In the
United States Court of Appeals
For the Seventh Circuit

No. 01-1564

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JOEL C. MONTEIRO,

Defendant-Appellant.

Appeal from the United States District Court
for the Central District of Illinois.
No. 00 CR 20042--Michael P. McCuskey, Judge.

ARGUED SEPTEMBER 20, 2001--DECIDED OCTOBER 26, 2001


  Before RIPPLE, KANNE and ROVNER, Circuit
Judges.

  RIPPLE, Circuit Judge. Joel Monteiro
pleaded guilty to one count of access
device fraud. As a special condition of
his supervised release following a term
of imprisonment, the district court
ordered that Mr. Monteiro’s person and
property be subject to unlimited,
warrantless search and seizure by any law
enforcement officer. Mr. Monteiro
objected to the condition, but the
district court overruled his objection.
Mr. Monteiro now appeals the imposition
of the special condition. For the reasons
set forth in the following opinion, we
vacate the imposition of the special
condition of supervised release and
remand the matter to the district court
for reconsideration.

I

BACKGROUND

A.   Facts

  In October 1998, the Champaign,
Illinois, Police Department learned that
fraudulently obtained merchandise was
being delivered to Mr. Monteiro’s address
at 1506 Holly Hill Drive in Champaign,
Illinois. That same month, Adam J. Greene
of Atlanta, Georgia, contacted the
Champaign Police Department to report
that someone residing at the Holly Hill
Drive address had used his name and
social security number to obtain credit
and purchase merchandise. A subsequent
investigation by Champaign police
confirmed that Mr. Monteiro had used
Greene’s name and personal identifiers to
establish a credit account at Spiegel and
that Mr. Monteiro had purchased several
articles of clothing on the account
totaling $874.81. These purchases had
been delivered to the Holly Hill Drive
address.

  The investigation also revealed that Mr.
Monteiro had used the name of "David J.
Walker" to establish another credit
account with Spiegel and that, in
December 1998, he had purchased bed
linens and a stereo system totaling
$1,008.72. These items also had been
delivered to his address. On November 25,
1998, Mr. Monteiro again used the name of
"David J. Walker" to purchase a $270
facsimile and telephone system from Ameritech.
Mr. Monteiro signed the name "Steele"
when he accepted delivery of the package
at his Holly Hill Drive address. In
December 1998, Mr. Monteiro used the
Walker identity to purchase two
computers, together worth $3,255.47, on
credit from Sears. The computers were
delivered to his Holly Hill Drive
address.

  Officers executed a search warrant at
Mr. Monteiro’s home on Holly Hill Drive
on January 26, 1999. Officers seized,
along with some of the merchandise Mr.
Monteiro had purchased, several credit
card statements, telephone bills and
utility bills, indicating that Mr.
Monteiro had obtained goods and services
under various assumed names.
Specifically, officers seized a Discover
credit card bill in the name of Brian R.
Miller for $7,129.06; it was addressed to
Mr. Monteiro’s Holly Hill Drive
residence. Officers also seized a bill
from DaMark International in the amount
of $1,439.91 addressed to Greg Steele at
1506 Holly Hill Drive. They also seized
an Ameritech bill in the amount of
$2,030.41 addressed to David J. Walker
doing business as "Commonwealth
Electric," a fictitious company, at the
same address. Finally, they seized
several telephone bills for "Commonwealth
Electric," Adam J. Greene, David Walker,
and "Jamison Scott," the last from MCI
Worldcom in the amount of $1,836.45. All
the bills were addressed to 1506 Holly
Hill Drive.

B.   District Court Proceedings

  Mr. Monteiro was indicted on four counts
of mail fraud in violation of 18 U.S.C.
sec. 1341 and one count of access device
fraud in violation of 18 U.S.C. sec.
1029(a)(2) and (c)(1)(b)./1 Pursuant to
a plea bargain, Mr. Monteiro pleaded
guilty to the one count of access device
fraud on November 2, 2000.

