United States District Court, E.D. Louisiana
ORDER AND REASONS
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.
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.
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.
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.
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
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
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.
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.
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.
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
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,