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 4th
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 4th 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 9th 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.
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