United States v. Darrell Mark Babcock , 924 F.3d 1180 ( 2019 )


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  •                Case: 17-13678       Date Filed: 05/24/2019       Page: 1 of 32
    [PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 17-13678
    ________________________
    D.C. Docket No. 2:16-cr-14071-KAM-1
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    versus
    DARRELL MARK BABCOCK,
    Defendant - Appellant.
    ________________________
    Appeal from the United States District Court
    for the Southern District of Florida
    ________________________
    (May 23, 2019)
    Before WILLIAM PRYOR and NEWSOM, Circuit Judges, and VRATIL, * District
    Judge.
    *
    The Honorable Kathryn H. Vratil, United States District Court Judge for the District of Kansas,
    sitting by designation.
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    NEWSOM, Circuit 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.
    I
    A
    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
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    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
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    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.
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    B
    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
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    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.
    II
    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.
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    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.
    1
    When reviewing the denial of a motion to suppress, we review factual findings for clear error
    and legal determinations de novo. United States v. Gibson, 
    708 F.3d 1256
    , 1274 (11th Cir.
    2013). We also review the evidence in the light most favorable to the government, as the
    prevailing party. See United States v. Capers, 
    708 F.3d 1286
    , 1295–96 (11th Cir. 2013).
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    A
    1
    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
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    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,
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    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
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    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
    request for a luggage investigation while a traveler waited at an airport security
    checkpoint with his luggage. See $557,933.89, More or 
    Less, 287 F.3d at 71
    , 86–
    87 & n.16.
    Second, intrusiveness. The “intrusiveness” factor concerns the degree to
    which a property detention interferes with a person’s possessory interest in his
    belongings. In Place, for instance, the Court emphasized that although “the
    2
    Even though the detention there more directly implicated the owner’s liberty interests than in
    Place because the owner remained in his car while it was transported to another location, we
    analyzed the stop primarily as one of property rather than of an individual. See 
    Virden, 488 F.3d at 1321
    .
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    particular course of investigation that the agents intended to pursue”—just a brief
    “exposure of respondent’s luggage, which was located in a public place, to a
    trained canine”—would have been permissible based on mere reasonable
    suspicion, the 90-minute seizure that they actually effected was 
    not. 462 U.S. at 707
    , 709–10 (emphasis added). The Court explained that the planned sniff would
    have revealed “only the presence or absence of narcotics, a contraband item,” and
    wouldn’t have exposed the traveler’s personal “noncontraband items that otherwise
    would remain hidden from public view, as [would], for example, an officer’s
    rummaging through the contents of the luggage.” 
    Id. at 707.
    This Court has likewise recognized that individuals have strong interests in
    containers that hold personal effects or private information, such as luggage and
    computers. In Puglisi, we emphasized that “privacy and possessory interests in
    luggage are often high” because a traveler may have “his most important and
    private possessions in his suitcase” and likely wants “to shield them from the
    prying eyes of strangers, especially the 
    government.” 723 F.2d at 786
    . And in
    United States v. Laist, we acknowledged that “computers are a unique possession,
    one in which individuals may have a particularly powerful possessory interest,”
    because they store “personal letters, e-mails, financial information, passwords,
    family photos, and countless other items of a personal nature.” 
    702 F.3d 608
    , 614
    (11th Cir. 2012); see also United States v. Mitchell, 
    565 F.3d 1347
    , 1352 (11th Cir.
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    2009) (calling a computer hard drive “the digital equivalent of its owner’s home,
    capable of holding a universe of private information”) (internal quotation marks
    omitted).
    Third, diligence. When police diligently pursue their investigation, a
    reviewing court can have greater confidence that the governmental interest is
    legitimate and that the intrusion occasioned by the challenged detention was no
    greater than reasonably necessary. See United States v. Burgard, 
    675 F.3d 1029
    ,
    1033 (7th Cir. 2012). “Diligence” in this context includes not only seeking a
    warrant application promptly, but also communicating with the suspect concerning
    the specifics of the detention. In Place, for instance, the Court faulted officers for
    failing to inform the suspect where and for how long they were taking his bags,
    and when and how he could get them back. 
