State of Minnesota, Respondent, vs. Dale Robert Bach, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

  STATE OF MINNESOTA

IN COURT OF APPEALS

A03-10

 

State of Minnesota,
Respondent,
 
vs.
 
Dale Robert Bach,
Appellant.

 

Filed October 7, 2003

Affirmed

Peterson, Judge

 

Hennepin County District Court

File No. 01059562

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Amy Klobuchar, Hennepin County Attorney, Patrick C. Diamond, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN  55487 (for respondent)

 

William M. Orth, 100 Barristers Trust Building, 247 Third Avenue South, Minneapolis, MN  55415-1016 (for appellant)

 

            Considered and decided by Klaphake, Presiding Judge, Peterson, Judge, and Minge, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

In this appeal from a conviction of and sentence for third-degree criminal sexual conduct, appellant Dale Robert Bach argues that (1) following an investigation into chat-room communications between Bach, who resided in Minneapolis, and a 13-year-old boy from St. Paul, the district court lacked jurisdiction to issue a search warrant for electronic communications stored at an Internet service provider in California and that the warrant was not properly served and executed; (2) evidence seized pursuant to a second warrant for the search of Bach's home, which relied in part on evidence seized pursuant to the Internet search warrant, must be suppressed as fruit of the poisonous tree; and (3) the district court abused its discretion in sentencing him under the patterned-sex-offender statute because there was no evidence to show that appellant needs long-term treatment or supervision.  We affirm.

FACTS

            In October 2000, a mother, who resided in St. Paul, contacted Sergeant Brook Schaub of the Minnesota Internet Crimes Against Children Task Force (task force).  Schaub has been a licensed peace officer for 23 years and, as part of his assignment to the task force, he received extensive training in investigating crimes involving use of the Internet.  The mother provided Schaub with a transcript of an Internet chat-room dialogue that had occurred between her 13-year-old son, A.M., and someone using the screen name dlbch15.  The dialogue involved dlbch15 dropping off some Playboy magazines that he had purchased for A.M.  Dlbch wrote:  "I was just out your way hoping you might wander by and see my car.  I thought about leaving your stuff in the bushes next to the Petsmart but I didn't.  How can I get them to you?"  After agreeing to leave the magazines in the bushes, dlbch15 wrote, "I'll let you know when I put them there . . . but I would rather see you again if I am going to drive there."

            During an interview of A.M. by Schaub, A.M. reported that the chat-room dialogue had occurred at Yahoo.com's "Teens Hangout" chat room.  A.M. confirmed that dlbch15 was going to buy some Playboy magazines and hide them for A.M. in the bushes near a neighborhood business.  A.M. also disclosed that about one month before the chat-room dialogue, he had met Dale, the person using the screen name dlbch15, on Ford Parkway in St. Paul.  A.M. denied that any sexual contact occurred. 

            Schaub checked the Yahoo registry in which a party participating in Yahoo chat rooms provides personal information, which Schaub admitted can be false.  The Yahoo registry revealed that the address dblch15@yahoo.com was registered to a male named Dale, age 26, from Minneapolis.  Schaub also checked the dlbch15 screen name in a public web site called ICQ, which provides a real-time chat program for people who sign up for the service.  Through the ICQ web site, Schaub learned the screen name dlbch15 was linked to the e-mail address of dlbch15@yahoo.com.

            Schaub issued an administrative subpoena seeking subscriber information for dlbch15 to Prodigy.com.  Prodigy responded that the screen name was registered to Dale Bach, who lived at 3512 Nicollet Avenue South, no. 2, in Minneapolis.  Through further investigation, Schaub learned that a Dale Robert Bach, residing at 3512 Nicollet Avenue South, no. 2, in Minneapolis, had been convicted in 1996 of third-degree criminal sexual conduct.  Bach committed that offense by traveling to Duluth and meeting and engaging in oral and anal sex with a 14-year-old boy.

