UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JASON FLETCHER, Defendant-Appellant.
No. 19-3153
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
October 26, 2020
STRANCH, J.
RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 20a0339p.06
Appeal from the United States District Court for the Southern District of Ohio at Cincinnati. No. 1:17-cr-00139-2—Susan J. Dlott, District Judge.
Argued: May 5, 2020
Decided and Filed: October 26, 2020
Before: COLE, Chief Judge; BATCHELDER and STRANCH, Circuit Judges.
COUNSEL
ARGUED: Manuel B. Russ, Nashville, Tennessee, for Appellant. Megan Gaffney, UNITED STATES
STRANCH, J., delivered the opinion of the court in which COLE, C.J., joined. BATCHELDER, J. (pp. 14-16), delivered a separate dissenting opinion.
OPINION
JANE B. STRANCH, Circuit Judge. This case arises at the intersection of two branches of
I. BACKGROUND
In 2013, Fletcher was convicted of importuning a minor in violation of
During a routine visit with his probation officer, the officer noticed that Fletcher had two phones. The officer stated that he was going to search the phones and observed that Fletcher responded nervously and began looking through one of them. Fletcher told the officer that this personal phone operated only on a wi-fi network, and that the second phone belonged to a relative and was for work. Believing that Fletcher was deleting the phone‘s contents, the officer took the phone and requested the passcode, which Fletcher claimed he did not remember. Fletcher later unlocked the phone by fingerprint recognition, and the officer, searching through the phone, saw an image of child pornography.
The officer turned off the phone and contacted a Warren County detective, Brandi Carter, who sought, obtained, and executed a warrant to search the phone. The phone contained child pornography that had been downloaded from the internet and that had been filmed by the phone itself. Carter forwarded the videos filmed on the phone to federal agents for investigation and separately pursued state charges against Fletcher for the child pornography downloaded from the internet. For the downloaded images, Fletcher was charged in state court with multiple counts of pandering sexually oriented matter involving a minor, in violation of
For the videos filmed on the phone, Fletcher was charged in federal court with conspiracy to produce child pornography and production of child pornography. He
II. ANALYSIS
For a motion to suppress, we review legal questions de novo and factual findings for clear error. United States v. Davis, 514 F.3d 596, 607 (6th Cir. 2008).
Fletcher argues that his probation officer lacked reasonable suspicion to search his cell phone without a warrant. The
In Riley v. California, the Supreme Court addressed how the data capacity of modern cell phones intersects with individual privacy concerns recognized by the
Applying these principles, we have explained that the
On the government interest side, [we have previously] concluded that the two risks identified . . . —harm to officers and destruction of evidence—are present in all custodial arrests. There are no comparable risks when the search is of digital data. In addition, [we have] regarded any privacy interests retained by an individual after arrest as significantly diminished by the fact of the arrest itself. Cell phones, however, place vast quantities of personal information literally in the hands of individuals. A search of the information on a cell phone bears little resemblance to the type of brief physical search considered in [our prior cases].
Id. (alterations in original) (quoting Riley, 573 U.S. at 386).
Individuals subject to state supervision, however, may have lesser privacy interests than the general public. Two
A. Griffin Framework
In Griffin, the Supreme Court created a two-part inquiry to evaluate the reasonableness of a warrantless search of a probationer‘s home conducted under a specific statute or regulation. See 483 U.S. at 873-80. “First, courts examine whether the relevant regulation or statute pursuant to which the search was conducted satisfies the
Here, the relevant Ohio statute provides that:
during the period of a felony offender‘s nonresidential sanction, authorized probation officers who are engaged within the scope of their supervisory duties or responsibilities may search, with or without a warrant, the person of the offender, . . . another item of tangible or intangible personal property, or other real property in which the offender has a right, title, or interest . . . if the probation officers have reasonable grounds to believe that the offender is not abiding by the law or otherwise is not complying with the conditions of . . . the felony offender‘s nonresidential sanction.
