22-178

United States v. Lajeunesse

1

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term 2022

(Argued: March 16, 2023 Decided: November 1, 2023)

Docket No. 22-178

_____________________________________

United States of America,

Appellee,

v.

Terry Lajeunesse,

Defendant-Appellant.

_____________________________________

Before:

LEVAL, CHIN, and LEE, Circuit Judges.

Terry Lajeunesse, a defendant in a criminal case, appeals from the 

judgment of conviction entered by the United States District Court for the 

Northern District of New York (Glenn T. Suddaby, J.) convicting him on his

plea of guilty to possession and receipt of child pornography, under 18 U.S.C. 

§ 2252A(a)(5)(B) and (b)(2) and 18 U.S.C. § 2252A(a)(2)(A) and (b)(1), and 

obstruction of justice under 18 U.S.C. § 1512(c)(2), contending that his Fourth 

Amendment rights were violated by a probation officer’s search of his cell 

phone and a further search by New York State Police, and that the trial court 

erred in failing to allow him allocution at sentencing. The government 

contends that his claim as to sentencing allocution is precluded by the appeal 

waiver he agreed to as a part of his plea agreement. We reject the 
2

government’s argument and REMAND for resentencing. We reject the 

defendant’s other arguments and AFFIRM the conviction.

JAMES P. EGAN, Assistant Federal Public 

Defender, Federal Public Defender’s 

Office, Syracuse, NY, for DefendantAppellant.

PAUL D. SILVER, Assistant U.S. Attorney 

of Counsel for Carla B. Freedman, 

United States Attorney for the Northern 

District of New York, Syracuse, NY, for

Appellee.

LEVAL, Circuit Judge:

Terry Lajeunesse, a defendant in a criminal case, appeals from the 

judgment of conviction entered by the United States District Court for the 

Northern District of New York (Glenn T. Suddaby, J.)1 convicting him on his 

plea of guilty to one count of possession of child pornography, under 18 

U.S.C. § 2252A(a)(5)(B) and (b)(2); one count of receipt of child pornography, 

under 18 U.S.C. § 2252A(a)(2)(A) and (b)(1); and one count of obstruction of 

justice, under 18 U.S.C. § 1512(c)(2). He contends that his Fourth Amendment 

1 Judge Norman A. Mordue ruled on Lajeunesse’s motion to suppress. Judge 

Suddaby presided over Lajeunesse’s plea proceedings and sentencing 

hearings.
3

rights were violated by a New York probation officer’s search of his cell 

phone and a further search by New York State Police, and that the trial court 

erred in failing to allow him allocution at sentencing. He was sentenced 

primarily to 198 months of imprisonment.

As part of his plea agreement, Lajeunesse retained the right to appeal 

the district court’s denial of his motion to suppress the evidence seized in two 

searches of his cell phone—one by probation officers, and a second search by 

the police—but otherwise waived his rights to appeal any sentence “to a term 

of imprisonment of 210 months or less.” App’x at 193–94. In response to 

Lajeunesse’s sentencing appeal, the government contends that, as his sentence 

was less than 210 months, this claim is barred by his appeal waiver. We reject 

the government’s argument and therefore remand for resentencing, at which 

Lajeunesse will be afforded the opportunity to address the court. With respect 

to the defendant’s Fourth Amendment claims, we reject them and, in that 

regard, affirm his convictions.

BACKGROUND

On June 6, 2018, in another case, Lajeunesse was convicted in the courts 

of the State of New York on one count of possessing a “sexual performance”
4

by a child—that is, a visual representation of sexual conduct involving a 

child—in violation of N.Y. Penal Law § 263.16. Lajeunesse was placed on

interim probation for one year. Among the terms of his probation, Lajeunesse

was required to comply with over forty general and special conditions. These 

conditions included his consent to home visits by his probation officer and to 

unannounced examinations of all of his electronics “by the supervising 

Probation Officer or designees” including any cell phones to which he had 

access. App’x at 155 ¶ 3, 157 ¶ 24. For electronic devices and applications that 

were password protected, he was required to provide the passwords to his 

probation officer. He was also prohibited from using social media without 

permission and from interacting with anybody under the age of 18, whether 

in person or online, without supervision. The probation conditions most 

relevant to this case are set forth below:

1. Have no deliberate contact with persons under the age of 18 unless 

supervised by a person approved by your probation officer or the 

Court and only under circumstances approved by your probation 

officer or the Court. . . .

9. Permit search of your person, vehicle and place of abode, including any 

computers or other electronic devices, . . . such search to be conducted by a 

Probation Officer or a Probation Officer and his agent. . . .
5

12. Shall abide by such curfew as directed by your Probation Officer 

and shall be at your residence at the hours established in your curfew. 

(10pm–6am) . . .

14. Not to use/possess/view pornography, erotica, or any other sexually 

stimulating material/media or items. . . .

19. Not purchase, possess, or indulge in the use of alcohol or products 

that contain alcohol. . . .

24. You will agree to unannounced examination by the supervising Probation 

Officer or designees of any and all computer(s) and/or other electronic 

device(s) to which you have access. This includes access to . . . cell phones, 

. . . This examination may be conducted where the equipment is located 

or may be removed and examined in a controlled or laboratory facility. 

If a device/program is password protected, probationer shall disclose 

said password to his/her Probation Officer. . . .

36. The Probation Officer shall have the ability to search social 

networking internet sites and/or programs for probationer information. 

If the internet site/program is password protected, the probationer shall 

disclose said password to his/her probation officer.

37. You are prohibited from using the internet to: access pornographic 

material and/or any commercial social networking website; communicate 

with other individuals or groups for the purpose of promoting sexual 

relations with any person(s) under the age of 18; communicate with a 

person under the age of 18 when you are over the age of 18. 

Id. at 123–26 (emphases added). In the New York State proceeding, 

Lajeunesse was read these terms, signed his acknowledgment that he had 

read and understood the conditions of his probation, and affirmed his 

understanding that, should he violate the terms, his interim probation could 
6

be revoked. Warren County Probation Officer Murray was assigned to 

supervise Lajeunesse’s probation.

