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The UNITED STATES of America, v. Marcus LOMBARDO, Defendant.
MEMORANDUM-DECISION and ORDER
Defendant Marcus Lombardo (“Lombardo” or “defendant”) has moved to suppress evidence contained on a micro-SD card taken from a cell phone that a federal probation officer found during a search of his bedroom. According to defendant, suppression is appropriate because the officer performed the search without a warrant, disregarded defendant's mother's denial of consent to enter the residence, and received no information prior to arriving at the home suggesting that defendant was violating the conditions of his supervised release. The Government opposes the motion, which has been fully briefed.
On June 14, 2012, Lombardo pleaded guilty to two counts of receipt of child pornography, in violation of 18 U.S.C. §§ 2252(a)(2) and (b)(1), one count of possession of child pornography, in violation of 18 U.S.C. §§ 2252A(a)(5)(B) & (b)(2) and 2256(8)(A), and one count of commission of a felony offense while on pretrial release, in violation of 18 U.S.C. § 3147(1). On November 7, 2012, United States District Judge Thomas McAvoy sentenced defendant to an 85-month term of imprisonment and a lifetime term of supervised release. See Dkt. No. 3:11-cr-569 (TJM) at No. 25, 26.
On February 10, 2017, Lombardo began his term of supervised release. On March 26, 2019, the Court held a revocation hearing and found that defendant violated the conditions of his release by possessing sexually explicit material and possessing an internet capable device. The Court revoked Lombardo's term of supervised release and sentenced him to a one-year term of imprisonment. The Court also reimposed a life term of supervised release. See Dkt. 16-1, Judgment of Revocation (“JOR”) at 1-3. On January 10, 2020, defendant began his second term of supervised release.
Lombardo's judgment of revocation listed several conditions of his supervised release. Relevant here, Standard Condition 6 states that:
You must allow the probation officer to visit you at any time at your home or elsewhere, and you must permit the probation officer to take any items prohibited by the conditions of your supervision that he or she observes in plain view. JOR at 4.
Special Condition 8 states that:
You must not use or possess any computer, data storage device, or any internet capable device unless you participate in the Computer and Internet Monitoring Program (CIMP), or unless authorized by the Court or the U.S. Probation Office. If placed in the CIMP, you will comply with all of the rules of the program and pay the costs associated with the program. The U.S. Probation Office may use and/or install any hardware or software system that is needed to monitor your use of a computer or internet capable device. You must permit the U.S. Probation Office to conduct periodic, unannounced examinations of any computer equipment, including any data storage device, and internet capable device you use or possess[ ]. This equipment may be removed by the U.S. Probation Office or their designee for a more thorough examination. You may be limited to possessing one personal internet capable device to facilitate the U.S. Probation Office's ability to effectively monitor your internet related activities. JOR at 5.
And Special Condition 11 states that:
You must submit your person, and any property, house, residence, vehicle, papers, effects, computer, electronic communications devices, and any data storage devices or media, to search at any time, with or without a warrant, by any federal probation officer, or any other law enforcement officer from whom the Probation Office has requested assistance. Any items seized may be removed to the Probation Office or to the office of their designee for a more thorough examination. JOR at 5.
Lombardo signed the last page of the JOR, which also contained an acknowledgement that he understood the conditions of his release. JOR at 6; see also Dkt. 16-2, Transcript of June 30, 2021 Revocation Hearing (“Tr.”) at 12-13.
On February 18, 2021, Probation Officer James Mathers (“Mathers”) visited Lombardo's home to conduct a “home contact.” Tr. at 17. Defendant was living with his parents at the time. Id. at 30. Since there was snow on the front pathway of the home, Mathers called defendant's mother, Laurie Inch (“Inch”) to determine if someone could let him in through the garage. Id. at 18-19. While on the phone with Inch, Mathers asked her if defendant was home. Id. at 19, 31. Inch then handed the telephone to defendant, who told Mathers that he would be there in a “few minutes” because he was just getting out of bed and needed to get dressed. Id. at 19, 33. Mathers asked defendant if his mother could let him into the house while he got dressed. Id. Defendant replied that she would. Id.
