IGBOJI, JEREL CHINEDU v. the State of Texas

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0936-20
JEREL CHINEDU IGBOJI, Appellant
v.
THE STATE OF TEXAS
ON STATE'S PETITION FOR DISCRETIONARY REVIEW
FROM THE FOURTEENTH COURT OF APPEALS
FORT BEND COUNTY
NEWELL, J., delivered the opinion of the Court in which HERVEY,
RICHARDSON, WALKER, SLAUGHTER and MCCLURE, JJ., joined. YEARY, J., filed
a dissenting opinion in which KELLER, P.J., and KEEL, J., joined.
OPINION
For exigent circumstances to justify a warrantless seizure of
personal property, such as a cell phone, the record must show that law
enforcement officers reasonably believed that evidence would be
Igboji — 2
imminently destroyed if they waited to obtain a warrant to seize the
property. Affirmative conduct by the suspect is not required, but it is
one circumstance in the totality-of-the-circumstances test that may
show that the potential destruction of evidence was imminent.
However, the absence of such affirmative conduct does not foreclose an
exigent-circumstances determination. We agree with the State that the
court of appeals erred to hold that it did. We reverse the court of
appeals and remand for a proper exigent-circumstances analysis.
Background
Appellant worked at a Kentucky Fried Chicken in Stafford, Texas.
Shortly after the restaurant closed for the night on December 10, 2015,
two armed men entered the restaurant through an unsecured back door.
The men forced Appellant and his coworkers into the freezer while they
took the money from the cash registers. After taking the money, the
men fled, and the manager triggered the security alarm. Officers with
the Stafford Police Department responded to the restaurant and began
investigating the robbery that night.
The Investigation
After responding to the restaurant, officers interviewed the
employees that were present during the robbery. Through those
interviews, officers learned that the robbers had entered through the
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back door, which Appellant had left unsecured when he took the trash
out that night. Appellant cooperated with the investigation and told
officers that he was asked to take the trash out by the manager, Tammi
Ball. When officers spoke to Ball, however, she told them that Appellant
had offered to take the trash out, which she found to be suspicious
because, according to her, Appellant usually avoided work. Ball also
said that Appellant took the trash out through the restaurant’s back
door, which was against the restaurant’s policy.
The next morning, the Stafford Police Department assigned
Detective Michael Ramirez to investigate the robbery. Detective
Ramirez spoke with some of the restaurant employees. One of the
employees told Detective Ramirez that Appellant had posted several
videos that captured the initial police response to the robbery on
Snapchat, a social media platform. The employee showed Detective
Ramirez the videos on her phone, but Detective Ramirez did not obtain
a copy or recording of the videos from the employee. He did not contact
Appellant about the Snapchat video or otherwise attempt to secure the
video that day.
Instead, Detective Ramirez called Appellant three days later and
asked him to provide a formal statement. Appellant agreed to meet
with Detective Ramirez, and Detective Ramirez drove Appellant to the
Igboji — 4
Stafford Police Department. Once there, Detective Ramirez asked
Appellant to show him the videos from Snapchat. Appellant explained
that Snapchat automatically deleted the videos after 24 hours and told
Detective Ramirez that he did not have any other videos relevant to the
investigation.
Detective Ramirez told Appellant that he only had two options:
either (1) give consent to search the phone, in which case Appellant
would have the phone back quickly, or (2) Detective Ramirez would have
to seize the phone and obtain a search warrant, which would take much
longer. Appellant responded that Detective Ramirez should get a search
warrant, at which point Detective Ramirez seized Appellant’s phone.
Detective Ramirez again asked Appellant for consent to search
Appellant’s phone and told him that he had never had a search warrant
denied in his decade of experience as a police officer. Appellant again
declined to give Detective Ramirez consent to search the phone.
Detective Ramirez then seized Appellant’s phone but did not search its
contents.
Two days after the warrantless seizure of the phone, Detective
Ramirez applied for a search warrant. The affidavit recited that
Appellant told Detective Ramirez that Snapchat deleted any videos after
24 hours and that he did not have any videos that could help the
Igboji — 5
investigation, which Detective Ramirez “refused to believe.” The
affidavit also recited that Detective Ramirez, being a forensic cell phone
examiner himself, knew that content deleted from phones could
sometimes be recovered. Similarly, the affidavit also later stated that
cell phones save and delete information on both the internal memory
system and the SIM card, so even though an item may have been
deleted, it could still be possible to recover the deleted files. Detective
Ramirez recited in the affidavit that Appellant’s motives for recording
the initial investigation were unknown. Moreover, Detective Ramirez
sought to discover whether Appellant might have “recorded the actual
robbery as he has shown an inclination to record with his cell phone
despite the propriety of the activity.” Finally, Detective Ramirez also
relied in the affidavit upon Appellant’s refusal to consent to the search
of the phone as support for the search warrant.
The warrant issued the same day as the application. The Warrant
Return and Inventory indicated that the warrant was not executed,
however, until two days later, which was four days after the phone had
been seized. The search of the phone pursuant to the search warrant
revealed text messages that incriminated Appellant. It is unclear
whether the Snapchat video was obtained during the search.
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Police arrested Appellant on January 10, 2016. The State indicted
Appellant for aggravated robbery. 1 Appellant pleaded not guilty and
elected to proceed with a jury trial.
The Trial & Suppression Hearing
Appellant filed a pretrial motion to suppress. In his motion,
Appellant argued that Detective Ramirez’s warrantless seizure of his cell
phone violated the Fourth Amendment and asked the trial court to
suppress all evidence obtained from the phone. The trial court held a
hearing on Appellant’s motion to suppress after jury selection.