On February 23, 2019, Officer Murray received a tip from Lajeunesse’s 

ex-wife, who had known Lajeunesse “for many years.” Id. at 43. She informed 

Officer Murray that Lajeunesse has been: “dating a teenage girl” who is “so 

young and vulnerable,” and “staying over at her house frequently overnight

and drinking,” conducting “alarming” activity on Facebook, and “pray[ing] 

on [sic]” other teenage girls overseas. Id. at 43, 169. The informant also 

referred Officer Murray to the Facebook page of the supposedly teenage girl 

whom Lajeunesse was allegedly dating. 

Upon examining the Facebook page, Officer Murray concluded that the 

girl appeared to be under the age of 18, but he was unable to determine her 

age from that source. He found evidence that Lajeunesse had been 

communicating with the girl through a Facebook account that he had not 

registered with Officer Murray, as required by the terms of Lajeunesse’s 

probation. Officer Murray contacted a Task Force Officer of the Federal 

Bureau of Investigation (FBI), asking for assistance to search Lajeunesse’s 
7

phone, but was told that the FBI would not review the phone without a 

search warrant. 

On March 11, 2019, about two weeks after receiving the tip, Officer 

Murray conducted a scheduled visit at Lajeunesse’s home to determine

whether he was complying with his probation conditions. He asked to see 

Lajeunesse’s cell phone and Lajeunesse handed it to him. When Officer 

Murray opened the phone, he saw a picture of the girl from the Facebook

page. Lajeunesse said that he had been in a sexual relationship with her since 

November 2018 and that she was 19 years old, nearly 20. Murray later 

confirmed that what Lajeunesse said about the young woman’s age was 

accurate. 

After seeing the photo and hearing about Lajeunesse’s sexual 

relationship with the girl who appeared to be underage, Officer Murray 

requested assistance from two other probation officers who had more 

familiarity with cell phones. One of these probation officers, while conducting

a “cursory search” of the phone, found a file showing what appeared to be

two teenage girls, one of whom was naked and seemed to be about 13 or 14 

years old. App’x at 170. The officers also found what they believed to be a 
8

media storage application, which they could not open because Lajeunesse 

claimed not to know the pin number needed to unlock the application. At this 

point, Officer Murray seized the phone in order to conduct “a full forensic 

search based on the presence of child pornography, and subject to the 

conditions of [d]efendant’s probation.” Id.

Officer Murray again reached out to the FBI Task Force Officer for 

assistance with the phone, but she again declined to search the phone without 

a warrant. Murray then asked New York State Police Investigator John 

Deyette to assist “as an agent of probation.” Id. at 171. Deyette made a 

forensic examination of the phone, which uncovered several images and 

videos of sexually explicit conduct involving minors. Lajeunesse was arrested

by New York State authorities on April 2, 2019, at which time the State Police 

seized a second phone belonging to Lajeunesse. In June 2019, the FBI began 

investigating Lajeunesse’s use of the two cell phones and obtained a warrant 

to search the second cell phone. The FBI’s investigation resulted in a federal 

indictment on October 16, 2019, for the child pornography offenses. In 2020, 

Lajeunesse moved to suppress the material obtained through the searches of 

his cell phones. Judge Mordue denied the motion on November 24, 2020. 
9

In September 2019, while Lajeunesse was being held on these charges, 

he sent two letters to his then 16-year-old son, asking him to claim 

responsibility for the pornography so as to “create a little reasonable doubt” 

by saying that “you used my phone because yours was broken and you went 

on a file sharing site and downloaded some files on accident key word 

‘accident’ . . .” and adding that “[y]ou were 14 at the time so they wouldn’t be 

able to do Jack Shit to you anyway.” Id. at 268; 278–79. On the basis of these 

letters, on August 12, 2021, Lajeunesse was charged by superseding 

information with one count of obstruction of justice, pursuant to 18 U.S.C. 

§ 1512(c)(2), in addition to the child pornography charges.

On the same day, Lajeunesse entered into an agreement to plead guilty, 

conditional on preserving his right to appeal the denial of his motion to 

suppress. As part of the plea agreement, Lajeunesse waived his right to 

“appeal and/or to collaterally attack . . . [a]ny sentence to a term of 

imprisonment of 210 months or less; . . . .” Id. at 193 ¶ 7(d). At Lajeunesse’s

plea hearing, the district court confirmed that Lajeunesse had waived his 

right to indictment by a grand jury and understood the consequences of 

pleading guilty. The court explicitly asked Lajeunesse if he understood that 
10

he would be unable to appeal his sentence, per the plea agreement, if the 

court sentenced him to fewer than 210 months of imprisonment and 

Lajeunesse responded that he understood. Id. at 243. 

Lajeunesse’s sentencing proceedings were held on January 26, 2022.

Prior to the proceedings, Lajeunesse had written a letter to the court, which 

his attorney referenced in his filings. After verifying that Lajeunesse was

present and that there were no remaining objections, the court gave the 

government an opportunity to speak. The government rested on its papers. 

The court then addressed Lajeunesse’s lawyer, directly. Id. at 273 (“Mr. 

Primomo, when you’re ready, sir, you can go ahead.”). Referring to 

Lajeunesse’s letter in his statement, Lajeunesse’s lawyer urged the court to 

sentence Lajeunesse to no more than the mandatory minimum term of 180 

months, emphasizing that Lajeunesse had been in a vulnerable place when he 

asked his son to take the blame for the child pornography found on his

phone, that he had had a dysfunctional youth, and that he had accepted the 

consequences of his actions. Id. at 274–76. Defense counsel also asked the 

court not to allow the conditional nature of the guilty plea—retaining

Lajeunesse’s right to appeal the motion to suppress—to affect his sentence. 
11

After defense counsel’s statement, the court gave assurance that it 

would not consider the motion to suppress in sentencing and then, without 

having asked whether Lajeunesse would like to address the court, declared

itself ready to impose sentence. Id. at 277. Without specifically mentioning 

Lajeunesse’s personal letter to the court, the court stated that it had reviewed 

“all pertinent information . . . .” Id. Having found the guideline sentencing 

range to be 180 to 210 months, the court sentenced Lajeunesse to 198 months 

in prison followed by 20 years of supervised release. Id. at 281–82.

