United States v. Timothy Stringer

Filing

OPINION FILED - THE COURT: James B. Loken, Steven M. Colloton and Duane Benton AUTHORING JUDGE:Steven M. Colloton (PUBLISHED) [4111044] [12-3397]

United States Court of Appeals
For the Eighth Circuit
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No. 12-3397
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United States of America,
lllllllllllllllllllll Plaintiff - Appellee,
v.
Timothy C. Stringer,
lllllllllllllllllllll Defendant - Appellant.
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Appeal from United States District Court
for the Western District of Missouri - Joplin
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Submitted: September 27, 2013
Filed: January 6, 2014
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Before LOKEN, COLLOTON, and BENTON, Circuit Judges.
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COLLOTON, Circuit Judge.
Timothy Stringer entered a conditional guilty plea to producing child
pornography, in violation of 18 U.S.C. § 2251(a). The district court sentenced
Stringer to 360 months’ imprisonment. Stringer appeals an order of the district court1
1

The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri, adopting the report and recommendation of the Honorable James
C. England, United States Magistrate Judge for the Western District of Missouri.

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denying his motion to suppress evidence. He also appeals a pretrial ruling of the
district court2 excluding evidence that one of the minors involved in Stringer’s
production of child pornography was emancipated at the time the photographs were
taken. We affirm.
I.
On June 14, 2010, Trooper T.W. Hilburn of the Missouri State Highway Patrol
was on duty in Cassville, Missouri. Hilburn observed a car leaving a residence
known for drug activity. Hilburn stopped the vehicle because it was missing license
plates and did not have working taillights.
When Hilburn approached the car, he observed Stringer, then thirty-three years
old, in the driver’s seat. There were two young, female passengers: G.R., then
fifteen, in the front seat and A.K., then seventeen, in the back. Stringer said he had
just purchased the car but had not yet licensed it. Hilburn obtained paperwork from
Stringer, returned to his patrol car to run a computer check, and walked back to
Stringer’s vehicle. At that point, he noticed “pretty quickly” that G.R.’s eyes were
“very dilated.” Hilburn suspected that both female passengers were under the
influence of illegal drugs, so he called the chief of police in Cassville and requested
that she bring a drug dog to the scene.
Having verified that the vehicle had a valid Arkansas title, Hilburn returned
Stringer’s paperwork and told him that he was free to leave, but that he could not
drive away the vehicle without license plates and functioning taillights. Hilburn
requested permission to search Stringer’s vehicle; Stringer refused. Stringer then
inquired whether he could leave if he fixed the taillights. Hilburn replied that

2

The Honorable Greg Kays, United States District Judge for the Western
District of Missouri.
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Stringer could attempt to fix the lights but that because the drug dog was en route, the
vehicle could not leave.
When Stringer got out of the car, Hilburn observed a knife in Stringer’s pocket
and asked him to remove it for safety reasons. Stringer emptied his pockets, and one
object then displayed was a case for contact lenses. Hilburn asked permission to
examine the case, and Stringer consented. Upon opening the case, Hilburn noticed
a white crystalline substance around the edges of the lid and saw a white “blob” in the
center of each compartment. Hilburn suspected the substance was methamphetamine
and asked the dispatcher to send an officer with a field test kit.
Ten minutes later, an officer arrived with a drug test kit. The contact lens case
tested positive for methamphetamine. Hilburn then placed Stringer under arrest and
placed him in his patrol car. The local police chief then arrived with a drug dog. The
canine alerted to the driver’s seat and the dash panel area.
Hilburn then searched Stringer’s vehicle. In the car, Hilburn located an open
purse that contained a forged Missouri driver’s license in the name of G.R. and a
glass pipe that Hilburn thought was consistent with drug use. He also found a
Samsung phone inside the purse. Looking for drug information, he searched through
the text messages and contacts list. During this review, Hilburn discovered
photographs of a male and female engaged in sexual intercourse. G.R. confirmed that
the male was Stringer and that she was the female. Hilburn returned to his patrol car
and informed Stringer that he was now under arrest for statutory rape.
Hilburn continued the search of Stringer’s vehicle. He found a digital camera
and searched the images on the camera. Several images depicted G.R. and Stringer
engaged in intercourse, and many more showed G.R. nude or in a state of undress.
The camera also contained pictures of A.K. undressed and nude.

