United States v. Johnathan Mason

• Court: Court of Appeals for the Sixth Circuit
• Decided: December 1, 2021
• Docket: 21-5384
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 21a0552n.06

Case No. 21-5384

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

FILED ) Dec 01, 2021 UNITED STATES OF AMERICA, DEBORAH S. HUNT, Clerk ) ) Plaintiff-Appellee, ) ON APPEAL FROM THE UNITED ) STATES DISTRICT COURT FOR v. ) THE EASTERN DISTRICT OF ) KENTUCKY JOHNATHAN SCOTT MASON, ) ) Defendant-Appellant. )

Before: SUTTON, Chief Judge; STRANCH and BUSH, Circuit Judges.

SUTTON, Chief Judge. Johnathan Mason challenges the district court’s denial of his

motion to suppress evidence, arguing that law enforcement officers violated the Fourth

Amendment when they entered an apartment and seized his cell phone without a warrant. Mason

also contests the length of his sentence. Because he offers no convincing reason for disturbing the

district court’s decision to deny his motion or to sentence him within the guidelines, we affirm.

I.

The Department of Homeland Security sent Craig Miller, a member of the Kentucky State

Police, a referral on March 24, 2020, flagging that a user of two social media applications had

expressed sexual interest in children over the preceding two months. The user wrote online that

he made “content” of his seven-year-old and ten-year-old stepdaughters, that he had images of the

older child—whom he would “mess” with in her sleep—with her hands down her pants, and that Case No. 21-5384, United States v. Mason

he had uploaded content to a file hosting site. R.58 at 8, 10–11. One of the applications disclosed

that the account holder used a cell phone to access the application and registered with an e-mail

address bearing Johnathan Mason’s name.

Officer Miller’s investigation of the content on the file hosting site revealed images of the

older child asleep with her hand down her pants along with images of other children, including

some of a younger child naked from the waist down. Officer Miller identified the mother of the

children using information shared by the user on the file hosting site. The mother’s Facebook page

suggested that she and Mason were in a romantic relationship.

Concerned for the children’s welfare, Miller and another officer visited the mother’s

residence on March 25. After the officers explained the reason for their visit, she said she would

not be surprised if Mason took and shared images of her children. She explained that she found

Mason transferring pictures from her computer to his phone the week before and that he would not

let her see the phone when she asked if the pictures portrayed her daughters. After asking Mason

to clear his phone of any such images, she asked him to move out, ending their relationship. The

woman directed the officers to the apartment complex where Mason moved and gave them a

description of Mason’s vehicle.

The officers located a vehicle matching that description in front of an apartment at the

complex. They decided to conduct a knock-and-talk encounter. After a female occupant answered

the door, Officer Miller identified himself, explained the purpose of his visit, and asked for Mason.

The woman said that she did not live at the apartment and would get someone who could make

decisions. She called a man to the door. Officer Miller again explained the purpose of his visit.

The man confirmed Mason’s presence in the apartment and became angry. He invited the officers

to enter the apartment and to “get [Mason] out.” Id. at 29. The man walked to a closed door in

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the apartment, jerked it open, and began yelling at Mason, who lay asleep in the room, to “get out

of here.” Id. at 30. The man entered the room and invited Officer Miller to do the same. Officer

Miller asked Mason to accompany him outside. Mason complied.

Once outside the apartment, Officer Miller asked Mason about the location of his shoes

and phone. Mason said they were in the apartment. The male occupant overheard the conversation

and invited Officer Miller back inside. Mason did not object to Officer Miller reentering the

apartment. The male occupant pointed out Mason’s phone. Officer Miller retrieved the phone and

shoes and exited the apartment.

Back outside, the officers asked if Mason wanted to speak to them about the social media

accounts. Officer Miller also asked for the passcode to Mason’s phone so that Miller could “put

his phone in airplane mode.” Id. at 30–31. Mason had an “emotional response” to the officers’

explanation for their visit and offered to put the passcode in the phone himself. Id. at 32–33. He

also asked if he could wipe the contents of his phone, expressed that he wanted “this to go away,”

and said that he did not want to talk to the officers until he got an attorney. Id. at 50. Officer

Miller declined to let Mason wipe the phone, and the officers left with the phone in tow. They did

not search it until they obtained a warrant. Their search revealed 2,300 files of child pornography,

including “lascivious exhibition[s] of the pubic area” of the ten-year-old daughter of Mason’s ex-

girlfriend. R.37 at 4; R.58 at 67–70.

