United States v. Henry

United States Court of Appeals
For the First Circuit

No. 15-1523

UNITED STATES OF AMERICA,

Appellee,

v.

PAUL HENRY, a/k/a LT,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

[Hon. Jon D. Levy, U.S. District Judge]

Before

Kayatta and Barron, Circuit Judges,
and McAuliffe,* District Judge.

Robert R. Herrick for appellant.
Margaret D. McGaughey, Assistant United States Attorney, with
whom Thomas E. Delahanty II, United States Attorney, was on brief,
for appellee.

June 17, 2016

* Of the District of New Hampshire, sitting by designation.
 KAYATTA, Circuit Judge. Paul Henry entered a

conditional guilty plea under Federal Rule of Criminal

Procedure 11(a)(2) to two counts of sexual exploitation of children

in violation of section 2251(a) of Title 18 of the United States

Code ("section 2251(a)"). By agreement with the government, he

reserved his right to appeal two issues: the district court's

determination that he was not entitled to raise a "mistake of age"

defense; and the district court's denial of his motion to suppress

evidence found or seized in connection with a search of Henry's

motel room. Finding that neither determination by the district

court was in error, we affirm.

I. Background1

On February 12, 2014, the police department in

Portland, Maine, received a report from an agent in the Detroit,

Michigan, office of the Department of Homeland Security

Investigations ("HSI") about a nineteen-year-old female ("A.H.")

being held against her will at a Portland hotel. A.H. had

previously been a victim of sex trafficking and may have been

1 Henry challenges the district court's application of law to
the facts, but does not challenge as clearly erroneous its findings
of fact. Therefore, we, like Henry, recite the relevant facts as
drawn from the district court's order denying Henry's motion to
suppress. Order on Motion to Suppress at 3, United States v.
Henry, No. 2:14-cr-64-JDL (D. Me. Oct. 17, 2014), ECF No. 47. See
United States v. Paneto, 661 F.3d 709, 711–12, 713 n.1 (1st Cir.
2011) (reciting facts as supportably found by the district court
when defendant did not challenge the district court's factual
findings).

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trafficked from Michigan to New York for purposes of prostitution.

She was developmentally delayed, functioning at the level of an

eleven- or twelve-year-old.

Upon examining guest lists at Portland-area hotels where

prostitution and other illegal activities were known to occur,

Portland Police Officer Mark Keller discovered that Henry was

staying at a nearby motel. Officer Keller was familiar with Henry

because Henry had previously been identified by the Portland Police

Department, the Maine Drug Enforcement Agency, and other federal

agencies as a person involved in drug and sex trafficking in the

Portland area. Henry also had an extensive criminal history in

New York for charges related to drug distribution, weapons,

firearms, and resisting arrest. The Portland police did not then

have information specifically linking Henry to A.H., but they did

know he was linked to sex trafficking in New York and to the

temporary disappearance of a fifteen-year-old female from the

Portland area in July 2013.2

2An aunt who reported the girl's disappearance reported that
the girl may have been trafficked out-of-state for purposes of
prostitution. The girl subsequently returned home accompanied by
a person named "L.T.," a pseudonym occasionally used by Henry.
Approximately two weeks later, Henry's vehicle was stopped by the
Portland Police and Officer Keller was called to the scene. Henry
consented to the examination of his two cell phones. On one of
the phones, Officer Keller found text messages between Henry and
the girl, who was also listed among Henry's contacts. Henry was
not arrested at the time.

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 When they arrived at the motel, Officer Keller and

Officer Daniel Townsend observed Henry's car in the parking lot.

They obtained Henry's room number and, joined by Sergeant Frank

Gorham, went to his room to perform a "knock and talk."3 In the

hallway outside Henry's room, the officers observed drug

paraphernalia and various people whom, the officers suspected,

were engaged in drug- and prostitution-related activities.

After knocking and announcing their presence as police,

the officers heard the sounds of a flushing toilet, running water,

people moving about quickly inside the motel room, and something

that sounded like a metal object hitting the floor. Approximately

ninety seconds later, Henry opened the door to a room that smelled

of recently smoked marijuana. Officer Townsend introduced himself

and told Henry that the officers wished to speak with him and ask

him questions. Officer Townsend asked whether the officers could

step inside the motel room because of the activity and traffic in

the hallway, and Henry agreed.

