United States v. Paul Osterman

119 F.4th 1090

• Court: Court of Appeals for the Seventh Circuit
• Decided: August 1, 2024
• Docket: 22-2773
• Status: Published

Opinion

In the

United States Court of Appeals For the Seventh Circuit ____________________ No. 22-2773 UNITED STATES OF AMERICA, Plaintiff-Appellee, v.

PAUL S. OSTERMAN, Defendant-Appellant. ____________________

Appeal from the United States District Court for the Eastern District of Wisconsin, No. 1:21-cr-110 — William C. Griesbach, Judge. ____________________

ARGUED NOVEMBER 29, 2023 — DECIDED AUGUST 1, 2024 ____________________

Before RIPPLE, SCUDDER, JACKSON-AKIWUMI, Circuit Judges. JACKSON-AKIWUMI, Circuit Judge. A detective in Oneida County, Wisconsin, applied for a warrant so he could place a GPS tracker on Paul Osterman’s truck. After monitoring the truck—a search within the meaning of the Fourth Amend- ment—authorities prosecuted Osterman for sex trafficking a child. Osterman later learned that some information the de- tective included in the affidavit seeking the warrant was in- correct. To Osterman, this meant the affidavit failed to 2 No. 22-2773

establish probable cause for the search, so he asked the district court to suppress the fruits of the search. After an evidentiary hearing, the district court held that the affidavit established probable cause despite its inaccura- cies. The court therefore denied Osterman’s motion to sup- press, and Osterman appeals. We agree with Osterman that the detective acted recklessly when he failed to correct the af- fidavit. But we have taken an independent look at the affida- vit, as we must, and we conclude that it establishes probable cause even without the misstatements. For that reason, we are compelled to affirm. I MeetMe.com is an online-dating website. When the web- site’s administrators suspect that MeetMe users are targeting children for sexual exploitation, the administrators must file a “CyberTip” with the National Center for Missing and Ex- ploited Children. Frequently Asked Questions, NAT’L CTR. FOR MISSING AND EXPLOITED CHILDREN, https://re- port.cybertip.org/faqs (last visited July 17, 2024). The center manages a centralized system for reporting online child ex- ploitation, and when a CyberTip involves a child in immedi- ate or impending harm, it forwards the tip to law enforcement for investigation. Id. In this case, Detective Chad Wanta of the Oneida County Sheriff’s Office received eight CyberTips. The tips reported strikingly similar instances of misconduct on MeetMe.com between January 2018 and December 2019. All the users had MeetMe usernames beginning with the letter J, including var- iations of “Jared,” “Jones,” and “Jacob.” In addition, each user sent messages on the website looking for “a much younger No. 22-2773 3

girl” and offering money to meet with one for sexual encoun- ters. The CyberTips further disclosed that all but one of the messages originated from MeetMe users who used wireless internet signals hosted by companies in Rhinelander, Wiscon- sin. Specifically, two tips noted the user accessed publicly available wi-fi provided by a McDonalds at 25 S. Stevens Street. Three tips reported the user accessed public wi-fi of- fered by a laundromat called Modes, Machines & More LLC, at 2100 Lincoln Street. And two other tips explained the user accessed a private wi-fi network hosted by Northwoods Com- munications Technologies LLC (now “Northwoods Connect – High Speed Internet”), an internet provider then located at 2151 N. Chippewa Drive. In sum, seven of the eight CyberTips Detective Wanta re- ceived involved similar usernames, sexual propositions, loca- tions, and wi-fi access. The eighth tip was different, but not by much: it linked the suspect to a wi-fi hotspot not in Rhine- lander, Wisconsin, but in Hillside, Illinois. After receiving the CyberTips, Detective Wanta launched an investigation. He targeted the Rhinelander companies listed in the tips. Hoping to identify the MeetMe user who ac- cessed Northwoods Communications’ private wi-fi network, Detective Wanta interviewed the owner and operator of Northwoods Communications: Osterman. Osterman told De- tective Wanta it was impossible to identify the user by the IP address provided in the CyberTip because the IP address could have been used by any one of his company’s 400 cus- tomers. 4 No. 22-2773

Undeterred, Detective Wanta shifted his focus to a MeetMe user who called himself Brad Jones. The relevant CyberTip detailed an instant message exchange between Jones and a child that occurred on July 4, 2019. Near the be- ginning of the exchange, Jones apparently thought the person was older and offered her money to help locate a younger girl. But later, Jones realized he was talking to a twelve-year-old girl who lived in Chicago, Illinois. He told the girl he would drive from Wisconsin to Chicago that night so they could meet. Here we pause to introduce two facts not in the affidavit. First, Detective Wanta’s investigation revealed that Jones ac- cessed three publicly available wi-fi hotspots: one in Antigo, Wisconsin, a second in Gurnee, Illinois, and a third in Chi- cago. And second, authorities later learned from the child vic- tim that when Jones reached Chicago on July 4, he paid her twenty-five dollars in exchange for sex. The CyberTip noted that Jones traveled the next day, on July 5, to Hillside, Illinois, where he connected to a public wi-fi hotspot hosted by a Hol- iday Inn. Law enforcement later subpoenaed the Holiday Inn for a list of guests who stayed in the hotel on July 5. Osterman was among them. By this point in the investigation, Osterman’s profile had popped up twice: at the Hillside Holiday Inn and in relation to Northwoods Communications. But his connection to the investigation did not end there. A few months after the Jones incident, someone called the Rhinelander Police Department to report a suspicious man who allegedly had been sitting in a black pickup truck for several hours. Officers who arrived on the scene discovered Osterman sitting in the truck using two tablets and a cell phone within wi-fi range of Modes, No. 22-2773 5