A grand jury indicted Mason for inducing a minor to engage in sexually explicit conduct

for the purpose of producing visual depictions of that conduct. See 18 U.S.C. § 2251(a). Mason

pleaded not guilty and moved unsuccessfully to suppress the evidence gathered from his cell

phone. He entered a conditional plea agreement, preserving his right to appeal the district court’s

3 Case No. 21-5384, United States v. Mason

denial of his motion to suppress and the length of his sentence. The district court sentenced him

to 360 months.

II.

Motion to suppress. Mason maintains that the district court should have suppressed the

evidence from his cell phone because the officers violated the Fourth Amendment by entering the

apartment and by seizing his phone without a warrant. We disagree. The officers cleared the

relevant Fourth Amendment hurdles at each step of the way.

Start with the first entry. Law enforcement officers do not need a warrant when they enter

a home with the consent of an individual who has apparent authority to admit them. Illinois v.

Rodriguez, 497 U.S. 177, 188–89 (1990); see Smith v. City of Wyoming, 821 F.3d 697, 709 (6th

Cir. 2016). Apparent authority exists if the facts available at the time of entry support a reasonable

officer’s belief that the consenting individual has authority over the premises. Rodriguez, 497 U.S.

at 188. A co-occupant’s authority to consent to a search of shared premises rests on the “mutual

use of the property by persons generally having joint access or control for most purposes,” such

that others assume “the risk that one of their number might permit the common area to be

searched.” United States v. Matlock, 415 U.S. 164, 171 n.7 (1974).

The officers obtained voluntary consent to enter from a male occupant of the apartment,

and they reasonably believed that the man had authority over the entire premises. As for consent,

the man invited the officers to enter the apartment for the purpose of removing Mason from it and

proceeded to yell at Mason to leave. As for apparent authority, the woman who answered the door

told the officers she did not have authority to answer their questions and said she would get

someone who did. She called the male occupant to the door, suggesting that he had authority. By

inviting the officers inside, by leading Officer Miller to the room where Mason slept, and by

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opening the door to Mason’s room, the man demonstrated apparent authority over the premises.

See Georgia v. Randolph, 547 U.S. 103, 111–12 (2006). That Officer Miller then witnessed the

man freely enter Mason’s room and demand that Mason leave—and that Mason complied without

any hint of objection—confirmed the man’s apparent authority over the entire apartment, including

Mason’s room. See Matlock, 415 U.S. at 171 n.7.

Move to Officer Miller’s second entry. After going outside, Mason told the officer that his

shoes and phone were still in the apartment. Overhearing this, the male occupant invited Officer

Miller back inside and pointed out the location of Mason’s phone. All the while, Mason never

objected to the male occupant’s invitation. Under these circumstances, Officer Miller reasonably

believed that the man had authority over the property and relied on his voluntary consent in

entering the apartment for the limited purpose of retrieving Mason’s belongings.

Turn to Officer Miller’s decision to grab Mason’s cell phone. Officers may temporarily

seize personal property for investigation without a warrant when they have reasonable suspicion

that the property contains evidence of a crime. United States v. Avery, 137 F.3d 343, 349 (6th Cir.

1997). The officer had an objective and particularized basis for reasonably suspecting that

Mason’s cell phone contained evidence of child pornography. Look at the totality of the

circumstances: Officer Miller’s investigation indicated that Mason accessed social media accounts

using a cell phone to traffic in child pornography over the preceding two months, Mason’s ex-

girlfriend said she would not be surprised if Mason operated the accounts, and she recently found

Mason transferring data from her computer to his phone, which he then refused to show her. On

this record, Officer Miller permissibly seized the cell phone for temporary investigation. See id.

What of the officers’ decision to take Mason’s phone with them when they left the scene?

If officers develop probable cause to believe that property contains evidence of a crime, they may

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seize the property “pending issuance of a warrant to examine its contents, if the exigencies of the

circumstances demand it.” United States v. Place, 462 U.S. 696, 701 (1983). Such circumstances

exist “when there is an urgent need to prevent evidence from being lost or destroyed,” United

States v. Sangineto-Miranda, 859 F.2d 1501, 1511 (6th Cir. 1988), and Mason does not dispute

that the “government’s significant interest in curbing the spread of child pornography” outweighs

his individual possessory interest here, United States v. Bradley, 488 F. App’x 99, 105 (6th Cir.

