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United States v. Pope

United States District Court, W.D. Kentucky, Bowling Green Division

October 9, 2019



          Greg N. Stivers, Chief Judge

         This 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.

         I. BACKGROUND

         The 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)).

         On 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).

         After 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 child pornography.

         The 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.


         A 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.

         The 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.

         "Reasonable 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." Id.

         Pope 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.

         Although 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 PS4[1]games. 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).

         Upon 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 ...

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