NOT RECOMMENDED FOR PUBLICATION File Name: 21a0184n.06
Nos. 20-5866/5868
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, ) FILED ) Apr 13, 2021 Plaintiff-Appellee, ) DEBORAH S. HUNT, Clerk ) v. ) ON APPEAL FROM THE ) UNITED STATES DISTRICT CHARLES SAMUEL POPE, ) COURT FOR THE WESTERN ) DISTRICT OF KENTUCKY Defendant-Appellant. ) )
BEFORE: ROGERS, BUSH, and LARSEN, Circuit Judges.
JOHN K. BUSH, Circuit Judge. Charles Pope appeals his conviction for possession of
child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B) and § 2252A(b)(2), and the
revocation of his supervised release from a prior conviction for receipt of child pornography. Pope
claims that the district court erred in denying his motion to suppress evidence of child pornography
found in electronic devices discovered during searches of Pope’s home and car, arguing that his
probation officer lacked reasonable suspicion to conduct the searches. For the following reasons,
we affirm both Pope’s conviction and the revocation order.
I.
Pope was serving a life term of supervised release after finishing his prison sentence for
receiving child pornography. The terms of Pope’s supervised release provided, in relevant part,
that a probation officer may search his “house, residence, vehicle, . . . computers . . . , other
electronic communications or data storage devices or media . . . only when reasonable suspicion Nos. 20-5866/5868, United States v. Pope
exists that the defendant has violated a condition of their release and that the areas to be searched
may contain evidence of this violation.” Another condition subjected Pope “to Polygraph,
Computer Voice Stress Analysis, or other similar device to obtain information necessary for
supervision, case monitoring, and treatment at the discretion and direction of the U.S. Probation
Officer” as well as to “maintenance exams thereafter.” That condition further specified that “[n]o
violation proceedings will arise solely on a defendant’s failure to pass an examination.” Finally,
Pope was prohibited from possessing or using any devices or computers capable of accessing the
Internet without his probation officer’s prior written approval.
In 2016, Pope requested a modification of his supervised-release conditions to allow him
to have a computer, monitored by the probation office, and a video-gaming system. After the
district court initially denied his request for a computer, he continued to ask his probation officer
and treatment provider for Internet access. In 2017, the district court agreed to modify Pope’s
supervised-release conditions to allow him to access a computer, subject to monitoring by the
probation office. Soon after Pope was permitted such access, his probation officer noticed certain
irregularities in his pattern of computer use. For instance, after several reports indicated that Pope
used his authorized computer daily, he abruptly ceased using the computer entirely for a period of
six days. Pope also sent an email to his probation officer that appeared to have been sent from an
unapproved smartphone. On a separate occasion, the probation officer observed a screenshot of
Pope’s bank account indicating a purchase at GameStop.
As part of Pope’s supervised-release conditions, Pope’s probation officer visited him at his
home each month. The officer conducted such a visit on December 13, 2017, while Pope was
living with his mother in Bowling Green, Kentucky. Pope’s mother answered the door for the
probation officer, who walked into the home through the kitchen, as usual. As he passed into the
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living room, the probation officer witnessed Pope, wet and clad in only unbuttoned jeans, run into
the living room from the back of the house. The probation officer testified that Pope “immediately
picked up what appeared to be a gaming controller,” placed it into a storage cube, and “slammed”
the lid shut.
“Seem[ing] kind of excited,” according to his probation officer, Pope accompanied the
officer on their typical walk-through of the home. The probation officer then asked about Pope’s
behavior when he first entered the living room, to which Pope responded, “I don’t know what
you’re talking about.” When asked what was in the storage cube, Pope replied, “nothing.” The
probation officer then asked him “if he would open the top” of the storage cube. Pope “opened it
just a little bit and closed it.” The probation officer then asked, “Will you take the top off, so I can
see in it?” Pope removed the top, revealing a gaming controller and about four video games for a
PlayStation 4.
