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COA: exigency supported decision to seize cell phone

State v. Jeremy J. Deen, 2020AP1399, 8/24/21, District 3 (not recommended for publication); case activity (including briefs)

Police received a tip that an IP address associated with Deen’s home had uploaded child pornography. They went to the home and Deen let them in. While inside, officers noted Deen was carrying a knife, so they frisked him, which turned up a cell phone. In response to officers’ questions about child porn, Deen made some equivocal statements about whether there might be any on the phone, and the officers took it. The court of appeals holds that the possibility that Deen would hide or destroy the phone or delete the images it might contain supplied sufficient exigent circumstances that the police could seize it without a warrant.

Deen argues there was little reason to believe he’d tamper with any evidence because the police encounter happened about two months after the tip about child porn, and there was no indication that he’d taken any steps to destroy evidence in that time. The court of appeals responds that the changed situation–specifically, the fact that Deen now knew the police suspected him of possessing child porn in electronic form–gave the police reason to think he might now wish to destroy evidence he was previously content to keep. (¶¶17-18).

The court also rejects Deen’s argument that the relevant time to assess exigency is when the police entered his home, not after they’d alerted him to their suspicions. Deen relies on State v. Kiekhefer, 212 Wis. 2d 460, 569 N.W.2d 316 (Ct. App. 1997), but the court of appeals distinguishes that case. In Kiekhefer, entry into a bedroom was the Fourth Amendment search that needed justifying; here the home entry was consensual and it’s the phone seizure that needs to be justified by the exigency exception. (¶¶20-22).

Deen next argues the police’s failure also to seize his laptop shows there was no real exigency; the court says they had reason to think the phone was where the evidence would be, and where it might be destroyed. (¶¶23-25). The court finally rejects Deen’s claim that the officers created any exigency by their own unreasonable conduct, holding that nothing the officers did violated or threatened to violate the Fourth Amendment. (¶¶26-27).



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