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Hilburn also located a Motorola cell phone, which G.R. identified as Stringer’s.
Hilburn searched that phone and discovered images similar to those found on G.R.’s
phone, including images of Stringer and G.R. engaged in sexual intercourse. During
subsequent interviews, G.R. confirmed that she had engaged in sexual intercourse
with Stringer, and that Stringer used a cell phone and camera to take photographs of
her engaged in sexually explicit conduct.
A grand jury charged Stringer with committing five criminal offenses. Count
One, to which Stringer eventually pleaded guilty, alleged production of child
pornography, in violation of 18 U.S.C. § 2251(a). The charge alleged that he used a
minor, G.R., to engage in sexually explicit conduct for the purpose of producing a
visual depiction of such conduct, using (1) a Samsung cell phone (G.R.’s phone), (2)
a Motorola cell phone (Stringer’s phone), and (3) an Olympus camera (the camera
found in the car).
Stringer moved to suppress all of the evidence seized as a result of the traffic
stop. After an evidentiary hearing, a magistrate judge recommended denial of the
motion, and the district court adopted the recommendation. The court concluded that
Hilburn did not unreasonably prolong the investigative stop, because Hilburn had
reasonable suspicion to believe that Stringer was involved in illegal drug activity.
The court further concluded that there was probable cause to justify the search of the
vehicle, cell phones, and camera, and that a warrant was not required. Prior to trial,
the district court also ruled that Stringer could not present evidence of G.R.’s
previous marriage at age fourteen and her “emancipation,” because emancipation of
the minor is not a legal defense to a charge of producing child pornography and the
proffered evidence was likely to confuse the jury.
Stringer then entered a conditional guilty plea to production of child
pornography as charged in Count One of the indictment, reserving the right to appeal
the denial of his motion to suppress and the district court’s ruling excluding evidence
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of G.R.’s emancipation. The plea agreement provides that if Stringer “prevails on this
appeal, and the evidence is suppressed, he will be allowed to withdraw his guilty
plea.”
II.
A.
On the motion to suppress, Stringer concedes that the trooper had probable
cause to stop his vehicle for traffic violations. Stringer argues, however, that Hilburn
violated the Fourth Amendment’s proscription against unreasonable searches and
seizures by continuing to detain Stringer after Hilburn confirmed that Stringer had a
valid driver’s license and that the car was validly registered in Arkansas. A traffic
stop can become unlawful “if it is prolonged beyond the time reasonably required”
to complete the mission of the initial seizure. Illinois v. Caballes, 543 U.S. 405, 407
(2005). Continued detention is constitutional, however, if an officer has reasonable
suspicion that other criminal activity is afoot. United States v. Gallardo, 495 F.3d
982, 987 (8th Cir. 2007). We consider the totality of the circumstances to determine,
“based on commonsense judgments and inferences about human behavior,” Illinois
v. Wardlow, 528 U.S. 119, 125 (2000), whether the trooper had “at least a minimal
level of objective justification” for prolonging the seizure. Id. at 123–24.
The mission of the initial seizure was fulfilled when Hilburn returned to
Stringer’s car with Stringer’s paperwork. Hilburn told Stringer that he personally was
free to leave, but Stringer contends that the continued detention of his vehicle
constituted a continued seizure of his person as well. Assuming for the sake of
analysis that Stringer was seized after the completion of the routine traffic stop, we
agree with the district court that Hilburn had reasonable suspicion that Stringer was
involved in narcotics offenses.