Because a PlayStation 4 gaming console is capable of connecting to the Internet and was
not permitted under the terms of Pope’s supervised release, the probation officer wondered why
Pope would have a controller and multiple PlayStation 4 games in his possession. The officer
asked Pope whether he was trying to hide something; Pope answered that he thought the games
and the controller belonged to his niece and nephew and that they had been there since before his
release from prison. The probation officer then photographed each of the games and, upon
checking their release dates, discovered that at least one of the games had been released after
Pope’s term of imprisonment.
The officer reported the incident to his supervisor and his special offender specialist. Pope
was due for his six-month Computer Voice Stress Analysis (CVSA) exam in January, so the
officers decided to postpone a search and instead use the exam to inquire about Pope’s possession
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of Internet-capable devices. If Pope failed his exam, a search team, including some members from
outside Bowling Green, would be waiting “on standby.” The probation officer testified that,
although he believed he had reasonable suspicion to search Pope’s house after the home visit,
waiting until after the CVSA exam would provide “more than enough reasonable suspicion” to
conduct such a search.
On January 30, 2018, Pope took the CVSA exam. The administering officer, along with
other certified examiners and the computer program’s own algorithm, found that Pope had been
“deceptive” when he responded “no” to whether he had viewed child pornography or accessed the
Internet through an unauthorized device or gaming device since his last exam.
After Pope failed the exam, officers immediately began searches of his vehicle and
residence. Officers found a cell phone in Pope’s car outside the probation office. Pope said the
phone belonged to his mother but that he had it to use the Internet. Meanwhile, the rest of the
search team, which had been waiting on standby during the exam, gathered at Pope’s home, where
they found multiple Internet-capable devices stowed between the mattress and box springs of
Pope’s bed. Those devices were not registered with or being monitored by the probation office,
and a forensic search later revealed that at least two of them contained child pornography.
On the same day as the searches, Pope’s probation officer prepared a violation report and
petition for warrant on supervised release, relying on the failed CVSA exam and the devices found
during the searches as evidence of Pope’s violations of his supervised-release conditions.
A grand jury charged Pope with possession of child pornography, in violation of 18 U.S.C.
§ 2252A(a)(5)(B) and § 2252A(b)(2). Pope filed a motion to suppress evidence stemming from
the warrantless searches of his car and home, and the government filed a response arguing that the
officers had reasonable suspicion to conduct the searches, largely based on the CVSA exam results.
4 Nos. 20-5866/5868, United States v. Pope
The district court referred the motion to suppress to a magistrate judge. After a suppression
hearing, the magistrate judge recommended denying Pope’s motion to suppress based on the
supervised-release condition requiring him to submit to CVSA testing. The district court adopted
the report and recommendation and denied the motion to suppress. United States v. Pope, No.
1:18-CR-00017-GNS-HBB, 2019 WL 5068663, at *1 (W.D. Ky. Oct. 9, 2019). The district court
agreed with the magistrate judge that Pope “essentially waived th[e] challenge” that CVSA exam
results cannot provide reasonable suspicion for a search because he failed to object to the CVSA-
exam condition in his supervised release terms. Id. at *2. It also held, in the alternative, that the
December 13, 2017 home visit provided reasonable suspicion for the search of Pope’s home—but
not of his car—even without the CVSA result. Id. at *2–4, *4 n.3.
Pope then pleaded guilty to possession of child pornography, in violation of 18 U.S.C.
§ 2252A(a)(5)(B) and § 2252A(b)(2), reserving the right to appeal the denial of his motion to
suppress. He was sentenced to the statutory mandatory minimum, 120 months’ imprisonment, to
be followed by a lifetime of supervised release.
Pope’s probation officer later updated the violation report and petition for warrant on
supervised release after Pope pleaded guilty to possession of child pornography. Pope stipulated
to the violations described in the petition. The district court revoked Pope’s prior life term of
supervised release and ordered that he be imprisoned for a term of 10 months, followed by a new
life term of supervised release, to run concurrently with his sentence for his second conviction.
Pope now appeals his conviction for possession of child pornography and the revocation
of his supervised release, challenging only the denial of his motion to suppress.
