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303 K Street, Anchorage, Alaska 99501
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E-mail: corrections @ akcourts.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
DAVID JAMES CHANDLER,
Court of Appeals No. A-12759
Appellant, Trial Court No. 4FA-15-00586 CR
v.
O P I N I O N
STATE OF ALASKA,
Appellee. No. 2701 - April 23, 2021
Appeal from the Superior Court, Fourth Judicial District,
Fairbanks, Bethany S. Harbison, Judge.
Appearances: Kelly R. Taylor, Assistant Public Defender, and
Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Diane L. Wendlandt, Assistant Attorney General, Office of
Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney
General, Juneau, for the Appellee.
Before: Allard, Chief Judge, Mannheimer, Senior Judge, * and
**
McCrea, District Court Judge.
Judge MANNHEIMER.
* Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska
Constitution and Administrative Rule 23(a).
**
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska
Constitution and Administrative Rule 24(d).
----------------------- Page 2-----------------------
David James Chandler appeals his conviction for possession of child
pornography. He asserts that the primary evidence against him - computer files
containing child pornography - was obtained illegally and should therefore be
suppressed.
Chandler presents two main arguments in favor of suppression.
Chandler's first argument is that his probation officer violated his rights
when she seized the computer devices from Chandler's residence. Chandler concedes
that he was on probation from an earlier conviction for possessing child pornography,
and that his conditions of probation authorized his probation officer to search his
computers and related electronic storage devices for evidence of child pornography.
However, Chandler argues that his probation officer exceeded her authority when she
seized these devices (by removing them from Chandler's home) to facilitate the search
of their contents.
Second, Chandler argues that even if his probation officer's seizure of the
computer devices was lawful, the probation officer (and the State Trooper forensic
examiners who later assisted the probation officer in searching the computers) kept the
computer devices in their possession for an unreasonably long time before the Troopers
secured a search warrant for the devices.
As we explain more fully in this opinion, Chandler failed to preserve his
claimthat the initial seizure of his computer devices was unlawful. Chandler entered into
a Cooksey plea agreement with the State; under the terms of this agreement, the sole
issue preserved for appeal was, 'Did the seizure of Mr. Chandler's computers become
unreasonable due to the delay in securing a search warrant?"
Turning, then, to Chandler's claim that the State held onto his computer
devices for an unreasonably long period of time before securing a search warrant,
we conclude that this claim is based on a misunderstanding of the law.
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The cases that Chandler relies on - as well as the earlier cases that those
cases rely on - all deal with situations where the police seize property without a warrant
because they have probable cause to believe that it contains evidence of a crime, and
there is no applicable exception to the warrant requirement . In such circumstances, the
police are only authorized to temporarily hold the property (for the purpose of
safeguarding it) until they can secure a warrant - and the police must promptly seek a
warrant, or else their continued possession of the property will violate the warrant clause
1
of the constitution.
But these cases do not apply to Chandler's case, because Chandler's
computers were seized and searched under a recognized exception to the warrant
requirement - the probation search exception.
It is true that, after the State Troopers conducted their initial forensic
examinationofChandler'scomputers and found childpornography images, theTroopers
decided to apply for a warrant before they resumed their search of the computers. But
as we explain in this opinion, the Troopers did not seek this warrant because they
thought it was necessary to authorize their continued possession of Chandler's
computers. Rather, the Troopers sought the warrant out of an abundance of caution -
to prevent Chandler from later claiming that, because of the Troopers' discovery of the
child pornography, the Troopers improperly expanded the scope of their search beyond
the boundaries of the search authorized by Chandler's conditions of probation.
So long as the Troopers confined their search to the boundaries authorized
by the conditions of Chandler's probation, they did not need this search warrant to
authorize their continued possession of, and search of, Chandler's computers.
1 See United States v. Place , 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983);
Moore v. State , 372 P.3d 922 (Alaska App. 2016).
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----------------------- Page 4-----------------------
(And as it turned out, even after the Troopers secured this warrant and
resumed their search, they only found more evidence that Chandler possessed child
pornography. Thus, all the evidence that supported the charges in this case would have
been lawfully obtained even if the Troopers had never secured the search warrant.)
For these reasons, we affirm Chandler's conviction.
Underlying facts
In 2013, Chandler was convicted of possessing child pornography. He
served time in prison, and then he was released on probation. Chandler's conditions of
probation required him to submit to searches of his residence and any of his personal
computers for 'sexually explicit material", which was defined to include 'child erotica,
sexually graphic anime, [and] adult and/or child pornography".
On April 9, 2014 (while Chandler was still on probation), two Fairbanks
probation officers came to Chandler's residence to perform a probation search.
Chandler's father answered the door and let the officers in. When Chandler came out of
his bedroom and saw the probation officers, he furtively slipped an external computer
hard drive into his pants pocket.
One of the probation officers, Jenelle Moore, observed Chandler's action.
Based on this observation, she decided to seize Chandler's two laptop computers, as well
as three external hard drives.
