STATE OF FLORIDA v. JEFFREY DARTER ( 2022 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
STATE OF FLORIDA,
Appellant,
v.
JEFFREY DARTER,
Appellee.
No. 4D22-308
[November 2, 2022]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Kirk Volker, Judge; L.T. Case No. 502019CF011634AMB.
Ashley Moody, Attorney General, Tallahassee, and Sorraya M. Solages-
Jones, Assistant Attorney General, West Palm Beach, for appellant.
Michael Salnick and Lisa Viscome of Law Offices of Salnick & Fuchs,
P.A., West Palm Beach, for appellee.
GERBER, J.
After the state charged the defendant with possessing child
pornography images, the defendant obtained the circuit court’s order
granting his motion to suppress the images. The defendant’s motion to
suppress successfully argued that although detectives had obtained a
court-approved search warrant before finding the images on his cell phone,
the detectives—two days earlier—had unlawfully seized his cell phone from
his grasp without a warrant and allegedly without probable cause or
exigent circumstances, thereby tainting the detectives’ later court-
approved search of his cell phone.
The state argues the circuit court erred in granting the defendant’s
motion to suppress. More specifically, the state argues the detectives were
able to lawfully seize the defendant’s cell phone from his grasp without a
warrant for two reasons: (1) the detectives had probable cause that the
defendant’s cell phone contained child pornography images, based on the
evidence which the detectives had discovered in their investigation, and
based on the defendant’s reaction upon the detectives confronting him
with that evidence; and (2) exigent circumstances arose when the
defendant began swiping his cell phone in such a manner as to lead a
reasonable person in the detectives’ position to believe that the defendant
was deleting the suspected evidence from his cell phone.
We agree with the state’s arguments, and therefore reverse the circuit
court’s order granting the defendant’s motion to suppress.
We present this opinion in five sections:
1. The evidence presented at the motion to suppress hearing;
2. The parties’ arguments on the motion to suppress;
3. The circuit court’s granting of the motion to suppress;
4. The parties’ arguments on appeal; and
5. Our review.
1. The Evidence Presented at the Motion to Suppress Hearing
At the motion to suppress hearing, the state’s sole witness was the
investigation’s lead detective, who testified as follows.
She had worked as a cyber-crimes detective for the past five years, and
was part of the South Florida Internet Crimes Against Children task force.
She primarily investigated child exploitation and pornography cases, for
which she had received specialized training.
In June 2019, the Department of Homeland Security contacted her with
a cyber-tip report regarding a person named Jeff Darter, who had
“uploaded one image of child pornography … in the KIK chatting
application.” According to the lead detective, “KIK is similar to Snapchat.
It’s a social media chatting platform [on which] [p]eople can chat with each
other in chat rooms. … They can chat privately, send messages privately,
share images, videos, [etc.].”
The lead detective reviewed the uploaded image from the KIK account,
and confirmed the image constituted child pornography. The KIK account
revealed an associated email address. A subpoena for that email address’s
account turned up “J.D.” as the subscriber’s initials, and “Jeff Darter” as
a listed alias.
The lead detective also was provided with the IP address from which
the image was uploaded, and log-in records reflecting that the account had
been accessed from the same IP address over a several-day period. The
lead detective explained: “An IP … [or] internet protocol address … in
layman’s terms … [is] an address for [a person’s] computer … [which is]
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assigned to a router in [that person’s] home specifically for [that person],
usually no one else.” According to the lead detective, an IP address can be
tracked “to [a particular] residence or other location where somebody
uploaded or was otherwise using the internet.” After determining that
Comcast was the internet provider for the subject IP address, the lead
detective subpoenaed Comcast for the IP address’s subscriber information.
The subscriber was identified as Jeff Darter.
Using the subpoena results and cyber-tip information, the lead
detective requested the state attorney’s office to seek a residential search
warrant for the defendant’s residence. However, the state attorney’s office
denied the request, because the “Special Agent … who originally served
the subpoena on the IP address of the [image] upload … listed the wrong
date on the subpoena … [by using] the log-in [date] as opposed to the
[image] upload [date] ….” By the time the lead detective was able to serve
Comcast with another subpoena using the correct image upload date,
Comcast no longer had records for that date.
After the lead detective’s residential search warrant request was denied,
the lead detective made two unsuccessful “knock and talk” attempts at the
defendant’s residence.
The lead detective testified that she and a second detective then decided
to go to the defendant’s workplace. She conceded that, at that time, they
did not have probable cause to get a search warrant for the defendant’s
cell phone or work computer. However, the lead detective was aware that,
based on the nature of the defendant’s employment, she would not need
the defendant’s consent to search his work computer.