5 Nos. 20-5866/5868, United States v. Pope
II.
On an appeal from a denial of a motion to suppress, we review de novo a district court’s
legal determinations and consider its factual findings for clear error. United States v. Fletcher,
978 F.3d 1009, 1014 (6th Cir. 2020). Whether a search was supported by reasonable suspicion
“is a mixed question of law and fact that we review de novo.” United States v. Lee, 793 F.3d 680,
684 (6th Cir. 2015).
III.
The Fourth Amendment protects the “right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV.
Generally, officers must obtain a judicial warrant to conduct a reasonable search. Riley v.
California, 573 U.S. 373, 382 (2015) (citation omitted). But the Fourth Amendment’s
requirements are often more easily satisfied in the context of searching a probationer’s person or
property. Fletcher, 978 F.3d at 1015; United States v. Budzynski, 981 F.3d 499, 504 (2020). And
“those on supervised release have an even further reduced expectation of privacy because
supervised release ‘is a more severe punishment than parole and probation.’” Fletcher, 978 F.3d
at 1019 (quoting United States v. Sulik, 807 F. App’x 489, 493 (6th Cir. 2020)); see also United
States v. Reyes, 283 F.3d 446, 461–62 (2d Cir. 2002) (explaining that Fourth Amendment
principles in the parole and probation context also apply to supervised releasees).
Here, a condition of Pope’s supervised release provided that reasonable suspicion would
provide sufficient grounds to conduct a search. A releasee’s supervised-release conditions may
authorize a search based on suspicion of nothing more than a violation of the conditions themselves
and need not be based on a violation of a generally applicable criminal statute. See United States
v. Herndon, 501 F.3d 683, 689 (6th Cir. 2007) (explaining that “a probationer’s violation of the
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terms of probation is comparable to his violation of a criminal statute”). Neither Pope nor the
government contests that reasonable suspicion is the relevant standard here. Furthermore, under
the totality-of-the-circumstances balancing prescribed by United States v. Knights, an officer needs
only reasonable suspicion to search a probationer’s house, particularly where the terms of release
include a search condition requiring only reasonable suspicion, and a person on supervised release
has no greater privacy interest than a probationer. 534 U.S. 112, 118, 121 (2001); Herndon, 501
F.3d at 691; see Fletcher, 978 F.3d at 1019. So no more than reasonable suspicion is required
here.
A. THE CVSA CONDITION
Pope argues that the CVSA results provided the key basis for searching Pope’s home and
car and that because those results were unreliable, they could not provide reasonable suspicion.
Pope also contests the district court’s holding that he waived his challenge to the CVSA exam’s
reliability by failing to object to the condition when it was imposed. He argues not only that, if
valid, the CVSA condition did not provide that a CVSA exam could provide reasonable suspicion
or any other basis to search, but also that the CVSA condition itself is invalid because it was
imposed while he was in prison and, therefore, unable to object in court with the help of counsel.
Finally, Pope argues that the CVSA condition is vague. In response, the government says that the
CVSA exam served merely as “a supervisory tool” that was “not necessary to the reasonable-
suspicion calculus.” We need not address Pope’s arguments concerning the validity and scope of
the CVSA condition nor his arguments regarding the reliability of the CVSA exam results because
we affirm on the district court’s alternative holding that the home visit on December 13 provided
reasonable suspicion to conduct the search of Pope’s home.
7 Nos. 20-5866/5868, United States v. Pope
B. SEARCH OF THE HOME
Pope argues that the evidence gleaned from the December 13 home visit cannot provide
sufficient support for reasonable suspicion, and even if it could, that evidence was stale by the time
of the search around six weeks later. We disagree.