2012). After Mason exhibited an “emotional response” to the officer’s allegations, expressed that

he just wanted “this to go away,” and asked if he could wipe the phone’s contents, R.58 at 33, 50,

the officers’ reasonable suspicion ripened into probable cause that the phone contained child

pornography. At that point, Officer Miller justifiably seized the cell phone because Mason’s

actions created the imperative of preventing the destruction of evidence and of retaining custody

of the phone until a magistrate issued a warrant to search it. Sangineto-Miranda, 859 F.2d at 1511–

12; see Bradley, 488 F. App’x at 103.

Mason’s counterarguments fall short. He maintains that the male occupant’s invitation to

the officers to enter Mason’s room did not diminish his expectation of privacy there. But the

question is not whether Mason had a reasonable expectation of privacy in the room. The question

is whether Officer Miller reasonably relied on the male occupant’s consent and apparent authority

in entering the room. See Smith, 821 F.3d at 709. He did. The man’s actions suggested that he

had “joint access or control” of the room for most purposes. See Matlock, 415 U.S. at 171 n.7. He

opened the door and “made no indication that [he] was restricted in any way from entering the

bedroom” or demanding that Mason leave it. See United States v. Cork, 18 F. App’x 376, 383 (6th

Cir. 2001) (per curiam). Mason did not register any objection to the male occupant’s actions and

left the apartment. Officer Miller acted reasonably.

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Mason insists that Officer Miller lacked reasonable suspicion to seize the cell phone

because Mason’s ex-girlfriend told the officers that she asked Mason to wipe his phone’s contents

the week before. But Mason’s ex-girlfriend also stated that Mason would not let her see his phone,

and a reasonable officer could doubt that Mason complied with her request that he wipe its

contents. The officers reasonably suspected that Mason’s cell phone contained evidence of

criminal activity based on specific information that he trafficked in child pornography using social

media applications on a cell phone over the preceding two months.

Even if exigent circumstances allowed the officers to seize his phone after he requested to

wipe its contents, Mason maintains that the officers manufactured the exigent circumstances by

unlawfully entering the apartment and taking the phone in the first place. As noted, however, valid

consent and reasonable suspicion justified the officers’ entries into the apartment and their initial

seizure of Mason’s phone. When police do not create an exigency by engaging in conduct that

violates the Fourth Amendment, they can seize property without a warrant to prevent the

destruction of evidence. See Kentucky v. King, 563 U.S. 452, 462 (2011). No Fourth Amendment

violation occurred.

Substantive reasonableness. Mason challenges the length of his 30-year sentence. We

give substantial deference to the district court’s decision on this score. United States v. Rayyan,

885 F.3d 436, 442 (6th Cir. 2018). And because we presume the reasonableness of a sentence

within the guidelines range, Mason “bears a heavy burden” in persuading us to second-guess the

district court’s judgment. United States v. Cunningham, 669 F.3d 723, 733 (6th Cir. 2012).

The district court reasonably sentenced Mason at the top of his guidelines range. It

acknowledged that Mason “has suffered greatly in his own life.” R.59 at 30. But the court

emphasized the seriousness of Mason’s child pornography offense and his “vicious and persistent

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victimization” of his ex-girlfriend’s young children “for the purpose of sexual gratification” and

“inflicting pain on them.” Id. at 31. The court reasoned that Mason’s significant and “disturbing”

criminal history showed a “pattern of menacing, vindictive conduct,” all portraying a man from

whom the public needs protection. Id. at 31–32. After considering “all of the factors” required by

18 U.S.C. § 3553(a), the court concluded that a within-guidelines 360-month sentence fairly served

the purposes of punishment. Id. at 32.

Mason resists this conclusion, arguing that the district court placed too much emphasis on

some sentencing factors and gave short shrift to others. He points to his mental health and

substance abuse problems as well as his remorse, and he adds that his criminal conduct did not

involve physically touching his victims. But the court acknowledged these arguments at

sentencing, even saying they were “salient.” Id. at 31. A district court may place greater weight

on some sentencing factors than on others, and “the manner in which a district court chooses to

balance the applicable sentencing factors” generally is “beyond the scope” of our review. United

States v. Adkins, 729 F.3d 559, 571 (6th Cir. 2013). All in all, the district court considered the

relevant sentencing factors, balanced them, and imposed a reasonable sentence.

We affirm.