Officer Townsend performed a protective sweep of the

room, during which he found a bag containing what appeared to be

marijuana at the foot of one of the two beds. He then positioned

himself in the middle of the room, facing the door. The officers

3 A "knock and talk" occurs when police officers approach a
residence without a search warrant, and "seek[] to speak to an
occupant for the purpose of gathering evidence." Florida v.
Jardines, 133 S. Ct. 1409, 1423 (2013) (Alito, J., dissenting).

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observed that a light was on in the bathroom and they heard running

water and movement inside. When asked who was in the bathroom,

Henry responded "my girl," who he referred to, after a pause, as

"Big Sasha." When asked for her real name, he said he thought it

was "Allure." Without being asked, Henry informed the officers

that she was from Michigan, and he began to appear more anxious.

Upon the officers' request, the young woman exited the bathroom

and Officer Keller recognized her as A.H., whom he had seen in a

photograph. When Officer Keller asked A.H. to step into the

hallway so they could speak privately, Henry protested and yelled

at A.H. that she did not have to speak to the officers or answer

any questions.

After A.H. left the room with Officer Keller, Officer

Townsend asked Henry to sit down in a chair near the corner of the

room because Henry had become increasingly excited as A.H. left

the room. Henry obliged. Officer Townsend spoke with Henry in a

conversational manner, keeping a clear passage between where Henry

was seated and the room's door in order to avoid creating a

custodial situation. From his conversation with Henry, Officer

Townsend learned that Henry knew very little about A.H. Henry

became increasingly nervous, glancing repeatedly at a jacket

hanging on a clothes rack in the corner of the room, appearing

concerned about something in that area. On the floor near the

rack, Officer Townsend saw a metal hanger, which he inferred had

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created the metal sound he had heard immediately after the officers

had knocked on the door. He also recalled having seen one of the

hangers swaying on the rack when he first entered the room. Henry

continued to glance at the jacket, which had a visible bulge in

one of its pockets. Officer Townsend grew concerned that there

might be a weapon in the pocket, so he patted the outside of the

jacket. From the feel and sound of the object inside the pocket,

he recognized it as being a large amount of cash wrapped in

plastic. Officer Townsend removed the item from the pocket,

finding a single plastic bag containing wads of cash wrapped in

three separate plastic bags, about four inches thick in total,

folded in different denominations with rubber bands. The money

was later determined to total approximately $12,700. Henry

initially claimed that his mother had given him the money, but he

could not explain why he did not keep it in a more secure location.

Officer Townsend observed two smart phones sitting in

plain view: an iPhone sitting on the bed and a Nokia plugged into

the wall next to the television. When asked about the phones,

Henry became nervous, answering that he used the iPhone to take

pictures and that the Nokia "really wasn't his." Knowing that

people involved in sex trafficking often use cell phones to set up

"dates," communicate with prostitutes, and take pictures of

prostitutes to post on websites, Officer Townsend asked Henry for

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the phone numbers of the phones and for the iPhone's password, all

of which Henry provided.

Officer Keller interviewed A.H. separately. She stated

that she had met Henry in Brooklyn, New York, that they had driven

together to Maine, and that she had known him only for a couple of

days. She did not know his name, and although she said that Henry

treated her "okay," she said that she did not want to stay with

him or go back in to the room, and that she had seen a silver

firearm in the motel room the previous day. After speaking with

Officer Keller, Officer Townsend called Maine Assistant Attorney

General Leanne Sutton, who told him to seize the phones and money

and to apply for a search warrant.

Officer Townsend told Henry that the police would seek

a search warrant to search the motel room and that if he did not

want to wait while the warrant was obtained, he could leave after

Officer Townsend checked his clothing and any other items Henry

wanted to take with him. Henry was issued a summons for possession

of a useable amount of marijuana, got dressed, and left. The

entire encounter in the motel room lasted approximately ten to

fifteen minutes.

A series of search warrants was subsequently issued, the

first to search the motel room and Henry's car. The second search

warrant, issued a week later, authorized the search of the iPhone

and Nokia phone that had been seized without a warrant and then

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retained pursuant to the first search warrant at Portland Police

headquarters. The affidavits for the first and second warrants

included information obtained from the officers' conservations

with A.H. The affidavits did not include any information about

A.H.'s developmental disability.

