United States District Court, W.D. Kentucky, Bowling Green Division
MEMORANDUM OPINION AND ORDER
N. Stivers, Chief Judge
matter is before the Court on Defendant's Objection (DN
52) to the Magistrate Judge's Findings of Fact,
Conclusions of Law, and Recommendation ("R&R")
(DN 49) on Defendant's Motion to Suppress (DN 34). For
the following reasons, the Court OVERRULES
the Objection, ADOPTS the
R&R, and DENIES the
Motion to Suppress.
facts of this case are essentially undisputed. On June 10,
2008, Charles Samuel Pope ("Pope") was sentenced to
102 months' imprisonment, to be followed by a life term
of supervised release, for the receipt of child pornography.
(Def's Obj. 1, DN 52; R&R 1, DN 49). Following
incarceration, Pope was subject to the following relevant
conditions: (1) an officer may conduct a search of Pope's
home and car "only when reasonable suspicion exists that
the defendant has violated a condition of [his] release and
that the areas to be searched may contain evidence of this
violation[;]" and (2) Pope "shall be subject to . .
. Computer Voice Stress Analysis ... for supervision, case
monitoring, and treatment at the discretion and direction of
the U.S. Probation Officer. . . . No. violation proceedings
will arise solely on [Pope]'s failure to pass an
examination. No. violation proceeding will arise on
[Pope]'s refusal on valid Fifth Amendment grounds to
answer questions." (Def's Mot. Suppress Ex. 1, at
2-3, DN 34-1 (emphasis added)).
January 30, 2018, Pope reported to the United States
Probation Office to complete a Computerized Voice Stress
Analyzer ("CVSA") exam. (Def.'s Mot. Suppress
3, DN 34; R&R 2). During the exam, Pope was asked whether
he had unauthorized access to the Internet on any unapproved
device since his last CVSA exam. (Def.'s Mot. Suppress
Ex. 1, at 4). Pope responded in the negative, to which the
exam indicated "deception" in his answer.
(Def.'s Mot. Suppress Ex. 1, at 4). Pope responded in the
same way when asked whether he had unauthorized access to the
Internet on any unapproved gaming console, to which the exam
indicated deception, as well. (Def.'s Mot. Suppress Ex.
1, at 4).
the exam, Probation Officer Kyle Rowland
("Rowland") informed Pope that he had failed the
test, following which Pope signed a consent-to-search form.
(R&R 5). A search of Pope's car revealed a cell phone
with Internet access belonging to his mother. A search of
Pope's residence revealed a multitude of electronic
devices with Internet access hidden between the mattress and
box springs in Pope's bedroom. Pope now moves to suppress
this evidence in the underlying indictment for possession of
United States mainly asserts that Pope's responses on the
CVSA exam and that exam's results provided the reasonable
suspicion necessary for the United States to search
Pope's home and car and recover multiple unauthorized
electronic devices. Pope refutes the existence of reasonable
suspicion allowing the United States to search his home and
car, citing the unreliability of CVS A exams.
magistrate judge's report and recommendation on
dispositive motions, such as a motion for the suppression of
evidence, is subject to de novo review by the district court.
United States v. Curtis, 237 F.3d 598, 603 (6th Cir.
2001). The issue before the Court in this case is whether the
United States possessed the reasonable suspicion necessary to
search Pope's home and car.
Fourth Amendment to the United States Constitution guarantees
"[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no Warrants
shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be
searched, and the persons or things to be seized." U.S.
Const, amend. IV. "The touchstone of the Fourth
Amendment is reasonableness, and the reasonableness of a
search is determined 'by assessing, on the one hand, the
degree to which it intrudes upon an individual's privacy
and, on the other, the degree to which it is needed for the
promotion of legitimate governmental interests.'"
