The opinion of the court was delivered by: Thomas J. McAVOY Senior United States District Judge
Defendant Russell Jennings was indicted on one count of accessing with the intent to view and possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). Presently before the Court is Defendant's motion to dismiss the Indictment and to suppress certain statements.
Defendant was convicted of violating 18 U.S.C. § 2252A(a)(5)(B) (possession of child pornography). Defendant was sentenced to 21 months incarceration followed by 20 years of supervised release. In April 2008, Defendant was released to supervision. He moved into his brother's residence in Afton, New York. During a mental health counseling session, Defendant admitted engaging in certain conduct. The counselor instructed Defendant to inform the probation officer of the conduct within one week or else she would. In February 2009, Defendant reported to the probation officer that he had been accessing his brother's laptop computer since July 2008 to view child pornography. Defendant also admitted that he unsuccessfully tried to access chat rooms.
The probation officer notified an FBI agent of the information provided by Defendant and also contacted the United States Attorneys Office ("USAO"). The USAO commenced a criminal investigation of Defendant in February 2009. The probation officer, together with the FBI agent, prepared an affidavit in support of the application for a search warrant of Defendant's residence.*fn1 The USAO prepared and drafted a search warrant and a sealing order. The probation officer and an Assistant United States Attorney appeared before this Court to obtain the warrant. The Court reviewed the supporting information, observed the probation officer sign the supporting affidavit, and issued the warrant.
On February 19, 2009, the warrant was executed by members of the FBI and of the USPO. The FBI agents seized and took custody of certain items. The probation officer briefed an Assistant United States Attorney of the results of the search. The seized laptop computer was delivered by the FBI to the Broome County Security Division for forensic analysis.
On July 10, 2009, Defendant appeared at the USPO for an office visit. The probation officer questioned Defendant concerning the images located on the laptop computer. Defendant admitted accessing and viewing the images.
On August 6, 2009, the probation officer, together with the Assistant United States Attorney, prepared a criminal complaint. On August 7, 2009, Defendant was arrested on the criminal complaint. On August 18, 2009, an Indictment was returned against Defendant charging him with violation 18 U.S.C. § 2252A(a)(5)(B).
Presently before the Court is Defendants' motion to dismiss the indictment and suppress evidence.
a. Whether The USPO Exceeded Its Statutory Authority or Violated the Separation of Powers
Defendant moves to dismiss the Indictment on the ground that the USPO exceeded its authority in investigating Defendant for new criminal conduct, providing an affidavit in support of the search warrant, assisting in the execution of the search warrant, and filing a criminal complaint.
The duties of a probation officer are set forth in 18 U.S.C. § 3603. Those duties include "keep[ing] informed, to the degree required by the conditions specified by the sentencing court, as to the conduct . . . of a probationer or a person on supervised release. . .," and "keep[ing] informed concerning the conduct, condition, and compliance with any condition of probation. . . ." 18 U.S.C. §§ 3603(2), (7). To fulfill these duties, the probation officer necessarily serves in an investigative role. See United States v. Davis, 151 F.3d 1304, 1306 (10th Cir. 1998) (noting that the probation officer serves as an investigative and supervisory arm of the court); see also Pennsylvania Bd. of Probation and Parole v. Scott, 118 S.Ct. 2014, 2025 (1998) ("Parole officers wear several hats; while they are indeed the parolees' counselors and social workers, they also 'often serve as both prosecutors and law enforcement officials in their relationship with probationers and parolees.'") (quoting N. Cohen & J. Gobert, Law of Probation and Parole § 11.04, p. 533 (1983)).
In this case, all investigative activities by the USPO related to whether Defendant was complying with the conditions of his supervised release. This is within the statutory duties of a probation officer. Specifically, the USPO investigated whether Defendant was accessing child pornography in violation of the terms of his supervised release. That the information obtained by the USPO also ...