D.Mont.: A probation search of a computer permits moving it to a forensic lab

A probationer’s computer is subject to search on reasonable suspicion of wrongdoing. If necessary, it includes moving it elsewhere for forensic testing. United States v. Miller, 2013 U.S. Dist. LEXIS 55906 (D. Mont. April 17, 2013):

Here, Defendant’s probation condition allowed for the search of his property and his personal effects upon reasonable suspicion of a probation violation. Defendant’s computer falls within the category of his personal effects, Blood, 429 Fed. Appx. at 671, and thus Probation needed reasonable suspicion to search it. The government’s stated intent of the search was to locate evidence proving Defendant purchased weapons while on supervision or sought information regarding conversion of semi-automatic weapons to automatic weapons. Defendant argues this additional evidence was unnecessary because Probation already had evidence of a probation violation in the 46 weapons seized. The conversion of rifles into automatic weapons, however, is evidence of a crime in and of itself and thus goes beyond evidence of a probation violation. See 18 U.S.C. § 922; Mont. Code Ann. §§ 45-8-304, 313. Defendant admits that one of the weapons seized from his home may have been an automatic weapon and ATF Agent John Komora was contacted to investigate it. Further, evidence that Defendant purchased the weapons while on supervision would refute any argument that Defendant did not possess the weapons or was not aware of their presence at his residence. The computer search was limited in scope to evidence of or related to the weapons violations. The totality of the circumstances establish reasonable suspicion for the search of Defendant’s computer.

While on-site computer searches are preferred when possible, Defendant does not point to any facts suggesting Probation had the necessary equipment or capability to perform an on-site search of his computer. This lack of equipment supports the inference that Probation was not intending to search Defendant’s residence for child pornography, contrary to Defendant’s contention. It was also reasonable for Probation to seize Defendant’s computer because “the fragile and easily destructible nature of the digital evidence at issue raises undeniable concerns regarding ‘loss or possible destruction of contraband by the owner.'” Blood, 429 Fed. Appx. at 671. In sum, Defendant’s reduced privacy rights as a probationer, the difficulty of conducting a computer search on-site, and the risk Defendant could tamper with or destroy evidence all support Probation’s seizure of Defendant’s computer. The Court therefore finds that the seizure of Defendant’s computer was reasonable, and, in fact, necessary in order for Agent Weg to perform a forensic examination for the weapons information. Defendant’s motion to suppress will be denied on these grounds.