The U.S. Court of Appeals for the Sixth Circuit held that a probation officer’s warrantless search of a probationer’s cellphone was unreasonable where the probation officer did not have reasonable suspicion to justify the search.
Jason Fletcher was sentenced to five years’ probation after being convicted of importuning a minor in violation of Ohio Revised Code § 2907.07(B). His conditions of probation included a provision that he submit to a search without a warrant of his person, his motor vehicle, or his place of residence by a probation officer at any time. During a routine visit with his probation officer, the officer observed that Fletcher had two cellphones. The officer announced he was going to search the phones and saw that Fletcher became nervous. Fletcher began looking through one of the phones, and it appeared to the officer that Fletcher was deleting content from the phone. The officer took the phone and searched through it until he saw an image of suspected child pornography. The officer then contacted Detective Brandi Carter who, in turn, secured a search warrant based on the probation officer’s discovery. The phone contained child pornography, including images that had been filmed on the phone itself.
Fletcher filed a motion to suppress, which the U.S. District Court for the Southern District of Ohio denied. He was ultimately convicted of production of child pornography and sentenced to 35 years in prison. On appeal, Fletcher argued, inter alia, that the district court erred when it denied his motion to suppress.
The Sixth Circuit observed “[t]he Fourth Amendment provides that ‘[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated.’” The ultimate touchstone of the Fourth Amendment is reasonableness. Riley v. California, 573 U.S. 373 (2014). A search without a warrant is presumptively unreasonable and will pass constitutional muster only if the government can prove it fell within a specific exception to the warrant requirement. Id.
One exception is a search incident to arrest – but the U.S. Supreme Court has held that this particular exception does not apply to cell phones. Id. However, other exceptions, e.g., to prevent imminent destruction of evidence, may apply to cell phones. Id. In determining reasonableness, the court must balance the degree to which the search intrudes upon an individual’s privacy with the government’s need to search to promote its legitimate interests. United States v. Lichtenberger, 786 F.3d 478 (6th Cir. 2015). Because of the amount of private information stored on a cell phone, the government’s intrusion upon individual privacy when searching a cell phone is enormous. Id.
Since Fletcher was on probation, a probation officer could search with or without a warrant Fletcher’s person, his personal property, and his real property if the officer had reasonable grounds to believe Fletcher was not abiding by the law or otherwise complying with the terms of his probation. Ohio Revised Code § 2951.02(A). Under the standard set forth in Griffin v. Wisconsin, 483 U.S. 868 (1987), the Sixth Circuit agreed with the district court that the Ohio statute was reasonable.
But the Court concluded that the probation officer did not have reasonable grounds to believe Fletcher was not abiding by the law or otherwise complying with the conditions of his probation. Reasonable suspicion is based on the totality of the circumstances requiring articulable reasons supporting an objective basis for suspecting a particular person of criminal activity. United States v. Payne, 181 F.3d 781 (6th Cir. 1999). Merely possessing two cellphones did not provide an objective basis to form reasonable suspicion because there are numerous lawful reasons a person may possess two phones (one may be a work phone, one phone may be used only to access the internet, etc). And since Fletcher’s criminal conviction did not involve child pornography or use of a cellphone, his prior conviction did not provide reasonable suspicion.
While it was true that Fletcher’s nervous appearance and the perceived deletion of images gave rise to both a reasonable suspicion and an exigent circumstance (destruction of evidence), those occurred only after the officer announced he was going to search the phones. An officer may not threaten to take action that violates the Fourth Amendment to create a reasonable suspicion or cause an exigent circumstance. Kentucky v. King, 563 U.S. 452 (2011).
It is also true that a probationer’s privacy rights, while diminished, are substantial. United States v. Knights, 534 U.S. 112 (2001). But when the terms of probation specifically permit a particular suspicionless search, the warrantless search will be upheld. Id. However, Fletcher’s conditions of probation did not permit a suspicionless search of his cell phone.
The Court concluded that when Detective Carter secured a warrant to search the phones, she relied upon the probation officer’s unreasonable search in violation of the Fourth Amendment. Accordingly, the Court reversed the denial of Fletcher’s motion to suppress, vacated his conviction, and remanded for further proceedings. See: United States v. Fletcher, 978 F.3d 1009 (6th Cir. 2020).
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