  On February 23, 2001, the district court
sentenced Mr. Monteiro to 33 months’
imprisonment, ordered him to pay
$13,388.16 in restitution, and ordered
him to serve a three-year term of
supervised release after his prison term.
As a special condition of the supervised
release, the district court ordered that
Mr. Monteiro’s "person, residence, and
vehicle shall be subject to search and
seizure upon demand of any law
enforcement officer." R.24 at 39. Mr.
Monteiro objected to the condition, but
the district court overruled his
objection, explaining:

  I just think in this gentleman’s
condition, everything he has done for the
last 11 years has been a fraud.Every
identification has been a fraud. Every--
he’s always in possession of improper
identification, and . . . I think the
exceptional conditions of this defendant
require exceptional vigilance--diligence
and vigilance on the part of all law
enforcement individuals to compel him to
honestly represent who he is.

Id. at 43.

II

DISCUSSION

  A special condition of supervised
release must relate reasonably to several
sentencing goals, including the
rehabilitation of the defendant and the
protection of the public. See 18 U.S.C.
sec.sec. 3583(d)(1), 3553(a)(2)(B),
(a)(2)(C). Mr. Monteiro submits that the
special condition allowing a warrantless
search of his person and his property at
any time does not relate sufficiently to
the goals of rehabilitation and
protection and would expose him to
possible harassment and abuse from law
enforcement. Indeed, he notes that the
conduct that gave rise to the present
case did not entail his possession of
false identification, but rather his use
of other individuals’ names and personal
identifiers, such as their social
security numbers, to obtain credit and
make purchases over the telephone. Mr.
Monteiro relies upon United States v.
Bass, 121 F.3d 1218 (8th Cir. 1997), and
United States v. Prendergast, 979 F.2d
1289 (8th Cir. 1992). In these cases, the
Eighth Circuit held that a special
condition allowing warrantless searches
of individuals on supervised release for
the presence of alcohol or drugs could
not stand because the condition was not
related to the goals of rehabilitation
and protection; the evidence did not show
that the defendants had significant
problems with drugs or alcohol. See Bass,
121 F.3d at 1224; Prendergast, 979 F.2d
at 1293.

1.

  We begin our assessment of Mr.
Monteiro’s contention by reviewing the
statutory scheme that governs supervised
release. Title 18, section 3583 permits a
sentencing court to include a term of
supervised release. See 18 U.S.C. sec.
3583(a). The United States Sentencing
Guidelines require that a term of
supervised release be imposed whenever a
sentence of more that a year’s
imprisonment is imposed or when
supervised release is required by
statute. The Guidelines also make clear
that a term of supervised release may be
imposed in any other case in which a term
of imprisonment is imposed. See U.S.S.G.
sec. 5D1.1.

  In imposing a term of supervised
release, the district court may include,
in addition to the mandatory conditions
set forth in 18 U.S.C. sec. 3583(d),
certain additional conditions of
supervised release set forth in sec.
3563(b) and any other condition that the
district court deems appropriate, even if
that condition is not set forth
explicitly in the statute. See 18 U.S.C.
sec.sec. 3563(b), 3583(d). In imposing
such conditions, the district court must
take care to ensure that the particular
condition imposed
(1) is reasonably related to specified
sentencing factors, namely the nature and
circumstances of the offense and the
history and characteristics of the
defendant;

(2) is reasonably related to the need to
afford adequate deterrence, to protect
the public from further crimes of the
defendant, and to provide the defendant
with needed educational or vocational
training, medical care, or other
correctional treatment in the most
effective manner;

(3) involves no greater deprivation of
liberty than is reasonably necessary to
achieve these goals; and

(4) is consistent with any pertinent
policy statements issued by the
Sentencing Commission.

United States v. Schave, 186 F.3d 839,
841 (7th Cir. 1999); see 18 U.S.C.
sec.sec. 3583(d), 3553(a)(1), (a)(2)(B)-
(D); U.S.S.G. sec. 5D1.3(b).

