United States v. Huart, No. 13-2075 (7th Cir. 2013)

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In 2008 Huart pled guilty to possessing child pornography, and was sentenced to 65 months. In 2011, he was transferred to a private halfway house that contracts with the Bureau of Prisons. Rules provided to Huart included one that “[d]uring intake, all belongings will be searched and inventoried. Any new items brought into the facility or removed from the facility will be reported to staff so the inventory can be adjusted.” Huart was not permitted to possess a cell phone. Rules governing inmates who were allowed to have cell phones specified that “ANY STAFF may request at ANY TIME to view the contents of [an inmate’s] cell phone with or without reason.” Huart signed “Conditions of Residential Community Programs,” which stated that he was subject to frequent searches of his living area by staff. An employee conducting a random search of Huart’s room found a cell phone on his bed. A house director discovered 214 images, including child pornography. Huart admitted to possessing the phone and the images. The FBI obtained a search warrant, but thel phone was passcode protected and had to be sent to FBI Headquarters. Agents did not unlock the phone until February 14, 2012; the warrant specified that the search was to be conducted before December 15, 2011. The district court denied motions to suppress, finding that Huart did not have a reasonable expectation of privacy and that the search of his phone was conducted properly under the warrant. Huart pleaded guilty, but he reserved his right to appeal the denial of his suppression motions. The Seventh Circuit affirmed.

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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 13 2075 UNITED STATES OF AMERICA, Plaintiff Appellee, v. JEREMY J. HUART, Defendant Appellant. ____________________ Appeal from the United States District Court for the Western District of Wisconsin. No. 3:12 cr 00114 wmc 1 William M. Conley, Chief Judge. ____________________ ARGUED SEPTEMBER 23, 2013 DECIDED NOVEMBER 22, 2013 ____________________ Before EASTERBROOK, SYKES, and TINDER, Circuit Judges. TINDER, Circuit Judge. Jeremy J. Huart appeals the denial of his motions to suppress pictures found on a cell phone he possessed while serving part of his sentence in a halfway house. Because Huart had no reasonable expectation of pri vacy in the seized cell phone or its contents, we affirm the district court s decision. 2 No. 13 2075 I. Background In 2008 Huart pled guilty to one count of possessing child pornography, and was sentenced to 65 months im prisonment and three years of supervised release. On May 11, 2011, he was transferred to the Rock Valley Community Program, a privately operated halfway house in Janesville, Wisconsin, that contracts with the Bureau of Prisons ( BOP ) to house and supervise a number of federal prisoners who are near the end of their incarceration terms. A copy of the rules governing inmate behavior was provided to Huart up on his arrival. One of these rules stated that [d]uring intake, all belongings will be searched and inventoried. Any new items brought into the facility or removed from the facility will be reported to staff so the inventory can be adjusted. Huart was not permitted to possess a cell phone at Rock Val ley, and the rules governing inmates who were allowed to have cell phones further specified that ANY STAFF may request at ANY TIME to view the contents of [an inmate s] cell phone with or without reason. Before beginning his stay at Rock Valley, Huart also signed a form entitled Con ditions of Residential Community Programs, which ex plained that he was in the custody of the U.S. Attorney General serving [a] sentence. He was also subject to several other conditions, including frequent searches of his living area by Rock Valley staff. On the morning of August 19, 2011, a Rock Valley em ployee conducting a random search of Huart s room found an LG model 200 cell phone on his bed. The assistant direc tor of the halfway house searched the phone and discovered approximately 214 images, many of which were child por nography. Huart admitted to possessing the phone and the No. 13 2075 3 images. On October 13, FBI Special Agent Bryan Baker re ceived the cell phone from the halfway house staff, and ob tained a search warrant on December 8. Unfortunately, Huart s cell phone was passcode protected, and it eventually had to be sent to FBI Headquarters in Quantico, Virginia for analysis.1 Agents did not unlock the phone and locate the images until February 14, 2012, and Special