This opinion is nonprecedential except as provided by
                       Minn. R. Civ. App. P. 136.01, subd. 1(c).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A23-0566

                                 State of Minnesota,
                                    Respondent,

                                          vs.

                            Rafael Antonio Segura-Arroyo,
                                      Appellant.

                              Filed February 14, 2024
                  Affirmed in part, reversed in part, and remanded
                                    Slieter, Judge

                          Cottonwood County District Court
                               File No. 17-CR-21-406

Keith Ellison, Attorney General, Ed Stockmeyer, Assistant Attorney General, St. Paul,
Minnesota; and

Nick A. Anderson, Cottonwood County Attorney, Windom, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer Workman Jesness,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

      Considered and decided by Cochran, Presiding Judge; Slieter, Judge; and

Halbrooks, Judge. ∗




∗
 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                           NONPRECEDENTIAL OPINION

SLIETER, Judge

       On appeal from final judgment of conviction for multiple counts of

child-pornography possession, appellant claims that the district court erred in denying his

motion to suppress evidence because Facebook was acting as a government agent when it

conducted a warrantless search of his account. Appellant also claims that the district court

erred in its application of the Hernandez method of sentencing and by imposing

conditional-release terms. Because appellant failed to demonstrate that Facebook was

acting as a government agent when it conducted a search of his account, the private search

doctrine applies, and we affirm the district court’s denial of appellant’s suppression motion.

But, because the district court erred in its application of the Hernandez method of

sentencing and by imposing conditional-release terms for stayed sentences, we reverse and

remand for resentencing.

                                          FACTS

       Respondent State of Minnesota charged appellant Rafael Antonio Segura-Arroyo

by complaint with six counts of possession of child pornography in violation of 

, subd. 4 (2020). Segura-Arroyo moved to suppress the evidence obtained during

the search of his residence, claiming that Facebook was acting as a government agent when

it conducted a warrantless search of his account. The following facts derive from the

evidence received during the omnibus hearing involving Segura-Arroyo’s suppression

motion.




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       In May 2020, the National Center for Missing and Exploited Children (NCMEC)

received a tip from Facebook indicating that a user named “Rafael Segura” had accessed

child pornography. The NCMEC forwarded the tip to the Minnesota Bureau of Criminal

Apprehension (BCA), and the BCA referred the tip to local law enforcement.

       An officer with the Windom Police Department reviewed the tip, which provided

the foregoing user information and included the internet protocol (IP) address

corresponding with the account that had accessed the child pornography. After viewing

the suspected child pornography and confirming the images and videos contained illegal

content, the officer obtained a warrant to search Segura-Arroyo’s person and residence.

Officers executed the warrant on December 21, 2020. While executing the warrant,

officers spoke to Segura-Arroyo. Segura-Arroyo indicated that he used and accessed his

Facebook account through his cellphone, and he noted that he was the only person with

access to his cellphone.     Officers searched Segura-Arroyo’s person and seized his

electronic devices capable of accessing the internet. The seized items were sent to the BCA

for analysis, which later identified child pornography.

       The district court denied Segura-Arroyo’s motion, determining that Facebook was

not acting as a government agent and that Facebook’s search of Segura-Arroyo’s account,

therefore, did not violate the Fourth Amendment.

       The case proceeded to a court trial in November 2022. The district court heard

testimony from law enforcement and accepted into evidence the images depicting child

pornography. The district court found Segura-Arroyo guilty of all counts.




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       At the sentencing hearing, the state argued that the district court should sentence on,

and assign criminal-history points to, counts 1 through 4 via the Hernandez method, see

infra part II, claiming the offenses were not part of a single behavioral incident.

Segura-Arroyo argued that, because the four counts were part of a single behavioral

incident, only the two most severe counts should be sentenced via the Hernandez method

and that the two remaining counts should be sentenced with zero criminal-history points.

Without ruling on whether the offenses were not part of a single behavioral incident, the

district court sentenced Segura-Arroyo via the Hernandez method on counts 1 through 4. 1

The district court stayed execution of each sentence and imposed conditional-release terms

on each. Segura-Arroyo appeals.

