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November 25, 2015

Notable Ninth Circuit panel squabble over computer-search supervised release condition

Yesterday, a split Ninth Circuit panel rejected a defendant's claim that a computer-search condition in his supervised release terms was clearly unreasonable.  The majority opinion in US v. Bare, No. 14-10475 (9th Cir. Nov. 24, 2015) (available here), found adequate the government's contention that, since "Bare kept paper records of his illicit firearms pawn business," if officers were permitted to search "only paper records — but not computers — [it] might enable Bare to evade discovery of recidivist activity by switching his records into an electronic format."  Judge Kozinski dissent starts this way:

Persons on supervised release may have diminished expectations of privacy, but they have privacy rights nonetheless. Moreover, Congress has instructed us to adopt conditions of supervised release that impose “no greater deprivation of libertythan is reasonablynecessary” to achieve the goals of supervised release. 18 U.S.C. § 3583(d)(2).  The majority today disregards this command by allowing probation officers to search defendant’s computer at anytime, for any reason or no reason, even though defendant did not use a computer to carry out his crime, and (so far as we know) did not even own a computer when he committed the offense.

The majority’s rationale, that defendant’s crime could be committed with the help of a computer, is no limitation at all.  Pretty much any federal crime can be committed by using a computer in some way — to maintain records, to case the premises using Google Street View or to track down accomplices, methods and supplies necessary for committing the crime.  If a hypothesis about how the crime might have been committed is a sufficient justification for imposing a supervised release condition, then any condition can be justified by supposing that the crime could be committed in a way that’s different from the method employed by the defendant.  I cannot subscribe to such a broad and amorphous standard.

November 25, 2015 at 05:56 PM | Permalink

Comments

Hmmm.

If I THINK threatening thoughts about a judge then type about them „ then does the government have the right to question me , or search my computer , or BOTH ?

Posted by: Docile Jim Brady „ the Nemo Me ☺ Impune Lacessit guy in Oregon ‼ | Nov 26, 2015 3:30:51 AM


Slowly and surely we are losing more and more liberty. A condition here, a minor reform there, often an original prosecutorial legal interpretation, SO laws because, well just because of a lying SG and a swallowing USSC, LE union contracts that are binding until the next election cycle (into perpetuity), and pretty soon you are talking real tyranny.

SAFETY is NOT the primary function of a government espousing to represent a free society. A tyrannical dictatorship can keep you just as safe as our government pretenders, and at much less capital costs.

Happy Thanksgiving!

Posted by: albeed | Nov 26, 2015 12:31:32 PM

DJB: The latest Supreme Court thinking on that subject. Go ahead, threaten away, it says.

https://en.wikipedia.org/wiki/Elonis_v._United_States

Posted by: Supremacy Claus | Nov 27, 2015 8:12:14 PM

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