from the United States District Court for the Eastern
District of Michigan at Detroit. No. 2:16-cr-20135-1-Gershwin
A. Drain, District Judge.
Phillip D. Comorski, Detroit, Michigan, for Appellant.
Goetz, UNITED STATES ATTORNEY'S OFFICE, Detroit,
Michigan, for Appellee.
Before: BATCHELDER, SUTTON, and WHITE, Circuit Judges.
SUTTON, Circuit Judge.
Gardner shared a cell phone with his seventeen-year-old
girlfriend, B.H., to facilitate her "sex dates"
with other men. When one of B.H.'s clients turned out to
be an undercover officer, she agreed to let police search the
phone. A jury convicted Gardner of trafficking a minor for
sex and producing child pornography, primarily based on
evidence recovered from the phone. On appeal, Gardner urges
us to vacate his convictions on the ground that the district
court erroneously admitted the phone evidence during the
trial, among other alleged errors. We decline the invitation
senior in high school, Gardner met B.H., then a freshman, and
they became friends for a time. Three years later, they
reconnected. The relationship became intimate, and more. On
at least one occasion, Gardner used his iPhone to film them
having sex. Before long, Gardner pressured B.H. to have sex
with other men for money. She was seventeen years old, and
Gardner knew it.
August 2015, Gardner began posting advertisements for sex
with B.H. on Backpage.com, inviting potential customers to
call or text her to arrange "dates" and listing
Gardner's phone number. Gardner posted more than thirty
advertisements for B.H., often attempting to attach explicit
pictures of her that website administrators removed. Only
Gardner posted the ads. But both Gardner and B.H. exchanged
texts with customers to arrange details. When customers
called, Gardner handed his phone to B.H. and told her to use
the speakerphone so that he could hear the price. Gardner
arranged the transportation for B.H.'s liaisons and gave
her drugs to endure them. At the end of each encounter, he
demanded the money the clients had paid her. The two of them
usually stayed the night at motels, living out of the rooms
where B.H. had liaised with clients. On days when B.H.
"told him that [she] didn't want to do anything,
" Gardner got angry. R. 106 at 29. More than once he put
his hands around her throat, warning that "he could hurt
[her] really bad" and get away with it. Id. at
started as usual on October 10, 2016. Gardner posted an ad
for B.H. on Backpage.com. A customer called Gardner's
phone in response to the ad. B.H. answered and arranged the
time, the place, and the price. Gardner asked his cousin to
drive them to a Red Roof Inn for the "trick." When
they arrived, Gardner handed B.H. his phone and told her to
call him after she was done. Gardner parked across the street
the motel room, the customer told B.H. that he was an
undercover officer. He alerted task force officers, who
entered the room, secured the premises, and spoke with B.H.
Inside they found a white iPhone on a dresser next to
B.H.'s purse. B.H. said it was hers, agreed to let the
officers search it, and provided the passcode. Meanwhile, a
separate group of officers approached Gardner and his friends
in the parked car. They asked Gardner if he had a phone. He
said that he did, a black cell phone somewhere "in the
back seat of the car." R. 104 at 106. Officers never
found it. They took B.H. and Gardner to the police station
for interviews and released them that night.
days later, B.H. agreed to move to Kentucky with Gardner to
live with him and his mother. Pregnant, B.H. hoped that the
two of them "were going to be able to start over"
and that she wouldn't have to do any more
"dates." R. 106 at 82. But within a week, Gardner
pressured her to turn more tricks and became violent when she
refused. B.H. left. She walked for an hour before someone
picked her up and helped her return home to Detroit.
jury indicted Gardner. Count 1 charged him with trafficking a
minor for sex. 18 U.S.C. § 1591(a)(1). Count 2 charged
him with producing child pornography. Id. §
2251(a). Before trial, Gardner asked the district court to
suppress any evidence from his phone because officers seized
it in violation of the Fourth Amendment and to exclude any
photographs showing his gang affiliation. The district court
denied both motions. It ruled that B.H. consented to let
officers search the phone and that she had actual and
apparent authority to do so. And it ruled that the
photographs were relevant to show an element of the sex
trafficking charge-whether B.H. feared that Gardner would
cause her "serious harm" if she refused to
prostitute herself. Id. § 1591(e).
jury found Gardner guilty on both counts, and the court
sentenced him ...