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United States v. McGill

United States District Court, N.D. Illinois, Eastern Division

November 7, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
MARK McGILL, Defendant.

          MEMORANDUM OPINION AND ORDER

          HON, VIRGINIA M. KENDALL UNITED STATES DISTRICT JUDGE

         In 2012, a federal jury convicted Defendant Mark McGill possessing and distributing child pornography. He has completed his prison sentence on those charges but remains under this Court's supervised release which contain a number of restrictions regarding his computer and cellphone use. United States v. McGill, 09 CR 770 (J. Gottschall)[1]. On February 3, 2017, during a home visit, McGill's probation officer seized a cellphone that he knew to be unmonitored by the probation office, provided the phone to the United States Attorneys' Office which then obtained a search warrant of the phone. Upon further analysis by the FBI, the prosecutor recovered pornographic images of children on the cellphone. On March 7, 2017, a federal grand jury indicted McGill on one count of possession of child pornography based on an image of child pornography found on the cellphone. McGill now moves to suppress the cellphone. [23]. Specifically, McGill disputes whether the phone was actually operable when it was seized arguing that if it was not operable, it was not in violation of the terms of his supervised release and was therefore improperly seized by the Probation Officer. Because the parties dispute material facts, a factual hearing is required to resolve the pending motion.

         BACKGROUND

         After an appeal vacating his original sentence, another district court sentenced McGill on one count of possession of child pornography to 65 months' imprisonment and 84 months' supervised release. See 09 CR 770, Dkt. 178; Dkt. 23 at 1. He began supervised release on November 21, 2014 and the supervision is scheduled to expire on November 20, 2021. (Dkt. 40 at 2.) Among the conditions of supervised release, McGill was required to “permit a probation officer to visit him … at any time at home or elsewhere and … permit confiscation of any contraband observed in plain view of the probation officer.” (09 CR 770, Dkt. 178; Dkt. 23 at 1- 2.) Conditions of release included that the Defendant shall not commit another federal, state, or local crime; Defendant shall permit a probation officer to visit him at any time at home or elsewhere and shall permit confiscation of any contraband observed in plain view of the probation officer. (Dkt. 23 at 1-2.) Special conditions included monitoring McGill's internet use:

Defendant shall comply with the requirements of the Computer and Internet Monitoring Program as administered by the United States Probation Office. The defendant shall consent to the installation of computer monitoring software on all identified computers to which defendant has access. The software may restrict and/or record any and all activity on the computer, including the capture of keystrokes, application of information, Internet use history, email correspondence, and chat conversations. A notice will be placed on the computer at the time of installation to warn others of the existence of the monitoring software. The defendant shall not remove, tamper with, reverse engineer, or in any way circumvent the software. The costs of the monitoring shall be paid by the defendant.

(Dkt. 40 at 3.) The sentencing court declined to impose a more stringent condition[2] that prohibited the possession of a computer or any other device with access to the internet without prior permission of the probation officer. (Dkt. 23 at 6.) The court also declined to impose the condition recommended under 18 U.S.C. § 3583(d)(3) which authorizes a search of person, property, computer and other items with “reasonable suspicion concerning a violation of a condition of supervised release or unlawful conduct.” (Dkt. 23 at 6.)

         McGill also has a history of violating the conditions of his supervised release. On February 23, 2015, Probation Officer Hence Williams (“H.W.”) discovered that McGill had an unmonitored cellphone with internet access. (Dkt. 40 at 4.) The Probation Officer instructed McGill to discard the phone as soon as possible and showed the defendant phones that he could purchase without internet access. Id. Subsequently, during a weekly review under the Computer and Internet Monitoring condition, the Probation Office saw that McGill had viewed sexually stimulating videos and images of minors on the monitored cellphone. Id. McGill admitted that he violated the terms of his supervised release and agreed to an additional condition of supervised release, which prohibited him from possessing or having under his control any pornographic, sexually oriented, or sexually stimulating materials. (9 CR 770) (Dkt. 199) (J. Gotschall). Next, on June 17, 2016, McGill failed a polygraph because deception was detected when he answered “no” to the question of whether he had sexual contact with a minor. (Dkt. 40 at 5.)

