensen at any time to have become intoxicated. (Id. at 11:04:50 a.m.).
Defendant appeared to Captain Jensen to understand the conversation that he was having with
the officers and he gave appropriate responses to the officers questions. (Id. at 11:05:05 a.m.)
Defendant also appeared to be attentive to the search warrant process. (Id. at 11:05:22
a.m.). At his request, Captain Jensen provided Defendant with a copy of the search warrant. (Id.
at 11:33:00 a.m.). Defendant could see the back door of the residence from where he sat with the
officers in the back yard, and he was able to observe as some of the officers physically executing
the warrant made multiple trips removing items from the residence through the back door. (Id. at
11:28:15 a.m.).
At one point during the execution of the search warrant, Defendant got up to urinate. (Id.
at 11:17:20 a.m.; See also Govt. Ex. 1, VOICE005.MP3 at 1:23:58-1:25:33; VOICE009.MP3 at
12:15-12:44). The officers did not prevent Defendant from doing so. (April 27, 2016, Motion
Hearing, Digital Recording at 11:17:30 a.m.). Nor did the officers accompany Defendant, who
went into the garage and urinated in a cat litter box. (Id. at 11:17:32 a.m.; 11:32:30 a.m., see also
Govt. Ex. 1, VOICE005.MP3 at 1:23:58-1:25:33; VOICE009.MP3 at 12:15-12:44).
Sometime between 10:46 a.m. and 11:00 a.m., Agent McDonald collected the DNA
buccal swab sample from Defendant as he switched out tobacco he had been chewing. (See
Govt. Ex. 2 at 00002075).
After the execution of the search warrant was complete, the officers conducting the
search removed a number of boxes containing items seized from Defendants residence when
they left the residence. (April 27, 2016, Motion Hearing, Digital Recording at 11:05:48 a.m.).
33
Captain Jensen and Agent McDonald thereafter also left the residence. (See Id. at 11:06:00 a.m.).
Defendant was not arrested on that date. (Id. at 10:44:35 a.m.; Id. at 11:05:52 a.m.).
Defendant was not subjected to a pat search of his person at any time on July 28, 2016.
(Id. at 10:59:10 a.m.). The officers did not at any time on July 28, 2016, read Defendant a
Miranda warning. (Id. at 11:35: 25 a.m.).
Between July 28, 2016, and October 26, 2016, law enforcement had examined the items
that had been seized from Defendants residence and determined that only some of the seized
items had any evidentiary value. (Id. at 11:06:45 a.m.). The officers decided that they would
return the items that they deemed to not possess evidentiary value to Defendant at his residence.
(Id. at 11:07:28 a.m.). The officers also hoped they might have an additional conversation with
Defendant when they returned the items. (Id. at 11:07:37 a.m.).
2. October 26, 2016
On October 26, 2015, Captain Jensen and Agent McDonald initiated a second encounter
with Defendant. (Id. at 11:0640 a.m.). Shortly after 4:00 p.m., a time when the two officers
believed that Defendant would be returning home from work, the officers, again dressed in plain
clothes, parked an unmarked squad car down the street from Defendants residence and waited
for him to arrive. (Id. at 11:10:34 a.m.; Id. at 11:10 50 a.m.; Id. at 11:35:58 a.m.). Captain Jensen
and Agent McDonald had with them some of the items to be returned and a van that was not yet
then at the residence carried the rest of the items. (Id. at 11:35:12 a.m.). The officers also brought
recording devices with them when they went to Defendants home to return the items, and they
again made an undisclosed audio recording of the encounter. (Id. at 11:08:25 a.m.). Once the
officers saw Defendant park his car in the driveway of his residence, the officers pulled up to the
curb in front of the residence. (Id. at 11:10:45 a.m.). The officers hailed Defendant and told him
34
that they were there to return some of his property. (Id. at 11:11:05 a.m.). Captain Jensen later
testified at the motions hearing that she could not recall whether the officers badges or service
weapons were visible at that time. (Id. at 11:36:04 a.m.). However, neither Captain Jensen nor
Agent McDonald ever brandished their weapons during their encounter with Defendant on
October 26, 2015. (Id. at 11:46:30 a.m.).
After the officers greeted Defendant, he began inquiring about what the officers had
discovered with respect to his belongings. (Govt. Ex. 5 at 0:22). Agent McDonald suggested that
Defendant and the two officers go into the house to speak. (April 27, 2016, Motions Hearing,
Digital Recording at 11:11:18 a.m.). The officers and Defendant then engaged in general, casual
conversation while they made room in Defendants garage for his items that were to be returned;
they then went inside where they all sat down at Defendants kitchen table. (Govt. Ex. 5 at 0:353:30; April 26, 2016, Motions Hearing, Digital Recording at 11:11:25 a.m.). Defendants kitchen
table was about the size and shape of a card table. (April 26, 2016, Motions Hearing, Digital
Recording at at 11:36:30 a.m.). The officers sat on two adjacent sides of the table, while
Defendant sat across from Captain Jensen. (Id. at 11:36:55 a.m.). No one else was in the house
during the encounter. (Id. at 11:36:45 a.m.).
After the three seated themselves, Captain Jensen told Defendant that he was not under
arrest for child pornography at that time. (Govt. Ex. 5 at 5:40). Captain Jensen said that the
officers, however, wanted to ask him some additional questions about the child pornography that
had been found among the seized items. (Id. at 5:45).
During the conversation, Defendant did not appear to Captain Jensen to be under the
influence of any intoxicating substances. (April 27, 2016, Motions Hearing, Digital Recording at
35
11:12:36 a.m.). Defendant did, however, appear to Captain Jensen to be a little agitated. (Id. at
11:12:50 a.m.).
Captain Jensen asked Defendant a series of questions about pictures that had been found
in the seized items, and about Defendants computer and internet activities, which Defendant
answered. (Govt. Ex. 5 at 5:50-9:50).
Approximately ten minutes into the encounter, Agent McDonald told Defendant again
that he was not going to be arrested that day and Agent McDonald told Defendant that he did not
have to speak to the officers. (Id. at 9:55). The officers and Defendant then went on to discuss
Defendants general history for several minutes, before Agent McDonald told Defendant that
there were several other topics that they wanted to discuss with him. (Id. at 10:05-14:20). Agent
McDonald then told Defendant that DNA testing had identified Defendant as a positive match
for DNA samples associated with the JNS kidnapping and assault. (Id. at 15:00). In making that
statement, the officers sought to get Defendant to make a statement whether he had committed
the JNS kidnapping and sexual assault and/or the Wetterling abduction. (April 27, 2016, Motions
Hearing, Digital Recording at 11:37:45 a.m.). Defendant and the officers went on discuss the
investigation of Defendant in connection with the JNS kidnapping and assault for several
minutes, as well as, the investigation of the Wetterling abduction. (Govt. Ex. 5 at 15:15-21:35).
Defendant then indicated to the officers to that he did not want to talk anymore unless he
had an attorney. (Id. at 21:35). Agent McDonald told Defendant that he would not ask Defendant
any more questions but that he had some things he wanted to say. (Id. at 22:14). Agent
McDonald told Defendant that he could potentially be charged in relation to the child
pornography seized during the execution of the search warrant, and that Defendant could be
facing a sentence of up to twenty years. (Id. at 22:20). Agent McDonald continued telling
36
Defendant about the investigation into the Wetterling abduction for several minutes, during
which Defendant did make an occasional comment. (Id. at 22:35-24:40). Defendant then again
told the officers that he had no more to say. (Id. at 24:43). The officers made several additional
comments about their own interactions with Defendant in conducting the investigation and
Defendant contacting an attorney, before the van carrying Defendants other belongings arrived.
(Id. at 25:51-31:20).
The officers and Defendant returned to making general conversation while other officers
placed plastic tubs containing the returned personal property in Defendants garage. (Id. at
31:21-39:40). All of the officers then left the residence. (April 27, 2016, Motions Hearing,
Digital Recording at 11:16:00 a.m.). The October 26, 2015, encounter with Defendant lasted
approximately forty (40) minutes. (See, gen., Govt. Ex. 5).
Defendant was not at any time subject to a personal pat down search, arrested, nor read a
Miranda warning on October 26, 2015. (Id. at 11:12:52 a.m.; Id. at 11:35:39 a.m.).
Officers ultimately later arrested Defendant on October 28, 2015. (Id. at 11:16:10 a.m.).
B. Standard of Review
[Miranda] prohibits the government from introducing into evidence statements made by
the defendant during a custodial interrogation unless the defendant has been previously advised
of his [F]ifth [A]mendment privilege against self-incrimination and right to an attorney. United
States v. Chipps, 410 F.3d 438, 445 (8th Cir. 2005) (citing Miranda v. Arizona, 384 U.S. 436,
444 (1966)). Accordingly, Miranda warnings are required for official interrogations where a
person has been taken into custody or otherwise deprived of his freedom of action in any
significant way[.] Stansbury v. California, 511 U.S. 318, 322 (1994) (quoting Miranda, 384
U.S. at 444).
37
The Eighth Circuit has explained:

