United States v. Richard Jackson , 866 F.3d 982 ( 2017 )

United States Court of Appeals
For the Eighth Circuit
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No. 16-3807
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United States of America,
lllllllllllllllllllll Plaintiff - Appellee,
v.
Richard James Jackson,
lllllllllllllllllllll Defendant - Appellant.
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Appeal from United States District Court
for the Southern District of Iowa - Des Moines
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Submitted: May 23, 2017
Filed: August 10, 2017
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Before COLLOTON and BENTON, Circuit Judges, and GERRARD,1 District Judge.
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1
The Honorable John M. Gerrard, United States District Judge for the District
of Nebraska, sitting by designation.
COLLOTON, Circuit Judge.
Richard Jackson appeals an order of the district court2 denying his motion to
suppress evidence obtained during a search of his cellular telephone. The search
occurred while Jackson was serving a term of supervised release and residing at the
Fort Des Moines Community Correctional Facility. Because we conclude that
Jackson had no legitimate expectation of privacy in the cell phone, and the
government has substantial interests that justify the intrusion, we affirm.
In 2013, Jackson pleaded guilty to failure to register as a sex offender, in
violation of 18 U.S.C. § 2250(a). The district court sentenced him to 21 months’
imprisonment, followed by five years of supervised release. Jackson’s conditions of
supervised release provided that he “shall submit to a search of his person, residence,
adjacent structures, office or vehicle, conducted by a U.S. Probation Officer at a
reasonable time and in a reasonable manner, based on reasonable suspicion of
contraband or evidence of a violation of a condition of release.” The judgment, as
later modified without objection, also required that Jackson “reside, participate, and
follow the rules of the residential reentry program . . . for up to 120 days.”
On February 27, 2015, Jackson began his term of supervised release at the Fort
Des Moines Community Correctional Facility, a residential reentry program. The
Facility staff provides residents with a Resident Manual that defines the rules
governing their conduct. These rules prohibit possession of cell phones in the
Facility. Residents may store a cell phone in a locker at the entrance, but no cell
phones are permitted beyond that point.
2
The Honorable John A. Jarvey, Chief Judge, United States District Court for
the Southern District of Iowa, adopting the report and recommendation of the
Honorable Helen C. Adams, Chief Magistrate Judge, United States District Court for
the Southern District of Iowa.
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The regular practice of the Facility is for staff to read these rules to residents
when they begin the reentry program. When a new resident on federal supervised
release, like Jackson, first meets with his intake counselor, the counselor again
notifies him of the rules. Multiple signs inside and outside the Facility notify all
persons that any item brought onto the Facility’s premises is subject to search.
On March 16, a probation officer confiscated Jackson’s cell phone after he
found Jackson with the device in violation of the Facility’s rules. The officer released
the cell phone to Jackson without searching it, but warned him that the cell phone
would be confiscated and searched if Jackson violated the rule a second time.
Less than a week later, on March 21, a Facility staff member found Jackson’s
cell phone in the possession of another resident. The staff member confiscated the
cell phone. A residential officer, charged with maintaining the orderly and secure
operation of the Facility, then confirmed that it was Jackson’s cell phone and asked
him for the passcode. Jackson provided the passcode, and the officer informed
Jackson that he was going to search the phone. After entering the passcode, the
residential officer discovered many pornographic images and “inappropriate sites”
on Jackson’s Internet history. A probation officer who worked at the Facility then
searched the device and discovered pornographic videos and images.
After learning of the inappropriate content found on Jackson’s cell phone,
Jackson’s supervising probation officer visited the Facility and searched Jackson’s
phone. While searching Jackson’s Internet history, the probation officer found
pornographic websites, including one that appeared to depict underage females.
Jackson admitted that another person sent him approximately ten pictures of child
pornography, which Jackson said that he deleted. The government later secured a
warrant to search the cell phone. After a forensic examination, investigators
discovered thirty-seven images of child pornography.
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A grand jury charged Jackson with possession of child pornography, in
violation of 18 U.S.C. § 2252(a)(4)(B), based on the images found on Jackson’s cell
phone. Jackson moved to suppress the evidence obtained from the search of his cell
phone. He argued that the warrantless search violated his rights under the Fourth
Amendment. The government opposed the motion, arguing that the officers had
reasonable suspicion to search the cell phone. At the suppression hearing before a
magistrate judge, the government reiterated that the officers had reasonable suspicion
to search the cell phone. Alternatively, the government urged that suspicion was
unnecessary, because Jackson had no reasonable expectation of privacy in his cell
phone while he was at the Facility.