Ramsey County warrant

            On January 3, 2001, Schaub applied for a search warrant in Ramsey County to recover e-mail between Bach's e-mail address dlbch15@yahoo.com and possible victims of criminal sexual conduct and enticement of minors on-line.  The application also sought to recover e-mail from A.M.'s account.  Additionally, the application sought to search Internet protocol addresses linking Bach to the offense involving A.M. and other possible victims of criminal sexual conduct or enticement on-line for sexual purposes.  The application states:

When one computer connects with another computer through the Internet, an [Internet protocol] address is generated.  This [Internet protocol address] is the equivalent of caller ID on a phone system and is unique to a particular computer at the time of the connection.  This [Internet protocol address] can then be used to trace backwards to where the connection was made from.

 

            The district court issued the search warrant.  Schaub faxed the warrant to Yahoo at its office located in Santa Clara, California.  On January 9, 2001, Schaub received a package from Yahoo.  The package contained information from Bach's e-mail account, including an e-mail exchange between a person using the screen name Travis Icanttell and the e-mail address assbait@yahoo.com.  In the e-mail exchange, Bach asks whether they can meet tomorrow and when and where they can meet and also discusses exchanging pictures, stating, "I will send you more of mine if you send me yours."  The package did not contain any information regarding Bach's Internet protocol addresses.

Hennepin County warrant

            On January 26, 2001, Sergeant Ann Quinn-Robinson, a Minneapolis police officer assigned to the sex-crimes unit and a member of the task force, applied for a warrant to search Bach's residence for computer systems, data contained on hard drives or removable media, and other papers and effects tending to show possession or distribution of child pornography or the enticement of children on-line.  The affidavit supporting the application set forth the information learned by Schaub during his investigation.  The affidavit also stated:

Sgt. Schaub is aware that computers and the Internet have become a common tool for those who get sexual gratification from viewing images of children or interacting with minors.  That computer systems and the Internet allow those with the above interest to anonymously make contact with children through IRC (Internet Relay Chata real time communications application) or other chat communication programs.  That in his experience, those contacts can be used to identify potential victims, build trust in the victim through Internet contact, and may result in face-to-face meetings between the two.  Sgt. Schaub knows from personal experience investigating these offenses and from contact with other law enforcement officers, that frequently these face-to- face contacts result in a sexual assault of the child.  A suspect may provide images of children engaged in sexual acts to the victim in order to break down inhibitions.  That these images may be sent as attachments to IRC or electronic mail (email).

 

            Sgt. Schaub is aware that computer systems and Internet access have replaced the file cabinet for the repository of evidence.  Further, that those individuals who get sexual gratification from looking at images of children engaged in sexual acts are increasingly using computers and the Internet as a tool to meet like-minded individuals in order to exchange collections of images. . . . That he has investigated child pornography cases where as many as 13,000 images have been stored on a suspect's computer.  That it also is not uncommon for individuals to retain text records of chat interactions with children for later review and fantasy.  Not all of the above evidence may be on a suspect computer.

 

            . . . .

 

            That Affiant is aware that individuals who have a preference for looking at images of minors engaged in sexual contact, or have sexual contact with minors often retain these images for the purpose of reliving the incident[.]

 

            . . . .

 

            Sgt. Schaub and your Affiant are aware from experience, training, and conversations with other parties involved in the investigation of child sexual exploitation or molestation, that delayed disclosures to sexual abuse is not uncommon. . . . This is particularly true in cases where the victim is male.  Male victims tend to be extremely embarrassed to disclos[e] homosexual contact.  Sgt. Schaub and your Affiant know that delayed disclosures may be caused by a variety of elements present in the relationship between the suspect and the victim.  Some of these elements include the child's desire to continue receiving material gifts from the suspect, the child's concern that revealing the relationship may lead to being grounded from computer use in the home, and the child not wanting the relationship to end because of emotional ties to the suspect.

