Fletcher and Ciera Richter, then 25, of Cincinnati, were indicted by a federal grand jury in December 2017. Richter pleaded guilty to conspiracy to produce child pornography. The victim was 2 years old.
In February 2019, U.S. District Judge Susan Dlott sentenced Fletcher to 35 years in prison on each charge, with sentences will running concurrently to each other and concurrently with sentences from the Warren County Common Pleas Court.
Fletcher’s federal conviction was appealed to the United States Court of the Appeals for the Sixth District, and that court issued an opinion last month reversing and vacating the conviction due to an error in the search of a cell phone.
According to evidence at Fletcher’s bench trial in federal court, on an evening when Richter was babysitting the toddler, Fletcher used his cell phone to record videos of himself molesting the victim while Richter held and moved the 2-year-old.
Evidence for the case came from the search by a probation officer of one of two cell phones Fletcher was carrying during a routine visit.
In 2013, Fletcher was convicted by the state of importuning a minor for sending a text to a 13-year-old girl asking her for oral sex. Under the terms of his five-year probation sentence, he was not to possess pornography of any kind and was a registered sex offender.
Fletcher also agreed to a search without warrant of him, his vehicle or his residence by a probation officer at any time, according to the court opinion.
During a visit, a probation officer noticed that Fletcher had two phones and said he was going to search both phones. Fletcher responded nervously and began looking through one of them. Fletcher told the officer that this personal phone operated only on a wi-fi network, and that the second phone belonged to a relative and was for work, according to the appeals court opinion.
The probation officer, believing Fletcher was deleting the phone’s contents, took the phone and requested the passcode, which Fletcher claimed he did not remember.
Fletcher later unlocked the phone by fingerprint recognition, and the officer, searching through the phone, saw an image of child pornography.
The officer turned off the phone and contacted a Warren County Sheriff’s Office detective. That detective sought, obtained and executed a warrant to search the phone. The phone contained child pornography that had been downloaded from the internet and that had been filmed by the phone itself.
The WCSO detective forwarded the videos filmed on the phone to federal agents for investigation and separately pursued state charges against Fletcher for the child pornography downloaded from the internet.
Attorneys for Fletcher filed a motion to suppress evidence from the cell phone in the federal court case, but it was denied, and he was convicted at a bench trial.
The federal appeals court’s opinion reverses that motion.
“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,” said Judge Jane Branstetter Stranch in the opinion
“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 required either a warrant or some exception. Neither was present here.”
Judge Alice M. Batchelder dissented, writing: “Because I believe that the probation officer’s inquiry into the two phones was reasonable — in fact, to be expected of a diligent probation officer — and because I believe that Fletcher’s responses created reasonable suspicion that the phones contained incriminating evidence, I would hold that the search was permissible and would affirm the district court.”
Fletcher remains in state prison serving a 10-year sentence for his Warren County state conviction.
The United States Attorney’s Office disagrees with the court of appeals' decision, which was decided by a panel of three judges, and has obtained additional time from the court to consider whether to seek further review from the full court of appeals. It has until Dec. 9 to file the request.
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