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United States v. Babcock

United States Court of Appeals, Eleventh Circuit

May 24, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee,
DARRELL MARK BABCOCK, Defendant-Appellant.

          Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 2:16-cr-14071-KAM-1

          Before WILLIAM PRYOR and NEWSOM, Circuit Judges, and VRATIL, [*] District Judge.


         In this case, police officers investigating a domestic disturbance confiscated a suspect's cell phone and held it for two days before eventually obtaining a warrant to search it. The appeal before us presents two Fourth Amendment questions. First, was the seizure justified on the ground that the officers had reasonable suspicion to believe that the phone's owner was engaged in criminal wrongdoing-was it, in effect, a permissible "Terry stop" of the phone? We hold that it was not. Second, in the particular circumstances of this case, did the officers have probable cause to believe not only that the phone's owner had committed a crime and that the phone contained evidence of that crime, but also that the suspect would likely destroy that evidence before they could procure a warrant? We hold that they did. Accordingly, and on that ground, we affirm the district court's order denying the motion to suppress. We separately affirm the district court's sentence.



         Early one Friday morning, Deputy Andrea Olson of the Stuart, Florida Police Department responded to a domestic-disturbance call reporting a ruckus coming from a camper parked at Darrell Babcock's residence-specifically, a female had been heard yelling, "Stop, stop, stop!" When Deputy Olson knocked on the door of Babcock's camper, Babcock exited, closed the door behind him, and volunteered that no one else was inside. Almost immediately, though, Deputy Olson heard a female announce that she was coming out. A teenage girl emerged from the trailer; she was wearing only yoga shorts and a camo jacket, and she had blood on her left thigh. Seemingly by way of explanation, Babcock handed Deputy Olson his cell phone to show her a video of the girl-we'll call her C.A.- sitting on a bed, holding a knife to her own throat and saying that she wanted to die. In the video Babcock could be heard berating the girl, telling her, "you're dumb as f***" and complaining, "this is what I deal with right here . . . you gotta do drama and fighting me all over the place." After viewing the clip, Deputy Olson returned Babcock's phone. When backup arrived on the scene, Deputy Olson asked for the phone again so that she could show the video to her colleague, Officer Michael McMahan.

         The officers then interviewed Babcock and C.A. separately. Babcock denied knowing C.A.'s age and also disputed that the two were in a relationship, although he admitted that he had known C.A. for three years and that she used to be his neighbor. He also said that C.A. had shown up at his camper unannounced, sometime during the middle of the night. C.A., by contrast-whose license showed that she was only 16 years old-stated that she and Babcock had gone together the night before to a Halloween party, where she had consumed alcohol, cocaine, and other substances. After answering a few questions, C.A. began either panicking or experiencing the effects of an overdose, so the officers called an ambulance. Deputy Olson rode with C.A. to the hospital.

         Meanwhile, another officer, Detective Brian Broughton, remained behind to continue questioning Babcock. Detective Broughton sought and received permission to search Babcock's camper, where he discovered blood on the bedsheets and prescription pills scattered about. When Detective Broughton asked to further inspect Babcock's phone, Babcock refused and asked to have it back. Babcock offered to e-mail the video clip of C.A. with the knife, but Detective Broughton decided to keep the phone instead. He told Officer McMahan to enter it into evidence and then took it with him to the hospital to talk to C.A.

         At the hospital, C.A. again insisted that she and Babcock were just friends, that they had gone to a Halloween party, and that the two had then argued. She firmly denied any further relationship. But when Detective Broughton informed C.A. that he had Babcock's phone, she abruptly reversed course and admitted that the two had been in a relationship and, further, that the officers would find sexually explicit images of her on the phone. Two days later, Detective Broughton applied for and obtained a warrant to search the phone, where he found nude images of C.A. and explicit video recordings of Babcock and C.A. together.


