The Court evaluates a probationer’s warrantless search pursuant to a state law under the
two-step analysis announced in Griffin v. Wisconsin, 483 U.S. 868, 107 S.Ct. 3164 (1987) and
applied in United States v. Henry, 429 F.3d 603 (6th Cir. 2005).? United States v. Te essier, 814
F.3d 432, 433, n.1 (6th Cir. 2016). Specifically, the Court must determine: “first, whether the
state policy is reasonable under the Fourth Amendment, and, second, whether the search satisfied
the requirements of the policy.” Tessier, 814 F.3d at 433 (citing Henry, 429 F.3d at 608). The
state law in question—Ohio Revised Code § 2951.02(A)—provides in relevant part:

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, the place of
residence of the offender, and a motor vehicle, 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.

There is little question that Ohio’s statute is reasonable. See Griffin, 483 U.S. at 880;
United States v. Goliday, 145 Fed. Appx. 502, 505 (6th Cir. 2005) (reasonableness finding for
statute with nearly identical wording). Indeed, courts have specifically found that “a state policy
that requires an officer to have reasonable suspicion in order to search a probationer for

violations of probation is reasonable under the Fourth Amendment.” Tessier 814 F.3d at 434

(explaining the Court’s finding in United States v. Henry, 429 F.3d 603 (6th Cir. 2005)). As the

? The Court concludes that there is insufficient evidence that Fletcher agreed to the phone search as a condition of
probation. While many sex offenders are forbidden from using or possessing computers or other devices with
cameras and internet capabilities, Fletcher was not subject to that condition. See Doc. 22-1 at PageID 56. Fletcher
contends that he did not agree to a warrantless search of his phone, and the record lacks sufficient evidence to the

contrary.


However, the Court specifically clarified, “Our holding, of course is not that the information on a
cell phone is immune from search.” Jd. at 2493. “Moreover, 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 2494.

The issue, then, is whether to extend the Supreme Court’s holding for searches incident to
arrest to the search of probationer Fletcher here. That is, does the probation officer’s right to
conduct a warrantless search of a probationer’s person include the right to a warrantless search of
the phone found on that person? Like most other courts that have examined this issue, we
decline to apply the Supreme Court’s holding in Riley to the probation context.

The Court was unable to find a controlling case from this Circuit, and neither party
identified one. However, most courts have declined to extend the Riley holding to probation or
parole related phone searches. See, e.g., United States v. Pacheco, 884 F.3d 1031 (10th Cir.
2018); United States v. Johnson, 875 F.3d 1265 (9th Cir. 2017); Pennsylvania v. Murray, 2017
Pa. Super. 363, 174 A.2d 1147 (2017); United States v. Dahl, 64 F.Supp. 659 (E.D. Pa. 2014);
and United States v. Martinez, 2014 WL 3956677 (N.D. Cal. 2014); but see United States v.
Lara, 815 F.3d 605 (9th Cir. 2016) (invalidating suspicionless search of probationer’s cell phone
as unreasonable where the suspected probation violation was missing a probation appointment).
These cases rely on fact-specific applications of Fourth Amendment jurisprudence which the
Court concludes is necessary in this case, as well.

The Fourth Amendment prohibits “unreasonable searches and seizures” so “the ultimate
touchstone of the Fourth Amendment is ‘reasonableness.”” Riley, 134 S.Ct. at 2482.
“Reasonableness” is evaluated by examining “the totality of the circumstances.” Ohio v.

Robinette, 519 U.S. 33, 39, 117 S.Ct. 417 (1996).


Ohio statute at issue here requires the officer to have “reasonable grounds to believe” that the
probationer is violating his probation, it is reasonable under the Fourth Amendment. ?

Having satisfied the first prong of the test, the Court turns its attention to the second
prong, i.e., whether the search here satisfied the policy requirements. Pursuant to Ohio Revised
Code § 2951.02(A), the probation officer is authorized to search “the person of the offender. . .
[and] another item of tangible or intangible personal property.” The statute permits a probation
officer to search an item of tangible or intangible personal property which, by its plain meaning,
would include the Samsung Galaxy Note 5. Thus, the question becomes whether the probation
officer had “reasonable grounds to believe” Fletcher was violating his probation conditions or
the law.

At the time of the search, Fletcher was on probation for a sexually-based offense
involving a minor. His probation conditions forbade him from—among other things—
possessing pornography and having contact with minor children other than his own. His
probation officer found it noteworthy that he possessed two phones. Once the probation officer
indicated an interest in the searching the phones, Fletcher became nervous, denied knowing the
passcode for one of the phones, and—most significantly—began going through the phone in
what the probation officer believed to be an attempt to delete contents from the phone. At that
point, the probation officer instructed Fletcher to hand over the phone and use his fingerprint to
unlock it. Once Fletcher had done so, the probation officer saw a pornographic image, stopped
the search, and called for Fletcher’s arrest.

Fletcher contends that possessing two phones does not support a finding of reasonable

grounds to believe he violated his legal obligations. The Court agrees that possession alone may

3 “Reasonable suspicion” and “reasonable grounds to believe” are synonymous for Fourth Amendment analysis
purposes. See Goliday, 145 Fed. Appx. at *3.


IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

UNITED STATES OF AMERICA, : Case No. 1:17-cr-139(2)
Plaintiff, : Judge Susan J. Dlott
v. : ORDER DENYING
: DEFENDANT’S MOTION TO
JASON FLETCHER, : SUPPRESS PHONE SEARCH
: EVIDENCE
Defendant.