    See 462 U.S. at 710
    . So too, in Farm
    Labor, the Sixth Circuit observed—in the course of holding that the seizure of two
    suspects’ green cards couldn’t be justified based on reasonable suspicion alone—
    that an officer had failed to act diligently when he “wait[ed] for four days to return
    [their] green cards” and that “[t]he unreasonable nature of the seizure was
    exacerbated by the undisputed fact that [the officer] did not make clear . . . how
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    long the documents would be held or when or how he would return 
    them.” 308 F.3d at 546
    –47 (internal quotation marks omitted).3
    Finally, governmental interest. The final factor looks at the other side of the
    ledger. As the Court explained in Place, “[t]he exception to the probable-cause
    requirement for limited seizures of the person recognized in Terry and its progeny
    rests on a balancing of the competing interests to determine the reasonableness of
    the type of 
    seizure.” 462 U.S. at 703
    . Thus, “[w]e must balance the nature and
    quality of the intrusion on the individual’s Fourth Amendment interests against the
    importance of the governmental interests alleged to justify the intrusion.” 
    Id. In Place,
    that meant taking account of the public’s compelling interest in
    “detecting those who would traffic in deadly drugs for personal profit.” 
    Id. (internal quotation
    marks omitted).
    2
    How, then, do these considerations stack up in this case? In short, not well
    for the government. To begin at the end, we don’t doubt for a moment the
    government’s “compelling” interest in preventing the creation and distribution of
    child pornography. E.g., New York v. Ferber, 
    458 U.S. 747
    , 761 (1982). Standing
    alone, though, that interest can’t counterbalance the duration, intrusion, and
    3
    The diligence component of the analysis necessarily intersects with the duration component
    because, “[i]n the ordinary case, the sooner the warrant issues, the sooner the property
    owner’s possessory rights can be restored if the search reveals nothing incriminating”—and, of
    course, the sooner an officer seeks a warrant, the sooner a warrant can issue. See 
    Mitchell, 565 F.3d at 1352
    (citation omitted).
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    diligence factors, all of which—for reasons we will explain—weigh heavily here in
    favor of a determination that the officers’ two-day seizure of Babcock’s phone was
    not just a brief “investigatory stop” but rather a full-blown seizure that required a
    showing of full-blown probable cause. See 
    Place, 462 U.S. at 699
    –700.
    Looking first to duration, the government cites United States v. Brignoni-
    Ponce, 
    422 U.S. 873
    , 881 (1975), for the proposition that law enforcement may
    “conduct a limited warrantless seizure of a person or item ‘on facts that do not
    constitute probable cause.’” Br. of Appellee at 15. Brignoni-Ponce, however,
    considered only whether a momentary stop for “a brief question or two” was
    permissible on less than probable 
    cause. 422 U.S. at 880
    ; see also 
    Place, 462 U.S. at 709
    (describing Terry and Brignoni Ponce as involving “momentary” stops).
    But that’s a far cry from the two-day pre-warrant seizure at issue here. The
    government also points to what it calls the “similar” case of Laist, in which we
    held that a 25-day delay between a seizure and a warrant was 
    permissible. 702 F.3d at 614
    –15. But Laist isn’t similar at all; the seizure in that case was based on
    probable cause, not mere reasonable suspicion. Id.; see also 
    Burgard, 675 F.3d at 1033
    (explaining, in justifying a six-day delay, that a seizure supported by
    probable cause permits a much greater intrusion than a seizure supported by mere
    reasonable suspicion).
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    What of the more analogous decisions in Place and Puglisi? The
    government seeks to distinguish them on the ground that both cases analyzed the
    seizure of luggage “as essentially a detention of the person.” Br. of Appellant at 16
    n.4. The government asserts that Puglisi, in particular, is inapt because the Court
    there held that “[f]or time even to be relevant, the seizure of luggage must have
    actually or constructively seized the 
    person.” 723 F.2d at 788
    .
    Two responses. For starters, we don’t think that this one line, taken alone,
    represents the holding of Puglisi. See Dantzler v. I.R.S., 
    183 F.3d 1247
    , 1251
    (11th Cir. 1999) (“A judicial opinion is not a statute, and not every sentence in a
    judicial opinion is law.”). Constructive seizure of the person was not the only
    element relevant to whether the luggage detention in Puglisi was permissible based
    on reasonable suspicion alone. Instead, we analyzed the 140-minute seizure
    against Place’s considerations of duration, intrusiveness, and diligence before
    deeming the detention unlawful. 