To determine whether a suspect was in custody, we ask whether, given the
totality of the circumstances, a reasonable person would have felt at liberty to
terminate the interrogation and leave or cause the agents to leave. United States
v. Vinton, 631 F.3d 476, 481 (8th Cir.2011). We have set forth six non-exclusive
indicia of custody:
(1) whether the suspect was informed at the time of questioning that the
questioning was voluntary, that the suspect was free to leave or request the
officers to do so, or that the suspect was not considered under arrest; (2)
whether the suspect possessed unrestrained freedom of movement during
questioning; (3) whether the suspect initiated contact with authorities or
voluntarily acquiesced to official requests to respond to questions; (4)
whether strong arm tactics or deceptive stratagems were employed during
questioning; (5) whether the atmosphere of the questioning was police
dominated; [and], (6) whether the suspect was placed under arrest at the
termination of the questioning.
United States v. Laurita, No. 15-1137, 2016 WL 2342965, at *3 (8th Cir. May 4, 2016). These
factors, however, are not exclusive, and custody cannot be resolved merely be counting up the
number of factors on each side of the balance and rendering a decision accordingly. United
States v. Flores-Sandoval, 474 F.3d 1142, 1147 (8th Cir. 2007) (internal citation and quotations
marks omitted). The analysis depends upon a review of the totality of the circumstances, and
[t]he ultimate test is whether a reasonable person in that position would have felt free to end the
interview. United States v. Sanchez, 676 F.3d at 63031 (8th Cir. 2012) (internal citation and
quotation marks omitted, alteration in Sanchez).
If a court determines that a defendant was in custody when he made the challenged
statements, the Court must determine whether the statements were made in response to
interrogation for Miranda to apply. United States v. McGlothen, 556 F.3d 698, 701 (8th Cir.
2009) (citing United States v. Londondio, 420 F.3d 777, 783 (8th Cir. 2005)). Interrogation
under Miranda includes not only express questioning but also its functional equivalent, such as
any word or actions on the part of the police (other than those normally attendant to arrest and
38
custody) that the police should know are reasonably likely to elicit an incriminating response
from the suspect. United States v. Hull, 419 F.3d 762, 767 (8th Cir. 2005) (quoting Rhode
Island v. Innis, 446 U.S. 291, 30001(1980)).
C. Analysis
Defendant generally argues that he was in custody during the encounters on July 28,
2015, and again on October 26, 2015, such that Captain Jensen and Agent McDonald were
required to read him the Miranda warnings. Defendant asserts that, as a result, the officers
failure to read him the Miranda warnings requires that the statements that he made during the
encounters on those two dates be suppressed.
Captain Jensen admitted at the April 27, 2016, motions hearing, that during their
encounters with Defendant on July 28, 2015, and October 26, 2016, Captain Jensen and Agent
McDonald intended to attempt to elicit from Defendant incriminating responses to their
questions. Accordingly, the threshold and controlling inquiry (for purposes of the present
motion) is whether Miranda applies to the encounters here turns on whether Defendant was in
custody. See United States v. Axsom, 289 F.3d 496, 500 (8th Cir. 2002) (The undisputed facts
establish that [the officers] were interrogating [the defendant]. To determine whether the
Miranda rule applies, we must examine whether [the] interrogation was custodial.).
1. July 28, 2015, Encounter
Defendant argues that the total environment of circumstances were tantamount to his
being in custody during his entire encounter with Captain Jensen and Agent McDonald on July
28, 2015.
39
a. Knowledge that encounter was voluntary