                                        DECISION

I.     The district court properly applied the private search doctrine and, therefore,
       did not err in denying Segura-Arroyo’s motion to suppress.

       Both the United States and Minnesota Constitutions protect “against unreasonable

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

searches and seizures are per se unreasonable unless they fall under an established

exception. State v. Othoudt, 

 (Minn. 1992). “But such protections

are intended as a restraint on the activities of the government, not the actions of private

parties.” State v. Pauli, 

, 46 (Minn. 2022). It is this “principle [that] serves

as the foundation for the private search doctrine, which recognizes that government agents



1
 The district court found that counts 5 and 6 were lesser-included offenses and, therefore,
did not enter convictions or sentences for those counts.

                                              4
may duplicate searches performed previously by private parties without running afoul of

the Fourth Amendment.” 

         Segura-Arroyo claims that the district court erred in denying his motion to suppress,

claiming that Facebook acted as a government agent when it searched his account. 2 The

issue raised in Segura-Arroyo’s appeal requires our determination of whether the private

search doctrine applies. “The rationale behind the private search doctrine is that once an

individual’s reasonable expectation of privacy is frustrated by a private party, the

government can perform the same search without a further violation of the person’s

privacy.” 

.

         “The determination of whether the private search doctrine applies is a question of

fact.” 

. When reviewing a district court’s pretrial suppression order, appellate

courts “review the district court’s factual findings under a clearly erroneous standard and

the district court’s legal determinations de novo.” State v. Jordan, 

(Minn. 2007). “Findings of fact are clearly erroneous if, on the entire evidence, we are left

with the definite and firm conviction that a mistake occurred.” State v. Anderson, 

 (Minn. 2010).

         “The private search doctrine’s applicability depends on (1) whether a private party

conducted the search; and (2) whether a subsequent search by law enforcement or other

government actors exceeded the scope of the initial private search.” Pauli, 979 N.W.2d at

46-47 (citing United States v. Jacobsen, 

 (1984)). Segura-Arroyo



2
    Segura-Arroyo does not challenge the search warrant on appeal.

                                               5
concedes that Facebook is a private party, but he argues that the federal law requiring

internet service providers to report child-exploitative materials transformed Facebook into

a government agent. As the party seeking suppression, Segura-Arroyo bears the burden of

proving that Facebook was acting as a government agent (and, hence, no longer a private

party) when it searched his account. Id. at 48.

       To prove a private actor, such as Facebook, “is acting as a government instrument

or agent when conducting a search,” Segura-Arroyo must show that “the State knew of and

acquiesced in the search” and that “the search was conducted to assist law enforcement’s

interests.” Id. at 51. Segura-Arroyo claims he satisfied this burden, arguing that “[t]he

facts here show the government knew these searches took place and Facebook was acting

at law enforcement’s behest, not in its own interests.” We are not persuaded.

       Segura-Arroyo points to no evidence suggesting that the government knew of and

acquiesced to the search conducted by Facebook. Id. at 48 (noting that “[t]he burden to

prove that a private party was acting on behalf of the government when conducting a Fourth

Amendment search falls on the party seeking suppression of the evidence”).            And

Segura-Arroyo’s reference to federal law which obligates electronic service providers, like

Facebook, to report child pornography found on their websites does not answer the

question whether it searched his account as a government agent. 18 U.S.C. § 2258A

(2020). Moreover, “[i]f the government does not know of and acquiesce in the search, the

search cannot be attributed to the government and the inquiry ends.” Pauli, 979 N.W.2d

at 51 (quoting State v. Jorgensen, 

 (Minn. 2003)).




                                             6
      The district court’s finding that Facebook was not acting as a government agent is

not clearly erroneous because there is no evidence supporting Segura-Arroyo’s claim to

the contrary. And, because Facebook is a private actor and was not acting as a government

agent, the private search doctrine applies, and Facebook’s search of Segura-Arroyo’s

account did not violate the Fourth Amendment. Pauli, 979 N.W.2d at 46. Therefore, the

district court did not err in denying Segura-Arroyo’s motion to suppress.

II.   The district court erred in sentencing Segura-Arroyo by Hernandizing all four
      counts and by imposing conditional-release terms on stayed sentences.

