A counterfeiter’s supervised release condition, where he was convicted of using a computer to scan and print counterfeit bills, that he not have access to the internet without court or PTO’s approval and be subjected to random searches of his computers was overbroad and set aside. United States v. Sales, 476 F.3d 732 (9th Cir. February 9, 2007):
The government’s brief asserts that condition # 6 is reasonably related to Sales’s offense “in that it permits the Probation Officer to determine whether [he] is continuing to misuse his computer and peripheral equipment to create, store, and/or print counterfeit currency.” Sales acknowledges that the probation office “must be able to take measures to ensure that he does not use his scanner to make counterfeit currency” but argues that condition # 6 “goes far beyond what is necessary to achieve that goal.” We agree. Condition # 6 cannot stand as presently articulated; further tailoring and clarification are required.
To begin, as currently written the search and seizure provision purports to extend to “[a]ll computers, computer-related devices, and their peripheral equipment, used by the defendant.” Ostensibly, this includes machines used for work or personal purposes, whether owned by Sales or by others. The government’s remarks at oral argument suggested that the provision’s coverage was not intended to be so broad. (The government indicated, for example, that it was not expected to extend to equipment used only for work purposes.) Because Sales cannot be left to guess about the intended meaning of the terms of his supervised release, clarification is required.
We also find that condition # 6 is overbroad in other respects. A computer monitoring condition in some form may be reasonable. However, to comply with the Fourth Amendment, it must be narrowly tailored — producing no greater deprivation of liberty than is reasonably necessary. At present, the text gives no indication as to what kinds or degrees of monitoring are authorized — and, as courts have noted, monitoring software and/or hardware takes many forms, with greatly varying degrees of intrusiveness. See, e.g., United States v. Lifshitz, 369 F.3d 173, 175, 190-92 (2d Cir. 2004); see also United States v. Stephens, 424 F.3d 876, 880-81 (9th Cir. 2005) (discussing the “division of labor,” in terms of decision-making, between the district court and probation officer).
We note that the government requires Sales to submit “all billing records, including telephone, cable, internet, satellite, and the like, as requested by the Probation Officer.” At no time has the probation office or government articulated any justification for this requirement, and none is apparent.
Condition # 6 is vacated and remanded to the district court for the imposition of a condition consistent with this disposition.
While officers had reasonable suspicion to make a stop of the defendant, that did not automatically justify a frisk. Defendant’s actions in quickly putting his hands in his pocket when he saw the police did, however. United States v. Am, 2007 U.S. Dist. LEXIS 8984 (D. Mass. February 8, 2007).*
Fingerprinting and palmprinting a police officer on administrative leave when he was brought in with his attorney was not a seizure under the Fourth Amendment. Rhodes v. Prince, 2007 U.S. Dist. LEXIS 9028 (N.D. Tex. February 8, 2007):
The Supreme Court has addressed the question of seizures in the workplace generally, stating that “when people are at work their freedom to move about has been meaningfully restricted, not by the actions of law enforcement officials, but by the workers’ voluntary obligations to their employers.” INS v. Delgado, 466 U.S. 210, 218 (1984). “This principle is no less applicable in the public employment context.” Aguilera v. Baca, 394 F. Supp. 2d 1203, 1214 (C.D. Cal. 2005). Thus “in cases involving the constitutional rights of police officers, courts must distinguish between a police department’s actions in its capacity as an employer and its actions as the law enforcement arm of the state.” Driebel, 298 F.3d at 637. Based on this rule, the Sixth Circuit recently concluded that “a claim that a government supervisor has seized a public employee in violation of the Fourth Amendment must allege circumstances that implicate more than the obligations that arise from the employment relationship.” Reyes, 446 F.3d at 1204.
In this case, Rhodes does not allege that he was physically restrained or threatened. He does not assert that his interviewers made any show of authority. Although Rhodes maintains that Roach advised him that “he was conducting a criminal investigation of the burglary,” Rhodes does not contend that in being interviewed he was being questioned as a possible criminal suspect. Rhodes asserts that he was the subject of an “internal affairs investigation on his alleged criminal activity.” P. Rule 7(a) Reply 8. The Rule 7(a) reply does not support the conclusion that when Rhodes was called to the police station, he was being investigated pursuant to criminal charges rather than as an employee on administrative leave, undergoing an internal investigation of possible misbehavior for purposes of his continued employment.
Rhodes maintains that “before a criminal interrogation at Eastside Police Station, [he] was finger printed and palm printed.” Id. He further alleges that he “never consented to any body search, nor to any fingerprinting on [the date of his interrogation].” Id. at 9. But even drawing all inferences in favor of Rhodes, the court cannot conclude that the fact that he was fingerprinted without giving consent would permit the finding that Rhodes was subjected to a seizure as that term is understood in the context of the Fourth Amendment. Although Rhodes alleges that he did not consent to the fingerprinting, he does not assert that he did not feel free to leave or to refuse to submit to fingerprinting. While he may have risked losing his job by not complying with the requests of the officer conducting the internal affairs investigation, Rhodes does not allege that he feared a possible criminal arrest or detention for failing to comply. He has therefore failed to plead facts that support the conclusion that a reasonable person in Rhodes’s position would not have felt free to refuse to come to the police station in the first place or to leave the police station once questioning began. He has also failed to plead facts that permit the conclusion that a reasonable person in Rhodes’s position would not have felt free to refuse to submit to fingerprinting. Rhodes has not pleaded facts that permit the conclusion that he was subjected to a seizure. Consequently, his Fourth Amendment-based § 1983 claim against the individual defendants must be dismissed.