This criminal proceeding is before the Court on Defendant Jason Fletcher’s Motion to
Suppress Phone Search Evidence (Doc. 22). The United States has opposed the Motion (Doc.
25), and Fletcher replied (Doc. 27). The Court did not conduct an evidentiary hearing on this
matter as the material facts are not in dispute. For the reasons that follow, Defendant’s Motion is
hereby DENIED.

I. | BACKGROUND’

Warren County Court of Common Pleas placed Fletcher on probation following a
conviction for importuning a minor in violation of Ohio Revised Code § 2907.07(B). As part of
his probation, Fletcher signed Community Control Supervision Rules and Conditions in which
he agreed—among other things—to the following provisions:

I will comply with all orders given to me by my Probation Officer
or other authorized representative of the Court, including any

written instructions issued at any time during the period of

supervision.
eK

" As no hearing was conducted, the facts in this order are taken from the Community Control Supervision Rules and
Conditions submitted by Defendant Fletcher (Doc. 22-1) and the Affidavit for Search Warrant and Search Warrant
submitted by Plaintiff United States (Doc. 25-2).


not induce reasonable suspicion for an average citizen (although it is a close call for a
probationer convicted of a sex offense). However, Fletcher’s behavior upon learning of the
pending phone search certainly does induce reasonable suspicion. He explained that the
Samsung Galaxy Note 5 only operated while connected to a wireless network, began “going
through the Samsung Galaxy Note 5 phone nervously” in what the probation officer believed to
be an attempt to delete illegal contents, and then denied knowing the passcode for the Galaxy
Note 5 device. (Doc. 25-2 at PageID 75.) All of these actions occurred prior to the search and—
taken together—support a finding of reasonable grounds to believe Fletcher was violating his
legal obligations. These actions satisfy the Ohio statutory requirement, and, therefore, the Fourth
Amendment protections afforded to a probationer also are satisfied.

I. CONCLUSION

For the reasons set forth above, Defendant’s Motion to Suppress Phone Search (Doc. 22)

is hereby DENIED.

IT IS SO ORDERED.

Dated: ¥/ 18) 1S

United States District Court


I agree to a search without warrant of my person, my motor vehicle
or my place of residence by a Probation Officer at any time.

(Doc, 22-1, PageID 52-53.) In addition, he also agreed to “Sex Offender Special Conditions” in
which he promised to have no contact with the victim from his prior offense, no contact with
minor children other than his own, and not to possess any sexually explicit material. (Id. at
PageID 56.) Although the “Sex Offender Special Conditions” form contains options to preclude
probationers from using or possessing cameras, video cameras, computers, and other devices
which access the intemet, Fletcher was not asked to agree to those conditions. (See Id.)

On May 18, 2017, Fletcher met with his probation officer. (Doc. 25-2, PageID 75.)
During the meeting, the probation officer noticed Fletcher had two phones with him. (/d.) When
the probation officer informed Fletcher he was going to do a “random check” of the phones,
Fletcher acted nervously and began going through one of the phones, a Samsung Galaxy Note 5.
(id.) Concerned that Fletcher was deleting files, the probation officer demanded Fletcher hand
him the phone, and Fletcher did so. (Jd.) When the probation officer asked for the password,
Fletcher claimed not to remember it. (Jd.) The probation officer then instructed Fletcher to place
his finger on the phone to unlock it via fingerprint recognition, and Fletcher complied. (Id.)
Fletcher did not agree that the phone could be searched. (Doc. 22, PageID 49.)

When the probation officer began looking through the phone, he saw an image of a
female child under the age of 12 near the exposed genitalia of an adult male. (Doc. 25-2, PageID
75-76.) The probation officer turned off the phone and arranged for Fletcher to be arrested for a
probation violation. (Jd. at PageID 76.)

Warren County officials seized the phone, and Detective Brandi Carter obtained a search
warrant for the phone. In the Affidavit for Search Warrant, Detective Carter referenced the facts

above, including the pornographic image the probation officer saw on the Galaxy Note 5. (Id.)


A Warren County Common Pleas Judge issued a search warrant for all information and
data in the phone. (Jd. at PageID 74.) Upon executing the search warrant, Detective Carter
found pornographic videos that appeared to have been downloaded from the internet as well as
pornographic videos that appeared to have been made using the phone. The videos featured,
among other things, Co-Defendant Ciera Richter holding a female toddler while Fletcher
molested her. (Doc. 25, PageID 61.)

Fletcher contends that the probation officer’s warrantless search of his phone violated his
Fourth Amendment right to be free from unreasonable searches and seizures. He further
contends that—because the Affidavit for Warrant referenced the pornographic image discovered
in the warrantless search—the videos and images Detective Carter found in executing the search
warrant must be suppressed as “fruit” of the warrantless search.

I. ANALYSIS

Fletcher concedes that the probation officer had the right to search his person without a
warrant pursuant to his probation conditions. (Doc. 22 at PageID 49.) However, he contends—
citing Riley v. California, __ U.S. ___, 134 S.Ct. 2473 (2014)that the right to search did not
extend to the contents of the phones found on his person. (Id.)

In Riley, the Supreme Court examined whether a warrantless search of a person incident
to arrest included the right to conduct a warrantless search of the information on the arrestee’s
cell phone. The Court concluded that police officers must obtain a warrant before searching the
contents of a phone seized incident to an arrest. In applying the traditional “balancing of
interests” reasonableness approach, the Court decided that “the interest in protecting officer
safety does not justify dispensing with the warrant requirement across the board” because a

modern cell phone contains vast quantities of personal information. Riley, 134 S.Ct. at 2486.