When the lead detective and the second detective arrived at the
defendant’s workplace, they identified themselves to the defendant’s
supervisor. Without disclosing any details about their investigation, the
detectives told the supervisor that they needed to speak to the defendant
about an investigation. The detectives then went to the defendant’s office,
introduced themselves, and began recording their conversation with him.
The circuit court admitted the recording into evidence without objection.
On the recording, the detectives read the defendant his Miranda rights,
which the defendant acknowledged he understood. A fourteen-minute
interview then occurred.
Because the interview’s details, in conjunction with the events which
occurred immediately after the interview, are crucial to our determination
of whether probable cause and exigent circumstances existed for the
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warrantless seizure of the defendant’s cellphone from his grasp, we provide
those details here (with emphasis added):
LEAD DETECTIVE: Do you have social media?
DEFENDANT: Uh, I have a Facebook page. I don’t ever use
it but it’s out there.
LEAD DETECTIVE: Do you have any others?
DEFENDANT: No.
LEAD DETECTIVE: What about chatting applications, like
Snapchat, KIK?
DEFENDANT: I think I have those. I don’t think – I don’t use
them. I do have accounts on Snapchat maybe and –
LEAD DETECTIVE: What about KIK?
DEFENDANT: Not that I know of.
….
LEAD DETECTIVE: Okay. All right, so basically just to let
you know why I am here today is that I received information
from KIK, okay.
DEFENDANT: Okay.
LEAD DETECTIVE: That an image of child pornography was
uploaded to another use from your account, your KIK
account.
DEFENDANT: All right.
LEAD DETECTIVE: Can you tell me about that?
DEFENDANT: No. Like I said, I don’t – don’t use KIK. I don’t
know anything about that. But I’m not a child pornographer,
no.
….
4
LEAD DETECTIVE: [D]o you know this email, [email address
deleted here]?
DEFENDANT: No.
LEAD DETECTIVE: First name J.D.?
DEFENDANT: Don’t know that one.
LEAD DETECTIVE: Okay. But you did have KIK, right?
DEFENDANT: Yeah, I don’t know. I may still have it, I don’t
even know, but I don’t use it.
LEAD DETECTIVE: What was the name that you used to –
DEFENDANT: My God, I don’t have any idea.
LEAD DETECTIVE: Does [username matching e-mail
address] ring a bell?
DEFENDANT: No.
LEAD DETECTIVE: Okay. So, let’s see, it looks like, I mean,
this is directly from KIK.
DEFENDANT: Okay.
LEAD DETECTIVE: All right. And it shows your username
is [username deleted here], first name Jack Darten. But then
it shows you changed your name the end of December of 2015
to Jeff Darten. 1
DEFENDANT: Again, 2015?
LEAD DETECTIVE: Yes.
DEFENDANT: Okay, maybe. I don’t know.
LEAD DETECTIVE: Okay. So, I mean, [KIK] reported from –
directly from them that you uploaded an image of child
1The state argued the defendant had intentionally changed his first name and then
misspelled his last name in an attempt to disguise his identity.
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pornography in the beginning of December [2018], and they
shut down your account.
DEFENDANT: Like I said, I don’t know any of that. I don’t
know what they are – where that’s coming from.
LEAD DETECTIVE: Was your KIK account ever deactivated?
DEFENDANT: I don’t know.
LEAD DETECTIVE: Okay.
DEFENDANT: I don’t think I’ve ever even used it, but
obviously I did something in 2015, so.
LEAD DETECTIVE: I mean, it shows you were using it last
year from November [2018] on.
DEFENDANT: Last year?
LEAD DETECTIVE: Uh-huh. Have you ever seen child
pornography before?
DEFENDANT: I have, yeah.
LEAD DETECTIVE: Okay. Where?
DEFENDANT: Friends, other friends.
LEAD DETECTIVE: Other friends.
DEFENDANT: Yeah.
LEAD DETECTIVE: Okay.
DEFENDANT: Yeah.
LEAD DETECTIVE: Tell me more about that. Can you be
more specific?
DEFENDANT: No, not really. I mean, just to say that other
people have had stuff that they have shown me and –
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LEAD DETECTIVE: Could this have been something like
that, something you came across to show one of your friends,
being that they are into that type of material?
DEFENDANT: I don’t – no, I don’t have that stuff. I’ve seen it
from other people but I don’t have any of it.
LEAD DETECTIVE: Okay.
DEFENDANT: So –
LEAD DETECTIVE: Who are these people that are interested
in this material?
DEFENDANT: Well, it was years ago. Nobody I even could
name. I just – people have shown me things.
LEAD DETECTIVE: Okay. Close friends, or, I mean, how
many people are we talking?
DEFENDANT: Acquaintances, yeah. I mean, people that I
have worked with, yeah.
LEAD DETECTIVE: How does that come up?
DEFENDANT: Uh, I don’t know. Just –
LEAD DETECTIVE: How does that come up in conversation?