         Babcock was charged with two counts of producing a visual depiction of sexually explicit conduct with a minor in violation of 18 U.S.C. § 2251(a), (e). He filed a motion to suppress, arguing that officers had seized his phone without a warrant or probable cause. The government filed a response, arguing primarily that the cell-phone seizure was reasonable because "under the totality of the circumstances" the officers had "reasonable suspicion to investigate further," and adding that, at any rate, the officers had probable cause to believe that the phone contained evidence of a crime. The government further contended that "detention of the cell phone was necessary to preserve the evidence observed by the deputies." Finally, the government asserted that, even in the absence of a warrant, either Babcock's consent or the inevitability that the images would have been discovered rendered the seizure constitutional.

         A magistrate judge recommended that Babcock's motion be denied. He concluded-referencing two distinct Fourth Amendment standards-that "the collective knowledge and information received by the officers at the scene constituted sufficient probable cause and reasonable suspicion that there may have been a crime committed which may have been preserved on the cell phone." The district court agreed, noting-also somewhat vaguely-that the surrounding circumstances were "sufficient for law enforcement to suspect inappropriate conduct between [Babcock] and C.A." Later, at sentencing, the district judge further remarked that although he "didn't say [it] in the order," he was "putting [it] on the record for appellate purposes" that in the video C.A. "appear[ed] to be either with no pants on or underwear" and that, based on "what she says and how she says it about what she wants to do to herself," it was "obvious . . . that there was an inappropriate relationship going on which would have given [the officers] reasonable probable cause to believe that there was inappropriate sexual activity between" Babcock and C.A. Babcock took a plea, reserving his right to appeal the denial of his motion to suppress.

         At sentencing, Babcock asked for the mandatory minimum of 180 months, arguing that his conduct, while inappropriate, was outside the core child-pornography-distribution behavior that Congress sought to deter under § 2251(a) and (e). The government in turn asked for a sentence within the 360-to-720-month recommended Guidelines range, stressing the harm to C.A. and her family. The court imposed a below-Guidelines sentence of 324 months. Babcock appealed both the denial of his motion to suppress and his sentence.


         We'll tackle the Fourth Amendment issues first. A person suffers a "seizure" of his property within the meaning of the Fourth Amendment when there is a "meaningful interference" with his possessory interest in it. United States v. Virden, 488 F.3d 1317, 1321 (11th Cir. 2007).[1] While the seizure of private property generally requires a warrant, the Supreme Court has interpreted the Fourth Amendment to allow a warrantless seizure when police can show both (1) probable cause to believe that property contains contraband or evidence of a crime and (2) an applicable warrant exception, such as exigent circumstances. See, e.g., Kentucky v. King, 563 U.S. 452, 459-60 (2011) (citations omitted). Accordingly, absent either a warrant or probable cause plus an exception, police may not seize private property. There is, however, an asterisk. Under a line of luggage-related cases from the 1980s, police may "briefly detain" property-Terry-stop style-on the strength of reasonable suspicion alone. See United States v. Place, 462 U.S. 696, 697-98 (1983); United States v. Puglisi, 723 F.2d 779, 788-89 (11th Cir. 1984).

         Here, the government principally argues that these cases permitted the officers to detain Babcock's phone based on their reasonable suspicion that he had committed a crime. Alternatively, the government contends that the officers had probable cause to believe that the phone contained evidence of a crime and that exigent circumstances-namely, the need to prevent the destruction of that evidence-allowed them to seize the phone. We consider each argument in turn.



         Reasonable suspicion is "a particularized and objective basis" for suspecting a person of criminal activity. Ornelas v. United States, 517 U.S. 690, 696 (1996) (quotation marks omitted). It requires "specific, articulable, and objective facts reasonably to suspect" that a crime is being or will soon be committed, Puglisi, 723 F.2d at 789, but "is a less demanding standard than probable cause," Illinois v. Wardlow, 528 U.S. 119, 123 (2000). In Terry v. Ohio, the Supreme Court famously held that, even absent probable cause, police officers may briefly detain an individual based on reasonable suspicion that he is (or is about to be) engaged in criminal activity. See 392 U.S. 1, 30-31 (1968).

