No. 2--07--0449 Filed: 8-12-08

______________________________________________________________________________ IN THE AP PE LLATE COU RT OF ILLIN OIS SECOND DI STRICT

______________________________________________________________________________ THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF I LLINO IS, ) of Ka ne Co un ty. ) Plaintiff -Appella nt, )

) v. ) No. 06--CF--1232 ) CLAYTON THORNBURG, ) Honorab le ) Grant S. Wegner, Defendant-Appellee. ) Judge , Pres idin g.

______________________________________________________________________________ JUSTICE BOWMAN de livered

the opinion of the c ourt: After probation officers recovered por nographic material from his bedroom and compute r
on January 4, 2005, defenda nt, Clayton Thornburg , was charged with three counts of posse ssion of child pornography

(720 IL CS 5/11--20.1( a) (6) (West 2004)). Defendant subsequently filed a motion to quash his arrest and

suppress evidence. On April 5, 2007, the circuit court granted the motion, finding that d efenda nt's consent to the home search was involuntary and that the proba tion officers lacked a reasonable suspicion to perform the search . The State

filed a certificate of impairment and timely appeale d under Su

preme Court Rule 604(a)(1) (210 Ill. 2d R. 604(a)(1)). I t argues that (1) the office rs had a r easonab le suspic ion to search defendant's bedr oom and computer since defendant was alre ady

on proba tion, and (2) defe

ndant con sented to

the sear ches. We a

ffirm in p art, re

verse in part, a nd reman d for fur ther pro ceeding s.

I. BACKGROUNDNo. 2--07--0449

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OnMarch 13, 2007, a hearing on defe ndant's motion to suppress was held. Defendant testified as follows. Defendant had pleaded g uilty to ind ecen t solicitation of a child and was on probationwith Cook County when probation officer s arrive d at his residence on January 4, 2005. At that time, defendant resided in Aurora with his brother, Robert. The of ficers, Wendy Joslin and Anibal Ilarraza, stated that they were there to do a home c heck and to search the premises. Defendant

allowed t

hem in, an

d the off icers we nt to the g arage

first and then to the

living r oom. After looki ng a roun d the living ro om, I larr

aza told defenda nt that he wanted to

look in his b edroom, and defendant complied. In the bedroom, Ilarraza asked who the desk belonged to. Defendant stated that it belong ed to Robe

rt. I larraza

then opened the de sk drawe r and fou nd three adult por nogra phic DVDs. The bedr

oom had a t

elevision but no DVD

play er in it. They

returned to the living room and Ila rraz a stated tha t he was g oing to search the computer. Robert was sitting in front of the computer and stated that Ilarraza could not sea rch the computer. Ilar

raza stat ed that he was goi ng to sea rch it
an ywa y. He pulled

a disk from his pocket, turned the computer on, a nd ins erte d the

disk. Ila rraz a claimed that t here we re porn ograph ic im age s of chi ldren on the computer. Joslin then called the Aurora police department. The police arr ived and removed the computer from the home. Defendant

stated tha t he thoug ht that he had to all ow the of

ficers i n to search his home. He did not feel that he ha

d a choic e to refuse

the sear ch, bec ause he b elieved

refusin g would r esult in
a probation violation and jail. Neither the probation officers nor the Auror a police officers presented a search warrant to defenda nt. Oncross-examination, defendant admitted that he had agre ed to and was aware of various probationary

condition s as part

of his plea ag

reeme nt in Cook Cou

nty . Defen

dant admi

tted to signing a probation agreement and a "Compu

ter Use Agree ment" a fter the

terms we re discu ssed withNo. 2--07--0449

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him. Those agreements were a dmitted into evidence. One condition prohibited him from possessing any adult pornography . Another condition prohibited him from using the Inter ne t for sexua l purposes . He admitt

ed that th e compute

r was in pl ain vie w in the l iving room but denied giving Ila rraz a permission to turn it on. Robert stated th at he did no t want the computer searched. Defendant