The parties dispute, however, whether there was reasonable suspicion for the probation officer to open and view material in Fletcher‘s cell phone. To conduct that search, Ohio requires that the probation officer have “reasonable grounds” to believe that Fletcher was either
When Fletcher visited his probation officer, the officer noticed that Fletcher was carrying two cell phones and told him that he was going to search the phones. Fletcher responded nervously, stating that he did not have the passcode for one of the phones and going through the other phone in what the officer believed was an attempt to delete its contents. The officer then demanded that Fletcher hand over the phone and used Fletcher‘s fingerprint to unlock it. The officer found a pornographic image of a child on the phone, stopped his search, and called for Fletcher to be arrested for a probation violation.
The district court determined that a citizen‘s possession of two phones alone may not satisfy reasonable suspicion, “although it is a close call for a probationer convicted of a sex offense.” United States v. Fletcher, No. 1:17-cr-139(2), 2018 WL 1863825, at *4 (S.D. Ohio Apr. 18, 2018). It nevertheless agreed with the Government‘s argument that Fletcher‘s behavior after the probation officer demanded to search his cell phones may serve as the basis for reasonable suspicion to initiate the search. Id.
Reasonable suspicion, however, requires that the Government show “a particularized and objective basis for suspecting the particular person . . . of criminal activity.” Payne, 181 F.3d at 788 (quoting Cortez, 449 U.S. at 417-18). It “requires more than a mere hunch.” United States v. Lyons, 687 F.3d 754, 763 (6th Cir. 2012) (quoting Dorsey v. Barber, 517 F.3d 389, 395 (6th Cir. 2008)). We therefore begin with whether the probation officer had an objective basis for suspecting Fletcher of criminal activity when he told Fletcher he was going to search the two phones and demanded that Fletcher hand them over. The dissent focuses on the fact that Fletcher had two cell phones, which it argues justified reasonable suspicion in light of Fletcher‘s criminal history and probation conditions. But the events described amount to no more than a “mere hunch.” Id. Possession of two cell phones, alone, is not a sufficient basis to suspect criminal activity. Even when we have identified possession of multiple cell phones as relevant to reasonable suspicion, we have called it “weak” and required “more substantially suspicious factors” and those cases involved drug offenses, which are unrelated to the offense for which Fletcher was on probation. United States v. Townsend, 305 F.3d 537, 544 (6th Cir. 2002); see also Nykoriak v. Wileczek, 666 F. App‘x 441, 444 (6th Cir. 2016); United States v. Taylor, 471 F. App‘x 499, 516 (6th Cir. 2012) (employing similar logic on a challenge to the sufficiency of the evidence at trial). In a case involving child pornography—again, not the offense for which Fletcher was on probation—the Eleventh Circuit relied on multiple other indicia in addition to possession of multiple phones when finding reasonable suspicion. United States v. Touset, 890 F.3d 1227, 1237 (11th Cir. 2018).
This approach makes sense. There are countless, innocent reasons for having two cell phones, and possessing more than one
Fletcher‘s conviction of a sex offense can, as the Government and the dissent argue, add to the calculus. But Fletcher‘s offense was for importuning and did not involve a cell phone, nor did he have a history of possessing child pornography. And, despite the Government‘s arguments, the fact that Fletcher‘s probation agreement prohibited him from possessing child pornography cannot justify a search where the officer lacked reasonable suspicion to believe that Fletcher‘s phones contained child pornography at the time she announced she would search the phones. See Payne, 181 F.3d at 788. The fruits of a search cannot serve as the justification for initiating that search.
