Opinion
Case No. 2:98CR425C
April 4, 2000
ORDER
On or about August 19, 1998, a grand jury indicted Defendant Jeffrey Tucker under 18 U.S.C. § 2252A(a)(5)(B), for the knowing possession of images of child pornography that had been shipped, mailed, and/or transported in interstate and/or foreign commerce. This matter comes before the Court on Tucker's Motion to Suppress evidence.
Tucker filed this motion to suppress all evidence discovered on his computer on the grounds that his Fourth Amendment rights had been violated. As the evidentiary hearings progressed, Tucker's argument has come to incorporate a number of bases for suppression: (1) the initial search of Tucker's house was invalid because (a) the parole officer lacked reasonable suspicion to conduct a parole search and (b) the parole officer was acting merely as an agent or tool of the police; (2) the initial search of Tucker's computer exceeded the scope of any allowable search; and (3) the seizure and subsequent search of Tucker's computer was invalid since the search warrant, obtained after the initial search of Tucker's apartment, was inadequate. The government contends that this was a valid parole search supported by reasonable suspicion and that no warrant was necessary for any search of Tucker's computer given the fact that Tucker was a parolee until January 2000.
I. Background
On April 10, 1996, Tucker was paroled by the Utah Department of Corrections. As part of the parole agreement, Tucker agreed to the following relevant condition:
(5) SEARCHES: I will permit agents of Adult Probation and Parole to search my person, my residence, vehicle or any other property under my control, without a warrant, at any time, day or night upon reasonable suspicion to ensure compliance with the conditions of my parole.
Warrant, dated April 10, 1996. Tucker also agreed to "special conditions" that required that he "have no contact with children under age of 18 without the supervision of an adult who is aware of [his] sexual deviancy" and to "not view or have in [his] possession any materials exploiting children or depicting unconsensual sex acts or acts involving force or violence." Id. In June 1998, Tucker was still on parole.
In May 1998, Corina Groneman, an employee of the United States Attorney's Office, and former employee of the Bureau of Reclamation, received a phone call from a friend ("Friend 1") who informed her that he had a friend ("Friend 2") who had visited Tucker's home. Groneman knew Friend 1 through her prior position with the Bureau of Reclamation, when both were employed there. Friend 1 wished to remain anonymous and he told Groneman that Friend 2 also wished to remain anonymous. Groneman did not know the identity of Friend 2.
According to Friend 1, during Friend 2's visit to Tucker's home, Tucker showed Friend 2 images of child pornography on Tucker's computer. In addition, Friend 1 told Groneman that Friend 2 told him that the situation was urgent since Tucker had recently targeted a young female neighbor and might attempt to meet with her at some point in the future. Groneman knew who Tucker was because both Tucker and Groneman had worked at the Bureau of Reclamation.
On June 10, 1998, Groneman contacted Detective Atack, with the Salt Lake City Police Department, and told him what she knew of the situation. Specifically, Groneman told Atack that she had received information that a co-worker of Tucker's had been at his house, had seen images that were pornographic involving minors, that Tucker had said "he was interested in little girls," and that he had already targeted a neighbor girl. Transcript of February 23, 2000, Hearing at 77 (hereinafter "Transcript at"). Groneman told Atack that she had no first-hand knowledge of any criminal acts. Instead, Groneman told Atack that she had been contacted by a friend who had been contacted by this co-worker. See id. at 58.
Although Groneman did not know Tucker intimately, she was familiar enough with him to give his physical description to Detective Atack. See id. at 60, 78. Groneman told Atack who she was and that she was a member of the U.S. Attorney's staff. When Atack asked Groneman if he could contact the original source of the information (i.e., Friend 2), Groneman responded that he could not, as Friend 1 and Friend 2 wanted to remain anonymous.
After speaking with Groneman, Atack checked Tucker's criminal history. Atack saw a picture from Tucker's criminal history file and saw that the picture matched the description Groneman had provided. See id. at 78. Atack also noticed that Tucker had been convicted of a felony. He contacted Adult Probation and Parole, and was told that Ken England was supervising Tucker while Tucker was on parole.