Moore brought these items to her office, where she enlisted a computer
technician to help her search the computers and the hard drives. When the computer
technician performed a cursory search of these devices, he found sexually graphic anime
- i.e., cartoons depicting characters in 'sexual poses [and] scenarios". Special
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----------------------- Page 5-----------------------
Condition 20 of Chandler's conditions of probation expressly prohibited him from
possessing 'sexually graphic anime". 2
The computer technician also examined Chandler's internet browsing
history and found indications that Chandler had been searching for child pornography
- i.e., browser queries that contained the words 'teen" and 'young".
At this point, Moore decided that any further search of Chandler's devices
should be conducted by more experienced forensic examiners. She contacted the local
State Troopers, and an investigator was assigned to Chandler's case. A few days later,
this investigator came to Moore's office to pick up Chandler's computer devices, and the
devices were then shipped to the State Trooper Technical Crimes Unit in Anchorage.
At this time (i.e., April 2014), the Technical Crimes Unit had a backlog of
requests for computer examinations, and a shortage of forensic examiners to perform
these examinations. Because of this backlog, a forensic examiner was not assigned to
Chandler's case until mid-June (i.e., about seven weeks after the Technical Crimes Unit
received Chandler's computers).
This forensic examiner, Jeff Mills, immediately began his examination of
Chandler's computer devices. Within four days, Mills discovered images of child
pornography on Chandler's devices. When Mills informed his supervisor of this
discovery, the supervisor instructed Mills to suspend his examination of Chandler's
devices and to contact the Trooper investigator in Fairbanks, so that this investigator
could apply for a search warrant that expressly authorized a search for all evidence
relating to Chandler's possession of child pornography.
2 More specifically, Special Probation Condition 20 prohibited Chandler from
possessing 'sexually explicit material, which includes but is not limited to child erotica,
sexually graphic anime, [and] adult and/or child pornography ... ."
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----------------------- Page 6-----------------------
The investigator initially applied for this search warrant on July 1, but the
Fairbanks district court denied theapplication after concludingthattherequested warrant
was overbroad. The investigator began a lengthy period of personal leave two days later,
so the investigator did not submit a revised warrant application until August 5. The
Fairbanks court granted the revised warrant application that same day, and the search
warrant was then forwarded to forensic examiner Mills in Anchorage.
When Mills resumed his examination of Chandler's computer devices, he
found additional images of child pornography.
Based on the pornographic images found on Chandler's devices, Chandler
was indicted on five counts of possessing child pornography.
Chandler's attorney filed a pre-trial motion asking the superior court to
suppress the pornographic images found on Chandler's computer devices. The attorney
argued that the State violated Chandler's rights by holding Chandler's computer devices
for almost four months before obtaining a search warrant - from April 9, 2014 (the day
that Chandler's probation officer seized the devices) until August 5, 2014 (the day that
the Fairbanks court issued the search warrant).
Following an evidentiary hearing, the superior court denied Chandler's
suppression motion. (We will explain the details of the superior court's ruling later in
this opinion.)
After the court denied the suppression motion, Chandler and the State
3
reached a Cooksey plea agreement.
Under the terms of this agreement, Chandler
3 See Cooksey v. State , 524 P.2d 1251, 1255 (Alaska 1974) (holding that, despite the
normal rule that a plea of guilty or no contest waives all non-jurisdictional defects in a
criminal prosecution, the State and a defendant can agree that the defendant will plead
no contest on condition that the defendant be allowed to pursue an issue on appeal - so long
as this issue was litigated in the trial court, and so long as the resolution of this issue is
dispositive of the defendant's case).
- 6 - 2701
----------------------- Page 7-----------------------
pleaded no contest to a single count of possessing child pornography, on condition that
he could pursue the following issue on appeal: 'Did the seizure of Mr. Chandler's
computers become unreasonable due to the delay in securing a search warrant?"
Chandler's claim that it was unlawful for his probation officer to remove
the computer devices from Chandler's residence
As we have already explained, at the time of the events in this case,
Chandler was on probation from a 2013 conviction for possessing child pornography,
and one of the conditions of Chandler's probation required him to submit to searches of
his residence and any of his personal computers for 'sexually explicit material" - a
phrase that was defined in Special Probation Condition 20 as including 'child erotica,
sexually graphic anime, [and] adult and/or child pornography".
In this appeal, Chandler arguesthat even though his conditionsofprobation
gave his probation officer the authority to search his computer devices, these conditions
of probation did not give his probation officer the authority to seize those devices - i.e.,
remove them from Chandler's residence.
But Chandler's Cooksey plea agreement with the State does not allow him
to challenge the probation officer's seizure of the computers. Instead, the Cooksey
agreement expressly limits Chandler to one appellate issue: whether the seizure of his
computer devices became unreasonable 'due to the delay in securing a search warrant".
Thus, when Chandler pleaded no contest, he waived any claim that the
probation officer's initial seizure of his computer devices was unlawful. Even if this
claim were well-founded, it would be a non-jurisdictional defect in the State's
prosecution of Chandler - and a defendant who pleads guilty or no contest waives all
non-jurisdictional defects in the prosecution, unless the defendant reaches a Cooksey
- 7 - 2701
----------------------- Page 8-----------------------
agreement with the State that expressly allows the defendant to litigate a particular
alleged defect. Cooksey v. State , 524 P.2d 1251, 1255 (Alaska 1974); Miles v. State , 825
P.2d 904, 905 (Alaska App. 1992).
