Opinion
CAUSE NO. 3:19-CR-38 DRL-MGG
12-09-2019
UNITED STATES of America, Plaintiff, v. Henry E. WOOD, Defendant.
John M. Maciejczyk, US Attorney's Office, South Bend, IN, for Plaintiff.
John M. Maciejczyk, US Attorney's Office, South Bend, IN, for Plaintiff.
OPINION AND ORDER (AMENDED)
Damon R. Leichty Judge, United States District Court
This case involves the warrantless search of a parolee's cellphone. That warrantless search by state officers identified child pornography on the phone, leading federal investigators about a month later to request and obtain a search warrant. The warrant request relied on the evidence from the original warrantless search. Defendant Henry Wood has moved to suppress all evidence obtained pursuant to this warrant, including any information, statements, photographs, and videos, because of the original warrantless search that he views as unconstitutional. The parties have largely stipulated to the facts and have disputed only the proper outcome under the Fourth Amendment. Because Mr. Wood was a parolee and the government complied with applicable Fourth Amendment standards for parolees when state officers searched his phone, the court denies Mr. Wood's motion to suppress.
BACKGROUND
Mr. Wood was originally convicted under Indiana law for dealing methamphetamine in 2013. State v. Wood , 75C01-1303-FB-00012 (Starke County). He received a five-year sentence for this crime. He was later convicted for possessing precursors in 2017 for which he received a two-year sentence. State v. Wood , 75C01-1609-F5-00060 (Starke County).
In 2018, Mr. Wood was released from prison and placed on parole with the Indiana Department of Corrections. ECF 18-1, Ex. A ¶ 5. His Conditional Parole Release Agreement imposed multiple parole conditions. ECF 18-1, Ex. B. Mr. Wood agreed to "not engage in conduct prohibited by federal or state law or local ordinance." Id. ¶ 7. He authorized his "supervising officer or other authorized officials of the Department of Correction to visit [his] residence and place of employment at any reasonable time." Id. ¶ 9(a). The parole regulations further provided:
that [his] person and residence or property under [his] control may be subject to reasonable search by [his] supervising officer or authorized official of the Department of Correction if the officer or official has reasonable cause to believe that the parolee is violating or is in imminent danger of violating a condition to remaining on parole.
Id. ¶ 9(b). Additionally, Mr. Wood consented to "report to [his] supervising officer as instructed and to respond to any and all communications from any authorized employee of the Department of Correction." Id. ¶ 10.
Mr. Wood failed to report to his parole agent in Gary, Indiana for mandatory meetings on both December 14, 2018 and December 26, 2018 in violation of his parole conditions. ECF 18-1, Ex. A ¶ 5. The Parole Board promptly issued an arrest warrant for Mr. Wood based on these violations. Id. ¶ 7. On December 27, 2018, Indiana correctional agents arrived at Mr. Wood's residence and arrested him inside. Id. ¶ 8; see also ECF 18-1, Ex. C.
Once arrested, Mr. Wood kept turning toward his cellphone, so Parole Agent Gentry picked up the cellphone located on top of a "junk pile." ECF 18-1, Ex. C. Mr. Wood became upset and demanded that his phone "be turned off immediately." Id. He also began to resist Agent Gentry physically by attempting to pull away from him. Id. As a result of Mr. Wood's resistance, Agent Gentry—along with Parole Agent Hayes, another team member assisting in the search—restrained Mr. Wood on the nearest wall until he calmed down. Id.
Before the encounter, Parole Agent Gentry handed the phone to Parole Agent Rains. Id. Agent Rains felt what he thought was something "lumpy" in the back of the cellphone cover, so he took the cover off and found a small packet of an unknown substance, which he believed to be methamphetamine. ECF 18-1, Ex. A ¶ 11. Mr. Wood later confirmed that the substance was methamphetamine. Id. ¶ 12. A subsequent search of the home uncovered syringes and other drug paraphernalia. ECF 18-1, Ex. C.
Mr. Wood was charged with possession of methamphetamine. ECF 18-1, Ex. C. At that time, the cellphone was seized pursuant to this arrest and collected as evidence. ECF 18-1, Ex. A ¶ 13. A parole agent attempted to examine the cellphone's data onsite but was unsuccessful. Id. Agent Rains took possession of the cellphone, while Sergeant Ferguson of the Starke County Sheriff's Department took possession of the methamphetamine and syringes. ECF 18-1, Exs. C, D. The Starke County Sheriff's Department transported Mr. Wood to the Starke County Jail. ECF 18-1, Ex. C.
The cellphone was brought to the Indiana Department of Correction's Internal Affairs Correctional Police Officer, Investigator Christopher Dustin, to be forensically examined. ECF 18-1, Ex. A ¶ 14; Ex. D. On January 3, 2019, without a warrant, Investigator Dustin downloaded data from the cellphone. See Ex. D. In the process, Investigator Dustin began looking through the data, observing nude and sexually explicit photographs of minors and video files identifying by title girls under the age of fourteen. ECF 18-1, Ex. A ¶ 16; Ex. D. According to Officer Dustin, he
began seeing files of young girl's [sic] that appear to be in the age range between 8 and 14 years old, some wearing sexual clothing in sexually explicit poses and other files that were nude exposing the breast's [sic] and vagina's [sic], over 50 files of the young girl's [sic] contained over 100 individual photos each, well into the thousands of photos range. Videos were also present in the phone. The title on the video identifying the girls to be 8 years old, 9 years and others under the age of 14.
ECF 18-1, Ex. D. Investigator Dustin informed Agent Rains of this information and forwarded a copy of the extraction report to Agent Rains "to assist his case with the possession of a controlled substance, dealing." ECF 18-1, Ex. E.
Investigator Dustin then contacted the Merrillville Federal Bureau of Investigation. Id. Investigator Dustin informed Special Agent Nikkole Robertson what he found on the cellphone, and "it was decided that [Investigator Dustin would] be gathering the File System Extraction" and submitting it as evidence to Special Agent Robertson. Id. On January 4, 2019, Investigator Dustin conducted a logical full download of the cellphone "so that the opportunity to collect further data would be available to Investigators." Id. Investigator Dustin then forwarded the cellphone and the downloaded information to Special Agent Robertson. ECF 18-1, Ex. A ¶ 17.