The court did not address Lajeunesse directly at any time during the 

sentencing hearing, except to ask if he waived a reading of special conditions 

that would be applicable during his supervised release. At no time during the 

proceeding was Lajeunesse asked whether there was anything he wanted to 

say to the court or otherwise given an opportunity for allocution. Neither 

Lajeunesse nor his attorney raised any objection to the lack of offer to allocute

during the sentencing hearing. 
12

DISCUSSION

I. Motion to Suppress

Lajeunesse argues that the evidence obtained from his cell phone 

should be suppressed because the searches were unconstitutional under the 

Fourth Amendment. He argues that the evidence from the first search should 

be suppressed because: (1) even with Lajeunesse’s diminished privacy 

interests as a probationer, the probation officers were required to have

reasonable suspicion for the search of his cell phone; (2) the probation officers

did not have reasonable suspicion that Lajeunesse was in a relationship with 

an underage girl or that he possessed illicit images; and (3) therefore, because

Officer Murray had reasonable suspicion only that Lajeunesse was using 

Facebook, the probation officers were at most entitled to search his phone for 

evidence that he was violating the social media condition of his probation.

Appellant’s Br. at 17 (citing United States v. Chirino, 483 F.3d 141, 148 (2d Cir. 

2007)); id. at 18–20. He contends that the evidence from the later search by the 

New York State Police should be suppressed as fruit of the poisoned tree. Id.

at 23 (citing Wong Sun v. United States, 371 U.S. 471, 484–85 (1962)).
13

The government contends that the probation officers’ search of the cell 

phone was “rationally and reasonably related to the performance of Probation 

Officer Murray’s duties” such that it was a constitutional search under the 

special-needs exception to the Fourth Amendment. In addition, the 

government argues that because the search was supported by reasonable 

suspicion that the phone contained child pornography and probable cause 

that Lajeunesse was violating the social media terms of his probation, it was

reasonable under the totality of the circumstances because of Lajeunesse’s 

diminished expectation of privacy as a probationer who had agreed to a 

search condition. Appellee’s Br. at 31–33. Even if the search is found to be

unreasonable, the government argues that the exclusionary rule should not 

apply. 

Judge Mordue denied Lajeunesse’s motion to suppress because Officer 

Murray “had reasonable suspicion to believe that [Lajeunesse] was violating 

the terms of his probation and/or committing new crimes based on the tip 

from Defendant’s ex-wife, [Lajeunesse’s] criminal history, the girl’s Facebook 

profile, and [Lajeunesse’s] apparent communications with her via Facebook” 

meaning the search was “within the scope of the terms of [his] probation, 
14

rationally related to the duties of Officer Murray, and reasonable under the 

circumstances.” App’x at 176. The district court also found that “[Lajeunesse] 

consented to the initial search of his cell phone, which arguably provided an 

independent basis to proceed.” Id.

When reviewing a district court’s denial of a motion to suppress, we 

review findings of fact for clear error and legal findings de novo. United States 

v. Chandler, 56 F.4th 27, 40 (2d Cir. 2022); see also Chirino, 483 F.3d at 148; 

United States v. Bershchansky, 788 F.3d 102, 108–09 (2d Cir. 2015). We agree

with the district court and affirm the denial of Lajeunesse’s motion to 

suppress.

The parties’ briefs focus on the metes and bounds of the special-needs 

exception to the Fourth Amendment and whether or not there was reasonable 

suspicion to search Lajeunesse’s phone. We find this perplexing because 

Judge Mordue noted that Lajeunesse had consented to the initial search of his 

cell phone by giving Officer Murray his phone upon the officer’s request. In 

addition, Lajeunesse had given his signed agreement to a condition of 

probation that he would agree to unannounced searches of his cell phone by 

his probation officer and the officer’s designees. It seems likely—although we 
15 

do not reach a conclusion on the question—that Lajeunesse had thus 

consented to the search to which he now objects.2 Consent is a longrecognized, well-settled exception to the warrant and probable cause 

requirement. See, e.g., Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973); 

United States v. Bracer, 342 F.2d 522, 524–25 (2d Cir. 1965). 

Because the government has not argued that Lajeunesse’s consent alone 

was sufficient to legitimate the probation officer’s search, we will examine 

also whether the searches were valid in considering the totality of the 

circumstances under two standards discussed in Supreme Court opinions. 

1. The search was constitutional under the standard articulated by United 

States v. Knights

The Fourth Amendment protects “[t]he right of the people to be secure 

in their persons, houses, papers, and effects, against unreasonable searches 

2 Lajeunesse possibly consented to a search by handing his cell phone to 

Officer Murray, at the officer’s request, with the knowledge that he had, as a 

term of his probation, agreed to searches of all applications on his phone. A 

typical reasonable person, knowledgeable of this agreement, might infer that 

Lajeunesse, by handing over his phone to Officer Murray, had agreed to a 

general search of his phone—as outlined in the terms of his probation—to 

ensure he was complying with the terms of his probation. See Florida v. Jimeno, 

500 U.S. 248, 251 (1991) (explaining that the scope of consent is limited by 

objective reasonableness).
16

and seizures . . . .” U.S. Const. amend. IV. Typically, for a search to be 

reasonable, a warrant must be issued, supported by probable cause. See, e.g., 

Schneckloth, 412 U.S. at 219.

