Opinion
NO. 5:16-CR-187-FL-1
2021-08-26
UNITED STATES of America, v. John Ervin LINGLE, Defendant.
Ethan A. Ontjes, Tobin W. Lathan, United States Attorney's Office, Raleigh, NC, for United States of America.
Ethan A. Ontjes, Tobin W. Lathan, United States Attorney's Office, Raleigh, NC, for United States of America.
ORDER
The court's analysis relies, in part, on documents filed under seal. Within 14 days, the parties jointly shall return to the court by U.S. Mail, addressed to the case manager, a copy of this order marked to reflect any perceived necessary redactions. Upon the court's inspection and approval, a redacted copy of this sealed order will be made a part of the public record. If the court determines proposed redactions of any portion of this order not subject to sealing, further notice will follow.
LOUISE W. FLANAGAN, United States District Judge
Issues bearing on terms and conditions of defendant's supervised release now before this court have been briefed extensively, and additionally were the subject of hearing July 9, 2021. Defendant's motion for injunctive relief and request for clarification of certain conditions of supervision (DE 104), renewed and supplemented by a request for supervised release status conference (DE 109) which followed the motion's May 4, 2021, denial by text order, forms the basis of the written motion. Defendant's oral motion for clarification of urinalysis testing condition also is before this court.
BACKGROUND
By way of indictment filed August 2, 2016, defendant was charged with 10 counts of receipt of child pornography, in violation of 18 U.S.C. § 2252(a)(2), and one count of possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B). On November 16, 2016, defendant pleaded guilty, pursuant to a written plea agreement, to one count of receipt of child [Redacted]
Sentencing commenced February 22, 2018, where defendant faced an advisory Guidelines range of 97 to 121 months’ imprisonment. The court, however, sentenced defendant to the statutory minimum of 60 months’ imprisonment, to be followed by 10 years’ supervised release. As relevant here, the court ordered defendant to comply with the following conditions of supervised release:
• You must refrain from any unlawful use of a controlled substance. You must submit to one drug test within 15 days of release from imprisonment and at least two periodic drug tests thereafter, as determined by the court.
• You must follow the instructions of the probation officer related to the conditions of supervision.
• 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.
• The defendant shall submit to a search of person, house, residence, vehicle, papers, computer, other electronic communication or data storage devices or media, and effects at any time, with or without a warrant. The search may be conducted by any law enforcement officer or probation officer with reasonable suspicion concerning a violation of a condition of supervision or unlawful conduct by the person, and by any probation officer in the lawful discharge of the officer's supervision functions.
• The defendant shall submit to a psycho-sexual evaluation by a qualified mental health professional who is experienced in evaluating sexual offenders and who is approved by the U.S. Probation Officer.
• The defendant shall participate in a sex offender treatment program as directed by the U.S. Probation Officer, and the defendant shall comply with and abide by all the rules, requirements, and conditions of the treatment program until discharged. The defendant shall take medication as prescribed by the treatment provider.
• The defendant shall participate as directed in a program approved by the probation office for the treatment of narcotic addiction, drug dependency, or alcohol dependency which will include urinalysis testing or other drug detection measures and may require residence or participation in a residential treatment facility.
• The defendant shall participate in a program of mental health treatment, as directed by the probation office.
• At the direction of the U.S. Probation Officer, the defendant shall submit to physiological testing, which may include, but is not limited to, polygraph examinations or other tests to monitor the defendant's compliance with probation or supervised release and treatment conditions.
(Judgment (DE 73) at 3–7). Defendant did not appeal or file motion to vacate his conviction or sentence.
On December 18, 2019, defendant was released from imprisonment and his supervisory term commenced. On March 4, 2021, probation moved for revocation of supervised release based on his recent arrest for felony failure to verify sex offender registration information. On June 9, 2021, probation withdrew the motion for revocation because the state charge had been dismissed. Probation, however, advised that the state prosecutor may seek a grand jury indictment, and that the court will be notified if any charges are reinstated.
On August 5, 2021, probation filed its second motion for revocation of supervised release based on defendant's June 21, 2021, state indictment for failure to verify his sex offender registration information by refusing to acknowledge whether he still uses or intends to use any online identifiers previously reported to the sheriff. (DE 127). This indictment is based on the same conduct underlying the March 4, 2021, motion for revocation described above. (See DE 87, 127). The August 5 motion for revocation remains pending.
In the interim, on May 3, 2021, defendant filed motion for injunctive relief and request for clarification of certain conditions of supervision, summarily denied the next day, wherein he sought ruling on the propriety of probation's requests to conduct walk-throughs of his residence without reasonable suspicion of a violation of the conditions of supervision, to sign waiver of confidentiality permitting full disclosure of mental health and sex offender treatment records to probation, and to administer certain pre-test questionnaires prior to polygraph examinations. Defendant sought injunctive relief prohibiting probation from mandating walk-throughs of his residence without reasonable suspicion of a violation, requiring full waiver of confidentiality and disclosure of all treatment records, and conducting further polygraphs pending the court's ruling on the motion. In support, defendant relied upon his judgment of conviction, release of information form, email transmittals between defendant and probation, and extracts of the Administrative Office of the United States Courts ("AOC") policies regarding probation and supervised release.