The same day that Atack talked with Groneman, Atack contacted England and told him about the tip. Atack was uncertain how many people were involved in the chain of information, but he told England that the person with first-hand knowledge wanted to remain anonymous. During the evidentiary hearing, Atack testified,
As I recall, the distinction I had made was that Ms. Groneman had been in contact with a person that wanted to remain anonymous, and that a co-worker had been in Mr. Tucker's home and had seen the material.
Id. at 79. England told Atack that he was going to talk with his supervisor and that he would be in touch.
The same day that he received the tip, England contacted Jennifer Bartell. Bartell was England's supervisor and monitored his activities as a parole officer. England told Bartell what he knew about the tip. It was Bartell's understanding that the tip came from "an outside party — as it was . . . relayed to me, a concerned citizen." Id. at 14. It also appears that Bartlett understood the outside source to be anonymous. When asked whether she knew anything about the outside source, Bartell responded that she did not, but that "a lot of times I've even acted on . . . anonymous phone calls that have come into our department that would indicate that . . . somebody might be in violation [of the terms of his parole]." Id. at 15. According to Bartlett, when the substance of the anonymous tip "fits" with the reason the individual is on parole, the parole office has made visits to determine if the tip is valid. Id. at 15.
Bartell and England met and reviewed Tucker's file. They noted that Tucker was on parole for sexual abuse of a child. Bartell decided that, based on the information she had received from England, she had reasonable suspicion to conduct a parole search of Tucker's home. England contacted Atack and requested the assistance of the police force during the search. Atack contacted Detective Rick Gruber of the Salt Lake City Police Department. Detective Gruber has expertise in computer crimes, and is trained in the police protocol for searching computers without accidental or intentional destruction or erasure. See id. at 64.
On June 11, 1998, Bartell, England, Atack, Gruber, and other law enforcement personnel went to Tucker's apartment to conduct a parole search. The door to the apartment was open, but a screen door was closed. England called out to Tucker and Tucker responded. No one claims that Tucker gave the officers consent to enter his home. Bartell and England opened the screen door and walked into Tucker's apartment.
When Bartell and England entered the apartment, Tucker was standing next to the computer, which was turned on. Tucker was told to move away from the computer. Bartell introduced herself to Tucker and told him that they were there to perform a parole search.
As soon as Tucker moved away from the computer, Gruber looked at the computer screen and noted that Tucker was logged onto the Internet, viewing a "newsgroup" named "alt.sex.preteen." Gruber then sat down at the computer and ran a program that prevents alteration of the hard drive. He then ran another program that allowed him to look at the hard drive. He found that a number of images had recently been deleted, but he was unable to see those images. It was Gruber's impression that some of the images might contain pornographic images. See id. at 70.
A "newsgroup" is an electronic bulletin board where people post messages, replies, and exchange data, documents, and images. The name of the newsgroup is, it appears, related to the content of the information discussed and exchanged. When the officers looked at the screen, they saw only text, not images.
While Gruber was working on Tucker's computer, other officers were searching Tucker's apartment. During the search of the apartment, the officers found a digital camera. Officers examined the camera and discovered a picture of two young girls. The girls were fully clothed, and the picture did not involve any kind of sex act. Tucker admitted that he had talked to the girls and taken their picture on an airplane flight to Oregon.
As Gruber continued his search of the computer, Tucker indicated to Bartell that "there's some stuff on there that's going to cause me problems." Id. at 24. Gruber was unable to complete his search of the computer at that point because he did not have the necessary computer software to retrieve the previously deleted images. Gruber told Bartell about the deleted files and Bartell ordered the computer seized.
Bartell and England took Tucker into administrative custody. That evening, a formal interview was conducted at the Salt Lake City Police Department, where Tucker waived his Miranda rights. During the interview, Tucker said that he had recently been targeting a neighborhood child and admitted that his computer contained images of child pornography.