In United States v. Knights, however, the Supreme Court held that, when 

viewing “the totality of the circumstances,” the legitimate expectation of 

privacy of a probationer subject to a search condition was so diminished that 

a police officer could constitutionally search the probationer’s apartment

based on only reasonable suspicion. 534 U.S. 112, 118–21 (2001). Because 

reasonable suspicion existed in that case, the Court did not clarify whether 

reasonable suspicion was necessary or merely sufficient to justify a search 

notwithstanding a probationer’s diminished expectation of privacy, id. at 120 

n.6, and declined to address whether the defendant’s signed agreement to the 

probation conditions requiring unannounced searches constituted consent, 

thus rendering reasonable suspicion unnecessary. Id. at 114, 118, 120 n.6; see 

also Schneckloth, 412 U.S. at 219 (explaining that consent is an exception to the 

warrant and probable cause requirement of the Fourth Amendment). The 

Court later held in Samson v. California that a search condition can so diminish 

a parolee’s expectation of privacy that the Fourth Amendment permits even a 
17

suspicionless search by a law enforcement officer, provided the search is not 

arbitrary or harassing. 547 U.S. 843, 847, 850, 856 (2006). This question has not 

been squarely addressed in the probationer context, and probationers are 

entitled to a greater degree of privacy than are parolees. Id. at 850; see also 

United States v. Newton, 369 F.3d 659, 665 (2d Cir. 2004). We need not address 

the question of whether a search condition requiring submission to searches 

can so diminish the expectation of privacy of a probationer that a 

suspicionless search would be constitutional under Knights, because Officer 

Murray clearly had reasonable suspicion that contraband or evidence of illicit 

activity could be found on Lajeunesse’s phone.

Lajeunesse’s expectation of privacy in his phone was “severely 

diminished” due to the fact that he had agreed to unannounced searches of all 

his electronics, including his cell phones, as a term of his probation, and 

signed a document outlining those terms. See United States v. Reyes, 283 F.3d 

446, 461 (2d Cir. 2002). This search condition included a warning that such 

searches may take place offsite, indicating that even forensic searches were 

within the scope of the provision, and required Lajeunesse to agree to provide 

passcodes to his devices and their internal applications. As in Knights, “the 
18

probation order clearly expressed the search condition and [Lajeunesse] was 

unambiguously informed of it.” Knights, 534 U.S. at 119. Accordingly, as in 

Knights, reasonable suspicion is sufficient for a search of Lajeunesse’s phone 

to satisfy the Fourth Amendment. See United States v. Lifshitz, 369 F.3d 173, 181 

(2d Cir. 2004) (“Probationary searches—whether for law enforcement or 

probationary purposes—are acceptable under Knights if based upon 

reasonable suspicion (or potentially a lesser standard).”).

Reasonable suspicion exists when there are “specific and articulable 

facts which, taken together with rational inferences from those facts, 

reasonably warrant the intrusion on a citizen’s liberty interest.” United States 

v. Elmore, 482 F.3d 172, 178–79 (2d Cir. 2007) (alterations adopted) (quoting 

Terry v. Ohio, 392 U.S. 1, 21 (1968)). Reasonable suspicion “need not rise to the 

level required for probable cause, and . . . falls considerably short of satisfying 

a preponderance of the evidence standard.” United States v. Arvizu, 534 U.S. 

266, 274 (2002) (citation omitted). 

Officer Murray reasonably suspected that Lajeunesse was violating the 

terms of his probation and engaging in illegal activity. He had received a tip 

that Lajeunesse was breaking multiple terms of his probation, including by 
19

drinking, using social media, and breaking curfew, and that, most 

importantly, he was in a romantic relationship with a teenager described as 

“so young and vulnerable.” App’x at 43. The tip further alleged that 

Lajeunesse was interacting with other teenage girls on Facebook. Id. Officer 

Murray had corroborated elements of this tip by investigating the Facebook 

page of the teenager with whom Lajeunesse was allegedly in a relationship. 

He saw evidence that Lajeunesse had interacted with her Facebook page, and

her page contained pictures of a girl who appeared to be under 18. In 

addition, Officer Murray also knew that Lajeunesse was on probation because 

he had possessed child pornography. On our review, it appears that the 

probation conditions were designed as safeguards to prevent Lajeunesse from 

accessing child pornography or having inappropriate interactions with 

children. In fact, the same probation condition that forbade Lajeunesse from 

using social media also forbade him from accessing pornography websites 

and using the internet to contact underage people. Id. at 40 ¶ 37. Once Officer 

Murray had received the tip and confirmed that Lajeunesse was using an 

unregistered social media account to interact with at least one girl who 

appeared to be underage—and, on the basis of the tip, had reason to believe 
20

that he was dating that girl and spending the night at her house—he could

reasonably suspect not only that Lajeunesse was violating terms of his 

probation (terms that appeared to be calculated to prevent him from 

acquiring child pornography), but also that he was breaking the law by 

having a sexual relationship with an underage girl. 

Lajeunesse argues that, although Officer Murray had reasonable 

suspicion that Lajeunesse was violating the social media term of his 

probation, this did not entitle him to a general search of Lajeunesse’s phone, 

but only to a search for evidence regarding the social media condition. 

Lajeunesse also contends that before searching his phone, Officer Murray 

should have conducted an investigation to determine whether or not the 

teenager was, in fact, underage. Lajeunesse points to indicia on the Facebook 

page that the girl was not underage, such as that the tip had said Lajeunesse 

was staying at “her” house (as opposed to her parents’ house), that she was 

listed as being from one town but living in another, and that her profile 

suggested she was no longer attending high school. Appellant’s Br. at 20. In 

Lajeunesse’s view, Officer Murray’s failure to investigate further, combined 
21

with the fact that Lajeunesse told Murray that the girl was 19 years old, shows 

that the search was harassing or arbitrary. 

We do not find these arguments convincing. The violation of the social 

media term did not happen in isolation and must be considered in context, 

including, most importantly, that it supported Officer Murray’s reasonable

suspicion that Lajeunesse was dating an underage girl, and that Officer 

Murray knew about Lajeunesse’s past child pornography possession 

conviction. It was proper in these circumstances for Officer Murray to search 

the phone, after he had confirmed the violation of the social media term and 

that Lajeunesse was interacting with the girl. Cf. United States v. Massey, 461 

F.3d 177, 179 (2d Cir. 2006) (explaining that once a parole officer found a 

machete, she had reasonable suspicion to search for additional contraband).