    Puglisi, 723 F.2d at 788
    , 790–91.
    Furthermore—and more importantly—it’s not clear why, under the rationale
    of Place and Puglisi, an officer’s confiscation of a cell phone is any less a
    constructive seizure of its owner than his detention of luggage (which, per Place,
    would make even 90 minutes too long). In Place the Court reasoned that while a
    suspect whose luggage is detained is “technically still free to continue his travels,”
    the seizure might nonetheless “effectively restrain” him by disrupting his travel
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    plans. 462 U.S. at 708
    . Given the ubiquity of cell phones—and our increasing
    reliance on them—it’s no stretch to hazard that a modern-day traveler would likely
    rather arrive in a strange place without her luggage than without her phone.
    Without the former, she may be left with only the “clothes on [her] back,” 
    Puglisi, 723 F.2d at 786
    , but without the latter she may be left without directions, hotel
    reservations, and payment and ride-share apps, not to mention voice, text, and
    email communications—in short, isolated and incapacitated. Whatever heft the
    constructive-seizure argument has with respect to luggage applies equally (if not a
    fortiori) to cell phones. In any event, no matter what one thinks about the relative
    import of luggage and phones, it’s clear that the duration of the seizure in this case
    puts it in a different bucket than the on-the-spot inquiry hypothesized in Place, 
    see 462 U.S. at 705
    –706, or carried out in Lawing, 
    see 703 F.3d at 238
    .4
    Next, the intrusion into Babcock’s possessory interest in his private property
    was serious. For many of the reasons just explained, a person’s possessory interest
    in his cell phone is at least as high as—if not higher than—his interest in his
    4
    The government suggested for the first time at oral argument that, rather than lasting two days,
    the reasonable-suspicion-based seizure lasted only until Detective Broughton used the phone to
    prompt C.A.’s confession, at which time the reasonable suspicion became probable cause and,
    presumably, washed away any budding issues with the seizure. We decline to wade into this
    argument when the entire record below is predicated on the seizure lasting two days. Because
    the government made no argument—and the district court made no finding—concerning the
    length of time between the seizure and the confession, any determination of the same on our part
    would be mere speculation. See Byrd v. United States, 
    138 S. Ct. 1518
    , 1530 (2018) (declining
    to consider the government’s argument raised for the first time on appeal when argument was
    predicated on factual issue “not addressed” below and “unclear” from the record).
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    luggage. A smart phone, as the Supreme Court recently emphasized, is unique in
    both the breadth and depth of personal information it stores, including
    “photographs, picture messages, text messages, Internet browsing history, a
    calendar, a thousand-entry phone book”—information that, all told, “reveal[s]
    much more in combination than any isolated record.” Riley v. California, 
    573 U.S. 373
    , 394 (2014). In other words, while a piece of luggage may hold certain
    physical items that an individual needs for a trip, a cell phone holds “[t]he sum of
    an individual’s private life”—hence our attentiveness to (which is to say obsession
    with) our cell phones. 
    Id. Put simply,
    the government’s confiscation of Babcock’s
    phone for a period of two days—and with it his personal messages, contacts,
    calendar, and more—worked a serious interference with his possessory interests,
    and undermines the government’s current contention that the seizure was but a
    “limited intrusion” allowable based on mere reasonable suspicion.
    Finally, diligence. Detective Broughton’s actions here—holding onto
    Babcock’s phone over the weekend rather than more promptly attempting to secure
    a warrant, either telephonically or in person—further confirm that the seizure in
    this case looks nothing like a Terry stop. The government has offered no
    explanation as to why Detective Broughton waited more than two days to take any
    action regarding the phone, nor does the record evidence indicate that he explained
    to Babcock when or whether he could expect to get his phone back. And while a
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    two-day delay certainly wouldn’t cross the line in the probable-cause context, see,
    e.g., 
    Laist, 702 F.3d at 614
    –15 (approving a 25-day delay in obtaining a warrant
    following a probable-cause seizure), we know from precedent that it’s well outside
    the realm of a permissible Terry stop, and thus weighs heavily against a finding of
    diligence here, see 
    Place, 462 U.S. at 710
    ; 
    Virden, 488 F.3d at 1321
    ; Farm 
    Labor, 308 F.3d at 546
    –47.