Machines & More LLC—the same laundromat whose wi-fi had been accessed by a MeetMe user in the CyberTips. When the officers spoke with Osterman, he told them he owned an internet company and was testing his competitor’s internet speed. Believing these connections to be more than coincidence, Detective Wanta secured a search warrant to track Oster- man’s truck by GPS. The GPS data showed Osterman’s truck was parked for several hours on different days at the McDon- alds and laundromat described in the CyberTips. The data also showed the truck was parked around other public wi-fi locations in northern Wisconsin during the investigation. These discoveries aided the investigation, but the inaccu- racies in the affidavit Detective Wanta submitted to secure the warrant did not. In one paragraph, he wrongly suggested that Jones had messaged the underaged girl through the Hillside Holiday Inn’s wi-fi on July 4. In reality, no part of the conver- sation took place through the hotel's wi-fi; instead, Jones merely connected to it on July 5, not July 4. In another para- graph, he wrote that a suspect accessed a wi-fi hotspot owned by the Rhinelander McDonalds, even though the user ac- cessed a hotspot in Texas. Detective Wanta discovered the Texas error after he submitted the affidavit the first time, but he failed to fix the error despite having an opportunity to do so before each of the three times he renewed the warrant. These discrepancies led Osterman to file a motion to sup- press after a grand jury indicted him on three charges: one count of sex trafficking a child in violation of 18 U.S.C. §§ 1591(a)(1), (b)(1), and (c); one count of using a computer to persuade and induce/entice a minor to engage in unlawful sexual activity in violation of 18 U.S.C. § 2422(b); and one 6 No. 22-2773

count of travel with intent to engage in illicit sexual activity with a minor in violation of 18 U.S.C. § 2423(b). The district court held a Franks hearing on Osterman’s mo- tion to suppress. See Franks v. Delaware, 438 U.S. 154 (1978). Detective Wanta appeared as the sole witness. He testified about the Jones investigation and admitted that his affidavit contained errors. When asked about the paragraph describing how Jones sent messages through the Hillside Holiday Inn’s wi-fi on July 4, 2019, Detective Wanta admitted that infor- mation was incorrect because Jones merely accessed the ho- tel’s wi-fi the next day, on July 5. The more accurate account, he agreed, was that Jones started messaging on July 4, but from a hotspot in Antigo, Wisconsin. The mix-up was inad- vertent, Detective Wanta testified. Before receiving the CyberTips, another agent told him Jones communicated with the minor victim through wi-fi signals hosted by the Hillside Holiday Inn. In addition, the CyberTips contained multiple files but Detective Wanta did not look at every single file be- cause, as a Wisconsin officer, he did not expect to investigate a Chicago-area incident. In the end, Detective Wanta con- ceded that he could have caught the error in the date had he reviewed his records more thoroughly. The same was true for the geographical error. Detective Wanta testified that, after submitting the affidavit, he learned one of the MeetMe users linked to Rhinelander had been op- erating out of Texas all along. Instead of fixing the affidavit, however, he used it—unrevised—to renew the warrant three times. Detective Wanta maintained that he never intention- ally lied to or misled anyone. After the Franks hearing, the district court denied Oster- man’s motion to suppress. In its ruling, the court credited No. 22-2773 7

Detective Wanta’s testimony and accepted the detective’s as- sertion that the misstatements found their way into the affi- davit by mistake. The court also weaved certain facts together into a hypothetical affidavit to determine whether probable cause existed, and the court concluded it did. After losing the suppression battle, Osterman pled guilty to child sex traffick- ing and received a sentence of 300 month’s imprisonment. II “There is . . . a presumption of validity with respect to the affidavit supporting the search warrant.” Franks, 438 U.S. at 171. But a defendant may overcome this presumption if the defendant can prove a Franks violation occurred. See United States v. Edwards, 34 F.4th 570, 580 (7th Cir. 2022). A Franks violation is established “when the defendant shows by a pre- ponderance of the evidence that (1) the affidavit in support of the warrant contains false statements or misleading omis- sions, (2) the false statements or omissions were made delib- erately or with reckless disregard for the truth, and (3) prob- able cause would not have existed without the false state- ments and/or omissions.” United States v. Williams, 718 F.3d 644, 647-48 (7th Cir. 2013) (citing Franks, 438 U.S. at 155-56). When we are asked to review a district court’s factual find- ings in the above inquiry, including findings related to delib- erate or reckless disregard for the truth, we evaluate the find- ings for clear error. See United States v. Spears, 673 F.3d 598, 604 (7th Cir. 2012). The factual findings will stand unless we are “left with the definite and firm conviction that a mistake has been committed.” Williams, 718 F.3d at 649 (quoting United States v. Sauerwein, 5 F.3d 275, 278 (7th Cir. 1993)). By contrast, we undertake de novo review of legal determina- tions, which includes the question of whether an affidavit 8 No. 22-2773