The search of the iPhone conducted pursuant to the second

warrant yielded a video located in an application on the phone

that depicted Henry engaging in sexual intercourse with a young

woman whom Officer Keller recognized as the fifteen-year-old girl

("M.V.") who had been reported missing and connected to Henry in

July 2013. The video was stored in an application named "TangoME,"

which had been used to send the video to a Yahoo.com email account.

A third search warrant authorized a more in-depth search of the

iPhone and the ensuing search revealed additional videos of M.V.

and Henry engaged in sexual conduct. A federal arrest warrant was

then sought and obtained.

The two counts of violating section 2251(a) to which

Henry pleaded guilty arose out of the videos discovered on the

iPhone. Henry sought to suppress, among other things, the cash,

his possession of which was cited in the affidavits to obtain the

warrant to search the videos, and the videos themselves, contending

that the searches leading to their discovery were unlawful. He

also filed a motion in limine asking the district court to rule

that, at trial, he would be entitled to assert a "mistake of age"

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defense based on his contention that M.V. told him that she was

nineteen years old. After the district court denied both motions,

Henry entered and the court accepted his conditional guilty plea.

In accepting the plea, Henry admitted that on January 25 and 26,

2014, he used the video function of his iPhone to film two videos

of himself and M.V. engaging in sexual activity, and that between

January 27 and January 30, 2014, he used an application on his

iPhone to transmit one of the videos to approximately ten people.

Henry was sentenced to 180 months in prison on each count, to run

concurrently, followed by five years of supervised release on each

count, also to run concurrently.

II. Analysis

A. Motion in Limine

We review de novo Henry's argument that section 2251(a)

must be construed to allow a "mistake of age" defense in order to

pass constitutional muster. United States v. Carter, 752 F.3d 8,

12 (1st Cir. 2014). We begin by discussing the statutory provision

at issue. Section 2251(a) states that

[a]ny person who employs, uses, persuades,
induces, entices, or coerces any minor to
engage in, or who has a minor assist any other
person to engage in, or who transports any
minor in or affecting interstate or foreign
commerce, or in any Territory or Possession of
the United States, with the intent that such
minor engage in, any sexually explicit conduct
for the purpose of producing any visual
depiction of such conduct or for the purpose
of transmitting a live visual depiction of

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 such conduct, shall be punished as provided
under subsection (e), if such person knows or
has reason to know that such visual depiction
will be transported or transmitted using any
means or facility of interstate or foreign
commerce or in or affecting interstate or
foreign commerce or mailed, if that visual
depiction was produced or transmitted using
materials that have been mailed, shipped, or
transported in or affecting interstate or
foreign commerce by any means, including by
computer, or if such visual depiction has
actually been transported or transmitted using
any means or facility of interstate or foreign
commerce or in or affecting interstate or
foreign commerce or mailed.

18 U.S.C. § 2251(a).

The foregoing text plainly does not require that a person

convicted of violating the statute needs to know the actual age of

the minor victim. We recently explained, in United States v. Ford,

No. 15-1303, 2016 WL 1458938 (1st Cir. Apr. 13, 2016), that when

a statute is silent as to a required state of mind, "we turn to a

line of Supreme Court 'cases interpreting criminal statutes to

include broadly applicable scienter requirements, even where the

statute by its terms does not contain them,'" id. at *4 (quoting

United States v. X-Citement Video, Inc., 513 U.S. 64, 70 (1994)).

Of import in this case, however, is our recognition that "[t]his

long-standing rule of statutory interpretation may be overborne by

'some indication of congressional intent, express or

implied, . . . to dispense with mens rea as an element of a crime.'"

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Id. (omission in original) (quoting Staples v. United States, 511

U.S. 600, 606 (1994)(italics omitted)).

The House Conference Report on the version of

section 2251(a) that Congress enacted contains such an indication.

It states:

The Senate bill contains an express
requirement in proposed section 2251(a) that
the crime be committed "knowingly." The House
Amendment does not. The Conference Substitute
accepts the House provision with the intent
that it is not a necessary element of a
prosecution that the defendant knew the actual
age of the child.

H.R. Rep. No. 95-811, at 5 (1977) (Conf. Rep.).

