United States v. Alan Berger, 823 F.3d 1174

Defendant Alan Berger was on supervised release for a 2003 conviction for using the internet to solicit sex from a minor; special conditions prohibited internet access and possession of internet-capable software on any hard drive without prior written PO approval and required home visits and seizure of contraband in plain view.
During a June 8, 2012 home visit, probation officers observed a computer, Xbox, and wireless device in plain view; Berger admitted internet use and volunteered that he purchased a hot tub via Craigslist.
PO McKinney presented a written consent-to-search form explaining Berger could refuse and withdraw consent; Berger signed, consented, and surrendered an internet-capable cell phone; officers seized an external Seagate hard drive, USBs, and CDs, which Berger acknowledged on a signed inventory.
Probation officers informed Berger they would examine the seized devices and would file a violation report; they later conducted a forensic examination of the external hard drive and found numerous files and images consistent with child pornography.
Berger was charged under 18 U.S.C. §§ 2252A(a)(5)(B) and (b)(2) for possession of child pornography; he moved to suppress evidence from the forensic exam, arguing the exam exceeded the scope of the consent; the district court denied suppression and sentenced Berger to 120 months following a conditional guilty plea.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the forensic examination of the seized external hard drive exceeded the scope of Berger’s consent to search	Berger: Consent to search home did not authorize forensic examination of hard drive; that exceeded scope of written consent	Govt: Berger gave voluntary consent to a complete search of the premises and devices; devices seizure and forensic exam were reasonable given supervised-release conditions and observed indicia of internet use	Court held the forensic exam was within the scope of consent and therefore reasonable; suppression denied
Whether Berger’s supervised-release conditions diminished his expectation of privacy such that the search was permissible on that basis	Berger argued Fourth Amendment protections applied; challenged any warrantless search rationale	Govt relied on diminished expectation due to special conditions as alternative justification	Court found consent dispositive and declined to decide diminished-expectation issue

Florida v. Jimeno, 500 U.S. 248 (1991) (scope of consent measured by objective reasonableness)
United States v. Pennington, 287 F.3d 739 (8th Cir. 2002) (consent obviates need for warrant or probable cause)
United States v. Jenkins, 92 F.3d 430 (6th Cir. 1996) (consensual search principles)
United States v. Siwek, 453 F.3d 1079 (8th Cir. 2006) (scope inquiry asks what a reasonable person would understand)
United States v. Beckmann, 786 F.3d 672 (8th Cir. 2015) (consent to search computer can include attached external hard drive)
United States v. Burston, 806 F.3d 1123 (8th Cir. 2015) (standard of review: factual findings for clear error; legal conclusions de novo)