Nor does the fact that Lajeunesse told Officer Murray that his girlfriend was 

19 years old or the fact that her Facebook page contained details that could be 

read to suggest she was of age mean that Murray was bound to take 

Lajeunesse at his word, particularly when Murray had seen evidence to the 

contrary—the photos on the Facebook page—suggesting she was underage. 

Just as an officer conducting an arrest is not required to consider every 
22

alternative explanation of innocence, Murray was not obligated to accept 

Lajeunesse’s self-serving contention that she was of age. See, e.g., Ricciuti v. 

N.Y.C. Transit Auth., 124 F.3d 123, 128 (2d Cir. 1997); see also Martinsky v. City 

of Bridgeport, 504 F. App’x 43, 46 (2d Cir. 2012) (summary order). To conclude 

otherwise would allow any probationer to evade detection by lying. 

Finally, Lajeunesse argues that this search is “particularly troubling” 

because it was a search of a cell phone, Appellant’s Br. at 22, noting that the 

Supreme Court ruled in Riley v. California that the search of a cell phone 

incident to arrest was not permissible under the Fourth Amendment. 573 U.S. 

373, 401–02 (2014).3 Notwithstanding that Riley gave cell phones a broader 

scope of protection under the Fourth Amendment than physical space, id. at 

3 Lajeunesse also cites to United States v. Fletcher as additional support that 

phones should be treated differently in these circumstances. In that case, 

however, the search at issue was unreasonable because the probationer’s cell 

phone was not subject to a search condition and, therefore, the search of his 

phone fell outside of the regulation authorizing probation searches and was 

not a special-needs search. 978 F.3d 1009, 1018 (6th Cir. 2020). The search in 

that case was also found to be unreasonable under the totality of the 

circumstances, applying the United States v. Knights framework, because “[the 

defendant’s] probation agreement could have but did not authorize the search 

of his cell phones or digital devices.” Id. at 1020. Here, Lajeunesse’s probation 

conditions explicitly include a search condition for all electronics, including 

his cell phone, and any storage application on those electronics.
23 

386, we do not construe that ruling as implying that these circumstances 

would not justify Murray’s search of Lajeunesse’s cell phone.

Because Officer Murray reasonably suspected that Lajeunesse’s phone 

would show violations of the terms of his probation and/or illegal activity,

and because Lajeunesse’s expectation of privacy was further steeply 

diminished on account of the terms of his probation, we conclude that the 

search of his phone was reasonable under the Fourth Amendment.

2. The search was also constitutional under the “special-needs” exception 

of Griffin v. Wisconsin 

We also examine the search under the special-needs analysis of Griffin 

v. Wisconsin. 

In Griffin, the Supreme Court identified an exception to the warrant and 

probable cause requirement of the Fourth Amendment, ruling that the 

“special need” of a state operating a probation system “permit[s] a degree of 

impingement upon privacy that would not be constitutional if applied to the 

public at large.” 483 U.S. 868, 875 (1987). In Griffin, the warrantless search of a 

probationer’s home by a probation officer was held reasonable because “it 

was conducted pursuant to a valid regulation governing probationers.” Id. at 

880. As we have previously explained, the “special-needs” framework 
24

espoused in Griffin rests on the “rehabilitative relationship between the 

[probationer] and the [probation] officer, and thus [does] not extend[] to other 

law enforcement officers unless they are acting under the direction of the 

[probation] officer.” United States v. Braggs, 5 F.4th 183, 188 (2d Cir. 2021) 

(quoting United States v. Freeman, 479 F.3d 743, 748 (10th Cir. 2007)). 

Otherwise, the special-needs framework is more deferential to the needs of 

the probation system than the Knights framework and requires only that the 

search be “conducted pursuant to a valid regulation governing probationers.” 

Griffin, 483 U.S. at 880; id. at 873 (“The search of Griffin's home satisfied the 

demands of the Fourth Amendment because it was carried out pursuant to a 

regulation that itself satisfies the Fourth Amendment's reasonableness 

requirement under well-established principles.”); Braggs, 5 F.4th at 187 n.4

(citing United States v. Quinones, 457 F. App'x 68, 69 n.1 (2d Cir. 2012)

(summary order)). We find that this requirement was met.

The search of Lajeunesse’s phone was pursuant to a court-ordered 

probationary condition, which “carries as much if not more constitutional 

weight” as a regulation applicable to all probationers. People v. Hale, 93 

N.Y.2d 454, 460 (N.Y. 1999); see also United States v. Grimes, 225 F.3d 254, 258 
25

n.3 (2d Cir. 2000) (per curiam) (“The critical question, for Fourth Amendment 

purposes, is whether the regulation contains a reasonableness requirement (or 

some more stringent standard); it is not which branch of Government 

generated the rule.”); United States v. Giannetta, 909 F.2d 571, 575 (1st Cir. 

1990). Under New York law, a probation officer may search a probationer 

pursuant to a search condition, if the scope of the search condition is

“circumscribed to specified types of searches by probation officers acting 

within the scope of their supervisory duty and in the context of the 

probationary goal of rehabilitation.” Hale, 93 N.Y.2d at 460, 462.4 The New 

York Court of Appeals has explained that this standard is “essentially” the 

same as the limitation on searches by parole officers, which is that a search 

must be rationally and reasonably related to the parole officer’s duties. People 

v. Jackson, 46 N.Y.2d 171, 175 (N.Y. 1978); People v. Huntley, 43 N.Y.2d 175, 181 

(N.Y. 1977).5 With respect to parolees, we have long held that a requirement 

4 Absent a search condition, the state imposes further limitations on the search 

of a probationer. N.Y. Crim. Proc. L. § 410.50; Hale, 93 N.Y.2d at 460, 462.

