United States v. Smurphat

Opinion

24-1707 United States v. Smurphat

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals for the Second Circuit, held 2 at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New 3 York, on the 7th day of October, two thousand twenty-five. 4 5 PRESENT: 6 REENA RAGGI, 7 RICHARD C. WESLEY, 8 MYRNA PÉREZ, 9 Circuit Judges. 10 ________________________________________ 11 12 UNITED STATES OF AMERICA, 13 14 Appellee, 15 16 v. No. 24-1707 17 18 KEVIN SMURPHAT, 19 20 Defendant-Appellant. 21 ________________________________________

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1 FOR APPELLEE: NICOLAS COMMANDEUR, Assistant United 2 States Attorney, for John A. Sarcone III, 3 United States Attorney for the Northern 4 District of New York, Syracuse, NY. 5 6 FOR DEFENDANT-APPELLANT: JANEANNE MURRAY, Murray Law LLC, New 7 York, NY. 8 9 Appeal from a June 20, 2024, judgment of the United States District Court for the

10 Northern District of New York (Hon. Anne M. Nardacci, J.). 11 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 12 AND DECREED that the order of the District Court is AFFIRMED. 13 Defendant-Appellant Kevin Smurphat pled guilty to various child pornography 14 offenses after the District Court denied his motion to suppress a search of his cellphone, 15 which led to the discovery of commission of the charged crimes. 1 Smurphat’s conditional 16 plea agreement contained an appellate waiver that reserved his right to appeal the 17 following issue raised in his motion to suppress: “whether the search of the defendant’s 18 phone pursuant to his conditions of parole violated the Fourth Amendment, and, if so, 19 whether the information obtained from the phone, subsequent searches, and the 20 defendant’s statements were tainted by the unlawful search.” App’x at 106. Smurphat 21 appeals pursuant to that conditional plea agreement. We assume the parties’ familiarity 22 with the facts, procedural history, and issues on appeal, to which we refer only as

1 Smurphat’s motion to suppress was denied by Judge Gary L. Sharpe on January 11, 2023, and Smurphat entered a guilty plea on November 28, 2023. The case was reassigned on February 7, 2024, to Judge Nardacci, who sentenced Smurphat on June 14, 2024.

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1 necessary to explain our decision to affirm the District Court’s denial of Smurphat’s 2 motion to suppress. 3 I. Background 4 Smurphat’s criminal history includes a conviction under New York law for first 5 degree attempted sexual abuse involving sexual contact with an individual under 11 6 years old and subsequent probation and parole violations, which resulted in additional 7 periods of incarceration. One such violation resulted from his possession of an 8 unauthorized phone, as well as children’s underwear. Released from prison in July 2020, 9 Smurphat was on parole living in a motel room at the time of the challenged search. 10 Before his release, he agreed to a variety of parole conditions which included submitting 11 his “person, residence and property” to “search and inspection” and cooperating with 12 “unannounced examinations directed by the PAROLE OFFICER of any and all 13 computer(s) and/or other electronic device(s) to which I have access.” App’x at 38–40. 14 Around 7:20 a.m. on November 8, 2020, three parole officers entered the motel 15 room in which Smurphat had been staying. Smurphat claims that “he awoke to find them 16 standing over him in the bed, still dressed in underclothes.” Id. at 19. After the parole 17 officers entered Smurphat’s room, they observed a cellphone on the bed next to 18 Smurphat. Id. Smurphat initially denied that the cellphone was his, but eventually 19 provided a passcode, which the parole officers used to unlock the cellphone and search 20 it. Id. Therein, they found child pornography in conversations on the messaging app

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1 Kik, DropBox, and Gmail apps. Id. Smurphat was arrested and charged with 2 transportation, distribution, receipt, and possession of child pornography, in violation of 3 18 U.S.C. § 2252A(a). Id. at 11–15, 19–21; Appellant’s Br. 7–9 (relying on the same). 4 II. Legal Standard 5 “On appeal from a district court’s ruling on a motion to suppress evidence, ‘we 6 review legal conclusions de novo and findings of fact for clear error.’” United States v. 7 Ganias, 824 F.3d 199, 208 (2d Cir. 2016) (quoting United States v. Bershchansky, 788 F.3d 102, 8 108 (2d Cir. 2015)). “We may uphold the validity of a judgment ‘on any ground that finds 9 support in the record.’” Id. (quoting Headley v. Tilghman, 53 F.3d 472, 476 (2d Cir. 1995)). 10 III. Discussion 11 On appeal, Smurphat alleges Fourth Amendment violations from both the parole 12 officers’ entry into his motel room, as well as their search of his cellphone. Appellant’s 13 Br. 23. We address each challenge in turn. 14 A. Smurphat’s Challenge to the Parole Officers’ Entry 15 As an initial matter, the parties dispute the scope of this appeal: Smurphat 16 challenges the parole officers’ entry into his motel room as part of the search of his phone, 17 while the Government asserts that the entry is a separate search precluded by the plea 18 agreement’s appellate waiver, which preserved only a challenge to the phone search. We 19 need not decide the scope of the appellate waiver, however, because Smurphat did not

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1 challenge the parole officers’ entry in the District Court, and thus has forfeited this issue 2 altogether. 3 “[I]t is a well-established general rule that an appellate court will not consider an 4 issue raised for the first time on appeal.” In re Nortel Networks Corp. Sec. Litig., 539 F.3d 5 129, 132 (2d Cir. 2008) (quoting Bogle-Assegai v. Connecticut, 470 F.3d 498, 504 (2d Cir. 6 2006)); Greer v. United States, 593 U.S. 503, 507 (2021) (deeming argument forfeited where 7 defendant failed to preserve claim of error). In the district court, Smurphat moved to 8 suppress “evidence and statements that are the direct result of the warrantless, 9 suspicionless search of his cell phone,” without suggesting that the parole officers’ entry 10 was in any way itself unconstitutional. App’x at 16. On this record, we conclude that 11 Smurphat has failed to sufficiently raise the issue of the parole officers’ entry below, so 12 we do not consider it here. 2 13 B. The Cellphone Search Did Not Violate the Fourth Amendment 14 Alleged Fourth Amendment violations in the context of parole implicate the 15 special needs doctrine:

16 Although warrantless searches are generally presumed unreasonable, the 17 law recognizes certain exceptions to this rule. Notably, in Griffin v.