The Government next contends, and the dissent argues, that Fletcher‘s behavior in response to the officer‘s demands supports a finding of reasonable suspicion. The Supreme Court addressed whether an officer can create exigency or the circumstances that give rise to reasonable suspicion to justify a warrantless search in Kentucky v. King, 563 U.S. 452 (2011). It determined that “the exigent circumstances rule justifies a warrantless search when the conduct of the police preceding the exigency is reasonable in the same sense.” Id. at 462. And, where an officer created exigency by “engaging or threatening to engage in conduct that violates the
In Riley, the Supreme Court established that searching a cell phone generally requires a warrant unless some exception, such as exigent circumstances, applies in that particular case. 573 U.S. at 401-02. At the time the officer told Fletcher he was going to search Fletcher‘s phones, there were no exigent circumstances or other reasonable grounds to support a finding that Fletcher was violating his legal obligations. The officer‘s request to search the phones at that point was unreasonable, and that unreasonable behavior created the exigency the Government now seeks to justify the subsequent search of the phone. Because the probation officer “threaten[ed] to engage in conduct that violates the
The Government next argues, and the dissent agrees, that reasonable suspicion existed because Fletcher is “a registered sex offender on probation, with a history of soliciting a minor, and with probation conditions barring him from possessing any pornography and from making contact with children.” But, again, Fletcher was
Because the search of Fletcher‘s phones does not “satisfy the regulation or statute at issue,” the Government does not meet the Griffin test. Loney, 331 F.3d at 520.
B. Knights Framework
Under the Knights framework, the Government‘s arguments fare no better. In Knights, the Supreme Court determined that a court must evaluate the reasonableness of a warrantless search “in light of the totality of the circumstances ‘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.’ ” Herndon, 501 F.3d at 690 (quoting Knights, 534 U.S. at 119).
As the Government correctly points out, Fletcher‘s status as a probationer reduces his interest in privacy. See Knights, 534 U.S. at 119 (quoting Griffin, 483 U.S. at 874) (“Inherent in the very nature of probation is that probationers ‘do not enjoy the absolute liberty to which every citizen is entitled.’ “) (cleaned up). But “while the privacy interest of a probationer has been ‘significantly diminished,’ it is still substantial.” See United States v. Lara, 815 F.3d 605, 610 (9th Cir. 2016) (citation omitted) (quoting Knights, 534 U.S. at 120). As a probationer, Fletcher‘s expectation of privacy is greater than that of a parolee, see Samson v. California, 547 U.S. 843, 850 (2006), and of someone on supervised release, see United States v. Sulik, 807 F. App‘x 489, 493 (6th Cir. 2020). In addition to Fletcher‘s status as a probationer, in evaluating his interests we also consider “the clarity of the conditions of probation, and the nature of the contents of a cell phone.” Lara, 815 F.3d at 610.
The Supreme Court‘s decision in Knights clarified that a probationer‘s reasonable expectation of privacy is “significantly diminished” when the terms of the probation agreement “clearly expressed the search condition” so that the probationer “was unambiguously informed.” 534 U.S. at 119. The Government relies on Knights and our decision in United States v. Tessier, which held that a suspicionless search of a probationer‘s residence was reasonable given the terms of the probation agreement. 814 F.3d 432, 435 (6th Cir. 2016). In both cases, the officers searched a residence and the terms of the probation agreement “clearly expressed the search condition.” Knights, 534 U.S. at 119; Tessier, 814 F.3d at 433. The terms of Fletcher‘s probation agreement provide that he “agree[d] to a search without warrant of [his] person, [his] motor vehicle or [his] place of residence by a Probation Officer at any time.” None of these terms clearly or unambiguously includes a cell phone. See Lara, 815 F.3d at 611 (reviewing more expansive probation terms, which allowed for warrantless searches of “property,” and determining that the terms did not include the search of a cell phone).
Turning to the nature of cell phones, Riley notes the quantity of information contained in modern cell phones, explaining that “a cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form—unless the phone is.” 573 U.S. at 396-97. The Supreme Court in Riley recognized that the search of a cell phone is unique and—as compared to the search of a home—infringes far more on individual privacy. As a result, we cannot assume that provisions in Fletcher‘s probation agreement authorizing the search of his person or place of residence also authorize the search of his cell phones.
