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Eighth Circuit Upholds Warrantless Search of Cellphone Owned by Person on Supervised Release Due to Diminished Expectation of Privacy

by Mark Wilson

The United States Court of Appeals for the Eighth Circuit upheld a lower court’s refusal to suppress evidence obtained during a warrantless cellphone search. The Court of Appeals found that an Iowa prisoner did not have an expectation of privacy in his cellphone while serving a supervised release term and residing in a residential re-entry program.

Richard Jackson pleaded guilty to failing to register as a sex offender in violation of 18 USC § 2250(a). He was sentenced to 21 months in prison and a five-year supervised release term. Jackson’s supervised release conditions required him to submit to warrantless searches upon reasonable suspicion of contraband or release condition violations. The court also ordered Jackson to “reside, participate, and follow the rules of the residential reentry program ... for up to 120 days.”

On February 27, 2015, Jackson began serving his supervised release in a residential reentry program at the Fort Des Moines Community Correctional Facility.

The program rules prohibited cellphone possession in the facility. Residents were permitted to store their cellphones in lockers at the entrance, but no phones were permitted beyond that point. Numerous signs inside and outside the facility declared that any item brought onto the premises was subject to search.

A probation officer confiscated Jackson’s phone when he caught Jackson possessing it inside the facility on March 16, 2015. The officer returned the phone to Jackson without searching it but warned that it would be confiscated and searched if Jackson violated the rule again.

Five days later, another resident was caught possessing Jackson’s phone. Staff confiscated the phone. After entering the passcode, facility staff discovered numerous pornographic images and “inappropriate sites” on Jackson’s internet history.

A probation officer then searched the phone and found “pornographic websites, including one that appeared to depict underage females.” Jackson claimed that someone had sent him approximately 10 pictures of child pornography, but he deleted them. A forensic examination revealed 37 images of child pornography.

Jackson was charged with possession of child pornography, in violation of 18 USC § 2252(a)(4)(B), based on the images found on his phone. He moved to suppress the evidence, arguing that the warrantless search of his phone violated the Fourth Amendment to the United States Constitution.

After the district court denied Jackson’s motion to suppress, he entered a conditional guilty plea. He reserved the right to appeal the denial of the motion to suppress.

The Eighth Circuit affirmed. It noted that “supervised release is a more severe punishment than parole and probation, and involves ‘the most circumscribed expectation of privacy.’”

According to the Court, the warrantless search of Jackson’s cellphone was permissible under Samson v. California,547 U.S. 843 (2006). “Like the parolee in Samson,Jackson was on clear notice that he was subject to the suspicionless search at issue,” the Court found. “Given Jackson’s diminished expectation of privacy as a supervised releasee, and the clear notice that his cellphone was subject to search, Jackson did not enjoy an expectation of privacy in his cellphone that society would recognize as legitimate.”

Thus, the search of Jackson’s cellphone did not violate the Fourth Amendment, and the Eighth Circuit affirmed the district court’s decision to deny Jackson’s motion to suppress evidence discovered during the search. See: United States v. Jackson, 866 F.3d 982 (8th Cir. 2017). 

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