Chandler's claim that the seizure of his computer devices became unlawful
because the State held these computers for almost four months before the
State Troopers secured a search warrant
As we have explained, Chandler's conditions of probation included a
provision requiring him to submit to a search of his computer devices for 'sexually
explicit material", which was defined to include child pornography. Thus, Chandler's
probation officer could lawfully search these devices even if she lacked probable cause
to believe that these devices contained evidence that Chandler had committed a new
4
crime or had violated his probation in some other way.
And, as we have just explained,
Chandler waived any challenge to his probation officer's decision to remove the
computer devices from Chandler's residence to facilitate this search.
After Chandler's probation officer seized the computer devices, she
promptly began to investigate the contents of these devices. With the assistance of a
local computer technician, the probation officer conducted a preliminary search of the
computer devices. This preliminary search revealed that Chandler had sexually graphic
anime on his devices, and it also suggested that Chandler had been searching for child
pornography: Chandler's browser history showed that he had searched the internet for
content that contained the words 'teen" and 'young".
4 State v. James, 963 P.2d 1080, 1082 (Alaska App. 1998), relying on Roman v. State,
570 P.2d 1235, 1243-44 (Alaska 1977), and Soroka v. State, 598 P.2d 69, 71 n. 5 (Alaska
1979).
- 8 - 2701
----------------------- Page 9-----------------------
At this point, the probation officer decided that any further search of
Chandler's devices should be conducted by a more experienced forensic examiner, so
the next day she contacted the State Troopers, and Chandler's devices were shipped to
the State Trooper Technical Crimes Unit in Anchorage. The forensic examination
conducted in Anchorage revealed that Chandler's computer devices contained five
images of child pornography - the images for which he was indicted.
(a) The law pertaining to Chandler's claim
When the police have reason to believe that an item of property constitutes
or contains evidence of a crime, they are authorized to temporarily seize the property
while they apply for a search warrant. The authorized scope of this temporary seizure
hinges on the level of the police suspicion.
If the police have only a reasonable suspicion that the property is connected
to a crime, the seizure of the property must be of limited scope and duration, consistent
5
with the law relating to investigatory stops.
But even when the police have probable cause to believe that the property
constitutes or contains evidence of a crime (thus allowing them to engage in an initial
6
seizure of greater duration and intrusiveness ), they must still act diligently in seeking
a warrant. Thus, even when the initial warrantless seizure of the property is lawful, the
5 See United States v. Place, 462 U.S. 696, 708-710; 103 S.Ct. 2637, 2645-46;
77 L.Ed.2d 110 (1983); Moore v. State , 372 P.3d 922, 924-25 (Alaska App. 2016);
Peschel v. State, 770 P.2d 1144, 1147-48 (Alaska App. 1989).
6
See United States v. Chadwick, 433 U.S. 1, 13-14 nn. 8-9; 97 S.Ct. 2476, 2485
nn. 8-9; 53 L.Ed.2d 538 (1977), overruled on other grounds by California v. Acevedo, 500
U.S. 565, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991); Willie v. State, 829 P.2d 310, 313 (Alaska
App. 1992).
- 9 - 2701
----------------------- Page 10-----------------------
seizure may later become unlawful if the police unreasonably delay in obtaining a search
warrant. In such cases, the government's warrantless retention of the property may
become so lengthy as to violate the owner's rights under the warrant clause of the Fourth
7
Amendment.
The rule is different, however, when an exception to the warrant
requirement permits officers to search an item. When, for example, an item of property
is seized with the owner's consent, the police do not need to obtain a warrant to authorize
8
their continued retention of the property.
This is not to say that the police thereby become entitled to hold the
property indefinitely. An unreasonably long retention of the property can still violate the
owner's Fourth Amendment rights. But when the police have probable cause and there
is an exception to the warrant requirement that permits searching the item, the police can
normally retain the property (without a warrant) for as long as is reasonably needed for
9
their criminal investigation.
7 See Moore , 372 P.3d at 926-27; United States v. Mitchell, 565 F.3d 1347, 1350-51
(11th Cir. 2009); People v. Link, 32 Cal.Rptr.2d 149, 153 (Cal. App. 1994); United States v.
Dass, 849 F.2d 414, 415-16 (9th Cir. 1988).
8 See Frink v. State, 597 P.2d 154, 167 (Alaska 1979); Sleziak v. State, 454 P.2d 252,
257-58 (Alaska 1969).
9 United States v. Carter, 139 F.3d 424, 426 (4th Cir. 1998) (en banc); Mitchell , 565
F.3d at 1352 (noting that the government is not required to return seized property if it has
evidentiary value to an ongoing criminal investigation or prosecution); United States v.
