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Air force chaplain child predator apprehended lawfully

Facts

A detective with the San Antonio Police Department’s Human Exploitation Unit conducted undercover operations via the online social media platform MocoSpace, to catch child predators. In November 2020, the detective set up an online profile using the undercover persona of a 16-year- old girl named “Amandpand.” On November 10, 2020, Amandpand entered the “Near Me” forum, where a user named “Jannie6,” whose profile indicated he was a 41-year-old man, began chatting with her.

Amandpand made clear she was 16 years of age and in the process of gender transitioning. After a brief interaction, Amandpand moved the conversation to direct messaging on MocoSpace. The conversation became sexual in nature, and Jannie6 confirmed he was 41 years old and in the Army. Jannie6 eventually provided a cell phone number to move their conversation from MocoSpace to text messaging. At this point, Detective Daniel Moynihan took over the case and assumed the persona of Amandpand in the text message conversation.

Jannie6 and Amandpand texted one another over the course of two days discussing sex acts, and Jannie6 eventually sent sexually explicit messages, pictures, and videos, including one in an office of him masturbating while wearing a military uniform. Throughout their exchange, Jannie6 occasionally expressed fears of “getting caught” but never stopped messaging Amandpand. The two eventually agreed to meet on November 12, 2020. Meanwhile, law enforcement attempted to ascertain the identity of Jannie6 through the phone number he provided to Amandpand. A “Whitepages Lookup” associated the phone number with Christopher William Durand. An internet search of “christopher durand army” returned a LinkedIn profile with a photograph, showing a bald, younger individual. This photograph was provided to detectives as the possible picture of Jannie6. At the time, Detective Moynihan believed the man in the picture to be Jannie6. However, the detective was aware of texting applications that allow users to text anonymously through a phone number assigned by the application.

Law enforcement planned an operation to be carried out at the meeting location on the day and around the time of the planned meeting. Based on the messages between Jannie6 and Amandpand, as well as the photograph and video sent by Jannie6, detectives knew the following about Jannie6: he was a 41-year-old, white man in the military, he was six feet tall, he drove a Honda SUV, and lived near “Braun and 1604.” At the appointed time, a Honda SUV driven by a white man in military uniform entered the parking lot where the two were to meet, moved around the parking lot multiple times without exiting the vehicle, and then left the parking lot.

Driving separately, Detective Richard Jaimes and Detective Michael Castano followed the vehicle out of the parking lot. Based on the meeting location, arrangement to have unlawful sex with a minor, and various descriptors of the driver, an officer conducted a traffic stop on the Honda SUV. Detectives Jaimes and Castano arrived right after. The man in the Honda was defendant Jesse McKee Howard, an active-duty Air Force chaplain. When Howard was pulled over, he texted Amandpand less than a minute later, saying that he had been pulled over for speeding and telling her not to wait up. He then cleared his MocoSpace conversations, including the one he had with Amandpand. Soon after, officers approached the vehicle, removed Howard, handcuffed him and placed him in the backseat of a patrol car, and seized a cell phone in plain view after learning that Howard texted Amandpand that he had been stopped for speeding.

Detective Moynihan attempted to call the number for Jannie6, but the seized phone did not ring, light up, or display any notifications. Detective Castano began asking Howard what he was up to in the parking lot while officers searched Howard’s car for a second phone, and Howard said that he had been on his way to eat at a nearby taqueria. Detective Jaimes asked Howard if he had a second phone, which he denied. Detective Moynihan finally arrived on the scene about 15 minutes after the stop and read Howard his Miranda warnings. Howard waived his rights and agreed to speak with Moynihan, where he admitted that he was texting and about to meet with an underage person, that he was Jannie6 on MocoSpace, and that he used a spoofing application to text Amandpand from an anonymized cell number. Officers obtained a warrant to search Howard’s phone, and Howard was charged with one count of attempted coercion and
enticement of a minor.

Howard sought to suppress evidence obtained from his SUV, claiming officers lacked probable cause to stop and search his vehicle. The district court held a hearing and denied his motions. He was convicted and the 5th affirmed.

Analysis

A. Reasonable suspicion for traffic stop

To evaluate whether a Fourth Amendment violation occurred during a traffic stop, this court first asks, whether the officer’s action was justified at its inception, and then, whether the officer’s subsequent actions were reasonably related in scope to the circumstances that justified the stop. Here, Howard challenges only the first Terry prong.

The traffic stop of Howard’s vehicle was justified at its inception because the detectives had an objectively reasonable suspicion that Howard was the individual with the online username Jannie6. Detectives knew that Jannie6 was an adult engaged in the illegal activity of communicating in a sexually explicit manner with someone whom he believed to be a minor, distributing sexually explicit material to the alleged minor, and attempting to meet the alleged minor for sex. And detectives knew that Jannie6 was a 41-year-old, white male in the military that drove a Honda SUV. Detectives observed Howard, a white male in military apparel, enter the parking lot, driving a Honda SUV, which he moved around the parking lot in a peculiar manner. Because Howard was the only person in the parking lot for the proposed meeting location at the proposed meeting time that met the known characteristics of Jannie6, detectives had an objectively reasonable suspicion that Howard was Jannie6, even if the officers’ earlier “White Pages Lookup” search depicted someone else. The traffic stop was justified at its inception.

B. Probable cause for arrest

Here, probable cause existed for Howard’s arrest as soon as the officer pulled him over and obtained his driver’s license. Howard’s driver’s license featured an address in the area where Jannie6 told the alleged minor that he lived and confirmed that Howard was Jannie6’s age. Further confirmation: right after Howard was pulled over, Jannie6 sent the alleged minor a text stating that he had been pulled over and Jannie6’s profile was deleted from MocoSpace. These facts and circumstances are enough for a reasonable person to conclude that Howard was Jannie6. Any subsequent uncertainty by detectives that Howard was Jannie6 does not change that probable cause existed for Howard’s warrantless arrest.

C. Vehicle search

Pursuant to the automobile exception to the warrant requirement, warrantless searches of automobiles are permitted by the Fourth Amendment if the officers have probable cause to believe that the vehicle contains contraband or other evidence of a crime. See McSween. The warrantless search of Howard’s vehicle was justified pursuant to the automobile exception to the warrant requirement because detectives had probable cause to believe that his vehicle contained evidence of a crime. Because Jannie6 communicated via text message with the alleged minor, detectives knew that Jannie6 was communicating via cell phone. Thus, the cell phone was evidence of the attempted enticement of a minor to engage in sexual activity and contained further evidence of such. Because Jannie6 sent the alleged minor a text stating that he had been pulled over, detectives had probable cause to believe that the cell phone was in Howard’s vehicle. Therefore, the detectives lawfully searched Howard’s vehicle.

D. Seizure of cell phone

Detectives legally seized Howard’s cell phone pursuant to the plain view doctrine. See SCOTUS Arizona v. Hicks, 480 U.S. 321 (1987). First, a detective was able to see Howard’s cell phone as soon as he walked up to Howard’s vehicle, without entering the vehicle. Second, the incriminating nature of the cell phone was immediately apparent because detectives were looking for a cell phone that was evidence of a crime and contained further evidence of a crime. Third, the detectives had a lawful right of access to the cell phone through the automobile exception to the warrant requirement. Therefore, the detectives were able to seize Howard’s cell phone without a warrant.

 

https://www.ca5.uscourts.gov/opinions/unpub/23/23-50417.0.pdf