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United States v. Lowman

United States District Court, E.D. Wisconsin

December 19, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
JASON D. LOWMAN, Defendant.

          ORDER ADOPTING MAGISTRATE JUDGE JOSEPH'S RECOMMENDATION (DKT. 29) AND DENYING DEFENDANT'S MOTION TO SUPPRESS (DKT. 9)

          HON. PAMELA PEPPER United States District Judge

         INTRODUCTION

         The grand jury indicted defendant Jason Lowman on one count of willfully engaging in the business of dealing in firearms without a license, and one count of being a felon in possession of a firearm. Dkt. No. 1 at 1-2. The defendant filed a motion to suppress and a request for an evidentiary hearing. Dkt. No. 9. Specifically, the defendant argued that the warrant used to obtain evidence against him was based on illegally obtained evidence. Dkt. No. 9 at 1. Magistrate Judge Joseph held an evidentiary hearing on May 16, 2016, dkt. no. 16, and she issued a report and recommendation on August 26, 2016. Dkt. No. 29. Judge Joseph recommended that the court deny the motion to suppress. Id. The defendant objected to the report and recommendation. Dkt. No. 32. The court adopts Judge Joseph's recommendation, and denies the defendant's motion to dismiss.

         DISCUSSION

         Judge Joseph's order lays out the factual and legal conclusions relevant to the general resolution of the case. Dkt. No. 29. The court will address only the specific issues raised in the defendant's objection.

         The defendant raised two arguments in his objection to Judge Joseph's order: (1) that the conditions of the defendant's supervised release focused exclusively on internet use and provided no authority to search his computer without reasonable suspicion, and (2) that Judge Joseph erred in finding that reasonable suspicion was not required to support a search of the defendant's texts and personal photographs. Dkt. No. 32 at 2, 9. The court finds that a probation office may search a defendant's internet-capable cell phone pursuant to a narrowly-tailored probation condition allowing such searches. Thus, the court agrees with Judge Joseph that the probation condition in this case encompasses cell phone text message searches and is narrowly tailored to fit the defendant's circumstances.

         I. The Seventh Circuit Has Held that Broad Computer/Internet-Capable Device Search Conditions Do Not Violate a Probationer's Fourth Amendment Rights if Narrowly Tailored to the Probationer's Circumstances.

         There appears to be no dispute that the probation officer did not have reasonable suspicion to search the defendant's text messages and photos. As Judge Joseph explained, “[t]he Supreme Court has left open the question of whether an entirely suspicionless search could be authorized simply because the probationer agreed to waive his Fourth Amendment rights as a condition of his supervision.” Dkt. No. 29 at 11; See United States v. Knights, 534 U.S. 112 (2001). The Seventh Circuit has addressed this question in multiple cases- again discussed in Judge Joseph's order. Id. at 11-13. While there may be arguments against the applicability of some of the cases to the defendant's situation, the court agrees with Judge Joseph that United States v. Taylor, 796 F.3d 788 (7th Cir. 2015) controls. Id. at 12-13.

         In Taylor, the Seventh Circuit reviewed a special probation condition requiring monitoring of internet-capable devices. Id. at 794-95. The condition provided that:

The defendant may not use the internet to access social chat-rooms in which users conduct conversations with other third-party chatroom users. This does not include informational chats used by websites to provide customer service or answers to frequently asked questions. Prior to accessing an internet capable device, the defendant shall provide notice to the probation department of the type and location of such device. To verify compliance with this condition, upon request, the defendant shall make available for inspection by the probation department, any such internet capable device.”

Id. at 794. The Seventh Circuit found that the search triggered by this provision did not need to be conditioned on a finding of reasonable suspicion, because the defendant had used his computer to commit the crime, and allowing access to the defendant's personal computer without reasonable suspicion of a probation violation or crime was not an abuse of discretion. Id. at 794-95. Still, the Seventh Circuit “reiterate[d] the importance, when sentencing courts consider imposing a special condition like this one, that such ‘broad search and seizure authority' be ‘connected to [the defendant's] offense, history, and personal characteristics.” Id. at 795 (citing Goodwin, 717 F.3.d at 523).

         Taylor essentially holds that if a district court imposes a broad search condition that is narrowly tailored to the defendant's “offense, history, and personal characteristics, ” a probation officer does not need reasonable suspicion to conduct the search. This court must analyze (a) the scope of the probation condition here, and (b) whether the condition was narrowly tailored to the defendant's circumstances.

         II. The Search Condition Allowed Searches of the Defendant's Internet-Capable Devices, Including His Cell Phone.

         The presentence writer who worked on the defendant's receipt of child pornography case before Judge Stadtmeuller filed the defendant's presentence investigation report on January 12, 2011. United States v. Lowman, case no. 10-cr-115 at Dkt. No. 8. That report (unlike reports the ...


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