Arndt , unpublished, 2010 WL 384890 at *11 (W.D. Mo. 2010); United States v. Wright,
unpublished, 2010 WL 841307 at *9 (E.D. Tenn. 2010). But compare Sovereign News Co.
v. United States, 690 F.2d 569, 577-78 (6th Cir. 1982) (holding that even when the
government can show that the seized property might be evidence of a potential criminal or
regulatory violation, the government must be reasonably diligent in initiating the relevant
criminal or regulatory investigation).
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----------------------- Page 11-----------------------
(b) The cases that Chandler relies on
Chandler disputes this view of the law. He argues that even though his
conditions of probation gave his probation officer the authority to search his computer
devices, and even though the probation officer was authorized to seek the help of the
State Troopers to perform this probation search, the State Troopers were nevertheless
required to promptly obtain a judicial warrant if they wished to retain possession of
Chandler's computer devices to conduct their forensic examination.
In support of this claim, Chandler relies primarily on three cases: United
States v. Dass, 849 F.2d 414 (9th Cir. 1988), United States v. Mitchell , 565 F.3d 1347
(11th Cir. 2009), and United States v. Sullivan , 797 F.3d 623, 633 (9th Cir. 2015). But
as we are about to explain, two of these cases are not pertinent to the facts of Chandler's
case, and the remaining case is poorly reasoned and unconvincing.
In United States v. Dass , the police removed several packages from post
office facilities and subjected them to a drug-sniffing dog. But after the dog 'alerted"
to the packages, the police held these packages for between 7 and 23 days before
10
securing warrants to open the packages and search them.
The court held that the
officers' delay inseekingthesearch warrants was unreasonable, and thecourt suppressed
11
the contents of the packages.
However, the facts of Dass did not involve any exception to the warrant
requirement, so Dass does not address the issues raised when there is an applicable
exception to the warrant requirement. We thus conclude that Dass is not pertinent to our
resolution of Chandler's case.
10 Dass, 849 F.2d at 415-16.
11 Ibid.
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----------------------- Page 12-----------------------
United States v. Mitchell involved a defendant who came under investiga-
tion after he used his credit card to purchase access to a child pornography website.
When officers went to Mitchell's residence to talk to him about this, he admitted that he
had purchased subscriptions to two pornography websites. He also told the officers that
he had two computers in his home - a laptop upstairs, and a desktop computer
downstairs - and that both of these computers 'probably" contained child
12
pornography.
Mitchell gave the officers permission to search the laptop, but he refused
to consent to a search of the desktop. Because Mitchell would not allow the officers to
search the desktop, the officers opened up its case, removed the hard drive, and took
custody of it. Twenty-one days later, the officers applied for (and obtained) a warrant
13
Mitchell was ultimately convicted of
to examine the contents of the hard drive.
14
possessing child pornography.
Itis not clear fromthe Mitchell opinion whether Mitchell failed to challenge
the search of the laptop because his conviction was based solely on the contents of the
hard drive from his desktop computer, or whether (alternatively) Mitchell's conviction
was based on child pornography that was found on both the laptop and the desktop
computers, but Mitchell refrained from challenging the search of the laptop because he
had given his consent for this search.
In any event, the Mitchell opinion discusses only Mitchell's challenge to
the government's seizure and retention of the hard drive from his desktop computer.
12 Mitchell , 565 F.3d at 1348-49.
13 Id. at 1349.
14 Id. at 1350.
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----------------------- Page 13-----------------------
On appeal, Mitchell acknowledged that when the police have probable
cause to believe that a computer holds evidence of a crime, the police are authorized to
seize the computer and keep custody of it while they apply for a warrant to search its
15
contents. However, Mitchell argued that the officers acted unreasonably - and
violated his rights under the Fourth Amendment - when they waited three weeks to
16
apply for the warrant to search his hard drive.
A panel of the Eleventh Circuit concluded that there was no valid excuse
for this three-week delay, and that the government's retention of the hard drive during
thesethreeweeks constituted asubstantialinfringementofMitchell'spossessory interest.
17
The court therefore suppressed the evidence found on the hard drive.
But like Dass, the Mitchell case presented a situation where, even though
the police had probable cause, there was no applicable exception to the warrant
requirement. Thus, like the Ninth Circuit's opinion in Dass, the Eleventh Circuit's
opinion in Mitchell does not address the issues raised when there is an applicable
exception to the warrant requirement. We therefore conclude that the Mitchell opinion
is not pertinent to our resolution of Chandler's case.
We now turn to the third case cited by Chandler: United States v. Sullivan.
The defendant in Sullivan was on parole for offenses involving sexual abuse of minors.
Sullivan's parole officers received a report that he had run away with an under-age girl
and was having sex with her. The officers arrested Sullivan after they found him in his
car outside a motel. During this arrest, the officers conducted a parole search of
15 Ibid.
16 Ibid.
17 Id. at 1350-53.
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----------------------- Page 14-----------------------
Sullivan's car - and, during this search, the officers found and seized Sullivan's laptop
18
computer.
Two weeks after his arrest, Sullivan urged the police to search his laptop
- telling them that the laptop contained a video that would support his claim that he
reasonably thought the girl was 19 years old. But, apparently, the police did not
immediately search the laptop even though they now had Sullivan's consent. Instead,
19
one week later, the officers obtained a search warrant for the laptop.