establishes probable cause without the false statements or omissions. Id. at 649. The parties do not dispute that the affidavit in this case contained false statements. So our inquiry focuses on the sec- ond and third elements necessary to prove a Franks violation. To prove such a violation, and to prevail on his suppression motion by extension, Osterman must demonstrate that Detec- tive Wanta knowingly, intentionally, or recklessly made false statements in the warrant affidavit. See United States v. Norris, 640 F.3d 295, 300-01 (7th Cir. 2011). But that is not all. Oster- man also must demonstrate that the false statements are ma- terial. Id. at 301. As for the second Franks element, we conclude that Detec- tive Wanta knowingly, intentionally, or recklessly left false in- formation in the warrant affidavit. The district court found the opposite: it held that Detective Wanta “did not know- ingly, intentionally, or with reckless disregard for the truth, include a false statement in his search warrant affidavit.” On the record before us, this factual finding amounts to clear er- ror because it is evident Detective Wanta acted recklessly in drafting the warrant affidavit. He admitted that the para- graph mistaking the suspect’s location for Rhinelander in- stead of Texas could have been corrected since he had the ac- curate information before renewing the warrant. When an of- ficer continues a course despite having “serious doubts as to the truth” or “obvious reasons to doubt” the accuracy of his assertions, that is a reckless disregard for the truth. Betker v. Gomez, 692 F.3d 854, 860 (7th Cir. 2012) (internal citations omitted). There is no question that Detective Wanta’s conduct falls into this category. No. 22-2773 9

As for the third Franks element, our inquiry is whether the inaccuracies in the affidavit are material to the probable cause finding. If they are, as Osterman insists, his suppression mo- tion should have been granted; if they are not, the district court was right to deny the suppression motion. Although we consider this question of materiality afresh in our de novo re- view and therefore give no weight to the district court’s anal- ysis, we treat the analysis of the judge who issued the warrant quite differently. See United States v. Taylor, 63 F.4th 637, 651- 52 (7th Cir. 2023). We pay “great deference to the issuing judge’s finding of probable cause.” Id. at 652 (quoting United States v. McIntire, 516 F.3d 576, 578 (7th Cir. 2008)) (internal citations omitted). And we are mindful that “the task of the issuing judge is simply to make a practical, commonsense de- cision whether, given all the circumstances set forth in the af- fidavit before him,” the issuing judge believes “there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Id. at 651 (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)) (internal citations omitted). At the end of the day, we will not disturb the issuing judge’s proba- ble cause determination so long as the affidavit establishes probable cause after we “eliminate the alleged false state- ments [and] incorporate any allegedly omitted facts.” Betker, 692 F.3d at 862. The resulting hypothetical affidavit then be- comes the object of our probable cause analysis. Id. When we eliminate the false statements and add in the omitted facts to which Osterman has drawn our attention, the hypothetical affidavit still establishes probable cause. The hy- pothetical affidavit identifies Osterman not only as a resident of Rhinelander, Wisconsin, but also as the owner of North- woods Connect, a Rhinelander company that was used mul- tiple times by the MeetMe users suspected of targeting 10 No. 22-2773

children for sexual exploitation. The hypothetical affidavit also notes that Detective Wanta interviewed Osterman in con- nection with the investigation since he owned the company. From there, the affidavit goes on to explain that Rhinelander police officers investigated a suspicious man who had been sitting in his vehicle for hours. The man of course turned out to be Osterman, who was sitting in his vehicle using two tab- lets and a cell phone within wi-fi range of one of the establish- ments referenced in the CyberTips. And perhaps most damn- ing of all, Osterman stayed at the Hillside Holiday Inn on July 5—the same day that Jones, a MeetMe user known to have contacted a child to arrange a sexual encounter the day before, accessed the hotel’s wi-fi. This information is enough to support a probable cause finding. It is true that correcting the geographical error could have suggested there was more than one suspect. But the judge issuing the warrant did not have to be certain Osterman was the only suspect; the judge only needed enough infor- mation to formulate a substantial belief that Osterman had committed a crime and evidence of the crime would be found by monitoring his truck. See United States v. Parra, 402 F.3d 752, 764 (7th Cir. 2005) (“So long as the totality of the circum- stances, viewed in a common sense manner, reveals a proba- bility or substantial chance of criminal activity on the sus- pect’s part, probable cause exists.” (internal citation omitted)). The affidavit provided at least that information if not more absent its misstatements, thereby establishing probable cause. See Betker, 692 F.3d at 862. Thus, although we agree with Osterman that Detective Wanta acted recklessly when he failed to update the warrant affidavit, suppression of the fruits of the GPS search remains No. 22-2773 11

beyond reach to Osterman because the misstatements in the affidavit are immaterial. Probable cause existed even without them. AFFIRMED.