5 In People v. Jackson, the New York Court of Appeals explained that a 

requirement that a search be “consistent with the duty to supervise adherence 

to the conditions of probation or parole and the duty to influence the offender 
26

that a search be “rationally and reasonably related to the performance of [a]

parole officer’s duty” is a valid rule governing special-needs searches. United 

States v. Grimes, 225 F.3d 254, 258–59, 259 n.4 (2d Cir. 2000) (quoting Huntley, 

43 N.Y.2d at 181). By the same logic, a state law requirement that a search 

must be rationally and reasonably related to a probation officer’s duties is 

also consistent with the requirements of the Fourth Amendment.

As in Griffin, therefore, the search of Lajeunesse’s phone was pursuant 

to a valid rule, because it was authorized by a search condition that contained 

an acceptable court-made reasonableness limitation comporting with the 

Fourth Amendment. See Grimes, 225 F.3d at 258 n.3.6 We next assess whether 

to refrain from unlawful conduct” is “essentially” the same as the limitations 

on parole officers, 46 N.Y.2d at 175, which is that a search must be “rationally 

and reasonably related to the performance of the parole officer’s duty,” 

Huntley, 43 N.Y.2d at 181.

6 Certain search conditions may be too restrictive, too burdensome, or too 

intrusive to pass muster under the Fourth Amendment. See Lifshitz, 369 F.3d 

at 193 (finding that a probation requirement that the defendant install 

software that continuously monitored his computer usage may be an 

unconstitutional intrusion); United States v. Sofsky, 287 F.3d 122, 126–27 (2d 

Cir. 2002) (finding unconstitutional a probation condition that banned a 

defendant from using any computers and noting that a better approach 

would be unannounced inspections of the defendant’s computer). However, 

Lajeunesse has not challenged the conditions of his probation.
27

the search was permissible under that rule: was the probation officers’ search 

of Lajeunesse’s phone rationally and reasonably related to their roles as 

probation officers? It is clear that it was.

There can be no question that a search is rationally and reasonably 

related to a probation officer’s duties if the probation officer reasonably 

suspects that the probationer is violating a term of probation or is otherwise 

engaged in criminal behavior. See Griffin, 483 U.S. at 875 (explaining that 

restrictions placed on probationers “are meant to assure that probation serves 

as a period of genuine rehabilitation and that the community is not harmed 

by the probationer's being at large.”); Newton, 369 F.3d at 666 (explaining that 

“the obligation to detect and prevent parole violations . . . is part of a parole 

officer’s duty” (citation and quotation marks omitted)). Because we have 

already concluded that Officer Murray had reasonable suspicion to conduct 

this search, the search of Lajeunesse’s phone by Officer Murray (and the other 

probation officers acting under his direction) was rationally and reasonably 

related to Officer Murray’s duties as a probation officer. As such, it was 
28 

pursuant to a valid rule governing probationers and constitutional under the 

special-needs exception to the Fourth Amendment.7

3. The second search of Lajeunesse’s phone was not fruit of the poisoned 

tree 

Lajeunesse’s sole argument regarding a later search of his phone by the 

New York State Police is that it is the fruit of a poisoned tree because it was 

justified by the findings on the earlier cell phone search, which violated the 

Fourth Amendment. The argument has no validity because we have 

concluded that the initial search of Lajeunesse’s phone was reasonable under 

the Fourth Amendment. Because the initial search was constitutional, the 

subsequent search by the New York State Police, based in part on the earlier 

findings, was not the fruit of a poisoned tree. See Wong Sun v. United States, 

371 U.S. 471 (1962). The district court properly denied Lajeunesse’s motion to 

suppress. 

7 Needless to say, if Lajeunesse’s agreement to the conditions of probation 

requiring his assent to searches of his phone, coupled with his turning over 

his phone to Officer Murray upon his request, constituted consent to the 

search (a question on which we express no opinion), the Fourth Amendment 

would not require reasonable suspicion to justify the search. See, e.g., Knights, 

534 U.S. at 118, 120 n.6; Schneckloth, 412 U.S. at 219; Florida v. Jimeno, 500 U.S. 

at 249. 
29

II. Failure to Allow Allocution at Sentencing

Lajeunesse argues that the district court’s failure to provide him an 

opportunity for allocution at his sentencing requires that we vacate his 

sentence and remand for resentencing, notwithstanding his waiver of his 

rights to appeal a sentence to a term of imprisonment of less than 210 months

or his failure to object at sentencing. The government argues principally that 

Lajeunesse’s appeal waiver is broad and bars him from appealing his 

sentence, especially given this court’s presumption of enforceability of

appellate waivers. Lajeunesse argues that the language in his waiver was 

narrower than the type of language we have previously upheld and that it 

should not be enforced in this instance. 

We first assess whether Lajeunesse’s waiver bars him from appealing

this alleged error, and second, whether this allocution error, to which no 

objection was made during the sentencing proceeding, requires that the 

sentence be vacated. We hold that the appeal waiver does not bar this appeal

and that resentencing is required. 
30 

1. The appeal waiver does not bar this appeal

Lajeunesse’s plea agreement waived his right to appeal “any sentence 

to a term of imprisonment of 210 months or less.” App’x at 193. Because 

Lajeunesse was sentenced to a prison term of 198 months, the government 

asserts that he waived the right to appeal. Lajeunesse argues that his appeal 

waiver does not cover a procedural error such as allocution. Considering the 

appellate waiver in the context of the full plea agreement and in light of the 

importance of the right to allocution, we conclude that his broad general

waiver should be construed as not contemplating a scenario in which the 

district court failed to invite allocution and therefore does not cover it.

“We review plea agreements, including waivers of the right to appeal, 

de novo and in accordance with general principles of the law of contract.”

United States v. Green, 897 F.3d 443, 447 (2d Cir. 2018); see also United States v. 

Yemitan, 70 F.3d 746, 747 (2d Cir. 1995). But plea agreements are not ordinary 

contracts. Rather, we “temper the application of ordinary contract principles 

with ‘special due process concerns for fairness and the adequacy of 

procedural safeguards.’” United States v. Granik, 386 F.3d 404, 413 (2d Cir. 

