Circuit vacates condition of supervised release that limited defendant to possessing only one “Internet-capable device,” which the Probation Department could search at any time.

In United States v. Salazar, No. 22-1385-cr (2d Cir. July 6, 2023) (Livingston, Chin, Kahn) (summary order), my colleague Sarah Baumgartel persuaded the Circuit that the District Court committed reversible error by imposing a special condition of supervised release that prohibited the defendant from possessing more than one “personal Internet-capable device” and authorized the Probation Department to monitor all the data on that device at any time and for any reason.

The defendant had pleaded guilty to one count of possessing child pornography. At sentencing, the court imposed 30 months’ imprisonment plus 5 years’ supervised release. One of the conditions of supervised release prohibited the defendant from possessing more than one “personal Internet-capable device” and authorized the Probation Department to search that device at any time  and for any reason.

On appeal, the Circuit vacated this condition. It held that the condition was “neither narrowly tailored nor carefully explained.” First, the “sweeping” condition was not supported by “individualized findings about the nexus between the breadth of the condition, on the one hand, and [the defendant’s’ characteristics and offense conduct, on the other.” Specifically, there was no evidence that the defendant had viewed child pornography outside his home or concealed his use of such materials.

Second, the single-device restriction was not adequately justified. The Court noted that this limitation “would severely restrict [the defendant’s] ability to engage with society while on supervised release,” requiring him to choose to have a smartphone, a personal computer, a “smart” television, or some other Internet-capable device—but only one of them. “Such a limitation,” the Court wrote, “would severely hamper his ability to engage in activities important to re-entry such as applying for jobs, managing his finances, and consulting with counsel.”

Third, the unlimited and invasive monitoring condition was neither “narrowly tailored” nor supported by sufficient justification.

One final note: the Circuit, to avoid unfair surprise and promote clarity,  “urge[s] courts in the Eastern District [of New York] to adjust their practices and disclose proposed special conditions in advance of sentencing as a matter of course.”