On June 22, 2021, defendant renewed his motion for supervised release status conference, challenging also probation's authority to direct defendant to attend sex offender and mental health treatment with new providers selected by probation. In support, defendant relies on additional emails and release of information forms. On June 23, 2021, the court construed the June 22 filing as a second and supplemental motion seeking to clarify the terms of supervision, directed the government to respond to both the May 3 and June 22 motions, and set the matter for hearing July 9, 2021. The government filed its response July 2, 2021, supported by declaration of Senior United States Probation Officer Mindy Threlkeld ("Threlkeld").
By the June 23, 2021, text order, the court effectively reopened for decision the instant May 3 motion for injunctive relief and request for clarification of certain conditions of supervision, and granted defendant's requests for status conference.
At hearing July 9, 2021, the court permitted proffers by United States Probation Officers Eddie Smith ("Smith"), Van Freeman ("Freeman"), and Henry Ponton ("Ponton") regarding probation's requirements for supervision of sex offenders. The court heard testimony by Donald Wolfe ("Wolfe"), defendant's current sex offender treatment provider, as well as officer Ponton, defendant's current probation officer. By oral motion at the hearing, defendant raised a new challenge to probation's enforcement of his conditions of release, arguing that probation lacks authority to require urinalysis testing where he is not currently enrolled in substance abuse treatment.
At conclusion of hearing, the court ordered the parties to file supplemental briefing addressing the instant oral motion for clarification of probation's authority to order urinalysis testing and granted defendant's request to incorporate reply to the government's response within his supplemental brief. Defendant filed his supplemental brief on July 16, 2021, supported by emails between defendant and probation, transcript of defendant's recent detention hearing (related to the now withdrawn motion for revocation), and release of information forms. The government filed its supplemental brief on July 26, 2021, supported by new declaration of officer Threlkeld, and extracts of the AOC's policy regarding probation and supervised release. On August 4, 2021, defendant filed statement from Wolfe addressing officer Threlkeld's new declaration.
The court now turns to the background pertinent to defendant's challenges to his supervised release conditions and probation's enforcement or interpretation thereof. A. Urinalysis Testing
In accordance with the condition of supervision requiring participation in drug treatment, probation referred defendant for a substance abuse assessment at Integrated Behavioral Health Services, Inc. ("IBHS"). (Threlkeld Decl. (DE 119-1) at 1). IBHS completed the assessment on January 8, 2020, and determined that substance abuse treatment was not necessary at that time. (Id. ). IBHS noted, however, that defendant should be referred for treatment in the event of a future positive urinalysis screen. (Id. ). Pursuant to IBHS's recommendation for further urinalysis testing, probation requires that defendant submit to periodic urinalysis testing (approximately once every two months), notwithstanding the fact that he is not currently enrolled in drug treatment and the court has not ordered additional testing. (See id. ).
Unless otherwise specified, page numbers specified in citations to the record in this order refer to the page number of the document designated in the court's electronic case filing (ECF) system, and not to page numbering, if any, specified on the face of the underlying document.
B. Home Visits
Probation conducts periodic home visits at defendant's residence pursuant to the condition requiring defendant to "allow the probation officer to visit you at any time at your home or elsewhere, and [to] permit the probation officer to take any items prohibited by the conditions of your supervision that he or she observes in plain view." (Judgment (DE 73) at 4; Threlkeld Decl. (DE 113-1) at 1–2). During some of these home visits, probation requests (or, according to defendant, demands) that defendant permit the officer to inspect his residence by conducting a "walk-through" of all the rooms and outbuildings at the residence. (Threlkeld Decl. (DE 113-1) at 1-2). For example, on May 25, 2021, officer Smith traveled to defendant's residence for a home visit, and "requested" permission to conduct a walk-through of the residence. (Id. at 1). Defendant claimed that the walk-through constituted a search and stated that he did not "want" to allow the walk-through. (Id. ). Officer Smith disagreed that the walk-through was a search, explained that a walk-through or home inspection is required for all sex offenders, and advised defendant that if he refused the walk-through, it could be reported to the court as a violation. (Id. ). After further discussions, defendant's mother provided consent for the walk-through, which she recorded. (Id. at 1-2).
During another home visit on June 22, 2021, officer Ponton stated that he planned to conduct a walk-through and home inspection of defendant's new residence. (Id. at 2). Defendant reiterated his position that probation was attempting to conduct an illegal search. (Id. ). Officer Ponton interpreted defendant's statements as revocation of consent and terminated the visit without conducting a walk-through. (Id. ).
Notably, defendant did not resist walk-throughs of his residence during the first months of his supervised release. (Threlkeld Decl. (DE 119-1) at 1).
At the July 9 hearing on the instant motions, officer Ponton testified that he interpreted the home visit condition as permitting walk-throughs of all primary rooms and outbuildings associated with defendant's residence, regardless of whether such rooms are closed to public view. His understanding is that probation policy requires regular walk-throughs and inspections of these portions of the residence for sex offenders.
Officer Ponton testified that primary rooms include bedrooms, living rooms, and kitchens, but would not include a closed closet or bathroom.
C. Sex Offender and Mental Health Treatment and Release of Information
Defendant also contests probation's requirements that he change treatment providers for his sex offender and mental health treatment, and that he sign general releases of information that permit probation unfettered access to his sex offender treatment records. Probation initially assigned defendant to their contract sex offender treatment provider, but after various conflicts with that provider and a lack of progress in treatment, probation agreed to allow defendant to choose and pay for his own private provider. (Threlkeld Decl. (DE 113-1) at 3–4). Defendant selected Wolfe as his new provider and began treatment in January 2021. (Threlkeld Decl. (DE 119-1) at 2; Threlkeld Decl. (DE 113) at 4). At that time, defendant signed a release of information permitting Wolfe to disclose certain treatment records to probation. (Release of Information (DE 116-4).