On February 2, 2019, Special Agent Robertson applied for a search warrant and supporting affidavit. See ECF 18-1, Exs. A, F. In her application, Special Agent Robertson relied on the results of Investigator Dustin's warrantless cellphone search and the Internal Affairs Division Report of Investigation that Investigator Dustin authored, which also relied on the results of his warrantless cellphone search. Ex. A ¶¶ 5-17. A search and seizure warrant, identifying the cellphone taken at Mr. Wood's home as the item to be seized and searched, was granted by this court in February 2019. See ECF 18-1, Ex. G. The cellphone was searched pursuant to this warrant, and Mr. Wood was subsequently indicted on child pornography charges. ECF 1. His motion to suppress focuses on the legality of Investigator Dustin's warrantless search of the cellphone based on which the FBI obtained a search warrant and the information necessary to his charges.
ANALYSIS
Pre-revolutionary writs of assistance permitted roving searches for contraband, and such general warrants allowed searches without any particularized or oath-based evidence of an offense. Colonial Americans reviled the practice precisely because they "placed the liberty of every man in the hands of every petty officer." Boyd v. United States , 116 U.S. 616, 625, 6 S.Ct. 524, 29 L.Ed. 746 (1886) ; see also Maryland v. King , 569 U.S. 435, 466-67, 133 S.Ct. 1958, 186 L.Ed.2d 1 (2013) (Scalia, J., dissenting); Indianapolis v. Edmond , 531 U.S. 32, 37, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000). The Fourth Amendment to the United States Constitution worked to stamp out suspicionless searches and provided the right of the people "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." As the constitutional text suggests, the "touchstone of the Fourth Amendment is reasonableness." United States v. Knights , 534 U.S. 112, 118, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001).
The Fourth Amendment constrains searches and seizures that are not justified under the circumstances or that are not conducted in a proper manner. See King , 569 U.S. at 446-47, 133 S.Ct. 1958. The Fourth Amendment generally requires a warrant before the government searches a person's property. Indeed, searches conducted without a warrant "are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions." Arizona v. Gant , 556 U.S. 332, 338, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) (quoting Katz v. United States , 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) ).
A. Fourth Amendment: Reasonableness Based on the Totality of the Circumstances
Within the exceptions, certain warrantless searches have been declared reasonable—for instance, when "faced with special law enforcement needs, diminished expectations of privacy, minimal intrusions, or the like." Illinois v. McArthur , 531 U.S. 326, 330, 121 S.Ct. 946, 148 L.Ed.2d 838 (2001). The government conceded at oral argument that it is not asserting a special needs exception to the Fourth Amendment, see , e.g. , Griffin v. Wisconsin , 483 U.S. 868, 874, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987), or the question often left open in condition-based search cases, namely consent of the parolee (or probationer), see , e.g. , Knights , 534 U.S. at 118, 122 S.Ct. 587 ; Schneckloth v. Bustamonte , 412 U.S. 218, 222, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), so the court distills its focus to the totality of the circumstances: weighing an individual's reasonable expectations of privacy against the government's legitimate interests. See Samson v. California , 547 U.S. 843, 857, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006) (permitting warrantless search of parolee).
Under this analysis, the court must weigh "the degree to which the search intrudes on individual liberty and the degree to which it promotes legitimate governmental interests." United States v. White , 781 F.3d 858, 862 (7th Cir. 2015) ; see also Knights , 534 U.S. at 118-19, 122 S.Ct. 587. This case calls for a reassessment of reasonableness within the specific context of an Indiana parolee's privacy expectations in his cellphone—standing against the government's legitimate interests in supervising that parolee through protective conditions of release, appreciating that generally the constitutional requirement of a warrant often won't apply to searches of a parolee. Samson , 547 U.S. at 857, 126 S.Ct. 2193 ; White , 781 F.3d at 862-63. Still, mindful that unreasonable searches may "inflic[t] dignitary harms that arouse strong resentment in parolees and undermine their ability to reintegrate into productive society," Samson , 547 U.S. at 856, 126 S.Ct. 2193, the restrictions on a parolee's liberty cannot be unqualified. Morrissey v. Brewer , 408 U.S. 471, 482-84, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).
B. Warrantless Searches of Cellphones & Riley
Warrantless searches of cellular telephones have been held unconstitutional in the context of arrestees, see Riley v. California , 573 U.S. 373, 392, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014), and at least once in the context of probationers, see United States v. Lara , 815 F.3d 605, 612 (9th Cir. 2016).
The Fourth Amendment is necessarily status and context based in this analysis. The totality of the circumstances calls for an assessment of reasonableness appreciating one's status and privacy expectations and the context in which the search occurs. See Vernonia Sch. Dist. 47J v. Acton , 515 U.S. 646, 654, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995) ("legitimacy of certain privacy expectations vis-á-vis the State may depend upon the individual's legal relationship with the State"); New Jersey v. T.L.O. , 469 U.S. 325, 337, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985) ("what is reasonable depends on the context within which a search takes place"). Mr. Wood offers no other contexts in which such warrantless searches of cellphones have offended the Constitution. He argues nonetheless that Riley should govern this parolee case.
Riley addressed whether law enforcement, without a warrant, could search digital information on a cellphone seized from a person under arrest. The United States Supreme Court observed that cellphones are in essence "minicomputers" that "place vast quantities of personal information literally in the hands of individuals" such that a license to search an arrestee's data would effectively give "police officers unbridled discretion to rummage at will among a person's private effects." Riley , 573 U.S. at 387, 393, 400, 134 S.Ct. 2473 (quoting in part Gant , 556 U.S. at 345, 129 S.Ct. 1710 ). A cellphone search "would typically expose to the government far more than the most exhaustive search of a house." Id. at 396, 134 S.Ct. 2473. Although a person under arrest has reduced privacy interests, the nature of the intrusion is so great that "a warrant is generally required before such a search." Id. at 401, 134 S.Ct. 2473.