admitted t

hat he ne ver told the offic ers to stop

search ing but st ated tha t he did not believe that he had the option. Ila rraz a testifie d as follo ws. He ar rived wit h Josli n to visit de fendant's home p ursuant t o defend ant's probation conditions. Joslin knocked on the door and told defendant that

they were there to conduct a home visit. Defendant let them in and they walk ed in to the living ro om. I larr

aza asked defendant where h is bedroo m was, and defe ndant led him to his be droom. Ilarraza look ed thr ough defend ant's dressers and found thr ee DVDs that appeared to be adult pornog raphy, base d on the
covers and disks inside. He believed there was a television and a DV D play er in the bedroom. He asked defendant if the DVDs belonge d to him, and defendant answered affirmatively
. After finding the DVDs , Ila

rraz a returned to the living room and asked defenda nt if he had Internet access . Defen

dant said that he di d. Ila

rraza the n said tha t he would

be conductinga search
on the computer. He also said to defendant and Robert, " if you don't mind me looking through your computer, I wa

nt to sear ch it to make sure there's nothing that' s not supposed to be on there." Both defendant and Robert

gave him permission. He turned the computer on and inserted a specialized disk that retrieves every

image that has ever been on a computer. Ilarr

aza immediately beg an seeing adult and child pornographic images on the sc reen. Joslin asked defendant if "that was his stuff," and he responded that it was.No. 2--07--0449

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On cross-examination, Ilarraza admitted that he did not have a

warran t to searc h the house and had no information that defendant had violated any terms of his probation. Ilarraza believed tha t he was able

to search the ho me be ca us e o f t he pr ob at io n p ap er wo rk th at de fe nd an t s ig ne d o ri gi na ll y. He admitted that the terms of the probation agreement stated tha t defendant gave permission for officers to enter and search his home "when ther e is reas onable su spici on to r equi re it ." I larr

aza stated that "the reasona ble suspic ion [is] that they' re already convicted of a sexual offense ," and h is presumption is that there is "alway s reasonable suspicion." He admitted that, before he opened any drawers, there was nothing unusualabout defend ant's bedroom. He admitted that there was nothing unusual about the computer before he turned it on and inserted the special software. However, after discovering the DVDs, he became suspicious a bout the computer. Joslin testified as follows. She arrived with Ilarraza at defe

ndant's residence and informed him that she was there to perform a home visit. Defenda nt allowed them in. She searched the living
room while Ilarraza sea

rched defendant's bedroom. She observe d a desk

with a com

puter an d some books on it. She looked through the books to make sure there was no pornog raphic material
. Il arra za return ed to the living room with three pornographic DV Ds that he retrieved from the bedroom. Ilar

raza the n asked f or permis sion to sea

rch the c omputer, and defe ndant sai d ye s. Joslin stated that neither defendant nor Rober t obje cted to the sear ch of the c omputer. I

larr aza then turned the computer on

and inserted the specialized disk. Joslin observed images of child pornogra phy and adult pornography
. Oncross-examination, Joslin admitted that she was not perf orming t he home vi sit beca

use she had information that defendant had violated his probation or committed any c rime. She admitted that she did not have a warrant and that she told defendant that they were there "for a f

ield visit andNo. 2--07--0449

1 It is unclear from the testimony whether the DVDs were discovere d in adesk or a dresser. We refe r to it as " desk or dr

esser" or "des k/dresse

r," as t he distinction is irr

elevant to the ana

lys is. -5- [t he y] were going

to search his home." If defe

ndant had refused the visit, Joslin would have left and reported the refusal as a violation

of his probation. When she entered the living room, the computer
was not turned on and there were no image s on the screen. There was nothing unusual a

bout the computer. After I

larraza search ed the co mputer, Josl in called the Auro ra polic e depar

tment. Aurora police officers arrived and confisc ated the computer. OnApril 5, 2007, the trial court granted defenda nt's motion, finding (1) that the probation officers had no reasonable suspicion to conduct the searches, and (2) that defenda nt's consent was in vo lu nt ar y. First, it noted certain discrepancies in the testimony of the officers, including

