CA9: Where findings were made by district court, a computer search condition is valid (dissent by Kozinski)

Defendant was convicted of felon in possession charges, and he kept records of his firearms. This authorized a computer search condition on supervised release where the predicate findings were made by the district court. (Dissenter says that there was no nexus between computers and the offense, so the condition is overbroad.) United States v. Bare, 2015 U.S. App. LEXIS 20396 (9th Cir. Nov. 24, 2015) (2-1):

While we have on occasion vacated conditions of supervised release limiting or restricting the ability to use computers and access the Internet, we have not taken such a heavy hand with respect to general search conditions of personal computers. Compare United States v. Barsumyan, 517 F.3d 1154, 1161 (9th Cir. 2008) (“[A] mere nexus between the crime and a computer does not justify proscribing the use of anything containing a circuit board or microchips.”), with United States v. Morris, 485 F. App’x 213, 216 (9th Cir. 2012) (“Morris has cited no authority that clearly supports her argument that a suspicionless computer search-and-seizure condition may not be imposed on a defendant who only tangentially made use of a computer in the course of her crime, nor authority that holds that the district court’s computer search conditions are impermissibly broad.”).

We hold that so long as a district court makes a factual finding establishing some nexus between computer use and one of the goals articulated in 18 U.S.C. § 3553(a)(2)(B), (a)(2)(C), or (a)(2)(D)—which was amply supported by the record here—it is not an abuse of discretion for a district court to impose a condition of supervised release permitting the search of a defendant’s personal computers. See United States v. Terrigno, 838 F.2d 371, 374 (9th Cir. 1988) (upholding probation condition with “a reasonable nexus with the twin goals of probation, rehabilitation and protection of the public”); see also United States v. Hinkson, 585 F.3d 1247, 1264 (9th Cir. 2009) (en banc) (explaining that when reviewing a district court’s actions for abuse of discretion, “we look to whether the district court’s findings of fact, and its application of those findings of fact …, were illogical, implausible, or without support in inferences that may be drawn from facts in the record”). In articulating this rule, we are guided by our prior decisions in United States v. Sales, 476 F.3d 732 (9th Cir. 2007), and United States v. Betts, 511 F.3d 872 (9th Cir. 2007). We held in Sales that a condition permitting the search and seizure of any computer-related device “used by the defendant” was overbroad because it applied to computers used for work or personal purposes, whether owned by the defendant or others. 476 F.3d at 734, 737. For that reason, we limit our holding to personal computers or electronic devices over which a defendant has control and where he has both the obligation and the ability to inform other users that the computers or devices may be subject to search.

. . .

The district court made a factual finding that a nexus existed here between Bare’s potential computer use while he remains under supervised release and the need to deter his future criminal conduct, i.e., repeating the possession and pawning of prohibited firearms. We disturb the nexus finding only if it is clearly erroneous. See Hinkson, 585 F.3d at 1259. The district court’s nexus finding was not clearly erroneous and, in fact, was well-supported by the facts of the case. As articulated by the Government during Bare’s original sentencing, evidence existed that Bare kept paper records of his illicit firearms pawn business. Permitting a search of only paper records—but not computers—might enable Bare to evade discovery of recidivist activity by switching his records into an electronic format. Allowing such a loophole to exist would, as denounced in Samson, give Bare a “greater opportunity to anticipate searches and conceal criminality.” 547 U.S. at 854.6 To illustrate, we will never know what incriminating evidence Bare destroyed while he kept arresting federal officers at bay.

Although the dissent requires a direct nexus between the offense conduct and the computer search condition, the law does not.7 T.M., 330 F.3d at 1240 (“The supervised release conditions need not relate to the offense for which [the defendant] was convicted as long as they satisfy any of the conditions set forth [in § 3583(d)(1)].”). The law only requires some nexus between the computer search condition and furthering “the goal of deterrence, protection of the public, or rehabilitation of the offender.” Id.; see also United States v. Manuel, 601 F. App’x 585, 585-86 (9th Cir. 2015) (upholding a computer search condition—imposed due to Department of Corrections records indicating gang affiliations or involvement—for a defendant convicted of being a felon in possession of ammunition); United States v. Hayes, 283 F. App’x 589, 594 (9th Cir. 2008) (upholding a computer monitoring condition—imposed due to evidence of the use of text messaging to threaten and harass former wives—for a defendant convicted of making a false statement to acquire a firearm).

Here, the circumstances of Bare’s offense yield a demonstrable nexus between both his offense and the need for adequate deterrence. His conviction for being a felon in possession of firearms arose directly out of his home-based commercial pawn business. We are mindful that one of the weapons Bare took in pawn was an AK47, with a 47-round clip, a weapon existing for no other purpose than to efficiently kill others. Because future records for such a business might easily be kept on computers, the district court did not abuse its discretion when imposing the electronic search condition. …

KOZINSKI, Circuit Judge, dissenting in part:

Persons on supervised release may have diminished expectations of privacy, but they have privacy rights nonetheless. Moreover, Congress has instructed us to adopt conditions of supervised release that impose “no greater deprivation of liberty than is reasonably necessary” to achieve the goals of supervised release. 18 U.S.C. § 3583(d)(2). The majority today disregards this command by allowing probation officers to search defendant’s computer at any time, for any reason or no reason, even though defendant did not use a computer to carry out his crime, and (so far as we know) did not even own a computer when he committed the offense.

The majority’s rationale, that defendant’s crime could be committed with the help of a computer, is no limitation at all. Pretty much any federal crime can be committed by using a computer in some way—to maintain records, to case the premises using Google Street View or to track down accomplices, methods and supplies necessary for committing the crime. If a hypothesis about how the crime might have been committed is a sufficient justification for imposing a supervised release condition, then any condition can be justified by supposing that the crime could be committed in a way that’s different from the method employed by the defendant. I cannot subscribe to such a broad and amorphous standard.

The Supreme Court recently reminded us of the massive intrusion into personal privacy that occurs when police rifle through the contents of a smartphone, which the Court characterized as a “minicomputer[].” Riley v. California, 134 S. Ct. 2473, 2489 (2014). The Court criticized electronics searches for allowing police to reconstruct “[t]he sum of an individual’s private life.” Id. The search of all of defendant’s computers—desktops, laptops, smartphones—would certainly do no less. Such an intrusion must be based on a substantial justification, which is why none of our published opinions approve an electronics search condition where the crime itself doesn’t involve the use of a computer. And after Riley, other courts have invalidated expansive electronics search conditions that lack a nexus to the defendant’s crime. See, e.g., In re Roman P., No. A143468, 2015 WL 6604609, at *2-3 (Cal. Ct. App. Oct. 30, 2015); In re Erica R., 192 Cal. Rptr. 3d 919, 922-23 (Cal. Ct. App. 2015).

The majority cites two cases for the contrary proposition, but this reliance is misplaced. …

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