         On February 3, 2017, the Probation Officer visited McGill. (Dkt. 38-1, McGill Affidavit at ¶ 5.) The visit was unscheduled but McGill was expecting a visit around that date. (Id.) H.W. walked through McGill's home and he observed two cellphones in the bedroom. (Id. at ¶¶ 6, 27; Dkt. 40 at 5.[3]) The Probation Officer recognized a black cellphone that was subject to monitoring, but asked McGill about another white cellphone. (Dkt. 40 at 5-6.) McGill told him that it was his old cellphone that no longer worked. (Dkt. 38-1 at ¶ 8.) He further explained that he only used the phone to charge the battery to the black monitored phone. (Id. at ¶ 8.) McGill showed the PO that the battery that had been charging in the white phone also fit the black phone. (Id.) Then, at the PO's request, McGill put the battery back into the white phone and handed it to H.W. (Id. at ¶ 8.)

         The parties dispute what occurred next. According to McGill, when the Probation Officer tried to turn on the white phone, he was unable to do so, confirming what he had represented to H.W. about the phone being broken. (Dkt. 38-1 at ¶ 10.) But according to the PO, when he asked McGill about the contents of the white phone, McGill was distressed and told the PO. that “[t]here are things on that phone that will send me back to prison.” (Dkt. 40 at 6.) The Probation Officer also reported that McGill stated “I just can't control myself with these devices.” Id. Next, the PO turned on the cellphone and placed it in airplane mode, during which he observed a young boy's face as the background wallpaper of the phone. (Dkt. 40 at 7.) McGill admits that when the PO asked if he was going to find anything on the phone that McGill responded he would. (Dkt. 38-1 at ¶ 12.) McGill denies, however, that he made the other statements the PO alleges that he made and specifically denies admitting that there was child pornography on the phone. (Id.)

         After seizing the phone, the Probation Officer turned it over to the FBI. (Dkt. 23 at 2.) A subsequent search of the white cellphone revealed images of child pornography. (Id. at 2.) There is no information in the record about whether the phone was operational upon its arrival at the FBI or if the FBI determined the last time the phone had been accessed prior to the FBI's custody of it. As a result of the seizure, on March 7, 2017, a federal grand jury returned a one-count indictment charging McGill with possessing a device which contained an image of child pornography. (Id. at 2-3.)

         On March 29, 2017, McGill's counsel filed a motion for disclosure of manuals or directives governing the administration and implementation of Probation's “Computer and Internet Monitoring Program” in order to determine whether such directives spoke to the propriety of the seizure. (Dkt. 23 at 3.) The government and Probation opposed the motion and further stated that there were no special manuals or directives and therefore the motion was denied as moot on that basis. (Id. at 3.)

         LEGAL STANDARD

         Fourth Amendment claims present two distinct questions: (1) whether a search or seizure actually occurred; and (2) if so, whether the search or seizure was unreasonable. Carlson v. Bukovic, 621 F.3d 610, 618 (7th Cir. 2010). In Knights, the Supreme Court examined the reasonableness of a search for investigative purposes of a probationer by a law enforcement officer. Id. at 115-16. “[T]he reasonableness of a search is determined ‘by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.'” Id. at 118-19 (quoting Wyoming v. Houghton, 526 U.S. 295, 300 (1999)). The government has a considerable interest in supervising probationers. See Id. at 120 ((“[T]he very assumption of the institution of probation is that the probationer is more likely than the ordinary citizen to violate the law.”) (citations and internal quotations omitted)). Unlike the ordinary criminal, “probationers have even more of an incentive to conceal their criminal activities and quickly dispose of incriminating evidence” because they are aware that at a probation revocation hearing, proof beyond a reasonable doubt and the right to a jury trial do not apply. Id. (citations omitted). “[T]he balance of these considerations require[d] no more than reasonable suspicion to conduct a search of th[e] probationer's house.” Id. at 121. Reasonable suspicion consists of “a sufficiently high probability that criminal conduct is occurring to make the intrusion on the individual's privacy interest reasonable.” Id. at 592 (citation omitted).

         When presented with a motion to suppress, district courts are required to conduct evidentiary hearings when a substantial claim is presented and there are disputed issues of material fact that will affect the outcome of the motion. United States v. Curlin, 638 F.3d 562, 564 (7th Cir. 2011) (citing United States v. McGaughy, 485 F.3d 965, 969 (7th Cir. 2007)). In order to be granted an evidentiary hearing, the defendant's allegations and moving papers must be “sufficiently definite, specific, non-conjectural and detailed.” Id. The defendant bears the burden of both identifying a definite disputed factual issue and demonstrating its ...


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