                          This opinion will be unpublished and
                         may not be cited except as provided by
                         Minn. Stat. § 480A.08, subd. 3 (2014).

                              STATE OF MINNESOTA
                              IN COURT OF APPEALS
                                    A16-0109

                                  State of Minnesota,
                                     Respondent,

                                          vs.

                                 Arthur Senty-Haugen,
                                      Appellant.

                               Filed December 19, 2016
                                      Affirmed
                                     Kirk, Judge

                             Carlton County District Court
                               File No. 09-CR-14-2335

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Thomas Pertler, Carlton County Attorney, Jesse D. Berglund, Assistant County Attorney,
Carlton, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sharon E. Jacks, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

      Considered and decided by Kirk, Presiding Judge; Bjorkman, Judge; and Smith,

Tracy M., Judge.

                        UNPUBLISHED OPINION

KIRK, Judge

      On his appeal from his bribery conviction, appellant argues that the district court

erred by: (1) denying his motion to suppress evidence seized during a warrantless search
of the digital contents of his smartphone and (2) denying him credit for 22 days in jail. We

affirm.

                                           FACTS

          This case raises the issue of whether an involuntarily civilly committed person

retains a legitimate expectation of privacy in the contents of a smartphone that was seized

by staff members of the Minnesota Sex Offender Program (MSOP).

          The parties do not dispute the facts. Appellant Arthur Senty-Haugen is indefinitely

civilly committed as a sexual psychopathic personality and sexually dangerous person

(SDP/SPP) at MSOP. Senty-Haugen v. Goodno, 462 F.3d 876, 880 (8th Cir. 2006). On

August 12, 2014, an MSOP staff member was performing random room checks and

discovered appellant holding a device emitting a bright light, which the staff member

believed to be a smartphone. Staff searched appellant’s room and found a phone charger.

As staff transferred appellant to a high-security area to perform a body search, a Samsung

Galaxy S5 smartphone slid out from his pant leg. Electronic communication devices,

including cell phones, are considered contraband. MSOP Policy 301.030. The policy

defines contraband as “items which are prohibited by Statute or Policy, or deemed a risk

to the safety, security or therapeutic environment impacting the program or a [patient].”

Id. A smartphone is only allowed for approved individuals inside the secure perimeter for

business-related purposes. MSOP Policy 301.025.

          Kenneth Stewart, an MSOP investigator, testified at the contested omnibus hearing

about MSOP’s investigation into the smuggling of the smartphone into the facility. Stewart




                                               2
explained that MSOP did not seek a warrant to search the phone because appellant’s

possession of the phone merely violated MSOP’s security policies and was not a crime.

MSOP staff and administrators did not know, and appellant refused to disclose, how he

had managed to obtain the smartphone. Stewart testified that the MSOP administrators

were concerned about appellant’s ability to use the phone to circumvent the facility’s

monitored telephone system and the potential of an ongoing security breach inside the

facility.

        Forensic IT specialists at the Minnesota Department of Human Services (DHS)

lacked the necessary software to unlock the digital contents of the smartphone. MSOP

administrators next solicited the assistance of a forensic investigator from the Santa

Barbara Police Department in California. The investigator extracted the smartphone’s data

and copied the data onto a disk, which MSOP officials reviewed. Data from the disk

included text messages indicating that appellant had paid an MSOP staff member $3,000

to smuggle the smartphone into the facility. MSOP officials questioned the staff member,

and he admitted that appellant paid him $3,000 to smuggle the smartphone into MSOP.

        Respondent State of Minnesota charged appellant with felony bribery. Appellant

moved to suppress the evidence discovered during the warrantless search of his

smartphone. Relying on Riley v. California, 134 S. Ct. 2473 (2014), he asserted that he

retained a reasonable private interest in the digital contents of the smartphone and that no

exigent circumstances existed allowing MSOP officials to search the phone without a




                                             3
warrant. He also asserted that the search was unreasonable because existing MSOP policy

only allowed staff to seize the smartphone, but not to search its contents.

       After a contested omnibus hearing, the district court issued an order denying

appellant’s motion. It implicitly found that appellant retained a legitimate expectation of

privacy in the contents of his electronic devices under Riley and State v. Barajas, a recent

decision from this court. 817 N.W.2d 204 (Minn. App. 2012), review denied (Minn. Oct.