    * * *
    Accordingly, we reject the government’s contention that the officers’ two-
    day detention of Babcock’s cell phone was a mere investigatory “stop” allowable
    based on reasonable suspicion alone. Rather, we hold that it “ripened” into a full-
    blown seizure that required probable cause. See 
    Puglisi, 723 F.2d at 784
    .
    B
    The government contends, in the alternative, that it can meet the probable-
    cause standard and, further, that it can show that exigent circumstances justified a
    warrantless seizure. We will consider the two components of the government’s
    argument in turn, looking first to whether the officers at Babcock’s residence had
    probable cause to believe that his phone contained evidence of a crime, and then to
    whether exigent circumstances excused them from the need to obtain a warrant
    pre-seizure.
    19
    Case: 17-13678     Date Filed: 05/24/2019    Page: 20 of 32
    1
    Probable cause to seize property is what it sounds like—a belief that
    evidence will probably be found in a particular location. See United States v.
    Noriega, 
    676 F.3d 1252
    , 1261 (11th Cir. 2012). As the Supreme Court recently
    reiterated, probable cause “is not a high bar.” District of Columbia v. Wesby, 
    138 S. Ct. 577
    , 586 (2018) (quoting Kaley v. United States, 
    571 U.S. 320
    , 338 (2014)).
    Although probable cause requires more than reasonable suspicion that criminal
    behavior is afoot, it doesn’t entail the same “standard of conclusiveness and
    probability as the facts necessary to support a conviction.” United States v.
    Dunn, 
    345 F.3d 1285
    , 1290 (11th Cir. 2003) (internal quotations omitted). Rather,
    it requires only “a substantial chance” that evidence of criminal activity exists.
    Illinois v. Gates, 
    462 U.S. 213
    , 243 n.13 (1983). We recently explained that this
    “substantial chance” exists “where the facts within the collective knowledge of law
    enforcement officials” suffice “to cause a person of reasonable caution to believe
    that a criminal offense has been or is being committed”—and here, that evidence
    of that offense will be found in a particular place. Gates v. Khokar, 
    884 F.3d 1290
    ,
    1298 (11th Cir. 2018) (internal quotation marks omitted).
    Babcock contends that while the officers in this case might have suspected
    that something was up, their collective knowledge at the time of the seizure didn’t
    rise to the level of probable cause that a crime had been committed. To evaluate
    20
    Case: 17-13678     Date Filed: 05/24/2019    Page: 21 of 32
    that contention, let’s recap: At the time Detective Broughton retained Babcock’s
    phone, the officers knew—
    • that a domestic-disturbance call had reported a female at Babcock’s
    residence yelling “Stop, stop, stop!”;
    • that after Babcock had denied that anyone else was in his camper, a teenage
    girl emerged with cuts on her legs;
    • that Babcock had accompanied the girl to a Halloween party the night
    before, where she had consumed alcohol and drugs, and that she was in his
    camper the next morning;
    • that the girl had been in or on Babcock’s bed and left traces of blood there;
    • that the girl had been distraught, holding a knife to her own throat and
    saying, “I just want to die”; and
    •   that shortly after they arrived at Babcock’s residence, the girl appeared to be
    panicking or suffering an overdose.
    Finally—and perhaps most tellingly—the officers knew that, while the girl sat on
    Babcock’s bed with the knife to her neck, Babcock called her “dumb as f***” and
    then complained—in the present tense—that “this is what I deal with right here . . .
    you gotta do drama and fighting me all over the place.”
    Collectively, these circumstances gave the officers probable cause to believe
    that Babcock had committed a crime against C.A. This common-sense conclusion
    doesn’t depend on any particular fact taken in isolation; rather, as is “often” the
    case, “the whole is . . . greater than the sum of its parts.” 
