State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0092

State of Minnesota,
Respondent,

vs.

Jeremy James McNitt,
Appellant.

Filed August 7, 2017
Affirmed in part, reversed in part, and remanded
Hooten, Judge

Dakota County District Court
File No. 19HA-CR-14-1327

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

James C. Backstrom, Dakota County Attorney, Heather Pipenhagen, Assistant County
Attorney, Hastings, Minnesota (for respondent)

Arthur R. Martinez, Matthew T. Martin, Minneapolis, Minnesota (for appellant)

Considered and decided by Hooten, Presiding Judge; Bjorkman, Judge; and Randall,
Judge.

 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
2
U N P U B L I S H E D O P I N I O N
HOOTEN, Judge
On appeal from three convictions of possession of pornographic work involving
minors, appellant argues (1) the district court erred in denying his pretrial motion to dismiss
counts two and three on the basis that those counts were barred by the statute of limitations;
(2) the district court erred in denying his motio ns to suppress evidence; and (3 ) the
evidence was insufficient to convict appellant of the charged offenses. We affirm in part,
reverse appellant’s convictions on counts two and three, and remand.
FACTS
In October 2011, a M inneapolis police officer working on the Internet Crimes
Against Children Task F orce identified a computer sharing suspected child pornography
files over peer-to-peer online networks. After identifying the internet protocol (IP) address
of the computer, t he task force officer submitted several administrative subpoenas to the
internet service provider who assigned that IP address. The responses from these
subpoenas revealed the location of the computer as appellant Jeremy James McNitt’s
residence in Eagan, Minnesota.
In November 2011, based on the information gathered by the task force officer,
Eagan police obtained and executed a search warrant for McNitt’s residence. When
officers began the search, McNitt was not present. He arrived shortly thereafter and was
questioned for approximately one hour. In the course of the search, o fficers seized a n
external hard drive that was later found to contain child pornography.
3
In April 2014, McNitt was charged by complaint with one count of possession of
pornographic work involving minors. McNitt moved the district court to suppress all
evidence seized as a result of the administrative subpoenas and all statements made by
McNitt during the execution of the November 2011 search warrant. In March 2016, the
district court denied McNitt’s motions.
In July 2016, six days before trial, the state amended the complaint to add two counts
of possession of pornographic work involving minors. McNitt moved to dismiss the
additional counts as beyond the statute of limitations, and the district court denied McNitt’s
motion. After a bench trial, McNitt was found guilty of all three counts of possession of
pornographic work involving minors. The district court stayed imposition of sentence,
placed McNitt on supervised pr obation for five years, and ordered concurrent conditions
of probation, including jail time, sex offender treatment, and registration as a predatory
offender. This appeal follows.
D E C I S I O N
I.
McNitt argues that the district court erred by denying hi s motion to dismiss counts
two and three when the state amended the complaint to add those counts after the statute
of limitations had run. We agree.
Minnesota Statutes s ection 628.26(k) (2010) provides that , for offenses of this
nature, “indictments or complaints shall be found or made and filed in the proper court
within three years after the commission of the offense.” It is not disputed that the original
4
complaint was filed in accordan ce with Minn. Stat. § 628.26(k); however, the complaint
was amended over four years after police seized McNitt’s external hard drive.
The district court denied McNitt’s motion to dismiss counts two and three from the
amended complaint, relying on State v. Dwire , 409 N.W.2d 498 (Minn. 1987), for the
principle that filing a complaint or indictment tolls the statute of limitations. However, a
closer examination reveals that the holding of Dwire is not broad enough to encompass the
facts presented here.
Dwire stated that “the statute of limitations was, in effect, ‘tolle d’ during the
pendency of an indictment containing a defect curable by amendment .” 409 N.W.2d at
503 (emphasis added). Here, the original complaint against McNitt had no defect. It is not
disputed that the state knew at the outset that McNitt’s hard drive contained “multiple video
files of obvious child pornography,” and included that language in the original complaint .
The state made what appears to be a tactical decision to charge McNitt with a single count
without identifying whether McNitt would be prosecuted for possession of the hard drive
itself, or for specific videos or images. See State v. Bakken , 883 N.W.2d 264, 267 –69
(Minn. 2016) (identifying that an offender may be prosecuted for either knowingly
possessing computer containing child porno graphy, possessing images of child
pornography, or both). The state instead maintained throughout the several years between
filing the original complaint and trial that the state would amend the complaint to add
additional counts if the case went to trial.
The district court and the state also rely on State v. Gruska, No. C8-95-414, 1995
WL 579422, at *1 (Minn. App. Oct. 3, 1995), an unpublished decision of this court that
5
read Dwire to state that the statute of limitations is tolled by filing a complaint or
indictment, even absent a defect in that complaint or indictment. We first note that
unpublished opinions from this court are not binding authority. Minn. Stat. § 480A.08,
subd. 3(c) (2016). More impor tant, however, Gruska does not address the specific
circumstances here. In Gruska, the state amended the complaint against Gruska to add two
counts of theft by swindle with intent to exercise temporary control to a complaint that
already contained two counts of theft by swindle. 1995 WL 579422, at *1. In other words,
the counts added by the state in Gruska were on different levels of the vertical severity
scale for the same underlying conduct that had already been charged.
Here, the state did not amend the complaint to add a greater encompassing or lesser
included offense that criminalized the same conduct at a different level of severity than the
offense already charged. Instead, the state added two additional counts for possession of
pornographic work involving minors at the same severity level as the original charge,
thereby tri pling the number of charges, and increasing the possible sentence, against
McNitt.
The Minnesota Supreme Court has held that in the child pornography context,
when a defendant possesses multiple pornographic works, possession of each work is a
separate chargeable offense. Bakken, 883 N.W.2d at 268. Although Bakken addressed the
nature of possession of separate pornographic works in the sentencing context, the
underlying logic is applicable in t he charging context as well. In determining whether
Bakken’s possession of each of the seven pornographic works was part of a single
behavioral incident, the supreme court concluded that Bakken did not commit each
6
possession crime at the same time, becaus e while “a crime of possession is a continuing
offense, it is complete when the offender takes possession of the prohibited item.” Id. at
270 (citation omitted).
The facts of Bakken are similar to those here. Like Bakken, McNitt possessed
multiple pornographic works, all downloaded at different times over the course of several
weeks onto a single hard drive. As Bakken holds, these were separate offenses, constituting
separate conduct, and it is logically impossible that a charge or indictment for one offense
could toll the statute of limitations for the other two offenses.1
Accordingly, we conclude that the district court erred as a matter of law in
determining that the statute of limitations was tolled when the state filed the first count,
and we reverse McNitt’s convictions on counts two and three of the complaint and remand
to the district court with instructions to vacate those convictions.

