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United States v. Hardesty

United States District Court, D. Montana, Billings Division

January 25, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
DESMOND DIMETRIUS HARDESTY, Defendant.

          OPINION & ORDER

          SUSAN P. WATTERS United States District Judge.

         Defendant Desmond Dimetrius Hardesty is charged with Receipt and Possession of Child Pornography. (Doc. 2). He has moved to suppress evidence under the Fourth Amendment and Fifth Amendment. (Doc. 19).

         On January 19, 2018, the Court held an evidentiary hearing. The Court heard testimony from Montana State Probation and Parole Officers Sean Daly and Josh Congleton. Having read and reviewed the parties' submissions and having heard the testimony of the witnesses noted above, the Court DENIES Hardesty's motion.

         I. Statement of Facts

         A. Hardesty's conditions

         In January 2006, Judge Molloy sentenced Hardesty to 51 months of imprisonment and three years of supervised release for receipt and possession of child pornography. (See CR-05-30-M-DWM, Doc. 28). In March 2007, Hardesty received 10 years suspended for felony Sexual Assault in Montana state court for assaulting his minor daughter. (Doc. 23-1). The state sentence contained 46 conditions and was ordered to run consecutive to his federal sentence. (Id.). The conditions, in relevant part, provided that:

1. The Defendant be placed under the supervision of the Department of Corrections, subject to all rules and regulations of the Adult Probation and Parole Bureau.
2. The Defendant will not own, possess, or be in control of any firearms or deadly weapons, including black powder, as defined by state or federal law. The Defendant will not possess chemical agents such as O.C. spray.
3. Upon reasonable suspicion, as ascertained by the Probation and Parole Officer, the Defendant's person, vehicle, and/or residence may be searched at any time, day or night, without a warrant by a Probation & Parole Officer, ISP Officer or a Law Enforcement Officer (at the direction of the Probation & Parole/ISP Officer). The Defendant may also be searched at his place of employment.
. . .
24. The Defendant will enter and successfully complete sex offender treatment with an MSOTA clinical member or associate member with supervision, or equivalent, who is approved by the State and the supervising officer and at his/her expense. The Defendant shall abide by all treatment rules and recommendations of his/her treatment provider.
. . .
33. The Defendant shall not have access to the Internet without prior permission from his supervising officer and sex offender therapist. If Internet access is allowed, the Offender must allow the DOC to install rating control software and conduct random searches of the hard drive for pornography or other inappropriate material nor shall s/he have on any computer s/he may own, any software that is intended for data elimination, encryption or hiding data.
34. The Defendant will not access or have in their possession or under their control any material that describes or depicts human nudity, the exploitation of children, consensual sex acts, non-consensual sex acts, sexual acts involving force or violence, including but not limited to; computer programs, computer links, photographs, drawings, video tapes, audio tapes, magazines, books, literature, writings, etc., without prior written approval of his supervising officer and therapist. The Defendant will destroy or relinquish any such material that he currently has in his possession[.]
. . .
37. The Defendant will not have a cell phone, or other such technology/device, with photo, video, or Internet capabilities allowed. If a cell phone is used, all bills and records will be made available to the supervising officer.

(Doc. 23-1).

         Hardesty's federal sentence concluded in March 2012, and his state supervision began. In addition to the above conditions, in October 2012, he also agreed to the following relevant State of Montana Probation and Parole Bureau conditions:

1. My residence must be approved by a Probation/Parole Officer. I will not change my place of residence without first obtaining written permission from a Probation/Parole Officer. I will make my home open and available for Officer to visit or search upon reasonable suspicion. I ...

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