United States v. Jason Fletcher

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 20a0339p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA, ┐
Plaintiff-Appellee, │
│
> No. 19-3153
v. │
│
│
JASON FLETCHER, │
Defendant-Appellant. │
┘

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 ATTORNEY’S OFFICE, Cincinnati, Ohio, for Appellee. ON BRIEF: Manuel B.
Russ, Nashville, Tennessee, for Appellant. Megan Gaffney, UNITED STATES ATTORNEY’S
OFFICE, Cincinnati, Ohio, for Appellee.

STRANCH, J., delivered the opinion of the court in which COLE, C.J., joined.
BATCHELDER, J. (pp. 14–16), delivered a separate dissenting opinion.
 No. 19-3153 United States v. Fletcher Page 2

_________________

OPINION
_________________

JANE B. STRANCH, Circuit Judge. This case arises at the intersection of two branches
of Fourth Amendment law—one governing the traditional balancing of privacy and
governmental interests and the other addressing searches of the digital content of cell phones. In
short, the revolution in digital capacity of cell phones has shifted the balance between individual
privacy and governmental interests. This case involves the decision of Jason Fletcher’s
probation officer to conduct a phone search because he was carrying two cell phones. The
search revealed child pornography. Fletcher appeals the district court’s denial of his motion to
suppress evidence found on his phone, as well as the resolution of several sentencing issues.
Because the probation officer did not have reasonable suspicion to search Fletcher’s cell phone
and Fletcher’s probation agreement did not authorize the search, we REVERSE the district
court’s denial of his motion to suppress, VACATE Fletcher’s conviction and sentence, and
REMAND this case for further proceedings.

I. BACKGROUND

In 2013, Fletcher was convicted of importuning a minor in violation of Ohio Revised
Code § 2907.07(B), sentenced to five years’ probation, and required to register as a sex offender.
The terms of probation prohibited him from contacting the victim of his offense, contacting any
minors unsupervised, and possessing any kind of pornography. The terms also contained search
specifications: Fletcher “[a]greed to a search without 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 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.
 No. 19-3153 United States v. Fletcher Page 3

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 Ohio Revised Code
§ 2907.322; he pled guilty and was sentenced to ten years’ imprisonment.

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 filed a motion to
suppress the evidence recovered from his cell phone, which the district court denied. At a bench
trial, the court found Fletcher guilty of both conspiracy to produce child pornography and
production of child pornography. He was sentenced to 35 years in prison, to run concurrently
with his 10-year state sentence for pandering, followed by a lifetime of supervised release.
Fletcher now appeals the district court’s denial of his motion to suppress, as well as the court’s
resolution of various sentencing issues. We begin with the motion to suppress.

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 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.” U.S. Const. amend. IV. “[T]he ultimate touchstone of the Fourth
Amendment is ‘reasonableness.’” Riley v. California, 573 U.S. 373, 381–82 (2014) (quoting
Brigham City v. Stuart, 547 U.S. 398, 403 (2006)). And “reasonableness generally requires the
obtaining of a judicial warrant.” Id. at 382 (quoting Vernonia Sch. Dist. 47J v. Acton, 515 U.S.
 No. 19-3153 United States v. Fletcher Page 4

646, 653 (1995)). If there is no warrant, then “a search is reasonable only if it falls within a
specific exception to the warrant requirement.” Id.

In Riley v. California, the Supreme Court addressed how the data capacity of modern cell
phones intersects with individual privacy concerns recognized by the Fourth Amendment and set
out guiding principles for cell phone searches. It held that “a warrant is generally required” for
searching a cell phone, including phones seized incident to arrest. Id. at 401. But “even though
the search incident to arrest exception does not apply to cell phones, other case-specific
exceptions may still justify a warrantless search of a particular phone.” Id. at 401–02. The Court
explained that “exigencies could include the need to prevent the imminent destruction of
evidence in individual cases, to pursue a fleeing suspect, and to assist persons who are seriously
injured or are threatened with imminent injury.” Id. at 402. “The critical point is that, unlike the
search incident to arrest exception, the exigent circumstances exception requires a court to
examine whether an emergency justified a warrantless search in each particular case.” Id.

