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David James Chandler v State of Alaska (4/23/2021) ap-2701

David James Chandler v State of Alaska (4/23/2021) ap-2701

                                                      NOTICE
  

         The text of this opinion can be corrected before the opinion is published in the  

         Pacific Reporter.  Readers are encouraged to bring typographical or other formal  

         errors to the attention of the Clerk of the Appellate Courts:  



                                   303 K Street, Anchorage, Alaska  99501
  

                                              Fax:  (907) 264-0878
  

                                      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.  

                                                                                                               



                                                               - 2 -                                                          2701
  


----------------------- Page 3-----------------------

                                 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).  



                                                                                                   -  3 -                                                                                              2701
  


----------------------- 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  

                                                                                                                       



                                                              - 4 -                                                         2701
  


----------------------- 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 ... ."  



                                                                -  5 -                                                           2701
  


----------------------- 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).  



                                                                          -  10 -                                                                     2701
  


----------------------- 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.  



                                                                                                                                                -  11 -                                                                                                                                             2701
  


----------------------- 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.  



                                                                                     -  12 -                                                                                2701
  


----------------------- 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.  



                                                                                 -  13 -                                                                             2701
  


----------------------- 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.  



                                                                  -  14 -                                                              2701
  


----------------------- 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).  



                                                                                             -  15 -                                                                                        2701
  


----------------------- 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  

                                                                                                                              



                                                              -  19 -                                                         2701
  


----------------------- Page 20-----------------------

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."  

                                                                                                                      



                                                             - 20 -                                                          2701
  


----------------------- Page 21-----------------------

                    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:  

                                                                                                                                    



                                                              - 21 -                                                          2701
  


----------------------- Page 22-----------------------

                               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  

                                                                                                                                 



                                                              - 22 -                                                          2701
  


----------------------- 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.  

                                                  



                                                             - 23 -                                                          2701
  


----------------------- Page 24-----------------------

          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.  

                                                                                                                                     



                                                             - 24 -                                                          2701
  


----------------------- Page 25-----------------------

                    (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.  

                                                                



                                                             - 25 -                                                          2701
  


----------------------- 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  

                                                                                                                            



                                                              - 26 -                                                          2701
  


----------------------- 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.  



                                                                                         - 27 -                                                                                      2701
  

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