The first factor weighs heavily in favor of a finding that the suspect is not in custody
when officers clearly inform the suspect that he is free to leave or decline questioning. United
Sanchez, 676 F.3d at 63031 (8th Cir. 2012). Captain Jensen and Agent McDonald informed
Defendant at his place of employment that he did not have to accompany them to his home while
they were executing the search warrant. In addition, while Defendant sat with the officers at his
home during the execution of the search warrant, the officers told Defendant again that he did
not have to stay with them and could leave whenever he wished. Accordingly, this factor weighs
heavily against a finding that Defendant was in custody during the July 28, 2015, encounter.
b. Restraint on Freedom
After Defendant and the officers arrived at his residence, the officers told Defendant that
he could not be inside the home while the execution of the warrant was ongoing. Other than that
minimal restriction, as already noted, the officers told Defendant that he did not have to stay at
the house while the search was ongoing. The fact that Defendant was able to leave the encounter
entirely is already accounted for by the first factor. As such, notwithstanding the fact that the
officers told Defendant that he was not allowed to be in the house during the search does not
suggest a limit on Defendants liberty amounting to custody when Defendant voluntarily
indicated that he preferred to wait out of the execution of the search on his home. This factor
does not, therefore, weigh in favor of Defendant being in custody during the July 28, 2015,
encounter.
c. Initiated contact/Voluntary Acquiescence
At his place of employment, Defendant was offered the choice of providing the key to his
residence or whether he wanted to accompany the officers to his home in order to unlock it for
40
the execution of the search warrant so the officers could avoid damaging the doors to
Defendants home. Defendant was also told that once he provided access to his house that he did
not need to stay. As such, Defendant voluntarily acquiesced to the encounter with the officers.
Indeed, the Defendant was also permitted to drive his own vehicle to his residence to unlock the
door to his home. Accordingly, the third factor weighs in favor of finding that Defendant was not
in custody. See Axsom, 289 F.3d at 501 (concluding that the third factor mitigated a finding that
the defendant had been in custody where he voluntarily acquiesced to police questioning even
though he didnt initiate contact with the police).
d. Strong Arm or Deceptive tactics
There is no evidence that the officers used any strong arm tactics during the July 28,
2015, encounter.15 Rather, the Courts review of the encounter indicates that the officers and
Defendant engaged each other in casual, conversational tones without any voices being raised,
threats being made, or weapons being brandished. While the officers did record the July 28,
2015, encounter without Defendants knowledge, there is nothing, however, about the unknown
recording device that would have indicated to an objective observer that they would not have
been free to terminate the encounter. Accordingly, this factor weighs against a finding that
Defendant was in custody during the July 28, 2015, encounter.
e. Police dominated atmosphere
There were several aspects of the encounter at Defendants residence that were police
dominated. The vehicle of Captain Jensen and Agent McDonald, as well as, the vehicles of the
15
Defendant contends that the officers used strong arm tactics by not taking a buccal swab sample of his DNA
immediately but rather waiting until Defendant had finished with one pinch of chewing tobacco and taking the
sample just before Defendant put in a new pinch. Defendant also asserts that the officers used deceptive tactics in
Captain Jensen taking on a provider role by encouraging him to bring beverages and snacks to consume while the
three waited outside for the officers inside to finish executing the warrant. The Court finds these contentions to be
without merit.
41
other eight officers physically executing the search warrant were parked along the front and side
of Defendants residence. Captain Jensen obtained physical control of Defendants cell phone
early in the encounter. Defendant was told that he might be able to use the phone to contact
others if he needed to after discussing it with Captain Jensen first.16 At least one officer was
with Defendant at all times during the July 28, 2015, encounter except for the point in time
where he went into the garage to urinate.17 Defendant asked permission of the officers to be
allowed into the home to put his lunch away before the search thereof was stating to be executed.
Defendant was seated in his backyard where he could watch officers make multiple trips as they
removed items from his residence over the course of about five hours. Accordingly, this factor
weighs slightly in favor of a finding that Defendant was in custody during the July 28, 2015,
encounter.
f. Arrested at the end of the encounter
Defendant was not arrested at the end of the encounter. As such, this factor weighs
squarely against a finding that Defendant was in custody during the July 28, 2015, encounter.
g. Other circumstances
The Eighth Circuit has made clear that the above-listed factors are not all of the
circumstances that a court may consider when determining whether a suspect is in custody for
the purposes of Miranda. See, e.g., Sanchez, 676 F.3d at 63031. In the present case, the general
character of the July 28, 2015, encounter as a whole weighs against a finding that Defendant was
16
The cell phone was seized because it was something specifically described in the search warrant. There is nothing
in the record to suggest the cell phone was seized to effect an arrest of Defendant.
17
It appears that Defendant did not ask the officers for permission to go into the house to urinate, (See, gen., Govt.s