2 While we may exercise our discretion to correct a forfeited error, see United States v. Parse, 789 F.3d 83, 113, 119 (2d Cir. 2015), we decline to do so here. The fact-laden inquiry into the parole officers’ entry is undeveloped on the record before us. Insofar as Smurphat’s counsel submits that the entry was warrantless, unannounced, and forcible, see Appellant’s Reply Br. 6–9, a court is not required to credit such assertions in the absence of a sworn affidavit from Smurphat. See United States v. Maldonado-Rivera, 922 F.2d 934, 972–73 (2d Cir. 1990) (concluding court properly declined to credit unsworn statements on suppression motion).

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1 Wisconsin, the Supreme Court ruled that “[a] State’s operation of a 2 probation system . . . presents ‘special needs’ beyond normal law 3 enforcement that may justify departures from the usual warrant and 4 probable-cause requirements.” 483 U.S. 868, 873–74 (1987). Relying on the 5 “special needs” exception articulated in Griffin, this court has ruled that the 6 operation of a parole system also presents special needs justifying a 7 departure from the traditional Fourth Amendment warrant requirement.

8 United States v. Newton, 369 F.3d 659, 665 (2d Cir. 2004). This is what permits Smurphat’s 9 parole conditions in the first place—for example, that he “will cooperate with 10 unannounced examinations . . . of any and all computer(s) and/or other electronic 11 device(s) . . . .” App’x at 40. 12 Those conditions notwithstanding, parole officers do not have boundless 13 authority to conduct warrantless searches. Rather, “a search of a parolee is permissible 14 so long as it is reasonably related to the parole officer’s duties.” United States v. Oliveras, 15 96 F.4th 298, 307 (2d Cir. 2024) (quoting United States v. Braggs, 5 F.4th 183, 186–87 (2d Cir. 16 2021)). And “[b]ecause a search undertaken by a parole officer of a parolee to detect 17 parole violations is ‘reasonably related to the parole officer’s duties,’ such a search is 18 ‘permissible’ under the Special Needs framework and accordingly ‘comport[s] with the 19 Fourth Amendment.’” Braggs, 5 F.4th at 188 (quoting United States v. Grimes, 225 F.3d 20 254, 259 n.4 (2d Cir. 2000)). 21 Therefore, the relevant question here is whether the parole officers’ search of 22 Smurphat’s cellphone was to detect parole violations. On this record, it is clear that it 23 was. Given Smurphat’s history of sex offenses and parole violations, he was subject to

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1 parole conditions that limit his use of electronic devices and require him to subject such 2 approved devices to unannounced search. In line with that understanding, Smurphat 3 was subject to Special Conditions 17 and 25 to which he agreed that he “will NOT be in 4 the possession of . . . anything with the capability of accessing the internet, and Wi-Fi 5 capabilities, without the prior knowledge and permission of my Parole Officer” and 6 “shall NOT purchase, possess or engage in the use of any sexually explicit materials.” 7 App’x at 44. It is uncontroverted that Smurphat was not authorized to possess the 8 cellphone in question, i.e., he possessed it in violation of his parole conditions. The parole 9 officers—who observed this cellphone lying on the bed in plain view—therefore had 10 reason to believe Smurphat was violating his parole conditions, including by engaging in 11 prohibited activity on the cellphone. Accordingly, the parole officers were entitled to 12 seize and search this unauthorized cellphone to determine whether Smurphat was 13 violating his parole conditions. 14 To be clear, the foregoing analysis does not draw a distinction between the seizure 15 and the search of Smurphat’s cellphone. Smurphat argues on appeal that even if the 16 parole officers could seize the cellphone under the special needs doctrine, the search of 17 that cellphone is nevertheless unpermitted. Appellant’s Reply Br. 10. It is true that 18 outside of the special needs doctrine, there is a distinction between the seizing of a 19 cellphone and the search of a cellphone. Riley v. California, 573 U.S. 373, 403 (2014) (“Our 20 answer to the question of what police must do before searching a cell phone seized

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1 incident to an arrest is . . . simple—get a warrant.”). But within the special needs doctrine 2 context—particularly where Smurphat’s parole conditions explicitly contemplate such 3 searches—that distinction is inapposite. Riley nevertheless “recognized that ‘other case- 4 specific exceptions may still justify a warrantless search of a particular phone,’” and “our 5 Court has held that the special needs doctrine permits suspicionless search conditions 6 ‘when sufficiently supported by the record.’” United States v. Robinson, 134 F.4th 104, 113– 7 14 (2d Cir. 2025) (citations omitted). So too here. 8 IV. Conclusion 9 We have considered Smurphat’s remaining arguments and find them to be 10 without merit. For the foregoing reasons, we AFFIRM the order of the District Court.

11 FOR THE COURT: 12 Catherine O’Hagan Wolfe, Clerk of Court