CA6 sanctions police created exigency to seize computer in CP case

The Sixth Circuit sustains a police created exigency, without admitting it, by condoning the police telling the defendant they know he has child pornography on his computer so they could seize it to protect it from destruction. United States v. Bradley, 488 Fed. Appx. 99 (6th Cir. 2012):

We cannot say that the district court’s determination that Bell reasonably feared Bradley would attempt to destroy the laptop or evidence on the laptop was clearly erroneous. Courts have doubted the wisdom of leaving the owner of easily-destructible contraband in possession of that contraband once the owner is aware that law-enforcement agents are seeking a search warrant. See Illinois v. McArthur, 531 U.S. 326, 332, 121 S. Ct. 946, 148 L. Ed. 2d 838 (2001) (finding it reasonable for law enforcement to conclude that defendant suspecting an imminent search “would, if given the chance,” get rid of contraband quickly). Had Bell left the laptop in Bradley’s possession, Bradley could have attempted to destroy any computer files or the laptop itself. We agree with the district court below that it is objectively reasonable to seize a container an officer has probable cause to believe contains evidence of a crime, rather than leave it unguarded in the hands of a suspect who knows that it will be searched.

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Finally, because Bell seized Bradley’s computer but did not search it until he had acquired a search warrant, the initial seizure affected only Bradley’s possessory interest in the laptop and did not implicate a privacy interest. See Segura v. United States, 468 U.S. 796, 810, 104 S. Ct. 3380, 82 L. Ed. 2d 599 (1984). Courts have considered this lesser interference as a factor when upholding warrantless seizures. See Mitchell, 565 F.3d at 1350 (finding that seizure of computer “to ensure that the hard drive was not tampered with before a warrant was obtained” was an interference with defendant’s possessory interest); United States v. Licata, 761 F.2d 537, 541 (9th Cir. 1985) (“A seizure of a closed container affects only the owner’s possessory interests and not the privacy interests vested in the contents.”) (citation omitted). In addition, the district court correctly noted that, unlike luggage-seizure cases, no liberty interest was impinged by the seizure of Bradley’s laptop. See United States v. Martin, 157 F.3d 46, 54 (2d Cir. 1998) (noting that seizure was more reasonable when “not a case where seizure of property would effectively restrain the liberty interests of the person from whom the property was seized, as is the case where officers seize a traveler’s luggage and thereby cause disruption of his travel plans”) (internal quotations and citation omitted); United States v. LaFrance, 879 F.2d 1, 8 (1st Cir. 1989) (in discussing Place factors, noting that “common sense insists that they be used more circumspectly, and weighed somewhat differently, where no liberty interest looms”). Thus, although the Fourth Amendment protects individuals from unreasonable interference with their possessory interests, in deciding what is reasonable, interference with possessory interests may well be less significant that interference with other rights.