Search & seizure; U.S. Const. amend. IV; Vernonia Sch. Dist. 47J v. Acton; Motion to suppress; United States v. Davis; Warrantless cell phone search; Riley v. California; United States v. Lichtenberger; Probationers’ privacy interest; United States v. Herndon; Griffin v. Wisconsin; United States v. Knights; Whether the statute or regulation under which the probation officer conducted the search satisfied the Fourth Amendment’s reasonableness requirement; United States v. Loney; United States v. Goliday (Unpub. 6th Cir.); Whether the probation officer had “reasonable suspicion” to open & view the material on the cell phone; United States v. Payne; United States v. Cortez; United States v. Lyons; United States v. Townsend; Nykoriak v. Wileczek (Unpub. 6th Cir.); United States v. Taylor (Unpub. 6th Cir.); United States v. Touset (11th Cir.); United States v. Stepp; Kentucky v. King; Heien v. United States; United States v. Lara (9th Cir.); United States v. Collier (8th Cir.); United States v. Hathorn (5th Cir.); Applicability of the exclusionary rule; Herring v. United States; United States v. McClain

The court reversed the district court’s denial of defendant-Fletcher’s motion to suppress evidence of child pornography seized during a probation officer’s search of his cell phone where the officer did not have reasonable suspicion to search the phone and Fletcher’s probation agreement did not authorize the search. Under Riley, a warrant is generally necessary to search a cell phone, unless certain “exigent circumstances” exist. The dispute here was whether the probation officer had a “reasonable suspicion” to open and view the material on the cell phone. Fletcher was on probation after being convicted of importuning a minor. After noticing that Fletcher had two cell phones, his probation officer became suspicious and decided to search them. Fletcher’s explanations about the two phones and his nervous protestations regarding the search also raised the probation officer’s suspicions. After finding one pornographic picture, the police were called, a search warrant was issued, and evidence obtained. The court noted that reasonable suspicion “requires that the Government show ‘a particularized and objective basis for suspecting the particular person . . . of criminal activity.’ . . . It ‘requires more than a mere hunch.’” The court held that “[p]ossession of two cell phones, alone, is not a sufficient basis to suspect criminal activity." In Touset, the Eleventh Circuit considered “multiple other indicia in addition to possession of multiple phones when finding reasonable suspicion." The court concluded that there could be many legitimate reasons for having multiple cell phones, and it found it significant that Fletcher’s prior conviction had not been for child pornography and had not involved a cell phone. Also, the terms of Fletcher’s probation did not permit the search of his cell phone in the absence of reasonable suspicion. The court held that neither the framework in Griffin nor the framework in Knights supported a finding of reasonable suspicion here. It noted that seizing the cell phone was enough to preserve its contents. Finally, the court held that the exclusionary rule applied, finding that the officer’s conduct was sufficiently culpable and that applying the rule “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.” It vacated Fletcher’s conviction and sentence, and remanded.