Ex. 1), which indicates that Defendant felt under the stricture of Captain Jensens statement at the beginning of the
encounter that he could not go into the house while the search was underway. However, Defendant was not
accompanied by any officer during this time.
42
in custody during the encounter. For most of the five hour encounter, Defendant, Captain Jensen,
and Agent McDonald sat with Defendant under a portable gazebo in his backyard while
Defendant was able to freely drink two cans of beer. See Axsom, 289 F.3d at 502 (When a
suspect is interrogated in the comfort and familiarity of his home, a court is less likely to find the
circumstances custodial.).18 Also, at no time was Defendant subject to any search of his person.
Accordingly, these other circumstances weigh as well against a finding that Defendant was in
custody during the encounter.
Based on the foregoing, Defendant was not in custody during the encounter at his home
on July 28, 2015, and therefore the officers were not required to provide him with the Miranda
warnings before questioning him.
Accordingly, the Court recommends DENYING Defendants Motion to Suppress
Statements, [Docket No. 37], to the extent that Defendant seeks to suppress statements that he
made during his encounter with law enforcement officers on July 28, 2015.
2. October 26, 2016, Encounter at Defendants Residence
On October 26, 2015, Captain Jensen and Agent McDonald initiated a second encounter
with Defendant at his home by approaching him there with the explanation that they wanted to
return some of his personal property that had previously been seized and to ask him some
additional questions.
a. Knowledge that encounter was voluntary
In the case of the October 26, 2015, encounter, this factor weighs strongly in favor of
finding that Defendant was not in custody because the officers directly told Defendant that he
was not going to be arrested, and that he did not have to speak with them. See United States v.
18
The Court notes that Defendant felt comfortable enough in his dealings with Captain Jensen and Agent McDonald
to even offer them a beer.
43
Ollie, 442 F.3d 1135, 1138 (8th Cir. 2006) (While advising someone that he or she is not under
arrest helps to mitigate an interviews custodial nature, an explicit assertion that the person may
end the encounter is stronger medicine. Such a statement provides an individual with a clear
understanding of his or her rights and generally removes any custodial trappings from the
questioning. (citing United States v. Czichray, 378 F.3d 822, 826 (8th Cir. 2004), cert. denied,
544 U.S. 1060 (2005)).
b. Restraint on Freedom
The record presently before the Court is silent regarding whether Defendant attempted to
move about during the encounter and whether the officers attempted to restrict any such
movement. Accordingly, this second factor does not weigh in favor of, or against, a finding that
Defendant was or was not in custody. See Id. (The record is silent on this issue because Mr.
Ollie never tried to move about or leave the interview room. Because the record is thin, we
believe that it is impossible to determine if Mr. Ollie retained his freedom of movement
throughout the questioning.).
c. Initiated contact / Voluntary Acquiescence
The evidence in the record before the Court indicates that Defendant acquiesced to the
encounter with the officers, even if he did not initiate it. As such, the third factor weighs in favor
of a finding that Defendant was not in custody during the October 26, 2015, encounter. See,
Axsom, 289 F.3d at 501.
d. Strong Arm or Deceptive tactics
The officers were armed during the encounter, but as in their encounter with Defendant
on July 28, 2015, they did not brandish their weapons at Defendant. Nor did the officers threaten
Defendant or raise their voices. In fact, the only time the officers can even be described as
44
becoming assertive was when confronting Defendant with the evidence the investigation had
collected against him thus far. Although Defendant stated that he would not answer any further
questions without an attorney present and Agent McDonald persisted in describing the nature of
their investigation thus far, this assertion of expressing a desire for an attorney by Defendant
does not make the October 26, 2015, encounter custodial. Importantly, [w]hen the suspect is
not in custody, there is no such concern, and the suspect has no right to an attorney, even if [he]
requests an attorney. United States v. Conrad, No. 13-CR-2039-LRR, 2014 WL 1165860, at *5
(N.D. Iowa Mar. 21, 2014) (citing Burket v. Angelone, 208 F.3d 172, 197 (4th Cir. 2000);
United States v. Wyatt, 179 F.3d 532, 537 (7th Cir.1999); Tukes v. Dugger, 911 F.2d 508, 515
(11th Cir. 1990)). Indeed, the fact that Defendant felt comfortable to attempt to end the encounter
by expressing his desire to terminate the encounter until he could have an attorney present
indicates that the conduct of Captain Jensen and Agent McDonald did not create a circumstance
where a reasonable, objective person would not feel free to terminate the encounter with police.
Accordingly this factor does not weigh in favor of finding that Defendant was in custody during
the encounter. See United States v. Jakel, No. CRIM. 15-40 MJD/HB, 2015 WL 4136412, at *10
(D. Minn. July 8, 2015) (no strong arm or deceptive tactics where officers did not make promises
or threats or confront the suspect with false or misleading statements).
e. Police dominated atmosphere
In the present case, the atmosphere was not police dominated. The encounter took place
in the presence of only two officers, in the Defendants own home, and at his kitchen table. See
Axsom, 289 F.3d at 502 (When a suspect is interrogated in the comfort and familiarity of his
home, a court is less likely to find the circumstances custodial.). Accordingly this factor does
not weigh in favor of a finding that Defendant was in custody during the encounter.
45
f. Arrested at the end of the encounter

