Tuesday, February 4th, 2014

Defendant’s Consent to Computer Monitoring Was Fatal to Motion to Suppress

United States v. Kelly, No. 12-4185-cr (2d Cir. Feb. 4, 2014) (Walker, Livingston, and Chin) (summary order), available here

Kelly was originally arrested for failing to register as a sex offender and for illegally possessing firearms. He obtained bail after agreeing to a special condition of pretrial release that authorized the Probation Office to monitor his computers. Unfortunately for Kelly, the probation officer, upon receiving permission from the Magistrate Judge, inspected Kelly’s computer before Kelly was actually released from detention. During that inspection, the officer discovered child pornography on Kelly’s computer, resulting in additional charges against Kelly for receiving and possessing child pornography.
On appeal, the defendant argued that the search of his computer — before his physical release from detention — was beyond the scope of his consent. But the Circuit disagreed. It held that the district court did not “clearly err” in finding that the search of the computer was within the scope of Kelly’s consent to the conditions of pretrial release. In the Court’s words, “Taken together, Kelly’s assent to the written pretrial release conditions and his statements at the detention hearing can permissibly be read to have permitted the probation officer’s inspection of Kelly’s computer before his actual release from pretrial detention.” Accordingly, the district court properly denied his motion to suppress. 
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