  The Sentencing Commission, interpreting
this statutory mandate, has required
explicitly that any such special
condition be "reasonably related to . . .
the nature and circumstances of the
offense and the history and
characteristics of the defendant; [and
to] the need . . . to afford
adequatedeterrence to criminal conduct;
to protect the public from further crimes
of the defendant; and . . . to provide
the defendant with needed educational or
vocational training, medical care, or
other correctional treatment in the most
effective manner . . . ." U.S.S.G. sec.
5D1.3(b).

  The task of shaping the conditions of
supervised release to achieve these
statutorily mandated goals is committed
to the sound discretion of the district
court. Consequently, we review a district
court’s decision to impose a special
condition of supervised release for an
abuse of discretion. See Schave, 186 F.3d
at 841; United States v. Brown, 136 F.3d
1176, 1186 (7th Cir. 1998); United States
v. Schechter, 13 F.3d 1117, 1118 (7th
Cir. 1994).

2.
  In imposing the special condition in the
case before us, the district court
explained that Mr. Monteiro’s history of
fraudulent endeavors demonstrated the
need for "exceptional vigilance" on the
part of law enforcement officials to
discourage recidivism. See R.24 at 43. A
review of the record makes clear that the
district court was on solid ground in
concluding that Mr. Monteiro had a
significant problem with identity fraud.
The presentence investigation report,
which is replete with acts of fraud by
Mr. Monteiro dating back to his
childhood, reveals that Mr. Monteiro has
lead a life of fraud and deceit and
regularly misrepresents his true
identity./2 He repeatedly has given
false names to police officers, has
signed a fingerprint card with a false
name after being arrested for possessing
a forged check, and even recounted a
fantastic but false story about his
family background when interviewed by the
writer of the presentence report.

  We have no doubt that the district court
acted well within its discretion in
concluding that a search of Mr. Monteiro
and his property would be likely to
uncover any persistence by Mr. Monteiro
in the pattern of deceit that had brought
him before the court in the first place.
Indeed, it was a search of Mr. Monteiro’s
home that uncovered evidence of the
access device fraud for which he stands
convicted here. The special condition, by
permitting warrantless searches, clearly
relates to the goals of rehabilitation
and protection; it deters Mr. Monteiro
from engaging in identity fraud after his
release.

  The courts of appeals in other circuits
have upheld similar provisions for
warrantless searches when necessary to
curb the sort of criminal activity in
which a defendant had a history of
engaging. For instance, in United States
v. Kingsley, 241 F.3d 828 (6th Cir.
2001), the Sixth Circuit upheld a special
condition allowing for random,
warrantless searches of the defendant or
his property by the defendant’s probation
officer because it was a justifiable
means for enforcing a prohibition against
the possession of intoxicants or firearms
and for detecting evidence of
criminalactivity. Id. at 837. The court
of appeals noted that the district court
explicitly had determined that the
condition was necessary to protect the
safety of the probation officer and the
public:

Kingsley’s crime of conviction implicated
the illegal possession of multiple
dangerous weapons. His prodigious twenty-
year record of violent, reckless, and
otherwise serious criminal activities,
his lifetime abuse of omnifarious
rationality-disabling and intellect-
damaging intoxicants, his regular
manifestations of troubling psychological
derangement and emotional debilitation,
and his customary total disregard of the
law, cumulatively betrayed a dangerous
anti-social personality potentially
capable of any act of violence or
felonious behavior. At minimum, this
defendant has proven his propensity to
habitually possess, and misuse, alcohol,
narcotics, and weapons, with recurring
disastrous results. Accordingly, special
condition no. 4 was reasonably related to
the nature and circumstances of his
subject offense, his personal history and
characteristics, deterrence of future
recidivist felonious actions,
rehabilitation of the offender, and
protection of public safety. It imposed
no greater liberty deprivation than
necessary to achieve those valid
objectives.