After the interview, Atack sought and received a search warrant to search the computer for images of child pornography. The warrant authorized search of "property or evidence" described as a "desktop computer" and "several floppy and compact disks that were confiscated with the computer. . . ." Search Warrant, dated July 8, 1998. Atack took the computer to Agent Dan Hooper of the Utah Department of Investigations. Hooper conducted the search of the computer after the search warrant was issued. During the search, Hooper was able to retrieve some previously deleted images from Tucker's computer. He found over a hundred images of child pornography saved on the hard drive. Subsequently, on February 8, 2000, Tucker's parole was formally revoked by the Board of Pardons.
II. Analysis
A. Validity of the Initial Search of Defendant's home
The Fourth Amendment provides protection from unreasonable searches and seizures. As a general matter, law enforcement officials should conduct searches pursuant to a warrant supported by probable cause. See Vernonia School Dist. 47J v. Acton, ___ U.S. ___, 115 S.Ct. 2386, 2390-92, 132 L.Ed.2d 564 (1995); United States v. Lewis, 71 F.3d 358, 361 (10th Cir. 1995).
Parolees, however, do not enjoy "the absolute liberty to which every citizen is entitled, but only . . . conditional liberty properly dependent on observance of special parole restrictions." Morrissey v. Brewer, 408 U.S. 471, 480 (1972); Lewis, 71 F.3d at 361. The Supreme Court has held that the search of a parolee's home satisfies the Fourth Amendment so long as it is "carried out pursuant to state law which itself satisfies the Fourth Amendment requirements." Griffin v. Wisconsin, 483 U.S. 868, 873 (1987); see also Lewis, 71 F.3d at 362.
In Utah, a warrantless search of a parolee's house is valid when evidence establishes "(1) that the parole agent has a reasonable suspicion that the parolee has committed a parole violation or crime, and (2) that the search is reasonably related to the parole agent's duty." State v. Johnson, 748 P.2d 1069, 1072-73 (Utah 1987); see also Lewis, 71 F.3d at 362 (concluding that this standard satisfies the Fourth Amendment's reasonableness requirement).
1. Reasonable Suspicion
Reasonable suspicion does not mean that which would be necessary for probable cause. See Illinois v. Wardlow, ___ U.S. ___, 120 S.Ct. 673, 675-76, 145 L.Ed.2d 570 (2000); State v. Velasquez, 672 P.2d 1254, 1260 (Utah 1983). The Utah Supreme Court has held:
[Reasonable suspicion is] less stringent a standard than probable cause. . . . [It] requires no more than that the authority acting be able to point to specific and articulable facts that, taken together with rational inferences from those facts, reasonably warrant a belief in the conclusion mooted — in this instance, that a condition has been or is being violated.
Velasquez, 672 P.2d at 1260, n. 5. According to Velasquez, the "reasonable suspicion" standard justifying a warrantless parole search is tied to the reasonable suspicion standard in a Terry "stop and frisk" case. See id.
In Wardlow, the Supreme Court held that the reasonable suspicion standard requires only a "minimal level of objective justification. . . ." Id. at 676. Although the necessary degree of suspicion is lower than that necessary for probable cause to arrest, `the same totality of facts and circumstances approach is used to determine if there are `sufficient specific and articulable facts to support reasonable suspicion.'" Kaysville City v. Mulcahy, 943 P.2d 231, 234 (Utah Ct.App. 1997) (citations omitted). The State bears the burden of establishing those sufficient articulable facts. See id. at 234.
In order to satisfy the standard, the search "cannot be based upon a mere hunch without factual basis, nor upon `casual rumor, general reputation, or mere whim.'" Velasquez, 672 P.2d at 1262 (internal citations omitted). Utah courts, however, have upheld searches conducted pursuant to the reasonable suspicion standard when the parole officer's suspicion is based on a tip by an anonymous informer, the police, or other sources. See, e.g., State v. Martinez, 811 P.2d 205, 209-10 (Utah Ct.App. 1991) (tip relayed by police officer sufficient to support reasonable suspicion); but see State v. White, 856 P.2d 656 (Utah Ct. Ap. 1993) (frisk based on third-party allegations without substantiation of the facts by the police was invalid). The Supreme Court has held that "the determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior." Wardlow, 120 S.Ct. at 676; see also Ornelas v. United States, 517 U.S. 690, 695-96 (1996).