 

            Sgt. Schaub and your Affiant know that preferential sex offenders using the Internet to locate and court victims, spend a significant amount of time taking advantage of the vulnerabilities of the victim.

 

The affidavit also contained a description of the profile of children most susceptible to Internet predators and the fact that A.M.'s mother's confirmed that A.M. fit the profile.

            The district court issued the warrant, and police executed it.  Police seized Bach's computer, and several post-it notes with names, addresses, directions, phone numbers, and e-mail addresses written on them.  One of the post-it notes had the name Travis written on it with the names of two cross streets, and another had the name Travis with two telephone numbers.  Schaub called the telephone numbers and contacted the child using the screen name Travis Icanttell.

            On May 15, 2001, FBI Agent Maureen Lese conducted a noncustodial interview of Bach.  Bach admitted meeting the boy using the screen name Travis Icanttell (hereinafter victim A) in a chat room and speaking to him several times over the phone.  After meeting victim A at a park near victim A's house, Bach brought victim A to Bach's house.  Bach stipulated that at his house, victim A performed oral sex on Bach and then Bach sexually penetrated victim A.

Bach was charged with one count of third-degree criminal sexual conduct for engaging in sexual penetration with victim A in violation of Minn. Stat. § 609.344, subd. 1(b) (1998).  Bach moved to suppress evidence seized pursuant to the Hennepin County warrant to search his home.  Bach argued that because the search pursuant to the Ramsey County warrant was unlawfully executed, evidence discovered during the search pursuant to the Hennepin County warrant should be suppressed under the fruit-of-the-poisonous-tree doctrine.  Based on its determination that the Hennepin County warrant was supported by probable cause independent of the information related to the Ramsey County warrant, the district court denied Bach's motion.  The parties submitted the case to the district court for decision based on stipulated facts.  The district court found Bach guilty as charged.

Sentencing

            Dr. Richard Weinberger, the inpatient clinical director at Alpha House, testified at the sentencing hearing.  Following the prior sexual offense, Bach participated in an outpatient treatment group conducted by Weinberger from 1995 to 1997.  Weinberger testified that during treatment, Bach disclosed ten victims ranging in age from 14 to 17 with whom he had had inappropriate contact, although not necessarily always sexual in nature.  Weinberger testified that Bach admitted to three or four separate sexual contacts with the Duluth victim over a two-to-three-month period.  Weinberger recommended that Bach "attend an inpatient program where he could be monitored very closely, where the treatment would be much more intense than can be delivered in outpatient, and the monitoring could go on for an indefinite period of time."

            Dr. Bruce Renken, a court-appointed clinical psychologist, testified that Bach's history of having multiple victims and his reoffending relatively soon after successfully completing probation, treatment, and aftercare indicated that his sexual behavior involving juvenile victims is so engrained that his risk of reoffending is great.  Renken testified that Bach needed longer-term controls to ensure that the community is safe from him.  Renken opined that Bach met the criteria to be considered a pattern sex offender.

The district court sentenced Bach as a patterned and predatory sex offender to an executed term of 72 months in prison.

D E C I S I O N

1.         When reviewing pretrial suppression rulings, this court "may independently review the facts and determine, as a matter of law, whether the district court erred in suppressingor not suppressingthe evidence."  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).  This court accepts the district court's findings of fact unless they are clearly erroneous.  State v. George, 557 N.W.2d 575, 578 (Minn. 1997).

Evidence obtained by a search and seizure that violates a defendant's constitutional rights is inadmissible.  State v. Mathison, 263 N.W.2d 61, 63 (Minn. 1978).  Both the United States and Minnesota Constitutions require the existence of probable cause for a search warrant to be issued.  Id.

            This court defers to the magistrate's determination of probable cause.  State v. Albrecht, 465 N.W.2d 107, 109 (Minn. App. 1991).  A totality of the circumstances test is applied to determine whether probable cause exists to issue a search warrant.  Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332 (1983).