Id.

  In United States v. Germosen, 139 F.3d
120 (2d Cir. 1998), the Court of Appeals
for the Second Circuit was faced with a
special condition of supervised release
that permitted the defendant to "be
subject to search of his person and prop
erty by probation." 139 F.3d at 131. The
court noted that a district court may
impose special conditions of supervised
release to the extent they are
"reasonably related" to the nature and
circumstances of the offense, the history
and characteristics of the defendant and
the purposes of sentencing including the
need for an adequate sentence to protect
the public from further crimes of the
defendant and to provide the defendant
with needed training and treatment. Id.
(citing U.S.S.G. sec. 5D1.3b). The court
therefore upheld a condition of release
allowing for warrantless searches of the
defendant or his property by his
probation officer to ensure compliance
with a restitution order. See id. at 132.
Germosen had posed as an attorney
numerous times and had obtained a credit
card by using his father’s social
security number. Id. Thus, because the
defendant’s "candor on his financial
matters [was] demonstrably
untrustworthy," id., a condition
requiring that he submit to searches of
his property was "entirely reasonable."
Id. The court also noted that the
Sentencing Commission recommends that,
when a court imposes an order of
restitution, it also should impose a
condition requiring the defendant to
provide the probation officer access to
any requested information. Id. at 131
(citing U.S.S.G. sec. 5B1.4(b)(18)). The
warrantless search condition fulfilled
this need. Indeed, the court indicated
that, because the purpose of the search
was to ensure that the probation office
would have the information necessary to
monitor the defendant’s compliance with
the restitution condition, the district
court had clarified that the searches
would be limited to those that the
probation department found necessary to
secure information about the finances.
See id.

  As Mr. Monteiro points out, not all
special conditions allowing searches of
an individual and his property have been
sustained by the courts. Indeed, in
United States v. Prendergast, 979 F.2d
1289, 1293 (8th Cir. 1992), and also in
United States v. Bass, 121 F.3d 1218,
1223-25 (8th Cir. 1997), the Eighth
Circuit concluded that search authority
aimed at ensuring that the defendants did
not purchase or use alcohol could not
stand as special conditions of supervised
release because there was no evidence
that alcohol abuse was related to the
offense of conviction or that the
defendant suffered from a dependency
problem that would, unless checked, lead
to further criminality. Here, by
contrast, the district court has
demonstrated adequately the relationship
between the imposed search condition and
the life pattern of Mr. Monteiro,
including his commission of the charged
offense.

3.

  Mr. Monteiro further suggests that the
district court abused its discretion by
allowing the warrantless searches to be
carried out by any law enforcement
officers, rather than by probation
officers exclusively. In support of his
contention, Mr. Monteiro relies on United
States v. Consuelo-Gonzalez, 521 F.2d 259
(9th Cir. 1975), in which the Ninth
Circuit held that the Federal Probation
Act required warrantless searches of
probationers conducted pursuant to a
condition of probation to be carried out
by probation officers. The court in
Consuelo-Gonzalez concluded that allowing
any law enforcement officers, as opposed
to just probation officers, to execute
the warrantless searches did not
reasonably relate to the purposes of the
Federal Probation Act. Id. at 266. That
purpose, the court noted, was to provide
"an amelioration of the sentence by
delaying actual execution or providing a
suspension so that the stigma might be
withheld and an opportunity for reform
and repentance be granted before actual
imprisonment should stain the life of the
convict." Id. at 263 (quoting United
States v. Murray, 275 U.S. 347, 357
(1928) (reviewing the history of the
Federal Probation Act)).