Although Riley held that law enforcement officers must obtain a warrant before searching a cellphone seized incident to arrest, that case remains confined to the context of an arrest of an unsupervised citizen—one not under any prior conditions on his freedom that would reduce expectations of privacy. Id. at 401, 403, 134 S.Ct. 2473. Indeed, knowing full well that Fourth Amendment analysis remains benchmarked by context-specific assessments of privacy expectations, Riley observed that "other case-specific exceptions may still justify a warrantless search of a particular phone." Id. at 404, 134 S.Ct. 2473 ; see, e.g. , United States v. Hilton , 625 Fed. Appx. 754, 760 (6th Cir. 2015) (release condition permitting search based on reasonable suspicion justified warrantless search of cellphone outside Riley ).
This case presents one such exception: the search of parolee's cellphone following multiple parole violations, including drug possession, while under a release condition for a search based on reasonable suspicion. While this circuit has not had the occasion to address this precise issue, every circuit that has done so has concluded that a warrantless search of a parolee's cellphone was constitutionally permitted. See, e.g. , United States v. Collier , 932 F.3d 1067, 1074 (8th Cir. 2019) ("under the totality of the circumstances [individual under supervised release] did not have a reasonable expectation of privacy in the cell phone"); United States v. Pacheco , 884 F.3d 1031, 1041, 1044 (10th Cir. 2018) (finding both seizure and search of parolee's cellphone appropriate under the totality-of-the-circumstances exception); United States v. Johnson , 875 F.3d 1265, 1275-76 (9th Cir. 2017) (warrantless search of parolee cellphone permitted); see also United States v. Davenport , 752 Fed. Appx. 476, 479 (9th Cir. 2019) (search of parolee's cellphone permitted even when he had been detained in county jail on suspicion of parole violation); United States v. Johnson , 2019 U.S. Dist. LEXIS 173063, 7-11 (D. Idaho Oct. 4, 2019) (warrantless search of parolee or supervised releasee's cellphone not unconstitutional); United States v. Hill , 2013 U.S. Dist. LEXIS 45754, 5-7 (S.D. Ohio Mar. 29, 2013) (motion to suppress warrantless search of parolee's cellphone denied, even if state statute required reasonable suspicion of crime, because parolee status alone justified search); accord United States v. Tucker , 305 F.3d 1193, 1202-03 (10th Cir. 2002) (totality of the circumstances permitted law enforcement officer to run software on parolee's computer, examine its browser history, and run another program that allowed him to view deleted files).
Of course, certain cases involved suspicionless conditions for the government's searches; in other words, they permitted law enforcement to search parolees, releasees, and probationers for any reason and without condition, thus reducing their privacy expectations even more. See , e.g. , Collier , 932 F.3d at 1073 (condition stating that releasee "must submit at any time to an unannounced visit and/or search of [his] person, vehicle, or premises by the agent/designee"). But not all of them. See Pacheco , 884 F.3d at 1041 (seizure of parolee's cellphone constitutional based on diminished privacy expectations when condition permitted searches on "reasonable suspicion of the person violating conditions of parole"); Hilton , 625 Fed. Appx. at 760 (release condition permitting search based on reasonable suspicion justified warrantless search of cellphone outside Riley ); United States v. Dahl , 64 F. Supp.3d 659, 664 (E.D. Pa. 2014) (warrantless search of probationer's cellphone permitted based on reasonable suspicion); United States v. Myles , 2018 WL 4053468, 6-7, 2018 U.S. Dist. LEXIS 144028, 18-19 (M.D. La. Aug. 24, 2018) (reasonable suspicion justified search of parolee's cellphone). Mr. Wood's expectation in this case was not of a suspicionless search, but one based on reasonable cause or suspicion. The condition's language, which the Fourth Amendment must account, thus may have heightened this parolee's privacy expectations to a degree, though not substantially.
That said, while these extra-jurisdictional cases may prove interesting, the case before the court turns individualistically on the extent of Mr. Wood's legitimate expectations of privacy—a subject that "is shaped by the state law that governed [his] terms of parole." White , 781 F.3d at 861 ; see also Samson , 547 U.S. at 851-52, 126 S.Ct. 2193. None of these other cases were based on Indiana law, so the court must assess the issue anew within the context of Indiana's parole system, not any other.
C. Special Needs of Probationary in lieu of Investigatory Searches
Before turning to the totality of the circumstances, with this particular parole condition under Indiana law being a salient factor, see Samson , 547 U.S. at 852, 126 S.Ct. 2193 ; Knights , 534 U.S. at 118, 122 S.Ct. 587, a point about special needs nonetheless merits an aside here as the defense's argument tends to conflate two separate Fourth Amendment concepts. Mr. Wood argues that the search here should be considered investigatory and not probationary, thus triggering Riley . The court need not resolve that issue because a special needs exception to the Fourth Amendment has not been advanced and because the search was reasonable under the totality of the circumstances.
Special needs permit the government to test a political candidate for illegal narcotics, Chandler v. Miller , 520 U.S. 305, 314, 117 S.Ct. 1295, 137 L.Ed.2d 513 (1997) ; establish highway sobriety checkpoints, see Michigan Dept. of State Police v. Sitz , 496 U.S. 444, 447, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990) ; conduct warrantless work-related searches of an employee's desk and office, see O'Connor v. Ortega , 480 U.S. 709, 725-26, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987) ; perform warrantless searches of some student property without probable cause, see T.L.O. , 469 U.S. at 327-28, 105 S.Ct. 733 ; and conduct random drug testing for student drivers, Joy v. Penn-Harris-Madison Sch. Corp. , 212 F.3d 1052, 1065 (7th Cir. 2000). This exception is predicated on the existence of "special needs, beyond the normal need for law enforcement , [which] make the warrant and probable-cause requirement impracticable." Griffin , 483 U.S. at 873, 107 S.Ct. 3164 (quoting T.L.O. , 469 U.S. at 351, 105 S.Ct. 733 ) (emphasis added). Searches based on special needs intrude upon substantial expectations of privacy, so Fourth Amendment law has insisted on some purpose other than law enforcement or investigation to "detect evidence of ordinary criminal wrongdoing" to justify them in the absence of individualized suspicion. Edmond , 531 U.S. at 38, 121 S.Ct. 447.