The parties dispute whether Inch consented to Mathers entering the house. According to the Government, Inch asked Mathers if it was necessary for him to enter her home because her husband was ill, to which Mathers replied that it was necessary and that he would not come into contact with her husband. Tr. at 19, 20. Mathers claims that Inch “let me into the house.” Id. at 20. Inch, for her part, states that she told Mathers she did not want him to enter the house “because [her] husband was very sick,” but that he “ignored what [she] said and walked through the mudroom door into the kitchen, through the living room and up the stairs to Marcus’ room.” Dkt. 13-2 at ¶ 3. Inch further avers that “[t]his was without my consent and after I told him I didn't want him to come into the house because my husband was very sick.” Id. at ¶ 4.
In any event, Mathers entered the house and walked towards Lombardo's bedroom; he knew which room belonged to defendant because defendant had identified it during a prior home visit. Tr. at 20. The bedroom did not have a door, and Mathers stood at the entryway. Id. at 21. From there, Mathers observed Lombardo crouched behind his bed and noticed that he appeared to shove something under the bed. Id. at 21. Mathers also observed a smart phone on defendant's bed. Id. Defendant then stood up and placed the bed covers over the smart phone. Id. Mathers asked defendant what was under the covers and he replied that it was his smart phone. Id. Defendant had never enrolled this phone in the CIMP program, and the Probation Office had never given him permission to possess it. Id. at 24.
When Mathers instructed Lombardo to surrender the phone, he observed that defendant's face turned pale and he started shaking. Tr. at 22. More than once, defendant pleaded with Mathers with words to the effect of “please don't do this.” Id. Mathers then stretched out his hand to retrieve the phone, but defendant turned away, bent over at the waist, snapped it with enough force to crack the screen, and placed the broken phone on his bed. Id. at 22-23. After witnessing defendant's actions, Mathers told defendant to step away from his bed and asked him if there were any other internet capable devices in the room. Id. at 24. Defendant replied that there were not. Id.
At this point, Mathers directed Lombardo to leave the room, and he escorted defendant downstairs. Tr. at 24. Mathers then contacted Chief Probation Officer Bruce VanTassel, who gave him permission to search defendant's room. Id. at 25. With Inch present, Mathers searched defendant's bedroom and found a PlayStation 4 video game console under the blanket on the bed, as well as two Amazon Firesticks. Id. Both the PlayStation 4 and the Firesticks were internet capable devices; the Probation Office had not given defendant permission to possess them, and they were not enrolled in CIMP. See id. at 24-26.
Mathers transported the damaged phone, the PlayStation 4, and the Firesticks to the Probation Office. Tr. at 27. Senior United States Probation Officer Scott Shanahan (“Shanahan”) analyzed the phone and found an SD Card inside of it. Id. at 45-46. Shanahan noticed that, while the telephone was severely damaged, the SD Card appeared intact. Id. at 46. Shanahan examined the SD card and observed what he determined was child pornography. Id. at 46-51. FBI Special Agent Jenelle Bringuel (“Bringuel”) then conducted a forensic examination of the contents of the SD card pursuant to a federal search warrant. Id. at 57-59. On it, she identified approximately 180 images and videos depicting child pornography, some of which were duplicates. Id. at 59, 61. The images and videos depict children engaged sex acts or displaying their genitals in a lewd and lascivious manner. Id. at 60.
As a result of this discovery, the Probation Office filed a supervised release violation petition alleging that Lombardo violated the terms of his release. See Dkt. No. 3:12-cr-315 (TJM) at No. 36. The district court held a hearing on June 30, 2021. During the hearing, Shanahan, Mathers, and Bringuel testified as to their findings. See generally Tr. at 7-64. The Court found, among other things, that defendant committed new criminal conduct and violated the terms of his release. Id. at 78. It sentenced defendant to a 16-month term of imprisonment. Id. at 85.
