This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-584

 

 

State of Minnesota,

Respondent,

 

vs.

 

Jesse Duane Jacobs,

Appellant.

 

 

Filed April 17, 2007

Affirmed

Dietzen, Judge

 

Redwood County District Court

File No. K4-04-562

 

Lori Swanson, Attorney General, John B. Galus, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and

 

Michelle A. Dietrich, Redwood County Attorney, 250 South Jefferson, Redwood Falls, MN 56283 (for respondent)

 

John M. Stuart, State Public Defender, Leslie J. Rosenberg, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Hudson, Presiding Judge; Dietzen, Judge; and Collins, Judge.*

U N P U B L I S H E D   O P I N I O N

 

DIETZEN, Judge

 

            Appellant challenges his conviction and subsequent sentence of possession of child pornography, arguing that the district court erred by (1) denying his motion to suppress the evidence recovered from his home in violation of the United States and Minnesota Constitutions; (2) assigning a severity level “IV” to an unranked offense under the sentencing guidelines, in violation of Blakely v. Washington; and (3) imposing multiple sentences for offenses that arose out of the same behavioral incident, in violation of Blakely and Minn. Stat. § 609.035, subd. 1.  Because the district court properly applied the law and did not abuse its discretion, we affirm.

FACTS

            In June 2004, the Redwood Falls police department, acting on a tip from the Pennsylvania state police that appellant Jesse Duane Jacobs might be in possession of child pornography, obtained and executed a search warrant for appellant’s home that resulted in the seizure of ten computer disks containing hundreds of images of child pornography. Appellant was subsequently charged with ten counts of possessing child pornography, in violation of Minn. Stat. § 617.247, subd. 4 (2004).[1]

            Appellant moved to suppress the evidence seized from his home, arguing that the seizure violated the state and federal constitutions.  Before the district court ruled on the motion to suppress, appellant waived his right to a jury trial, and the parties agreed that the evidence received in the bench trial would provide the record for the court’s ruling on appellant’s motion to suppress.

            At trial, a Pennsylvania police officer testified that he was assigned to investigate computer crimes involving child pornography and that while searching for child pornography on Kazaa P2P, a software program that allows people to share and exchange computer files over the Internet, he observed that a particular computer with an IP (Internet protocol) address was offering to share images of child pornography.  The officer then determined that the Internet service provider, Mediacom Communications Corporation, had the name and address of the user and obtained a court order requiring Mediacom to provide that information to him.  When the officer recovered the information from Mediacom, he forwarded it to the Redwood Falls police department. A search warrant was executed on appellant’s residence, which resulted in the seizure of the computer disks.

            Following the combined omnibus hearing and bench trial, the district court denied appellant’s motion to suppress and found him guilty of nine separate offenses.  The district court imposed concurrent sentences on three counts: a stayed 18-month sentence on Count I; a stayed 21-month sentence on Count II; and an executed 24-month prison term on Count III.  This appeal followed.

D E C I S I O N

I.

            Appellant argues that the officer’s acquisition of his identity and address from a third-party Internet service provider violated his reasonable expectation of privacy and was an unreasonable search under the United States and Minnesota Constitutions.  “[W]hen reviewing a pre-trial order suppressing evidence where the facts are not in dispute and the trial court’s decision is a question of law, the reviewing court may independently review the facts and determine, as a matter of law, whether the evidence need be suppressed.”  State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992). 

A.        United States Constitution

            The Fourth Amendment to the United States Constitution ensures “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”  U.S. Const. amend. IV.  “A ‘search’ occurs when an expectation of privacy that society is prepared to consider as reasonable is infringed.”  United States v. Jacobsen, 466 U.S. 109, 113, 104 S. Ct. 1652, 1656 (1984). “What a person knowingly exposes to the public . . . is not a subject of Fourth Amendment protection.”  Katz v. United States, 389 U.S. 347, 351, 88 S. Ct. 507, 511 (1967).  Accordingly, individuals lose any reasonable expectation of privacy in information they voluntarily turn over to third parties.  See Smith v. Maryland, 442 U.S. 735, 743-44, 99 S. Ct. 2577, 2582 (1979) (holding that a person does not have a Fourth Amendment privacy interest in the account or subscriber information he gives a third party); see also United States v. Miller, 425 U.S. 435, 443, 96 S. Ct. 1619, 1624 (1976) (holding that person does not have a legitimate “expectation of privacy” in the content of original bank checks and deposit slips).

