Probation, Seizures and Off-Site Searches

As this site explains, in the U.S. legal system (at least), the term probation refers to a

sentence “whereby a convict is released from confinement but is still under court supervision; a testing or a trial period.”

This post examines a decision ruling on a probationer’s – Jack Henry Swearingen’s -- motion to suppress that was used to charge him with two counts of receiving child pornography in violation of 18 U.S. Code §2252A(a)(2).  U.S. v. Swearingen, 2013 WL 174479 (U.S. District Court for the District of Montana 2013).  The U.S.Magistrate Judge who has the case began his opinion by explaining how Swearingen came to be on probation, noting that on September 9, 1992, he was convicted, having pled guilty,

on two counts of sexually assaulting two minor children. . . .[He] was sentenced to 20 years in prison on each count. . . . [but the sentences] were suspended and Swearingen placed on supervised probation subject to numerous conditions. . . .

[O]n August 9, 2002, the State District Court revoked the suspended sentences after [he] admitted violating . . . his probation by . . . having unsupervised contact with minor children by allowing them into his home. . . . [He] was again sentenced to a term of imprisonment of 20 years on each of the sexual assault convictions, with the sentences running concurrently. . . . On July 30, 2002, Swearingen executed a document titled `Conditions of Probation and Parole’ that delineated all of the various conditions to which his probation would be subject.

U.S. v. Swearingen, supra.

One of the conditions was that “[u]pon reasonable suspicion, as ascertained by the Probation and Parole Officer,” Swearingen’s Upon person, vehicle, and/or residence” could be “searched at any time, day or night, without a warrant by a probation/parole officer . . . or a Law Enforcement Officer (at the direction of the probation/parole/ISP officer).” U.S. v. Swearingen, supra. The opinion notes that “there were no conditions imposed on Swearingen’s probation that “precluded him from possessing or using computers or any other electronic storage devices, accessing the internet, or possessing legal pornography.” U.S. v. Swearingen, supra. 

In 2005, he came to the attention of “United States Immigration and Customs Enforcement” agents who were investigating a child pornography website.” U.S. v. Swearingen, supra. They discovered “Swearingen's credit card number, email address, and home address”, which suggested he had “subscribed to the website two years earlier.” U.S. v. Swearingen, supra.  When the Department of Justice decided the evidence was “too stale to establish probable cause for a warrant to search Swearingen's home, the agents made contact with . . . Montana. . . . probation officer David Sonju, who . . . agreed to conduct a warrantless search pursuant to the 1992 State Court Judgment.”

U.S. v. Swearingen, supra. 

Sonju and the federal agents went to Swearingen's residence, where Sonju advised him

the search was being conducted pursuant to the 1992 State Court Judgment. . . . The agents conducted an on-site search of the computer utilizing a software program designed to ferret out child pornography. But the[y] found nothing that supported their suspicion child pornography was on the computers. Nonetheless, Sonju and the agents effected a warrantless seizure of Swearingen's computer, conducted a warrantless search of the computers off-site, and found child pornography.

U.S. v. Swearingen, supra. 

That led to charges against Swearingen and a motion to suppress evidence. U.S. v. Swearingen, supra.  The U.S. District Court judge [Judge Molloy] who had that case granted the motion because he found that the warrantless seizure and off-site search of the computers violated the 4^th Amendment because neither was “ authorized by the 1992 State Court Judgment or by Swearingen's reduced expectations of privacy and liberty as a probationer.” U.S. v. Swearingen, supra.  So he granted the motion to suppress, which ended that prosecution.  U.S. v. Swearingen, supra.

That brings us to 2012, when on January 17, an anonymous email was sent to the

Montana Department of Justice Sexual and Violent Offender Registry “regarding Swearingen's internet activity on Facebook and Flickr.” U.S. v. Swearingen, supra. It said, in part, that “`On Flikr, there are pictures Jack took of pretty young girls. I doubt her Mother knows he is a repeat offending pedophile . . . .’” U.S. v. Swearingen, supra.

The email was forwarded to Swearingen's probation officer, Chris Helms. U.S. v. Swearingen, supra. Helms went to Swearingen's residence looking for information about a possible probation violation, but no one answered the door. U.S. v. Swearingen, supra. He discussed the situation with probation officer Katie Burton, who agreed to go with him to search Swearingen's home. U.S. v. Swearingen, supra. Burton also enlisted two police detectives -- Chris Shermer and Scott King -- to assist with the search, because Shermer was trained in investigating online crimes against children and had expertise in computer searches.  U.S. v. Swearingen, supra.

On January 31, 2012, the officers went to Swearingen’s home and he let them in.  U.S. v. Swearingen, supra. Burton asked Swearingen “about the young girl's picture on his Flickr account,” and he “admitted photographing the child, identified her as `Cassie, and stated the child's mother was present at the time.”  U.S. v. Swearingen, supra. But he “could not provide contact information” for the mother.  U.S. v. Swearingen, supra.

Burton told Swearingen the pictures of the girl on his Flickr account constituted probable cause to search, and that his computers would be seized for an off-site search by the Montana Department of Criminal Investigation. U.S. v. Swearingen, supra. Swearingen objected to the officers seizing the computers and storage media without a warrant. U.S. v. Swearingen, supra. Burton said they could seize the devices without a warrant under the rules of probation. U.S. v. Swearingen, supra. Shermer asked Swearingen “if they would find anything inappropriate on the computers” and he said “they would not.” U.S. v. Swearingen, supra. Shermer “seized the CDs along with the thumb drive to search them for contraband.” U.S. v. Swearingen, supra. King took the “computers and other storage media to send them to the Department of Criminal Investigation for “`forensic examination for contraband.’” U.S. v. Swearingen, supra.