1. First Amendment

Given this clear indication overriding our general

presumption in favor of a scienter requirement in criminal

statutes, one might conclude without further ado that the

defendant's knowledge or lack of knowledge concerning the victim's

actual age is irrelevant in a prosecution for violating section

2251(a). Henry, though, points to the Ninth Circuit's decision in

United States v. United States District Court, 858 F.2d 534 (9th

Cir. 1988) ("District Court"), holding that section 2251(a)

unconstitutionally suppresses protected speech unless an

affirmative lack of scienter defense is read into the statute, id.

at 540–44. Relying on District Court, Henry claims that the threat

of strict criminal liability under section 2251(a) will deter the

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production of a substantial amount of constitutionally protected

pornography using young adult performers because it is not always

possible to be certain that a person is as old as the person claims

to be. While Henry presses no argument that he has or will be so

deterred, First Amendment overbreadth doctrine accords Henry

standing to raise such a challenge. See New York v. Ferber, 458

U.S. 747, 767–69 (1982); United States v. Sayer, 748 F.3d 425,

434–35 (1st Cir. 2014) (citing Ferber, 458 U.S. at 767). Further,

he contends that the availability of such an affirmative defense

could have altered the outcome of his case, because M.V. told him

she was nineteen years old.

Overbreadth doctrine is "strong medicine" to be employed

with hesitation, "and then 'only as a last resort.'" Ferber, 458

U.S. at 769 (quoting Broadrick v. Oklahoma, 413 U.S. 601, 613

(1973)). "[P]articularly where conduct and not merely speech is

involved, . . . the overbreadth of a statute must not only be real,

but substantial as well, judged in relation to the statute's

plainly legitimate sweep." Broadrick, 413 U.S. at 615.

Since the Ninth Circuit issued its opinion in District

Court, the Supreme Court has pointed to the limited scienter

requirements of section 2251(a) without raising an eyebrow, X-

Citement Video, Inc., 513 U.S. at 76 n.5,4 and five other circuits

4 Henry would have us read X-Citement Video as favorable to
his claim because it held that to convict a distributor or receiver

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have since rejected the reasoning and rationale adopted by the

Ninth Circuit. See United States v. Fletcher, 634 F.3d 395, 404

(7th Cir. 2011); United States v. Humphrey, 608 F.3d 955, 962 (6th

Cir. 2010); United States v. Pliego, 578 F.3d 938, 943–44 (8th Cir.

2009); United States v. Malloy, 568 F.3d 166, 176–77 (4th Cir. 2009);

United States v. Deverso, 518 F.3d 1250, 1257–58 (11th Cir. 2008).

We have yet to offer any view on the issue. United States v.

Encarnación-Ruiz, 787 F.3d 581, 584 n.1 (1st Cir. 2015).

We adopt the majority view. "It is evident beyond the

need for elaboration that [the government's] interest in

'safeguarding the physical and psychological well-being of a

minor' is 'compelling.'" Ferber, 458 U.S. at 756–57 (quoting Globe

Newspaper Co. v. Superior Court, 457 U.S. 596, 607 (1982)). The

government promotes this compelling interest by requiring the

producers of pornography to be certain that performers of

pornographic acts are not minors. See id. At the same time, there

of child pornography under 18 U.S.C. § 2252, the government must
prove that the person knew the age of the actors depicted, X-
Citement Video, Inc., 513 U.S. at 78. In so doing, however, the
Supreme Court explicitly distinguished section 2251 from
section 2252. The Court analogized section 2251(a) to sex
offenses, such as rape, which it said are frequently "expressly
excepted" from the presumption of mens rea, because producers,
unlike distributors or receivers, "confront[] the underage victim
personally and may reasonably be required to ascertain that
victim's age." Id. at 72 n.2. And "[t]he opportunity for
reasonable mistake as to age" is more likely to arise "once the
victim is reduced to a visual depiction, unavailable for
questioning by the distributor or receiver." Id. X-Citement
Video, therefore, harms, rather than helps, Henry's cause.

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is no indication, or reason to think, that section 2251(a) as

written has substantially chilled the production of

constitutionally protected pornography. Rather, common sense

suggests--and the record does not belie--that producers of

pornography simply take added care to verify the ages of their

performers, rather than foregoing production.5 Malloy, 568 F.3d

at 176 & n.8.