The Government‘s interests here include ensuring that Fletcher successfully completes probation and refrains from engaging in criminal activity, and, when the probation officer announced that he would search Fletcher‘s phone, preventing Fletcher from destroying incriminating evidence. These interests are adequately addressed by securing the cell phone, without searching its contents. As Riley explained, “once law enforcement officers have secured a cell phone, there is no longer any risk that the arrestee himself will be able to delete incriminating data from the phone.” Id. at 388. There is no suggestion that the officer here experienced any safety risk from the physical aspects of the phone. “Digital data stored on a cell phone cannot itself be used as a weapon to harm an arresting officer or to effectuate the arrestee‘s escape. . . . Once an officer has secured a phone and eliminated any potential physical threats, however, data on the phone can endanger no one.” Id. at 387. And if Fletcher were engaging in criminal activity, the officer could determine that quickly by taking the course of action Riley prescribes—“get a warrant“—and then searching the phones’ contents. Id. at 403.
In sum, balancing Fletcher‘s expectation of privacy with the legitimate governmental interests, the search of Fletcher‘s cell phone was unreasonable.
The Government relies on out-of-circuit cases related to probation or other post-release control that miss the mark. Take, for example, United States v. Collier, 932 F.3d 1067 (8th Cir. 2019), where the Eighth Circuit held that a defendant on supervised release did not have a reasonable expectation of privacy in his cell phone. Id. at 1073-74. First, comparing supervised release to probation, “those on supervised release have an even further reduced expectation of privacy because supervised release ‘is a more severe punishment than parole and probation.’ ” See Sulik, 807 F. App‘x at 493 (quoting United States v. Jackson, 866 F.3d 982, 985 (8th Cir. 2017)). More importantly, the defendant in Collier had been arrested for violating the terms of his supervised release immediately before the phone search. 932 F.3d at 1073. Collier is distinguishable and not binding on our court.
Under both the Griffin and Knights frameworks, the Government fails to demonstrate that its original search of Fletcher‘s cell phone was reasonable.
C. Exclusionary Rule
We next consider whether the exclusionary rule applies. “To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system. . . . [T]he exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence.” Herring v. United States, 555 U.S. 135, 144 (2009).
The Government contends that the officer‘s initial search was not sufficiently culpable because he was not reckless or grossly negligent. We find that his conduct was deliberate. The moment Fletcher walked in the door to meet with his probation officer and the officer noticed that he had two cell phones, the officer demanded to search his phones. Fletcher‘s conditions of probation did not clearly or unambiguously allow for such a search and the probation officer lacked reasonable suspicion to initiate that search. See Knights, 534 U.S. at 119; Tessier, 814 F.3d at 433. If exigency did exist in this case, the officer‘s conduct created it, which cannot support a finding of reasonable suspicion. See King, 563 U.S. at 462. Application of the exclusionary rule here will deter suspicionless searches of a probationer‘s cell phone post-Riley where the terms of a probation agreement do not authorize such a search. Application of the rule would also encourage the future inclusion in probation agreements of clear and unambiguous terms regarding the distinct category of cell phones.
The Government also contends that the exclusionary rule should not apply because the executing officers relied in good faith on the subsequently issued warrant. It relies on United States v. McClain, in which we refused to apply the exclusionary rule even though the warrant relied in part on evidence seized during an illegal, warrantless search. 444 F.3d 556, 566 (6th Cir. 2005). We did so because (1) “the officers who sought and executed the search warrants acted in good faith” and (2) “the facts surrounding the initial warrantless search were close enough to the line of validity to make the executing officers’ belief in the validity of the search warrants objectively reasonable.” Id. We must determine whether “this is one of those unique cases in which the Leon good faith exception should apply despite an earlier
Detective Carter sought and obtained a warrant for Fletcher‘s phone that included a description of, and relied on in whole, the probation officer‘s conduct and initial search of the phone. The probation officer lacked reasonable suspicion when he first sought to search the phone and the terms of Fletcher‘s probation agreement did not clearly or unambiguously allow for the search of his phones. See Knights, 534 U.S. at 119; Tessier, 814 F.3d at 433. The Government‘s interests in ensuring
III. CONCLUSION
For the foregoing reasons, we REVERSE the district court‘s denial of Fletcher‘s motion to suppress, VACATE Fletcher‘s conviction and sentence, and REMAND this case for further proceedings.