Defendant was not arrested at the end of the October 26, 2015, encounter. Accordingly,
this factor also does not weigh in favor of a finding that Defendant was in custody during the
encounter.
Based on the foregoing, the Court concludes that Defendant was not in custody during
the October 26, 2015, encounter and, therefore, Miranda does not apply to the statements that
Defendant made during that encounter.
Accordingly, the Court recommends DENYING Defendants Motion to Suppress
Statements, [Docket No. 37], to the extent that Defendant asks the Court to suppress the
statements that he made during the October 26, 2015, encounter.
IV.
DEFENDANTS MOTION FOR A CHANGE OF VENUE. [Docket No. 43].

Finally, Defendant moves the Court, pursuant to Federal Rule of Criminal Procedure
21(a), to transfer the venue for proceedings in the present matter to a place outside of the District
of Minnesota. He contends that the pretrial publicity concerning the present matter has produced
such negative public sentiment that the Court must presume that any potential jurors in this
District are prejudiced against him.19 In support, Defendant has submitted a number of news
articles, internet blog posts, and video clips that contain publicity about Defendant and his
connection to the JNS kidnapping and sexual assault, as well as, the Wetterling abduction.20
19
Defendant also asserts that, in the event that the Court decides to defer ruling on the present motion until the voir
dire stage of the proceedings, he requests the opportunity to submit recommendations and draft questionnaires
regarding protective steps that Court could take to blunt the prejudicial effect of any publicity. To the extent that
Defendant requests to make recommendations and submit questionnaires at the voir dire stage, the request is
premature. Accordingly, to the extent that Defendant makes requests associated with the voir dire phase, the Court
also recommends denying the motion.
20
At the motion hearing, Defendant informed the Court that he intended to submit additional exhibits for the Court
to consider in ruling on the present motion for change of venue after the motion hearing itself had included. (April
27, 2016, Motion Hearing, Digital Recording at 10:24:30 a m.). Defendants counsel represented that he had met
46
A. Standard of Review
The United States Supreme Court has explained:
The Sixth Amendment secures to criminal defendants the right to trial by an
impartial jury. By constitutional design, that trial occurs in the State where the ...
Crimes . . . have been committed. Art. III, 2, cl. 3. See also Amdt. 6 (right to
trial by jury of the State and district wherein the crime shall have been
committed). The Constitutions place-of-trial prescriptions, however, do not
impede transfer of the proceeding to a different district at the defendants request
if extraordinary local prejudice will prevent a fair triala basic requirement of
due process, In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942
(1955).
Skilling v. United States, 561 U.S. 358, 377-78 (2010). Federal Rule of Criminal Procedure 21(a)
sets forth that [u]pon the defendants motion, the court must transfer the proceeding against that
defendant to another district if the court is satisfied that so great a prejudice against the defendant
exists in the transferring district that the defendant cannot obtain a fair and impartial trial there.
The Eighth Circuit has indicated that it is preferable for the trial court to await voir dire
before ruling on motions for a change of venue. United States v. Green, 983 F.2d 100, 102 (8th
Cir. 1992) (citing United States v. Bliss, 735 F.2d 294, 297 (8th Cir. 1984)). At that point the
trial court has the information necessary to conduct the due process analysis called for by the
Supreme Court in Beck v. Washington, namely, whether the pretrial publicity was so intensive
and extensive or the examination of the entire panel revealed such prejudice that a court could
not believe the answers of the jurors [regarding their impartiality] and would be compelled to
find bias or preformed opinion as a matter of law. Green, 983 F.2d at 102 (quoting United
States v. Bliss, 735 F.2d 294, 298 (8th Cir. 1984) (in turn citing Beck v. Washington, 369 U.S.
541, 557 (1962) (alteration in Green))).
and conferred with the Government regarding the post-hearing submission of the proposed exhibits. (Id. at 10:24:50
a.m.). Counsel for the Government represented that it did not oppose the post-hearing introduction of the exhibits.
(Id. at 10:25:10 a m.).
47
However, in cases in which the pretrial publicity is so extensive and inflammatory as to