16, 2012). In Riley, the Supreme Court held that a search warrant is generally required

before law enforcement may search information stored on a cell phone. 134 S. Ct. at 2493.

In Barajas, this court held that the digital contents of cell phones are subject to Fourth

Amendment protections. 817 N.W.2d at 216-17. But the district court noted that, as an

involuntarily civilly committed patient, appellant retained a diminished expectation of

privacy after commitment to a custodial facility similar to a pretrial detainee.

       The district court applied the balancing test announced in the U.S. Supreme Court

decision Bell v. Wolfish, which is used to determine the reasonableness of a search under

the Fourth Amendment for pretrial detainees. 441 U.S. 520, 99 S. Ct. 1861 (1979). It

concluded that the search of the digital contents of appellant’s phone was reasonable on

the grounds that a phone in the possession of an involuntarily committed SDP/SPP could

be used to circumvent MSOP’s monitoring policies, and it presented a grave security threat

for both MSOP and the public. It cited MSOP’s strict regulations concerning the use of

mobile devices by MSOP staff and administrators. See, e.g., MSOP Policy 301.030

(prohibiting patients from possessing contraband including cell phones within and on the




                                              4
grounds of all MSOP facilities). It also cited MSOP Policy 301.010, which authorizes

MSOP to search personal effects for contraband by visual, canine, or electronic means.

       On September 15, 2015, appellant stipulated to the state’s case to obtain appellate

review of the district court’s denial of appellant’s suppression motion. See Minn. R. Crim.

P. 26.01, subd. 4. The district court accepted appellant’s plea and sentenced him to a

bottom-of-the-box sentence of 26 months, with credit for 383 days.

       This appeal follows.

                                     DECISION

I.     The district court did not err in denying appellant’s motion to suppress
       evidence seized from a warrantless search of the digital contents of his
       smartphone.

       When reviewing a pretrial order on a motion to suppress evidence, we review the

district court’s factual findings for clear error, giving due weight to the inferences the

district court draws from those facts, but we determine as a matter of law whether the

district court erred in suppressing or not suppressing the evidence. State v. Diede, 795

N.W.2d 836, 843 (Minn. 2011).

       Both the United States Constitution and the Minnesota Constitution prohibit

unreasonable searches and seizures. U.S. Const. amend. IV; Minn. Const. art. I, § 10. In

determining whether an individual’s Fourth Amendment rights are implicated, “(1) the

search must be of an area in which the person has an expectation of privacy and (2) the

person’s expectation of privacy must be one that is recognized within society as

reasonable.” Barajas, 817 N.W.2d at 213. Whether appellant can invoke the protections




                                            5
of the Fourth Amendment requires this court to first determine whether appellant exhibited

an actual subjective expectation of privacy in the smartphone, and second, whether that

expectation is reasonable. In re Welfare of B.R.K., 658 N.W.2d 565, 571 (Minn. 2003)

(citing Katz v. United States, 389 U.S. 347, 351, 88 S. Ct. 507 (1967)).

       Both parties agree that appellant had a subjective expectation of privacy in the

digital contents of his smartphone. The issue before the court is the reasonableness of

appellant’s expectation of privacy. “If there is no legitimate expectation of privacy, then

there can be no Fourth Amendment violation.” United States v. Bach, 310 F.3d 1063, 1066

(8th Cir. 2002). As an involuntary civilly committed patient, appellant has the same Fourth

Amendment protections as a pretrial detainee. Serna v. Goodno, 567 F.3d 944, 948 (8th

Cir. 2009). Pretrial detainees retain a diminished expectation of privacy after commitment

to a custodial facility. Bell, 441 U.S. at 522, 99 S. Ct. at 1865.

       Appellant argues that under Riley, he retains a reasonable, but diminished,

expectation of privacy in the digital contents of his smartphone and that no MSOP policy

authorized the warrantless search of the phone. The state argues that Riley does not apply

because its holding is limited to warrantless searches by law enforcement of an arrestee’s

phone under the search-incident-to-arrest exception.

