United States v. Shove

1

UNITED STATES OF AMERICA, Plaintiff, v. LEONARD JAMES SHOVE, Defendant.

No. 2:23-cr-00195-CDS-BNW

United States District Court, D. Nevada

November 6, 2024

ORDER AND REPORT AND RECOMMENDATION

BRENDA WEKSLER UNITED STATES MAGISTRATE JUDGE

Before the Court is Leonard Shove's Motion to Suppress, which seeks exclusion of evidence found on his cell phone during a search by his probation officer (as well as a later search by the FBI under a resulting search warrant). ECF No. 20. Though privacy interests in a cell phone are weighty given the nature of its contents, Shove's privacy interests are diminished by his status as a supervisee, the serious nature of his offense, and the clarity of his search condition when read in conjunction with other conditions of his supervised release. And Shove's missed polygraph test, his admission to lying about the reason for missing the test, and his admission to possessing an undisclosed device with child sexual abuse material-all of which occurred prior to the cell phone search-gave officers specific reasons to suspect that Shove violated his conditions. Thus, the Government's interests in combating recidivism and facilitating reintegration were heightened.

In balancing the interests against each other, the Government's heightened interests outweigh Shove's diminished privacy interests. As such, the cell phone search was reasonable under the Fourth Amendment. The Court therefore recommends denying Shove's Motion.

I. BACKGROUND

In October 2023, Shove was indicted for receipt and possession of child sexual abuse material.^[1] See generally ECF No. 1. The indictment stemmed from Shove's alleged violation of his conditions of supervised release, as he is subject to lifetime supervision from two prior related convictions. See Id. Shove filed his Motion to Suppress in May 2024, arguing that the search condition of his supervised release did not encompass a search of his cell phone (in which the CSAM was found). ECF No. 20. The Government responded, ECF No. 31, and Shove replied. ECF No. 38.

The Court held an evidentiary hearing on September 26, 2024. ECF No. 56. Weeks later, the Court heard final arguments from counsel. ECF No. 60. The case is currently set to proceed to trial on December 16, 2024. ECF No. 44.

II. EVIDENTIARY HEARING TESTIMONY

At the evidentiary hearing, each party presented evidence and called witnesses to testify. See ECF No. 56. The Court summarizes the pertinent evidence and, where relevant, makes factual findings, credibility findings, and rulings on outstanding objections below.

A. Shove's Criminal History

In 2002, Shove was convicted of possession and receipt of CSAM. ECF No. 59 at 14:2-4. The offense's underlying conduct included attempts to communicate with minors for sexual purposes. Id. at 15:11-15. Shove served time and was placed on supervised release. Id. at 16:11- 13. While on supervision, he was again found to be in possession of CSAM. Id. at 16:15-25. As a result, his supervised release was revoked, and a new case was filed against him. Id. at 16:23- 17:4; Gov't Ex. 3^[2].

Shove served around 150 months on his new case and was placed on lifetime supervision. ECF No. 59 at 17:11-16. His supervision was revoked in 2018 after he was found in possession of an unauthorized phone, which contained CSAM and messages revealing that Shove attempted to meet a minor for purposes of sexual contact. Id. at 19:12-20:5. He served time for that violation and was placed back on lifetime supervision upon release. Id. at 20:11-15; Gov't Ex. 5; Def Ex. B. His supervision began once again on April 13, 2020. Gov't Ex. 8 at 1.

As relevant to this Motion, Shove's conditions include:

SPECIAL CONDITIONS OF SUPERVISION

1. Minor Prohibition - You must not have direct contact with any child you know or reasonably should know to be under the age of 18, including your own children, without the permission of the probation officer. If you do have any direct contact with any child you know or reasonably should know to be under the age of 18. including your own children, without the permission of the probation officer, you must report thiscontact to the probation officer within 24 hours. Direct contact includes written communication, in-person communication, or physical contact Direct contact does not include incidental contact during ordinary daily activities in public places.

2. Search and Seizure - You shall submit to the search of your person, property, residence, or automobile under your control by the probation officer or any other authorized person under the immediate and personal supervision of the probation officer, without a search warrant to ensure compliance with all conditions of release.

3. No Pornography - You must not view or possess any 'visual depiction' (as defined in 18 U.S.C. § 2256). including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of "sexually explicit conduct* (as defined in 18 U.S.C. § 2256).

