CA7 combines three cases to explain in detail supervised release conditions, including search conditions on reasonable suspicion

CA7 combines three cases to explain in detail supervised release conditions, including search conditions on reasonable suspicion. One defendant posited a 3 am home check for child pornography on his computer or a Javert-like obsessive PO. United States v. Kappes, 2015 U.S. App. LEXIS 5678 (7th Cir. April 8, 2015):

In the context of probation, the Supreme Court has held that the Fourth Amendment balance of “the degree to which [a search of a probationer’s residence] intrudes upon an individual’s privacy and, … the degree to which it is needed for the promotion of legitimate governmental interests,” re-quires “no more than reasonable suspicion to conduct a search of th[e] probationer’s house.” United States v. Knights, 534 U.S. 112, 119, 121 (2001) (quotation omitted); cf. United States v. Montiero, 270 F.3d 465, 469, 473 (7th Cir. 2001) (up-holding, pre-Knights, a suspicionless-search supervised-release condition because the condition was necessary to “curb the sort of criminal activity in which a defendant had a history of engaging,” but vacating the condition’s suspicionless seizure authorization as vague and overbroad, and remanding to the district court “to craft more precisely the sei-zure authority of the special condition”). Post-Knights, the First Circuit has upheld a supervised-release condition materially the same as the computer-search-and-removal condition challenged by Jurgens. See United States v. Stergios, 659 F.3d 127, 131 n.6, 134 (1st Cir. 2011). The court noted that, “if the district court could not mandate compliance with the rules of the treatment program, the required participation would be ineffectual.” Id. at 134 (quotation and alteration omitted); but see United States v. Lifshitz, 369 F.3d 173, 193 (2d Cir. 2004) (vacating, under de novo review, a similar condition on the basis that “[t]he scope of the computer monitoring condition as it stands may … be overbroad,” and ordering “the district court to evaluate the privacy implications of the proposed computer monitoring techniques as well as their efficacy as compared with computer filtering”).

Given the legal authority cited above, we cannot find that the district court plainly erred in imposing the search condition upon Jurgens. See Olano, 507 U.S. at 734 (“At a minimum, court of appeals cannot correct [a plain] error … unless the error is clear under current law.”). We do note that both the defense and the government assume that, as stated in the government’s brief, “[t]he removal provision requires Mr. Jurgens to release his computer for more thorough in-spection by his probation officer only if there is reasonable suspicion that Mr. Jurgens has violated the terms of his release.” However, the language of the condition is not as clear as it could be on this point. On remand, the sentencing judge should consider rewording the condition to clarify that the “periodic unannounced examinations of [Jurgens’] computer equipment … which may include … removal of such equipment for the purpose of conducting a more thorough inspection” may only be done if the probation officer has reasonable suspicion to believe that Jurgens is in violation of a condition of supervised release. See 18 U.S.C. § 3583(d) (authorizing a supervised-release condition requiring a sex of-fender to submit to search “by any law enforcement or probation officer with reasonable suspicion concerning a violation of a condition of supervised release or unlawful conduct by the person” (emphasis added)); U.S.S.G. § 5D1.3(d)(7)(C) (recommending the same special condition for sex offenders); cf. Farmer, 755 F.3d at 854 (vacating a search condition that required “no suspicion, reasonable or otherwise, to trigger a search”). The identical condition was imposed upon Kappes, and we similarly encourage Kappes’ sentencing judge to consider rewording the condition.