The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.

 

Id.; see Albrecht, 465 N.W.2d at 108 (applying same test in interpreting Minnesota constitution).  A court must review the affidavit as a whole, not each component in isolation.  State v. Wiley, 366 N.W.2d 265, 268 (Minn. 1985).

            Bach argues that because (1) constitutional violations occurred in the issuance and execution of the Ramsey County search warrant; and (2) the evidence discovered as a result of the Ramsey County warrant was necessary to establish probable cause to issue the Hennepin County warrant, the evidence discovered in his home based on the Hennepin County warrant search should be suppressed as the fruit of the poisonous tree.  In Nix v. Williams, the Supreme Court articulated that the fruit-of-the-poisonous-tree doctrine does not exclude evidence obtainable by an independent source.  467 U.S. 431, 442-43, 104 S. Ct. 2501, 2508 (1984).  The independent source doctrime permits the introduction of evidence obtained pursuant to a warrant that is genuinely independent of a prior unlawful search.  Id. at 443, 104 S. Ct. at 2508. 

Application of the independent-source doctrine involves a two-step analysis:  "the trial court must determine (1) whether the decision of the issuing magistrate was "affected" by the tainted information, and (2) whether that information prompted law enforcement officials to seek the warrant."  State v. Lieberg, 553 N.W.2d 51, 55 (Minn. App. 1996) (citing Murray v. United States, 487 U.S. 533, 542, 108 S. Ct. 2529, 2536 (1988)).

            Bach argues that without the information seized in executing the Ramsey County warrant, probable cause was lacking to issue the Hennepin County search warrant because there was no evidence showing that the computer he used was located in his home.  Although a possibility existed that Bach could have been using a computer located elsewhere, the test for probable cause is "a fair probability that . . . evidence of a crime will be found in a particular place."  Albrecht, 465 N.W.2d at 108.  The affidavit supporting the Hennepin County search-warrant application stated that individuals who receive sexual gratification from viewing images of children or interacting with minors often retain images of child pornography and "text records of chat interaction with children for later review and fantasy."  The list of items in the search-warrant application included not only computer systems but also removable media and other papers and effects.

            The information obtained from Prodigy linked the screen name dlbch15 to Bach's real name and residence.  The information from Prodigy was consistent with the information contained in the Yahoo registry.  Bach makes no claim that police acted improperly in obtaining the information from Prodigy or the Yahoo registry.  The affidavit also set forth  (1) the information received from A.M.'s mother about the chat-room dialogue between dlbch15 and 13-year-old A.M. indicating that dlbch15 was providing sexual material to A.M., had personally met with A.M. previously, and wanted to meet again with A.M.; (2) A.M.'s interview statement that he had met face-to-face with a man named Dale, the person who used the screen name dlbch15; (3) a detailed statement of officers Schaub's and Quinn-Robinson's experience with how sexual predators use the Internet to make contact with potential victims; (4) a description of the profile of children most susceptible to Internet predators and A.M.'s mother's confirmation that A.M. matched that profile; and (4) Bach's prior conviction for having oral and anal sex with a 14-year-old boy.  The evidence supports the district court's conclusion that "the information from the Ramsey County search warrant was not necessary to establish probable cause for the Hennepin County warrant and a sanitized application for the Hennepin County warrant provided independent probable cause for its issuance."  See Lieberg, 553 N.W.2d at 57 (applying independent-source test).

            In his reply brief, Bach cites State v. Martinez, to argue that the independent-source doctrine cannot apply to this case because only one investigation was conducted.  579 N.W.2d 144 (Minn. App. 1998), review denied (Minn. Jul. 16, 1998).  Martinez is not on point.  In Martinez, this court concluded that the inclusion of a no-knock provision was unconstitutional and that neither the independent-source nor the inevitable-discovery doctrines could be applied because applying them in such a situation would negate the Fourth Amendment protection against unreasonable searches and seizures.  Id. at 148.  The Martinez court did not address the issue of a sanitized version of a search-warrant application.