Of course, we recognize that the widespread use of smart

phones with photographic and video capabilities has led to an

apparent explosion in the "production" of pornographic images by

amateurs in non-commercial settings, who presumably pay less

attention to regulatory requirements, criminal or otherwise. This

phenomenon does suggest the possibility that these amateur

producers might not employ the methods that commercial producers

employ to verify the ages of those who are filmed. On the other

hand, it may well be that the amateurs are more likely to know

their subjects. And the technology that makes amateur video

production and distribution easier also tends to make it easier to

verify ages. See Gilmour v. Rogerson, 117 F.3d 368, 372–73 (8th

5 In fact, pornography producers are already required to
authenticate actors' ages. See 18 U.S.C. § 2257(b)(1) (requiring
producers to "ascertain, by examination of an identification
document containing such information, the performer's name and
date of birth, and require the performer to provide such other
indicia of his or her identity as may be prescribed by
regulations").

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Cir. 1997) ("In this information age, a prudent photographer or

movie producer may readily and independently confirm the age of

virtually every young-looking model."). In any event, such an

apparent proliferation of pornography provides no support for a

claim that section 2251(a) is chilling a substantial amount of

speech in relation to the plain scope of its reach.

2. Fifth Amendment

Henry argues, next, that a criminal conviction of an

offense with a minimum fifteen-year sentence, see 18 U.S.C.

§ 2251(e), violates the Fifth Amendment right to due process in

the absence of some showing of at least a lack of care in failing

to determine that the person depicted was at the time a minor. As

authority for this contention, Henry points to Lambert v.

California, 355 U.S. 225, 229-30 (1957). Lambert, however,

expressly acknowledged the general rule that "[t]here is wide

latitude in the lawmakers to declare an offense and to exclude

elements of knowledge and diligence from its definition." Id. at

228. Lambert found that latitude exceeded in a case where the

criminal conduct consisted solely of a failure to act in the

absence of any reason to think one need act (i.e., by failing to

register with city officials as a felon). Id. Here, Henry is

charged with his affirmative action, and he points to no authority

establishing or even suggesting that Congress could not

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criminalize such action while also eliminating any scienter

requirement.

Furthermore, there is no per se prohibition on strict

liability crimes coming with mandatory minimum sentences. In

McQuoid v. Smith, 556 F.2d 595 (1st Cir. 1977), we held that

mandatory sentences for a strict liability crime do not violate

the Eighth Amendment as long as they are not "grossly

disproportionate" to the crime, id. at 599. Given the seriousness

of the crime at issue here--sexual exploitation of a minor--we

cannot say that a mandatory minimum sentence of fifteen years is

"grossly disproportionate."

B. Motion to Suppress

Henry's motion to suppress addressed numerous issues,

but his appeal only addresses the pat-down and seizure of the cash

from the jacket, the search and seizure of the smart phones, and

the district court's refusal to conduct a testimonial hearing

concerning the adequacy of the search warrants. He contends that

the officers lacked probable cause for these searches and seizures,

and that therefore all subsequent events (e.g., the follow-up

warrants to search the phones, the discovery of the videos with

the minor, his arrest), were "fruits of the poisonous tree" and so

must also be suppressed. Wong Sun v. United States, 371 U.S. 471,

488 (1963).

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 Henry does not challenge the district court's findings

of fact. We review his challenge to the court's application of

the relevant laws to these facts de novo. United States v.

Cameron, 699 F.3d 621, 637 (1st Cir. 2012).

1. Jacket Pocket Search and Seizure of Cash

The affidavit used to procure the warrant to search the

iPhone on which the police discovered the incriminating videos

pointed to the cash found in Henry's jacket. Henry argues that

the search and seizure of the cash was unlawful and that the

subsequent warrant was, as a result, the fruit of an unlawful

search.

"[T]he police must, whenever practicable, obtain advance

judicial approval of searches and seizures through the warrant

procedure." Terry v. Ohio, 392 U.S. 1, 20 (1968). The Supreme

Court recognizes an exception to this requirement in certain

circumstances. In Terry, the Court held that

where a police officer observes unusual
conduct which leads him reasonably to conclude
in light of his experience that criminal
activity may be afoot and that the persons
with whom he is dealing may be armed and
presently dangerous, . . . he is entitled for
the protection of himself and others in the
area to conduct a carefully limited search of
the outer clothing of such persons in an
attempt to discover weapons which might be
used to assault him.