DEFENDANT: Yeah, yeah, that’s the thing, yeah. Some
things that they have shown me that I was not interested in,
yeah, yeah.
LEAD DETECTIVE: Okay. When was the last time?
DEFENDANT: Uh, I don’t even know[].
LEAD DETECTIVE: All right. What is child pornography to
you? What does that mean to you?
DEFENDANT: Well, I guess it would be like underage
children or something.
LEAD DETECTIVE: Engaged in –
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DEFENDANT: Yeah, doing – unclothed or whatever.
LEAD DETECTIVE: In sexual conduct, things of that nature?
DEFENDANT: Oh, okay. All right.
LEAD DETECTIVE: Okay. The image that you sent to
someone was an infant being penetrated by an adult male –
DEFENDANT: Okay.
LEAD DETECTIVE: – from your account. Just one image, not
several. So we just want to make sure there is, you know, not
anymore and you’re not actually hands on with anybody. It’s
just something you’ve looked at.
DEFENDANT: No, and like I said, I don’t even know about
that. I don’t know anything about that, but, you know, it’s
not my – it’s not interesting to me at all. It’s not my thing.
LEAD DETECTIVE: Okay.
SECOND DETECTIVE: This was something that was done
accidentally and you didn’t realize what you did or is this —
DEFENDANT: Like I said, I don’t know. I don’t even know
anything about that. It could have been, I guess, but I don’t
have any knowledge of that.
LEAD DETECTIVE: Who is your internet service provider? Is
it Comcast?
DEFENDANT: Comcast, I think, yeah.
LEAD DETECTIVE: How long have you had Comcast?
DEFENDANT: Probably five or six years, something like that.
LEAD DETECTIVE: So these people that you say you are
friends with that are interested in this material, you met them
at work. Where was that?
8
DEFENDANT: Well, that was – the one person I can think of,
that was twenty years ago …. [He] w[as] starting a website to
do that kind of thing and –
….
LEAD DETECTIVE: What do you mean, starting a website?
DEFENDANT: This person had a website that did
pornography of all kinds and I – he was showing me his
website. I was not amused.
LEAD DETECTIVE: Who is this friend?
DEFENDANT: I would rather not tell you that.
LEAD DETECTIVE: Why would you protect someone who is
interested in child pornography?
DEFENDANT: I’m not protecting them. … It was twenty
years ago. I’m sure they’re not doing it any more.
LEAD DETECTIVE: I highly doubt that.
DEFENDANT: I highly doubt they are, but whatever. You’re
welcome to your opinion.
LEAD DETECTIVE: So when you – obviously you would use
your phone to access KIK because you can’t on the computer.
You are telling me you don’t have any child pornography
whatsoever?
DEFENDANT: No.
LEAD DETECTIVE: Would you consent to search your
phone right now?
DEFENDANT: Not right now, no.
LEAD DETECTIVE: Why not?
DEFENDANT: I think that requires something more than just
my giving you permission, right?
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LEAD DETECTIVE: No.
DEFENDANT: Well, I’ve decided – I choose not to give you
permission to get onto my phone.
LEAD DETECTIVE: Okay. So there’s likely evidence of child
pornography on your phone?
DEFENDANT: I’m not saying that at all. I just don’t think I
want to give you permission to get into my phone.
LEAD DETECTIVE: Well, it wouldn’t be me. It would be my
forensic team that I have outside to look at it.
DEFENDANT: No, thanks.
LEAD DETECTIVE: Okay. Do you have any questions for
me?
DEFENDANT: No.
….
LEAD DETECTIVE: Do you swear the information you
provided to me today was the truth?
DEFENDANT: Absolutely.
LEAD DETECTIVE: Okay. [To the second detective] Can you
think of anything else?
….
SECOND DETECTIVE: Actually, real quick, so if it’s not you,
then it’s going to probably be your wife that is doing this or –
because it came from your house with your account, so.
DEFENDANT: I don’t know.
SECOND DETECTIVE: Okay. Have you ever seen your wife
watch child pornography?
DEFENDANT: No.
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….
LEAD DETECTIVE: Okay. You know, like [the second
detective] said, it was uploaded from your residence[,] so it
was either you or your wife and that’s what we need to get to
the bottom of. Your name is all over – well, your name, Jeff
Darter is on that account, but if you are saying that’s not you
and you didn’t do that, then that’s something we are going to
have to talk with her about.
DEFENDANT: Okay.
….
LEAD DETECTIVE: And just so you are aware, we’ve been
alerted now that you’ve done this so you are on our radar with
the Sheriff’s Office. So if you are still doing so, I suggest you
stop.
DEFENDANT: Okay.
LEAD DETECTIVE: Because if we are alerted again that you
were possessing, transmitting child pornography, you’re going
to have a major issue.