In the probation context, and comparably within the parole context, see State v. Vanderkolk , 32 N.E.3d 775, 779 (Ind. 2015) (in Indiana "similarities between parole and probation ... are far greater than the differences"), supervision is a special need that makes the "warrant requirement impracticable and justif[ies] replacement of the standard of probable cause by ‘reasonable grounds.’ " Griffin , 483 U.S. at 876, 107 S.Ct. 3164. The exception applies when a search is meant to protect the public from the probationer's (or parolee's) status within the community and to ensure that all restrictions are being observed. See id. at 874-75, 107 S.Ct. 3164. Because the exception rests on the state's special needs beyond the normal need for law enforcement, a probationary purpose is inherent and built into it. Id. at 873, 107 S.Ct. 3164.
Knights underscores this same point. There, the United States Supreme Court considered the constitutionality of a warrantless search of a probationer's apartment. Examining the totality of the circumstances, with the probation search condition being a salient circumstance, the court upheld the search. Knights , 534 U.S. at 115-16, 122 S.Ct. 587. California law required the probationer to submit his "person, property, place of residence, vehicle, personal effects, to search at anytime, with or without a search warrant, warrant of arrest or reasonable cause by any probation officer or law enforcement officer." Id. at 114, 122 S.Ct. 587. Suspecting the probationer of arson and vandalism, a law enforcement officer conducted a warrantless search of his apartment and found arson and drug paraphernalia. Id. at 115-16. Knights held that "[w]hen an officer has reasonable suspicion that a probationer subject to a search condition is engaged in criminal activity, there is enough likelihood that criminal conduct is occurring that an intrusion on the probationer's significantly diminished privacy interests is reasonable." Id. at 121, 122 S.Ct. 587. In short, the defendant's status as a probationer significantly diminished his expectation of privacy. When weighed against the government's interest in combating recidivism and a probationer's incentive to conceal his criminal activities given the risk of revocation and possible incarceration (where rights to a jury trial and reasonable doubt would not apply), the search was reasonable. Id.
In reaching this conclusion, Knights reversed the determination by the lower courts that, because the search was "investigatory" rather than "probationary," the suppression motion had to be granted. See id. at 116, 122 S.Ct. 587. The Ninth Circuit Court of Appeals had held that the search condition in the probation order "must be seen as limited to probation searches, and must stop short of investigation searches." United States v. Knights , 219 F.3d 1138, 1142-43 (9th Cir. 2000). The United States Supreme Court rejected this distinction for its analysis of the totality of the circumstances. The probation condition was not worded to limit a search to probationary purposes; California law precluded the distinction; and the Fourth Amendment did not restrict searches solely to probationary purposes. Knights , 534 U.S. at 116-17, 122 S.Ct. 587. Knights concluded that a "special need" like that found in Griffin was not necessary because the totality of the circumstances justified the search without regard to its investigatory (non-probationary) aim. See id. at 117-18, 122 S.Ct. 587.
The search in Knights was predicated on both the probation search condition and reasonable suspicion, so it never reached the question whether the search would have been reasonable under the Fourth Amendment based solely on the probation condition. Knights , 534 U.S. at 120 n.6, 122 S.Ct. 587. Knights authorized warrantless searches of a probationer's home without probable cause by law enforcement officers with no responsibility for probationers based solely on the totality of the circumstances. See id. at 118-121, 122 S.Ct. 587.
Thus our highest court's jurisprudence has not shown a willingness to entertain Fourth Amendment challenges "based on the actual motivations of individual officers" or the search's official purpose—outside the limited exceptions of special needs and administrative searches. Whren v. United States , 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) ; see also Knights , 534 U.S. at 122, 122 S.Ct. 587 ; Edmond , 531 U.S. at 45, 121 S.Ct. 447. The Fourth Amendment likewise imposes no prerequisite of a probationary purpose for this search under the totality of the circumstances. Knights , 534 U.S. at 117-18, 122, 122 S.Ct. 587.
For emphasis, much like California had done in Knights , Indiana also has rejected this same distinction between probationary (or parole) and investigatory searches within the Knights context, reaffirming that view just a month ago. See State v. Schlechty , 926 N.E.2d 1, 5-6 (Ind. 2010) ; see also State v. Harper , 135 N.E.3d 962, 968, 2019 WL 5588840, 3, 2019 Ind. App. LEXIS 467, 8 (Ind. Ct. App. Oct. 30, 2019). Although this distinction may remain vital to a Griffin exception such that a parolee cannot have his privacy rights stripped from him when a search is not conducted within the regulatory scheme of parole enforcement, the court "need not examine the motivation of parole officers to determine whether a search was a parole or probationary search or a normal investigatory search" under the Knights balancing test. Harper , supra at 968, at 3, 2019 Ind. App. LEXIS 467 at 8. Under Knights , "even if there is no probationary purpose at stake, a warrantless search may be justified on the basis of reasonable suspicion to believe that the probationer has engaged in criminal activity and that a search condition is one of the terms of probation." Schlechty , 926 N.E.2d at 6.
In addition, while Mr. Wood's parole condition contemplates searches by parole agents or authorized DOC officers, nothing within the condition limits a search to probationary purposes; and the initial search of concern to Mr. Wood was conducted by an authorized officer. See Knights , 534 U.S. at 116-17, 122 S.Ct. 587.
Mr. Wood offers other Indiana cases on this front, but they too relied on the special needs analysis in Griffin in discussing this distinction, and they all predate Knights . See Allen v. State , 743 N.E.2d 1222, 1228 (Ind. Ct. App. 2001) ; Polk v. State , 739 N.E.2d 666, 668-69 (Ind. Ct. App. 2000) ; Purdy v. State , 708 N.E.2d 20, 21-22 (Ind. Ct. App. 1999). Accordingly, their analysis of probationary versus investigatory searches, while helpful to an understanding of special needs under Griffin , doesn't bear on the totality-of-the-circumstances assessment within the Knights tradition.
D. Totality of the Circumstances: Privacy Expectations vs. State Interests
Focusing then on what this case requires by way of a Fourth Amendment analysis under the totality of the circumstances test, see White , 781 F.3d at 862, the court turns to the individual privacy and government interests at stake.