Appellant argues that because he had installed certain software programs on his computer and turned his file-sharing option to the “off” position, the officer’s use of software to discover his IP address was a violation of his reasonable expectation of privacy and was a “search” similar to the one in United States v. Kyllo, 533 U.S. 27, 29-30, 121 S. Ct. 2038, 2041 (2001).  We disagree. 

In Kyllo, police used special thermal-imaging technology to peer into defendant’s home and obtain proof that he was growing marijuana.  Id.  The Court held that this was a “search” within the meaning of the Fourth Amendment because the police employed technology not widely used by the general public to peer into defendant’s home.  Id.at 40, 121 S. Ct. at 2046.  But this case is factually distinguishable from Kyllo.  Here,the officer did not use special technology to identify appellant’s IP address, but rather was able to identify appellant through CommView, a software program that is readily available to the public.  Thus, there was no “search” of appellant’s person, papers, or effects requiring a warrant under the Fourth Amendment. 

            B.        Minnesota Constitution

            Appellant argues for the first time on appeal that article I, § 10 of the Minnesota Constitution affords broader protection of individual rights than does the United States Constitution.  We will consider constitutional claims in the interests of justice if the parties had adequate briefing time and the issues were implied in the district court.  Tischendorf v. Tischendorf, 321 N.W.2d 405, 410 (Minn. 1982).

Our supreme court recently stated: 

It is axiomatic that a state supreme court may interpret its own state constitution to offer greater protection of individual rights than does the federal constitution.  Indeed, as the highest court of this state, we are “‘independently responsible for safeguarding the rights of [our] citizens.’”  State courts are, and should be, the first line of defense for individual liberties within the federalist system. 

 

State v. Carter, 596 N.W.2d 654, 657 (Minn. 1999).  But a decision to interpret the Minnesota Constitution differently from the federal constitution should not be made “cavalierly.”  Id.

Appellant argues that in two cases, the Minnesota Supreme Court has afforded defendants greater protection under the Minnesota Constitution against unreasonable searches and seizures than provided by the Fourth Amendment.  See In re Welfare of E.D.J., 502 N.W.2d 779 (Minn. 1993) (applying objective test, on the basis of whether a reasonable person would determine that he or she was free to go, to determine whether a seizure had occurred); Ascher v. Comm’r of Pub. Safety, 519 N.W.2d 183 (Minn. 1994) (temporary roadblocks to investigate driving under the influence struck down, on the basis that police need reasonable, articulable suspicion before making an investigative stop).  In these cases our supreme court concluded that earlier decisions by the United States Supreme Court were a “sharp departure” from Minnesota law. 

In State v. Gail, our supreme court considered whether a defendant had a legitimate expectation of privacy in cell-phone records.  State v. Gail, 713 N.W.2d 851, 860 (Minn. 2006).  The Gail court concluded that a defendant did not have a subjective expectation of privacy in cell-phone records, reasoning that the defendant has “the burden of proving that he had a subjective expectation of privacy” and failed to meet that burden.  Id. at 860.  Based on our supreme court’s decision in State v. Gail, we conclude that federal law on the subjective expectation of privacy is not a “sharp departure” from Minnesota law.   Therefore, we conclude that appellant has failed to show that he had a reasonable expectation of privacy under the state constitution, particularly when the information was readily accessible through existing software that was available to the public. 

II.