As discussed below, the recent Supreme Court decision in Florida v. J.L., ___ U.S. ___, 2000 WL 309131 (2000), calls into question those cases finding reasonable suspicion based solely on anonymous tips in the context of a Terry stop. As the reasonable suspicion standard in parole searches in Utah is tied to Terry stop caselaw, Florida is relevant precedence.
Before arguing that reasonable suspicion did not exist in this case, Tucker argues that Atack mislead England about the source of his information. Specifically, Tucker claims that Atack left out one or more of the links in the source of information by telling England that he had received the tip from an informant who had personally been shown the images by Tucker. See Transcript at 8 (England testified that "He [Atack] told me that he had received information from a female that Mr. Tucker worked with, and that according to this information Mr. Tucker had shown her some images on his computer."). In fact, as discussed above, Atack's source (Groneman) had been told the information from a friend who had been told the information from another friend. It appears that there may have been some confusion about how many times removed the tip was.
Tucker's stronger point is that the tip provided by Friend 2 (who claimed to have seen the images first-hand on Tucker's computer) to Bartlett (who ultimately decided to conduct the parole search) is too tenuous to satisfy reasonable suspicion. According to Bartlett, her decision to conduct a parole search was based on two intertwined factors. First,
this information [of possession of child pornography] came from an outside [source] — well, it was relayed to Detective Atack, but actually came from an outside party — as it was the relayed to me, a concerned citizen. That caused, you know — so I felt like there could be some real validity to that information.
Id. at 14. When pressed by the Court to be more precise about the source of the information, Bartlett recalled that it was her understanding England had received the information from Atack, who got it from an outside party. See id. at 14. Bartlett acknowledged that she knew nothing about the outside party. See id. at 14-15.
Since Bartlett knew nothing about the outside source, it matters little if there was two, three, or more unnamed sources. She simply had no idea where the information came from when it was related to Atack.
Bartlett's decision to conduct a parole search was based on more than the source of the information, however. Significantly, Tucker's alleged actions were related to the underlying crime for which Tucker was on parole: sexual abuse of a child. According to Bartlett, she and England checked Tucker's case file, noted the connection between the substance of the tip and his underlying crime, and concluded that "this would fit into this offender's pattern and would cause us some concern. . . ." Id. at 14.
The Utah Court of Appeals in Mulcahy discusses three factors that are relevant to a reasonable suspicion determination: (1) the type of tip or informant involved, (2) the level of detail supplied by the informant, and (3) the amount of official corroboration. Mulcahy, 943 P.2d at 235-36.
1. Type of Tip or Informant
Mulcahy, and other courts, acknowledge a difference between known "citizen-informants" and anonymous informants. See also Florida v. J.L., ___ U.S. ___, 2000 WL 309131, *3 (2000). Citizen informants are high on the reliability scale and their veracity is generally assumed since they volunteer information out of concern for the community and not for any personal benefit. See Mulcahy, 943 P.2d at 235. In addition, the reputation of known informants can be assessed and they can be held responsible if their allegations turn out to be fabricated. See Adams v. Williams, 407 U.S. 143, 146-47 (1972). Anonymous tips, however, are at "the low-end of the reliability scale" because the basis of the informants' knowledge and veracity is unknown. See Mulcahy, 943 P.2d at 235. In the instant case, Friend 1 and Friend 2 fall into the latter category of unknown informants.
In fact, Bartlett did not even know the identity of Groneman.
