CA4: Once def knew he was target of a child porn investigation, exigency for seizure of cell phones was apparent

In interviewing the defendant about possible possession of child pornography, his answers created exigent circumstances for seizure of his cell phone because he was well aware of what he was accused of and could then destroy evidence. The two day delay in getting a search warrant was reasonable. United States v. Burton, 2018 U.S. App. LEXIS 35555 (4th Cir. Dec. 19, 2018):

We conclude that the warrantless seizure of Burton’s cell phones after the initial interview was justified under the exigent circumstances exception to the warrant requirement. The police had probable cause at the completion of the initial interview to seize Burton’s cell phones, a fact that Burton does not challenge. And based on the circumstances presented here, Officer Myrick had “good reason to fear” that Burton would destroy digital evidence if allowed to depart the police station with the phones. See McArthur, 531 U.S. at 332.

Following the initial interview, Burton was aware that he was the subject of an investigation into his use of cell phones to take up-skirt photos, and also knew that Myrick was skeptical of Burton’s description of the grocery store incident. See Cephas, 254 F.3d at 495 (fact that a suspect is “aware that the police are on [his] trail” supports an exigent circumstances finding (quoting United States v. Turner, 650 F.3d 526, 528 (4th Cir. 1981)). Given the ease with which Burton could have deleted, transferred, or otherwise removed the digital photos from the phones, Myrick reasonably assumed that Burton might destroy any evidence contained on the phones, or the devices themselves. And finally, Myrick made sufficiently “reasonable efforts” to balance law-enforcement needs with Burton’s Fourth Amendment rights. McArthur, 531 U.S. at 332. Myrick conducted a voluntary interview with Burton, did not immediately place Burton under arrest, and waited to seize the phones until after investigating the victim’s allegations and providing Burton with an opportunity to give his version of the events. See generally Kentucky v. King, 563 U.S. 452, 466-67 (2011).