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Search of probationer’s cellphone upheld

Is a warrantless search of a probationer’s cellphone permissible? The appellate court decides in a recent case

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The court concluded the officer had reasonable suspicion Lajeunesse was violating the terms of his probation and engaging in illegal activity.

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UNITED STATES V. LAJEUNESSE, 2023 WL 7172027 (2nd Cir. 2023)

Terry Lajeunesse was on probation for a child pornography crime. The conditions of his detailed probation agreement included that he have no unauthorized, deliberate contact with persons under 18; be subject to unannounced searches of his person, vehicle, residence, and any computers or other electronic devices; and not use social networking sites.

Lajeunesse’s ex-wife told his probation officer Lajeunesse was “dating a teenage girl” who is “so young and vulnerable,” “staying over at her house frequently overnight and drinking,” conducting “alarming” activity on Facebook, and contacting other teenage girls overseas. The probation officer checked the girl’s Facebook page and concluded she looked to be under 18. He discovered Lajeunesse had been communicating with the girl through a Facebook account he had not registered with the probation officer, as required by the probation agreement.

A couple of weeks after receiving the tip, the probation officer made a scheduled visit to Lajeunesse’s home. He asked to see Lajeunesse’s cellphone and Lajeunesse handed it to him. When the officer opened the phone, he saw a picture of the girl from the Facebook page. Lajeunesse said he had been in a sexual relationship with her and that she was 19 years old, nearly 20. The officer later confirmed the girl was over 18.

After Lajeunesse told the officer about the sexual relationship with the girl who appeared to be underage, the officer obtained assistance from officers who had more familiarity with cellphones. They found a file showing what appeared to be two teenage girls, one of whom was naked and seemed to be about 13 or 14 years old. The officers also found what appeared to be a media storage application locked with a passcode. Lajeunesse claimed not to know the number needed to unlock the application. The officer seized the phone to conduct “a full forensic search based on the presence of child pornography, and subject to the conditions of defendant’s probation.” The forensic examination uncovered several images and videos of sexually explicit conduct involving minors.

Lajeunesse was arrested for child pornography crimes. While in jail, he sent two letters to his juvenile son, asking him to claim responsibility for the pornography so as to “create a little reasonable doubt” by saying “you used my phone because yours was broken and you went on a file sharing site and downloaded some files on accident,” adding that “you were 14 at the time so they wouldn’t be able to do Jack S— to you anyway.” Oops. Lajeunesse entered a conditional guilty plea, preserving his right to appeal the denial of his motion to suppress the evidence from the cell phone search.

Lajeunesse argued the probation officers lacked reasonable suspicion for the search of his cell phone, claiming they did not have reasonable suspicion Lajeunesse was in a relationship with an underage girl or that he possessed illicit images. He further claimed that, at most, the officer had reasonable suspicion Lajeunesse was using Facebook. Thus, the officers could only search his phone for evidence he was violating the social media probation clause.

Probationers and parolees enjoy only conditional liberty and thus do not have the same expectation of privacy in their homes, possessions, electronic devices and vehicles (Griffin v. Wisconsin, 483 U.S. 868 (1987)). It follows that reasonable suspicion, and not probable cause, is the standard for evaluating a probation or parole search. To constitute a valid warrantless search, the probation officer must have reasonable suspicion the probationer has committed a probation violation or crime, and that the search is reasonably related to the probation officer’s duty to supervise the probationer. The purpose of the second part of the test (reasonable connection to probation or parole supervision) is to deter officers from using probation and parole agents to perform general warrantless searches. (That doesn’t mean probation and parole agents cannot, or should not, cooperate and work in tandem with other officers.)

The Supreme Court upheld a California statute allowing law enforcement officers (not only probation and parole officers) to conduct suspicionless investigatory searches and seizures of parolees at any time (Sampson v. California, 547 U.S. 843 (2006)). The Court ruled parolees are like prisoners and have substantially diminished privacy interests. In United States v. Knights (534 U.S. 112 (2001)), the Court ruled officers could search the home of a probationer based on reasonable suspicion because he was subject to a probation condition that allowed suspicionless searches and seizures by any law enforcement officer at any time. Sampson argued officers should be required to have at least reasonable suspicion before searching. The Supreme Court disagreed: “Imposing a reasonable suspicion requirement, as urged by Sampson, would give parolees greater opportunity to anticipate searches and conceal criminality.” Note: Most states’ parole schemes, along with the federal system, do not authorize suspicionless searches and seizures of parolees; therefore, the applicability of the Sampson decision is limited.

The reasonable suspicion standard applies only to searches of parolees or probationers conducted by parole and probation agents. Other officers dealing with parolees and probationers must follow general search and seizure rules. However, an officer who lawfully contacts a probationer or parolee may search upon the express direction of the probation or parole agent. States may choose to adopt statutes similar to the California law at issue in United States v. Knights and Sampson v. California, which offer greater search authority over probationers and parolees. Be sure to know your state law on this point. Talk to the parole and probation agents in your jurisdiction. Though an officer may request a probation or parole agent to determine the search should be made, and the officer’s primary motive may be to find evidence of a new crime, there must be a legitimate probation or parole reason to authorize the search.

The appellate court noted, “Lajeunesse’s expectation of privacy in his phone was severely diminished” because he had signed a written probation agreement consenting to unannounced searches of all his electronics, including his cellphones. The search clause authorized probation officers to take custody of his electronic devices for detailed offsite searches and required him to provide passwords and passcodes to access the devices.

The court concluded the officer had reasonable suspicion Lajeunesse was violating the terms of his probation and engaging in illegal activity. The officer had received a tip that Lajeunesse was drinking, using social media to contact teenage girls, breaking curfew and having an intimate relationship with a teenager described as “so young and vulnerable.” The officer corroborated the tip by viewing the young girl’s Facebook page and initially concluding she appeared to be under 18.

The court flatly rejected Lajeunesse’s argument that the officer could search the phone only for evidence Lajeunesse was using social media or that the officer was required to believe Lajeunesse’s “self-serving contention” that the girl was an adult: “To conclude otherwise would allow any probationer to evade detection by lying.” The court also rejected Lajeunesse’s argument that the cellphone search was subject to heightened scrutiny under the Supreme Court decision in Riley v. California (573 U.S. 373 (2014)), in which the Court held a cellphone search incident to arrest was not allowed.

The court of appeals also held the cellphone search was independently justified under the special-needs doctrine of Griffin v. Wisconsin. The court upheld the denial of the suppression motion but remanded the case to the trial court for reconsideration of Lajeunesse’s sentence of 198 months in prison followed by 20 years of supervised release. Because Lajeunesse was not offered the opportunity to “allocate,” or speak in his defense, at sentencing, he should have a shot at begging for leniency. Perhaps he’ll get to explain his effort to pin the child pornography crime on his teenage son.

Ken Wallentine is the chief of the West Jordan (Utah) Police Department and former chief of law enforcement for the Utah Attorney General. He has served over three decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.