DEFENDANT: Yeah, well, it shouldn’t happen, but thank
you.
At that point, the detectives concluded the recorded interview. The lead
detective testified that the defendant’s demeanor during the interview was
“[o]ddly calm.” The two detectives then left the defendant’s office. The
detectives did not tell the defendant whether they would be coming back
or that he was prohibited from doing anything with his cell phone.
The two detectives then went to the defendant’s supervisor’s office to
request the supervisor’s consent to search the defendant’s work computer.
The supervisor consented. The two detectives, joined by the supervisor
and a third detective who specialized in forensic computer examination,
went back to the defendant’s office.
Upon entering the defendant’s office, the lead detective told him that
the detectives needed to look at his work computer. The defendant initially
refused to get up from his desk. The defendant’s supervisor demanded
that the defendant get up from his desk. The defendant did so and went
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from his office to a nearby break room which was visible to the lead
detective. None of the detectives accompanied the defendant into the
break room or told him that he could not do anything with his cell phone.
However, the lead detective remained interested in looking at the
defendant’s cell phone, if she could do so legally. So, while the lead
detective watched the third detective begin examining the defendant’s
work computer, she “maintain[ed] a visual” on the defendant in the break
room for what she approximated was less than ten minutes.
According to the lead detective, while the defendant was in the break
room, she eventually noticed “[h]e was shaking. He was frantically swiping
and pressing on [his cell phone’s] screen.” His demeanor “was the exact
opposite [from the interview]. … [H]e was swiping, deleting, extremely
nervous. It wasn’t a normal appearance.” The lead detective could not tell
exactly what the defendant was doing with his phone, but she suspected
that “he [was] deleting evidence.” (The trial court overruled defense
counsel’s “speculation” objection to that observation.)
Based on the lead detective’s suspicions, she and the second detective
approached the defendant in the break room, and asked (or told) him to
turn over his cell phone. The defendant said “no,” at which point the lead
detective “grabbed [the cell phone] out of his hand.” The defendant then
“pushed [the lead detective] and tried to grab the phone out of [her] hand.”
A struggle ensued between the defendant and the two detectives. The lead
detective ultimately seized the phone, and arrested the defendant for two
counts of battery on a law enforcement officer.
Over the next two days, the lead detective drafted an application for a
warrant to search the defendant’s cell phone’s contents. Meanwhile, the
search of the defendant’s work computer revealed adult pornography
images, self-pornographic images taken at his work station, and one
pornographic image of a person whom the detectives could not determine
was a teenage child or an adult. The lead detective included these details
in the application for a warrant to search the defendant’s cell phone.
The duty judge approved the search warrant application. The
detectives searched the defendant’s cell phone and discovered 174 child
pornography files.
2. The Parties’ Arguments on the Motion to Suppress
The defendant’s motion to suppress primarily argued that the lead
detective had unlawfully seized his cell phone from his grasp without
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probable cause that the cell phone contained child pornography images,
and that the lead detective had “created the [exigent] circumstances which
le[d] to” the phone’s seizure without a warrant. According to the
defendant’s motion: “The seizure of the defendant’s cell phone was
unlawful and any evidence obtained as a result of the seizure must
therefore be suppressed. The warrant obtain[ed] subsequent to the
unlawful seizure d[id] not cure the unlawful conduct.”
The state’s response argued that the pre-interview evidence which the
lead detective had discovered—linking the defendant to the KIK account to
which the child pornography image had been uploaded—combined with
the defendant’s reaction upon the detectives confronting him with that
evidence, gave the lead detective probable cause to believe that the cell
phone contained child pornography images. Further, the state argued, the
exigent circumstances of the defendant potentially deleting evidence on his
cell phone “was created by the [d]efendant’s actions, not the police,” and
justified the lead detective’s warrantless seizure of the cell phone.
“Importantly,” the state’s response asserted, “the cell phone … was only
seized, not searched[,] prior to obtaining a warrant.”
During the hearing on the motion, the state acknowledged the lead
detective did not have probable cause to seize the defendant’s cell phone
“[p]rior to [interviewing] him.” However, the state reiterated that the
information which the lead detective had acquired before the interview,
“coupled with [the defendant’s] answers to her [interview] questions and
then his subsequent behavior, … gave her probable cause to seize the
phone and apply for a [search] warrant.” The state elaborated:
This is someone who has now been informed [that he is] a
target of an investigation, that these are the allegations, …
this is the information we have leading back to [him].
He appears calm speaking with [the lead detective]. He
then becomes resistant when he knows she is going to search
[his work computer], goes to the break room, is left alone for
the first time, completely changes his demeanor, [which] alerts
her that something is going on. And that is why … she seized
…, and … had [probable cause] to seize[,] the phone at that
time.