In the Sullivan decision, the Ninth Circuit proceeded under the assumption
that Sullivan's rights under the Fourth Amendment would be violated if the police held
onto his laptop computer for too long a time before they obtained a warrant - even
though two different exceptions to the warrant requirement arguably applied to
Sullivan's case (because the seizure of Sullivan's laptop occurred during a parole search,
and because Sullivan later gave the police permission to search this laptop).
In support of their premise that the police were required to promptly obtain
a search warrant, the Ninth Circuit relied on a trio of cases (two Supreme Court decisions
and a prior decision of the Ninth Circuit) - but all three of these cases involved a
temporary investigative detention of property based on reasonable suspicion. That is,
all three cases involved situations where the police clearly needed to obtain a warrant if
they wished to hold the property for any extended period of time. See United States v.
Van Leeuwen, 397 U.S. 249, 90 S.Ct. 1029, 25 L.Ed.2d 282 (1970); United States
v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983); and United States v.
Hernandez, 313 F.3d 1206, 1213 (9th Cir. 2002).
18 Sullivan, 797 F.3d at 629.
19 Ibid.
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----------------------- Page 15-----------------------
In the Ninth Circuit's Sullivan opinion, the court acknowledged that
Sullivan's laptop was seized during a valid parole search, and that Sullivan consented to
a search of the laptop. But the court did not discuss whether these factors took Sullivan's
case outside the rule of Van Leeuwen , Place, and Hernandez - the rule for temporary
seizures of property based on reasonable suspicion. Instead, the Ninth Circuit treated
Sullivan's parole conditions, and his consent to the search, as merely being factors that
were relevant to the court's assessment of whether the government's retention of
20
Sullivan's computer was reasonable under Van Leeuwen , Place, and Hernandez .
We are not sure what to make of the Sullivan decision. Either, for some
reason that goes unexplained in the opinion, the Ninth Circuit concluded that the seizure
ofSullivan's computer was notcovered by anyexception to the warrant requirement, and
that the police were therefore required to promptly secure a warrant authorizing them to
hold onto the computer and search it - or, alternatively, the Ninth Circuit failed to see
that the Van Leeuwen / Place / Hernandez rule did not govern Sullivan's case because
there were two applicable exceptions to the warrant requirement. In either event, we
conclude that the Sullivan decision is not entitled to any weight when we resolve
Chandler's appeal.
We therefore re-affirm our earlier statement that, when a police seizure of
property falls within an exception to the warrant requirement, the police do not need to
obtain a warrant to authorize their continued retention of the property for the purpose of
21
searching it.
20 Id. at 633-34.
21 See Sleziak v. State , 459 P.2d 252, 257-58 (Alaska 1969); see also Frink v. State , 597
P.2d 154, 167 (Alaska 1979).
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----------------------- Page 16-----------------------
Thus, when we evaluate Chandler's claim that the authorities unlawfully
retained possession of his computer devices for four months before they secured a search
warrant, the first question we must ask is whether the initial seizure of Chandler's
computer devices was governed by an exception to the warrant requirement.
(c) Was the probation officer's seizure of Chandler's computers
authorized under an exception to the warrant requirement?
The answer to this question is yes: 'A search by a probation officer of a
probationer's residence [or property] is a recognized exception to the warrant
requirement as long as the search has been authorized by the conditions of probation or
release, the search is conducted by or at the direction of probation authorities, and the
search bears a direct relationship to the nature of the crime for which the probationer was
convicted." Milton v. State, 879 P.2d 1031, 1034 (Alaska App. 1994).
Although Chandler argues on appeal that his probation officer's authority
to search the computer devices did not include the authority to seize them, Chandler
waived his right to challenge his probation officer's seizure of the computer devices
when he pleaded no contest and failed to expressly preserve this claim.
Chandler raises another related objection to the government's retention of
his computers: Chandler challenges his probation officer's authority to retain the
computers while she waited for forensic assistance from the State Trooper Technical
Crimes Unit.
As we have explained, the probation officer took Chandler's computers
back to her office and there, with the aid of a local computer technician, she performed
a cursory search of the computers. According to the probation officer's later testimony,
andaccording to the superior court's findings, this initial search of Chandler's computers
- 16 - 2701
----------------------- Page 17-----------------------
revealed 'sexually explicit anime", and Chandler's possession of this anime constituted
a violation of his conditions of probation. (Special Condition 20 of Chandler's probation
explicitly prohibited him from possessing 'sexually graphic anime".)
The superior court ruled that the discovery of this anime provided a
justification for the probation officer (and, later, the State Troopers) to retain possession
of Chandler's computer devices pending a more complete forensic examination and,
ultimately, a resolution of Chandler's probation violations.
In his brief to this Court, Chandler argues that his possession of this
'sexually graphic anime" could not serve as a justification for the authorities' retention
of his computer devices. Chandler relies on this Court's decision in Diorec v. State, 295
P.3d 409 (Alaska App. 2013), where we held that a probationer cannot be prohibited
from possessing 'sexually explicit material", because this term is unconstitutionally
vague.