1 Although we do not base our decision on the presence or absence of prejudice to the
defendant, we note that a t oral argument, the state argued that the decision to amend the
complaint did not prejudice McNitt. According to the state, adding counts made it easier
for McNitt to defend himself at trial, as he would no longer have to prepare a defense for
every video or image on his hard drive , but instead could limit his defense to just three
files. This argument borders on the absurd.
The investigator presented evidence t hat the logs from McNitt’s peer -to-peer
sharing software listed over 900 files which had been partially or fully downloaded over
the pertinent time period. While the investigator testified that not all of these files were on
the hard drive when it was seiz ed, we cannot agree with the state that a defendant is not
prejudiced by not knowing until a week before trial how many counts he faces when each
count carries a penalty of up to five years in prison, and he may be sentenced consecutively
for each count . See Minn. Stat. § 617.247, subd. 4(a) (2010); Minn. Sent. Guidelines 6
(2011).
7
II.
Before trial, McNitt made three motions to suppress evidence , which the district
court denied. “When reviewing a district court’s pretrial order on a motion to suppress
evidence, [appellate courts] review the district court’s factual findings under a clea rly
erroneous standard and the district court’s legal determinations de novo.” State v. Gauster,
752 N.W.2d 496, 502 (Minn. 2008) (quotation omitted).
a. Police use of peer-to-peer software to learn IP address of computer sharing
suspected child pornography files
McNitt first argues that the district court erred by not suppressing evidence obtained
as a result of police use of peer -to-peer software to learn the IP address of the computer
sharing suspected child pornography files. McNitt asserts that law en forcement used
technology “not commonly accessible to the public” to learn the IP address of the computer
sharing the suspected child pornography files, and such a search was prohibited by the
United States Supreme Court’s decision in Kyllo v. United State s, 533 U.S. 27, 40, 121
S. Ct. 2038, 2046 (2001) (holding that when “the [g]overnment uses a device that is not in
general public use, to explore details of the home that would previously have been
unknowable without physical intrusion, the surveillance is a ‘search’ and is presumptively
unreasonable without a warrant”).2 This argument is without merit.
Generally, under the Fourth Amendment of the United States Constitution, “the
question whether a warrantless search . . . is reasonable and hence constitut ional must be