According to probation, Wolfe has not provided the treatment records probation needs to monitor defendant's progress in treatment and danger to the community, including a sex offender specific evaluation ("SOSE") and treatment plan. (Threlkeld Decl. (DE 113) at 4). For example, probation alleges that Wolfe promised to transmit the SOSE to probation on three separate occasions in May 2021 but failed to do so. (Id. ). Probation also requires a treatment plan, but Wolfe has declined to complete an individual plan for defendant, instead offering only a generic form applicable to all patients. (Id. ).
In light of the difficulties obtaining information from Wolfe, probation determined that defendant should return to one of its approved contract providers. (Threlkeld Decl. (DE 119-1) at 3; June 18, 2021, email (DE 109-3)). In June 2021, in connection with the transition to the new provider, probation instructed defendant to sign a new release of information that covers all treatment records and communications with the new provider. (Release of Information (DE 109-1); June 21, 2021, email (DE 109-2)). As noted, defendant believes this new release of information form falls outside the scope of his conditions of release and violates his privacy rights.
Wolfe testified at the July 9 hearing that he has provided all records requested by probation within the scope of the current release and will continue to do so, with the exception of the SOSE, and that he has participated in monthly calls with probation addressing defendant's progress in treatment. With respect to the SOSE, Wolfe testified that he did not believe an SOSE was covered by the release of information defendant provided him, but generally confirmed that probation had been asking for it since at least early May 2021. He further testified that he offered to provide monthly progress reports but probation refused those documents. Wolfe confirmed that going forward he would provide any records ordered by the court, including the SOSE, which he agreed to provide on or before July 16, 2021. Wolfe also believes that requiring defendant to change treatment providers at this time will "trigger" his mental health symptoms and otherwise disrupt his treatment. According to Wolfe, defendant has made progress in treatment and they have developed a productive therapeutic relationship.
The parties did not address the individualized treatment plan at the hearing.
According to Wolfe, ethics rules prohibit him from providing sex offender treatment to defendant when he is enrolled in such treatment with another provider. Defendant therefore cannot continue his treatment with Wolfe if probation requires a new provider.
Finally, probation reports that it received the SOSE on July 16, 2021, but that it is "very vague" and insufficient to allow probation to monitor defendant's compliance with his conditions of supervision. (See Threlkeld Decl. (DE 119-1) at 3). Probation has requested that Wolfe provide further information regarding the findings in the evaluation. (Id. ). In response, Wolfe notes that he participated in a telephonic conference with officer Threlkeld following submission of the SOSE and answered all the questions raised in her declaration. (DE 123).
D. Polygraphs
Defendant also seeks clarification regarding the precise scope of his required polygraphs. As set forth above, probation has authority to administer periodic polygraphs "to monitor the defendant's compliance with probation or supervised release and treatment conditions." (Judgment (DE 73) at 7). Prior to administration of these polygraphs, the polygrapher requires that all defendants complete a one-page medical history form for liability reasons and to ensure the defendant is not taking medications and does not have a medical condition that could affect the results of the polygraph. (Threlkeld Decl. (DE 113-1) at 7; Threlkeld Decl. (DE 119-1) at 3). In addition, for "maintenance polygraphs" that cover only periods since the last polygraph, the polygrapher administers a pre-test questionnaire covering criminal activity, substance use, electronic devices, social media use, registration requirements, pornography, sex-offender treatment issues, and sexual interests since the last polygraph. (Threlkeld Decl. (DE 113-1) at 5–6).
During a prescheduled, attempted polygraph on December 7, 2020, defendant questioned probation and the polygrapher's authority to administer both the medical history form and pre-test maintenance questionnaire. (Id. at 7). Defendant argued that the questions on both forms are beyond the scope of the supervised release condition permitting polygraphs. (See id. ). He ultimately refused to complete the medical history form or answer the pre-test questions unless probation first permitted him to speak with his attorney. (Id. ). Probation declined to delay the polygraph while defendant attempted to contact his attorney, and instead cancelled the examination for that day. (Id. ). Defendant was scheduled to take another polygraph on June 24, 2021, but the probation officer and the polygrapher ultimately did not administer it based on defendant's reported medical issues. (Threlkeld Decl. (DE 119-1) at 3-4). Since his release to supervision in December 2019, defendant has taken only one polygraph exam–the initial comprehensive exam, which was not indicative of deception. (See Threlkeld Decl. (DE 113-1) at 5–7; Threlkeld Decl. (DE 119-1) at 3–4).
COURT'S DISCUSSION
A. Standard of Review
The court's authority to impose discretionary conditions of supervised release derives from 18 U.S.C. § 3583(d). The statute
requires that [discretionary] conditions of supervised release be: (1) "reasonably related" to the nature and circumstances of the offense, the history and characteristics of the defendant, and the statutory goals of deterrence, protection of the public, and rehabilitation; (2) "no greater [a] deprivation of liberty than is reasonably necessary" to achieve those statutory goals; and (3) consistent with any relevant policy statements issued by the Sentencing Commission.