1. Indiana Parolee's Privacy Expectations under a Parole Condition for Reasonable Searches Based on Reasonable Suspicion of Violating Conduct
The court first examines Mr. Wood's individual privacy expectations based on his status as a parolee and the intrusive nature of searches of cellphone data. Because the terms of parole here permitted a search of his person and property with something less than probable cause—that is, reasonable cause or suspicion—his expectation of privacy was "significantly diminished." Samson , 547 U.S. at 849-50, 126 S.Ct. 2193 (citing Knights , 534 U.S. at 119-20, 122 S.Ct. 587 ). Samson upheld a suspicionless and warrantless search of a state parolee in which officers found methamphetamine within a cigarette box in his pocket. In doing so, Samson answered the question left open in Knights : "whether a condition of release can so diminish or eliminate a released prisoner's reasonable expectation of privacy that a suspicionless search by a law enforcement officer would not offend the Fourth Amendment." Samson , 547 U.S. at 847, 126 S.Ct. 2193.
Individual privacy rights of parolees are framed by their parole conditions. Id. at 852-53, 126 S.Ct. 2193. Indeed, this circuit has held that a parolee might have almost no legitimate expectation of privacy when "a condition of parole requires the parolee to submit—unconditionally—to searches of his person, property, and residence." White , 781 F.3d at 863. That is not the condition here, but Indiana law is consistent in viewing a parolee's privacy interests as significantly diminished when a parole condition permits searches—as this one does—based on reasonable suspicion. See infra.
Parole sits on a continuum of possible punishments in which privacy interests vary. Punishments range from solitary confinement in a maximum-security facility, to imprisonment in general population, to parole, probation, home detention, to a few hours of mandatory community service. See Knights , 534 U.S. at 119, 122 S.Ct. 587 ; Griffin , 483 U.S. at 874, 107 S.Ct. 3164. Whereas free citizens on one end of this spectrum have the greatest expectations of privacy and in fact "absolute liberty," Knights , 534 U.S. at 119, 122 S.Ct. 587, prisoners on the opposite end of the spectrum have no reasonable expectation of privacy, see Hudson v. Palmer , 468 U.S. 517, 530, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984). Parolees, although they retain some greater measure of privacy expectation than prisoners, have significantly reduced expectations of privacy when parole conditions permit searches based on something less than probable cause. See Samson , 547 U.S. at 849-50, 126 S.Ct. 2193 ; White , 781 F.3d at 863.
"Just as other punishments for criminal convictions curtail an offender's freedoms, a court granting [parole] may impose reasonable conditions that deprive the offender of some freedoms enjoyed by law-abiding citizens." Knights , 534 U.S. at 119, 122 S.Ct. 587. "The essence of parole is release from prison, before the completion of sentence, on the condition that the prisoner abides by certain rules during the balance of the sentence." Id. (quoting Morrissey , 408 U.S. at 477, 92 S.Ct. 2593 ). In most cases, the state "extend[s] parole only because it is able to condition it upon compliance with certain requirements." Pennsylvania Bd. of Probation & Parole v. Scott , 524 U.S. 357, 365, 118 S.Ct. 2014, 141 L.Ed.2d 344 (1998). On the continuum of possible punishments, "parole is the stronger medicine," Samson , 547 U.S. at 850, 126 S.Ct. 2193, though Indiana treats probationers on par with the significantly reduced privacy expectations of parolees, Vanderkolk , 32 N.E.3d at 779. As a classification then, "parole is more akin to imprisonment." Id. ; see also Johnson , 875 F.3d at 1275 ("parolees appear to hold the most limited privacy interests among people convicted of a crime but are not actually imprisoned").
Special conditions authorizing warrantless searches are imposed frequently in sentencing for drug crimes. See United States v. Neal , 810 F.3d 512, 521 (7th Cir. 2016). Indiana properly did so too for Mr. Wood. In fact, his parole condition has been codified in Indiana: "An employee of the department assigned to supervise and assist parolees may ... search a parolee's person or property if the employee has reasonable cause to believe that the parolee is violating or is in imminent danger of violating a condition to remaining on parole." Ind. Code § 11-13-3-7(a)(6). From the parole condition, there appear to be two primary phrases of limitation on the government's authority to search Mr. Wood's property: the search must be a "reasonable search" and must be supported by "reasonable cause to believe that the parolee is violating or is in imminent danger of violating" one of his parole conditions. The language makes it more restrictive than the blanket consent search agreements that were analyzed in other jurisdictions and by this circuit in White , 781 F.3d at 862, and United States v. Huart , 735 F.3d 972, 973 (7th Cir. 2013), though both cases provide additional guidance here.
In Huart , 735 F.3d at 973, after pleading guilty to possessing child pornography, the defendant was placed in a halfway house with rules governing inmates, including that any staff could request at any time to view the contents of an inmate's cellphone with or without reason, and any inmate property was required to be inventoried or be deemed contraband. A subsequent random search of the defendant's cell phone uncovered 214 images, including child pornography. Nearly four months later, the FBI obtained a warrant to search the cellphone; but, because of its security lock, agents could not access the phone until six months after its seizure. This circuit affirmed the denial of two motions to suppress, assessing under the totality of the circumstances the halfway house inmate's privacy interest as akin to a parolee because his sentence was "one particular way an inmate may serve a custodial sentence." Id. at 975. The case demonstrated that the inmate "had surrendered any expectation of privacy in the contents of his cell phone, and that society was not prepared to recognize any such expectation." Id. Without a reasonable expectation of privacy in his cellphone or its contents, the search did not implicate the Fourth Amendment. See id.
Accordingly, this circuit never reached the question of whether the search was adequately supported by reasonable suspicion. Huart , 735 F.3d at 976.
In White , 781 F.3d at 859, the Illinois Department of Corrections issued a warrant to arrest an individual for violating his parole based on a shooting victim's identification of the parolee and the discovery of firearm packaging by a parole officer. After securing the warrant, law enforcement received a tip that the parolee was driving a green sport utility vehicle known to be driven by his cousin. She told officers that she had been with the parolee earlier in the day and that he had placed his gym bag in her car. Law enforcement searched the bag and found a handgun, after which the parolee was charged with possessing a firearm as a felon. See id. The parolee had agreed to the parole condition of "consent[ing] to a search of [his] person, property, or residence under [his] control," and the government argued that his status as a parolee extinguished any expectation of privacy. Id. This circuit held the search reasonable based on his "sharply diminished privacy expectations as a parolee." Id. at 860. In doing so, White held that the defendant's "parolee status coupled with his supervisory-release agreement diminished any legitimate privacy interest before he left his bag in [the] car." Id. at 863. The court observed that those "reduced expectations are diminished further where, as here, a condition of parole requires the parolee to submit—unconditionally—to searches of his person, property, and residence." Id. (emphasis added).