To determine whether the officers had reasonable suspicion to search Pope’s home and car,
we examine “the totality of the circumstances . . . to see whether [his probation officer] ha[d] a
particularized and objective basis for suspecting legal wrongdoing.” Herndon, 501 F.3d at 691
(quoting United States v. Arvizu, 534 U.S. 266, 273 (2002)). Reasonable suspicion requires more
than an “inarticulate hunch,” Terry v. Ohio, 392 U.S. 1, 22 (1968), but less evidence than what is
necessary for either a probable-cause or preponderance-of-the-evidence standard, Herndon, 501
F.3d at 691. The possibility of an innocent explanation for a supervised releasee’s conduct does
not undermine the government’s ability to meet such a low bar. United States v. Belakhdhar, 924
F.3d 925, 928 (6th Cir. 2019).
Here, the totality of circumstances easily provided officers the reasonable suspicion
necessary to search Pope’s home. Pope’s persistent requests for Internet access, the sudden gap in
usage of his authorized computer, the email likely sent from a smartphone, and the GameStop
purchase on his bank statement formed the backdrop for the home visit on December 13, 2017.
Indeed, we have held that a probationer’s mere “mention of Internet usage in the pursuit of
employment,” even where a probation officer “could have elicited further clarifying information”
to alleviate the suspicion but did not do so, provided reasonable suspicion to conduct a search.
Herndon, 501 F.3d at 692.
And the home visit itself provided sufficient evidence to prompt the probation officer to
reasonably suspect that Pope had violated the terms of his supervised release. Pope’s running into
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the living room, wet and wearing only unbuttoned jeans, to quickly put video games and a gaming
controller out of sight upon his probation officer’s arrival suggested that Pope was eager to hide
something from him. The probation officer testified that Pope appeared “kind of excited” during
the walk-through of the home. Moreover, when the officer inquired about Pope’s peculiar
behavior, Pope feigned ignorance. Nervousness and “elusive behavior,” at least when
accompanied by other evidence, tend to support a finding of reasonable suspicion. United States
v. Pacheco, 841 F.3d 384, 393 (6th Cir. 2016).
Upon discovering the game controller and the video games in the storage cube, it was
reasonable for Pope’s probation officer to infer that Pope had some unauthorized means of
accessing the Internet in order to use the game controller and games. Thus, Pope’s point that his
probation officer did not find an Internet-capable device at that time is inapposite—the officer
needed only articulable facts supporting reasonable suspicion of a violation, not direct evidence of
the violation itself. See Northrop v. Trippett, 265 F.3d 372, 381 (6th Cir. 2001). And his
contention that the controller and games could have remained after the removal of the PlayStation
4 console or that they could have belonged to other household members is belied not only by his
apparent zeal to hide the controller and games, but also by the fact that at least one of the games
had been released after Pope left prison, contradicting Pope’s attempted explanation. Moreover,
the possible existence of an innocent explanation for Pope’s unusual behavior and the presence of
the video games and controller cannot prevent the government from meeting its light burden in the
reasonable-suspicion context. See Belakhdhar, 924 F.3d at 928.
Pope asserts that we should not consider the home visit as part of the reasonable-suspicion
analysis because the CVSA exam results really precipitated the search. He points to the fact that
the game controller and games were not mentioned in the Petition for Warrant on Probation and
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Supervised Release of January 30, 2018. That argument is meritless. First, the officer’s
explanation in the petition was not an affidavit in support of a warrant to search, but rather a post
hoc description of the events leading to the search to explain the basis for the requested revocation.
Second, reasonable suspicion here is based on what a reasonable officer could rely on, rather than
the officers’ subjective motivations. See Knights, 534 U.S. at 122 (citing Whren v. United States,
517 U.S. 806, 813 (1996)).
Pope next argues that even if the home visit provided enough evidence for reasonable
suspicion, that evidence was stale at the time of the search six weeks later. We typically inquire
into the staleness of evidence when determining whether a warrant is supported by probable cause.
