E.D.Wis.: Software to monitor computer usage of person on supervised release not unreasonable if necessary in the first place

Defendant was under court ordered computer monitoring as a condition of his supervised release, and software was installed on his computer and then his cell phone to monitor his text messages and internet searches. Seventh Circuit precedent forecloses defendant’s argument that monitoring his computer usage by probation with software they installed is unreasonable as a condition of release. United States v. Lowman, 2016 U.S. Dist. LEXIS 174960 (E.D.Wis. Aug. 26, 2016):

Both Knights and Barnett concerned conditions regarding the search of probationers’ homes. Since those two cases, two more recent Seventh Circuit cases have broached the subject of conditions regarding the search of probationers’ computers. In United States v. Kappes, 782 F.3d 828 (2015), a defendant argued that a condition of his supervised release violated his Fourth Amendment rights because it permitted the probation officer unlimited, unannounced access to the defendant’s personal computers to verify that the filtering software was functional. The defendant argued that the condition allowed “warrantless, suspicionless, nighttime” searches of his home. Id. at 857. The Seventh Circuit found no Fourth Amendment violation. The court reasoned that the defendant could comply with the condition by bringing the computer to the probation officer at the door and the officer would not need to enter his home. Importantly, the Court did not put weight on the defendant’s argument that the search was “suspicionless.” Id. In fact, the Seventh Circuit cited to Kappes in United States v. Taylor, 796 F.3d 788, 794 (2015), in finding that a district court did not abuse its discretion when it imposed a condition that allowed the probation officer to check the defendant’s internet-capable devices even without reasonable suspicion. Like Lowman, Taylor had argued that the probation officer should only be allowed to access his personal computer upon reasonable suspicion that he had violated a probation condition or committed a crime. The Seventh Circuit recognized that the condition at issue in Taylor was broader than the search condition in the supervised release statute because no reasonable suspicion was required. However, the court found that the broad condition was sufficiently connected to the nature of Taylor’s offense, transfer of obscene material to a person under the age of 16 under 18 U.S.C. § 1470. Thus, the court rejected Taylor’s argument that reasonable suspicion was required.