    Wesby, 138 S. Ct. at 588
    ;
    see United States v. Arvizu, 
    534 U.S. 266
    , 274 (2002) (rejecting a “divide-and-
    21
    Case: 17-13678     Date Filed: 05/24/2019   Page: 22 of 32
    conquer” approach and instructing courts to evaluate probable cause in light of the
    totality of the circumstances). Here, Babcock’s lies contributed to probable cause,
    see 
    Wesby, 138 S. Ct. at 587
    (citing Devenpeck v. Alford, 
    543 U.S. 146
    , 149, 155–
    56 (2004)), as did his own present-tense statements clearly indicating an ongoing
    relationship. When the officers considered Babcock’s own utterances in light of
    the litany of other suspicious facts the learned, they certainly could have suspected
    a “substantial chance of criminal activity.” 
    Gates, 462 U.S. at 243
    n.13.
    From there, it required no leap for the officers to deduce that evidence of a
    crime would likely be found on Babcock’s phone. The officers already knew that
    the phone contained one eyebrow-raising video suggesting an ongoing relationship
    between a grown man and a teenage girl. It was eminently reasonable for them to
    believe that additional evidence of that relationship—messages, texts, pictures,
    videos, etc.—would be found in the same place.
    True, as Babcock points out, the government has been a little wishy-washy
    about the exact crime that the officers suspected at the time of the seizure. The
    government doesn’t contend that the officers had probable cause to believe that the
    phone contained evidence of child pornography; rather, it concedes that until
    Detective Broughton confronted C.A. with the phone at the hospital post-seizure,
    he had “no reason to believe that there were videos of sexual activity between [the]
    two.” Importantly, though, our precedent doesn’t require officers to predict the
    22
    Case: 17-13678     Date Filed: 05/24/2019   Page: 23 of 32
    eventually-charged offense in order to demonstrate probable cause, only that the
    collective facts would cause a “person of reasonable caution” to believe that “a
    criminal offense has been or is being committed.” See 
    Khokar, 884 F.3d at 1298
    (emphasis added) (internal quotation marks omitted).
    Here, the government’s arguments at the suppression hearing focused
    mainly on preserving both the video of C.A. on the bed and any evidence that
    might have shed light on the events leading up to it. And indeed, that is exactly
    what the officers ended up finding: evidence of an illegal, coercive relationship,
    confirming the suspicions sparked by the video’s portrayal of Babcock’s
    disdainful, bullying tone and C.A.’s distraught appearance. The fact that the phone
    also (and unexpectedly) contained pornographic images and videos doesn’t
    invalidate probable cause for any number of Florida state crimes the officers
    reasonably could have believed occurred based on the scene greeting them at
    Babcock’s residence. See, e.g., Fla. Stat. § 794.05(1) (“Unlawful sexual activity
    with certain minors”); 
    id. § 794.011(4)(a)
    (“Sexual battery”). Accordingly, we
    hold that on these facts the officers had probable cause to believe that Babcock was
    guilty of a crime, and that evidence of the crime would be found on his phone.
    2
    Of course, probable cause isn’t alone enough to seize an individual’s
    personal property—officers typically need a warrant. “[A] warrantless search
    23
    Case: 17-13678     Date Filed: 05/24/2019    Page: 24 of 32
    and seizure can be justified,” however, “when probable cause has been established
    to believe that evidence will be removed or destroyed before a warrant can be
    obtained.” United States v. Young, 
    909 F.2d 442
    , 446 (11th Cir. 1990). This
    exception—one branch of the “exigent-circumstances” doctrine—entails, like
    probable cause itself, an objective inquiry. See United States v. Bradley, 
    644 F.3d 1213
    , 1262 (11th Cir. 2011).
    Historically, we have found the exigent-circumstances exception
    “particularly compelling” in drug cases “because contraband and records can be
    easily and quickly destroyed while a search is progressing.” 
    Young, 909 F.2d at 446
    . The same is true of electronic files. In Bradley, for instance, we found that
    the exigent-circumstances exception permitted officers to shut down a company’s
    servers—a seizure of the company’s property—when multiple employees “had the
    ability and incentive to, after learning of the raid, destroy damning information
    contained on the computer 
    servers.” 644 F.3d at 1262
    –63.
    To be clear, it’s not that a cell phone itself creates an exigent circumstance.