            Regarding the second prong of the independent-source test, the district court found:

This case began when a parent called the [task force] and reported a suspicious chat log between her son and a person using the screen name "dlbch15."  Sergeant Schaub then began some preliminary investigation, which revealed that "dlbch15" was Dale Bach, age 26 of Minneapolis, MN and that Mr. Bach had a prior conviction for having anal and oral sex with a 14-year-old Duluth boy.  Given the nature of the chat between Mr. Bach and [A.M.] and Mr. Bach's criminal history, a warrant to search Mr. Bach's residence and his computer would have been sought regardless of the information from the Ramsey County Warrant.

 

We conclude that the district court's finding that a warrant to search Bach's residence and computer would have been sought regardless of the Ramsey County warrant is not clearly erroneous.

            Bach argues that but for the information discovered as a result of the Ramsey County warrant, officers would not have understood the significance of the post-it note containing the name and home telephone number of the child using the screen name Travis Icanttell.  Numerous post-it notes were seized from Bach's home.  Several of the post-it notes referred to Internet addresses and many contained detailed directions and/or specific addresses of meeting locations.  The notes also contained more than 20 different phone numbers and other identifying information about Bach's Internet contacts.  The search-warrant application specifically sought to search for papers and effects, including address books, linking Bach to children.  Given the nature of the crime committed by Bach and the evidence that he used the computer to accomplish it, officers could reasonably believe that papers listing male names with phone numbers and Internet addresses could lead to potentially inculpatory evidence.  We are satisfied that the state has met its burden of proving by a preponderance of the evidence that further police investigation would have led to the discovery of evidence resulting in the current conviction even without the Ramsey County warrant.  Because a sanitized application for the Hennepin County warrant provided independent probable cause for its issuance, we need not address the validity of the Ramsey County warrant.

2.         Minn. Stat. § 609.108, subd. 1(a)(3) (2000) states:

            A court shall commit a person to the commissioner of corrections for a period of time that is not less than double the presumptive sentence under the sentencing guidelines and not more than the statutory maximum, or if the statutory maximum is less than double the presumptive sentence, for a period of time that is equal to the statutory maximum, if:

 

            . . . .

 

            the court finds that the offender needs long-term treatment or supervision beyond the presumptive term of imprisonment and supervised release.  The finding must be based on a professional assessment by an examiner experienced in evaluating sex offenders that concludes that the offender is a patterned sex offender.  The assessment must contain the facts upon which the conclusion is based, with reference to the offense history of the offender or the severity of the current offense, the social history of the offender, and the results of an examination of the offender's mental status unless the offender refuses to be examined.  The conclusion may not be based on testing alone.  A patterned sex offender is one whose criminal sexual behavior is so engrained that the risk of reoffending is great without intensive psychotherapeutic intervention or other long-term controls.

 

Sentencing under the patterned-sex-offender statute constitutes a departure from the sentencing guidelines.  Id., subd. 5 (2000).  The decision to depart from the guidelines rests within the district court's discretion, and this court will not reverse such a decision absent a clear abuse of that discretion.  State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996).

            The presumptive sentence for Bach's offense was 36 months.  Bach argues that because neither expert testified that he needed more than 36 months of treatment, the district court erred in sentencing him as a patterned sex offender.  Both experts addressed the statutory criteria set forth in Minn. Stat. § 609.108, subd. 1(a)(3).  Weinberger testified that Bach needed an indefinite period of monitoring.  Renken specifically opined that Bach was a patterned sex offender.  The authority cited by Bach does not indicate that this evidence is insufficient to support the district court's finding that he needs long-term treatment or supervision beyond the presumptive term of imprisonment and supervised release.  The district court did not abuse its discretion in sentencing Bach as a patterned sex offender.

            Affirmed.