      Whether a sentence conforms to the requirements of a statute or the sentencing

guidelines is a question of law reviewed de novo. State v. Williams, 

(Minn. 2009).

Hernandez Method

      This court “may at any time correct a sentence not authorized by law.” Minn. R.

Crim. P. 27.03, subd. 9. “A sentence based on an incorrect criminal-history score is an

illegal sentence . . . .” State v. Woods, 

, 416 (Minn. App. 2020) (citing

State v. Maurstad, 

 (Minn. 2007)).

      Segura-Arroyo argues that the district court erred in Hernandizing counts 3 and 4

because all four counts arose out of a single behavioral incident. See State v. Hernandez,

 (Minn. 1981). We agree.

      Pursuant to the Hernandez method, “when a defendant is sentenced for multiple

offenses[, not arising from a single course of conduct,] on the same day, a conviction for

which the defendant is first sentenced is added to his or her criminal-history score for



                                            7
another offense for which he or she is also sentenced.” Williams, 

 (citing

State v. Soto, 

 (Minn. 1997) (explaining the Hernandez method)).

       However, “[w]hen multiple current convictions arise out of a single course of

conduct in which there were multiple victims, weights are given only to the two offenses

at the highest severity levels.” Minn. Sent’g Guidelines 2.B.1.e(2) (2020). Offenses are

part of a single behavioral incident when they occur at substantially the same time and

place and are motivated by a single criminal objective. State v. Bakken, 

 (Minn. 2016) (quotations omitted). “The state bears the burden of proving, by a

preponderance of the evidence, that a defendant’s offenses were not part of a single

behavioral incident.” 

 Determining “[w]hether the offenses were part of a single

behavioral incident is a mixed question of law and fact, so we review the district court’s

findings of fact for clear error and its application of the law to those facts de novo.” 

       At Segura-Arroyo’s sentencing hearing, the state argued that the offenses were not

part of a single behavioral incident, noting that the “videos had modified dates that were

different,” which “shows that they were last accessed or changed/modified” on different

dates. Segura-Arroyo’s trial counsel countered by noting that Segura-Arroyo was charged

with possession and that the amended complaint indicates that the offenses occurred on the

same date.

       Possession “is complete when the offender takes possession of the prohibited item.”

 (citing State v. Bauer, 

 (Minn. 2011)). The record shows that

the offenses were complete on December 21, 2020, which is the offense date alleged on

the complaint and proved by the evidence presented at trial. Whether the videos were


                                              8
changed or modified at another time is irrelevant because the offenses were complete when

Segura-Arroyo took possession of the child pornography. At trial, the state proved

possession occurred on or about December 21, 2020. See 

 (using the time of completion

when determining whether possession of child-pornography offenses were part of a single

behavioral incident). Because the offenses were complete at the same time, and the state

makes no argument that they did not occur at the same place or were not motivated by the

same criminal objective, they were part of a single behavioral incident. Therefore, the

district court erred in adding the criminal-history points when it sentenced Segura-Arroyo

on counts 3 and 4. Because Segura-Arroyo’s sentences on counts 3 and 4 are based on

incorrect criminal-history scores, they are illegal sentences.

Conditional-Release Terms

       Segura-Arroyo argues, and the state concedes, that the district court erred by

imposing conditional-release terms on stayed sentences. We agree.

       For child-pornography offenses, the law requires that “when a court commits a

person to the custody of the commissioner of corrections” it must impose a

conditional-release term. 

, subd. 9 (2020). The district court stayed

execution of Segura-Arroyo’s sentences. Because the district court stayed execution of

prison commitment, it erred by imposing conditional-release terms and he must be

resentenced, absent the conditional-release terms.

       In sum, we affirm the district court’s denial of Segura-Arroyo’s suppression motion.

But because the district court erred in sentencing Segura-Arroyo via the Hernandez method

for counts 3 and 4 and by imposing conditional-release terms for stayed sentences, we


                                              9
reverse and remand for resentencing. Woods, 945 N.W.2d at 416-17 (“When a defendant’s

sentence is based on an incorrect criminal-history score, his case must be remanded for

resentencing.”).

       Affirmed in part, reversed in part, and remanded.




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