2 McNitt argued below that this conduct also violated Minn. Const. art. I, § 10. However,
he does not raise that argument here.
8
answered no.” 533 U.S. at 31, 121 S. Ct. at 2042. However, before determining if a
warrantless search is reasonable, we much first ask “whether or not a Fourth Amendment
‘search’ has occurred.” Id. “[A] Fourth Amendment search occurs when the government
violates a subjective expectation of privacy that society recognizes as reasonable.” Id. at
33, 121 S. Ct. at 2042 (citing Katz v. United States, 389 U.S. 347, 361, 88 S. Ct. 507, 516
(1967) (Harlan, J., concurring)). “What a person knowingly exposes to the public, even in
his own home or office, is not a subject of Fourth Amendment protection” because this
exposure demonstrates a lack of subjective expectation of privacy. Katz, 389 U.S. at 351,
88 S. Ct. at 511.
Here, the district court found that while McNitt was sharing the files police flagged
as suspected child pornography, his IP address was accessible to any member of the general
public also on the network. This finding is supported by testimony in the record and is not
clearly erroneous.
Therefore, because McNitt knowingly exposed his IP address to the public, he has
no Fourth Amendment protection in that information, and the district court did not err in
denying his motion to suppress evidence gathered using his IP address.
b. Police use of administrative subpoena to connect IP address of computer to
McNitt’s residence

McNitt next argues that police use of administrative subpoenas to link the IP address
police discovered to his name and address violated his rights under Minn. Const. art. I,
§ 10. The “authority to subpoena and require the production of any records of . . .
subscribers of private computer networks including Internet service providers” that “are
9
relevant to an ongoing legitimate law enforcement investigation” is explicitly authorized
by Minn. Stat. § 388.23, subd. 1 (2010). Thus, although he does not explicitly frame his
argument in this manner, we interpret McNitt’s position as an argument that Minn. Stat.
§ 388.23, subd. 1, is unconstitutional as applied to him and analyze it as such.
Addressing this issue in the context of the Fourth Amendment to the U.S.
Constitution, the Eighth Circuit has held that a defendant “cannot claim a reasonable
expectation of privacy in the government’ s acquisition of his subscrib er information,
including his IP address and name from third -party service providers. ” United States v.
Wheelock, 772 F.3d 825, 828 (8th Cir. 2014) (alteration omitted) (quotations omitted).
This is because “t he Fourth Amendment does not prohibit the obt aining of information
revealed to a third party and conveyed by [that third party] to Government authorities, even
if the information is revealed [by the defendant] on the assumption that it will be used only
for a limited purpose and the confidence placed in the third party will not be betrayed. ”
United States v. Miller, 425 U.S. 435, 443, 96 S. Ct. 1619, 1624 (1976).
McNitt nevertheless implicitly argues that Minn. Stat. § 388.23, subd. 1 , violates
the protections afforded by the Minnesota Constitution. It is well settled that eve n when
the language employed in the Minnesota Constitution exactly mirrors the language
employed in the United States Constitution, the Minnesota Constitution may still provide
“broader individual rights.” State v. Murphy , 380 N.W.2d 766, 770 (Minn. 1986) .
However, “[a] defendant’s rights to challenge any search under Article I, Section 10 of the
Minnesota Constitution are coextensive with [the defendant’ s] rights under the Fourth
10
Amendment to the United States Constitution.” State v. Griffin, 834 N.W.2d 688, 695–96
(Minn. 2013) (quotation omitted).
Therefore, to determine whether the use of an administrative subpoena infringes on
McNitt’s protected privacy interest, we must conduct a two-part inquiry to determine (1) if
McNitt had a subjective expectation of privacy in the information given by him to his
internet service provider; and (2) if that subjective expectation of privacy was one society
is prepared to accept as reasonable. State v. Jordan, 742 N.W.2d 149, 156 (Minn. 2007).
In the first part, our inquiry focuses “on the individual’s conduct and whether the individual
sought to preserve something as private.” Griffin, 834 N.W.2d at 696 (quotation omitted).
McNitt bears “the burden of establishing that the challenged search violated his reasonable
expectation of privacy.” Jordan, 742 N.W.2d at 156.
McNitt did not testify, did not call any witnesses, or offer any evidence. As a result,
the record contains no indication that McNitt had a subjective expectation of privacy in the
subscriber information he provided to his internet service provider.
McNitt argues, however, that under what he calls “the limited third party doctrine,”
any personal information given to a third party service provider cannot be reached by
investigators without a warrant. McNitt admits that this is not the current state of the law
in Minnesota, but nevertheless asks this court to extend the protections of the Minnesota
Constitution to all persons who, as subscribers, provide their personal information to third
11
party internet service providers under all circumstances . The Minnesota Supreme Court
has not adopted the limited third party doctrine, and we decline to do so here.3
McNitt has failed to meet his burden of demonstrating a su bjective expectation of
privacy. Therefore, we conclude that the district court did not err in denying McNitt’s
motion to suppress evidence gathered as a result of the administrative subpoenas.
c. Police questioning of McNitt without first informing him of his Miranda
rights
McNitt next argues that the district court erred by denying his motion to suppress
statements he made to police when he was questioned before receiving a Miranda warning.
This argument is without merit.
Miranda v. Arizona provides procedural safeguards that protect an individual’s Fifth
Amendment privilege against self -incrimination. 384 U.S. 436 , 478–79, 86 S. Ct. 1602,
1630 (1966). “Statements made by a suspect during custodial interrogation are generally
inadmissible unless the suspect is first given a Miranda warning.” State v. Edrozo , 578
N.W.2d 719, 724 (Minn. 1998).
Whether a suspect is in custody and entitled to a Miranda warning is a mixed
question of fact and law. State v. Horst, 880 N.W.2d 24, 31 (Minn. 201 6). We review a
district court’s findings of fact for clear error, but “review independently the legal

