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When courts decide whether a
warrantless search is “reasonable,” and therefore constitutional, they essentially
ask if the ends justify the means. By this I don’t mean whether the search
uncovered evidence of a crime, which is nearly always true when there is a
motion to suppress evidence. Instead, the search must advance a government interest
other than pure investigation, which must be balanced by the person’s privacy
interest in the thing searched.
In Riley
v. California, the Supreme Court issued a robust opinion that
acknowledged the unique privacy interests we have in our phones. When law enforcement
officers search a phone, there must be a significant government need to conduct
the search to with the warrant requirement.
In United
States v. Fletcher, the Sixth Circuit addressed whether the search of a
probationer’s cell phone was sufficiently justified. Fletcher was convicted of “importuning
a minor” under Ohio law. He was sentenced to five years’ probation. A condition
of probation was that Fletcher agreed to warrantless searches of his person,
car, and home. Note that phones and computers are not expressly enumerated.
When the probation conducted a
routine check of Fletcher’s home, she saw that Fletcher had two phones. When
the officer stated that she was going to search the phones, Fletcher “responded
nervously” and began looking through one of the phones. The officer thought
Fletcher might be deleting something, so she grabbed the phone, demanded the
passcodes, and then required Fletcher to unlock the phones with his fingerprint.
During the warrantless search of the phone, the probation officer saw a
pornographic image of a child. She contacted a detective, who obtained a
warrant. Federal charges were filed, and Fletcher pled guilty and was sentenced
to 35 years in prison.
The Ohio statute governing
warrantless searches of probationers’ person and property requires that, before
a search, the probation officer “must have reasonable grounds to believe” the
person is committing a crime or not abiding by the terms of probation. The Sixth
Circuit held this statute is reasonable before turning to answer the question
about whether Fletcher’s conduct provided reasonable cause to search the phone.
The court then turned to the question of whether the officer had reasonable
cause to conduct the warrantless search.
Does the possession of two phones
create reasonable cause to believe there is something nefarious on the phone?
Not really. As the majority explained, “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.” So, that fact alone is not enough.
Does the fact that Fletcher was
convicted of a sex offense (not involving child pornography) change the
equation? Also no. Important to the majority’s analysis was the fact that
Fletcher’s conviction was not for a pornography offense, and therefore the
terms of his probation did not include restrictions on or monitoring of his
digital devices.
How about Fletcher’s nervous
behavior when the probation officer asked to see the phone? This also wasn’t
enough because officers cannot create an exigency to justify a warrantless
search. Even though the officer thought Fletcher was deleting something, she
created this risk by threatening to search. The important moment was when the
officer said she would search and whether there were reasonable grounds to
search at that moment. The majority held that the probation officer did not
have reasonable suspicion at the moment she asked to search the phone.
Although the government tried to
claim that the condition requiring consent to warrantless searches of the probationer’s
person, car, and home extended to cell phones, the majority was unpersuaded. The
plain terms of the condition did not authorize warrantless searches of cell
phones, so the probation officer could not reasonably rely on that condition.
The majority acknowledged that
probationers have a diminished expectation of privacy. But a probationer has a
greater expectation of privacy than parolee (who is free as an act of grace) or
someone on supervised release. The terms of probation can also create or
diminish a probationer’s expectation of privacy. And the fact that the search
condition did not expressly cover cell phones was critical here—particularly because
the privacy interests in cell phones may actually be greater than the privacy interest
in a house.
In the majority’s view, the
government’s interests in ensuring successful completion of probation, crime
prevention, and evidence preservation do not outweigh Fletcher’s interest in
the privacy of his phone. This was true particularly when the officer could have
prevented the destruction of evidence by merely seizing the phone.
Even if a violates the Fourth
Amendment, the Supreme Court has said suppression of evidence is not always warranted.
But here, the majority concluded that the probation officer’s disregard for the
warrant requirement was deliberate. The officer could not rely in good faith on
the warrant issued after the fact based, in part, on the photo the officer saw
during the warrantless search.
Judge Batchelder dissented. She
believed the possession of two cell phones provided enough reason to conclude
Fletcher was violating probation. And she thought that his reaction to the
request to see the phone elevated her cause for concern.