    “Taken to its logical conclusion,” that “would permit police officers to seize now-
    ubiquitous cell phones from any person, in any place, at any time, so long as the
    phone contains photographs or videos that could serve as evidence of a crime—
    simply because the ‘nature’ of the device used to capture that evidence might result
    in it being lost.” Crocker v. Beatty, 
    886 F.3d 1132
    , 1137 (11th Cir. 2018)
    24
    Case: 17-13678     Date Filed: 05/24/2019    Page: 25 of 32
    (emphasis in original). In Crocker, we held that the exigent-circumstances
    exception didn’t apply where an officer had seized a bystander’s phone to prevent
    deletion of photographs that he observed the onlooker snapping following a huge
    highway crash. 
    Id. Absent any
    reason for the officer to think that the bystander
    wouldn’t preserve the pictures or would refuse to turn them over if asked, we
    found the government’s exigent-circumstances argument unconvincing. 
    Id. This case
    is different. Given the facts here, a reasonable, experienced agent
    certainly could have believed that Babcock—the suspect, not a mere bystander—
    would delete any incriminating evidence on his phone before a warrant could be
    obtained. For starters, Babcock had tried to deceive the responding officers from
    the get-go, denying that anyone else was in his camper, reporting that C.A. had
    randomly shown up at his house in the middle of the night, and claiming that he
    didn’t know her age—all lies. Moreover Babcock surely knew that he was under
    suspicion once Detective Broughton asked to search the camper and to further
    inspect his phone. Finally, of course, and on top of all that, the electronic files on
    Babcock’s phone could have been “quickly destroyed while [the] search [wa]s
    progressing.” 
    Young, 909 F.2d at 446
    . All told, as in Bradley, it was reasonable
    for the officers here to conclude that Babcock had the “ability and incentive to,
    after learning” of the investigation into his relationship with C.A., “destroy
    25
    Case: 17-13678       Date Filed: 05/24/2019       Page: 26 of 32
    damning information contained on” his 
    phone. 644 F.3d at 1262
    –63. That’s all
    the exigent-circumstances doctrine requires. 5
    Babcock contends that his offer to e-mail the video to the officers removed
    any urgency, thereby undermining any exigent-circumstances argument. He cites
    our decision in United States v. Hernandez-Cano, 
    808 F.2d 779
    (11th Cir. 1987),
    for the proposition that officers can’t claim exigent circumstances when the
    supposed risk can be alleviated by alternative means. But Hernandez-Cano was
    different—and in fact boomerangs back around on Babcock here. There, we
    considered a warrantless search of a suspect’s luggage and determined that,
    because officers had probable cause to arrest him at the time of the search, “any
    exigencies inherent in the situation could have been removed” by simply doing so.
    5
    Babcock asserts that the government forfeited its exigency argument by failing to use the
    phrase “exigent circumstances”—and failing to fully develop its position regarding the same—in
    its response to the motion to suppress. We disagree. While it’s true that alternative theories of
    admissibility—including exigent circumstances—can be forfeited even when the government is
    the appellee or respondent, see Steagald v. United States, 
    451 U.S. 204
    , 208 (1981); Giordenello
    v. United States, 
    357 U.S. 480
    , 487–88 (1958), we conclude that the government did enough here
    to preserve its exigent-circumstances argument. To be sure, in responding to Babcock’s motion
    to suppress, the government didn’t use the phrase “exigent circumstances” or cite case law
    specifically in support of the exception. It did argue, though, that “[t]he deputies had probable
    cause to believe that the phone had evidentiary value” and that “detention of the cellular phone
    was necessary to preserve the evidence observed by the deputies.” Gov’t Resp. Mot. Suppress at
    5 (emphasis added). That—whether accompanied by magic words or not—is the very definition
    of the exigent-circumstances exception. See, e.g., 
    Young, 909 F.2d at 446
    (“[W]hen probable
    cause has been established to believe that evidence will be removed or destroyed before a
    warrant can be obtained, a warrantless search and seizure can be justified.”). That the
    government presented a more robust version of its argument on appeal doesn’t render its initial
    argument null. See, e.g., Sec’y, U.S. Dep’t of Labor v. Preston, 
    873 F.3d 877
    , 883 n.5 (11th Cir.
    2017) (explaining that “[o]ffering a new argument or case citation in support of a position
    advanced in the district court is permissible—and often advisable” lest “the quality and depth of
    argument [fail] to improve on appeal—an unfortunate result”), cert. denied sub nom. Preston v.
    Acosta, 
    138 S. Ct. 2680
    (2018).
    26
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    Id. at 782.