Id. at 30. The permissible scope of pat-down searches includes

areas within the suspect's immediate control from which he may

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gain possession of a weapon. Michigan v. Long, 463 U.S. 1032,

1048 (1983). This rule seeks to protect officer safety. See

United States v. Romain, 393 F.3d 63, 75 (1st Cir. 2004).

On appeal, Henry does not appear to dispute that a

reasonable suspicion of criminal activity existed at the time

Officer Townsend performed the pat-down of his jacket.6 Henry

instead claims that the jacket, which was approximately eight feet

from where Henry sat, "was well outside of [his] reach," and that

the officers had "positioned themselves strategically . . . to

limit his range of movement." Henry, though, got up from the chair

a few times during his conversation with Officer Townsend. And

Officer Townsend testified that he specifically positioned himself

to avoid a custodial situation, suggesting that Henry was free to

leave at any time and therefore could have accessed the jacket.

6 Nor could he, given the motel's known involvement in drug
and sex trafficking, the presence of drug paraphernalia in the
motel hallway, Henry's history of drug- and sex-trafficking
related charges, his link to the 2013 disappearance of a fifteen-
year-old girl in Portland, his sketchy answers to questions about
A.H., the marijuana found in the motel room, the smell of marijuana
in the motel room, the sounds heard before Henry opened the door
that were consistent with the movement of persons attempting to
dispose of or hide contraband, and Henry yelling at A.H. not to
answer the officers' questions, among other things. The totality
of the circumstances demonstrated that Officer Townsend's
apprehension of danger was reasonable. See United States v.
Arnott, 758 F.3d 40, 44–45 (1st Cir. 2014) (officer had reasonable
suspicion that defendant posed a danger during a traffic stop when
defendant appeared nervous when questioned, and the officer had
reason to believe that vehicle occupants had just conducted a drug
transaction because "[t]he connection between drugs and violence
is, of course, legendary").

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 Furthermore, the fact that Henry was eight feet from the

jacket does not necessarily mean the jacket fell outside the

vicinity within which Officer Townsend could perform a pat-down if

he had a reasonable suspicion that the jacket may contain a weapon.

In United States v. Nascimento, 491 F.3d 25 (1st Cir. 2007), we

upheld an officer's incidental search of a closet even though the

unrestrained arrestee was eight to ten feet from the closet and

two officers were positioned between him and the closet, id. at

50–51. Given that Henry was not yet under arrest, not restrained,

and not prohibited from moving about the room, Officer Townsend

was permitted to perform the pat-down based on his reasonable

concern that the jacket may have contained a weapon.

Henry next claims that even if the pat-down of the pocket

was lawful, Officer Townsend did not have authority to reach into

the pocket and seize the money. During a lawful Terry pat-down,

the "plain feel exception"--an extension of the "plain view

doctrine"--permits an officer to seize an object if its

incriminating identity is immediately apparent. Minnesota v.

Dickerson, 508 U.S. 366, 375 (1993). The plain feel doctrine does

not, however, permit an item to be seized if its incriminatory

nature only comes to light after further inquiry or search, such

as "squeezing, sliding [or] otherwise manipulating the contents of

the defendant's pocket." Id. at 378 (quoting State v. Dickerson,

481 N.W.2d 840, 844 (Minn. 1992)).

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 Henry argues that the incriminating nature of the cash

--and thus probable cause to seize it--only came to light after

further inquiry, in the form of counting the cash to determine

that it was a large amount of money (and therefore more indicative

of its criminal nature), and asking Henry where the money came

from and why it was not kept in a more secure location. Cf. United

States v. Schiavo, 29 F.3d 6, 9 (1st Cir. 1994).