  The special condition of Mr. Monteiro’s
supervised release is not based on the
Federal Probation Act, however, but on
the Sentencing Reform Act of 1984, Pub.
L. No. 98-473, sec. 212(a)(2), 98 Stat.
1987 (codified as amended at 18 U.S.C.
sec. 3551 et seq.). That act requires
special conditions of supervised release
to reasonably relate to the goals of
rehabilitation and protection of the
public and to involve no greater
deprivation of liberty than reasonably
necessary to effectuate those goals. See
18 U.S.C. sec.sec. 3582(d)(1), (d)(2),
3553(a)(2)(C), (a)(2)(D). We believe that
the district court was entitled to
conclude that allowing any law
enforcement officer to carry out the
search authorized by the special
condition was related reasonably to those
goals and did not entail a greater
deprivation of Mr. Monteiro’s liberty
than reasonably necessary. The
possibility of a search at any time works
to deter Mr. Monteiro from resorting to
fraud upon release from incarceration;
such a deterrent facilitates Mr.
Monteiro’s rehabilitation by encouraging
him to develop other skills to support
himself in a lawful way. This deterrent
also protects the public by discouraging
Mr. Monteiro from defrauding anyone else.
To serve as an effective deterrent and
thus facilitate the goals of sentencing,
however, the possibility of a search must
be real. The district court was entitled
to consider whether the location of Mr.
Monteiro’s residence, his daily routine,
as well as the burden on probation
authorities, already burdened by
excessive caseloads, made the possibility
of a search by a probation officer all
too remote to make the special condition
effective.

  In Owens v. Kelley, 681 F.2d 1362 (11th
Cir. 1982), the Eleventh Circuit upheld
the constitutionality of a condition of
probation imposed by a state court
subjecting the probationer to warrantless
search by any law enforcement officer.
The court reasoned that the condition
would "satisfy constitutional muster if .
. . the condition . . . reasonably
related to the purposes of probation
under Georgia law." 681 F.2d at 1366. The
court determined that "the two essential
purposes of probation in Georgia, as
elsewhere are the rehabilitation of the
probationer, and the protection of
society." Id. at 1366-67. The court
concluded that allowing any law
enforcement officer to perform the
warrantless search reasonably related to
the two essential purposes because law
enforcement officers could provide
significant assistance to probation
authorities by conducting searches
pursuant to the probation condition. Id.
at 1369. The court also observed that it
may be desirable to allow any law
enforcement officers to conduct the
searches because excessive caseloads may
limit the ability of probation
supervisors to conduct searches. Id. at
1369 n.14 (citing Consuelo-Gonzalez, 521
F.2d at 270-71 (Wright, J., dissenting)).

  Mr. Monteiro cannot point to any
specific abuse that might ensue from this
special condition. In the absence of a
more concrete objection on his part, we
cannot say that the district court abused
its discretion in allowing any law
enforcement officers to conduct a search
of Mr. Monteiro. We note as well that,
because the district court maintains
continuing jurisdiction over the
supervised release period, United States
v. Lilly, 206 F.3d 756, 762 (7th Cir.
2000), should Mr. Monteiro encounter the
abuse that he suggests might occur, the
district court can deal with the matter
upon his application.

  Section 3583(e)(2) allows a district
court to modify the conditions of
supervised release at any time during the
term of their imposition pursuant to the
Federal Rules of Criminal Procedure that
relate to the modification of probation.
See 18 U.S.C. sec. 3583(e)(2). Under
Federal Rule of Criminal Procedure
32.1(b), a person may request a
modification of the terms of the person’s
supervised release, and the district
court has the authority to entertain such
a motion. See Fed. R. Crim. P. 32.1(b)
(requiring hearing and assistance of
counsel unless person on supervised
release requested the relief granted by
the court); Lilly, 206 F.3d at 761-63
(holding that district court has
authority to entertain a motion for
clarification of the terms of supervised
release); Fed. R. Crim. P. 32.1(b)
advisory committee note ("The probationer
should have the right to apply to
thesentencing court for a clarification
or change of conditions."). Should Mr.
Monteiro encounter unreasonable
harassment by law enforcement officers or
other abuses of the authority granted
them by the special condition, Mr.
Monteiro may petition the district court
for a modification of the special
condition designed to curtail the abuses.
See United States v. Dempsey, 180 F.3d
1325, 1325-26 (11th Cir. 1999) (per
curiam) (holding in favor of defendant
who, on a Rule 32.1(b) motion, had sought
to have the conditions of his supervised
release modified or clarified by the
district court); Fed. R. Crim. P. 32.1(b)
advisory committee note ("[I]n cases of
neglect, overwork, or simply
unreasonableness on the part of the
probation officer, the probationer should
have recourse to the sentencing court
when a condition needs clarification or
modification.").

