CA6: PO’s seizure of cell phone for search lacked RS and is suppressed

The probation seizure and then warranted search of defendant’s cell phone was unreasonable and conducted without reasonable suspicion. Probation seized the phone and then got a search warrant for it, but it all lacked justification. There wasn’t reasonable suspicion because his prior sex offense had nothing to do with child pornography which was the focus of the search. The good faith exception does not apply. United States v. Fletcher, 2020 U.S. App. LEXIS 33688 (6th Cir. Oct. 26, 2020) (2-1):

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.

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.