         The Supreme Court first extended Terry's rationale from people to property in United States v. Place, 462 U.S. 696 (1983). There, the Court held that while a brief investigatory detention of property could be justified on the basis of reasonable suspicion alone, an officer's 90-minute seizure of an airline traveler's suitcase exceeded constitutional boundaries. Id. at 702. In so holding, the Court recognized that "[t]he intrusion on possessory interests occasioned by a seizure of one's personal effects can vary both in its nature and extent." Id. at 705. While some "brief detentions of personal effects"-such as, the Court hypothesized, "on-the-spot" dog sniffs-may be "so minimally intrusive" as to "justify a seizure based only on specific articulable facts that the property contains contraband," the luggage seizure didn't fit the bill. Id. at 705-06. By way of explanation, the Court emphasized several factors: the duration of the detention, the degree of the intrusion on the owner's possessory interests in his property, and the officer's lack of diligence in timely pursuing their investigation. Id. at 709-10. The Court also highlighted that a confiscation of luggage, in particular, interferes not only with possessory interests but also with liberty interests because, while a suspect whose luggage is stopped is "technically still free to continue" on his way, the detention might "effectively restrain" him by disrupting his travel plans. Id. at 708-09.

         Shortly after the Supreme Court decided Place, this Court had occasion to apply it on similar facts. In United States v. Puglisi, an officer made what began as a brief stop by ordering a suspicious traveler's bags removed from a luggage cart; he then stowed the luggage in his office until a drug-sniffing dog became available. 723 F.2d 779, 790 (11th Cir. 1984). Meanwhile, the traveler boarded his flight without his bags. Although we deemed the initial seizure permissible under Terry, we found that the length and intrusiveness-140 minutes-caused the "brief stop" to "ripen" into a full-blown seizure that could be justified only by probable cause. Id. at 784. We explained that "Place requires the same test as Terry: a court must weigh the intrusiveness of a limited seizure of the individual against society's interest in detection and prevention of crime." Id. at 785. We cautioned, however, that because the Fourth Amendment "protects people, not things," the focus was the effective "seizure of persons, through their luggage." Id. at 787-88.

         Although Place and Puglisi concerned luggage, both this Court and others have since indicated that any detention of property based on reasonable suspicion must be fairly analogous to a Terry stop, regardless of the item at issue. Accordingly, we have said, "the factors used to determine whether a Terry stop has matured into an arrest are also useful in evaluating whether a seizure of property required probable cause" rather than mere reasonable suspicion. Virden, 488 F.3d at 1321. Echoing Place, we have said that these factors include, but are not limited to, (1) the detention's duration, (2) its intrusiveness, (3) the diligence with which officers pursued their investigation, and (4) the law-enforcement purposes served by the detention. See id.; accord United States v. Gonzalez, 781 F.3d 422, 428-29 (8th Cir. 2015); Farm Labor Org. Comm. v. Ohio State Highway Patrol, 308 F.3d 523, 544-45 (6th Cir. 2002); United States v. $557, 933.89, More or Less, in U.S. Funds, 287 F.3d 66, 86 (2d Cir. 2002). We'll explain each in a bit more detail here before applying them to the facts of this case

         First, duration. Although the Supreme Court has "decline[d] to adopt any outside time limit for a permissible Terry stop," the Court in Place observed that it had "never approved a seizure of the person for the prolonged 90-minute period involved" in that case and that, on the facts presented there, it wouldn't approve a 90-minute detention of property, either. 462 U.S. at 709-10. In Virden, this Court similarly determined that an officer's transfer of a defendant and his car to another location for a dog sniff, "[w]hile not unduly lengthy" at about 30 minutes, was nonetheless "unreasonable absent probable cause." 488 F.3d at 1321.[2]

         At the other end of the spectrum, the Fourth Circuit has approved a seconds-long cell-phone stop on the basis of reasonable suspicion alone. In United States v. Lawing, that court held that an officer's brief detention of a suspect's phone during a traffic stop-for just long enough to see if it would ring when the officer dialed a known drug-distributor's number-was sufficiently minimal to qualify for Terry/Place treatment. 703 F.3d 229, 238 (4th Cir. 2012). Similarly, the Second Circuit held that reasonable suspicion justified a brief investigatory detention that occurred when a detective took between two and 20 minutes to respond to a ...

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