United States v. Ellis, 984 F.3d 1092, 1098 (4th Cir. 2021) (quoting 18 U.S.C. § 3583(d) ). Relatedly, the government lawfully may restrict a defendant's constitutional rights while on supervision and a condition is not "constitutionally infirm" if it comports with § 3583(d). See United States v. Comer, 5 F.4th 535, 545–46 (4th Cir. 2021) (citing United States v. Van Donk, 961 F.3d 314, 326 (4th Cir. 2020) ).
Furthermore, where a defendant's conviction and sentence are final, facial challenges to the validity of conditions of supervision are not cognizable in a revocation or other post-judgment proceeding. United States v. Sanchez, 891 F.3d 535, 539 (4th Cir. 2018) (noting a defendant "may not challenge the special conditions of his original term of supervised release during later revocation proceedings"); United States v. Johnson, 138 F.3d 115, 117–18 (4th Cir. 1998). By contrast, defendants may assert "as applied" challenges that contest "application" of conditions of supervised release to a particular act of the defendant even where the judgment of conviction is final. Van Donk, 961 F.3d at 325–26.
As noted above, defendant did not appeal his conviction or sentence, and has not filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255. His sentence, therefore, is not generally subject to further collateral challenges. See United States v. Sanchez, 891 F.3d 535, 538 (4th Cir. 2018) (explaining that unless a defendant successfully challenges his sentence through direct appeal or motion to vacate, the sentence "is valid, and it stands.").
As the facts of this case and the court's analysis herein demonstrate, distinguishing between "as applied" and facial challenges to supervised release conditions can be a challenging endeavor.
B. Analysis
1. Urinalysis Testing
Defendant challenges probation's authority to require periodic urinalysis testing for controlled substances. Two conditions are relevant to this challenge:
• You must refrain from any unlawful use of a controlled substance. You must submit to one drug test within 15 days of release from imprisonment and at least two periodic drug tests thereafter, as determined by the court.
• The defendant shall participate as directed in a program approved by the probation office for the treatment of narcotic addiction, drug dependency, or alcohol dependency which will include urinalysis testing or other drug detection measures and may require residence or participation in a residential treatment facility.
(Judgment (DE 73) at 3, 7).
As noted above, at the outset of supervision, a substance abuse professional evaluated defendant and determined that substance abuse treatment was not necessary at the time, but recommended referral for additional evaluation in the event defendant tested positive for controlled substances while on supervision. (Threlkeld Decl. (DE 119-1) at 1). Defendant argues that the drug treatment condition set forth above does not authorize further urinalysis testing where he is not currently enrolled in "a program approved [by probation] for the treatment of narcotic addiction ...." (Judgment (DE 73) at 7). And he further argues that probation lacks authority to set the frequency or timing of drug testing under the condition requiring that he refrain from using controlled substances where the court has not "determined" that he should be subject to further testing. The court finds it unnecessary to comment on probation's authority to order periodic drug testing under the foregoing conditions where the court can simply modify the conditions of release pursuant to 18 U.S.C. § 3583(e)(2) and thereby set the maximum number of tests going forward. Section 3583(e)(2) provides that the court "may, after considering [certain factors under 18 U.S.C. § 3553(a) ] modify, reduce, or enlarge the conditions of supervised release, at any time prior to the expiration or termination of the term of supervised release." 18 U.S.C. § 3583(e)(2) ; United States v. McLeod, 972 F.3d 637, 641 (4th Cir. 2020). The statute "provides an avenue for district courts to consider new, unforeseen, or changed legal or factual circumstances" when considering a modification to the terms of supervision. McLeod, 972 F.3d at 644. Before modifying the conditions of supervised release, the court "must hold a hearing, at which the person has the right to counsel and an opportunity to make a statement and present any information in mitigation." Fed. R. Crim. P. 32.1(c)(1). Defendant, however, may waive the hearing. Fed. R. Crim. P. 32.1(c)(2)(A).
While the Fourth Circuit has not addressed this issue in a published opinion, several courts of appeals have held that the language "as determined by the court" requires the court, not probation, to set the maximum number of required drug tests. See United States v. Miller, 978 F.3d 746, 758 (10th Cir. 2020) ; United States v. Melendez-Santana, 353 F.3d 93, 103 (1st Cir. 2003), overruled on other grounds by United States v. Padilla, 415 F.3d 211 (1st Cir. 2005) ; United States v. Bonanno, 146 F.3d 502, 511 (7th Cir. 1998).
The government suggests this approach in its supplemental brief, stating the "court could ... provide [defendant] the clarity he seeks by simply authorizing [probation] to give [defendant] a maximum of two drug tests per week." (Resp. (DE 119) at 5).
Here, periodic drug testing is supported by the record and by the court's preliminary analysis of the relevant § 3553(a) factors. Defendant has a history of abusing substances. (See PSR (DE 56) ¶ 28). The nature and circumstances of the offense–which involved distributing alcohol and prescription pain medications to a juvenile (PSR (DE 56) ¶ 10) – also support regular testing for controlled substances. Drug testing further the goals of deterrence, protecting the public, and providing defendant with needed rehabilitation services in light of defendant's history of abusing substances, his distribution of alcohol and drugs to a juvenile, and his admission at the sentencing hearing that he used alcohol and drugs as an improper coping mechanism to address past traumas. (PSR (DE 56) ¶¶ 10, 28; Sent'g Tr. (DE 76) at 13:12-21); 18 U.S.C. § 3553(a)(2)(B)–(D). Finally, to the extent a finding of changed circumstances is required, see McLeod, 972 F.3d at 644, the substance abuse provider's recommendation for additional testing, and probation's reliance thereon for additional testing, is a new factual circumstance. Notably, defendant recognizes that his current challenge is to probation's "interpretation" of the drug testing conditions and could not have been asserted at the time of his original sentencing. (Suppl. Br. (DE 116) at 4).