On April 6, 2022, a grand jury returned an indictment in this case charging Lombardo with one count of possessing child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). See Dkt. No. 1.
Lombardo argues that the evidence Mathers located on his phone's SD card during his search of defendant's bedroom should be suppressed. Defendant claims suppression is appropriate because Mathers searched his bedroom without a warrant, Inch did not consent to Mathers’ entry of the residence, and Mathers received no information prior to arriving at the home suggesting that defendant was violating the conditions of his supervised release. Additionally, defendant seeks an evidentiary hearing if the Court does not find in his favor on the papers. The Court disagrees that suppression is appropriate, and finds that an evidentiary hearing is unnecessary.
1. Lombardo Fails to Demonstrate a Fourth Amendment Violation
The Fourth Amendment guarantees “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” and its Warrant Clause provides that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to seized.” U.S. Const. Amend IV. Thus, a search conducted without a warrant issued upon a showing of probable cause is per se unreasonable, subject to certain exceptions. See Katz v. United States, 389 U.S. 347, 356-57, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).
A probation search is one such exception. See, e.g., Griffin v. Wisconsin, 483 U.S. 868, 873-74, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987) (“[a] State's operation of a probation system ․ presents ‘special needs’ beyond normal law enforcement that may justify departures from the usual warrant and probable-cause requirements”).1 ,2 “[A] search of a parolee is permissible so long as it is reasonably related to the parole officer's duties.” United States v. Braggs, 5 F.4th 183, 186-87 (2d Cir. 2021) (citing United States v. Grimes, 225 F.3d 254, 259 n.4 (2d Cir. 2000)). “Among these duties are the supervision, rehabilitation, and societal reintegration of the parolee, as well as assuring that ‘the community is not harmed by the [parolee's] being at large.’ ” Id. at 187 (quoting Griffin, 483 U.S. at 875, 107 S.Ct. 3164).
A. Mathers’ Entry into Lombardo's Home
First, the Court notes that Mathers’ February 18, 2021 “home contact” at Lombardo's house was permissible because it was reasonably related to his duties as a probation officer. Indeed, “probation officers are required to investigate the ‘conduct and condition’ of a supervisee ․ by, inter alia, undertaking ‘at any time’ a home visit to determine whether the supervisee is violating the terms of his supervised release, including the condition that he not commit any further crimes.” United States v. Reyes, 283 F.3d 446, 460 (2d Cir. 2002). Further, the conditions of defendant's release required him to “allow the probation officer to visit ․ at any time at [his] home or elsewhere” and to “submit [his] person, and any property, house, residence, ․ computer, electronic communications devices, and any data storage devices or media, to search at any time, with or without a warrant, by any federal probation officer.” JOR at 4. Accordingly, in making a home visit, Mathers acted properly within the bounds of defendant's conditions of release and in accordance with his duties as a probation officer. See Reyes, 283 F.3d at 460 (noting that home visits are “routine and appropriate elements of supervising a convicted person serving a term of supervised release”).
