from the United States District Court for the Southern
District of Florida D.C. Docket No. 2:16-cr-14071-KAM-1
WILLIAM PRYOR and NEWSOM, Circuit Judges, and VRATIL,
NEWSOM, CIRCUIT JUDGE
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.
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.
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.
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
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.
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
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.
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.
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). 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).
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.
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).
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.
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.
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
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
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 ...