whether they asked for permission or told defendant that they would be searching the home and whether the DVDs were found in a desk or a dresser. I t found that Ilarraza' s belief that h e alway s had a
reasona ble suspicion violated the law and that the ter ms of the p robation

agree ment req uired tha t a search be performed

only when the re is a reasonable suspicion. The trial court concluded that the
o fficers did not have a reasonable suspicion to search the desk/dre sser 1 where the DVDs wer e discovered. Without the reasonable suspicion created by the presence of the DVDs, they would not have had a reasonable suspicion to search the computer . Second, the trial court deter mined th at defend ant's consent was not voluntary be cause he was not aware of his rig ht to r efuse th e se arch. Defend ant's percei

ved lack of choic e crea

ted an ac quiesce

nce to the office rs' cla im of authority

rather than a true voluntary

consent. II. AN ALYS ISNo. 2--07--0449

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When reviewing a trial

court' s ruling

on a motion

to suppre ss evidence, we apply a bifurcated standard of review. People v. Sorenson , 196 Ill. 2d 425, 431 (2001 ). We r eview the tr ial co urt's factual findings under

a mani fest weight of the evidence standar d, and we review de novo the ultimate ruling as to whether suppression is warranted. Sorenson , 196 Ill. 2d at 431. Un

der thes e rules, we revie

w whethe r the off icers ha d reasonable susp icion to perform the search es and, if not, whether defenda nt volunta

rily consente d to the se arches
. A. Reasonable Suspicion The burden of proof is on the defendant at a hea ring on a motion to suppress evidence. Peoplev. Lampitok , 20 7 Ill . 2d 231 , 23 9 (2 003 ). If the defendant

makes a prima fa

cie case that the evidence was obtained through an illegal sear ch, then the State can counter with its own evidence. Lampitok , 207 Ill. 2d at 239. Here, defe ndant alleged at

the hearing that the probation officers did nothave a reasonable suspicion before se arching his bedroom. Thus, the three DVDs found in a drawer in the bedroom were inadmissible because they were illegally obtaine d, and they could not be the basis for

a reasonable sus

picion to s earch h

is compute

r. The Sta

te arg ued, alte rnative ly to consent, that the officers had a reasonab le suspicion because of defendant's c riminal history. The trial court determined that Joslin and Ilarraza admitted that they had no reason able susp ic ion to search the desk/dresser in defenda nt's bedroom

and that def endant' s history

was insuf

ficient on its
ownto support a reasonabl e suspici on. Further, without a reasonable suspicion in reg ard to the DVDs, there was no reasonable suspicion to searc h the computer. Under the fourth a mendment , a sear ch condu cted without a war

rant issue d upon pro

bable
cause is unreasonable. Schneck loth v. Bu stamonte , 412 U.S. 218, 219, 36 L. Ed. 2d 854, 858, 93 S. Ct. 2041, 2043 (1973). However, imposing the traditional warrant and pr obable- c auseNo. 2--07--0449

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require ments on law enforcement officials carr y ing out the special needs of the probation sy stem would unduly interfere

with the effective administration of the sy stem. Lampitok , 207 Ill. 2d at 250. Probationers have a reduced expectat ion of pri vacy compare d to ordina

ry citizens, because they

are criminal offenders. Lampitok , 207 Ill. 2d at 251. Although a probationer has a reduced expectation of pr iv ac y, a searc

h of his home remains a significant intrusion on his privacy and a search without any reasonable suspicion

would be constitutionally unreasonable . See Lampitok , 207 Ill. 2d at 252 (imposinga reasonable suspicion requirement on probation office rs even where probation ag reemen t contained no such re quireme

nt); cf. People v. W ilson , 228 Ill. 2d 35, 52 (2008) (finding that the fourth amendment does not prohibit a police offi cer from cond ucting a suspicionless search of a parolee where p arole a

greement conta

ins no limit on searches of parolee's person, prope rty, or residence butrecognizing a distinction between probationers and parolees; parolees enjoy a much lesser expectation of privacy than probationers because they pose a higher risk to the public). Reasona ble suspicion exists when " 'ar ticulable facts wh ich, take n togeth er with