            Appellant argues that the district court’s assignment of a severity level “IV” to his offense was an upward departure from the presumptive sentence made in violation of his constitutional right to a jury trial.  We review a constitutional claim involving the right to a jury trial de novo.  State v. Hagen, 690 N.W.2d 155, 157 (Minn. App. 2004).

The Sixth Amendment to the United States Constitution guarantees a criminal defendant the right to a trial by jury.  U.S. Const. amend. VI.  In Apprendi v. New Jersey, the United States Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury . . . .” 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63 (2000).  Applying Apprendi, Blakely v. Washington held that an upward durational departure from the presumptive sentence based on the judge’s findings, rather than those of a jury, is invalid under the Sixth Amendment right to trial by jury.  542 U.S. 296, 303-04, 124 S. Ct. 2531, 2537 (2004). 

In State v. Shattuck, the Minnesota Supreme Court applied Blakely and concluded that for felonies other than first-degree murder, the presumptive sentence set forth in the Minnesota Sentencing Guidelines is the maximum sentence a judge may impose without further jury findings. 704 N.W.2d 131, 141 (Minn. 2005).  Thus, an upward durational departure under the repeat-sex-offender statute, based on judicial findings of aggravating factors, was held to violate the defendant’s right to a trial by jury.  Id. 

The sentencing guidelines provide the presumptive sentence, which “is determined by locating the appropriate cell of the Sentencing Guidelines Grids.  The grids represent the two dimensions most important in current sentencing and releasing decisions—offense severity and criminal history.”  Minn. Sent. Guidelines II.  The offense severity level “is determined by the offense of conviction.”  Minn. Sent. Guidelines II.A.  Appellant was convicted of possessing child pornography in violation of Minn. Stat. § 617.247, which was specifically excluded from the Offense Severity Reference Table in the 2004 sentencing guidelines.  Minn. Sent. Guidelines cmt. II.A.03 (2004).   In that regard, the sentencing guidelines provide: “When unranked offenses are being sentenced, the sentencing judges shall exercise their discretion by assigning an appropriate severity level for that offense and specify on the record the reasons a particular level was assigned.”  Minn. Sent. Guidelines. II.A. 

Based on the framework of the sentencing guidelines, we conclude that the determination of the severity level in this case does not violate Blakely or Shattuck.  First, this case does not involve an upward departure from the presumptive sentence.  While the severity level is a value that goes into the calculation of the presumptive sentence, it is not a judicial finding of an aggravating factor.  We do not read Blakely and Shattuck to require that the initial determination of the presumptive sentence must be made by a jury.  Second, we do not view the district court’s determination of the severity level for an unranked offense to be materially different from the exercise of discretion by the guidelines commission in determining the severity level for the ranked offenses in the sentencing guidelines.  Thus, we conclude that assigning a severity level to determine the presumptive sentence is not a sentencing departure and, therefore, not a violation of appellant’s right to a jury trial.

Appellant next argues that the district court abused its discretion by ranking his conviction of possession of child pornography as a level IV offense for sentencing purposes.[2]  We review the district court’s severity-level determination for an abuse of discretion.  State v. Bertsch, 707 N.W.2d 660, 666 (Minn. 2006).

            District courts may consider four non-exclusive factors when selecting a severity level for an unranked offense: (1) gravity of the conduct; (2) severity level assigned to similar offenses; (3) severity level assigned to other offenders for the same unranked offense; and (4) severity level assigned to other offenders who engaged in similar conduct. State v. Kenard, 606 N.W.2d 440, 443 (Minn. 2000).  In applying these factors, courts should not assign extra weight to any one factor, and the court is free to consider other factors.  Id.

            The district court made findings on each of the factors.  It found that the conduct was serious, as it involved more than 300 images of child pornography; that the monitoring data published by the commission reveals that a severity level of “IV” was assigned in about 30% of child pornography cases (41 out of 135 cases) (51% of the cases were assigned a severity level of “III”); and that in similar cases involving a high volume of child pornography such as State v. Bertsch, 689 N.W.2d 276 (Minn. App. 2004), aff’d in part, 707 N.W.2d 660 (Minn. 2006), and State v. Rhoades,690 N.W.2d 135 (Minn. App. 2004), a severity level IV was assigned. Thus, the record amply supports the district court’s decision to assign a severity level IV to the offense.

