MO: Child porn knock-and-talk was not exigency for warrantless seizure

Officers did a child pornography knock-and-talk after associating defendant’s IP address with downloading child porn. Once in the house, defendant admitted he might have child porn on the computer, but he refused to consent. While defendant was out of the room, the officer clicked on the computer to exit the word processing document on the screen. That was a search in itself. Then, there was no exigency for taking the computer without a warrant that the police did not create. State v. Sachs, 372 S.W.3d 56 (Mo. App. 2012):

We begin our analysis by stating the obvious. When Detective Anderson began clicking on icons on Appellant’s computer screen to view different programs that were not openly visible on the computer screen, he was conducting a search. See United States v. Payton, 573 F.3d 859, 863 (9th Cir. 2009) (holding that an officer moving a mouse, deactivating a screen saver, and opening a file on a computer was a search requiring a warrant). For these purposes, using a mouse and/or keyboard to shuffle between files that are not plainly visible on an active computer screen is just as much of a search as opening and looking through Appellant’s filing cabinets or desk drawers. In fact, “the nature of computers makes such searches so intrusive that affidavits seeking warrants for the search of computers often include a limiting search protocol, and judges issuing warrants may place conditions on the manner and extent of such searches to protect privacy and other important constitutional provisions.” Id. at 864. Because “it is important to preserve the option of imposing such conditions when they are deemed warranted by judicial officers authorizing the search of computers,” the generally accepted practice of law enforcement officers is “to stop and seek an explicit warrant when they encounter a computer that they have reasons to believe should be searched.” Id.

Detective Anderson acknowledged that he was looking through the various programs running in the background on the computer in search of evidence. This was, in any sense of the term, a search.

Accordingly, we must next determine whether the trial court could have properly found that a recognized exception to the warrant requirement was applicable in this case. The State contends that the exigent circumstances justified the detective’s actions in accessing the active programs because information in the computer’s RAM (random access memory) would disappear when the officer unplugged the computer to seize it. In other words, the State argues that the “exigent circumstance” of the officer wanting to seize the computer, unplug it, and remove it from the apartment before obtaining a warrant justified his search of the active files on the computer.

“The justification for the exigency exception is time related, i.e., there is a need that will not brook the delay incident to obtaining a warrant.” Cromer, 186 S.W.3d at 344 (internal quotation omitted). “Exigent circumstances exist if the time needed to obtain a warrant would endanger life, allow the suspect to escape, or risk the destruction of evidence.” Id. (internal quotation omitted). “The subjective belief of the officer who conducted the [search] is not determinative. … [W]e look to the circumstances as they would have appeared to a prudent, cautious, and trained officer.” State v. Warren, 304 S.W.3d 796, 801-02 (Mo. App. 2010).

The record in this case simply does not establish any pressing need for the officer to unplug the computer prior to obtaining a warrant. Three officers were present in the apartment and had fully secured the scene. The State failed to prove the existence of exigent circumstances that would preclude an officer from remaining with the computer while a warrant was obtained. The State’s argument in this regard is based entirely upon a presumption of inconvenience for the officers and Appellant’s roommates. Such circumstances are simply not exigent and most certainly do not establish “a need that will not brook the delay incident to obtaining a warrant.” Id. Though Detective Anderson’s subjective belief is not the standard for determining exigent circumstances, if Detective Anderson truly believed that valuable evidence might be lost through the unplugging of the computer, he should have waited until a warrant was obtained and then conducted his search of the files active on the computer.

Exigency like bull in the china shop. Think about it: If the state’s argument was accepted here, there would be no need for search warrants in child pornography or some other types of cases. Just do a knock-and-talk. If the suspect doesn’t consent, search for the stuff anyway because you barged in and alerted him he was a target.