1. “Do exigent circumstances to seize a cellular phone for fear of unintentional loss of evidence require that law enforcement act at the earliest possible opportunity?”
2. “Do exigent circumstances to seize a cellular phone for fear of intentional destruction of evidence require ‘affirmative conduct’ by the suspect?”
3. “Does the exigent circumstances exception require proof that the evidence was unavailable from other sources?”
Igboji worked at a fast-food restaurant where an aggravated robbery occurred. The next morning, another employee showed a detective a Snapchat video Igboji posted of officers investigating the scene. Other employees seemed suspicious of Igboji. Several days after the robbery, Igboji agreed to meet with the detective at the station. Igboji had been cooperative, but that changed at the meeting. He “started acting strange about the videos,” said the video was “already getting deleted” through Snapchat, and refused the detective access. The detective then seized Igboji’s phone and, after obtaining a warrant, found evidence linking Igboji to the robbery. The trial court denied Igboji’s motion to suppress that evidence.
The court of appeals reversed. It divided its exigent-circumstances analysis in two, one for “natural dissipation” and one for “affirmative conduct,” and found neither applied. First, it said the detective could not rely on dissipation because he waited three days to seize the phone. Second, Igboji was not taking any steps to destroy evidence on his phone at the time of the seizure.
The State argues that the court of appeals got it wrong on both counts. As that court recognized, the detective believed Igboji was a cooperative witness/victim until just before the seizure, and also believed the video would be available at their meeting. Under the circumstances, waiting to seek consent did not preclude exigency that arose later. Further, seizure of a phone to secure a warrant was suggested in Riley v. California, 573 U.S. 373 (2014), as being preferable to warrantless searches and the loss of evidence. Requiring either seizure at the earliest opportunity or affirmative conduct by a suspect would upset that balance, as would forcing officers to exhaust other potential sources of that evidence before using the exigent-circumstances exception.