In rebuttal, defense counsel maintained that the lead detective lacked
probable cause to believe that child pornography images were on the
defendant’s cell phone:
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Up to that point, the focus was … trying to get a warrant
for his residence based on an IP address to that residence, not
to a particular device …. So there was absolutely no evidence
leading to the [defendant’s] [cell] phone, other than the fact
that KIK is a [cell] phone application. … The[] [detectives]
don’t have evidence of images, downloading or anything in
particular to that particular phone at the time that they go to
[the defendant’s] office. They are also acting on information
that at that point is eleven months old.
Defense counsel then argued that the defendant’s behavior did not
create exigent circumstances for the lead detective’s warrantless seizure of
the defendant’s cell phone:
It just defies logic that [the lead detective] would sit down
with [the defendant], tell him why she is there, and wait for
that long period of time, … and then leaving him alone …, to
conduct this forensic search, and then not until the very end
decides that he is acting nervously. And acting nervously in
and of itself is not sufficient. Obviously, she is going to
speculate that he was deleting. … [S]he thought he was
swiping. That could be … consistent [with] … [a] message
coming up, I’m swiping it off because … I’m in the middle of
work and I’m being investigated by law enforcement. It’s just
as similar to … completely innocent activity as it is to
destruction of evidence. …
3. The Circuit Court’s Granting of the Motion to Suppress
The circuit court orally granted the defendant’s motion to suppress:
[T]o seize a cell phone under exigent circumstances, there
must be probable cause existing at the time that the phone is
seized … when there is no search warrant in order for it to be
a lawful seizure. … [T]he [lead] detective herself has testified
that at the time she went to the [defendant’s] [workplace] to
speak with [the defendant], she did not have probable cause
to obtain a search warrant …. Once she got there, after
speaking with [the defendant], I do not believe that his
answers to her questions would have provided the necessary
probable cause. And then once he left the room, went into the
break room and started accessing his cell phone, I don’t
believe that, even assuming arguendo that that activity, if she
had probable cause, would have permitted her to take the
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phone under exigent circumstances, I think that activity itself
does not provide additional probable cause to believe child
pornography would be found on that phone. There are a lot of
reasons why somebody could be using their phone. [The lead
detective] can’t say what [the defendant] was doing. She can’t
say he was deleting anything. And I’m not even sure if she
could have said he was deleting anything, if that would have
given probable cause to believe there is child pornography on
the cell phone. But to sum up my findings, I do not believe
there was probable cause to seize that phone at the time she
took it; therefore, I don’t even think I need to address the
exigent circumstances because you need probable cause to
seize a cell phone under exigent circumstances. I don’t
disbelieve the testimony of [the lead detective]. I think she
was very credible ….
….
So those are my rulings. Exigent circumstances, I think if
[the lead detective] had probable cause, and maybe the Courts
on an appeal would say … the [circuit court] is wrong, there
was probable cause to seize the phone, I find that there were
exigent circumstances to seize it, but I wasn’t finding probable
cause before those circumstances existed. So I don’t think she
had the right to seize it.
(emphasis added). The circuit court later entered a written order
summarizing its ruling, but deferring a finding on whether exigent
circumstances existed to seize the defendant’s cell phone:
This Court finds there was no probable cause to seize the
[d]efendant’s cell phone at the time [the lead] [d]etective …
took the phone. Based upon this finding, the Court does not
need to address the exigent circumstance argument, for the
[lead] [d]etective would need probable cause to seize the phone
under exigent circumstances. …
Accordingly it is … ORDERED that the [d]efendant’s …
[m]otion be GRANTED and that all items seized and taken
from the [d]efendant’s … cell phone are hereby suppressed.
4. The Parties’ Arguments on Appeal
On appeal, the state summarizes its primary argument as follows:
15
Based on the totality of the circumstances, the [circuit]
court erred in granting [the defendant’s] motion to suppress
the 174 child pornography images found on his cell phone.
… [A]t the time [the lead detective] seized [the defendant’s]
cell phone she believed, as an objectively reasonable officer,
that there was a fair probability child pornography was on the
phone. Hence, [she] had to respond quickly to the exigent
circumstances for fear that [the defendant] was deleting or
destroying evidence … [while] law enforcement was searching
his work computer.
The defendant’s answer brief summarizes his response as follows:
In order for law enforcement to lawfully seize [the
defendant’s] cell phone without a warrant, the [s]tate ha[d] the
burden of showing at the time of the seizure law enforcement
had both probable cause to believe that property contain[ed]
… evidence of a crime and an applicable warrant exception,
such as exigent circumstances. [The lead detective] lacked
probable cause that [the defendant’s] cell phone contained
evidence of a crime at the time she grabbed it from his hand.
The seizure [therefore] was unlawful.
