The Fact That a Person Has Two Phones, Standing Alone, Does Not Create a Reasonable Suspicion to Support a Search

United States v. Jason Fletcher

Case No. 19-3153

978 F.3d 1009 (6th Cir. 2020)

Decided: October 26, 2020

It may be safe to say in today’s world that there is a greater privacy interest in cell phones than the privacy interest found in one’s home.  The Fourth Amendment provides “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”  The ultimate touchstone of the Fourth Amendment is reasonableness. Whereby, reasonableness generally requires law enforcement to obtain a warrant.  If there is no warrant, then a search is reasonable only if it falls within a specific exception to the warrant requirement.

The Supreme Court in Riley v. California, 573 U.S. 373 (2014), 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.  Riley held that a warrant is generally required for searching a cell phone.  However, the Court left open the idea that case-specific exceptions may still justify a warrantless search of a particular phone.  One of these exceptions falls within law enforcements’ ability to prevent the imminent destruction of evidence. Yet, the Court made clear that there must be an examination into whether an emergency justified a warrantless search in each particular case.  Luckily for Mr. Fletcher, this ultimately resulted in the Sixth Circuit vacating his thirty-five year sentence.

In Fletcher, the Sixth Circuit addressed whether having two cell phones gives rise to reasonable suspicion to search the phones, even for a probationer who has lesser privacy interests.  In Mr. Fletcher’s case, he found himself on probation after being convicted for importuning a minor.  As part of his probation, Mr. Fletcher agreed to warrantless searches of his person, vehicle, and place of residence by his probation officer at any time.  However, never did the terms of his probation expressly address his phones or computers.

One day when Mr. Fletcher visited his probation officer, the officer noticed that Mr. Fletcher was carrying two cell phones and told him that he was going to search the phones.  Mr. Fletcher responded nervously, stating that he did not have the passcode for one of the phones and then proceeded to go through the other phone in what the officer believed was an attempt to delete its contents.  The officer demanded that Mr. Fletcher hand over the phone and he used Mr. Fletcher’s fingerprint to unlock it.  The officer found images on Mr. Fletcher’s phone, which were in violation of his probation, stopped his search, and called for Mr. Fletcher to be arrested for a probation violation.

At trial, the district court determined that Mr. Fletcher’s possession of two phones alone did not satisfy reasonable suspicion, “although it is a close call for a probationer convicted of a sex offense.”  However, it nevertheless agreed with the government’s argument that Mr. 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.

The Sixth Circuit found itself balancing Mr. Fletcher’s privacy interests and governmental interests in relation to the digital content found on cell phones.  While individuals subjected to state supervision may have lesser privacy interests than the general public, such a status does not deprive an individual of his constitutional rights.  Based upon the advancement and evolution of cell phones, typically a cell phone search will expose far more than the most exhaustive search of a house, because a phone not only contains in digital form many sensitive records previously found in the home but it also contains a broad array of private information never found in a home in any form before.  Thus, the Supreme Court in Riley recognized that the search of a cell phone is unique and in relation to a search of a home infringes far more on an individual’s privacy.

As a result, the Sixth Circuit held that it could not assume that provisions in Mr. Fletcher’s probation agreement authorizing the search of his person, place or residence also authorized the search of his cell phones.  In sum, balancing Mr. Fletcher’s expectation of privacy with the legitimate governmental interests, the search of Mr. Fletcher’s cell phone was deemed unreasonable.

The Sixth Circuit based its findings, in part, on the fact that there were no exigent circumstances or other reasonable grounds to support a finding that Mr. Fletcher was violating his legal obligations at the time the probation officer searched his phones,.  The probation officer’s request to search was unreasonable.  Because the probation officer threatened to engage in conduct that violates the Fourth Amendment, and essentially created the response by Mr. Fletcher that was alleged to be an exigent circumstance, the Sixth Circuit concluded that the probation officer did not have reasonable suspicion to search the phone.  Possession of two cell phones, standing alone, is not a sufficient basis to suspect criminal activity.

Ultimately, this case demonstrates the importance courts place on an individual’s privacy interests delegated by the Fourth Amendment, and puts law enforcement on notice to play cautious and obtain a search warrant when seeking to search an individual’s cell phone without their consent.