4. Sex Offender Treatment - You must participate in a sex offense-specific treatment program, and follow the rules and regulations of that program. The probation officer will supervise your participation in the program (provider, location. modality, duration, intensity, etc.).

5. Polygraph Testing - You must submit to periodic polygraph testing at the discretion of the probation officer as a means to ensure that you are in compliance with the requirements of your supervision or treatment program.

6. Computer Search - Monitoring Software - To ensure compliance with the computer monitoring condition, you must allow the probation officer to conduct periodic, unannounced searches of any computers (as defined in 18 U.S.C. § 1030 (e)(1)) subject to computer monitoring These searches shall be conducted for the purposes of determining whether the computer contains any prohibited data prior to installation of the monitoring software, to determine whether the monitoring software is functioning effectively after its installation, and to determine whether there have been attempts to circumvent the monitoring software after its installation. You must warn any other people who use these computers that the computers may be subject to searches pursuant to this condition.

Gov't Ex. 5 at 5; Def. Ex. B at 5. He also signed a Computer Monitoring Agreement informing him that any information gathered by monitoring software installed on his devices could be used against him. Gov't Ex. 6.

B. Pre-Search Investigation

U.S. Probation Officer Bryce Stark began supervising Shove in 2020 or 2021. ECF No. 59 at 70:12-18. In June 2023, P.O. Stark searched a cell phone that Shove was not authorized to have and found CSAM along with adult pornography. Id. at 11:15-12:2. Stark filed a petition seeking to revoke Shove's supervised release based on his findings. Id. at 11:15-17.

Several factors contributed to P.O. Stark's decision to invoke Shove's search condition and search his undisclosed phone.^[3] Id. at 12:14-13:17. To begin, Shove's criminal history (as described above) concerned him, as did the nature of his convictions. Id. at 13:15-14:1.

Issues also arose throughout Shove's supervision. Id. at 25:5-8. For example, in October 2020, monitoring software detected that Shove accessed adult pornography on his cell phone. Id. at 30:4-31:14. Around the same time, Shove installed an antivirus program on his phone that impeded the monitoring system from capturing screenshots. Id. at 31:1-3. In September 2021, P.O. Stark discovered that Shove ordered sex toys-in violation of his sex offender treatment rules-while consensually reviewing his phone. Id. at 26:1-4. In June 2022, P.O. Stark learned that Shove installed an app on his phone that allowed him to view pornography without being detected by the computer monitoring software. Id. at 26:20-28:21. When the U.S. Probation Office later switched monitoring companies in March 2023, Shove failed to install the new system despite being instructed to do so. Id. at 32:4-33:6. A month later, P.O. Stark searched Shove's phone and noticed that he had deleted certain messages. Id. at 34:9-35:13. And at other times when P.O. Stark visited Shove's apartment (which was small), it would take Shove two to five minutes to answer the door. Id. at 38:10-25. Based on the lag time, P.O. Stark was concerned that Shove may have been hiding items that would otherwise be in plain view. Id. at 39:3-5.

On May 23, 2023, Shove called P.O. Stark and told him that he could not attend his polygraph examination that day because he had diarrhea. Id. at 35:19-22. When P.O. Stark went to Shove's apartment to question him about his absence, Shove admitted that he was afraid to take the test. Id. at 36:1-11. He explained that during previous polygraph tests, examiners told him that he did not do well, or that he failed portions related to contact with minors. Id. at 36:15-18. Concerned that Shove was trying to conceal something, P.O. Stark asked whether Shove had any undisclosed devices, which Shove denied. Id. at 37:4-38:1.

P.O. Stark scheduled a make-up test for the following day, and Rick Jordan conducted the polygraph exam. Id. at 38:2-6, 39:11-12. Upon receiving the results, P.O. Stark was concerned because Shove had a “significant reaction” when asked if he used or possessed an electronic device that was not known to U.S. Probation.^[4] Id. at 46:1-5. Based on Shove's significant reaction-in conjunction with his criminal history, past violations, and other issues on supervision-P.O. Stark discussed and received authorization from his supervisor, Joy Gabonia, to conduct a search. Id. at 50:1-51:11.

On June 9, 2023, P.O. Gabonia prepared a search plan. Id. at 72...