The court therefore is inclined to modify defendant's conditions of supervised release to require at most 48 drug tests per year for the remaining term of supervision, on a schedule determined by probation. See Melendez-Santana, 353 F.3d at 103 (explaining the mandatory drug testing condition "does not mean the court has to specify the exact number of tests to be performed[,] [instead,] it may specify a range, allowing probation officers to exercise discretion on the number of drug tests to be performed within that range"); see also Miller, 978 F.3d at 759 ("Having determined [the maximum number of drug tests], the court could have left it to the probation officer to direct the scheduling and other details of the test[s]" (quoting United States v. Stephens, 424 F.3d 876, 883 (9th Cir. 2005) )). As set forth below, the court will give defendant an opportunity to respond to this order and the court's proposed drug testing condition. And the court recognizes defendant is entitled to a hearing in the event he wishes to present additional evidence or argument regarding the court's proposed modification. See Fed. R. Crim. P. 32.1(c)(1).
C. Home Visits
Defendant challenges probation's "home visits" in which the officers have requested (and in defendant's view demanded) that he consent to walk-throughs of all areas of his home including rooms or other areas that are closed to public view. The following two conditions are relevant to this challenge:
• 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.
• The defendant shall submit to a search of person, house, residence, vehicle, papers, computer, other electronic communication or data storage devices or media, and effects at any time, with or without a warrant. The search may be conducted by any law enforcement officer or probation officer with reasonable suspicion concerning a violation of a condition of supervision or unlawful conduct by the person, and by any probation officer in the lawful discharge of the officer's supervision functions.
(Judgment (DE 73) at 4-5).
Where defendant contests probation's application of the foregoing provisions to the conduct of home inspections of closed areas in defendant's home, as opposed to their facial validity, the court finds defendant's challenge is cognizable on a post-judgment motion for clarification, notwithstanding the fact that his sentence is final. See Van Donk, 961 F.3d at 325–326. In the court's view, the second condition quoted above permitting warrantless searches "by any probation officer in the lawful discharge of the officer's supervision functions" permits walk-throughs of the kind probation has requested in this case, including requiring defendant to allow entrance to closed areas.
In light of this finding, the court does not address whether the home visit condition permits nonconsensual walk-throughs of closed areas in the home.
The court begins by analyzing the plain language of the condition. See Comer, 5 F.4th at 542 (noting "the text of a special condition of supervised release remains the most important source of information" when analyzing challenges to probation's enforcement of the condition); Moore v. Frazier, 941 F.3d 717, 726–27 (4th Cir. 2019) (discussing the importance of looking to the plain text of a statute when interpreting its terms). The condition requires defendant to submit to warrantless searches "at any time" and "by any probation officer" engaged in the lawful discharge of supervision functions, which would include the home inspections probation is attempting in this case. Defendant contests this interpretation of the condition, arguing that reading this phrase to authorize searches without reasonable suspicion (but when the officer is engaged in the lawful discharge of his supervision functions) would render "superfluous" the first clause permitting searches only when the probation officer has reasonable suspicion. Defendant further argues that use of the word "and" before "by any probation officer" means that reasonable suspicion is required for searches based on both violations of the conditions of release and when the officer is engaged in the lawful discharge of his or her supervision functions. The text of the condition does not support defendant's interpretation. The condition provides for two distinct circumstances that both independently justify warrantless searches: 1) "by any law enforcement officer or probation officer with reasonable suspicion concerning a violation of a condition of supervision or unlawful conduct by the person,"; and 2) "by any probation officer in the lawful discharge of the officer's supervision functions." The use of "and" in this context means that either ground justifies a warrantless search where "and" connects the independent and grammatically distinct "by" phrases. See United States v. Ron Pair Enters., 489 U.S. 235, 241, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989) ("The phrase ‘interest on such a claim’ is set aside by commas, and separated from the [phrase] [‘]fees, costs, and charges[’] by the conjunctive words ‘and any.’ As a result, the phrase ‘interest on such a claim’ stands independent of the language that follows."); Best Repair Co., Inc. v. United States, 789 F.2d 1080, 1082 (4th Cir. 1986) (providing similar analysis of the same statutory language). Furthermore, requiring reasonable suspicion of a violation of release conditions or criminal conduct for searches conducted pursuant to the second phrase would render that portion of the text superfluous, not the other way around. The phrase "by any probation officer in the lawful discharge of the officer's supervision functions" is wholly unnecessary if reasonable suspicion is required for all searches conducted pursuant to the condition. See Sierra Club v. United States Dep't of the Interior, 899 F.3d 260, 291 (4th Cir. 2018) (explaining courts "have an obligation to read statutory provisions in context and to avoid rendering superfluous any parts thereof" (citing United States v. Jicarilla Apache Nation, 564 U.S. 162, 185, 131 S.Ct. 2313, 180 L.Ed.2d 187 (2011) ; TRW Inc. v. Andrews, 534 U.S. 19, 31, 122 S.Ct. 441, 151 L.Ed.2d 339 (2001) )).