the rational inf erences from those facts, *** warrant a rea sonably prudent off icer' to investigate fu

rther. " Lampitok , 207 Ill. 2d a t 255 , quot ing Mary land v. B uie , 494 U.S. 325, 334, 108 L. Ed. 2d 276, 286, 110 S. Ct. 1093, 1098 (1990). Wh ile reasona

ble suspic ion is a les s string ent stand ard than probable cause, it requires more than a mere hunch on the part of the officer. Lampitok , 207 Ill. 2d at 255. Fu rther, an off

icer' s good- faith be lief that he has suf

ficient s uspicion t

o justify the intrus ion is inadequa te on its own to satisfy the objective reasonable suspicion standard. Lampitok , 207 Ill. 2d at 255. In evaluating

whether reasonable suspicion exists, the court should consider the quality a nd content of the inf

ormation k

nown to the

office rs as wel l as th e reliab ility of the source of the information. Lampitok , 207 Ill. 2d at 257.No. 2--07--0449

2 At the time of the Haycr

aft opinion, searches on parolees and probationers both required a reasonable suspicion, making the analy sis helpful. -8- In Lampitok , probation officers searched a motel room oc cupied by the proba tioner and the defenda nt, which resulted in the seizure of drugs and weapons and the defendant' s arrest. Lampitok , 207 Ill. 2d at 255. The officers believed that the probationer was violating her probation beca use she moved into the motel room without notifying them and was r esiding with the de fendant , who they believed was a drug user. Lampitok , 207 I ll. 2d at 25 7. The supreme court held that the officers did nothave a reasonable suspicion to search the motel for drugs or weapons. Lampitok , 207 Ill. 2d at 257. First, it concluded that the officers had no specific information that the defe ndant was a drug
user or possessed

weapons, because their belief was ba sed on a remote prior encounter that did not result in the defendant's arrest for a ny illega l activity. Lampitok , 207 Ill. 2d at 256. Second, w hile the officers had a reasonable suspicion that the proba tioner had changed residence s and could search the motel to determine whether she had moved, they could not extend thatsuspicion to a search for
wea pons or drugs. Lampitok , 207 Ill. 2d at 259. The officers w ere allowed to s earch f or th e probationer

at the motel but searching between a mattress and box spring of a bed went bey ond the scope of that search. Lampitok , 207 Ill. 2d at 260. Therefore , the drug and weapon evidence was properly suppre ssed by the trial cour t. Lampitok , 207 Ill. 2d at 262. In Pe ople v. Hayc

raft , 349 Ill. App. 3d 416, 419 (2004), a parole of ficer visited the defend ant's home aft

er he ha d tested p ositive for amphet amines thr

ee times w

hile on pa

role for several drug-r

elated c harge s. 2 Other pa

role es told the officer that the defendant was cooking methamphetamine but nothing indicated that he would be doing so at the time of her visit. Haycr aft , 349 Ill. App. 3d at 419. Upon arriving a t the defenda

nt 's home, the offic er smelle d an extre melyNo. 2--07--0449

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strong chemical odor that she identified as methamphetamine being cooked. Haycr aft , 349 Ill. App. 3d at 419. Th e officer proceeded to wa lk inside the home and saw a man in the kitchen. As she walked into the kitchen, she observed a semiclear liquid cooking in pans on the stove and smelled the odor. Haycr

aft , 349 Ill. App. 3d at 419. The cour t stated th at the pa

role off icer' s home visit was justified as home vi sits were

part of the defen

dant's parol e agre ement an d supporte d the par

ole system's special need to monitor criminal offenders. Haycr aft , 349 Ill . App. 3d at 4 24. Th e offi cer's entry into the home and into the kitchen was reasonable at its inception and in its scope. Haycr aft , 349 Ill. App. 3d at 424. Theevidence obtained thereafter, including the clear liquid cooking on the stove, was in the officer's plain view and gave the officer pr

obable cause to search

the remainder of the house for other drugs or evidence of criminal activity. Haycr aft , 349 Ill. App. 3d at 424. Inthis case, like in Lampitok and Haycr

