Bare Necessities

Ibrahim Bare was convicted of engaging in a illicit firearms trafficking and the district court imposed a computer-search condition to his conditions of supervised release even though Bare did not use a computer to commit the firearms offense. A split Ninth Circuit panel rejected Bare’s claim that a computer-search condition to his supervised release conditions was unreasonable. Here’s the tortured logic used by the majority to justify this condition — because “Bare kept paper records of his illicit firearms pawn business,” if officers were permitted to search “only paper records — but not computers — [it] might enable Bare to evade discovery of recidivist activity by switching his records into an electronic format.”

Judge Kozinski’s spirited dissent went as follows:

“Persons on supervised release may have diminished expectations of privacy, but they have privacy rights nonetheless. Moreover, Congress has instructed us to adopt conditions of supervised release that impose “no greater deprivation of liberty than is reasonably necessary” to achieve the goals of supervised release. . .The majority today disregards this command by allowing probation officers to search defendant’s computer at any time, for any reason or no reason, even though defendant did not use a computer to carry out his crime, and (so far as we know) did not even own a computer when he committed the offense. The majority’s rationale, that defendant’s crime could be committed with the help of a computer, is no limitation at all. Pretty much any federal crime can be committed by using a computer in some way — to maintain records, to case the premises using Google Street View or to track down accomplices, methods and supplies necessary for committing the crime. If a hypothesis about how the crime might have been committed is a sufficient justification for imposing a supervised release condition, then any condition can be justified by supposing that the crime could be committed in a way that’s different from the method employed by the defendant. I cannot subscribe to such a broad and amorphous standard.”

http://cdn.ca9.uscourts.gov/datastore/opinions/2015/11/24/14-10475.pdf