E.D.Mo.: Even though threatened with obstruction if he didn’t, defendant consented to seizure of cell phone

The officer had probable cause to believe defendant took a video of a young girl in his house in the bathtub. Defendant was persuaded to turn over the phone and it was consensual. He was told that he might be subject to prosecution for obstruction if he didn’t, but it was still consensual. United States v. Evans, 2024 U.S. Dist. LEXIS 233325 (E.D. Mo. Dec. 27, 2024):

The Court also agrees with the reasoning in the R&R that Defendant voluntarily consented to turning over his cell phone. Based on all of the circumstances, the Court finds that Defendant’s will was not overborne. See United States v. Williams, 760 F.3d 811, 815 (8th Cir. 2014); United States v. LeBrun, 363 F.3d 715, 725 (8th Cir. 2004) (en banc) (“Whatever the facts of an individual case, our polestar always must be to determine whether or not the authorities overbore the defendant’s will and critically impaired his capacity for self-determination.”). Defendant appeared to be a person of normal intelligence with some degree of understanding as to his rights under the Fourth Amendment, did not appear to be under the influence, and appeared to have a clear understanding of what the officer was saying to him. The conversation occurred on Defendant’s porch, early in the evening, was cordial and respectful at all times, and lasted less than two minutes, and Defendant was advised that he would not be arrested. Defendant thereafter went into his home, unaccompanied, for several minutes and therefore had time to reflect and reconsider, or even call an attorney if he wished, before providing the cell phone.

Defendant objects that the officer misrepresented the facts and improperly coerced Defendant by stating Defendant could be arrested for obstruction of justice. This poses a closer question. Based upon a review of the video and Defendant’s immediate oppositional response, it was somewhat reasonable for the officer to believe that Defendant intended to attempt to prevent him from obtaining the cell phone. If that was the case, the officer could arrest Defendant for obstruction. As the officer also acknowledged at the hearing, if Defendant simply refused, he would likely detain Defendant while he sought a search warrant, which would be permitted under the Fourth Amendment. … Given that Officer Smith was the only one on duty at the small police department, that detention likely would have lasted several hours.

But assuming the officer misstated the law, under the totality of the circumstances, and based on a careful review of the video of their interaction, the Court agrees with the finding in the R&R that Defendant’s will was not overborne and that his consent to turn over the cell phone was voluntary. As set forth above, the statement was limited and stated calmly; Officer Smith and Defendant thereafter engaged in calm conversation in which the officer explained he was simply trying to safeguard the evidence and that any search of the phone could await a search warrant; and Defendant was permitted to enter his home, unaccompanied, after which he returned with his cell phone. …

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