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Hilburn had observed Stringer’s vehicle leaving a house known for drug
transactions. He testified that the residence had been searched several times by the
local drug task force, and that he personally had stopped several people leaving the
house in possession of methamphetamine and other illegal substances. During the
traffic stop, Hilburn also saw that G.R. had “very dilated” pupils. Based on his
training as a certified drug recognition expert, Hilburn concluded that the juveniles
appeared possibly to be under the influence of narcotics. When Stringer emptied his
pockets after exiting his vehicle to repair the taillights, Hilburn observed the contact
lens case containing the crystalline substance and the gelatinous blob that he
suspected was methamphetamine. This information provided objective indicia of
possible criminal activity that justified further investigation. See generally United
States v. Shafer, 608 F.3d 1056, 1063 (8th Cir. 2010); United States v. Long, 320 F.3d
795, 800 (8th Cir. 2003).
For these reasons, the duration of the seizure was constitutionally reasonable,
and the district court correctly refused to suppress evidence based on the length of the
encounter. The officers had sufficient grounds to detain Stringer until the point at
which they developed probable cause for an arrest.
B.
Based on the positive field test of the contact lens case for methamphetamine
and the drug dog’s alert to Stringer’s car, the officers had probable cause to search the
car. See United States v. Bloomfield, 40 F.3d 910, 919 (8th Cir. 1994) (en banc).
They were permitted to search the vehicle and any closed containers therein without
a warrant, based on the automobile exception to the Fourth Amendment’s warrant
requirement. United States v. Ross, 456 U.S. 798, 820–21 (1982). Stringer contends,
however, that the officers impermissibly searched the contents of the cell phones and
digital camera without a warrant. In his view, modern cell phones and digital cameras

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are more like computers than traditional containers, and officers must obtain a
warrant to search the electronic contents of these devices.
Stringer’s argument fails before we reach the merits. He lacks standing to
challenge the search of the Samsung cell phone belonging to G.R., and the evidence
seized from the Samsung phone is sufficient to sustain Stringer’s conviction. The
Fourth Amendment protects the people against unreasonable searches of “their”
effects, and an accused in a criminal case may not assert the Fourth Amendment
rights of a third party. Rawlings v. Kentucky, 448 U.S. 98, 104–06 (1980); Rakas v.
Illinois, 439 U.S. 128, 133–38 (1978). To mount a successful motion to suppress, an
accused must first establish that he personally has a legitimate expectation of privacy
in the object that was searched. Stringer makes no argument that he has a reasonable
expectation of privacy in the contents of G.R.’s cell phone, so he may not challenge
the seizure of evidence from that device.
The charge to which Stringer pleaded guilty alleged that he produced child
pornography using three different devices: (1) the Samsung cell phone (G.R.’s
phone), (2) the Motorola cell phone (Stringer’s phone), and (3) the Olympus camera.
His motion to suppress sought to exclude all evidence obtained from the three
devices. According to his plea agreement, Stringer is permitted to withdraw his guilty
plea only if he “prevails on this appeal, and the evidence is suppressed.” Because
Stringer cannot challenge the search of the Samsung cell phone and the seizure of
evidence from that device, he cannot achieve exclusion of the evidence described in
his motion to suppress. It is therefore unnecessary to address whether the warrantless
searches of Stringer’s cell phone and the digital camera were constitutional. The
evidence obtained from G.R.’s cell phone is sufficient to sustain the conviction.

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III.
Stringer also challenges the district court’s exclusion of evidence that G.R. was
an emancipated person at the time the offenses were committed. The statute under
which Stringer was convicted, 18 U.S.C. § 2251(a), prohibits using “any minor” with
the intent that “such minor” engage in sexually explicit conduct for the purpose of
producing any visual depiction of such conduct. Stringer argues that because G.R.
was legally emancipated from her parents prior to engaging in the conduct at issue in
the indictment, she was not a “minor” in the eyes of the law, and it was legally
impossible for Stringer to violate § 2251(a) through his interactions with her.
We agree with the district court that G.R.’s previous marriage and
emancipation are not legal defenses to a charge against Stringer under § 2251(a). The
term “minor” is defined by 18 U.S.C. § 2256(1) as “any person under the age of
eighteen years.” Section 2256(1) provides no exception for emancipated persons.
G.R. was a “minor” within the meaning of the statute, regardless of her emancipated
status, and the district court acted within its discretion in concluding that evidence of
emancipation would “confuse the jury and lend itself to perhaps a jury nullification
issue.” R. Doc. 113, at 19. There was no reversible error in the pretrial evidentiary
ruling. See Fed. R. Evid. 401, 403.
*

*

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The judgment of the district court is affirmed.
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