Lombardo attempts to distinguish Reyes because, unlike with Mathers’ “suspicionless” search, the probation officer in that case received a tip from the DEA that Reyes was involved in growing marijuana, which prompted the home contact. See Reyes, 283 F.3d at 451. Be that as it may, Reyes is clear that “because home visits ‘at any time’ are conducted pursuant to a court-imposed condition of federal supervised release of which the supervisee is aware, and because a home visit is far less intrusive than a probation search, probation officers conducting a home visit are not subject to the reasonable suspicion standard.” Id. at 462 (emphasis in original); see also United States v. LeBlanc, 490 F.3d 361, 367-68 (5th Cir. 2007) (agreeing with Reyes and stating that it was “consistent with a long line of cases in the Second Circuit holding that probation officers could enter and view the homes of probationers as part of their supervisory duties”). In other words, unlike for conventional probation searches, Mathers did not need “reasonable suspicion” before conducting his home visit pursuant to the court-imposed conditions of defendant's supervised release.3
Lombardo's argument that Inch never consented to Mathers’ entry into the house is likewise unavailing.4 Indeed, Mathers did not need consent to justify his entry because it was reasonably related to his duties as a probation officer. As the Second Circuit has noted, “where [a] parole officer's search is rationally and reasonably related to the performance of his duty as a parole officer, the parolee's consent is not necessary.” United States v. Lambus, 897 F.3d 368, 410 (2d Cir. 2018) (citing People v. Huntley, 43 N.Y.2d 175, 182, 401 N.Y.S.2d 31, 371 N.E.2d 794 (1977) and United States v. Newton, 369 F.3d 659, 666 (2d Cir. 2004)). Like he did in attempting to distinguish Reyes, defendant again incorrectly claims that the Government has not established a reasonable relationship to Mathers’ duties as a probation officer. Yet, as noted supra, Mathers’ home visit was reasonably related to his duties, regardless of whether he had suspicion of a supervised release violation. Thus, consent was not necessary to justify the search.
Nor could Inch's alleged protestation to Mathers’ entry have prohibited him from entering the home; she knowingly resided with an individual on supervised release, and therefore had no right to object to his search. See Frego v. Kelsick, 690 F. App'x 706, 708-09 (2d Cir. 2017) (holding that parole officers did not violate plaintiff resident's rights by searching home in which they reasonably believed third-party parolee resided despite plaintiff's objection); Taylor v. Brontoli, 2007 WL 1359713, at *1 n.4 (N.D.N.Y. May 8, 2007) (rejecting notion that plaintiff could object to probation officer's search of residence he knowingly shared with probationer because the residence was already subject to searches under probation agreement); United States v. Vang, 2015 WL 2216102, at *5 (E.D. Pa. May 11, 2015) (“What little law can be found on the topic suggests that the reduced requirement for searching parolees also limits the search protections of others that live with them”) (citing Shea v. Smith, 966 F.2d 127, 130-34 (3d Cir. 1992)). Moreover, even if Inch did have the right to object to the search, she has no standing to assert a Fourth Amendment violation, because “Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted.” Rakas v. Illinois, 439 U.S. 128, 133-34, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978).
Accordingly, the Government has demonstrated that the special needs exception to the warrant requirement applies, and Mathers did not violate the Fourth Amendment when he entered Lombardo's home.
B. Mathers’ Seizure and Search of Lombardo's Phone and SD Card
The Court also agrees with the Government that Mathers’ seizure of Lombardo's phone and Shanahan's subsequent search of the phone's SD card did not violate the Fourth Amendment because the phone was in Mathers’ plain view once he arrived at defendant's bedroom.
“Contraband that falls within the plain view of a probation officer who is justified in being in the place where the contraband is seen may properly be seized by the probation officer, if it is immediately apparent that the item is contraband with respect to the supervisee.” Reyes, 283 F.3d at 468 (quoting Comm. on Crim. Law of the Jud. Conf. of the U.S., Model Search and Seizure Guidelines (1993) at VII (1993), at VII); see also United States v. Kiyuyung, 171 F.3d 78, 83 (2d Cir. 1999) (“Under the ‘plain view’ exception [to the warrant requirement], ‘if police are lawfully in a position from which they view an object, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant’ ”).