5. Our Review
We employ a mixed standard of review. See State v. Hankerson, 65 So.
3d 502, 506 (Fla. 2011) (“In reviewing a trial court’s ruling on a motion to
suppress, the appellate courts defer to the trial court’s factual findings so
long as the findings are supported by competent, substantial evidence,
and review de novo the legal question of whether there was probable cause
given the totality of the factual circumstances.”) (emphasis added).
Here, applying de novo review to the legal question of whether the lead
detective had probable cause to believe that child pornography images
were on the defendant’s cell phone, we conclude the trial court erred in
finding a lack of probable cause.
As the Eleventh Circuit stated in U.S. v. Babcock, 924 F. 3d 1180 (11th
Cir. 2019):
[T]he Supreme Court has interpreted the Fourth Amendment
to allow a warrantless seizure when police can show both (1)
16
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.
Id. at 1186 (11th Cir. 2019).
In the following two subsections, we will first address the probable
cause requirement, and then we will address the exigent circumstances
exception to the warrant requirement, as applied to the facts here.
Probable Cause
As the United States Supreme Court stated in Texas v. Brown, 460 U.S.
730 (1983):
[P]robable cause is a flexible, common-sense standard. It
merely requires that the facts available to the officer would
warrant a [person] of reasonable caution in the belief that
certain items may be … useful as evidence of a crime; it does
not demand any showing that such a belief be correct or more
likely true than false. A practical, nontechnical probability
that incriminating evidence is involved is all that is required.
Moreover, our observation in United States v. Cortez, 449 U.S.
411, 418, 101 S. Ct. 690, 695, 66 L. Ed. 2d 621 (1981),
regarding “particularized suspicion,” is equally applicable to
the probable cause requirement:
The process does not deal with hard certainties, but
with probabilities. Long before the law of probabilities
was articulated as such, practical people formulated
certain common-sense conclusions about human
behavior; jurors as factfinders are permitted to do the
same—and so are law enforcement officers. Finally, the
evidence thus collected must be seen and weighed not
in terms of library analysis by scholars, but as
understood by those versed in the field of law
enforcement.
460 U.S. at 742 (other internal citations and quotation marks omitted).
17
Applying that standard of review, we conclude the lead detective—based
upon the combination of her pre-interview investigation, the defendant’s
responses during the interview, and the defendant’s post-interview
behavior in the break room—had probable cause to believe that the
defendant’s cell phone contained child pornography images.
While the state acknowledged the lead detective lacked probable cause
to seize the defendant’s cell phone before the interview at the defendant’s
workplace, the state later argued that the information which the lead
detective had acquired before the interview, combined with the defendant’s
answers during the interview, and his behavior after the interview,
provided probable cause to believe that the defendant’s cell phone
contained child pornography images.
Indeed, before the interview, the lead detective had the following
information:
• The Department of Homeland Security had received a cyber-tip
report regarding a person named Jeff Darter, who had uploaded one
image of child pornography in the KIK chatting application.
• Based on the lead detective’s review of the uploaded image from the
KIK account, the image constituted child pornography.
• The KIK account revealed an associated email address for which the
account subscriber’s initials were “J.D.” and for which a listed alias
was “Jeff Darter.”
• The IP address from which the child pornography image was
uploaded and log-in records reflected that the account had been
accessed from the same IP address over a several-day period.
• After determining that Comcast was the internet provider for the
subject IP address, the lead detective learned from Comcast that the
IP address’s subscriber name was Jeff Darter.
During the interview, the lead detective confirmed that the defendant
had maintained a Comcast account. The lead detective also acquired more
information for probable cause consideration:
• When the lead detective first asked the defendant if he ever had the
KIK chatting application, the defendant answered, “Not that I know
of.” When the lead detective then added into a later question that
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“an image of child pornography was uploaded to another use from
your account, your KIK account,” the defendant doubled down on
his denial of a KIK account, answering, “Like I said, I don’t – don’t
use KIK. I don’t know anything about that.”
• However, just a few minutes later, the defendant’s denial of having
or using a KIK account changed to acknowledging the possibility of
at least having had a KIK account. When the lead detective told the
defendant that the KIK account was associated with the name “Jeff
Darten” (just one letter off from the name “Darter”), the defendant
answered, “Okay, maybe. I don’t know.”
• Then, just a few seconds later, the defendant acknowledged the
possibility of having used a KIK account. When the lead detective
asked the defendant, “Was your KIK account ever deactivated?”, the
defendant answered “I don’t know … I don’t think I’ve ever even used
it, but obviously I did something in 2015, so.” (emphasis added).