See United States v. Hython, 443 F.3d 480, 485 (6th Cir. 2006). In that context and without relying
on an “arbitrary time limitation,” United States v. Greene, 250 F.3d 471, 480–81 (6th Cir. 2001)
(quotation omitted), we examine four factors to determine whether there exist “facts so closely
related to the time of the issue of the warrant as to justify a finding of probable cause at that time,”
Hython, 443 F.3d at 485 (quoting Sgro v. United States, 187 U.S. 206, 210 (1932)). Those factors
can be used in the reasonable-suspicion context. See, e.g., United States v. Sandridge, 385 F.3d
1032, 1036 (6th Cir. 2004) (analyzing whether evidence was stale for the purpose of reasonable
suspicion); United States v. Payne, 181 F.3d 781, 790 (6th Cir. 1999) (same).
First, we consider the character of the crime—in particular, whether it is “fleeting” or
continuous. United States v. Frechette, 583 F.3d 374, 378 (6th Cir. 2009). Pope asserts that the
relevant crime here is no crime at all because the possession of a gaming controller and video
games neither is a crime nor suggests involvement in a crime. But the violation of a supervised-
release condition—here, suspected use of an Internet-capable device—is “comparable to [a]
violation of a criminal statute.” Herndon, 501 F.3d at 689 (stating so in the probation context).
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And Pope’s continued requests for Internet access, the bank account statement, the possible
smartphone email, and the gap in his Internet usage on an authorized device suggest that his use
of unauthorized Internet-capable devices was ongoing.
Second, we ask whether the suspected criminal is “nomadic or entrenched.” Frechette,
583 F.3d at 378 (quotation omitted). Pope lived in the same home during the six weeks between
the home visit and the search—the fact that his mother also lived there does not affect the analysis.
Furthermore, under his supervised-release conditions, he could not move without his probation
officer’s approval.
Third, we look to whether the “thing to be seized” is “perishable and easily transferrable
or of enduring utility to its holder.” Id. at 378 (quotation omitted). Unlike drugs, an Internet-
capable device is not easily consumable or perishable, but rather has “enduring” value to its owner.
See id.
Fourth and finally, we consider the nature of the “place to be searched.” Id. at 378
(quotation omitted). We have held that a suspect’s residence is a “secure operational base” rather
than a “mere criminal forum of convenience” in the context of child pornography. United States
v. Elbe, 774 F.3d 885, 890–91 (6th Cir. 2014). So too here. Even if the relevant crime here is the
violation of supervised-release conditions, Pope’s home would not be a place of
“mere . . . convenience” for his use of Internet-capable devices, but rather exactly where he would
be most likely and best situated to use such devices. Id. at 890.
Based on the foregoing factors, we hold that the evidence from the home visit was not stale
at the time of the search. Thus, the officers’ search of Pope’s home was supported by reasonable
suspicion.
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Because the factual basis for Pope’s plea agreement relied only on the devices found in
Pope’s home, we affirm Pope’s conviction solely on the basis that reasonable suspicion supported
the home search.1
IV.
Pope also appeals the district court’s order revoking his supervised release. But he makes
no independent arguments regarding the revocation order, stating only that the revocation order
must also be vacated if we determine that the district court should have granted his motion to
suppress. Because we see no error in the district court’s denial of his motion to suppress as to the
search of Pope’s home, we affirm the district court’s order revoking his supervised release.
V.
Accordingly, we affirm Pope’s conviction and the district court’s order revoking his term
of supervised release.
1 The district court held that the reasonable suspicion stemming from the December 13 home visit supported only the search of Pope’s home, not his car. Pope, 2019 WL 5068663, at *4 n.3 (“This rationale cannot apply to the search of Pope’s car, however, because discovery of the PS4 games and controller in the home would not suggest that Pope had an unauthorized device in his car.”). As previously noted, the government does not argue that the CVSA exam results contributed to the reasonable suspicion underlying the searches, but instead argues that the CVSA exam was simply a supervision tool. Because the government does not contest Pope’s argument that the CVSA exam results did not provide reasonable suspicion for the car search, the government does not defend the district court’s ruling that upheld the car search on the CVSA ground. Also, the government has not challenged on this appeal the district court’s ruling that the December 13 home visit did not justify the car search. The government therefore has not argued that reasonable suspicion existed for the car search. But, as discussed, Pope’s conviction did not depend on any evidence obtained from the car search.