cast doubts on the efficacy of voir dire screening procedures, a court may arrive at a presumption
that an impartial jury could not be seated in the District in which the alleged crime was
committed. United States v. Blom, 242 F.3d 799, 803 (8th Cir. 2001); Bliss, 735 F.2d at 298.
The Eighth Circuit has explained:
Because our democracy tolerates, even encourages, extensive media coverage of
crimes such as murder and kidnapping, the presumption of inherent prejudice is
reserved for rare and extreme cases. In all other cases, the change-of-venue
question turns on the second tier of our analysis, whether the voir dire testimony
of those who became trial jurors demonstrated such actual prejudice that it was an
abuse of discretion to deny a timely change-of-venue motion.
Blom, 242 F.3d at 803 (citing Pruett v. Norris, 153 F.3d 579, 587 (8th Cir. 1998)); see also
Skilling, 561 U.S. at 381 (A presumption of prejudice, our decisions indicate, attends only the
extreme case.).
The mere fact that potential jurors may have been exposed to publicity concerning a
particular case is not by itself sufficient to establish that a defendant is entitled to the
presumption. Skilling, 561 U.S. at 380 (quoting Murphy v. Florida, 421 U.S. 794, 798799
(1975)); see also Irvin v. Dowd, 366 U.S. 717, 722 (1961) (A juror is not required to be totally
ignorant of the facts and issues involved). Nor does the fact that pretrial publicity is both
adverse to the defendant and pervasive inevitably lead to an unfair trial. Skilling, 561 U.S. at
384 (quoting Nebraska Press Assn. v. Stuart, 427 U.S. 539, 554 (1976)). Rather a defendant
carries the burden to show that pretrial publicity was so extensive and corrupting that a
reviewing court is required to presume unfairness of constitutional magnitude. Blom, 242 F.3d
at 803 (quoting Pruett, 153 F.3d at 585).
The necessity for transferring a trial to a different venue will depend on the totality of the
circumstances. See Patton v. Yount, 467 U.S. 1025, 1031, 104 S. Ct. 2885, 2889, 81 L. Ed. 2d
48
847 (1984) (citing Irvin v. Dowd, 366 U.S. 717, 723, 81 S. Ct. 1639, 1642, 6 L. Ed. 2d 751
(1961)). However, in reviewing a motion for a change of venue in Skilling, the Supreme Court
focused on: 1) the size and characteristics of the community21; 2) the nature of the pretrial
publicity; and, 3) the time that elapsed between the crime and the subsequent trial. Skilling, 561
U.S. at 382-83.
B. Analysis
The circumstances surrounding the present motion are unusual in that the crime with
which Defendant has been charged in the present case is not the principle basis of the media
reports and publicity that Defendant claims will prejudice his right to a fair trial by an impartial
jury in the present case. Rather, Defendant asserts that his right to a fair trial in the present case
on the child pornography charges is prejudiced by publicity which connects him to the JNS
kidnapping and sexual assault, and as a person of interest in the Wetterling abduction.
The circumstances in the present case are highly analogous to those at issue in United
States v. Blom, 242 F.3d 799 (8th Cir. 2001).22 Blom concerned a federal possession of firearms
prosecution of a northern Minnesota man who had been charged in the state courts of Minnesota
with the kidnapping and murder of a nineteen-year old store clerk. Id. at 799. After the store
clerk disappeared, there was a significant amount of state-wide publicity that included showing
21
The Supreme Court in Skilling referred to this factor as they size and characteristics of the community but
looked only at the size of the pool of potential jurors. See Skilling, 561 U.S. at 382-83.
22
Defendant asserts that the present case is more like United States v. McVeigh, 918 F. Supp. 1467, 1470 (W.D.
Okla. 1996), in which a motion to change the venue for trial of the Oklahoma City bomber, Timothy McVeigh, was
granted on the basis of extensive prejudicial pretrial publicity. The Court disagrees that media attention paid to the
case of an alleged kidnapper and sexual offender is quite on par with that focused on a domestic terrorist bombing.
Even assuming for the sake of argument that would be the case, even publicity at such a level is no guarantee that a
motion to change venue would or should be granted. See in contrast United States v. Tsarnaev, No. CRIM. 1310200-GAO, 2014 WL 4823882, at *2 (D. Mass. Sept. 24, 2014) (denying motion for change of venue for trial of
the Boston Marathon bomber).
49
of the stores surveillance tape depicting the individual who had forced the clerk to leave the
store where she had worked. Id. at 802. Blom ultimately became a person of interest in the
kidnapping and search warrants were executed for his property, which led to the discovery of the
firearms, as well as, human remains there. Id. at 803. News stories that were published following
his arrest published his criminal record, the results of the execution of the search warrant for
Bloms property, and speculation that Blom might be connected to a series of other unsolved
kidnappings and murders. Id. The media reported on the state court trial proceedings, including