Recognizing that Huart preceded Riley , and that the condition there permitted a property search without cause, the case still illustrates that the privacy expectations of parolees remain quite low. Indeed, much like the parole agreement in White , Mr. Wood's parole status and parole agreement sharply diminished his legitimate privacy interests; they were just not "diminished further" to the point of being near-absent, as the defendant found his reduced in White , because Mr. Wood's agreement required reasonable cause or suspicion as opposed to an unconditional search. White , 781 F.3d at 863 ; see also Samson , 547 U.S. at 849-50, 126 S.Ct. 2193 (a search condition less than probable cause significantly diminishes privacy interest).
State law informs the analysis. Salient in Knights and Samson , and likewise here, is that the search condition under Indiana law was clearly expressed to Mr. Wood. See Knights , 534 U.S. at 118-20, 122 S.Ct. 587 ; Samson , 547 U.S. at 852, 126 S.Ct. 2193. Indiana treats parolees with this same understanding of a significantly reduced expectation of privacy—understanding "that their freedom from incarceration is conditional and subject to monitoring." Vanderkolk , 32 N.E.3d at 779. Indiana parole involves "conditional release from custody, subject to terms of compliance the violation of which can terminate release and return an individual to serve the sentence imposed." Id. In fact, because Indiana treats probationers in line with parolees, both fall within the context of Samson . Id. Indeed, Indiana has held that its parolees and probationers can be subject to a valid search condition that authorizes a warrantless premises search without reasonable suspicion. Id. at 780.
In State v. Schlechty , 926 N.E.2d 1 (Ind. 2010), the Indiana Supreme Court upheld a warrantless search of a probationer's car that uncovered the presence of marijuana and other drug paraphernalia. The probation order, like the parole condition here, required the probationer to submit to "reasonable warrantless searches" of the probationer and his property. Id. at 6. In that case, the probationer's conduct raised reasonable suspicion to officers that he was engaged in at least two criminal offenses: stalking and attempted confinement. Id. at 8. The court noted that the probationer could not challenge the search under the Fourth Amendment because his probation order permitted reasonable searches, and officers had a reasonable suspicion that he was violating the terms of his probation order. Id.
In State v. Harper , 135 N.E.3d 962, 966–67, 2019 WL 5588840, 1-2, 2019 Ind. App. LEXIS 467, 1-3 (Ind. Ct. App. Oct. 30, 2019), a parole officer received an anonymous tip about the parolee leaving the state illegally and dealing narcotics, thus precipitating a meeting during which the parolee failed a drug test and admitted to traveling outside the state without permission. At that point, the parolee was arrested. See id. at 966–67, at 1-2, 2019 Ind. App. LEXIS 467 at 3. Based on the same parole condition at issue in this case, parole officers later conducted a warrantless search of the parolee's home where they found a receipt for a storage unit. The officers then searched the storage unit without a warrant and found both a weapon and drugs in plain view. Id. Harper held that under the totality of the circumstances "parole and law enforcement officers had reasonable suspicion to believe that [the parolee], who had actual knowledge of the search terms of his parole conditions, was engaged in criminal activity." Id. at 972, at 6, 2019 Ind. App. LEXIS 467 at 16-17. The court upheld the searches based on both the parole condition and reasonable suspicion. Id. at 972, at 6, 2019 Ind. App. LEXIS 467 at 17.
Indiana has thus treated parolees, even with a condition that requires reasonable suspicion before a search, as having a significantly reduced privacy expectation. See id. Lest we forget, reasonable suspicion is a less demanding standard than probable cause and requires a showing considerably less demanding than a preponderance of the evidence. Illinois v. Wardlow , 528 U.S. 119, 123, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). Reasonable suspicion requires a particularized and objective basis for suspecting a person of criminal activity. Ornelas v. United States , 517 U.S. 690, 696, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996) ; United States v. Cortez , 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). Still, it is not a condition that should or does create an expectation of privacy under the Fourth Amendment that is anything but significantly diminished. See Samson , 547 U.S. at 849-50, 126 S.Ct. 2193 ; see also United States v. Mathews , 928 F.3d 968, 976 (10th Cir. 2019) ("when the terms of a parolee's parole allow officers to search his person or effects with something less than probable cause, the parolee's reasonable expectation of privacy is significantly diminished") (quoting Pacheco , 884 F.3d at 1041 ); cf. Vanderkolk , 32 N.E.3d at 780 (while Indiana parolees can be subject to warrantless and suspicionless search conditions, the motion to suppress was granted because the probation condition in the case required probable cause and officers lacked probable cause).
The Fourth Amendment does not "fall[ ] out of the picture" simply because a person has a reduced interest in privacy. Riley , 573 U.S. at 392, 134 S.Ct. 2473. "To the contrary, when ‘privacy-related concerns are weighty enough’ a ‘search may require a warrant, notwithstanding the diminished expectations of privacy’ " of the person. Id. (quoting King , 569 U.S. at 463, 133 S.Ct. 1958 ). To be sure, the warrantless search here occurred of personal cellphone data and thus implicates similar concerns about the nature of the intrusion that undergirded Riley ; and the parole condition only allowed searches based on reasonable cause or suspicion, not suspicionless ones. While Mr. Wood may have then enjoyed a measure of privacy interest modestly stronger than assessed in certain other cases because of both contexts, that expectation was still not great. In fact, it remained considerably diminished.
2. Indiana's Overwhelming Governmental Interests in Guarding Against Parolee Recidivism and Protecting its Citizens
In contrast to Mr. Wood's reduced privacy expectations, Indiana's interests are substantial. See Samson , 547 U.S. at 853, 126 S.Ct. 2193. A state has an "overwhelming interest" in supervising parolees because they "are more likely to commit future criminal offenses." Id. (quoting Scott , 524 U.S. at 365, 118 S.Ct. 2014 ). This court must acknowledge that Indiana's "interests in reducing recidivism and thereby promoting reintegration and positive citizenship among probationers and parolees warrant privacy intrusions that would not otherwise be tolerated under the Fourth Amendment." Id. ; see also Knights , 534 U.S. at 121, 122 S.Ct. 587 ; Griffin , 483 U.S. at 879, 107 S.Ct. 3164. A "warrantless search condition is an extremely valuable aid in rehabilitation because if the [parolee] knows that he can be searched at any time without warning, he is less likely to engage in criminal activity." Carswell v. State , 721 N.E.2d 1255, 1263 (Ind. Ct. App. 1999).