Tucker's argument stresses this factor, arguing that it is dispositive. This is not the case. Of particular relevance is the statement in Velasquez that a tip by an anonymous informer may be sufficient to satisfy the reasonable suspicion standard. See Velasquez, 672 P.2d at 1262. Unfortunately, Velasquez does not provide much guidance on this issue, citing only three cases dealing with anonymous tips. See Quigg v. France et al., 502 F. Supp. 516 (D. Mont. 1980), aff'd 673 F.2d 1339 (1982) (anonymous tip is sufficient); Seim v. State, 95 Nev. 89, 590 P.2d 1152 (1979) (anonymous tip is sufficient); State v. Simms, 10 Wn. App. 75, 516 P.2d 1088 (1973) (anonymous tip is not sufficient). Since Velasquez, Utah Courts have considered third-party tips in only a small number of cases. See, e.g., State v. White, 856 P.2d 656 (Utah Ct.App. 1993) (no reasonable suspicion when officers had no experience with the known informant and officers did no independent investigation); Kaysville City v. Mulcahy, 943 P.2d 231 (Utah Ct. App. 1997) (finding reasonable suspicion when informant was known, information contained sufficient detail, and officer's investigation sufficiently corroborated the information). While the sum conclusion of these cases does not establish a bright line test, they do provide a solid basis for rejecting Tucker's assertion that police can never reasonably rely on an anonymous source.
In support of his argument, Tucker points the Court to the Utah Court of Appeals decision in State v. White, arguing that that case stands for the proposition that when "a police agency has no experience with a source, [it] cannot rely on the source without making any efforts to assess its reliability." Defendant's Supplemental Memorandum at 14. Tucker's reading of State v. White is somewhat different than this Court's. State v. White involved a car stop and subsequent frisk of Defendant. The Utah Court of Appeals reversed the District Court, concluding that the frisk of Defendant was not supported by reasonable suspicion. See State v. White, 846 P.2d at 666. In that case, a woman identifying herself as defendant's former wife, telephoned the police and alleged that Defendant was in a particular parking lot in a certain model car using cocaine. An officer, acting on the tip, went to the parking lot and saw the car, as described. He told Defendant to get out of the car, which he did. Once Defendant was out of the car, the officer conceded that Defendant gave "no indication that [he] was armed." Id. at 658. Nevertheless, the officer preceded to frisk Defendant, eventually finding drug paraphernalia.
Tucker also cites State v. Davis, 965 P.2d 525, 530 (Utah App. 1998), for the similar proposition that "Multiple hearsay nor unverifiable sources [sic] are not adequate basis for a parole search." Defendant's Supplemental Memorandum at 16. The court is unable to find such a conclusion in Davis. In that case the Utah Court of Appeals concluded that officers had a reasonable suspicion that Defendant had violated his probation based on the officer's investigation and personal observations.
In concluding that the officer lacked reasonable suspicion to frisk Defendant, the Court of Appeals held:
although the third party informant was named, the officers had no experience with defendant's former spouse which would allow them to assume the accuracy of the information she gave them and they did no independent investigation which would assist them in assessing its accuracy.
Id. at 662. Tucker overstates the court's conclusion in State v. White due to his failure to recognize the distinction State v. White draws between the stop of Defendant and the actual frisk. Significantly, the court invalidated the frisk, assuming for the sake of argument that the "information might have reasonably prompted the investigatory stop of defendant." Id. at 662 (emphasis added). The court explicitly gave significance to the fact that "[t]he facts justifying the frisk are distinct from those justifying the stop." Id. Hence, the tip in State v. White may very well have provided reasonable suspicion to justify the stop of Defendant. In the same way, the tip in the instant case may be enough to justify the search of Tucker's home. To continue the comparison, if officers had observed nothing suspicious in Tucker's home or on his computer, a later search of Tucker's person or his car might have been invalid under State v. White. But the lack of suspicious activity would not invalidate the initial search itself.
Indeed, since the Court of Appeals discusses the frisk in such detail and not the stop, this seems to be the conclusion of that court.
2. Level of Detail
The second factor involves the level of detail in the tip. In the instant case, Bartlett was told someone had been to Tucker's home, seen images of child pornography, and that Tucker had targeted a neighbor child. See Transcript at 9. These are specific, detailed allegations.