Agent Baker re ceived the phone back on July 26, 2012. The warrant to search the cell phone specified that the search was to be con ducted before December 15, 2011. Prior to trial in the United States District Court for the Western District of Wisconsin, Huart filed two motions to suppress the contents of the cell phone, both of which were denied. The district court, adopting the findings of the mag istrate judge, held that Huart did not have a reasonable ex pectation of privacy against searches of his cell phone at the halfway house, and furthermore that the search of his phone was conducted properly under the warrant once Special Agent Baker turned on the phone and attempted to access the data. The court held that the government s later efforts to crack the phone s passcode protection were conducted promptly and in compliance with the terms of the warrant. On February 13, 2013, Huart pleaded guilty to one count of possession of child pornography, but he reserved his right to appeal the denial of his suppression motions. 1 The record does not disclose how the Rock Valley assistant director was able to search the phone from the outset, while Agent Baker could not. One likely explanation is that the passcode protection mechanism on the phone had not been triggered by the time the assistant director found the images. 4 No. 13 2075 II. Discussion When hearing an appeal of a district court s denial of a motion to suppress evidence, we review the court s legal conclusions de novo, and its factual findings for clear error. United States v. Jackson, 598 F.3d 340, 344 (7th Cir. 2010). Huart presents two arguments for suppressing the images found in his phone. First, he contends that he enjoyed a rea sonable expectation of privacy in the device, and that its con fiscation and the subsequent search of its contents unlawful ly violated that privacy. Second, he argues that, because the FBI failed to break his passcode and examine the contents of the phone before the warrant s expiration date, the search was essentially warrantless. Because we hold that Huart lacked a reasonable expectation of privacy in the halfway house, any search of a phone he brought onto the premises did not require a warrant. Therefore we need not reach Huart s second contention.2 Whether an expectation of privacy exists for Fourth Amendment purposes depends upon two questions: 1) whether the individual, by his conduct, has exhibited an ac tual expectation of privacy; and 2) whether the individualÊ¹s expectation of privacy is one that society is prepared to rec ognize as reasonable. United States v. Yang, 478 F.3d 832, 835 (7th Cir. 2007). The inquiry is therefore both subjective, in that it requires the individual to manifest his own belief that 2 We do note that, under Federal Rule of Criminal Procedure 41(e)(2)(B), a warrant for electronically stored information is executed when the in formation is seized or copied here, when the Rock Valley staff seized the phone. Law enforcement is permitted to decode or otherwise analyze data on a seized device at a later time. Huart provides no reason to doubt that Rule 41(e)(2)(B) would defeat his contention, if reached. No. 13 2075 5 he has privacy; and objective, in that this subjective expecta tion must conform to accepted societal expectations. It is well settled that prisoners have no reasonable expectation of privacy in the belongings they keep with them. Hudson v. Palmer, 468 U.S. 517, 526 (1984) ( Society is not prepared to recognize as legitimate any subjective expectation of privacy that a prisoner might have in his prison cell ); see also Peck ham v. Wis. DepÊ¹t of Corr., 141 F.3d 694, 696 (7th Cir. 1998) (noting HudsonÊ¹s abrogation of Fourth Amendment protec tions against unreasonable searches [of] prisonersÊ¹ cells. ) Huart argues that, because a halfway house is a more le nient and less structured environment than a prison, this court should recognize a limited expectation of privacy for individuals serving their sentence there. Inmates living in Rock Valley are permitted to wear their own clothes and bring personal items into the facility, as long as they are in spected and are not prohibited under the house s regula tions. Some inmates are able to obtain day passes and leave the facility unsupervised for certain approved purposes. Huart analogizes his stay at the halfway house to a term of probation. The Supreme Court has recognized that a search of a probationer s home, for example, is permissible when the search is designed to ensure compliance with the condi tions placed on his freedom, or else is supported by reasona ble suspicion of criminal activity; the Court has not endorsed general, suspicionless searches of probationers. See United States v. Knights, 534 U.S. 112, 121 (2001); Griffin v. Wisconsin, 483 U.S. 868, 874 76 (1987). Huart urges a similar approach to this case. He contends that we must balance society s di minished security interests in monitoring him against his partially restored liberty interests while he lives at the half way house. 