aft , Joslin and Ilarraza had the

right to visit defendant at his home per his probation agreement. Howeve r, the officers admitted that they did not have any informationor indica

tion that de fendant

was viola

ting hisprobation or that he was involved in any type of criminal activity prior to the home visit. As in Lampitok , where officers could not search a mattress without a reasonable suspicion that the probationer's home conta ined drug s or wea

pons, Ila rraz a could not search defenda nt's des k or dres ser dra

wers, or later the computer , for por

nogra phic materia ls without a r

easonab le suspic ion that de fendant possesse d them. Un

lik e in Haycr

af t , the DVDs that Ilarraza seized were not in plain view when he entered defendant' s bedro om. Ilarra za provided no reason for his search other than that he a lways had a r

eas onable su spicio n to search probatio ners' homes bec ause of t heir cr iminal histories. We agree with the tr ial co urt th at Ilarra za's belief is not based on fourth amendment law as applied to prob ationers, and the officers gave no other basis for a reasonablesuspicion to search the desk or dresser drawers. Without a r

easonab leNo. 2--07--0449

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suspicion for the search

that resulted in the seizure of the DVDs, the officers had no c ause for the computer search that was performed later. T herefore, the trial

court did not err in finding that the searches were not based upon re asonable suspicion. B. Consent The trial court also d eterm ined t hat de fendan t's consent was "no more than an acquiescenc e to the claim of

authority contained

with in th e prob ation condi tion s." Th e court ruled that d efenda nt's consent to the sea

rch was not volu ntary and that h

is capac ity f

or self- determination was critica lly impaired by his perce

ption of the probation conditions. We agree as to thesearch of the desk/dresser butdisagree as to the computer, finding tha t the tria l court failed to consider the impact of the Computer U se Agr

eement. Anestablish ed except

ion to the w arrant

require ment is a sea rch that

is conduc ted with voluntary consent. Schneck

loth , 412 U.S. at 219 , 36 L. Ed. 2d at 8 58, 93 S. Ct. at 2043-44. It is the State's burden to show by a preponderance of

the evidence that

the consent was voluntarily g iven. People v. Alvarado , 268 I ll. App. 3d 459, 464 (1994). Whether consent to a search was voluntary is a question of fact to be determined from the totality of the circumstances. Schneck loth , 412 U.S. at 227, 36 L. Ed. 2d at 863, 93 S. Ct. at 2048. The two competing conc erns that must be accommodated

in determining the voluntariness of consent are: (1) the le gitimate need for the search and (2) the equally

import ant re quirement of assuring the absence of c oercion. Schneck loth , 412 U.S. at 227, 36 L. Ed. 2d

at 863, 93 S. Ct. at 2048. While knowledge of the right to refuse consent i s one factor to be considered, the State does not need to e stablish such knowl edge to prove a n effective consent. Schneck loth , 412 U.S. at 227, 36 L. Ed. 2d at 864, 93 S. Ct. at 2048.No. 2--07--0449

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Here, the State ar

gues tha t defend ant conse nted to the

search es when t

he offic ers ask

e d permission before each and defenda nt gave it. Defendant arg ues that he felt that he had no choice butto consent to the searches because the off icers stated tha

t they were the re to sea rch his home and because of the prob ation a greement that he signed. The pr obation agreement contained the following provision s: "5. PE RM IT THE PR OBA TION OFF ICER TO V ISIT THE DEF END ANT AT H IS HOME OR ELSEWHERE TO THE EXTENT NECESSARY TO DI SCHARGE THE OFFI CER'S DUT IES. * * * 11. THA T TH E DE FEN DAN T C OMP LY W IT H TH E SPECIFI C RULES AND REGULATI ONS OF INTENSI VE SEX OFFENDER SUPERVISI ON WHICH ARE: * * * L. YOU SHAL