2004) (quoting United States v. Altro, 180 F.3d 372, 375 (2d Cir. 1999)). Further, 
31

recognizing the government’s “awesome advantages in bargaining power” in

construing such agreements, we tend to favor the defendants in cases of 

doubt. United States v. Ready, 82 F.3d 551, 559 (2d Cir. 1996), superseded on other 

grounds as stated in United States v. Cook, 722 F.3d 477, 481 (2d Cir. 2013); see 

also United States v. Woltmann, 610 F.3d 37, 40 (2d Cir. 2010) (“Such contracts 

are narrowly construed.”). 

A plea agreement that waives the right to appeal a sentence is 

“presumptively enforceable” if it has been entered into “knowingly, 

voluntarily, and competently.” United States v. Riggi, 649 F.3d 143, 147 (2d Cir. 

2011) (first quoting United States v. Arevalo, 628 F.3d 93, 98 (2d Cir. 2010); and 

then quoting United States v. Gomez–Perez, 215 F.3d 315, 318 (2d Cir. 2000)).

Exceptions to this presumption “occupy a very circumscribed area of our 

jurisprudence.” Riggi, 649 F.3d at 147 (quoting Gomez-Perez, 215 F.3d at 319).

In part, this has been to preserve the value of an appellate waiver as a 

“bargaining chip” for the defendant. Yemitan, 70 F.3d at 748.

Nonetheless, not all appellate waivers are enforceable. Prior rulings

have shed some light on what sorts of errors may be found to fall outside the 

scope of a general appeal waiver. We have explained that “‘a defendant may 
32

be deemed incapable of waiving a right that has an overriding impact on 

public interests,’ . . . as such a waiver may ‘irreparably discredit[] the federal 

courts.’” Riggi, 649 F.3d at 148 (alteration in original) (quoting Ready, 82 F.3d 

at 555–56). For example, we have suggested that “a sentence tainted by racial 

bias could not be supported on contract principles, since neither party can be 

deemed to have accepted such a risk or be entitled to such a result as a benefit 

of the bargain.” Yemitan, 70 F.3d at 748; see also United States v. Jacobson, 15 

F.3d 19, 22–23 (2d Cir. 1994) (holding that an appellate waiver did not extend 

to “an arguably unconstitutional use of naturalized status as the basis for a 

sentence.”). We have also found that an appellate waiver did not extend to 

cover scenarios in which the district court rooted its decision in mistakes of 

fact. United States v. Liriano-Blanco, 510 F.3d 168, 174–75 (2d Cir. 2007) (finding 

that the appellate waiver did not cover court’s sentence when based on the

mistaken belief that the defendant had retained the right to appeal a relevant 

legal question).

We have enforced general appellate waivers as to claims of more 

clerical procedural errors. For example, we have construed general appellate 

waivers to cover instances in which a judge failed to provide a rationale for 
33

the particular sentence, in contravention to 18 U.S.C. § 3553(c)(1), although

noting that, “[a]t some point, . . . an arbitrary practice of sentencing without 

proffered reasons would amount to an abdication of judicial responsibility 

subject to mandamus . . . .” Yemitan, 70 F.3d at 748. Similarly, we have upheld 

general appellate waivers in cases where the district court failed to rule on 

objections to the Presentencing Report (PSR) and on requests for a downward 

departure, did not adopt the findings of the PSR, did not explain its analysis 

of the sentencing factors, and did not calculate a sentencing range. United 

States v. Buissereth, 638 F.3d 114, 117–18 (2d Cir. 2011). In so doing, however, 

we recognized that “it is apparent from the transcript . . . that the District 

Court gave due consideration to [the defendant’s] sentencing arguments.” Id.

at 118; see also Arevalo, 628 F.3d at 99 (upholding an appellate waiver when the

district court failed to make an explicit determination on facts in the PSR, but 

recognizing that the district court had “heard the parties’ objection” and 

“ultimately agreed . . . that the lower Guidelines range should apply”).

The nub of the appeal waiver analysis is “the nature of the right at issue 

and whether the sentence ‘was reached in a manner that the plea agreement 

did not anticipate.’” Riggi, 649 F.3d at 148 (quoting Liriano-Blanco, 510 F.3d at
34

174). Applying this framework, we now assess the nature of the right to 

allocution at sentencing and whether Lajeunesse’s plea agreement could have 

anticipated that his sentence would be reached without him having had an 

opportunity to address the court.

Although the right to allocution is not a constitutional right, this court 

has described it as an “absolute right.” United States v. Li, 115 F.3d 125, 132–33 

(2d Cir. 1997) (quoting United States v. Sparrow, 673 F.2d 862, 865 (5th Cir. 

1982)). The right has been codified in the Federal Rules of Criminal Procedure 

for over 80 years, and its history extends back much further. See Fed. R. Crim. 

P. 32(i)(4)(A)(ii) (“Before imposing sentence, the court must: . . . address the 

defendant personally in order to permit the defendant to speak or present any 

information to mitigate the sentence.”). The leading resource on the history of

allocution describes the practice as “of such ancientness that it is difficult, if 

not impossible, to discover its historical origin.” See Paul W. Barrett, 

Allocution, 9 MO. L. R. 115, 115 (1944). Allocution has its roots in common law, 

dating back to at least 1689. Id. at 121; see also Schwab v. Berggren, 143 U.S. 442, 

446 (1892) (tracing allocution to common law); Green v. United States, 365 U.S. 

301, 304 (1961) (same); see also Rex v. Royce, 4 Burr. 2073, 2086, 98 Eng. Rep. 81 
35

(K.B. 1767) (summarizing an allocution that occurred at sentencing). At 

common law, a bill of attainder—which prevented the family of the 

defendant from inheriting property or titles—could be reversed if allocution 

had not been offered. Barrett, Allocution at 129–30; see Anonymous, 3 Mod. 265, 

266, 87 Eng. Rep. 175 (K.B. 1689) (reversing a bill of attainder because the 

defendant was not given an opportunity to say “why sentence of death shall 

not pass upon him”); The King v. Speke, 90 Eng. Rep. 1047 (K.B. 1689–1712) 

(same); Rex & Regina v. Geary, 2 Salk. 630, 91 Eng. Rep. 532 (K.B. 1689–1712) 

(same).