• Following the rapid evolution of the defendant’s answers regarding
the KIK account, the defendant then gave evolving answers about
whether he had ever seen child pornography images. The defendant
answered he had been shown child pornography by people whom he
first described as “friends,” and then as “acquaintances,” and then
as “people that I have worked with.” When the lead detective asked,
“How does that come up in conversation?”, the defendant’s answer
was nonresponsive, if not nonsensical: “Yeah, yeah, that’s the thing,
yeah. Some things that they have shown me that I was not
interested in, yeah, yeah.” When the lead detective then asked,
“When was the last time?”, the defendant answered “Uh, I don’t even
know[].” A few minutes later, when the lead detective asked the
defendant where he had met friends at work who were interested in
“this material,” he now explained the event occurred “twenty years
ago” when a friend was “starting a website … that did pornography
of all kinds and I – he was showing me his website.” When the lead
detective asked the defendant to identify the friend, the defendant
refused to do so, presumptively stating, “It was twenty years ago.
I’m sure they’re not doing it any more.”
• In the middle of the defendant’s evolving and evasive answers about
whether he had ever seen child pornography, the lead detective
expressly told the defendant, “the image that you sent to someone
was an infant being penetrated by an adult male” and she wanted
“to make sure there is, you know, not anymore and you’re not
actually hands on with anybody. It’s just something you’ve looked
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at.” At first, the defendant denied having seen the image, stating,
“No, and like I said, I don’t even know about that. I don’t know
anything about that, but, you know, it’s not my – it’s not interesting
to me at all. It’s not my thing.” But when the second detective began
asking the defendant if “[t]his was something that was done
accidentally and you didn’t realize what you did,” the defendant
interrupted the question to change his answer to acknowledging the
possibility of having seen the image: “Like I said, I don’t know. I
don’t even know anything about that. It could have been, I guess,
but I don’t have any knowledge of that.” (emphasis added).
• At that point, the lead detective asked for the defendant’s consent to
search his phone. The defendant refused. The detectives then
warned the defendant that because the image had been uploaded
from his residence, “then that’s something we are going to have to
talk with [your wife] about,” “you are on our radar,” and “if we are
alerted again that you were possessing, transmitting child
pornography, you’re going to have a major issue.” After the first and
second statements, the defendant merely responded “okay,” but
ultimately responded to the third statement, “Yeah, well, it shouldn’t
happen, but thank you.”
After the interview—which the detectives concluded by telling the
defendant that they were going to speak with his wife—his “oddly calm”
behavior rapidly changed:
• When the detectives returned to the defendant’s office and told him
that they needed to look at his work computer, he initially refused
to get up from his desk. The defendant’s supervisor had to demand
him to get up from his desk.
• Then, in less than ten minutes, while the defendant was in the break
room, the lead detective eventually noticed “[h]e was shaking. He
was frantically swiping and pressing on [his cell phone’s] screen.”
His demeanor “was the exact opposite [from the interview]. … [H]e
was swiping, deleting, extremely nervous. It wasn’t a normal
appearance.” Although the lead detective could not tell exactly what
the defendant was doing with his cell phone, she suspected that “he
[was] deleting evidence.”
Applying the United States Supreme Court’s standard of review stated
in Texas v. Brown, we conclude the combination of facts available to the
lead detective before, during, and after the interview would “warrant a
[person] of reasonable caution in the belief,” 460 U.S. at 742, that the
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defendant’s cell phone contained evidence of child pornography images.
While we cannot say that such a belief would have been “correct or more
likely true than false,” we can apply our common sense to say that the
information which the lead detective had gathered and observed
reasonably would have provided her with a “practical, nontechnical
probability” that incriminating evidence would be found on the defendant’s
cell phone. See id.The circuit court’s error in finding a lack of probable cause appears to
have occurred when its reasoning deviated from the Supreme Court’s
articulated standard of review. Rather than focusing on the probability of
the lead detective’s belief that the defendant was frantically deleting
evidence from his cell phone, the circuit court inadvertently focused on the
lead detective’s inability to prove the certainty of her belief. As the circuit
court reasoned, “There are a lot of reasons why somebody could be using
their phone. [The lead detective] can’t say what [the defendant] was doing.
She can’t say he was deleting anything.” (emphasis added). The circuit
court’s focus on certainty rather than probability ran counter to the
Supreme Court’s process for determining probable cause, especially given
the lead detective’s specialized training and experience in cyber-
pornography crimes against children. See id. (“The process does not deal
with hard certainties, but with probabilities … as understood by those
versed in the field of law enforcement.”).
Exigent Circumstances
“The test of whether exigent circumstances exist is an objective one.”