United States v. Knights, 534 U.S. 112, 118-19
(2001) (quoting Wyoming v. Houghton, 526 U.S. 295,
300 (1999)). "For purposes of the Fourth Amendment, an
individual's violating the terms of his supervised
release is comparable to his violating a criminal
statute." United States v. Hilton, 625
Fed.Appx. 754, 758 (6th Cir. 2015) (citing United States
v. Herndon, 501 F.3d 683, 689 (6th Cir. 2007)).
"[F]or constitutional purposes, a search based on
reasonable suspicion can be used to seek evidence of either a
violation of a criminal statute or a supervised release
violation." Id. (citing Herndon, 501
F.3d at 689-90). In sum, it is constitutional to impose a
"reasonable suspicion" standard for warrantless
searches of the home of an individual on supervised release.
suspicion is based on the totality of the circumstances and
has been defined as requiring 'articulable reasons'
and 'a particularized and objective basis for suspecting
the particular person .. . of criminal activity.'"
Northrop v. Trippett, 265 F.3d 372, 381 (6th Cir.
2001) (quoting United States v. Cortez, 449 U.S.
411, 417-18 (1981)). The government "must be able to
point to specific and articulable facts, together with
rational inferences drawn from those facts, that reasonably
suggest criminal activity has occurred or is imminent."
has generally questioned the existence of reasonable
suspicion for the search of his home and car, but the focus
of the case has turned on whether the results of a CVS A exam
give rise to the necessary reasonable suspicion for such a
search. In the face of Pope's challenge to the
reliability of the CVSA exam, the Magistrate Judge found that
Pope had essentially waived this challenge by not objecting
to the conducting of such an exam for "supervision"
purposes as a condition of his supervised release. (R&R
12-13). Because this Court had already specified that the
CVSA exam was an appropriate means by which to supervise Pope
during his release, the Magistrate Judge concluded,
Pope's challenge to the presence of reasonable suspicion
to search his home was unavailing. See United States v.
Beyers, No. 13-00349-01-CR-W-GAF, 2014 U.S. Dist. LEXIS
115224, at *16 (W.D. Mo. July 30, 2014), adopted
2014 U.S. Dist. LEXIS 114711 (W.D. Mo. Aug. 19, 2014)
(holding the results of a polygraph exam can factor into a
reasonable suspicion determination when submission to a
polygraph exam is a condition of probation for "[i]t
would make no sense to routinely require such a condition,
but then conclude that a probationer's responses are
meaningless."). The Court agrees with the Magistrate
Judge's conclusion in this regard.
the focus of the case has been on the reliability of CVSA
exams and whether their results can give rise to reasonable
suspicion, the Court believes the record reflects the
existence of reasonable suspicion even without the CVSA
results. On December 13, 2017, six weeks before the CVSA
test, Rowland conducted a search of Pope's residence,
which Pope has not alleged was unconstitutional. (R&R 3).
Pope lived with his mother and, when Rowland arrived at the
residence, Pope's mother answered the door, and invited
Rowland in. As he entered, Rowland observed Pope running from
the back of the house to the living room, wearing only a pair
of jeans and appearing wet. Pope picked up what looked like a
gaming controller, placing it in a storage cube and
"kind of slamm[ing] the top to the cube down." When
Rowland questioned Pope about the storage cube, Pope claimed
ignorance. Rowland asked Pope to open the cube, which Pope
opened slightly, then closed again. Suspicious? At least a
bit. Rowland then asked Pope to remove the top, which Pope
did, and Rowland observed a gaming controller and
PS4games. Although no gaming device capable of
accessing the Internet was found in the storage cube, the
gaming controller and games are accessories necessary for the
use of such devices. One of the conditions of Pope's
supervised release was that "[t]he defendant shall not
possess or use a computer or any device with access to any
on-line computer service at any location . . . without the
prior written approval of the probation officer."
(Def's Mot. Suppress Ex. 1, at 2).
Rowland's discovery of the games, Pope said that they
belonged to his niece and nephew and had been in the cube
prior to Pope's release from prison. (R&R 3). Rowland
later investigated the game titles and discovered that at
least one of the games had been first sold after Pope's
release from prison. Thus, not only did Pope attempt to