DISSENT
ALICE M. BATCHELDER, Circuit Judge, dissenting. The majority opinion holds that Fletcher‘s probation officer did not have reasonable suspicion to believe that Fletcher‘s cell phone held evidence of a probation violation. Because I disagree, I respectfully dissent.
Fletcher was a 35-year-old sex offender with numerous prior convictions, including one for importuning oral sex from a 13-year-old girl. He was on probation when his 20-year-old niece told him that she was baby-sitting a two-year-old baby. Fletcher joined them and brought his cell phone, a handgun, and an open bottle of what he called “medicine.” Fletcher and his niece sedated the baby with the “medicine” and then the niece held the semi-conscious to unconscious baby while Fletcher molested the baby and filmed it on his cell phone.
Later, at a probation check in, Fletcher‘s probation officer saw that Fletcher had two cell phones and asked to see them. Fletcher reacted “nervously,” initially claimed that he did not have the pass codes, and then frantically tried to delete items from the phones. Eventually, he relented and consented to the request, using his fingerprint to grant the probation officer access to the contents. The probation officer immediately saw child pornography on the phone, which was a violation of Fletcher‘s probation, so she contacted a local police detective, who obtained a warrant, searched the phones, and found child pornography, some downloaded from the internet and some created on that phone and starring Fletcher molesting children. Based on the transfer of the images, the police officer referred the case to the local prosecutor for a pandering charge in state court. Fletcher entered a guilty plea, which led to a 10-year state-prison sentence.
Because of the uncertain venue of the production of the child pornography, the state referred the case to the federal prosecutor, who added conspiracy to produce child pornography, due to the niece‘s participation. Fletcher moved to suppress the evidence from his cell phone.
The district court assessed whether the probation officer had “reasonable grounds
On an appeal from a motion to suppress evidence, we review findings of fact for clear error and conclusions of law de novo. United States v. Davis, 514 F.3d 596, 607 (6th Cir. 2008). When the district court has denied the motion, we review the findings in the light most likely to support the district court‘s denial. United States v. Adams, 583 F.3d 457, 463 (6th Cir. 2009).
On appeal, Fletcher argues that the probation officer did not have reasonable suspicion to access his phones and that his suspicious actions could have been for innocuous reasons. The government says that Fletcher‘s behavior was suspicious under the totality of the circumstances and that it need not disprove every possible innocent explanation. Moreover, even accepting that two phones, without more, does not necessarily establish reasonable suspicion that he committed a crime, it would—and should—certainly trigger the probation officers’ legitimate interest.
That is, even putting aside the child pornography—and the claim that there was no basis to suspect child pornography on the phones because Fletcher had not previously been convicted of child pornography—Fletcher was expressly forbidden from contact with minors as a direct consequence of his importuning conviction. That particular criminal history and associated probation restriction should cause Fletcher‘s probation officer—if she is doing her job—to suspect that one phone could be for contacting minors and the other to hide that misbehavior. As I see it, the probation officer had cause to ask Fletcher to see the phones and, based on his suspicious reactions to that request, she had reasonable suspicion that she would find evidence of a probation violation, or worse, on one or both of those phones after Fletcher gave her access.
Because I believe that the probation officer‘s inquiry into the two phones was reasonable—in fact, to be expected of a diligent probation officer—and because I believe that Fletcher‘s responses created reasonable suspicion that the phones contained incriminating evidence, I would hold that the search was permissible and would affirm the district court.
Therefore, I respectfully dissent.