3. Official corroboration
The final factor is the amount of official corroboration. In a car stop case, for example, an officer may corroborate an anonymous tip by either observing the illegal activity or by finding the person, vehicle, and the location substantially as described by the informant. See, e.g., State v. Roth, 827 P.2d 255 (Utah Ct.App. 1992); accord Lewis, 71 F.3d at 362 (giving weight to the fact that a license plate check revealed Defendant as the owner of the car described and a criminal history check indicated that Defendant was on parole). Here, the corroboration came from Bartlett's and England's examination of Tucker's case file, which revealed that the activities described in the tip related to the reason Tucker was on parole. As noted above, Tucker was on parole for a sexual abuse of a child, a second degree felony. See Tucker's Order of Parole. Tucker's parole contained special conditions that prohibited him from viewing or possessing any "material exploiting children" or contacting children without adult supervision. Based on the fact that the substance of the tip "matched" Tucker's prior crime, Bartlett ordered a parole search.
The type of corroboration at issue here is not altogether different from the corroboration involved in Lewis, where the Tenth Circuit determined reasonable suspicion existed. In that case, a confidential drug informant told a police officer that a man called "Gucci" was selling crack cocaine. The informant also gave the officer "Gucci's" license plate number. The officer checked the plate and found that Defendant, later determined to be a parolee, was the registered owner. The corroboration in Lewis involved only a quick check of car registration records and determination of Defendant's parole status. The officer did not see Defendant doing any suspicious activities or even driving the subject car. The corroboration, as here, involved only a matching of the substance of the tip and the substance of Defendant's file. See also State v. Humphrey, 937 P.2d 137, 143 (Utah Ct.App. 1997) ("information regarding an individual's past . . . criminal activity can be a factor in determining reasonable suspicion").
Lewis is, of course, distinguished by the fact that the informant, described as a "confidential drug informant" had been working with the police officer for some time, and the officer had reason to put confidence in his reliability. See Lewis, 71 F.3d at 360, 362.
In the final analysis, parsing out the three factors at issue in a reasonable suspicion determination and discussing them separately is of somewhat limited value. See Ornelas, 517 U.S. at 695-96 (concluding that the standards for reasonable suspicion analysis are "not readily, or even usefully, reduced to a neat set of legal rules"). In this case, as in most, all the relevant factors are inextricably intertwined. Further complicating the issue is recent jurisprudence surrounding the reasonable suspicion standard as it relates to a Terry stop.
It seems fairly clear that an anonymous tip standing alone would very rarely (if ever) be sufficient grounds for reasonable suspicion. See Florida, 2000 WL 309131, *3. However, according to the Supreme Court, "there are situations in which anonymous tips, suitably corroborated, exhibits `sufficient indicia of reliability to provide reasonable suspicion. . . .'" Id., quoting Alabama v. White, 496 U.S. 325, 327 (1990). One indicator of reliability is official corroboration of the tip's predictions about the respondent's future behavior. In Alabama, described as a "close case," the Supreme Court found that an anonymous tip with such official corroboration provided reasonable suspicion:
What was important was the caller's ability to predict respondent's future behavior, because it demonstrated inside information — a special familiarity with respondent's affairs. The general public would have had no way of knowing that respondent would [do the things as described in the tip]. Because only a small number of people are generally privy to an individual's itinerary, it is reasonable for police to believe that a person with access to such information is likely to also have access to reliable information about that individual's illegal activities. When significant aspects of the caller's predictions were verified, there was reason to believe not only that the caller was honest but also that he was well informed, at least well enough to justify the stop.
Id. at 332 (emphasis added). The Supreme Court's recent decision in Florida re-emphasizes this factor as a sufficient indicator of reliability, distinguishing it from corroboration of a tip's descriptive information. In Florida, the Supreme Court held that an anonymous tip containing specific descriptive information about a young black male lacked sufficient indicia of reliability to establish reasonable suspicion to justify a frisk for guns. See Florida, 2000 WL 309131, *3. According to the Court,
An accurate description of a subject's readily observable location and appearance is of course reliable in this limited sense: It will help the police correctly identify the person whom the tipster means to accuse. Such a tip, however, does not show that the tipster has knowledge of concealed criminal activity.
