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United States v. Berger

United States Court of Appeals, Eighth Circuit

May 26, 2016

United States of America, Plaintiff - Appellee,
v.
Alan W. Berger, Defendant - Appellant

         Submitted November 16, 2015.

          Appeal from United States District Court for the Western District of Arkansas - Fayetteville.

         For 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.

         Alan W. Berger, Defendant - Appellant, Pro se, Bruceton Mills, WV.

         For Alan W. Berger, Defendant - Appellant: Bruce Eddy, Federal Public Defender, Federal Public Defender's Office, Fayetteville, AR.

         Before COLLOTON, GRUENDER, and SHEPHERD, Circuit Judges.

          OPINION

         SHEPHERD, Circuit Judge.

         Alan 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[1] 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.

         In 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 officer."

         Berger 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.

         PO 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
Offender/Defendant
United States Probation ...

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