Notably, the United States Court of Appeals for the Second Circuit has read this provision as permitting warrantless searches "even without reasonable suspicion" provided the officer conducts the search in the lawful discharge of the officer's supervision functions. United States v. Parisi, 821 F.3d 343, 348 (2d Cir. 2016).
To the extent defendant argues that these searches were not conducted within the lawful discharge of the officer's supervision functions, the court observes that probation is required to approve defendant's residence, and monitor his compliance with conditions prohibiting drug use, committing further criminal conduct, and possessing firearms. (Judgment (DE 73) at 3–4). Accordingly, the court finds these monthly home inspections were completed pursuant to the "lawful" discharge of the foregoing supervision functions. (See United States Courts, Overview of Probation and Supervised Release Conditions (DE 119-2) ch. 2 ¶ VI.D.3 (discussing purposes of home inspections including gathering information about the home and its occupants, and "to observe for weapons and other safety hazards"); Def.’s Suppl. Br. (DE 116) at 5 n.3 (indicating officer Smith informed defendant the walk-through is required to search for contraband)).
Defendant argues that the AOC policy referenced above requires consent of defendant to conduct a home inspection or walk-through of closed areas. (See DE 119-2 ch. 2 ¶ VI.D.3). This portion of the policy, however, interprets the condition of supervision regarding home visits, not the provision discussed above. (See id.). As previously noted, the court does not reach whether the home visits condition permits non-consensual walk-throughs of closed areas.
Finally, defendant suggests in passing that the condition raises "significant constitutional concerns." (Suppl. Br. (DE 116) at 10). The Supreme Court, however, has held that a release condition permitting warrantless searches of parolees does not contravene the Fourth Amendment even where reasonable suspicion is not required for the search. See Samson v. California, 547 U.S. 843, 852–55, 857, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006). Furthermore, as noted above, the condition is not "constitutionally infirm" so long as it comports with 18 U.S.C. § 3583(d). Comer, 5 F.4th at 545–46. Here, these home inspections are reasonably related to defendant's history and characteristics, as well as the nature and circumstances of the offense, where defendant was involved in an inappropriate relationship with a juvenile, was abusing substances, and possessed child pornography. See 18 U.S.C. §§ 3583(d), 3553(a)(1). Periodic home inspections ensure that defendant is not engaged in further inappropriate contact with juveniles, is not concealing use of electronic devices to access child pornography, and is not actively abusing substances. The inspections also serve the goals of protecting the public, deterring defendant from further criminal conduct, and promoting defendant's rehabilitation for these same reasons, and where defendant's knowledge that he is subject to such inspections may deter him from violating his conditions. See 18 U.S.C. §§ 3583(d), 3553(a)(2)(B)–(D). The court recognizes that defendant strongly objects to the home inspections and that they appear to generate significant anxiety and post-traumatic stress issues. But in light of the factors discussed above, the court finds they involve "no greater a deprivation of liberty than is reasonably necessary" to achieve the foregoing goals under § 3583(d). See Ellis, 984 F.3d at 1098.
In sum, the court finds probation has authority to conduct monthly home inspections, including walk-throughs of any closed areas or outbuildings, pursuant to the condition of supervision permitting warrantless searches in the lawful discharge of the officer's supervision functions.
D. Sex Offender and Mental Health Treatment and Release of Information
Defendant challenges probation's authority to select his sex offender or mental health treatment provider and the requirement that the provider disclose his complete treatment records. Defendant's conditions of supervision provide in relevant part as follows:
• The defendant shall participate in a sex offender treatment program as directed by the U.S. Probation Officer, and the defendant shall comply with and abide by all the rules, requirements, and conditions of the treatment program until discharged. The defendant shall take medication as prescribed by the treatment provider.
• The defendant shall participate in a program of mental health treatment, as directed by the probation office.
The foregoing provisions provide that defendant must participate in treatment "as directed by the U.S. Probation officer" or "as directed by the probation office." Defendant therefore is not at liberty to choose his treatment provider, and he offers no argument suggesting that probation's requirement that he change providers is contrary to law or the plain language of the provision. See Comer, 5 F.4th at 547 (affirming district court's authority to delegate the "means or details of court-ordered therapy" to probation officers or treatment providers). As noted, defendant also may not assert facial challenges to the foregoing supervised release conditions where his judgment of conviction is final. See Sanchez, 891 F.3d at 539.
Defendant argues as a factual matter that he will suffer disruption to his treatment and other harms if probation forces him to change providers. The court is sympathetic to defendant's concerns about treatment disruption and attempted at the hearing to facilitate communication between probation and the provider by directing Wolfe to provide the SOSE within approximately one week of the hearing. Probation reports, however, that the SOSE provided is "very vague" and is insufficient for probation to monitor defendant's compliance with treatment or the conditions of supervision. (See Threlkeld Decl. (DE 119-1) at 3). Probation has reiterated request that the court explain to defendant that he must participate in a sex offender treatment program approved by probation. (Id. ). Wolfe, on the other hand, reports that he has provided the additional information requested by officer Threlkeld with respect to the SOSE. (DE 123).
Defendant will have to abide by probation's direction to change providers if probation has determined that the current provider is inappropriate or the treatment program cannot otherwise be approved. The condition permits probation, not defendant, to select the sex offender and mental health treatment programs and therapists, and there is no indication in the record that probation has acted unreasonably in requiring this change. The court also emphasizes that defendant must comply with all the rules, requirements, and conditions of the sex offender treatment program probation selects, or he will be in violation of supervised release. See Van Donk, 961 F.3d at 322 (noting that condition of supervised release requiring compliance with sex offender treatment program rules means the program rules are "in effect, conditions of supervised release"). If defendant fails to comply with the program rules, or is prematurely discharged from the program, he could be subject to revocation.