6 No. 13 2075 Although this court has not considered the appropriate level of privacy to be recognized for inmates of a halfway house, we have little difficulty concluding that Huart lacked both an objective and subjective expectation of privacy ex tending to either his phone or its contents. Upon arriving at the halfway house, Huart signed the Conditions of Resi dential Community Programs form, which explained that Huart was in the custody of the U.S. Attorney General serv ing [a] sentence. By contract, Rock Valley was under the operational control of the BOP. His situation was therefore much more closely analogous to that of an inmate living in a prison, rather than a probationer. The Supreme Court has held that a suspicionless search of a parolee is reasonable under the Fourth Amendment because parole is an estab lished variation on imprisonment of convicted criminals. Samson v. California, 547 U.S. 843, 850 (2006) (quoting Morris sey v. Brewer, 408 U.S. 471, 477 (1972)). Likewise, Huart s stay at the halfway house was simply one particular way an in mate may serve a custodial sentence. More specific to this case, Rock Valley s rules provided that, [d]uring intake, all belongings will be searched and inventoried. Any new items brought into the facility or re moved from the facility will be reported to staff so the inven tory can be adjusted. Huart was not permitted to possess a cell phone at Rock Valley, and therefore any phone he brought into the facility was contraband subject to search and confiscation. In addition, the rules governing inmates who were allowed to have cell phones specified that ANY STAFF may request at ANY TIME to view the contents of [an inmate s] cell phone with or without reason. These rules, which Huart implicitly agreed to obey, demonstrate both that he had surrendered any expectation of privacy in No. 13 2075 7 the contents of his cell phone, and that society was not pre pared to recognize any such expectation. Huart s attempts to avoid this conclusion are unpersua sive. He notes the Rock Valley rules permit the staff only to request to view the contents of a cell phone, and suggests that inmates are free to decline. This argument has two criti cal flaws. First, Huart was never granted cell phone privileg es, and therefore the staff was not constrained by this provi sion. He was on notice that the phone was subject to search and confiscation once he brought it into the halfway house. But more importantly, the rule in question provides that [r]efusal to ANY STAFF to surrender mobile device for random or suspect viewing upon request will result in deni al of cell phone privileges. An inmate at Rock Valley is therefore not free to reject a search of his cell phone. The negative consequences of a refusal may be less severe than they would be in a prison, but they are nevertheless de signed to compel compliance. Inmates with phone privileges are essentially faced with the choice to permit suspicionless searches of their phone, or else not have a phone at all. In no instance, therefore, do they enjoy the private use of a cell phone. Finally, Huart argues that the government s seizure of his cell phone violated his privacy because it was a trespass. See United States v. Jones, 132 S. Ct. 945 (2012). But the phone was contraband brought into a BOP contracted facility. It was not a trespass for the Rock Valley Staff to seize contraband on the halfway house s grounds. Moreover, even if Jones ap plied to this case, it would establish only that a search within the meaning of the Fourth Amendment occurred, not that it was unreasonable. 8 No. 13 2075 Because Huart lacked a reasonable expectation of privacy in his cell phone or its contents while living at the Rock Val ley halfway house, the search that uncovered the phone and the images stored on it does not implicate the Fourth Amendment. See United States v. Jacobsen, 466 U.S. 109, 113 (1984). We therefore do not reach the questions of whether he consented to a search, or whether it was adequately sup ported by reasonable suspicion. III. Conclusion For the foregoing reasons, we AFFIRM the district court s denial of Huart s motions to suppress.

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