DAVID C. NYE, Chief District Judge.
This matter is before the Court on Johnson's Motion to Suppress. Dkt. 44. Seth Johnson asserts that his Fourth Amendment rights were violated by law enforcement during a warrantless search. Johnson seeks to suppress the evidence law enforcement collected during this allegedly unconstitutional search and seizure. The Court held oral argument on the Motion on August 9, 2019. For the reasons outlined below, the Court finds good cause to DENY the Motion.
Officer Nay of the Twin Falls Police Department had an encounter with Johnson in the Lowe's parking lot in 2013. During that encounter, Nay allegedly observed child pornography on Johnson's cell phone. This 2013 incident is not part of the current Indictment against Johnson. It is not part of the criminal charges pending against Johnson. Instead, it is being offered by the Government under Rule 404(b). Evidence of this incident is more appropriately addressed under a Motion in Limine and will not be addressed in this Decision.
Johnson was convicted of being a Felon in Possession of a Firearm in 2009.
The U.S. Probation Office and U.S. Marshal Service's Greater Idaho Fugitive Task Force arrested Johnson on November 29, 2017, pursuant to the arrest warrant. When arrested, Johnson had a black Samsung flip-phone in his possession. The U.S. Probation Office requested that Homeland Security Investigation ("HSI") search and preserve the Samsung flip-phone. HSI created an image of the phone's contents and an HSI Computer Forensics Agent, Brad Thrall, began a review of the contents of the phone. He immediately observed child pornography, so he ceased his review and sought a federal search warrant to do a more extensive analysis of the phone's contents. The Court issued a search warrant for his phone, an undeveloped roll of film, and a video camera. With the search warrants, HSI searched all three items but found only the six originally viewed illicit images.
On July 11, 2018, a Federal Grand Jury indicted Johnson for production of child pornography, possession of child pornography, and production of child pornography while a registered sex offender. Now, Johnson seeks to suppress all evidence collected from his phone, claiming the search was a violation of his Fourth Amendment rights.
On a motion to suppress based upon the Fourth Amendment, the trial court must determine the reasonableness of the search under the totality of the circumstances. Ohio v. Robinette, 519 U.S. 33, 39 (1996). Johnson argues that "searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions." Dkt 44-1, at 9-10, (quoting California v. Acevedo, 500 U.S. 565 (1991)). It is the Government's burden to establish that it was justified in conducting the warrantless search of the phone. United States v. Jeffers, 342 U.S. 48, 51 (1951).
Johnson argues that the special conditions of supervision he was under at the time of his arrest narrowly limited the authority to conduct any search to a "United States probation officer." He then argues that the search of the phone done by HSI on November 30, 2016, was not permitted by that special condition and violated his Fourth Amendment rights.
The facts in the record and as discussed by the parties leave it very unclear as to whether (1) the probation officer found child pornography on the cell phone; and (2) if so, whether HSI found any different or additional child pornography on the cell phone. Johnson's Motion to Suppress simply moves the Court to issue an order suppressing all evidence produced "from searches of a cell phone seized at the time of his [Johnson's] 2017 arrest." Dkt. 44. It does not indicate who did the initial search of the phone. Johnson's Memorandum in Support of Motion to Suppress states that the charges against Johnson "are based upon the discovery of six images of alleged child pornography on a cell phone recovered at the time of Mr. Johnson's arrest." Dkt. 44-1, at 1. The time of the arrest was November 29, 2017. The Memorandum goes on to say that "U.S. Probation Officer Robert Bradley turned over a Samsung cell phone recovered from Mr. Johnson to HSI Special Agent Chris Cutler." Id., at 2-3. Next, the Memorandum states that on November 30, 2017, HSI did a forensic preview and recovered six images of suspected child pornography. Finally, the Memorandum states that two months later in January 2018, HSI did another search, pursuant to a new warrant, but did not find any new pictures. Johnson wants the Court to exclude the six images of suspected child pornography.