Mr. Wood's status as a parolee subject to a search condition informs both sides of the balance of interests in assessing reasonableness under the Fourth Amendment. White , 781 F.3d at 862. Aside from his "significantly diminished" expectation of privacy based on a parole condition that permitted a search of his person and property with something less than probable cause, Samson , 547 U.S. at 849-50, 126 S.Ct. 2193 (citing Knights , 534 U.S. at 119-20, 122 S.Ct. 587 ), the assumption of parole is that the parolee is more likely than the ordinary citizen to violate the law, so the government's interest is heightened by the need to protect society from the risk of renewed criminal activity from parolees and justifiably to focus on parolees with more circumspection than the ordinary citizen. Knights , 534 U.S. at 120-21, 122 S.Ct. 587.
In Indiana, a prisoner is released on parole only upon his agreement to certain conditions. United States v. Franklin , 440 F.2d 1210, 1212 (7th Cir. 1971) (applying Indiana law). These conditions are found in the parole agreement. The Indiana Parole Board has the power to determine whether prisoners should be released on parole and, if so, under what conditions. To remain on parole, the parolee must not commit another crime during the period of parole. Ind. Code § 11-13-3-4(a). The Board may also adopt other conditions: requiring a parolee to reside in a certain geographic location or periodically to submit to laboratory chemical tests, for instance. Id. §§ 11-13-3-4(e, f). If released on parole, the parolee must be given a written statement of his parole conditions. Id. § 11-13-3-4(c). Indiana law requires that the conditions of parole be "reasonably related to the parolee's successful reintegration into the community and not unduly restrictive of a fundamental right." Harris v. State , 836 N.E.2d 267, 273 (Ind. Ct. App. 2005). Violations of parole may result in the person's revocation and imprisonment. Ind. Code § 11-13-3-8. These reasonable measures on parolees promote successful reintegration into the community and enhance public safety. See Harris , 836 N.E.2d at 272.
Empirical data underscores the significance of these interests to the State of Indiana. According to the Indiana Department of Corrections Annual Report from 2018, Indiana had 6,474 parolees. Indiana parolees had a nearly 34 percent recidivism rate—measured by those parolees recommitted to the Indiana Department of Corrections within three years of the inmate's release date for either a new conviction or a violation of post-release supervision. While Indiana may have had more success promoting reintegration and combatting recidivism than perhaps certain other states, and faced lower rates, that does not materially lessen its interest in preventing repeat crimes or protecting the community. For instance, the parole division conducted 36 field team operations (sweeps) in various counties in 2018 resulting in the seizure of 44 firearms and large quantities of methamphetamine, heroin, cocaine, and marijuana. There are thus "grave safety concerns that attend recidivism." Samson , 547 U.S. at 854, 126 S.Ct. 2193 ; see also Ewing v. California , 538 U.S. 11, 26, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003) (plurality opinion) ("Recidivism is a serious public safety concern ... throughout the Nation."). Indiana's ability to conduct reasonable searches of parolees "serves its interest in reducing recidivism, in a manner that aids, rather than hinders, the reintegration of parolees into productive society." Samson , 547 U.S. at 854, 126 S.Ct. 2193.
Even assuming then that the nature of the cellphone search here implicated a unique privacy concern, see Riley , 573 U.S. at 387-401, 134 S.Ct. 2473, that does not sway the balance of all circumstances here to a state of unreasonableness under the Fourth Amendment. Nor does it override Indiana's robust governmental interests in supervising parolees and preventing recidivism in using a search condition that otherwise significantly diminishes Mr. Wood's privacy expectations such that the warrantless search of his cellphone violated his Fourth Amendment rights.
E. Other Arguments under Riley
To avoid this result under the totality of the circumstances, Mr. Wood argues that Riley applies in full because, once he was placed in custody, he was not violating and no longer in imminent danger of violating his parole conditions such that any subsequent search was not for probationary purposes. ECF 29 at 2-3. Again, the purpose of the search is beside the point of the court's assessment of the totality of the circumstances, see Knights , 534 U.S. at 122, 122 S.Ct. 587, and Indiana courts have not interpreted the operative language of this parole condition in the formalistic manner that Mr. Wood advocates.
Under Indiana law, a parole officer need only reasonably suspect "that the conditions of [parole] are being violated in order for a [parole] search to be reasonable." Fitzgerald v. State , 805 N.E.2d 857, 865 (Ind. Ct. App. 2004). For instance, in Harper , even after the parolee had been arrested, parole officers searched his home and a storage unit without warrants. See Harper , 135 N.E.3d at 966–67, 2019 WL 5588840 at 1-2, 2019 Ind. App. LEXIS 467 at 1-3. Although the searches occurred after arrest, Harper held that under the totality of the circumstances "parole and law enforcement officers had reasonable suspicion to believe that [the parolee], who had actual knowledge of the search terms of his parole conditions, was engaged in criminal activity." Id. at 972, at 6, 2019 Ind. App. LEXIS 467 at 16-17.
The application of the parole condition to instances in which a parolee "was engaged in criminal activity" or in parole violations at the time of the search, see Harper and Fitzgerald , supra , has appeal, as it would defy common sense to interpret the provision as one that deprives parole officers of the right to conduct searches based on reasonable suspicion as soon as a parolee—nonetheless knowing he has violated parole conditions—is taken into custody. To subvert the ability of parole officers post-custody to confirm information that establishes the parole violation would render this provision largely unhelpful, if not effectively meaningless in advancing the state's overwhelming interests. This is particularly so with cellphones when immediate searches without specialized software would nearly always be unsuccessful. Besides which, the language of this parole condition plainly is stated in the present participle: that this parolee is in the status of one violating his parole conditions. The court is not persuaded that Mr. Wood, in missing mandatory parole meetings and possessing drugs, was not in fact "violating" his release conditions within the meaning of this parole term simply because he had then been placed in custody or arrested.