United States v. Tobin, 923 F.2d 1506, 1510 (11th Cir. 1991). “Whether
exigent circumstances exist in a given case is a fact-specific inquiry that
depends on the totality of the circumstances.” United States v. Arellano-
Ochoa, 461 F.3d 1142, 1145 (9th Cir. 2006) (citing United States v. Banks,
540 U.S. 31, 36 (2003)). As the United States Supreme Court stated in
Banks:
[W]e have treated reasonableness as a function of the facts
of cases so various that no template is likely to produce
sounder results than examining the totality of circumstances
in a given case; it is too hard to invent categories without
giving short shrift to details that turn out to be important in a
given instance, and without inflating marginal ones. See, e.g.,
Ohio v. Robinette, 519 U.S. 33, 39 … (1996) (“[W]e have
consistently eschewed bright-line rules, instead emphasizing
the fact-specific nature of the reasonableness inquiry”); Ker v.
California, 374 U.S. 23, 33 … (1963) (reasonableness not
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susceptible to Procrustean application); Go-Bart Importing Co.
v. United States, 282 U.S. 344, 357 … (1931) (no formula for
determining reasonableness; each case on its own facts and
circumstances).
540 U.S. at 36.
One type of exigent circumstance is the imminent destruction of
evidence, to which we also have applied an objective test:
The government must show more than a subjective fear of
imminent destruction of evidence; the fear must be objectively
reasonable. In determining whether the agents reasonably
feared imminent destruction of the evidence, the appropriate
inquiry is whether the facts, as they appeared at the moment
of entry, would lead a reasonable, experienced agent to believe
that evidence might be destroyed before a warrant could be
secured. In other words, “were the police unreasonable in not
getting a warrant in the circumstances that confronted them?”
Gilbert v. State, 789 So. 2d 426, 429 (Fla. 4th DCA 2001) (quoting United
States v. Rivera, 825 F.2d 152, 156 (7th Cir. 1987)).
Application of the exigent circumstances exception is “particularly
compelling” in cases involving electronic files, which can easily and quickly
be destroyed. Babcock, 924 F.3d at 1194; cf. United States v. Bradley, 488
Fed. Appx. 99, 103 (6th Cir. 2012) (“Courts have doubted the wisdom of
leaving the owner of [an] easily-destructible [electronic device containing
incriminating material] in possession of that [electronic device] once the
owner is aware that law-enforcement agents are seeking a search
warrant.”).
Applying the above standards to the instant case, we conclude the facts
would have led a reasonable, experienced agent—here, the lead detective—
to believe that the defendant might be destroying incriminating evidence
on his cell phone before a search warrant could be secured. After the
defendant had been (1) confronted by the detectives with the evidence
against him, (2) warned “that’s something we are going to have to talk with
[your wife] about” and “you are on our radar,” and (3) ordered from his
desk while the detectives searched his work computer, the defendant went
into a nearby break room, where the lead detective saw him “shaking,”
“frantically swiping and pressing on [his cell phone’s] screen,” exhibiting
demeanor which “was the exact opposite [from the interview],” and
“swiping, deleting, extremely nervous,” in what “wasn’t a normal
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appearance.” Faced with those circumstances, the lead detective was not
unreasonable in seizing the defendant’s cell phone until she could secure
a search warrant for the cell phone.
In reaching our decision, we reject the defendant’s argument that the
detectives’ actions created the exigent circumstances leading to the
warrantless seizure of his cell phone. Neither the detectives’ interview of
the defendant, nor their on-site search of his work computer with his
supervisor’s consent, constituted “engaging or threatening to engage in
conduct that violates the Fourth Amendment.” Kentucky v. King, 563 U.S.
452, 462 (2011). Instead, as the state’s initial brief submits:
Based on [the defendant’s] behavior in conjunction with
the information [which the lead detective] gathered … up to
the point of seizure as well as her experience with how quickly
the evidence could be deleted, [the lead detective] objectively
believed and feared that [the defendant] was deleting or
destroying evidence of child pornography at the … time[] that
law enforcement began forensically searching [the
defendant’s] work computer (which ultimately revealed
evidence of age-difficult … pornography). Therefore, seizing
[the defendant’s] cell phone under these exigent
circumstances was justified.
Conclusion
In sum, we conclude the lead detective lawfully seized the defendant’s
cell phone without a warrant, based upon probable cause and exigent
circumstances. We therefore reverse the circuit court’s order granting the
defendant’s motion to suppress, and remand for the circuit court to enter
an order denying the defendant’s motion to suppress.
As a result of our conclusion above, we do not reach the state’s
alternative arguments that the search warrant rendered the evidence
admissible under the independent source doctrine, and that the circuit
court erroneously conducted a de novo review of the duty judge’s
determination that the search warrant affidavit contained sufficient
probable cause. We also conclude that the defendant’s alternative
arguments seeking affirmance lack merit, without further discussion.
Reversed and remanded for proceedings consistent with this opinion.
MAY and FORST, JJ., concur.
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* * *
Not final until disposition of timely filed motion for rehearing.
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