4.

   Determining the propriety of the
special condition’s authorization of
warrantless seizure of Mr. Monteiro, his
home, or his car, however, requires
further analysis. In authorizing the
imposition of special conditions of
supervised release, Congress explicitly
mandated that an imposed condition should
involve "no greater deprivation of
liberty than is reasonably necessary . .
. ." 18 U.S.C. sec. 3583(d)(2). In
Germosen, Chief Judge Winter wrote that,
"[a]lthough district courts have broad
discretion in tailoring conditions of
supervised release to meet the specific
circumstances of a given case, they do
not have ’untrammeled’ discretion." 139
F.3d at 131 (quoting United States v.
Amer, 110 F.3d 873, 883 (2d Cir. 1997)).
Nevertheless, if the condition is
reasonably related to the ends of
rehabilitation and the protection of the
public from recidivism, it must be
upheld. See Schave, 186 F.3d at 843.

  Here, the special condition of
supervised release reads as follows:
"Your person, residence, and vehicle
shall be subject to search and seizure
upon demand of any law enforcement
officer." R.24 at 39. By the plain
wording of this condition, any law
enforcement officer could not only
search, but also seize Mr. Monteiro, his
home or his car on demand. We cannot
discern from this record the reason why
the district court was of the view that
such broad authority to seize was
required to ensure that the ends of
rehabilitation and protection of the
public were met. Indeed, at oral argument
in this case, counsel for the United
States candidly acknowledged that,
although such an interpretation was
compatible with the plain language of the
condition, he did not believe that such a
result was foreseen by the district
court.

  Faced with language in a special
condition of supervised release that the
defendant argued was vague and overbroad,
this court in Schave was able to avoid
the difficulties posed by the language by
giving the special condition a limiting
construction. See Schave, 186 F.3d at
843. In this case, however, we believe
the most appropriate course is to return
this matter to the district court and to
permit that court to craft more precisely
the seizure authority of the special
condition in order to ensure that it
relates reasonably to the ends of
rehabilitation and protection of the
public.
Conclusion

  The imposition of the special condition
allowing for the warrantless seizure of
Mr. Monteiro and his property by any law
enforcement officer upon demand is
vacated, and we remand the matter to the
district court for reconsideration in
conformity with this opinion.

VACATED and REMANDED

FOOTNOTES

/1Section 1029 provides:

(a) Whoever--

. . .

  (2) knowingly and with intent to defraud
traffics in or uses one or more unauthorized
access devices during any one-year period, and by
such conduct obtains anything of value aggregat-
ing $1,000 or more during that period;

  . . .

shall, if the offense affects interstate or
foreign commerce, be punished as provided in
subsection (c) of this section.

(c) Penalties.--

  (1) Generally.--The punishment for an offense
under subsection (a) of this section is--

. . .

  (B) in the case of an offense that occurs
after a conviction for another offense under this
section, a fine under this title or imprisonment
for not more than 20 years, or both . . . .

18 U.S.C. sec. 1029(a)(2), (c)(1)(B).

/2 In sentencing determinations, a district court
may rely on information contained in the presen-
tence report, so long as the report bears the
requisite indicia of reliability. United States
v. Cavender, 228 F.3d 792, 802 (7th Cir. 2000).
Mr. Monteiro does not contest the reliability of
the presentence report upon which the court
relied in determining the appropriate special
condition to impose on his supervised release.