At a hearing on the motion to suppress, Burton testified that “she could have used a software/thumb drive to search Swearingen's computers on-site for child pornography but chose not to.” U.S. v. Swearingen, supra.  She testified that “Shermer had a laptop that possesses the capability to search computers and other electronic storage devices for child pornography but she did not ask him to use it to conduct an on-site search of Swearingen's computers and other electronic storage devices.” U.S. v. Swearingen, supra. Nor did the officers “undertake an on-site search of the various CDs and thumb drive using Swearingen's computers” U.S. v. Swearingen, supra.

On February 1, 2012, Shermer searched the CDs and thumb-drive seized from Swearingen “using his `undercover laptop’ and discovered what appeared to be child pornography.”  U.S. v. Swearingen, supra. The items seized from Swearingen were then sent to “the DCI Computer Crime Unit for forensic examination.” U.S. v. Swearingen, supra. The examination revealed child pornography on one of the computers and the thumb drive. U.S. v. Swearingen, supra. The evidence resulting from the search was used to bring the charges noted above and resulted  in the motion to suppress, also noted above. U.S. v. Swearingen, supra.

In ruling on Swearingen’s motion to suppress, the Magistrate Judge said the “threshold issue” involved in analyzing the permissibility of the seizure and searches was “whether the search of Swearingen's residence by probation officers Helms and Burton, assisted by local law enforcement, was supported by reasonable suspicion that Swearingen had violated a condition of his probation.”  U.S. v. Swearingen, supra.  The judge found that they did:  “Under the totality of the circumstances which existed at the time the officers entered Swearingen's residence, they had reasonable suspicion that [he] may have violated a condition of his supervision, i.e., . . . `No unsupervised contact with minors under 18. . . . ‘”U.S. v. Swearingen, supra. 

The judge then found that this “warrantless seizure and off-site search of Swearingen's computers and other storage media devices” was “indistinguishable from the seizure and off-site search of [his]  computers by probation officers that occurred in 2005 -- the seizure and search that Judge Molloy found violative of Swearingen's 4^th Amendment rights.” U.S. v. Swearingen, supra.  The judge noted that it was true, as the prosecution argued, that Swearingen was “unambiguously” aware that his

person, vehicle, and residence were subject to warrantless searches upon reasonable suspicion that he may be violating a condition of his probation. He was not . . . unambiguously advised that his computers and other items of personal property could be seized and searched off-site. This is precisely the conclusion underlying Judge Molloy's decision in the 2005 case suppressing evidence after Swearingen's probation officers effected a warrantless seizure and off-site search of [his] computer.

The State of Montana could have, but did not, impose a condition on Swearingen's probation that he agree to the seizure and off-site search of his computers and other storage media devices upon reasonable suspicion he was engaged in criminal activity or violating the conditions of his probation. In fact, it could have precluded Swearingen from having any access to a computer or the internet. Remarkably, the State chose not to, even after its discovery in 2005 that [he] was in possession of child pornography.

U.S. v. Swearingen, supra.  The judge notes that the prosecution “does not . . . argue that Judge Molloy’s decision was in error.”  U.S. v. Swearingen, supra.  He also noted that “[a]s a general matter, law enforcement officers must have a warrant to seize personal property”, but can rely on one of the exceptions the Supreme Court has recognized to the warrant requirement, if one applies.  U.S. v. Swearingen, supra. He then noted that the prosecution has the “heavy burden” of proving

`that a seizure comes under one of the ... exceptions to the warrant requirement. U.S. v. Hawkins, 249 F.3d 8676 (U.S. Court of Appeals for the 9^th Circuit 2001). . . . The Government has not sustained its burden in this case. At the time they seized Swearingen's computers and other storage media, the officers did not have probable cause to believe that those devices held contraband or evidence of a crime. The government does not argue otherwise.

Indeed, had the officers conducted an on-site search of Swearingen's computer and other storage media and found evidence of child pornography, or had Swearingen admitted to child pornography, the officers would have had probable cause to temporarily seize the devices to protect the destruction of evidence until they were able to secure a warrant from a neutral and detached judicial officer. . . . . `But, once the agents took matters into their own hands by seizing the computer . . .  and then conducting further searches with more sophisticated software, they went beyond the pale.’ United States v. Swearingen, [Judge Molloy’s 2005 opinion].

U.S. v. Swearingen, supra. 

The Magistrate Judge also explained that in this case, he found that the need for

deterrence outweighs the cost of suppressing the evidence. Based upon the nature of Swearingen's criminal convictions, and the fact he has twice been found to be in possession of child pornography, he is undoubtedly a despicable individual. But the balance must nonetheless be struck in favor of applying the exclusionary rule where its application `serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence.’  Herring v. U.S., 529 U.S. 135 (2009). The error which occurred in this case is the same error addressed and explained by Judge Molloy in 2005. It is thus fair to conclude that the error is the product of recurring and/or systemic negligence.

U.S. v. Swearingen, supra. 

The Magistrate Judge therefore recommended that the U.S. District Court judge who has the case grant Swearingen’s motion to suppress.  U.S. v. Swearingen, supra.