In a report and recommendation, the magistrate judge concluded that the search
was reasonable because the officers had reasonable suspicion to believe that the cell
phone contained evidence of criminal activity. The district court adopted the
magistrate judge’s report and recommendation. Jackson subsequently entered a
conditional guilty plea, reserving his right to appeal the denial of the motion to
suppress. The district court later imposed sentence, and this appeal followed.
In their opening briefs, the parties debated whether the officers had reasonable
suspicion to search Jackson’s cell phone. After oral argument, however, the court
requested supplemental briefing on the antecedent question of whether the
government was required to establish any suspicion at all to search the device.
Having now considered the matter, we conclude that Jackson did not have an
expectation of privacy in his cell phone that society would recognize as legitimate,
and that the government had substantial interests that justified the search of Jackson’s
cell phone. Accordingly, the Fourth Amendment did not prohibit the officers from
examining the contents of Jackson’s device.
In Samson v. California, 547 U.S. 843 (2006), the Court concluded that the
Fourth Amendment did not forbid a police officer from conducting a suspicionless
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search of a parolee. In concluding that the search was reasonable, the Court assessed
the degree to which the search intruded on the parolee’s privacy and furthered
legitimate government interests. Id. at 848. The Court explained that parole is “an
established variation on imprisonment,” and that “[t]he essence of parole is release
from prison, before the completion of sentence, on the condition that the prisoner
abide by certain rules during the balance of the sentence.” Id. at 850 (quoting
Morrissey v. Brewer, 408 U.S. 471, 477 (1972)). The parolee in Samson was
unambiguously aware that one condition of his parole was that he must submit to
suspicionless searches by a peace officer at any time. Under those circumstances, the
Court concluded that the parolee “did not have an expectation of privacy that society
would recognize as legitimate.” Id. at 852. The Court further observed that the
State’s substantial interests in reducing recidivism, and in promoting reintegration
and positive citizenship by parolees, justified intrusions on privacy that would not
otherwise be allowed under the Fourth Amendment. Id. at 853.
It follows from Samson that the search of Jackson’s cell phone was permissible
under the Fourth Amendment. Supervised release is a “form of criminal sanction
imposed by a court upon an offender after verdict, finding, or plea of guilty.” Griffin
v. Wisconsin, 483 U.S. 868, 874 (1987) (internal quotation mark omitted). This
punishment is “meted out in addition to, not in lieu of, incarceration.” Samson, 547
U.S. at 850 (quoting United States v. Reyes, 283 F.3d 446, 461 (2d Cir. 2002)). We
have said that supervised release is a more severe punishment than parole and
probation, and involves “the most circumscribed expectation of privacy.” United
States v. Makeeff, 820 F.3d 995, 1001 (8th Cir. 2016) (per curiam).
Like the parolee in Samson, Jackson was on clear notice that he was subject to
the suspicionless search at issue. Although the judgment in Jackson’s criminal case
did not include a blanket condition that he must submit to suspicionless searches, he
was required to reside at the residential facility and to follow the rules of the Facility
and the reentry program. Jackson signed a form consenting to these conditions and
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agreeing to abide by them. Two unambiguous rules of the Facility, expressed to
Jackson on multiple occasions, were that a resident cannot possess a cell phone inside
the Facility, and that any property possessed within the Facility is subject to search.
Given Jackson’s diminished expectation of privacy as a supervised releasee, and the
clear notice that his cell phone was subject to search, Jackson did not enjoy an
expectation of privacy in his cell phone that society would recognize as legitimate.
Accord United States v. Huart, 735 F.3d 972, 975-76 (7th Cir. 2013). The
government’s action here also furthered substantial interests in preventing recidivism
and facilitating an offender’s reentry into the community. These interests justified
examining property that Jackson brought into the Facility against the rules.
Jackson argues that Riley v. California, 134 S. Ct. 2473 (2014), demonstrates
that the search was unconstitutional. Riley held that a warrant generally is required
before an officer can lawfully search the information on a cell phone that is seized
incident to an arrest. Id. at 2493. But Riley addressed privacy interests of an arrestee,
not the circumscribed interests of an offender serving a term of supervised release.
Riley also reasoned that the search of a cell phone did not further the government’s
post-arrest interests in preventing destruction of evidence and protecting officers; the
decision did not address the government’s interests in preventing recidivism by a
supervised releasee and facilitating an offender’s reentry into the community. Where
a supervised releasee violates the rules of a reentry facility by possessing a cell phone
despite warnings that it is subject to search, Riley is not controlling. The releasee’s
diminished expectation of privacy and the substantial government interests furthered
by the search of the device make the intrusion permissible.
For these reasons, we conclude that the search of Jackson’s cell phone did not
violate the Fourth Amendment under the circumstances presented here. The
judgment of the district court is affirmed.
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