D.Ariz.: In a CP case, Internet access can be limited and computers searched as a condition of pretrial release

Pretrial release searches for child pornography must comply with the Fourth Amendment. Defendant here may be prevented from access to the Internet. United States v. Brown, 2008 U.S. Dist. LEXIS 73715 (D. Ariz. July 14, 2008):

This case is distinguishable from the Ninth Circuit’s decision in United States v. Scott, 450 F.3d 863, 872 n. 11 (9th Cir. 2006), wherein the Ninth Circuit considered pretrial release conditions other than those designed to secure an accused’s presence in court and the safety of the community. In Scott, the defendant was arrested on Nevada charges of drug possession and released on his own recognizance. Scott, 450 F.3d at 865. As a condition of his pretrial release, defendant was required to sign a form agreeing to comply with several conditions including “random” drug testing without a warrant and that his home be searched for drugs without a warrant. Scott, 450 F.3d at 865. Scott was a Fourth Amendment case concerning defendant’s motion to suppress evidence found in a warrantless search of defendant’s home. The issue in Scott was whether defendant waived his Fourth Amendment rights by consenting to pretrial release conditions allowing law enforcement officials to conduct warrantless searches of his home. Id. at 865. The Ninth Circuit concluded that defendants on pretrial release do not waive their Fourth Amendment rights through consent to pretrial release conditions; thus, searches must be supported by probable cause under the Fourth Amendment to be lawful. Id. at 868. In analyzing the disputed search in Scott, the court determined that defendants on pretrial release do not have reduced expectations of privacy like probationers and supervised releasees. Id. at 873. “[T]he assumption that [the defendant] was more likely to commit crimes than other members of the public,” did not authorize the Government to “short-circuit” the search warrant process. Id. at 874. “Just as the government cannot detain an individual for dangerousness merely because he has been arrested, the government cannot order warrantless searches based on the assumption that the defendant will commit further crimes.” United States v. Gardner, 523 F.Supp.2d 1025, 1034 (N.D.Cal. 2007) (discussing Scott, 450 F.3d at 874).

Unlike the district court in Scott, this Court is not assuming that merely with Defendant’s arrest that he is more likely than the general public to commit sexually-related crimes while on release. Rather, the Court is relying upon expert testimony of an unchallenged expert on sexual deviancy, Mr. Robert Emerick, that “there is a relationship between viewing sexually explicit pornography depicting consenting adults in increasing severity … and the potential for viewing child images and/or committing hands-on offenses against children.” (docket # 23 at 29-30)

In summary, Defendant has been indicted for receiving and possessing child pornography; hence, probable cause exists that Defendant committed these sexually-related crimes. Mr. Emerick testified that “there is a relationship between viewing sexually explicit pornography depicting consenting adults … and the potential for viewing child images and/or committing hands-on offenses against children.” (docket # 23 at 29-30) In view of that relationship, the pretrial release condition that “[t]he defendant shall not access via computer or possess any photographs or videos of sexually explicit conduct as defined by 18 U.S.C. § 2256(2),” is a condition that will further protect the public from Defendant, while on pretrial release. (docket # 23 at 24-25) Such a condition directly serves the Government’s “legitimate and compelling” pretrial goal of protecting the public, Salerno, 481 U.S. at 749, and constitutes only a limited abridgement of Defendant’s First Amendment rights for a relatively short period of time. United States v. Bahe, 201 F.3d 1124, 1134 (9th Cir. 2000) (quoting United States v. Bee, 162 F.3d 1232, 1235 (9th Cir. 1998) (A defendant’s right to free speech may be abridged to “‘effectively address [his] [alleged] sexual deviance problem.'”); United States v. Murtari, 2008 U.S. Dist. LEXIS 18880, 2008 WL 687434 (N.D.N.Y. 2008) (pretrial release condition was reasonable and was limited to encroaching upon defendant’s First Amendment rights only to the extent necessary based upon the magistrate judge’s findings.)