The district court, however, did not rely on this

subsequent inquiry to conclude that Officer Townsend had

"appropriate reasonable suspicion" to seize the cash. Order on

Motion to Suppress at 25, United States v. Henry, No. 2:14-cr-JDL

(D. Me. Oct. 17, 2014), ECF No. 47 [hereinafter "Order on Motion

to Suppress"]. Rather, the district court rested its conclusion

on its finding that "Officer Townsend recognized from his initial

pat-down that the bulge in Henry's pocket was a large amount of

cash" and that he was "immediately aware of the cash's

incriminating nature." Id. at 25–26 (emphasis supplied). In

contrast, the officer in Schiavo admitted that he did not

immediately know what was in the defendant's pocket after

conducting the pat-down and only became aware of its contents after

removing the item. Schiavo, 29 F.3d at 9. Henry does not claim

that the district court clearly erred in finding the officer's

testimony concerning his remarkable powers of discernment to be

credible, so we deem it to be correct. See United States v.

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Paneto, 661 F.3d 709, 713 n.2 (1st Cir. 2011). Officer Townsend

further testified that in his experience, cash found on suspects

is frequently deemed contraband in drug- and sex-trafficking

crimes, and the district court--in its capacity as factfinder and

credibility assessor--accepted this version of the facts. Cf.

United States v. Sepulveda, 15 F.3d 1161, 1201 (1st Cir. 1993)

(district court entitled to find it "reasonably probable that

confiscated cash represents either drug profits or money dedicated

to the upcoming purchase of contraband"). Officer Townsend's

seizure of the cash was therefore permissible because he had

probable cause to believe that the cash was evidence of drug or

sex trafficking.

2. Smart Phones

Henry also claims that the district court should have

suppressed the evidence obtained from the smart phones because the

officers lacked appropriate justification to seize the phones in

the first instance. The district court concluded that the seizure

of the phones was lawful because they were found "in plain view"

after the officers "acquired sufficient information to have

probable cause to believe that the phones were contraband

associated with sex trafficking."7 Order on Motion to Suppress at

27.

7
The district court relied on the plain view doctrine in
concluding that the seizure of the cell phones was lawful. It did

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 Under the "plain view" doctrine, a search warrant is not

required for a seizure if three requirements are met: (1) the

officers' presence at the point of discovery is lawful; (2) the

discovery of the seized item is inadvertent; and (3) the item's

evidentiary value is immediately apparent. United States v.

Rutkowski, 877 F.2d 139, 140–41 (1st Cir. 1989). Henry focuses on

the third requirement, arguing that the officers did not have

probable cause to believe the phones had immediately apparent

evidentiary value.

We disagree. At the time he seized the phones, Officer

Townsend had probable cause to believe the phones had evidentiary

value based on (1) Henry's nervousness and anxiety when questioned

about the phones; (2) Henry's statement that he used the phones to

take photographs, which Officer Townsend believed was significant

in the context of a sex-trafficking investigation; (3) the possible

existence of a sex-trafficking relationship with A.H., given the

large sums of cash found in the motel room, Henry's inability to

provide much information about A.H.'s identity, and his statement

that A.H. was from Michigan, which connected her to the report

received from the Michigan HSI; and (4) the fact that Officer

Keller knew that Henry had previously used a phone to contact the

fifteen-year-old girl who had been reported missing in Portland

not make a finding of consent to the seizure. Order on Motion to
Suppress at 27.

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and suspected of being involved in trafficking, see supra n.2.

And although using a phone to take photographs is not inherently

criminal, in the context of a sex-trafficking investigation, and

based on Officer Townsend's knowledge and experience that smart

phones are frequently used to take photographs of sex trafficking

victims and to facilitate prostitution, this, along with the other

information known to him at the time, was enough for Officer

Townsend to have probable cause to believe that the phones likely

had evidentiary value in the investigation of the suspected crimes.

Henry nevertheless suggests that Riley v. California,

134 S. Ct. 2473 (2014), calls for greater caution in allowing the

warrantless seizure of a smart phone. Riley's concerns about the

warrantless search of digital data stored within a smart phone are

not implicated here, however, because by the time the phones were

searched, a warrant had been obtained. It thus appears that the

officers did exactly what the Supreme Court suggested they do:

seize the phones to prevent destruction of evidence but obtain a

warrant before searching the phones. Cf. id. at 2486–87.

3. Franks Hearing

In his motion to suppress, Henry challenged the

affidavits used to procure the first and second warrants because

they failed to mention A.H.'s developmental disability. Based on

that omission, Henry sought a hearing pursuant to Franks v.