       The parties’ arguments reflect a lack of certainty about the extent of privacy

protections afforded to the electronic media devices of pretrial detainees under Riley. Any

constitutional guarantee, however, only protects against unreasonable intrusions or

searches that “are not justified in the circumstances, or which are made in an improper




                                              6
manner.” Schmerber v. California, 384 U.S. 757, 768, 86 S. Ct. 1826, 1834 (1966). “The

test of reasonableness under the Fourth Amendment is not capable of precise definition or

mechanical application.” Bell, 441 U.S. at 559, 99 S. Ct. at 1884. A district court must

balance “the need for the particular search against the invasion of personal rights that the

search entails” by considering “the scope of the particular intrusion, the manner in which

it was conducted, the justification for initiating it, and the place in which it was conducted.”

Id.

       In Bell, the Supreme Court upheld the practice of prison authorities conducting

visual body-cavity searches of pretrial detainees in a federally operated short-term

custodial facility following contact visits. The Court assumed that the inmates had an

expectation of privacy, but it justified the reasonableness of this highly invasive search

technique on the grounds that a detention facility was a place “fraught with unique security

dangers” and prison officials had testified that the search technique was necessary to

discover and deter the smuggling of weapons, drugs, and other contraband into the

detention facility. Id. at 558, 99 S. Ct. at 1884. The Court noted that the search technique

was a proven, effective deterrent against contraband entering the facility. Id. at 559, 99

S. Ct. at 1885.

       Following Bell, we discern no error in the district court’s finding of MSOP’s

concern that cell phones present a “grave security threat” in the context of sexually violent

persons. See Serna, 567 F.3d at 953. The district court noted that this security threat

includes the potential to conduct criminal activity by contacting past victims, grooming




                                               7
future victims, and securing child pornography. Id. The photographic capabilities of

smartphones can undermine institutional security by transmitting images of personnel or

buildings to persons outside of the facility. Id. We note that the phone’s ability to connect

to the internet and its data-storage capabilities increase the gravity of these threats. These

specific threats also undermine MSOP’s treatment goals. Id. Further, an individual’s

privacy interests are lessened when the seized smartphone is contraband. See Illinois v.

Caballes, 543 U.S. 405, 409, 125 S. Ct. 834, 838 (2005) (holding that governmental

conduct that only reveals the possession of contraband does not implicate the Fourth

Amendment).

       We conclude that the scope, manner, and justification of the search of the phone is

consistent with MSOP’s policies. Under Bell, appellant’s expectation of privacy in the

contents of his smartphone must be balanced against the state’s compelling interest in “both

protecting the public from sexual violence and rehabilitating the mentally ill.” In re

Linehan, 594 N.W.2d 867, 872 (Minn. 1999). Here, administrators at MSOP had specific

evidence that appellant, an SDP/SPP, possessed a smartphone, which constituted a security

breach. In light of the state’s compelling interest in appellant’s security and rehabilitation,

it was reasonable for MSOP to search the digital contents of the phone to determine if a

security breach had occurred or whether appellant was engaging in behavior that

contravened his rehabilitation.

       In Bell, the Supreme Court refused to adopt a less-invasive-means test for

identifying contraband. 441 U.S. at 559 n.40, 99 S. Ct. at 1885 n.40. Post Bell, the Serna




                                              8
Court noted that to do otherwise would “effectively deprive institutional administrators of

the deference noted in Bell.” 567 F.3d at 955. Here, MSOP officials had to unlock the

digital contents of the phone because there was no other way to determine the origination

of the phone or if there were ongoing threats to the safety of the facility or appellant’s

rehabilitation.

       Appellant argues that MSOP policies only authorized staff to seize the phone and

hold it according to its evidence handling policy, which it failed to admit into the record.

See MSOP Policy 103.030 (stating that “contraband secured during any search will be

handled according to MSOP Security Policy 107.055, ‘Evidence Handling’”). He also

asserts that any threat posed by the phone ceased upon its seizure by MSOP.