Bloms later-recanted confession to having abducted and murdered the store clerk. Id. When the
federal firearms prosecution went forward, Blom moved for a change of venue out of the District
of Minnesota. Id.
The District Court denied the motion for a change of venue at the pretrial stage,
concluding that the pretrial publicity had not created a presumption of inherent prejudice, and the
District Court ordered that the federal possession of firearms trial take place in Minneapolis. Id.
The District Court also ordered that the jury be selected from a statewide pool that excluded the
division where the crime had occurred. Id. During voir dire, Blom renewed his motion for a
change of venue, which was again denied. Id. at 804.
On appeal, the Eighth Circuit agreed with the District Court that, although it had been
extensive, the pretrial publicity was not so inflammatory or accusatory as to presumptively create
a trial atmosphere that had been utterly corrupted by press coverage. Id. (quoting Murphy, 421
U.S. at 798). The Eighth Circuit also concluded that the steps taken by the District Court, e.g.,
locating the trial in Minneapolis, allowing the jury to be selected from a statewide pool that
excluded the area where the crime had occurred, assembling a pool of jurors three times the
normal size, sending questionnaires regarding the potential jurors exposure to pretrial publicity,
50
and increasing the number of peremptory strikes for each side, assured the selection of an
unbiased jury. Blom, 242 F.3d at 804.
1. Size and characteristics of the community
Part of the reason for the Eighths Circuit preference that trial courts address motions to
change venue at the voir dire stage is apparent in Blom, i.e., the District Court has the authority
to alter the scope of the venire from which jurors are selected, as well as, take other steps to
ameliorate the prejudicial effects of a significant amount of pretrial publicity. The Court notes
that in Skilling, the United States Supreme Court found that the 4.5 million resident population
of Houston rendered the suggestion that a fair and impartial jury of twelve to decide a case
involving a former Enron executive was a suggestion that was hard to sustain. Skilling, 561 U.S.
at 382. Similarly, in United States v. Tsarnaev, the District Court of Massachusetts found that the
approximately 5 million resident population of that District weighed in favor of a finding that the
extensive pretrial publicity concerning the Boston Marathon bomber would not prevent a fair and
impartial jury from being empaneled. Id., No. CRIM. 13-10200-GAO, 2014 WL 4823882, at *2
(D. Mass. Sept. 24, 2014). The Court takes judicial notice that the entire State of Minnesota,
from which the Court could order the jury selected, as was done in Blom, had an estimated
population of over 5 million in 2015.23 As such, the size and characteristics of the community
factor weighs in favor of denying the motion for a change of venue in the present case.
2. Nature of the publicity
The Courts review of the sampling of media coverage submitted by Defendant indicates
that most of the publicity is focused on the Wetterling abduction, which is not at issue in the
child pornography charges with which Defendant has been indicted in the present case. In fact,
23
Available at https://www.census.gov/quickfacts/table/PST045215/27. Fed. R. Civ. 201(b).
51
the Courts review of the submitted excerpts of media coverage finds little to materially
distinguish this case from the pretrial publicity at issue in Blom. The Court concludes that the
pretrial publicity has not rendered the atmosphere surrounding the proceedings in the present one
completely corrupted by the press coverage. Accordingly, this factor too weighs in favor of
denying the present motion. See Blom, 242 F.3d at 804.
3. Intervening time period
It is common sense that the greater the amount of time that has passed between the basis
for the publicity and the trial, the less risk there is of prejudice. In the present case, the
underlying events that the publicity in this case has primarily been focused upon (i.e., the JNS
assault and the Wetterling abduction) are ones that occurred more than twenty-five years ago.
Due to the passage of time, there is at least one whole generation of potential jurors for whom
the media statements about which Defendant is most concerned, i.e., that he is a person of
interest in the Wetterling abduction, may have little significant meaning. Therefore, the Court
concludes that, in light of the particular circumstances of this case, the procedures laid out in
Blom provide adequate safeguards such that the Court would not be required to presume that a
panel of twelve impartial jurors could not be empaneled in the present case.
In sum, Defendant has not carried his burden to prove that the pretrial publicity
concerning the present case has been so extensive and corrupting so as to create a presumption of
inherent prejudice.
Accordingly, the Court recommends DENYING Defendants Motion to Transfer Venue,
[Docket No. 43], without prejudice.
52
V.
CONCLUSION
Based on the foregoing and all the files, records, and proceedings herein, IT IS
HEREBY RECOMMENDED that:

1.
Defendants Motion to Suppress Fruits of Unlawful Search and Seizure, [Docket No.
34], be DENIED, as discussed above;
2. Defendant Motion to Suppress Statements, [Docket No. 37], be DENIED, as discussed

above; and,
3.
Defendants Motion for a Change of Venue, [Docket No. 43], be DENIED without
prejudice, as discussed above.
Dated: June 21, 2016
/s/ Leo I. Brisbois

Leo I. Brisbois
U.S. MAGISTRATE JUDGE
NOTICE
Filing Objections: This Report and Recommendation is not an order or judgment of the District
Court and is therefore not appealable directly to the Eighth Circuit Court of Appeals.
Under Local Rule 72.2(b)(1), A party may file and serve specific written objections to a
magistrate judges proposed findings and recommendation within 14 days after being served
with a copy of the recommended disposition[.] A party may respond to those objections within
14 days after being served a copy of the objections. LR 72.2(b)(2). All objections and responses
must comply with the word or line limits set forth in LR 72.2(c).
Under Advisement Date: This Report and Recommendation will be considered under
advisement 14 days from the date of its filing. If timely objections are filed, this Report and
Recommendation will be considered under advisement from the earlier of: (1) 14 days after the
objections are filed; or (2) from the date a timely response is filed.
53

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UNITED STATES DISTRICT COURT

Court File No. 15-cr-340 (JRT/LIB) (1)

REPORT AND RECOMMENDATION

Danny James Heinrich,

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material, in violation of 18 U.S.C. 2252A(a)(5)(B), 2252A(b)(2), and 2256(8)(A); five counts

DEFENDANTS MOTION TO SUPPRESS FRUITS OF UNLAWFUL SEARCH

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b. Connection to previous incidents, abductions, and sexual assault

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DEFENDANTS MOTION TO SUPPRESS STATEMENTS. [DOCKET NO. 37].

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enforcement vehicles around the residence. (Id. at 11:28:42 a.m.).

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The Eighth Circuit has explained:

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a. Knowledge that encounter was voluntary

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f. Arrested at the end of the encounter

DEFENDANTS MOTION FOR A CHANGE OF VENUE. [Docket No. 43].

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However, in cases in which the pretrial publicity is so extensive and inflammatory as to

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