Id. at *4. Alabama and Florida, when read together, stand for the proposition that while corroboration of the tip's predictions about respondent's future behavior may be enough, corroboration of the tip's descriptive information is not enough.
Added to the mix is the fact that both cases refer to the existence of reasonable suspicion in Alabama as "borderline.". See Florida, 2000 W L 309131, *3; Alabama 496 U.S. at 332.
In the instant case, the official corroboration is more than descriptive, but different from predictive. Here, the substance of the tip "fits" Tucker's underlying crime. The Court holds that this is sufficient. In Alabama, the Supreme Court determined that corroboration of future behavior was sufficient since it "demonstrated inside information — a special familiarity with respondent's affairs." Id. at 332. In a concurrence in Florida, Justice Kennedy writes that an anonymous tip is sufficient when it "either support[s] reliability or narrow[s] the likely class of informants. . . ." Florida, 2000 WL 309131, *6 (concurring opinion) (acknowledging that corroboration of future predicted activity is not the only factor which would support reasonable suspicion). The information provided in the tip in the instant case satisfies these criteria: by so closely relating to Tucker's underlying crime of sexual abuse of a child, the tip that Tucker possessed child pornography and had targeted a neighbor child sufficiently demonstrates the tipster's knowledge of inside information about Tucker. It is far-fetched to imagine that the tip, when made, was a mere guess that just happened to so closely relate to the specific crime for which Tucker is on parole. This connection, while logically different from corroboration of predicted future events, reveals an indicia of reliability sufficient to establish reasonable suspicion.
In sum, the decision to conduct a parole search of Tucker's apartment was based on an anonymous tip, closely related to the type of crime for which Tucker was on parole. Although not firsthand, the tip contained specific allegations and detail. The basis for the decision to conduct a parole search was more than a whim, guess, casual rumor, or general reputation — it was a specific and articulable factual basis. The Court concludes that the parole officers had reasonable suspicion to search Tucker's home.
2. Related to the Parole Officer's Duty
The second ground for upholding a warrantless search of a parolee's house requires that the search be reasonably related to the parole officers' duties. A parole search is invalid if the parole officer is acting merely as an agent or tool of the police. See United States v. Cantley, 130 F.3d 1371, 1376 (10th Cir. 1997). This is sometimes referred to as a "stalking horse" argument. See, e.g., United States v. McCarty, 82 F.3d 943, 947 (10th Cir. 1996); United States v. Phillips, 977 F. Supp. 1418, 1421 (D. Colo. 1997).
A parole search is not invalid simply because the police (as here) accompanied parole officers during their search of Tucker's house. See Phillips, 977 F. Supp. at 1421. Furthermore, a parole officer's search is not unlawful just because it is also beneficial to the police, or because evidence incriminating the parolee is turned over to the police and used in a subsequent criminal prosecution. See Velasquez, 672 P.2d at 1262. So long as the parole officer "had independent, reasonable grounds to believe parole violations had occurred, the search [is] valid." Phillips, 977 F. Supp. at 1421; accord Cantley, 130 F.3d at 1376-77 (upholding parole search because there was a parole purpose for the search).
Tucker argues that "Officer England's sole purpose was to give the police a way into defendant's home." Defendant's Reply to Opposition to Motion to Suppress at 3. There is no evidence supporting this proposition. See Cantley, 130 F.3d at 1376 (rejecting Defendant's stalking horse claims because he failed to present any concrete evidence to support them and instead relied on innuendo and speculation). Bartlett had been given a tip that Tucker had violated the terms of his parole. As discussed above, the tip and official corroboration gave Bartlett adequate grounds to order a parole search of Tucker's home. Since she had independent, reasonable grounds for believing Tucker had violated his parole, the "stalking horse" argument fails and the search is valid.
B. Initial Search of Defendant's Computer
Tucker argues that even if the entry into his home can be justified on the basis of a parole search, the initial search of Tucker's computer, conducted at his house, exceeded the bounds of any acceptable search. In support of this argument, Tucker points to United States v. Carey, 172 F.3d 1268 (10th Cir. 1999), citing it for the proposition that permission to search under a parole agreement does not "extend to permission to search computer files." Defendant's Supplemental Memorandum at 16.