Applying these principles, we have explained that the Fourth Amendment requires us to
“determine whether to exempt a given type of search from the warrant requirement ‘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.’” United States v. Lichtenberger, 786 F.3d 478, 487 (6th Cir. 2015) (quoting Riley,
573 U.S. at 385). Noting Riley’s explanation that neither officer safety nor preservation of
evidence “has much force with respect to digital content on cell phones,” we concluded that
when the belonging being searched “is a device like a cell phone, the balance between
governmental and privacy interests shifts enormously.” Id. (quoting Riley, 573 U.S. at 386). We
relied on Riley’s instructions for balancing the interests involved in the arrest context:

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].
 No. 19-3153 United States v. Fletcher Page 5

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 Fourth Amendment doctrinal frameworks govern “the relationship
between state actors and individuals subject to state supervision in lieu of or following release
from prison.” United States v. Herndon, 501 F.3d 683, 687 (6th Cir. 2007). One arises from the
Supreme Court’s decision in Griffin v. Wisconsin, 483 U.S. 868, 873–80 (1987), and the other
from the Court’s decision in United States v. Knights, 534 U.S. 112, 118–22 (2001). The district
court employed only the Griffin framework in reaching its conclusion. We will consider both.

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 Fourth Amendment’s reasonableness
requirement. If so, courts then analyze whether the facts of the search itself satisfy the regulation
or statute at issue.” United States v. Loney, 331 F.3d 516, 520 (6th Cir. 2003) (citations omitted).

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.

Ohio Revised Code § 2951.02(A). The district court concluded that this statute satisfies the
reasonableness requirement, and on appeal the parties do not dispute that holding. We agree.
See United States v. Goliday, 145 F. App’x 502, 505 (6th Cir. 2005) (finding reasonable nearly
identical wording in a statute); see also Griffin, 483 U.S. at 872 (finding reasonable a regulation
that authorized warrantless search of a probationer’s home where “reasonable grounds” existed).
 No. 19-3153 United States v. Fletcher Page 6

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 in
violation of the law or of the conditions of his probation. Ohio Revised Code § 2951.02(A); see
Goliday, 145 F. App’x at 505 (treating reasonable grounds as synonymous with reasonable
suspicion for Fourth Amendment purposes). “Reasonable suspicion is based on the totality of
the circumstances and has been defined as requiring ‘articulable reasons’ and ‘a particularized
and objective basis for suspecting the particular person . . . of criminal activity.’” United States
v. Payne, 181 F.3d 781, 788 (6th Cir. 1999) (quoting United States v. Cortez, 449 U.S. 411, 417–
18 (1981)).

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
 No. 19-3153 United States v. Fletcher Page 7

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 cell phone is a practice common in the general public. An
individual may have a separate phone for: work use only (or may be required to carry an
employer-issued phone as a job responsibility); as a backup in case of emergencies; for
additional electronic storage; or because a phone can be less expensive than a computer as a
separate device for internet access (such as for remote classes for children). See United States v.
Stepp, 680 F.3d 651, 665–66 (6th Cir. 2012) (explicitly declining to hold that a less expensive
model of cell phone is a strong indicator of criminal activity). In this way, possessing multiple
phones is analytically similar to, for instance, possessing multiple cars: though they can
potentially be used in criminal activities, there are a myriad of legitimate, legal uses as well. So,
the fact of possession alone does not give rise to reasonable suspicion.

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
 No. 19-3153 United States v. Fletcher Page 8

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
Fourth Amendment,” a warrantless search, even “to prevent the destruction of evidence,” may be
unreasonable. Id.