    We explained that “[e]ven if exigent circumstances existed that justified
    the seizure of the suitcase to prevent the loss or destruction of its contents, the
    government still had to obtain a warrant to search the suitcase.” 
    Id. (emphasis added).
    Here, the officers didn’t conduct a warrantless search. Instead, faced with
    the potential destruction of evidence, they did exactly what Hernandez-Cano
    suggests they should have done—they seized the phone “to prevent the loss or
    destruction of its contents,” and then obtained a warrant before searching through
    it. See 
    id. Thus, because
    a reasonable officer could have believed that Babcock would
    delete any incriminating evidence on his phone before a warrant could be
    obtained—and because none of Babcock’s arguments convinces us otherwise—we
    find that the exigent-circumstances exception applies in this case. 6
    * * *
    6
    The government also argues in the alternative that Babcock consented to the seizure by
    voluntarily providing his phone to the officers to display the video of C.A. threatening self-harm.
    It is well-settled, however, that “the scope of a search based on consent may not exceed the
    scope of the given consent.” United States v. Watkins, 
    760 F.3d 1271
    , 1279 (11th Cir. 2014)
    (citing Florida v. Jimeno, 
    500 U.S. 248
    , 251 (1991)). The standard for measuring the scope of
    consent is “objective reasonableness”—what “would the typical reasonable person have
    understood by the exchange between the officer and the [individual giving the consent]?” 
    Id. (internal quotation
    marks omitted). Here, Babcock clearly consented only to the officers’
    viewing the video he showed them. After the initial viewing, Deputy Olson asked for the phone
    again, for the express purpose of showing Officer McMahan the video. Babcock consented to
    the officers viewing the clip again, but then asked for his phone back and refused consent when
    Detective Broughton asked to poke around further. Contrary to the government’s contention, the
    initial limited-in-scope consent doesn’t justify an unlimited-in-scope full seizure over Babcock’s
    objection.
    27
    Case: 17-13678       Date Filed: 05/24/2019      Page: 28 of 32
    To sum up, we reject the government’s contention that a two-day
    warrantless seizure of a suspect’s cell phone is permissible based on reasonable
    suspicion alone. We conclude, however, that the warrantless seizure of Babcock’s
    phone was lawful because the officers on the scene had probable cause to believe
    both that evidence of a crime would be found on it and that the evidence would be
    destroyed before they could obtain a warrant.
    III
    Babcock separately challenges his sentence, arguing that it is both (1)
    procedurally unreasonable because the district court erroneously imposed two
    enhancements for the same harm and (2) substantively unreasonable because it is
    too harsh in light of the facts.7 Neither argument is persuasive.
    Babcock raises his procedural-reasonableness argument for the first time on
    appeal, so we can correct any missteps only if he shows a “plain error” that affects
    his substantial rights and that seriously undermines the fairness, integrity, or public
    reputation of judicial proceedings. See United States v. Shelton, 
    400 F.3d 1325
    ,
    1328–29 (11th Cir. 2005). Babcock essentially argues that the district court’s
    application of both § 2G2.1(b)(2) and § 4B1.5(b) of the Sentencing Guidelines
    constitutes impermissible double-counting.
    7
    Babcock also argues that his sentence is procedurally unreasonable because the government did
    not group two counts of conviction which were based on the same harm. As the government
    points out, though, the Guidelines specifically exclude convictions under § 2G2.1 from the
    grouping rules. See U.S.S.G. § 3D1.2(d).
    28
    Case: 17-13678    Date Filed: 05/24/2019    Page: 29 of 32
    Double-counting occurs when one part of the Sentencing Guidelines is
    applied to increase a defendant’s punishment on account of a harm that has already
    been fully accounted for by application of another part of the Guidelines. See
    United States v. Dudley, 
    463 F.3d 1221
    , 1226–27 (11th Cir. 2006). Absent
    evidence to the contrary, however, the presumption is that “the Sentencing
    Commission intended to apply separate sections cumulatively,” United States v.
    Kapordelis, 
    569 F.3d 1291
    , 1315 (11th Cir. 2009) (citation omitted), such that
    what might appear to be impermissible double-counting is instead what we will
    call permissible “cumulative-counting.”