Chandler notes that our decision in Diorec had already been issued when
Chandler's conditions of probation were imposed, and that Diorec had been the law for
three years when the present case arose (after the anime was found on Chandler's
computers). Based on Diorec, Chandler asserts that it was unconstitutional for his
probation conditions to prohibit him from possessing 'sexually graphic anime" - and
that therefore, even after the probation officer found sexually graphic anime on
Chandler's computer devices, the probation officer had no justification for continuing
to hold these devices, nor any justification for asking the superior court to revoke
Chandler's probation based on his possession of this anime.
Chandler also argues in the alternative that even if the phrase 'sexually
graphic anime" is sufficiently well-defined to meet constitutional requirements, the State
failed to present evidence to establish the precise characteristics of the anime found on
- 17 - 2701
----------------------- Page 18-----------------------
Chandler's computers, and thus the superior court lacked a sufficient basis for
concluding that these anime were sexually graphic.
The main problem with Chandler's arguments is that Chandler's attorney
never raised these issues when Chandler's suppression motion was litigated in the
superior court. The defense attorney never argued that Chandler's 'sexually graphic
anime" probation condition was unconstitutionally vague, nor did the attorney argue that
theanimefound onChandler'scomputer devices failed to meet any reasonabledefinition
of 'sexually graphic".
Rather, Chandler's attorney argued that even though Chandler's probation
officer may have found evidence of a probation violation on the computer devices (i.e.,
the sexually graphic anime), the State's continued possession of Chandler's computer
devices became unlawful later - because the Troopers waited so long before securing
a search warrant for these devices.
The limited scope of Chandler's suppression argument - and the fact that
his suppression argument had nothing to do with the validity of his 'sexually graphic
anime" probation condition - is further demonstrated by the content of the evidentiary
hearing held in the superior court.
At that evidentiary hearing, Chandler's probation officer testified that
Special Probation Condition 20 prohibited Chandler from possessing sexually graphic
anime, and that she (and her local computer technician) found sexually graphic anime
on Chandler's computer devices - thus establishing that Chandler had violated his
probation.
When Chandler's attorney cross-examined the probation officer, he did not
ask a single question regarding this sexually graphic anime. The defense attorney did
not ask the probation officer to provide a fuller description of the anime found on
Chandler's computer devices, the attorney did not ask the officer to explain how
- 18 - 2701
----------------------- Page 19-----------------------
Chandler's possession of this material constituted a violation of his probation, nor did
the attorney mention the Diorec decision or argue in any other fashion that there was a
constitutional flaw in the wording or substance of Chandler's 'sexually graphic anime"
probation condition.
Giventhis record,and given Chandler's pleaofnocontest, Chandler cannot
now attack the 'sexually graphic anime" provision of Special Probation Condition 20,
nor can he attack the superior court's finding that he violated his probation by possessing
the anime.
We therefore uphold the superior court's findings that, shortly after the
probation officer seized Chandler's computer devices, the probation officer discovered
computer files which showed (1) that Chandler was currently in violation of his
probation (by possessing the anime), and (2) that Chandler's computer devices were
instrumentalities of his ongoing probation violations (because the devices were used for
storing and displaying the anime).
The probation officer's seizure and retention of Chandler's computer
devices was therefore authorized under the 'probation search" exception to the warrant
requirement.
(d) Was the State Troopers' ensuing retention of Chandler's computer
devices a continuation of the probation search and seizure?
As we have just explained, the superior court found that Chandler's
possession of the sexually graphic anime constituted an ongoing violation of his
probation, and that Chandler's computer devices were instrumentalities of this ongoing
violation. Given these findings, the superior court ruled that it was presumptively legal
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for Chandler's probation officer to retain the computer devices until any probation
violation proceedings were resolved.
But Chandler's probation officer did not immediately file a petition to
revoke Chandler's probation after she found the anime. Instead, the probation officer
transferred possession of Chandler's computer devices to theState Troopers, so that their
forensic analysts could examine these devices more closely.
This raises the question of how to categorize the Troopers' retention and
examination of Chandler's computer devices.
Obviously, one could view the Troopers' retention and examination of
Chandler's computer devices as simply a continuation of the probation officer's
authorized seizure and search of these devices. After the probation officer found the
sexually graphic anime during her initial preliminary examination of Chandler's
computer devices, the probation officer was authorized to continue holding onto these
devices until she completed her investigation of Chandler's potential other violations of
the 'sexually explicit material" probation condition. And because this investigation
required a forensic examination by someone with specialized skills, the probation officer
could reasonably enlist the assistance of the State Troopers' Technical Crimes Unit.
This is how the superior court viewed the matter. As the court stated in its
written decision, the court found (based on the testimony presented at the evidentiary
hearing) that the seizure of Chandler's computer devices was reasonable under the
Fourth Amendment because '[these] electronics were evidence of a probation violation
from the very first day that they were seized." Thus, the superior court concluded, the
government's retention of Chandler's computer devices 'did not infringe on his
possessory interests[,] as any possessory interest [Chandler might claim] was contingent
on the disposition of the probation violations and related criminal charges."