L SUB MIT T O SEARCHES O F YOUR PER SO N , RESIDENCE, PAPERS, A UTOMOB IL E AND/OR E

FFECTS AT ANY TI

ME SUCH REQUESTS AR E MADE BY THE PROBATION OFFICER WHEN THE RE IS REASONABLE SUSPI CION TO REQUI

RE IT , AND CON SENT TO THE USE OF ANYTHIN G SEIZED AS EVI DENCE IN A COURT PROCEEDI NG." Under these te rms, def endant w as requi

red to allow his probation office rs to visit his home. He was also r

equired to submit toa sear ch of his "person, residence, pape rs, automobile and/or effec ts" when off

icers ha d a reas onable su spicion to require it. Thus, defendant could refuse without consequence a request to search his dresser or desk drawers when

request ed withou t any reasona ble suspicion.No. 2--07--0449

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At the hearing, the officers provided conflic ting tes timony

regar ding whe ther Joslin

stated that they were the re to search the home or whether she aske d defendant for permission to search the home. Joslin admitted on cross-examination that she told de fendant that they were the re "for a field visit an d [ th ey] were going to searc h his home." Ilarra

za testified

that Joslin asked for permission. Defendant

stated that the officers told him that they w ere there to search the home. He also testified that he bel ieved that he had to permit the search or risk imprisonment for violating his proba t ion
. By virtue of its ruling, the trial court found defendant's testimony more cred

ible t han I larr aza' s. We shall not disturb the trial court's factual findings unless they are against the manifest weig ht of the evidence. A finding

is agai nst the man

ifest we ight of t

he evide nce only if the opposite conclusion is clearly e

vi dent or if the finding itself is unreasonable, arbitrary , or not based on the evidence presented. Peoplev. Deleon , 227 Ill. 2d 322, 332 (2008). We give deference to the trial cour t as the finder of fact because it is in the best position to observe the conduct and demea nor of the parties and witnesses. Deleon , 227 Ill. 2d at 332. The trial court's acceptanc e of defendant's testimony over Ilarraza 's is not ag ainst the manifest weight of the evide

nce, esp ecially

where the offic ers ga ve conflicting testimony. We ag ree with the trial court that consent to search the bedroom, under the ci rc um st an ce s o f t hi s c as e, wa s i nv ol un ta ry. The same is not true for consent to search the computer. The Computer U se Agreement was admitted into evidence during the suppression hearing . It provided that defendant was subject to: "unannounced

examinations of his computer, software and other electro nic devices to which [he had] access," the installation of equipment or software to monitor his computer use, "examination[s] at any time," and seizure if any prohibited materials were found. Howeve r, th e trial court did not mention and made

no specif ic factual findings regar

ding the Computer Use Agreement whe n it ruledNo. 2--07--0449

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on the motion to suppress. We therefore review de novo only its ultimate

ruling t hat defe ndant did not voluntarily consent to the computer se arch
. We first address defendant's arg ument that, by

failing to argue it in its brief, the State waived the argume

nt that de fendant conse nted to co mputer se arches when he s igned th e Computer Use Agree ment. Whil e defen dant's argument may have technical merit, reviewing courts may override the waiver doctrine in the interest of justice and for the maintenance of sound precedence
. People
v. Wilson , 155 Ill. 2d 374, 379 (1993); see also Ward v. Community Unit School District No. 220 , 243 Ill. App. 3d 968, 974-75 (1993) (finding waiver was limitation

on ly o n parties and reviewing court had power

to decide any

issue where record

was sufficient to resolve the issue). I n this case, the State ar

gues tha t defend ant conse nted to the

computer

search when I larraza

asked ab out his
access to the computer and the Interne t and for permission to search. While it did not argue the Computer Use Agreement's ef

fect on defendant's consent, the recor d is sufficient

for us to consider the document's impact on the voluntariness of defendant' s consent. Therefore, in the interests of justice a nd sound pr

eceden ce, we d ecline to disreg ard the Computer Us e Agre ement. Base d on the plain language of the ag reement, defendant agre ed as part of his proba tio n program to submit to a computer

search at any

time. The agreement did not require that proba tion officers have a reasonable suspicion to perform such a search. While a reason able susp icion has been held to be

require d for a g eneral

home search even where no such require ment is con

tained in the probatio ner's a

greement ( Lampitok , 207 Ill. 2d at 252), suspicion less search es have b een uphe ld incases of parolees. See Samson v. Ca lifornia , 54 7 U. S. 843 , 85 4, 1 65 L. Ed. 2d 250, 260, 126 S. Ct. 2193, 2200 (2006) (holding suspicionless search of parolee 's pe rson was legal where sear ches of parolee s supporte d the State 's sign ificant i nterest i n preven ting re cid ivism and protecting theNo. 2--07--0449

