United States v. Desmond Hardesty

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 12, 2019
• Docket: 18-30173
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 12 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-30173

Plaintiff-Appellee, D.C. No. 1:17-cr-00095-SPW-1 v.

DESMOND DIMETRIUS HARDESTY, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the District of Montana Susan P. Watters, District Judge, Presiding

Submitted July 10, 2019** Portland, Oregon

Before: FERNANDEZ, GRABER, and OWENS, Circuit Judges.

Desmond Dimetrius Hardesty appeals from his conviction for receipt of

child pornography in violation of 18 U.S.C. § 2252(a)(2). We have jurisdiction

under 28 U.S.C. § 1291. We affirm.

Hardesty argues that the district court erred in denying his motion to

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). suppress evidence collected during a second warrantless search of his home. “We

review de novo a district court’s denial of a motion to suppress, reviewing for clear

error the district court’s underlying factual findings.” United States v. Lara, 815

F.3d 605, 608 (9th Cir. 2016) (citation omitted). We also review de novo whether

a warrantless search was reasonable. United States v. Cotterman, 709 F.3d 952,

959–60 (9th Cir. 2013) (en banc).

A search’s reasonableness “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.” United States v. Knights, 534 U.S. 112, 118–19 (2001) (internal

quotation marks and citation omitted). Hardesty had a low expectation of privacy

given his status as a probationer and his underlying conviction for sexually

assaulting his juvenile daughter. See United States v. King, 736 F.3d 805, 809 (9th

Cir. 2013) (“Defendant’s expectation of privacy was small, in light of the serious

and intimate nature of his underlying conviction . . . .”). Moreover, Hardesty was

“unambiguously informed” of his two probation conditions permitting warrantless

searches with only reasonable suspicion. Knights, 534 U.S. at 119.

In contrast, the government had a strong interest in protecting the public

from Hardesty’s recidivism. See King, 736 F.3d at 809. Despite minor

inconsistencies in their reports, the probation officers had reasonable suspicion to

2 conduct the second search. The officers confiscated 300 pages of handwritten

pornography that hinted at a trading system of child pornography, and Hardesty

himself admitted he still may have had pornography in his residence. To the extent

Hardesty argues that the probation officers collaborated with police to evade

obtaining a search warrant, his argument is unpersuasive.

Because Hardesty’s low expectation of privacy was outweighed by the

government’s interest in confronting Hardesty’s recidivism, the second search was

reasonable.

AFFIRMED.