       We find appellant’s argument to be unpersuasive. The Bell Court deferred to the

judgment of detention-center officials in handling security threats within the facility. “The

problems that arise in the day-to-day operation of a corrections facility are not susceptible

[to] easy solutions,” and “in the absence of substantial evidence in the record to indicate

that officials have exaggerated their response to these considerations, courts should

ordinarily defer to their expert judgment in such matters.” 441 U.S. at 547, 99 S. Ct. at

1879. Here, the district court did not err in finding that MSOP had numerous policies

regulating contraband and the use of mobile devices in the facility. It was not unreasonable

for MSOP administrators to search appellant’s contraband phone to determine whether

there were ongoing threats to the facility’s security or appellant’s rehabilitation.




                                              9
       We conclude that MSOP officials acted reasonably in sending the smartphone to

forensic investigators after ascertaining that DHS lacked the appropriate software to unlock

the phone’s contents.

II.    The district court did not err by denying appellant 22 days of jail credit.

       A criminal defendant bears the burden of establishing entitlement to credit for time

spent in custody during criminal proceedings. State v. Garcia, 683 N.W.2d 294, 297

(Minn. 2004). When pronouncing an individual’s sentence, the district court must “[s]tate

the number of days spent in custody in connection with the offense or behavioral incident

being sentenced.” Minn. R. Crim. P. 27.03, subd. 4(B). “[A] criminal defendant at

sentencing shall get credit for time spent in jail in connection with the criminal charges.”

State v. Johnson, 744 N.W.2d 376, 379 (Minn. 2008) (citation omitted). Jail credit is

applied by subtracting the credit from the specified minimum term of imprisonment of the

imposed sentence. Minn. Sent. Guidelines 3.C.2.a (2014).

       A district court’s decision whether to award credit is a mixed question of fact and

law. Johnson, 744 N.W.2d at 379. The court must determine the circumstances of the

custody the defendant seeks credit for, and then apply the rules to those circumstances. Id.

The sentencing court does not have discretion in awarding jail credit. State v. Clarkin, 817

N.W.2d 678, 689 (Minn. 2012).

       Appellant argues that he is entitled to 22 days of jail credit from September 12, 2014

through October 3, 2014 because the state had probable cause that he had committed felony

bribery on September 12, but delayed charging until October 3. The state disputes




                                             10
appellant’s characterization of the record, arguing that appellant should only get custody

credit beginning on December 12. In support of its argument, the state submitted a copy

of a booking printout from the Moose Lake Police Department reflecting that appellant was

not in jail from September 12 through October 3. But this document was not filed with the

district court. On appeal, this court cannot consider this document in its determination.

See Minn. R. Civ. App. P. 110.01 (stating that the record on appeal consists of documents

filed in the district court, the exhibits, and the transcripts).

       At the sentencing hearing, the prosecutor conceded that appellant was entitled to jail

credit beginning on October 3. He stated on the record, “I’ll go with the October 3rd date

for credit.” The prosecutor further explained that he did not decide to charge appellant

until October 3 because, on that day, he spoke with MSOP officials concerning the bribery

statute, and he became convinced that he could bring charges. He also stated that the

complaint was not completed until December 12 because upon further review, he found

some holes in the case and requested further information from MSOP. The presentence

investigation (PSI) worksheet shows that appellant was jailed for the offense from

December 14, 2014 through October 21, 2015.

       The district court gave appellant credit back to October 3, 2014. Clarkin outlines

when a district court can award a defendant jail credit. 817 N.W.2d at 687.

               We conclude that an award of jail credit is appropriate for time
               spent in custody after the date when (1) the State has completed
               its investigation in a manner that does not suggest manipulation
               by the State, and (2) the State has probable cause and sufficient
               evidence to prosecute its case against the defendant with a




                                                11
              reasonable likelihood of actually convicting the defendant of
              the offense for which he is charged.

Id. at 689.

       We discern no error in the district court’s calculation of appellant’s jail credit. With

respect to the first prong of the Clarkin test, the record supports the district court’s implicit

finding that the state completed its investigation on October 3. The prosecutor affirmed

that he had substantially completed his investigation on October 3 and that he was willing

to give appellant jail credit beginning on that date. Under the second prong of the Clarkin

test, the record supports the district court’s implicit finding that the prosecutor had probable

cause to charge on October 3 as he had “probable cause and sufficient evidence” to

successfully prosecute the charge against appellant. Id.

       Affirmed.




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