Defendant asserts that "there is no legitimate reason to require [defendant] to begin treatment with another provider." (Mot. (DE 109) at 6). Probation's view is that defendant's current provider has not timely provided information necessary to ensure compliance with the conditions of supervised release and when he has such information is insufficient, as discussed above. Notably, Wolfe did not contest much of probation's account at the hearing, suggesting primarily that the release defendant signed did not require him to provide an SOSE. As discussed further below, probation is justifiably concerned that defendant is controlling the flow of information between the Wolfe and probation. (See Threlkeld Decl. (DE 119-1) at 3).
On the other hand, in the event that probation determines that Wolfe has now provided sufficient information to permit defendant to remain with him for sex offender treatment or believes that giving treatment with Wolfe another chance in light of this order is a reasonable accommodation consistent with probation's responsibilities in this case, nothing in this order should be construed as prohibiting same. The court merely finds that probation, not defendant, will make the call on whether continued treatment with Wolfe is permitted.
The court now turns to defendant's challenges to probation's requirement that he sign a release of information that permits complete disclosure of treatment records and communications between defendant and his sex offender therapists. The court finds probation's release of information is justified based on the facts of this case.
Defendant stated at the hearing that he signed a release of information for his mental health records that covers everything probation is requesting. He is resisting disclosure only of his full sex offender treatment records.
The conditions of supervised release need not "spell out every last, self-evident detail" regarding supervised release. Comer, 5 F.4th at 542 (quoting United States v. Abbate, 970 F.3d 601, 604 (5th Cir. 2020) ). Conditions therefore may "vest some interpretative role in the officer" so long as probation does not retain "an unfettered power of interpretation that effectively delegates basic policy matters for resolution on an ad hoc and subjective basis." United States v. Hamilton, 986 F.3d 413, 420 (4th Cir. 2021) (quotation omitted).
As defendant concedes, the requirement that defendant disclose some treatment records is a reasonable interpretation of the conditions requiring sex offender and mental health treatment. (Suppl. Br. (DE 116) at 10–11). Furthermore, where the sex offender treatment condition at issue requires that defendant "participate in a sex offender treatment program as directed by the U.S. Probation Officer," and that defendant "comply with and abide by all the rules, requirements, and conditions of the treatment program until discharge," (Judgment (DE 73) at 7 (emphasis added)), full disclosure of treatment records is not an unreasonable means of ensuring compliance with this condition. See United States v. Dupes, 513 F.3d 338, 344–45 (2d Cir. 2008) (upholding validity of explicit condition requiring waiver of therapeutic confidentiality and rejecting defendant's argument that treatment will not be effective if confidentiality is waived, noting such disclosure "very well may advance his treatment by allowing the probation officer to monitor [the defendant's] progress"); United States v. Cooper, 171 F.3d 582, 587 (8th Cir. 1999) (explaining condition requiring disclosure of treatment records "reasonably amplifies the standard condition that [the defendant] answer truthfully all inquiries of the probation officer and follow the instructions of the probation officer" (internal quotation marks omitted)).
The Fourth Circuit has not addressed this issue in a published opinion. The court also recognizes that both Dupe s and Cooper upheld the validity of release conditions that explicitly required disclosure of treatment records, as opposed to an interpretive rule by the probation office. As set forth above, the court finds the rule in this case is within probation's "significant measure of discretion" in interpreting and enforcing the sex offender treatment condition. See Hamilton, 986 F.3d at 420.
Probation's interpretation also is justified by the particular facts of this case. As stated above, probation is concerned that defendant is attempting to significantly limit the flow of information between his therapists and probation, which in turn compromises probation's ability to effectively supervise defendant and ensure compliance with the terms of supervision. (See Threlkeld Decl. (DE 119-1) at 3). At the hearing on the instant motions, defendant's treatment provider stated that he was withholding the SOSE in part because it was not specifically covered by a release of information that defendant himself appears to have drafted and provided to Wolfe. This release of information, in other words, was not probation's preferred form release. Wolfe also did not provide a treatment plan tailored to defendant's case despite probation's specific request for that information and the fact that it is covered by the release, stating that he does not generate individualized treatment plans. (Threlkeld's Decl. (DE 113-1) at 4). Defendant also has refused to complete medical history and other forms required for his polygraphs. (Id. at 5–6). While the court recognizes that defendant and his treatment provider may interpret these facts differently from probation, probation's determination that defendant is using the release of information requirement (and his selection and payment of the treatment provider) to restrict the information provided to probation hardly can be described as unreasonable. Probation's requirement that defendant sign a release of information covering all treatment records and communications also is reasonably related to the nature and circumstances of the offense, defendant's history and characteristics, and the statutory goals of deterrence, protection of the public, and rehabilitation. Ellis, 984 F.3d at 1098 (citing 18 U.S.C. § 3583(d) ). Where defendant was convicted of a serious child pornography offense and he was engaged in an inappropriate relationship with a juvenile, completion of sex offender treatment "as directed by the probation officer" will promote deterrence, protection of the public, and rehabilitation. The court also credits probation's determination that defendant is impeding its ability to effectively supervise defendant by resisting full disclosure of treatment records and selecting his own therapist. (See Threlkeld Decl. (DE 119-1) at 3). In light of defendant's recent behavior on supervised release, including his attempt to restrict the flow of information to probation, probation cannot effectively ensure compliance with the sex offender treatment condition without full disclosure of records by a provider selected by probation. Accordingly, the court finds that probation's implementation of the sex offender treatment condition, including requirements that defendant consent to complete disclosure of treatment records and communications and that probation may select the provider, are consistent with 18 U.S.C. § 3583(d), and involve no greater deprivation of liberty than is reasonably necessary to achieve the relevant sentencing goals. See Ellis, 984 F.3d at 1098.
