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United States v. Ard

United States District Court, E.D. Louisiana

November 1, 2018


         SECTION “L”


         Before the Court is Defendant Randolph Ard's Motion to Suppress Evidence. R. Doc. 25. The Government opposes. R. Doc. 32. On September 27, 2018, the Court held an evidentiary hearing, and Defendant submitted supplemental briefing. R. Doc. 39. Having considered the parties' briefs, the applicable law, and heard the parties on oral argument, the Court now issues this Order and Reasons.

         I. BACKGROUND

         Defendant Randolph Ard (“Ard”) is charged with Possession of Child Pornography. The evidence in this case was discovered during a probation visit to Ard's residence pursuant to a state-court probation sentence. Ard moves to suppress the evidence seized from his home and inculpatory statements made while in custody, arguing that (1) his probation sentence was unlawful, or (2) the search of his home exceeded the scope of a reasonable probation visit.

         Ard was charged in the Twenty-First Judicial District Court for the Parish of Tangipahoa with two counts of Molestation of a Juvenile, two counts of Indecent Behavior with a Juvenile, and two counts of Pornography Involving Juveniles on September 27, 2010. Then, on February 9, 2012, Ard was charged in Tangipahoa Parish with fifteen counts of Pornography Involving Juveniles. He was represented by counsel in both matters.

         On March 6, 2013, Ard entered a no contest plea of guilty to one count of Indecent Behavior with a Juvenile and two counts of Pornography Involving Juveniles before Judge Douglas Hughes. His plea was pursuant to a plea agreement with an agreed upon sentence of nine years, with five years suspended, and a five-year probation sentence upon release.

         Ard was sentenced by a different judge, Judge Elizabeth Wolfe, on April 2, 2013. Judge Wolfe sentenced Ard consistent with the plea agreement, but neglected to advise him of his five-year term of probation upon release. On May 1, 2013, Ard reappeared before Judge Hughes, who originally presided over Ard's guilty plea. Judge Hughes explained Ard's sentence, reiterated the parties' understanding of the plea agreement, and advised Ard that his sentence included a five-year term of probation upon release. Ard did not appeal his sentence.

         On November 21, 2017, Ard reported to the Louisiana Probation and Parole Office with a broken GPS unit. Louisiana Probation and Parole (“LAPP”) Specialist Brian Phillips (“Specialist Phillips”) checked the GPS log of the unit and discovered that Ard had been tampering with his GPS since at least November 4, 2017. Specialist Phillips advised his supervisor of Ard's violations and contacted LAPP Agents Blake Phillips (“Agent Phillips”) and Shirley Verberene (“Agent Verberene”). The agents went to Ard's residence, placed him in handcuffs, and informed him that he was being detained pending an investigation of potential violations for tampering with his GPS unit.

         Under the terms of his probation, Ard was forbidden from using any social media sites. He was made aware of these terms upon release - the conditions of probation were read to him and he was required to acknowledge them with his signature. R. Doc. 32-6. Specialist Phillips, however, noticed an unlocked and illuminated computer tablet opened to the game “Candy Crush” inside Ard's home. Aware of the social media platform attached to the game, Specialist Phillips proceeded to check the tablet's internet history. Facebook and Twitter were the first two links that appeared.

         Specialist Phillips advised Ard that he was under arrest for violating his probation and read him his Miranda rights. When Specialist Phillips informed Ard that he would check his computer and other electronic devices for further violations, Ard replied “why don't you just go ahead and shoot me and get it over with.” The agents located a USB drive, inserted it into Ard's computer, and found several images of what appeared to be pornographic pictures of prepubescent female children. Specialist Phillips contacted Supervisor John Rohner, who advised him to contact the Attorney General's Office, Louisiana Bureau of Investigation (“LBI”) Internet Crimes Against Children Unit. Special Agent Preston Bennett advised Specialist Phillips to gather all electronic devices from Ard's home and wait for a member of their team to arrive.

         LBI Special Agents arrived at the scene and located hundreds of files and images of child pornography, and informed Ard that the evidence would be confiscated and subjected to a forensic search. Ard was re-read his Miranda rights, signed a written copy of his Miranda rights, and admitted to possession of child pornography during the post-Miranda interview. Ard was transported to the Tangipahoa Parish Prison and booked for probation violations and Possession of Pornography Involving Juveniles.

         On December 1, 2017, LBI Special Agent Bennett turned the seized evidence over to Special Agent Steve Dean with the U.S. Department of Homeland Security, Homeland Security Investigations (“HSI”). Special Agent Dean sought and obtained a federal search warrant for HSI computer examiners to conduct a forensic search of the electronic media seized from Ard's residence. HSI computer forensic examiners located 6, 806 images and 14 videos of child pornography on Ard's thumb drive, and 725 images on his computer.


         Ard moves to suppress the evidence seized from his home. First, he argues that the evidence must be suppressed because it was discovered pursuant to an illegally amended probation sentence. Louisiana Code of Criminal Procedure, Article 881(A) allows a trial court to amend a sentence “prior to the beginning of execution of the sentence.” After execution, the court is authorized to correct illegal sentences. See State v. Quang T. Do, 13-290 (La.App. 5 Cir. 11/19/13), 130 So.3d 377, 393; State v. Mitchell, 84-279 (La.App. 3 Cir. 3/6/85); 466 So.2d 514, 518. Finally, under Article 881.1, ...

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