November 16, 2015.
from United States District Court for the Western District of
Arkansas - Fayetteville.
United States of America, Plaintiff - Appellee: Dustin S.
Roberts, Assistant U.S. Attorney, U.S. Attorney's Office,
Fort Smith, AR; Benjamin Wulff, Assistant U.S. Attorney, U.S.
Attorney's Office, Texarkana, AR.
Berger, Defendant - Appellant, Pro se, Bruceton Mills, WV.
Alan W. Berger, Defendant - Appellant: Bruce Eddy, Federal
Public Defender, Federal Public Defender's Office,
COLLOTON, GRUENDER, and SHEPHERD, Circuit Judges.
Berger entered a conditional guilty plea to one count of
knowing possession of child pornography in violation of 18
U.S.C. § § 2252A(a)(5)(B) and (b)(2). Berger
appeals the district court's denial of his motion to
suppress, arguing no exception to the Fourth Amendment's
warrant requirement permitted the search of a hard drive
containing child pornography found at his house. We have
jurisdiction under 28 U.S.C. § 1291 and affirm.
2003, Berger pled guilty to using a means of interstate
commerce to persuade a minor to have sex in violation of 18
U.S.C. § 2422(b) in the Southern District of Texas. The
district court sentenced Berger to sixty months imprisonment
and ten years of supervised release. Because the facts
underlying Berger's guilty plea indicated that he used
the internet to have sexual conversations and arrange a
meeting for the purpose of engaging in sexual activities with
an undercover officer posing as a twelve-year-old female, the
district court imposed special conditions of supervision. As
relevant here, one special condition of supervision
prohibited Berger from accessing the internet without prior
written approval from a United States Probation Officer
(" PO" ). The special conditions further prohibited
Berger from possessing " Internet capable software on
any hard drive, disk, floppy disk . . . or any other
electronic storage media" without prior written approval
from the PO. A separate special condition prohibited Berger
from viewing or possessing any depictions of child
pornography. Along with the special conditions of supervised
release, the standard conditions required Berger 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
was released from custody in 2007, and his supervision was
transferred to the Western District of Arkansas in 2008. In
December 2008, the district court revoked Berger's
supervision because he possessed internet capable devices and
downloaded adult pornography and child erotica. The district
court took the matter under advisement for six months, then
reinstated the original conditions of supervised release.
Berger's supervised release period continued without
incident until June 8, 2012 when PO Abby McKinney,
accompanied by two other probation officers, conducted a home
visit at Berger's residence. Berger did not respond
immediately to their announcements, but eventually opened the
door and allowed the officers to enter. PO McKinney explained
to Berger that they were doing a home visit and requested
that he show them inside the home. Berger first showed the
probation officers his front room and kitchen, then guided
them to the backyard, which included a hot tub in plain view.
Without questioning from the officers, Berger casually
mentioned he had recently obtained the hot tub from the
website Craigslist. Berger next showed PO McKinney a spare
room/office with a computer tower and monitor in plain view.
An Xbox gaming system was connected to the computer along
with an internet capable wireless device. PO McKinney was
aware the Xbox could also access the internet.
McKinney then asked Berger if he would consent to a search of
the residence and presented him with a consent to search
form. The form reads as follows:
Consent to Search
United States Probation ...