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public); People v. Wilson , 228 I ll. 2d 35, 47 (2008) ( allowing suspicion less sea rch of pa rolee' s home where consent t

o such se arches w as requi red by the paro lee's mandator

y su pervise d relea se agreement). Here, we are not dealing

with a parolee or a suspi cionless search of a home

in gene ral but, rather, a suspici onless se arch of a probat ioner' s compute

r. A prob ationer

does not e

njoy the absol ute libert y that every c itizen enjoys but only conditional liberty based on re strictions contained in a probationagreement. Griffin v. Wisconsin , 483 U.S. 8 68, 874, 97 L. Ed . 2d 709, 71 8, 107 S. Ct. 3164, 3169 (1987). The restrictions and supervision placed on probationers are meant to assure that the probati on ary per

iod actually serve s as a period of rehabilitation and that the community is not harmed by the pr

obationer's presence. Griffin , 483 U.S. at 875, 97 L. Ed. 2d at 718, 107 S. Ct. at 3169. Supervision is a "special need" of the State that per mits a "degree of impingeme nt upon privacy that would

not be con stitutiona

l if applie d to the publi c at large." Griffin , 483 U.S. at 875, 97 L. Ed. 2d at 718, 107 S. Ct. at 3169. The special needs of the State of I llinois's probationprogram
are set forth in the Unified Code of Corrections (Code). Section 5--6--3(b) of the Code (730 I

LCS 5/5--6--3(b) (West 2004)) lists numerous conditions that a trial court may place

on a probationer, "in addition to other reasonable conditions relating to the nature of the offense or the rehabilitation of the defendant as determined for eac h defendant in the proper discretion of the Cou rt." The

list includes conditions such as home confinement, psy chiatric or p syc hological treatment, and prohibition from ente

rin g certain geog

raphical areas or having c ontact with certain persons. 730 IL CS 5/5--6--3(b) (West 2004). In Lampitok , the probationer's agre ement included the cond ition tha t "the De fendant shall submit to a search of her person, residenc e, or automobile at any time as directed by

her ProbationNo. 2--07--0449

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Officer to verify complianc e with the con ditions of this Pr obation Ord er." Lampitok , 207 I ll. 2d at 236. Probation officers relied on this order to search a motel r oom in which the probationer was allege dly living, while only her

roommate was present. Lampitok , 207 Ill. 2d at 235-36. While the probationorder di d not impose a reasonablesuspicion requirement, the court held that such a search
was unconstit

utional if done with out a rea sonable s usp icio n. Lampitok , 20 7 Ill . 2d at 2 53. In reaching this conc lusion, the

court sou

ght to ba lance the level o f intrusi o n on personal privacy agains tthe degre e of nee d for the search to promote legitimate government interests. Lampitok , 207 Ill. 2d at 249. The Lamp it ok cour t used United Sta tes v. Knig

hts , 534 U.S. 112, 119-120, 151 L. Ed. 2d 497, 505, 122 S. C t. 587, 591-92 (2001), for guidance. I n Knights , the court stated that the defendant had a significantly

diminished expectation of privacy bec ause of his acc eptance of a broad searc h condition in his probation order. Knights , 534 U.S. at 119-20, 151 L. Ed. 2d at 505, 122 S. Ct. at 591-92. The Lampitok

court determined that the order in Knights was broa der than the orde r in its
casebecause the Knights

order did not restrict searches to those ordere d by the probationer 's assigned probation officer