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In other words, the superior court ruledthat the warrant clause of the Fourth
Amendment did not limit how long the probation officer (and her agents, the State
Troopers) retained possession of Chandler's computer devices, so long as the authorities
were diligently pursuing their investigation into Chandler's potential violations of the
probation condition.
The superior court's conclusion is amply supported by the testimony given
at the evidentiary hearing.
Chandler's probation officer testified that she lacked the expertise to
perform a competent search of Chandler's computer devices, so she enlisted the
assistance of the State Troopers. The probation officer's testimony was corroborated by
the testimony given by Trooper Sgt. David Willson, the supervisor of the Technical
Crimes Unit in Anchorage. Willson told the court that Chandler's computer devices
were transferred to his unit by Chandler's probation officer, who 'requested that we
search [them] pursuant to a probation search".
Willson explained that his unit '[was] very careful to make sure we have
appropriate search authority, whether it be [by] recorded consent [or] written consent,
[or] a search warrant, or probation conditions" - and that, in Chandler's case, the search
of the computer devices was authorized by Chandler's probation conditions. According
toWillson,Chandler's probation officer furnished theTechnical Crimes Unitwith acopy
of these probation conditions, and she asked the unit to search the computer devices 'for
items that were in violation of the probation conditions".
Willson further explained that, because the purpose of the search was to
look for violations of Chandler's probation condition, the Troopers' discovery of
probation violations that constituted new crimes (i.e., the discovery of the first child
pornography images on Chandler's computer devices) prompted Willson to instruct his
forensic examiner to stop examining these devices until they could obtain a warrant:
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Sgt. Willson: When we're doing a probation search,
we're essentially looking for evidence of ... violati[ons of]
probation ... that will result in a petition to revoke probation
or something like that. We're not looking for evidence of the
crime of possession of child pornography, per se. The
moment we see that - boom, we've got a new criminal
charge, a C felony, very different from the original charges
that are anticipated from a probation violation. ... [So] in this
and other jurisdictions, it is best practice[] to stop [examining
the computer] upon viewing [the] child pornography, and get
a warrant.
In other words, Willson testified that thediscoveryofthechildpornography
on Chandler's computer devices meant, at least conceivably, that Chandler could later
argue that any continued forensic examination of these devices exceeded the scope of
what the probation officer had authorized the Technical Crimes Unit to do (i.e., look for
potential violations of the probation condition). So Willson decided that, before the
Technical Crimes Unit continued its forensic examination, the more prudent course was
to obtain a warrant that specifically authorized a search for all evidence of child
pornography.
(In Chandler's case, it appears that all of the child pornography he
possessed did, in fact, constitute a violation of his condition of probation. Thus, no issue
was presented regarding a possible discrepancy between the scope of the search
authorized by Chandler's condition of probation and the scope of the search that was
later authorized by the warrant issued by the superior court in early August.)
Despite this testimony from the probation officer and from Sgt. Willson,
Chandler challenges the superior court's conclusion that the State Troopers' retention
and forensic examination of Chandler's computer devices was a continuation or
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----------------------- Page 23-----------------------
outgrowth of the probation officer's investigation into Chandler's violations of
probation.
In particular, Chandler points to the fact that, at one point in the probation
officer's testimony, she referred to the investigation of Chandler's potential new crimes
as 'outside my scope of searching". But the probation officer immediately clarified that
she did not mean that such a search was outside her authority as Chandler's probation
officer. Rather, she meant that such a search was beyond her expertise, and that she
needed the technical assistance of the State Troopers.
(Indeed, Chandler's possession of child pornography was a direct violation
of Special Condition 20 of his probation, which prohibited him from possessing
'sexually explicit material", and which defined this phrase as including the possession
of 'child pornography".)
Special Condition 22 of Chandler's probation required him to submit to
searches of his computer devices for the material prohibited by Special Condition 20.
We therefore affirm the superior court's finding that, when the State Troopers subjected
Chandler's computer devices to forensic examination, they were assisting Chandler's
probation officer in performing a probation search - i.e., a search that was expressly
authorized by Chandler's conditions of probation.
Chandler's probation officer did not need a warrant to seize the computer
devices and retain them for the purpose of conducting this search, nor did the State
Troopers who were assisting her. We therefore affirm the superior court's denial of
Chandler's suppression motion.
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A clarification of exactly what we are deciding today - and a request to
the supreme court
Theonly claimthat Chandler preserved for appeal is his mistaken argument
under the warrant clause of the Fourth Amendment - his contention that, after the
government seized his computer devices withoutawarrant,thegovernment was required
to promptly secure a warrant or else the government's continued possession of his
computer devices would become illegal. As we have explained in this opinion,
Chandler's argument is mistaken because, even though the government seized his
computer devices without a warrant, the government acted under a recognized exception
to the warrant requirement. And, as the superior court ruled, once the government
discovered evidence of probation violations on Chandler's computer devices, the
government was entitled to retain possession of those devices until Chandler's probation
violations and any related criminal charges were resolved.