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 Fourth Amendment,” id., which
created the response by Fletcher that is alleged to be an exigent circumstance, the district court
erred in concluding that the officer had reasonable suspicion to search the cell phone when he
took the phone and searched it.

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 convicted of importuning a minor and there was
nothing to suggest that he had or was creating child pornography. The Government responds
 No. 19-3153 United States v. Fletcher Page 9

that the terms of the probation agreement allow searches of Fletcher’s “person,” “motor vehicle,”
or “place of residence” without showing particularized suspicion. It argues that, even though the
terms of probation do not specify the search of a cell phone, they can be understood to authorize
such a search, and any mistake by the probation officer in interpreting the terms was a reasonable
mistake of law. See Heien v. United States, 574 U.S. 54, 60 (2014) (holding “reasonable
suspicion can rest on a mistaken understanding of the scope of a legal prohibition”). But, as the
Government acknowledges, the terms of Fletcher’s probation do not specifically authorize the
search of other tangible items on his person, including cell phones, and Riley clarified that the
search of a person is treated separately from the search of a cell phone. See 573 U.S. at 373–86.
The probation officer’s interpretation of the probation terms as authorizing the search of a cell
phone is not objectively reasonable.

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,
 No. 19-3153 United States v. Fletcher Page 10

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,
 No. 19-3153 United States v. Fletcher Page 11

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.

The Government also cites United States v. Hathorn, 920 F.3d 982 (5th Cir. 2019), where
the Fifth Circuit upheld the district court’s imposition of a special condition allowing searches of
the cell phone of an individual on supervised release. Id. at 986–87. That case exemplifies what
did not occur in Fletcher’s case. And it reveals a simple solution. Fletcher’s probation
agreement could have but did not authorize the search of his cell phones or digital devices.

Under both the Griffin and Knight frameworks, the Government fails to demonstrate that
its original search of Fletcher’s cell phone was reasonable.
 No. 19-3153 United States v. Fletcher Page 12

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 Fourth Amendment
violation.” Id. at 565.
 No. 19-3153 United States v. Fletcher Page 13

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 that Fletcher did not destroy incriminating evidence or
engage in unlawful activity were effectively satisfied when the phone was seized. A subsequent
search of the phone, as demonstrated by Riley, required either a warrant or some exception to it.
573 U.S. at 401–02. Neither was present here. The facts surrounding the initial warrantless
search were not close enough to the line of validity to fit within the confines of McClain.
Having two phones does not give rise to reasonable suspicion, even for a probationer who has
lesser privacy interests. Fletcher’s probation terms did not allow for such a search, and, unlike
McClain, the entirety of the warrant was based on the unlawful activity that gave rise to the
Fourth Amendment violation. Detective Carter’s reliance on the probation officer’s conduct and
initial search was not objectively reasonable. The exclusionary rule applies.

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.
 No. 19-3153 United States v. Fletcher Page 14

_________________

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 to
believe” that Fletcher was violating his probation conditions, so as to justify the inquiry. The
court found five pertinent facts: (1) Fletcher was on probation for a sex offense against a minor
 No. 19-3153 United States v. Fletcher Page 15

that forbade him from contacting minors and from possessing child pornography; (2) Fletcher
inexplicably had two phones; (3) Fletcher reacted nervously when asked about the phones;
(4) Fletcher denied knowing the pass codes; and (5) Fletcher began to furtively access one of the
phones in an apparent attempt to delete its contents. United States v. Fletcher, 2018 WL
1863825, at *4 (S.D. Ohio, Apr. 18, 2018). The court agreed with Fletcher that the possession of
two phones, without more, “may not induce reasonable suspicion for an average citizen
(although it is a close call for a probationer convicted of a sex offense) . . . [but that] Fletcher’s
behavior upon learning of the pending phone search certainly does induce reasonable suspicion.”
Id. Consequently, based on the totality of Fletcher’s actions, the court denied his motion. Id.

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.
 No. 19-3153 United States v. Fletcher Page 16

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.