Delaware, 438 U.S. 154 (1978), to challenge the issuance of the

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warrants. To secure such a hearing, Henry had to make "a

substantial preliminary showing," id. at 155, "(1) that a false

statement or omission in the affidavit was made knowingly and

intentionally or with reckless disregard for the truth; and (2)

the falsehood or omission was necessary to the finding of probable

cause," United States v. Rigaud, 684 F.3d 169, 173 (1st Cir. 2012).

The burden is on the challenger to make these showings by a

preponderance of the evidence. United States v. Graf, 784 F.3 1,

11 (1st Cir. 2015).

Based on the record and upon reviewing the affidavits

issued in support of the first and second warrants, the district

court concluded that the omission of A.H.'s developmental delays

was not "material to such a degree that had the judicial officer

been so informed, the officer would have been unwilling to rely on

the information included in the affidavit that was attributed to

A.H." Order on Motion to Suppress at 28. We review that conclusion

for clear error. Rigaud, 684 F.3d at 174. "Clear error 'exists

only when we are left with the definite and firm conviction that

a mistake has been committed.'" Id. (quoting United States v.

D'Andrea, 648 F.3d 1, 14 (1st Cir. 2011)).

Even if we omit from the two affidavits all of the

information gleaned from conversations with A.H., both affidavits

are left with plenty of information to support the magistrate's

determination that there was "a fair probability that contraband

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or evidence of a crime will be found in a particular place."

United States v. Reiner, 500 F.3d 10, 15 (1st Cir. 2007) (quoting

Illinois v. Gates, 462 U.S. 213, 238 (1983)). In the affidavit

supporting the first warrant, which authorized the search of

Henry's motel room and car, Officer Keller included the following

information that was not obtained from A.H.:

• The information from HSI Special Agent Cara Rose that a

woman named A.H. from Michigan was a possible victim of

trafficking and may be in a Portland-area hotel;

• Officer Keller's personal knowledge that Henry has been

associated with prostitutes and drug activity in the

Portland area;

• The odor of marijuana in the motel room;

• Henry's statement that A.H. was from Michigan, connecting

her to the report from Michigan HSI;

• The identification of the woman who emerged from the

bathroom as A.H. based on photos sent by investigators;

• Henry yelling at A.H. and telling her not to talk to the

officers;

• Henry's inability to give much information about A.H.;

• The large amounts of cash found by Officer Townsend.

Officer Keller knew "through training, education, and

experience that subjects involved in drug and sex

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 trafficking possess large quantities of money in exchange

for product and/or services";

• The two cell phones. Officer Keller knew "through

training, education, and experience that subjects

involved in drug and sex trafficking carry multiple

cellular phones for the furtherance of their criminal

activity"; and

• Officer Keller's knowledge of Henry's prior criminal

history in New York.

Similarly, Officer Townsend's affidavit provided in

support of the second warrant to search the cell phones would be

supported by probable cause even if the information gleaned from

A.H. was omitted, based on:

• The information from Special Agent Rose that a woman

named A.H. was a possible victim of trafficking and may

be in a Portland-area hotel;

• Officer Townsend's familiarity with Henry from previous

contacts and knowledge that he is associated with drug

and sex trafficking;

• The identification of A.H. as the woman who emerged from

the bathroom;

• Henry's inability to inform Officer Townsend of A.H.'s

name. "Due to [his] education, training, and

experience," Officer Townsend knew "that subjects

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 involved with both drug and sex trafficking are unaware

of their accomplices' legal names";

• Henry's growing anxiety when asked information about the

phones;

• The fact that he knew, "[d]ue to [his] education,

training, and experience," that subjects involved in drug

and sex trafficking carry multiple cellular phones for

the furtherance of their criminal activity;

• The discovery of marijuana during the protective sweep;

and

• Henry's "furtive conduct" and subsequent discovery of a

large sum of cash in his jacket pocket, which is

"indicative of drug and sex trafficking."

Based on the foregoing information that was contained in

the affidavits and that was not obtained from A.H., we simply

cannot say that the district court erred, let alone clearly erred,

in concluding that Henry had not shown, by a preponderance of the

evidence, that the failure to mention A.H.'s disability affected

the probable cause determination reached in issuing the first and

second warrants.

III. Conclusion

The judgment of the district court is affirmed.

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