United States of America v. Richard J. Berry

United States Court of Appeals
For the Eighth Circuit
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No. 24-2337
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United States of America
Plaintiff - Appellee
v.
Richard J. Berry
Defendant - Appellant
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No. 24-2342
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United States of America
Plaintiff - Appellee
v.
Richard J. Berry
Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Missouri - Cape Girardeau
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Submitted: October 20, 2025
Filed: April 3, 2026
[Unpublished]
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Before SMITH, KELLY, and GRASZ, Circuit Judges.
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PER CURIAM.
Richard Berry served 24 months’ imprisonment for possessing child
pornography. He then entered supervised release. Several of his release conditions
limited his access to electronic devices and the internet. One such condition required
him to submit himself and his residence to searches by a United States probation
officer should the officer have reasonable suspicion. The condition also required
Berry to “advise the probation office of all computer, electronic equipment, and web
enabled equipment, including cell phones, to which he possesses or has access within
24 hours of obtaining same.” R. Doc. 45, at 5.
Prior to his release, officers went to Berry’s home to take inventory and review
the space. Berry’s domestic partner and his father also lived at the residence. The
officers explained the conditions of Berry’s release to them. Berry’s partner
appeared upset by the restrictions imposed by the conditions.
During a scheduled home visit, a probation officer noticed a sticky note with
possible electronic passwords near a computer. Several months later, officers
searched Berry’s home and collected several suspicious items. Officers testified that
they also saw several unrecognized devices that Berry might have had access to.
They also noticed that Berry wore a smart watch. The officers suspected that these
items had not been approved for Berry’s use by the probation office. Berry’s partner
later testified the passwords near the computer were his, not Berry’s.

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Following the seizure, officers searched the devices found in Berry’s home.
The search uncovered images of child pornography. Berry was charged with receipt
of child pornography in a new case. He filed a motion to suppress, arguing that there
was no evidence that he himself had either possessed the seized devices or had access
to them.
A magistrate judge recommended denying the motion to suppress. The district
court1 adopted the findings in the magistrate judge’s report and recommendation as
written and denied Berry’s motion.
Berry pleaded guilty, reserving his right to appeal the denial of his suppression
motion. The district court sentenced Berry to 120 months’ imprisonment on the new
case and 18 months’ imprisonment for his supervised release violation.
This appeal followed. Berry argues that the district court erred in concluding
that the probation officers had reasonable suspicion to initiate the search of his
residence. He also argues that the district court improperly weighed the 18
U.S.C. § 3553(a) factors in the new case. For the reasons below, we affirm.
The reasonableness of a search is determined by assessing, on the one
hand, the degree to which it intrudes upon an individual’s privacy and,
on the other, the degree to which it is needed for the promotion of
legitimate governmental interests. An individual’s status as a
probationer subject to a search condition informs both sides of that
balance. Probation, like incarceration, is a form of criminal sanction
imposed by a court upon an offender after verdict, finding, or plea of
guilty.
United States v. Makeeff, 820 F.3d 995, 1000 (8th Cir. 2016) (citation modified).
Because “probationers do not enjoy the absolute liberty to which every citizen is
entitled . . . . a court granting probation may impose reasonable conditions that
1 Honorable Stephen N. Limbaugh, Jr., United States District Judge for the
Eastern District of Missouri.

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deprive the offender of some freedoms enjoyed by law-abiding citizens.” Id.
(citation modified). We presume “that the probationer is more likely than the
ordinary citizen to violate the law.” Id. (citation modified).
On this record, we conclude that reasonable suspicion supported the probation
officers’ seizure of the electronic devices from Berry’s residence. Berry’s release
conditions required that he notify the probation officers of electronic devices and
that he be subject to search if needed. Berry argues that the conditions only
prohibited him from “possess[ing]” or “access[ing]” computers and other electronic
devices. Consequently, he had no duty to report all electronic devices, only those
which he possessed or accessed.
Berry lived in a home with two other people. These individuals knew his
supervised release conditions. Officers saw passwords around a computer. Berry had
not been granted permission to access or possess that computer. The probation
officers had reasonable suspicion that Berry had used the passwords to access the
electronic devices in the home. See Makeeff, 820 F.3d at 1002.
The district court highlighted that the devices had not been reported to the
probation office. We agree with the district court’s analysis. Whether Berry had
access to or possessed these devices is not dispositive. Failure to report the devices
to probation also violated his release conditions. This supplied the officers with
reasonable suspicion to warrant a search. See id. In Makeeff, we found that a single
USB drive constituted reasonable suspicion. See id. Here, the officer noticed that
Berry was wearing a smart watch; this alone, as in Makeeff, was sufficient to give
reasonable suspicion.
We also affirm Berry’s sentence. We review the sentence imposed by the
district court for an abuse of discretion. United States v. Feemster, 572 F.3d 455,
461 (8th Cir. 2009) (en banc). “A sentencing court abuses its discretion if it fails to
consider a relevant factor that should have received significant weight, gives
significant weight to an improper or irrelevant factor, or considers only the

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appropriate factors but commits a clear error of judgment in weighing those factors.”
United States v. Watson, 480 F.3d 1175, 1177 (8th Cir. 2007). The district court did
not abuse its discretion when weighing the statutory factors.
Here, the district court explicitly invoked § 3553(a). The district court
emphasized the seriousness of Berry’s crimes. The record supports the court’s
reasoning. Berry identifies no factor which ought to have been weighed but was not,
nor one that was weighed excessively.
Accordingly, we affirm the district court’s denial of the motion to suppress
and Berry’s sentence.
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