3 The Minnesota Supreme Court has explicitly dec lined to reach whether a typical
subscriber has an expectation of privacy in the personal information held by a third party
service provider. State v. Gail , 713 N.W.2d 851, 860 (Minn. 2006). However, we note
that in Gail, the supreme court determined that it could not conclude the defendant had a
subjective expectation of privacy in information held by the third party service provider
because the defendant “did not testify or call any witnesses to support a finding that he had
an expectation of privacy in the records.” Id.
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conclusion regarding whether the interrogation was custodial.” Id. “[Appellate courts]
grant considerable, but not unlimited deference to the district court’s fact -specific
resolution of whether the interrogation was custodial,” if the district court applied the
proper legal standard. Id. (alteration omitted) (quotation omitted).
“An interrogation is custodial if, based on all the surrounding circumsta nces, a
reasonable person un der the circumstances would believe that he or she was in police
custody of the degree associated with formal arrest.” State v. Thompson, 788 N.W.2d 485,
491 (Minn. 2010) (quotation omitted). In considering the totality of the circumstances, “no
factor alone is determinative.” Id.
Factors indicative of custody include (1) the police
interviewing the suspect at the police station; (2) the suspect
being told he or she is a prime suspect in a crime; (3) the police
restraining the suspect’s freedom of movement; (4) the suspect
making a significantly incriminating statement; (5) the
presence of multiple officers; and (6) a gun pointing at the
suspect.

State v. Vue, 797 N.W.2d 5, 11 (Minn. 2011) (quotation omitted). Factors that indicate a
suspect is not in custody include:
(1) questioning the suspect in his or her home; (2) law
enforcement expressly informing the suspect that he or she is
not under arrest; (3) the suspect’ s leaving the police station
without hindrance; (4) the brevity of questioning; (5 ) the
suspect’s ability to leave at any time; (6) the existence of a
nonthreatening e nvironment; and (7) the suspect’ s ability to
make phone calls.

Id.
13
The circumstances surrounding McNitt’s questioning are not disputed. In
determining whether McNitt’s statements should be suppressed, the district court weighed
the factors outlined in Vue:
Factors indicative [McNitt] was not in custody include: he was
interviewed at his home, only three officers were present, he
was never told he was the prime suspect, the environment was
non-threatening with no guns pointed, he was allowed to make
a phone call to his brother, he made no significantly
incriminating statement s, and he was told multiple times he
was not under arrest. Factors indicative [McNitt] was in
custody include: he was not allowed immediate access to his
phone when he asked [the officer] if he could text his trainer.
However, [McNitt] was later allowed to text his trainer after an
officer retrieved [McNitt’s] phone from [McNitt’s] car.

