ND: Cell phone subject to probation search of house where CP suspected to be on it

Defendant was on supervised probation, and his PO received information from his girlfriend that he had “provocative” pictures of clothed young girls he was uploading to a cell phone that had no service. It was reasonable to seize and search cell phones in his residence as a part of a probation search under Knights. Pictures of naked young girls were found and he was charged with child pornography. State v. White, 2017 ND 51, 2017 N.D. LEXIS 50 (March 7, 2017):

[*P13] The conditions of White’s probation included allowing officers to search his person, vehicle or residence. The conditions of White’s probation allowed officers to search the cell phones located inside White’s residence as part of the probation search. See State v. Gonzalez, 2015 ND 106, ¶¶ 16-17, 862 N.W.2d 535 (holding the search of probationer’s cell phones was within scope of valid probationary search when condition of probation authorizing search of person, place of residence or vehicle and the cell phones were located inside the residence and vehicle); State v. Adams, 2010 ND 184, ¶ 17, 788 N.W.2d 619 (search of a locked safe inside probationer’s residence was within the scope of a valid probationary search). The search was authorized by a condition of White’s probation.

[*P14] Reasonable suspicion exists when a reasonable person would be justified by some objective reason to suspect the defendant was, or was about to be, engaged in unlawful activity. State v. Franzen, 2010 ND 244, ¶ 12, 792 N.W.2d 533. The district court found White’s girlfriend informed officers that she had discovered images of clothed, young girls in provocative positions and that White was uploading pictures to a cell phone that did not have service. There also was evidence officers searched White’s residence before searching his cell phones and found a folder containing Facebook login information for “Jesse White” and “Ashley Black” and pornographic DVDs entitled “Barely Legal.” White told officers he did not know “Ashley Black.” White does not argue the officers’ initial entry and search of his residence violated his Fourth Amendment rights. Under the facts and circumstances of this case, the officers had reasonable suspicion to search White’s cell phones.

[*P15] The warrantless search of White’s cell phones, authorized by the conditions of White’s probation and supported by reasonable suspicion, was constitutionally reasonable. The district court did not err in denying White’s motion to suppress.