United States of America v. Desmond Dimetrius Hardesty

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DESMOND DIMETRIUS HARDESTY,
Defendant-Appellant.
No. 18-30173
D.C. No.
1:17-cr-00095-SPW-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Montana
Susan P. Watters, District Judge, Presiding
Submitted July 10, 2019**
Portland, Oregon
Before: FERNANDEZ, GRABER, and OWENS, Circuit Judges.
Desmond Dimetrius Hardesty appeals from his conviction for receipt of
child pornography in violation of 18 U.S.C. § 2252(a)(2). We have jurisdiction
under 28 U.S.C. § 1291. We affirm.
Hardesty argues that the district court erred in denying his motion to
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
JUL 12 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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suppress evidence collected during a second warrantless search of his home. “We
review de novo a district court’s denial of a motion to suppress, reviewing for clear
error the district court’s underlying factual findings.” United States v. Lara, 815
F.3d 605, 608 (9th Cir. 2016) (citation omitted). We also review de novo whether
a warrantless search was reasonable. United States v. Cotterman, 709 F.3d 952,
959–60 (9th Cir. 2013) (en banc).
A search’s reasonableness “is determined by assessing, on the one hand, the
degree to which it intrudes upon an individual’s privacy and, on the other, the
degree to which it is needed for the promotion of legitimate governmental
interests.” United States v. Knights, 534 U.S. 112, 118–19 (2001) (internal
quotation marks and citation omitted). Hardesty had a low expectation of privacy
given his status as a probationer and his underlying conviction for sexually
assaulting his juvenile daughter. See United States v. King, 736 F.3d 805, 809 (9th
Cir. 2013) (“Defendant’s expectation of privacy was small, in light of the serious
and intimate nature of his underlying conviction . . . .”). Moreover, Hardesty was
“unambiguously informed” of his two probation conditions permitting warrantless
searches with only reasonable suspicion. Knights, 534 U.S. at 119.
In contrast, the government had a strong interest in protecting the public
from Hardesty’s recidivism. See King, 736 F.3d at 809. Despite minor
inconsistencies in their reports, the probation officers had reasonable suspicion to

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conduct the second search. The officers confiscated 300 pages of handwritten
pornography that hinted at a trading system of child pornography, and Hardesty
himself admitted he still may have had pornography in his residence. To the extent
Hardesty argues that the probation officers collaborated with police to evade
obtaining a search warrant, his argument is unpersuasive.
Because Hardesty’s low expectation of privacy was outweighed by the
government’s interest in confronting Hardesty’s recidivism, the second search was
reasonable.
AFFIRMED.

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