III.

Appellant argues that the district court erred by imposing concurrent sentences based on a judicial finding that multiple victims were depicted in the pornographic images, in violation of his right to a jury trial under Blakely.  Respondent argues that Blakely applies to a defendant’s sentence and not the underlying conviction.  We review Blakely issues de novo.  Hagen, 690 N.W.2d at 157.

Here, the district court, acting as the finder of fact, found beyond a reasonable doubt that appellant possessed pornographic images of multiple children and convicted him on all nine counts.  Based on the finding of conviction and the appropriate severity level, the district court imposed three presumptive sentences to be served concurrently. 

Under the sentencing guidelines, when an offender is convicted of multiple current offenses, concurrent sentencing is presumptive, and in most instances consecutive sentencing is permissive.  Minn. Sent. Guidelines II.F.  In State v. Senske, 692 N.W.2d 743, 747 (Minn. App. 2005), review denied (Minn. May 17, 2005), this court held that consecutive sentencing did not violate Blakely because consecutive sentencing involved separate punishments for discrete crimes.  If Blakely does not apply to consecutive sentencing which is permissive, then a fortiori, it does not apply to concurrent sentencing, which is presumptive.  See Senske, 692 N.W.2d at 748 (“Consecutive sentencing is admittedly intended to be a more severe sanction than concurrent sentencing.”).   Thus, we conclude that appellant’s Blakely right was not violated by the district court’s imposition of multiple concurrent sentences.

Appellant next argues that possession of multiple pieces of child pornography arose out of the same behavioral incident and, therefore, the district court erred in imposing multiple sentences. The district court’s decision of whether multiple offenses are part of a single behavioral incident is a fact determination and should not be reversed unless clearly erroneous.  State v. Carr, 692 N.W.2d 98, 101 (Minn. App. 2005).

Minn. Stat. § 609.035, subd. 1, provides that a person may be sentenced for only one offense if the conduct constitutes a “single behavioral incident.” State v. Williams, 608 N.W.2d 837, 841 (Minn. 2000).  A judicially created exception to this single-behavioral-incident rule permits the imposition of multiple sentences when (1) the offenses involve multiple victims; and (2) the multiple sentencing does not unfairly exaggerate the criminality of the defendant’s conduct.  State v. Marquardt, 294 N.W.2d 849, 850-51 (Minn. 1980).  Images of child pornography depicting multiple minors falls within the “multiple-victims exception” to Minn. Stat. § 609.035 because each depicted minor is a victim.  Rhoades, 690 N.W.2d at 140.

            Appellant nonetheless argues that this court should revisit its decision in State v. Rhoades, particularly the question of whether the multiple-victim exception was intended by the legislature to apply to this type of offense.  We conclude that our decision in Rhoades is dispositive and decline the invitation.

            Appellant also argues that his sentence is excessive and unfairly exaggerates the criminality of his conduct.  Under Minn. Stat. § 244.11, subd. 2(b), we have authority to review and modify a sentence that is unreasonable and excessive.  And we have authority to modify a sentence in the interests of fairness and uniformity.  Bertsch, 707 N.W.2d at 668; State v. Norris, 428 N.W.2d 61, 70 (Minn. 1988).  We review a decision to impose a presumptive sentence for an abuse of discretion. 

Here, appellant has failed to establish that his sentence was excessive or unfairly exaggerates the criminality of his conduct.  In its sentencing order, the district court stated that “[appellant] was found to be in possession of hundreds of these illegal works, all maintained on separate computer disks.  Each of those disks contained numerous works featuring separate and distinct minor children, far greater than the number of counts (nine) [appellant] was found guilty.”  On this record the district court did not abuse its discretion.

            Affirmed.