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11th Circuit Questions Warrantless Seizure of Cell Phone

July 5, 2019

In declining to suppress evidence of child pornography discovered on the defendant's cell phone, the 11th Circuit Court of Appeals noted that there is no general authority for law enforcement to seize an individual's cell phone without a search warrant.

The Court held, however, that exigent circumstances based on the particular facts of this case allowed the police to seize the phone in anticipation of obtaining a warrant.

In United States v. Babcock, police responded to reports of a domestic disturbance at the defendant’s residence. When they arrived, the defendant answered the door and told the police that there was no one else inside. Momentarily, a teenage girl came out of the residence only partially dressed and with blood on her thigh. The defendant then showed the police a video from his phone where the girl had a knife to her throat saying that she wanted to die. In the video, the defendant could be heard in the background berating the girl and yelling expletives at her.

After interviewing the two of them separately, the police asked the defendant if they could further search his phone but he refused and asked for it back. The officer, however, held onto the phone. Later, at the hospital, the police continued to question the girl about her relationship to the defendant and she continued to say that they were just friends. However, after the police told her that they had the defendant’s phone, she reversed course and told them that they were in a relationship and that there were sexually explicit pictures of her on the phone.

Two days later, the officers obtained a search warrant for the phone and discovered nude images of the girl, who was only 16 years old, as well as videos of her and the defendant engaged in sexual conduct. As a result, the defendant was charged in federal court with two counts of production of child pornography. He filed a motion to suppress arguing that the initial seizure of the phone was unlawful as it was conducted without a warrant and without probable cause.

The government first argued that the police were authorized to seize the phone based on their reasonable suspicion that it contained evidence of a crime. The Court noted that while law enforcement does have the authority to temporarily seize personal property, such as luggage at the airport, such a seizure must be brief and minimally intrusive. For instance, in a prior case it was held that an officer’s brief seizure of a suspect’s cell phone for just a few seconds to see if it would ring when the officer dialed a known drug dealer’s number was sufficiently brief and minimally intrusive.

The last factor noted by the Court is the diligence of the officers in seeking a search warrant promptly and in communicating with the suspect regarding the status of his personal property. In weighing all of these factors, the Court held that the two-day seizure of the defendant’s cell phone prior to the obtaining of the search warrant was not brief, not minimally intrusive, and not performed with diligence.

The government next argued that the seizure was still lawful if the officers had probable cause to believe the phone contained evidence of a crime and exigent circumstances justified its immediate seizure. The Court concluded that the content of the video observed by the police, coupled with the defendant’s false statements to them, was sufficient for the officers to conclude that evidence of a crime would be found on the phone. The defense argued that the government could not point to the precise crime that the police believed was committed, however, the Court held that all that was required was probable cause to believe that a crime was committed, not a belief as to a specific offense.

Regarding the existence of exigent circumstances, the Court first made clear that a cell phone, itself, does not create exigent circumstances. The Court found though that the police here had reason to believe that the defendant would delete incriminating evidence from the phone if it was returned to him before obtaining the search warrant. The Court pointed to the fact that the defendant had been deceptive with the officers and that he had an incentive, after learning that the police were investigating his relationship with the girl, to destroy any evidence of it.

As a result, the Court affirmed the denial of the defendant’s motion to suppress so his child pornography convictions will remain intact.

Interestingly, the Court echoed the government’s contention that “the electronic files on [the defendant’s] phone could have been quickly destroyed” while the search warrant was being obtained. While this may be a genuine concern, it is worth pointing out that this is the exact opposite of what the government maintains when seeking search warrants for computers and electronic devices.

Many times, the government is obtaining a search warrant several months, or even longer, after the suspected criminal activity. Nevertheless, to justify a belief that the evidence will still be on these devices many months later, the search warrant affidavits typically contend that electronic files will often still be stored on these devices for long periods of time even after being deleted by the user. This is counterintuitive to the idea that the defendant would have been able to destroy this evidence in the rather short period of time that it takes to secure a search warrant.

This decision may be useful to criminal defendants to argue that the warrantless seizure of their cell phone was unlawful unless the officers can point to particular facts in the case that would justify exigent circumstances. What this case points out is that exigent circumstances will not exist in every case and a cell phone, by itself, will not give rise to such.

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