Cell phone search by probation officer ruled invalid

United States v. Fletcher, 2020 WL 6268635 (6^th Cir. 2020)

Together with his 20-year-old niece, Jason Fletcher drugged a 2-year-old child and used his cell phone to record himself engaging in sexual acts on the unconscious baby. Fletcher was sentenced to probation for the child sex offense. During a subsequent probation check, Fletcher’s probation officer saw that Fletcher had two cell phones and asked to see them. Fletcher reacted “nervously,” initially claiming he did not have the pass codes, then frantically trying to delete items from the phones.

The probation officer seized both phones and was eventually able to open one of the phones with Fletcher’s fingerprint. The probation officer saw an image of child pornography and stopped the search. Based on that discovery, an officer obtained a warrant. A forensic investigator searched the phone and located more child pornography, including video recordings of Fletcher molesting children. Fletcher was arrested.

Fletcher asked the trial court to suppress the evidence from the cell phone. Several established search and seizure principles apply to this case, including the following:

• Parolees and probationers have a lessened expectation of privacy than the general public (Griffin v. Wisconsin, 483 U.S. 868 (1987)). Generally, reasonable suspicion – not probable cause – is the standard for evaluating a probation or parole search. To constitute a valid warrantless search, the probation officer must have reasonable suspicion that the probationer has committed a probation violation or crime and that the search is reasonably related to the probation officer’s duty to supervise the probationer or parolee.
• A probationer’s expectation of privacy is somewhat greater than that of a parolee (Samson v. California, 547 U.S. 843 (2006)).
• The reasonable suspicion standard applies only to searches of parolees or probationers that are conducted by probation and parole agents. Other officers dealing with parolees and probationers must follow general search and seizure rules.
• A probation agreement must clearly state the probation search conditions so the probationer is “unambiguously informed” of what is required to comply (United States v. Knights, 534 U.S. 112 (2001)).
• Searches of cell phones are not permissible under the search-incident-to-arrest doctrine; they generally require a search warrant (Riley v. California, 573 U.S. 373 (2014)). A warrantless search of a cell phone may be authorized by the need to prevent the imminent destruction of evidence in individual cases.
• The exigent circumstances doctrine does not apply where police create the very exigency used to justify a warrantless search. “Under this doctrine, police may not rely on the need to prevent destruction of evidence when that exigency was ‘created’ or ‘manufactured’ by the conduct of the police” (Kentucky v. King, 563 U.S. 452 (2011)).

The appellate court agreed with the trial court that the warrantless search condition of Fletcher’s state court probation was reasonable. However, the appellate court held the scope of the search was not supported by reasonable suspicion. The trial court ruled that merely possessing two phones may not satisfy reasonable suspicion for most persons, “although it is a close call for a probationer convicted of a sex offense.” Nonetheless, the trial court considered the possession of two phones coupled with Fletcher’s nervousness and apparent attempt to manipulate the phones to possibly delete material. That was enough for the trial court to find reasonable suspicion and uphold the search of the phones.

The court of appeals reversed, holding the probation officer lacked reasonable suspicion to search Fletcher’s cell phone and the probation agreement did not authorize the search. The court stated, “There are countless, innocent reasons for having two cell phones, and possessing more than one cell phone is a practice common in the general public” (and certainly common with law enforcement officers). The court acknowledged Fletcher was on probation for a sex offense and that a mobile phone can easily store child pornography. However, Fletcher’s conviction was for sexual conduct, not for possession or manufacturing of child pornography. No matter how hyper-technical the distinction may appear, it was significant to the court.

Turning to Fletcher’s highly suspicious attempt to delete content from the phone, the court held the probation officer “created the exigency” used to justify the warrantless search. The court rationalized that Fletcher became nervous when the probation officer said she would search the phones. One can surmise he was nervous because he knew the phone contained evidence of him raping children and it wouldn’t go well for him if the evidence was discovered. Only when the probation officer threatened what the court later deemed to be an unconstitutional search did Fletcher try to protect himself from the unconstitutional conduct.

The court also held the probation agreement that authorized searches of Fletcher’s “person,” “motor vehicle” or “place of residence” without particularized suspicion could not be interpreted to include the mobile phones on his person or in his place of residence. Given the substantial privacy interest in one’s mobile phone and the lack of a specific probation condition authorizing searches of Fletcher’s mobile phone(s), the evidence was suppressed. One judge sharply dissented. She would have applied a more commonsensical and less extremely technical analysis.

A couple of lessons stand out in this case. First, sex crime investigators can point to substantial research as well as their own experiences pairing sexual contact offenses with possession of child pornography. The probation conditions for an offender like Fletcher—who had drugged and raped an infant and recorded himself doing it, all while armed and while tagged with other sex crime convictions—should have included a search provision for electronic media, including mobile phones. (And no, the case does not indicate why Fletcher received only probation for that offense.)

Second, though the probation officer was alert to probable additional crimes, perhaps stepping back for a moment, taking a breath and questioning Fletcher about the phones may have yielded a different result. Perhaps not. Nonetheless, even seizing the two phones and obtaining a warrant before the initial search likely would have changed the outcome. In any event, the court of appeals decision did not invalidate Fletcher’s 10-year sentence for state law violations.