The district court then concluded that McNitt was not in custody for Miranda purposes.
Our review of the record indicates that the district court’s factual findings are not
clearly erroneous. The district court employed the correct standard for determining
whether McNitt’s interrogation was custodial. Given the weight of factors indicating
McNitt was not in custody as compared to those factors indicating McNitt was in custody,
we conclude that the district court did not err in denying McNitt’s motion to suppress
statements he made to police when questioned before being issued a Miranda warning.
III.
Finally, McNitt argues that the evidence presented is not sufficient to co nvict him
of the charged crimes. We disagree.
In evaluating a claim of insufficiency of the evidence, we conduct “a painstaking
review of the record to ascertain whether, given the facts in the record and the legitimate
inferences that can be drawn from t hose facts, a jury could reasonably conclude that the
14
defendant was guilty of the offense charged .” State v. Flowers , 788 N.W.2d 120, 133
(Minn. 2010) (alteration omitted) (citation and quotation omitted). A verdict will stand if
the fact finder, “acting with due regard for the presumption of innocence and for the
necessity of overcoming it by proof beyond a reasonable doubt, could reasonably conclude
that the defendant was proven guilty of the offense charged.” Id. (alteration omitted). We
employ the identical standard for a bench trial as we would for a jury trial. In re Welfare
of M.E.M., 674 N.W.2d 208, 215 (Minn. App. 2004).
To prove McNitt violated Minn. Stat. § 614.247, subd. 4 (2010), the state must
prove three elements beyond a reasonable doubt: the files in question were child
pornography; McNitt possessed the files; and McNitt knew or had reason to know the
“content and character” of the files. Knowledge of the content and character of the files
includes either actual know ledge or a subjective awareness “of a substantial and
unjustifiable risk that the work involves a minor.” State v. Mauer, 741 N.W.2d 107, 115
(Minn. 2007) (quotation omitted).
Prior to trial, McNitt “stipulated that the three files at issue were in fact c hild
pornography.” Therefore, the only elements that were at issue at trial were McNitt’s
possession of the files and McNitt’s knowledge of the content a nd character of the files.
The state offered only circumstantial evidence to prove these elements.
When evaluating a conviction based on circumstantial evidence, the first task is to
identify the circumstances proved. State v. Andersen, 784 N.W.2d 320, 329 (Minn. 2010).
In so doing, we view the evidence presented in the light most favorable to the verdict and
presume the jury accepted the evidence consistent with the circumstances proved and
15
rejected conflicting evidence. Id. We then “examine independently the reasonableness of
all inferences that might be drawn from the circumstances proved,” includin g those
inferences inconsistent with guilt. Id. (quotation omitted). Ultimately, a conviction based
on circumstantial evidence will be upheld if the inferences drawn from the entire
constellation of circumstances proved are “consistent with guilt and inc onsistent with any
rational hypothesis except that of guilt.” Id. at 330, 332.
With respect to the element of possession, the circumstances proved include the fact
that the files in question were discovered on an external hard drive seized from the
nightstand of the bedroom in McNitt’s apartment , where McNitt lived alone . The officer
who interviewed McNitt testified that when he questioned McNitt about whether he
possessed any child pornography, McNitt answered that the only evidence the officer
would find on the external hard drive would be links to text stories from a specific internet
website. The officer testified that links to text stories from that specific website were found
on the external hard drive. McNitt’s specific knowledge of the contents o f the external
hard drive supports an inference that McNitt possessed the external hard drive and does
not support any other reasonable inference.
With respect to the element of knowledge, the circumstances proved include
evidence that McNitt’s internet se arch history contained search terms “jailbait,” “Lolita,”
“tween,” “dad kid,” “dad kid porn videos,” “nubiles,” “father daughter,” “mother son,”
“brother sister,” “taboo,” and “babies.” The investigating officer testified that in this
context, “Lolita” me ans “prepubescent child” and “tween” means “a child going from
being prepubescent to pubescent.”
16
Further, the three files in question were named: “(PTHC incest) Sister suck the penis
and masturbating brother and friend”; “16 Year Old Lolita Masturbates h er Ten Year Old
Preteen Sister”; and “2008 Private-Rachel-12Yo.” The officer testified that in this context,
“PTHC” is an acronym standing for preteen hard -core. The state also produced evidence
that the file entitled “(PTHC incest) Sister suck the penis and masturbating brother and
friend” was among the ten most recent files opened on the hard drive.
The circumstances proved support an inference that McNitt had, at minimum, a
subjective awareness of a substantial and unjustifiable risk that the files at issue contained
pornographic materials involving a minor. The evidence does not support any other
reasonable inference.
Because the state provided evidence of facts which, when combined with the
reasonable inferences supported by those facts, could le ad a fact finder to reasonably
conclude that McNitt was guilty of violating Minn. Stat. § 617.247, subd. 4, and is
inconsistent with any other conclusion, we conclude that McNitt’s conviction was
supported by the evidence.
Affirmed in part, reversed in part, and remanded.