Carey is easily distinguished from the case at hand. In Carey, the Tenth Circuit concluded that an officer's search for child pornography on a non-parolee Defendant's computer exceeded the scope of Defendant's written consent. Carey, 172 F.3d at 1276. Since Carey was not a parolee, officers were required to obtain valid consent or a valid warrant to search his computer. Tucker, however, was a parolee when his computer was searched. The parole agreement allowed search of Tucker's person, his residence, and any property found within his residence. This necessarily includes Tucker's computer. Hence, the initial search of Tucker's computer at his house was valid.
C. Seizure and Subsequent Search of Defendant's Computer
1. Seizure of the computer
Tucker argues that the seizure of his computer was invalid since it was made without requisite probable cause and without an authorizing warrant. In support of this argument, Tucker says that the parole agreement did not authorize seizure of his property and he never consented to the seizure.
Tucker is correct that the parole agreement does not mention seizures. But seizure of contraband or evidence garnered from a valid parole search is clearly implicit in any parole agreement. If the parole officers had found drugs, for example, they surely would have been able to take those drugs as evidence of a parole violation or for use in a later prosecution.
In this case, Tucker's computer is correctly characterized as evidence. While it is true that the officers were unable to see any pornographic images during the initial search, there are a number of facts justifying their belief that such images would eventually be found on the computer. First, when the officers entered Tucker's house, his computer was logged onto the Internet. The officers looked at the monitor and saw a screen apparently dealing with pre-teen sexual topics. Second, Detective Gruber's initial search of the computer led him to believe Tucker had been visiting Internet sites that typically contained material regarding children and that was sexually explicit. Third, when asked by Bartlett what would be found on the computer, Tucker responded, "there's some stuff on there that's going to cause me problems." Transcript at 24.
Bartlett was unable to see any pornographic pictures on Tucker's computer. She did, however, have sufficient reason to believe that incriminating images would be found on the computer when a thorough search was eventually performed. Tucker's computer, therefore, was evidence and its seizure was valid.
2. Subsequent Search of Defendant's Computer
Bartell and England took Tucker into administrative custody based on their belief that he had violated the conditions of his parole. In July 1998, a second search of Tucker's computer was performed. That search revealed a number of images containing child pornography. Tucker makes two arguments that the subsequent search was invalid. First, Tucker argues that as soon as he was taken into custody, his parole agreement was revoked. According to Tucker, then, any subsequent search of the computer must be based on probable cause and a duly authorized warrant. The Court rejects this argument. Up until February 8, 2000, when Tucker's parole was formally revoked by the Board of Pardons, he was still on parole. See Utah Code § 77-27-11 ("The [parole] board . . . shall conduct a hearing on the alleged violation. . . ."). The computer was being held as evidence of a possible parole violation. See Transcript at 28. Therefore, no warrant was needed for the second search of his computer. The fact that he was in administrative custody does not change this fact.
Tucker's argument is somewhat illogical. According to Tucker, "Parolees stand in a middle ground. They have greater constitutional rights than prisoners, but lesser privacy rights than other citizens." Defendant's Supplemental Memorandum at 21. If the Court were to accept Tucker's argument, it would have to classify Tucker as a prisoner, a person with lower constitutional rights than parolees.
Tucker also raises a second "stalking horse" argument when he says that the parole officers had "no true interest . . . in what was found in the computer during the July 1998 search, as Tucker was already back in prison and going to stay there." Defendant's Supplemental Memorandum at 22. This is not true. Since Tucker's parole was not formally revoked until February 8, 2000, his parole officers had an incentive to compile evidence that he had violated his parole for use at the hearing. Tucker was still on parole and the continued search of Tucker's computer was not improper.
The conclusion that Tucker was still on parole, therefore, moots Tucker's arguments concerning the validity of the warrant.
Defendant's motion to suppress is DENIED.
SO ORDERED.