    We conclude that applying both enhancements in this case constitutes
    cumulative- (rather than double-) counting. Chapter Two of the Guidelines,
    focusing on the sexual exploitation of minors through pictures, provides that an
    offender’s base sentencing level should be enhanced by two when “the commission
    of a sexual act or sexual contact” occurs during a visual depiction. U.S.S.G.
    § 2G2.1(b)(2)(A). Chapter Four then makes clear that when a “pattern of . . .
    prohibited sexual contact” occurs, a court should add five to “the offense level
    determined under Chapter[] Two.” U.S.S.G. § 4B1.5(b). The Guidelines say
    nothing about adding this enhancement to only a portion of the base level
    determined under Chapter Two, or otherwise adjusting the calculation in any
    way—instead, they simply presuppose that a certain offense level was determined
    29
    Case: 17-13678      Date Filed: 05/24/2019    Page: 30 of 32
    under Chapter Two, and then instruct the sentencing court to add five levels,
    period. Nothing in the Guidelines, then, indicates that these sections may not be
    applied cumulatively. See 
    Kapordelis, 569 F.3d at 1315
    . Moreover, and in any
    event, it isn’t clear that the harm in § 4B1.5(b)’s “pattern of activity involving
    prohibited sexual contact” is “fully accounted for” in § 2G2.1(b)(2)’s “sexual act
    or sexual contact” occurring in a visual depiction, such that application of the two
    sections could be considered double-counting at all. See 
    Dudley, 463 F.3d at 1226
    –27. There was no plain error here.
    Looking next to substantive reasonableness, Babcock argues that the nature
    and circumstances of this case do not compel the same severe sentence required to
    deter creators of commercial child pornography. Basically, Babcock contends that
    his crime—an inappropriate, long-term relationship with an older teenager—
    doesn’t indicate that he is a threat to children generally or affect the child-
    pornography market as would, for instance, the rape of a child for video
    distribution or other predatory production of commercial child pornography.
    Babcock asserts that because there is no evidence that he intended ever to show
    anyone his videos or pictures of C.A., his 324-month sentence is substantively
    unreasonable.
    We review challenges to the substantive reasonableness of a sentence for
    abuse of discretion. Gall v. United States, 
    552 U.S. 38
    , 41 (2007). The party
    30
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    challenging the sentence bears the burden of showing that the sentence is
    unreasonable in light of the record and the 18 U.S.C. § 3553(a) factors. United
    States v. Tome, 
    611 F.3d 1371
    , 1378 (11th Cir. 2010). While we do not formally
    presume that a within-Guidelines sentence is reasonable, we ordinarily expect it to
    be so. United States v. Hunt, 
    526 F.3d 739
    , 746 (11th Cir. 2008). That a sentence
    is imposed well below the statutory maximum penalty may also indicate its
    reasonableness. See United States v. Gonzalez, 
    550 F.3d 1319
    , 1324 (11th Cir.
    2008) (per curiam).
    There is a certain intuitive logic to Babcock’s argument here—it’s true that
    nothing in the record necessarily indicates a propensity to distribute child
    pornography. That being said, Babcock’s conduct falls squarely within the
    confines of § 2G2.1—“sexually exploiting a minor by production of sexually
    explicit visual or printed material”—and, as the sentencing judge emphasized, the
    effect of his actions on C.A. and her family was far from insignificant. We are
    comfortable that the sentencing judge took into consideration all of the relevant
    circumstances when he sentenced Babcock to 324 months—a downward variance
    from the 360 to 720 months recommended by the Guidelines. See 
    Gonzalez, 550 F.3d at 1324
    . Accordingly, we find no abuse of discretion in the district court’s
    sentencing decision.
    31
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    IV
    For the foregoing reasons, we hold (1) that reasonable suspicion alone could
    not have justified the officers’ warrantless two-day seizure of Babcock’s cell
    phone; (2) that the officers in this case had probable cause to believe that a crime
    had been committed, that evidence of the crime would be found on Babcock’s
    phone, and that there was a risk that Babcock would destroy the evidence before
    they could get a warrant, such that the seizure did not violate the Fourth
    Amendment; and (3) that Babcock’s sentence was both procedurally and
    substantively reasonable. Accordingly, we affirm the district court’s denial of
    Babcock’s motion to suppress as well as its 324-month sentence.
    AFFIRMED.
    32