Probation further reports that defendant has threatened to sue his assigned probation officer, effect a citizen's arrest of the officer for texting while driving, and complained that he and his parents believe the probation officer is attempting to kill him. (Threlkeld Decl. (DE 113-1) at 2–3, 9–10). Defendant's reported behavior on supervision also justifies closer supervision generally and over his treatment in particular. Moreover, defendant's argument that probation previously represented that full disclosure of treatment records was not required is without merit where the changed circumstances discussed herein justify now requiring fulsome communication between the treatment providers and probation.
Based on this finding, defendant's argument that probation's implementation of the condition violates his privacy rights under Jaffee v. Redmond, 518 U.S. 1, 116 S.Ct. 1923, 135 L.Ed.2d 337 (1996) and the Health Insurance Portability and Accountability Act of 1996, Pub. L. 104-191, 110 Stat. 1936 (codified at 29 U.S.C. § 1181 et seq. ) is without merit. As noted above, a condition of supervised release is valid if it comports with 18 U.S.C. § 3583(d), notwithstanding the fact that it may restrict (or directly violate) defendant's constitutional or statutory rights. See Comer, 5 F.4th at 545–46. Defendant, in other words, is not entitled to the same statutory and constitutional protections that a free citizen enjoys. See United States v. Knights, 534 U.S. 112, 119, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001) ; Comer, 5 F.4th at 545–46.
In sum, probation lawfully may direct defendant to attend a mental health or sex offender treatment program selected by probation, and probation lawfully may select the specific therapist. Probation also may require defendant to sign releases of information that permit full disclosure of all treatment records and communications between him and his sex offender treatment provider.
E. Polygraph Examinations
Defendant challenges probation's requirement that he complete a medical history form and answer certain pre-test questions prior to administration of a polygraph exam. The polygraph condition of defendant's supervision is set forth below:
• At the direction of the U.S. Probation Officer, the defendant shall submit to physiological testing, which may include, but is not limited to,
polygraph examinations or other tests to monitor the defendant's compliance with probation or supervised release and treatment conditions.
(Judgment (DE 73) at 7).
With respect to the medical history form, the polygrapher requires that all defendants complete the form prior to administration of the test for liability reasons and to ensure the defendant does not have a medical condition and is not on medications that could affect the results of the polygraph. (Threlkeld Decl. (DE 113-1) at 7; Threlkeld Decl. (DE 119-1) at 3). The court finds this requirement is a reasonable implementation of the condition set forth above and affirms probation and the polygrapher's authority to require completion of the medical history form. See Hamilton, 986 F.3d at 420 (noting conditions of supervision may vest "some interpretive role" in the probation officer). Contrary to defendant's assertions, a brief medical screening is wholly reasonable as a precondition to administration of physiological testing. Defendant states "it is unclear why the polygraph examiner requires completion of a medical history rather than simply requiring [defendant] to state what medications he is currently taking." (Mot. (DE 104) at 6). Defendant's recent attempted polygraph confirms why medical screening beyond a list of medications is necessary: the polygrapher declined to administer the exam scheduled for June 24, 2021, due to defendant's "reported" medical conditions. (Threlkeld Decl. (DE 119-1) at 3–4).
As to the remaining pre-test questions, probation has informed defendant that refusal to answer those questions "would not be considered a violation." (See Dec. 10, 2020, Email (DE 116-8)). And where defendant fails to identify specific questions administered during a polygraph that fall outside the scope of the foregoing condition, it is premature for the court to specifically delineate the scope of questions permitted during future polygraphs at this time, beyond referring the parties back to the text of the condition itself.
In sum, the court affirms probation and the polygrapher's requirement that defendant complete a medical history form prior to administration of the polygraph. The court declines to address the propriety of other pre-test questions or the scope of the polygraph questions themselves at this time.
CONCLUSION
Based on the foregoing, defendant's motions for injunctive relief and request for clarification of certain conditions of supervision (DE 104), and for supervised release status conference (DE 109), construed as a renewed and supplemental motion for clarification of the conditions of supervision, are GRANTED in part and DENIED in part. The motions are granted to the extent defendant seeks clarification of the conditions of supervision related to walk-throughs of his residence, mental health and sex offender treatment, and polygraphs, which has been provided herein, and denied to the extent defendant seeks injunctive relief. Defendant's oral motion for clarification of probation's authority to order urinalysis testing is DENIED as moot. Defendant is DIRECTED to file response to this order within 21 days indicating whether he waives a hearing under Federal Rule of Criminal Procedure 32.1(c) and otherwise consents to modification of his conditions of release to require a maximum of 48 drug tests per year of remaining supervision on a schedule determined by probation.
SO ORDERED, this the 9th day of August, 2021.