Allocution is “designed to enable our system of justice to mete out 

punishment in the most equitable fashion possible, [and] to help ensure that 

sentencing is particularized and reflects individual circumstances.” Li, 115 

F.3d at 133 (quoting United States v. Barnes, 948 F.2d 325, 328 (7th Cir. 1991)). 

Given that about 98% of criminal convictions adjudicated in a U.S. district 

court are the result of a plea agreement, for nearly all convicted defendants, a 

defendant’s sole opportunity to address the court and share his or her story is

during allocution at sentencing. See Mark Motivans, Bureau of Justice 
36

Statistics, Federal Justice Statistics, 2020 at 10 (May 2022).8 We have observed 

that allocution humanizes the sentencing process, providing a defendant with 

an opportunity to be heard and reducing the appearance of “assembly-line 

justice.” Li, 115 F.3d at 133 (quoting Barnes, 948 F.2d at 331). 

In sum, while allocution is not a constitutional right, the right is a 

weighty one that is essential to the sentencing process and that carries 

important public policy implications. Furthermore, deprivation of allocution

is a far more substantial error than the clerical, non-prejudicial procedural 

errors for which we have enforced appellate waivers. See, e.g., Buissereth, 638 

F.3d 114; Arevalo, 628 F.3d at 99. Here, the nature of the error meant that the 

district court lacked access to important information—the defendant’s 

attitude towards his commission of the crime9—and is therefore more akin to 

8 Table 6 of this report shows that, in FY 2020, 90.9% of criminal cases in a U.S. 

district court resulted in convictions following a guilty plea. In comparison, 

1.7% of criminal cases resulted in convictions following a trial. This means 

that of the 92.6% of federal criminal cases that resulted in a conviction, 98.1% 

of those convictions were the result of a guilty plea. See also Mark Motivans, 

Bureau of Justice Statistics, Federal Justice Statistics, 2019 at 10 (Oct. 2021).

9 Lajeunesse’s letter to the court cannot, alone, provide this information. A 

face-to-face communication gives the court an infinitely better opportunity to 

evaluate the sincerity of claims of contrition and remorse than a letter. 
37

a case where the district court rooted its decision in mistaken fact. LirianoBlanco, 510 F.3d at 174. The guideline sentencing range was 180 to 210 months

imprisonment and surely, the defendant’s remorsefulness—or lack thereof—

could have impacted the district court’s sentencing decision.

We next consider whether Lajeunesse’s plea agreement should be 

construed as including an agreement on Lajeunesse’s part to give up his right 

to this statutorily-guaranteed opportunity to address the court as to his 

sentence, in the event the court erroneously failed to accord him the right.

Lajeunesse’s plea agreement waived his right to appeal “[a]ny sentence to a 

term of imprisonment of 210 months or less.” App’x at 193. This waiver is 

broad on its face, but when viewed in the context of the entire contract and 

against the backdrop of the magnitude of the right to allocution, we find it 

cannot be reasonably read to have contemplated this scenario, in which

Lajeunesse would be deprived of his right to allocution. The agreement seems 

to take Lajeunesse’s allocution as a given. For example, the agreement 

explains, “The defendant understands that the sentencing court may consider 

Furthermore, some people, perhaps including Lajeunesse, may lack resources 

to communicate such sentiments in writing.
38

any statement that the defendant has made or makes in this Plea Agreement, 

during the guilty plea, to the Probation Office, and at sentencing when imposing 

sentence.” Id. at 197–98 (emphasis added). Similarly, should Lajeunesse breach 

the agreement, in future proceedings against him, the government may

“utilize any information, statement, or testimony provided by the defendant 

in any proceeding, including at sentencing . . . .” Id. at 205 (emphasis added).

It also seems to us that a circumstance, such as this one, where the 

district court fails to invite the defendant to speak at sentencing and no 

objection is made, such that the district court’s error is not called to its 

attention prior to pronouncing a sentence, is likely a rarity. It therefore seems 

unlikely to be the type of error that one would anticipate in drafting an 

appellate waiver.

Given the magnitude and character of the right to allocution, its 

longstanding history, and our perception that this type of error is uncommon, 

we do not think Lajeunesse’s plea agreement can reasonably be construed as

anticipating a sentencing proceeding that omitted allocution. We decline to 

enforce the appeal waiver and proceed to the merits.
39 

2. Resentencing is required because Lajeunesse was not afforded an 

opportunity to speak at sentencing

On the merits of the question, Lajeunesse argues that resentencing is 

required because he was not afforded his right to allocute. He argues that the 

court’s failure to provide allocution calls for automatic resentencing, even 

under plain error review, given that he made no objection during the 

sentencing proceeding. The government’s brief focuses on enforcement of his 

waiver of appeal and advances no argument against ordering resentencing in 

the event we do not enforce the appeal waiver. We conclude that we should 

remand for resentencing, as the defendant has made a reasonable argument 

that he is entitled to resentencing and the government has made no argument 

to the contrary. See, e.g., United States v. Gonzalez, 529 F.3d 94, 97 (2d Cir. 

2008). Because the government makes no argument to the contrary, we do so 

without ruling as to the appropriate standard of review for an unpreserved 

claim of failure to grant allocution. Accordingly, we remand to the district 

court with instructions to vacate his sentence and resentence, affording him 

the right of allocution. 
40

CONCLUSION

For the foregoing reasons, we affirm the district court’s denial of 

Lajeunesse’s motion to suppress, but remand the case to the district court 

with instructions to vacate the sentence and resentence, affording the 

defendant the right of allocution in conformance with Rule 32.