{"id":6463,"date":"2012-06-10T19:34:38","date_gmt":"2011-12-27T08:06:44","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2011-12-27T08:06:44","slug":"en-US","status":"publish","type":"post","link":"https:\/\/fourthamendment.com\/?p=6463","title":{"rendered":"UT: In CP knock and talk, defendant’s saying \u201cmaybe I ought to just destroy my computer\u201d was exigent circumstances to seize his computer"},"content":{"rendered":"

Police did a knock and talk in a child pornography case based on the ICAC finding that child porn had gone to defendant\u2019s IP address. During the interview, defendant refused to consent to a search of the computer. His statement \u201cmaybe I ought to just destroy my computer\u201d was exigent circumstances to seize his computer under Kentucky v. King<\/a>. State v. Maxwell<\/a>, 2011 UT 81, 698 Utah Adv. Rep. 41, 275 P.3d 220 (2011):<\/p>\n

[*P16] This mischaracterizes the State\u2019s evidentiary burden and the nature of reasonable belief under the Fourth Amendment. To prove exigent circumstances, the State need demonstrate only that ICAC agents had a reasonable suspicion that evidence would be destroyed if the agents delayed long enough to obtain a warrant. And the facts necessary to support reasonable suspicion are \u201ccommonsense, nontechnical,\u201d \u201cpractical considerations of everyday life on which reasonable and prudent men\u201d must make decisions. Ornelas v. United States<\/a>, 517 U.S. 690, 695, 116 S. Ct. 1657, 134 L. Ed. 2d 911 (1996) (internal quotation marks omitted). The State\u2019s burden, therefore, is to show that an officer confronted with Maxwell\u2019s statement about destroying his computer might reasonably have believed\u2014based on \u201cpractical considerations of everyday life\u201d\u2014that Maxwell could and would destroy the evidence on his computer.<\/p>\n

. . .<\/p>\n

[*P19] The United States Supreme Court definitively resolved this conflict last term, holding that \u201cwarrantless [action] to prevent the destruction of evidence is reasonable and thus allowed\u201d so long as \u201cthe police did not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment.\u201d King<\/a>, 131 S. Ct. at 1858. The Court in King<\/a> refused to examine officer motive for evidence of bad faith, noting that it has \u201c’repeatedly rejected\u2019 a subjective approach, asking only whether \u2018the circumstances, viewed objectively, justify the action.\u2019\u201d Id. at 1859 (quoting Brigham City v. Stuart<\/a>, 547 U.S. 398, 404, 126 S. Ct. 1943, 164 L. Ed. 2d 650 (2006)). It refused to assess the foreseeability of exigency, \u201creject[ing] the notion that police may seize evidence without a warrant only when they come across the evidence by happenstance.\u201d Id. It also refused to examine the existence of probable cause prior to police action, reiterating that \u201c’officers are under no constitutional duty to call a halt to criminal investigation the moment they have the minimum evidence to establish probable cause.\u2019\u201d Id. at 1860-61 (quoting Hoffa v. United States, 385 U.S. 293, 310, 87 S. Ct. 408, 17 L. Ed. 2d 374 (1966)). Finally, the Court refused to second-guess police investigative tactics, explaining that such an approach \u201cfails to provide clear guidance for law enforcement officers and authorizes courts to make judgments on matters that are the province of those who are responsible for federal and state law enforcement agencies.\u201d Id. at 1861.<\/p><\/blockquote>\n

A knock and talk for child porn? How daring can the police be? Pretty daring since the courts will find a way to bail them out of their folly.<\/p>\n","protected":false},"excerpt":{"rendered":"

b2evALnk.b2WPAutP Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"","ping_status":"pingsdone","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[],"class_list":["post-6463","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/6463","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=6463"}],"version-history":[{"count":0,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/6463\/revisions"}],"wp:attachment":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=6463"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=6463"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=6463"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}