Mr. Wood next argues that he should be classified as an "arrestee" for this analysis because he was "taken into custody" for the non-drug-related parole violation (missing parole meetings) but "arrested" for possession of methamphetamine and paraphernalia. He says Riley should then apply. Mr. Wood cites no authority for this shift in status, and the court can think of no cogent reason why his privacy expectations should be analyzed in this light. A parolee with significantly diminished privacy expectations who has now violated his release conditions, then been placed in custody, and then been arrested for drug possession cannot reasonably expect his privacy rights to have grown more robust. Nor would the Fourth Amendment reasonably countenance that shift toward greater privacy, particularly when the reasons for the parole conditions are to prevent this very risk of recidivism and endangerment to society, not to conceal and thus facilitate it.
The law appears almost to a case to preserve the analysis as one of a parolee. In Collier , 932 F.3d at 1072-73, for instance, a supervised releasee was arrested for violating his release conditions and facilitating prostitution whereupon a supervising official searched his cellphone without a warrant. Later law enforcement procured a warrant to search all his electronic devices at which point the government charged him with conspiracy and sex trafficking. Although he had been arrested, the court did not analyze his privacy expectations as an "arrestee" but instead analyzed them under his classification as an individual under supervised release. See id. The court notes that the search occurred under the guise of the arrest for the same offense that triggered the release violation, but a separate parole (and alleged criminal) offense in the case of Mr. Wood does not a greater privacy expectation create. See also United States v. Johnson , 2019 U.S. Dist. LEXIS 173063, 7-11 (D. Idaho Oct. 4, 2019) (warrantless search of cellphone permitted though individual arrested for multiple supervised release violations and eventually charged with possession of child pornography found on phone); United States v. Fletcher , 2018 WL 1863825, 3-4, 2018 U.S. Dist. LEXIS 65591, 8-9 (S.D. Ohio Apr. 18, 2018) (warrantless search of cellphone permitted though individual arrested for probation violations and eventually charged with possession of child pornography found on phone).
Applying these principles to this case, the search of Mr. Wood's cellphone was reasonable under the Fourth Amendment. Officers also had reasonable suspicion that he was violating his parole conditions by missing mandatory parole meetings and possessing methamphetamine and drug paraphernalia.
There is a dispute whether gang-related material was also found, but the record before the court doesn't clearly establish its presence; nor is it necessary to reach today's result.
Officers conducted a reasonable search (the parole condition's first limitation) and reasonably suspected parole violations (its second proviso). Mr. Wood does not challenge the search of the phone's exterior. Discovering drugs on the phone, finding drug paraphernalia in the house, recalling Mr. Wood's two prior drug-related convictions, encountering a parolee violating his conditions a mere month after release, and appreciating that cellphones are an intricate part of the drug trade today, see, e.g. , United States v. Hathorn , 920 F.3d 982, 985 (5th Cir. 2019) ("Cell phones, computers, and other electronic devices are vital to the modern-day drug trade."), officers reasonably suspected the phone's contents to contain evidence of drug activity. This suspicion rose when Mr. Wood, while in the course of the arrest, kept turning towards his phone, later became upset, and demanded that his phone be turned off immediately while resisting officers. If Mr. Wood were merely concerned about the methamphetamine secreted on the phone's exterior, he would not have directed officers to shut his phone down. Mr. Wood wisely acquiesced in oral argument that the phone could contain evidence of drug deals or trafficking (Tr. at 6). Accessing the phone's data seven days later may have been more intrusive of a search, see Riley , 573 U.S. at 393, 134 S.Ct. 2473, but it remained reasonable given the totality of the circumstances and balance of interests at stake, see Samson , 547 U.S. at 853, 126 S.Ct. 2193 ; White , 781 F.3d at 863.
While Mr. Wood has contested the search's reasonableness, he seemingly has not contested the duration of the seizure (Tr. at 11, 13). The court is convinced nonetheless that the duration of the seizure and search seven days later complied with the Fourth Amendment and his reduced possessory interest as an arrested parolee. See Segura v. United States , 468 U.S. 796, 806, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984) ; United States v. Place , 462 U.S. 696, 703, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983) ; Huart , 735 F.3d at 973 ; United States v. Burgard , 675 F.3d 1029, 1032 (7th Cir. 2012) ; see also Johnson , 875 F.3d at 1276 ; United States v. Conley , 342 F. Supp. 3d 247, 269 (D. Conn. 2018). Being arrested, Mr. Wood was not entitled to his phone, nor does the record reveal that he looked for assurances about its return. See Burgard , 675 F.3d at 1033 (six-day delay between the warrantless seizure of non-parolee defendant's cellphone and the time police secured a search warrant did not render the seizure unreasonable); see also United States v. Sullivan , 797 F.3d 623, 634 (9th Cir. 2015) (government's seizure and retention of parolee's laptop for 21 days before obtaining a search warrant was not an unreasonable seizure under the Fourth Amendment); Johnson , 875 F.3d at 1276 (upholding one-year delay between the seizure of a parolee's phone and the issuance of a warrant); Conley , 342 F. Supp. 3d at 268-70 (upholding 66-day delay in securing warrant for detainee's cell phone).
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Once Investigator Dustin lawfully accessed the cellphone's contents to search for evidence of drug deals or trafficking, he was entitled to seize the images of minor children pursuant to the plain view doctrine. This exception to the Fourth Amendment warrant requirement was articulated in Coolidge v. New Hampshire , 403 U.S. 443, 465, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), and applies when "the initial intrusion that brings the police within plain view of such an article [of incriminating character] is supported, not by a warrant, but by one of the recognized exceptions to the warrant requirement." In such cases, a law enforcement officer has "a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused." Id. at 466, 91 S.Ct. 2022. Here, rather than seize the images and videos under this doctrine, Investigator Dustin provided information to the FBI to procure a search warrant. His decision to do so was reasonable and complied with the Fourth Amendment.
CONCLUSION
In sum, balancing Mr. Wood's reduced expectation of privacy as an Indiana parolee, the sensitivity of cellular data under Riley , the contours of this parole condition under Indiana law, and the overwhelming Indiana interests in supervising its parolees, the court finds that the warrantless search of Mr. Wood's cellphone complied with the Fourth Amendment. The government was entitled to rely on the evidence obtained during the warrantless searches in its application for a search warrant. For these reasons, the court DENIES Mr. Wood's motion to suppress (ECF 18).
SO ORDERED.