The "Additional Supervised Release Terms" imposed by Judge Winmill in Case No. 09-cr-00287-001-BLW include the following language quoted by the defense:
Based upon this language, Johnson argues that the searches of his phone by HSI violated his constitutional rights because those searches were not performed by a United States probation officer as required by the above quoted language. However, another paragraph in the "Additional Supervised Release Terms" issued by Judge Winmill states:
According to the Government, when arrested, on November 29, 2017, "Probation Officers discovered Johnson possessed a Samsung cellular telephone containing six images of child pornography." Dkt. 50, at 5. It is unclear if the probation officers knew on November 29, 2017, that the cell phone contained the six images or if those images were first discovered on November 30 when HSI did a preview search using specialized software.
Following the initial search, the US. Probation Office sought the assistance of Homeland Security Investigations (HSI) to further search and preserve the cell phone. HSI Computer Forensics Agent Thrall began a review of the phone's contents and immediately observed child pornography.
The Court holds that the language of the additional supervised release term quoted above, "[m]onitoring may also include the retrieval and copying of all data from his computer or other electronic devices/media," adequately covers this situation. The probation officer may retrieve data from the phone. It is reasonable to read into that language that the probation officer may elicit assistance from those law enforcement personnel who have the software and the knowledge to do the retrieval. This is consistent with the "monitoring" allowed for by the special terms and conditions.
Alternatively, as an additional basis for denying the motion to suppress, the law makes a clear distinction between individuals under arrest or on probation, and individuals on parole when it comes to Fourth Amendment rights. In support of his position, Johnson only cites cases involving persons under arrest or on probation. He does not cite any case that extends the rights afforded to such persons on parole. This is an important distinction because, as a person on supervised release, Johnson cannot show that he had an expectation of privacy regarding his cell phone. In fact, the Ninth Circuit has held that "for purposes of an ex post facto analysis, there is absolutely no difference between parole and supervised release." U.S. v. Paskow, 11 F.3d 873 (9th Cir. 1993). Although this case does not involve a change in the law requiring an ex post fact analysis there is no reason to think the Ninth Circuit, in analyzing the issue here, would treat a person on supervised release any different than a parolee. Indeed, the Ninth Circuit later explained: "Supervised release and parole are virtually identical systems. Under each, a defendant serves a portion of a sentence in prison and a portion under supervision outside prison walls." U.S. v. Gavilanes-Ocaranza, 772 F.3d 624 (9th Cir. 2014).
The United States Supreme Court has explained that parolees (hence, persons on supervised release) have fewer expectations of privacy than probationers because parole is more akin to imprisonment than probation is to imprisonment. Samson v. U.S., 547 U.S. 843, 850 (2006). The Samson court went on to hold: "We conclude that the Fourth Amendment does not prohibit a police officer from conducting a suspicionless search of a parolee." Id. at 856.
The cases relied upon by Johnson, Riley v. California, 573 U.S. 373 (2014) and U.S. v. Lara, 815 F.3d 605 (9th Cir. 2016), do not apply here. Riley involved a person under arrest. Lara involved a person on probation. Johnson is on supervised release and has less protected Fourth Amendment rights than in either of those two cases. Johnson knew that probation officers could search his phone without cause, as a special term of his supervised release. He had no expectation of privacy regarding his phone.
The fact that HSI did the forensic search and retrieval of images on the cell phone rather than a U.S. probation officer does not change the fact that the search was proper.
Any illicit evidence discovered on Johnson's phone during his arrest on November 29, 2017, is clearly admissible. Further, the probation officer's reliance on HSI for "the retrieval and copying of all data from his computer or other electronic devices/media" is reasonable under Johnson's release terms. In any event, Johnson did not have a reasonable expectation of privacy regarding his phone because he was on supervised release. Thus, the motion to suppress is denied.
IT IS HEREBY ORDERED THAT:
1. Johnson's Motion to Suppress (Dkt. 44) is DENIED.