and to those verifying

compliance with probation conditions. Lampitok , 207 I ll. 2d at 251. The Knights

court acknowledged that there was a correlation between the terms of the probationsearch

condition and the de gree o f the pro

bationer 's expectation of p

rivacy , which a ffects the level of individualized suspicion required to justify a sea rch. Lampitok , 207 I ll. 2d at 251, citing Knights , 534 U.S. at 120 n.6, 151 L. Ed. 2d at 505 n.6, 122 S. Ct. at 592 n.6. The Knights Court ultimately

found that reasonable susp icion existe d and did not have to decide w hether a suspicion less
sear chwas permitted. Knights , 534 U.S. at 122, 151 L. Ed. 2d at 507, 122 S. Ct. at 593. The Lampitok court used thisanalysis and dete rmined that, because the order there wa s less broad thanNo. 2--07--0449

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the order in Knights , the probationer's expectation of privacy wa s notas diminished. Lampitok , 207 Ill. 2d at 251. The court then noted that, in certain instances, suspicionless, warra ntless sea rches , such as in mandate d drug a

nd alcoho l testing , have be en upheld :

" 'Exceptions to the requirement of individualized suspicion are gener ally appropr iate only where the privacy inter

ests implicated by

a search are

minimal an

d where "other safeg uards"
are available "to assure that the individual's rea sonable expectation of privacy is not 'subject to the discret ion of the o fficial in t he field.' " Delawa re v. Prou se , 440 U.S. 648, 654-55 (1979) (citation omitted). ' " Lampitok , 207 Ill . 2d at 254, q uoti ng New Jersey v. T.L.O. , 469 U.S. 325, 342 n.8, 83 L. Ed. 2d 720, 735 n.8, 105 S. Ct. 733, 743 n.8 (1985). Inthis case, we find that the Computer Use Ag reemen t suffici ently

elim inate d defen dant's expectation of privacy , such that he consented to a waive

r of his fo urth ame ndment rig

hts, but only with respect to his computer. Defendant, by virtue of the re asonable

suspicion

require ment in his probationagreement, still enjoy ed an expectation of privacy for the remainder of his home. T h e
n arrown ess of the Comp

uter Use Agree ment and t

he proba tion agr eement' s reasonable susp icio n requirement safeguarde d defendant from general

suspicion

less sea rches. In balancing the

level of i ntrusion on person

al priva cy agains t the deg

ree of need for

the sear ch to promote leg itimate government

interest s, we find

that a se arch pe

r the Compu

ter Use A greement is a

much more limited intrusion than a sus

picionle ss searc

h of defe ndant' s entire h

ome and that it suppo rts the gov ernmen t's strong interest

inmonitoring

sex offen ders, who often us e compute rs to commit offenses. Defendant had been convicted

of indecent solicitation of a child a nd had use d his compu

ter and I nternet access to commit the crime. The probation conditions that he not use the Internet for any sexual purposes and that he agree to unanno unced c ompute r searches at any time are not unreasonable givenNo. 2--07--0449

-17-

defend ant's crimeand the limited scope of the conditions. Such conditions also comply with section 5--6--3(b) of the Cod

e, which provides for rea sonable c onditions that rela te to the nature of the offense. Under th e facts

of this ca se , the Computer Use Agreement, including its provision that allow ed for su spicionless searches of defendant' s computer, was an enforceable pr obationary condition. Thus, the search of defendant's c omputer was valid. III. CONCL

USION Inconclusi on, we fi

nd that the

probation offic ers did

not have a

reasona ble suspic ion to search defendant's bedroom and that his consent to that search was involuntary
. However, we find that the Compute

r Use Ag reemen t that def endant si gned a s part of

his condit

ional p robation w as valid and that, thus, defenda

nt's con sent to the

search of his computer was voluntary . Therefore, we affirm the judgment of the circuit court of Kane County in suppressing t he DVDs, reverse the judgment suppressing the c onte nts of the computer search, and remand the c ause for further procee dings. Affirmed in part and reversed in part; ca use remanded. McLAREN and ZE

NOFF, JJ., concur.