The superior court's ruling in Chandler's case is in line with existing
authority pertaining to the government's lawful seizure of evidence under an exception
to the warrant requirement. But by affirming the superior court's ruling in Chandler's
case, we are not saying that, as long as property is lawfully seized, there are never any
limits on the government's retention of that property.
One recognized limit on the government's retention of lawfully seized
evidence is that the government can hold the property only so long as the government
can demonstrate a legitimate interest in retaining it. See, for example, Sovereign News
Co. v. United States, 690 F.2d 569, 577-78 (6th Cir. 1982), where the Sixth Circuit held
that the government can retain seized business records only so long as the government
can show that the records are needed for a specific ongoing or proposed investigation.
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(When the superior court issued its ruling in Chandler's case, the court
seemingly acknowledged this limitation on the government's authority to retain
possession of Chandler's computer devices.)
However, because Chandler's case involves the seizure of computing
devices, we believe that his case illustrates special concerns that are not adequately
addressed by the rule that allows the government to hold evidence for as long as the
evidence is needed for an ongoing or a proposed investigation.
As this Court noted in Poland v. State, 436 P.3d 1093 (Alaska App. 2019),
and as the United States Supreme Court acknowledged in Riley v. California, 573 U.S.
373, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014), a modern-day computing device typically
''notonly contains indigitalformmany sensitive records previously found in thehome',
but also 'a broad array of private information never found in a home in any form'".
Poland, 436 P.2d at 1098, quoting Riley, 573 U.S. at 396-97, 134 S.Ct. at 2491.
Because of the uniquely important role that computing devices have assumed in the
personal lives of most citizens, courts are beginning to recognize these devices may be
entitled to special Fourth Amendment protections.
In cases like Chandler's - i.e., cases where government agents lawfully
seize all of a person's computing devices - a person may be left without access to
important business records,correspondence,photographs, passwords,and other personal
information. In many instances, these business records and this personal information
will have no relevance to the reasons why the government seized the computing devices
- but even when this computer data is relevant to the government's investigation, the
computer owner's lack of access to this data will entail a significant disruption of many
unrelated aspects of the owner's life. These adverse consequences are only heightened
in situations where the computing device contains evidence, not of the owner's criminal
activities, but of someone else's criminal activities.
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----------------------- Page 26-----------------------
Alaska Rule of Criminal Procedure 37(c) authorizes a property owner to
challenge the government's seizure of property, but Rule 37(c) only authorizes a court
to grant relief from an unlawful search or seizure. This rule does not address the question
of whether a property owner should be afforded some kind of relief even if the
government's seizure and retention of the property is lawful. Seemingly, our existing
law offers no remedy (other than informal negotiation with the authorities) for a
computer owner who seeks access to a usable copy of their electronic data after that data
has been lawfully seized.
We emphasize that Chandler has not actually raised these concerns in this
appeal. Other than Chandler's mistaken assertion that the government's retention of his
computer devices violated the warrant clause of the Fourth Amendment, Chandler never
claimed that there was any limit on the government's authority to hold his computer
devices, nor did Chandler ask the superior court to order the government to furnish him
with a copy of the data on these devices. Indeed, Chandler appears to have taken the
position that, once the government obtained a search warrant in an ex parte proceeding
(i.e., in a proceeding held without notice to him, and without any opportunity for him to
respond to the government's assertions), there was no limit on the government's
retention of his computer devices.
Nevertheless, Chandler's case illustrates the situation that can arise when
the government lawfully seizes computer devices in connection with an investigation -
either under the authority of a warrant or under a recognized exception to the warrant
requirement - and when it takes weeks or even months for the government's analysts
to complete their examination of the devices.
In his law review article, 'Search Warrants in an Era of Digital
Evidence", Professor Odin S. Kerr urges states to amend their search warrant rules to
require the government to conduct forensic examinations of digital devices in a timely
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----------------------- Page 27-----------------------
22
fashion. He also urges states to amend their rules so that the police are required to
'image" the seized computer devices ( i.e., create digital duplicates of their contents) -
so that, no matter how much time the forensic examination might require, the non-
criminal content of these devices can be returned to the owner within a reasonable period
23
of time.
While we do not necessarily endorse all of Professor Kerr's suggestions,
we agree with him that there should be time standards for the government's forensic
searches of computer devices, or at least for giving computer owners access to the non-
criminal contents of their computer devices. We also believe that these standards should
be codified in the court rules, rather than being left to the discretion of individual trial
court judges (or appellate judges, for that matter).
We therefore ask the Alaska Supreme Court to direct its Criminal Rules
Committee, or a special committee appointed for this purpose, to study the issues raised
by the lawful seizure of digital devices, and to draft a set of rules that will reasonably
accommodate both the interests of the government and the interests of computer owners.
Conclusion
For the reasons explained in this opinion, the judgement of the superior
court is AFFIRMED.
22 Orin S. Kerr, Search Warrants in an Era of Digital Evidence, 75 Miss. L.J. 85, 130-
39 (2005). (The page numbering is different in the Westlaw version of this law review
article; in the Westlaw version, the relevant pages are 126-134.)
23 Id. at 134-37.
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