As noted supra § 1.A, Mathers was lawfully entitled to be in Lombardo's home. Once inside, Mathers walked to defendant's bedroom, which he learned belonged to defendant during a prior home visit. Tr. at 20. While standing at the entryway of defendant's doorless bedroom, Mathers observed defendant attempting to hide something under his bed and saw in plain view a phone sitting on the bed. Id. at 21. Defendant told Mathers that it was a “smart phone,” which Mathers knew referred to an internet-capable device. Id. The conditions of defendant's supervised release prohibited him from possessing internet-capable devices without the probation office's permission, id. at 21-22, and the probation office had never granted defendant such permission for any advice, id. at 24. Moreover, a condition of Lombardo's release permitted Mathers to seize “any items prohibited by the conditions of [defendant's] supervision that he ․ observe[d] in plain view.” JOR at 4 (emphasis added).
When Lombardo attempted to destroy the phone (which Mathers knew was a prohibited item) instead of hand it to him, Mathers had reason to believe that it contained illicit material. This is especially true considering defendant was on supervised release because he had been convicted of possessing child pornography, which is often accessed via internet-capable devices. However, even if Mathers had not suspected a violation, the conditions of defendant's release gave the probation office wide latitude to search any electronic devices defendant possessed. JOR at 5. Relatedly, these conditions permitted Shanahan's subsequent search of the phone's SD card, meaning his conduct was reasonably related to his duty of ensuring that defendant did not again possess child pornography.
Accordingly, the Government has established that its seizure and search of Lombardo's phone were permissible, and suppression is inappropriate.
2. An Evidentiary Hearing is Unnecessary
“[A]n evidentiary hearing on a motion to suppress ordinarily is required if the moving papers are sufficiently definite, specific, detailed, and nonconjectural to enable the court to conclude that contested issues of fact going to the validity of the search are in question.” United States v. Getto, 729 F.3d 221, 226 n.6 (2d Cir. 2013) (cleaned up). To be entitled to a hearing, a defendant must produce evidence by affidavit “which, if proven true, would entitle [him] to relief.” L.R. Cr. P. 12.1(e); United States v. Miller, 382 F. Supp. 2d 350, 361 (N.D.N.Y. 2005).
As noted, the only factual dispute in this case is whether Inch objected to Mathers’ entry into the house. However, even assuming Inch did object, Mathers did not need consent to justify entry into the house because doing so was reasonably related to his duties as a probation officer. Accordingly, suppression is inappropriate even if the parties’ factual dispute is resolved in Lombardo's favor, and an evidentiary hearing is thus unnecessary.
Therefore, it is
1. Defendant's motion to suppress is DENIED.
IT IS SO ORDERED.
1. For purposes of a Fourth Amendment warrantless search analysis, courts generally treat parolees and probationers identically. See, e.g., United States v. Newton, 369 F.3d 659, 665 (2d Cir. 2004). Accordingly, the Court will use those terms interchangeably.
2. Compared with ordinary citizens, parolees have fewer expectations of privacy. Samson v. California, 547 U.S. 843, 849, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006). Those reduced expectations are further diminished where, as here, a condition of parole requires the parolee to submit – unconditionally – to searches of his person, property, and residence. Id. at 852, 126 S.Ct. 2193; see also United States v. Knights, 534 U.S. 112, 114, 119-20, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001) (assessing similar search condition for California probation).
3. Defendant also compares the circumstances of Reyes to United States v. Braggs, in which a probation officer searched a state parolee's home after receiving an anonymous tip that he possessed illegal firearms. See 5 F.4th at 184. But Braggs does not hold that a probation officer is required to have information about a parolee's violation before conducting a search; it simply states that the presence of an anonymous tip in that particular case indicated “that the search was sufficiently related to a valid purpose” rather than to “harass” the defendant. Id. at 188 n.5. Moreover, unlike Mathers, the probation officer in Braggs conducted a conventional parole search, not a home visit. Id. at 184.
4. The Government disputes that Inch refused consent to Mathers’ entry, though, as noted, the factual dispute is of no import.
DAVID N. HURD, United States District Judge
Response sent, thank you
Docket No: 5:22-CR-00116
Decided: September 20, 2022
Court: United States District Court, N.D. New York.
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