Detective Ramirez testified at the suppression hearing. His
testimony largely echoed the information in his affidavit. When asked
how urgent he felt it was to obtain Appellant’s phone, Detective Ramirez
responded, “The device, not very urgent at all. I needed a copy of the
videos and any other evidence.” He conceded that he did not obtain a
copy of the video from the employee who showed it to him. When asked
why, Detective Ramirez explained that the employee did not want to
copy the video because she was concerned that doing so would notify
Appellant. Detective Ramirez acknowledged that, although he felt
1
See TEX. PENAL CODE § 29.03.
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obtaining a copy of the videos was “pretty urgent at that time,” he did
not seize the employee’s phone.
On redirect, Appellant’s counsel asked what prevented Detective
Ramirez from obtaining a search warrant for Appellant’s phone earlier.
Detective Ramirez responded, “[h]onestly, I was hoping with him being
a witness, he would just consent and it wouldn't have been a big deal.”
He also acknowledged that, before seizing the phone, he did not view
Appellant as a suspect. When asked whether he expected the Snapchat
videos to be inculpatory or exculpatory, Detective Ramirez stated, “I
mean, I just believed that they were -- they were videos that could have
contained evidence to my investigation. I really didn't know what all was
on there. I saw one short clip. I didn't know what else was there. I mean,
I really -- I don't know how to answer that, to be honest with you.”
Detective Ramirez ultimately agreed that he could have obtained the
warrant “a lot sooner” than he did.
The trial court denied Appellant’s motion to suppress. The State
offered—and the trial court admitted into evidence during the
guilt/innocence phase of the trial—text messages obtained from the
search of Appellant’s phone. The State did not offer the Snapchat video
into evidence, however. The jury found Appellant guilty of aggravated
robbery and sentenced him to 17 years imprisonment.
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The Appeal
On appeal, Appellant’s sole argument was that the trial court erred
by denying his motion to suppress the evidence obtained following the
warrantless seizure of his cell phone. 2 The court of appeals agreed,
concluding that Detective Ramirez's warrantless seizure of Appellant's
phone did not fall within the exigent-circumstances exception. 3 In
reaching this conclusion, the court of appeals cited our opinion in
Turrubiate v. State for the proposition that the exigent-circumstances
exception to the warrant requirement requires “proof of imminent
destruction based on affirmative conduct.” 4 Though some facts
suggested that potential evidence could have been deleted
automatically by Snapchat, the court of appeals found that the record
lacked “any evidence showing or permitting an inference that Appellant
was taking affirmative steps to destroy evidence on his phone.” 5 Finding
that the erroneous admission of the evidence seized from Appellant’s
2
Igboji v. State, 607 S.W.3d 157, 160–61 (Tex. App.—Houston [14th Dist.] 2020).
3
Id. at 170.
4
Id. at 169 (citing Turrubiate v. State, 399 S.W.3d 147, 153–55 (Tex. Crim. App. 2013)).
5
Id.Igboji — 9
cell phone was not harmless, the court of appeals reversed and
remanded for a new trial. 6
In a dissenting opinion, Justice Christopher opined that the
majority was wrong to apply the affirmative conduct requirement to a
case involving the seizure of personal property. 7 She noted that
Turrubiate dealt with the warrantless search of a house, which
implicated a protected privacy interest beyond the possessory interest
a person has in his or her personal property. 8 Instead, Justice
Christopher opined the warrantless seizure of the cellphone was justified
under the exigent-circumstances exception despite the lack of any
affirmative conduct on the part of Appellant suggesting the imminent
destruction of evidence. 9
The State Prosecuting Attorney’s Office filed a petition for
discretionary review, asking this Court to review the court of appeals’
decision. Specifically, we granted review to consider the following
questions:
6
Id. at 172.
7
Id.8
Id. at 172–73.
9
Id. at 174.
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(1) Do exigent circumstances to seize a cellular phone for
fear of unintentional loss of evidence require that law
enforcement act at the earliest possible opportunity?
(2) Do exigent circumstances to seize a cellular phone for
fear of intentional destruction of evidence require
“affirmative conduct” by the suspect?
(3) Does the exigent circumstances exception require proof
that the evidence was unavailable from other sources?
However, the court of appeals’ decision rests on the proposition that the
seizure at issue was unjustified because there was no evidence of
“affirmative conduct” on the part of Appellant. To the extent that the
court of appeals touched on the availability of the same information from
other sources and the lack of alacrity with which Detective Ramirez
sought the evidence, those were observations about the facts of the
case and not part of the legal decision. Consequently, we dismiss issues
one and three as improvidently granted and focus solely on the State’s
second issue. The question before us is whether the court of appeals
failed to apply the proper standard for determining whether exigent
circumstances existed by requiring a showing of affirmative conduct on
the part of a suspect suggesting the destruction of evidence is imminent.
Standard of Review
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We review a trial court's denial of a motion to suppress under a
bifurcated standard of review. 10 We review a trial court's determination
of whether a specific search or seizure was reasonable under a de novo
standard, 11 but we give trial courts almost complete deference in
determining historical facts that depend on credibility and demeanor. 12
Because the trial court did not make explicit findings of fact in this case,
we review the evidence in a light most favorable to the trial court's ruling
and assume that the trial court made implicit findings of fact supported
by the record. 13 Generally, our review is limited to the record at the
time of the suppression hearing. 14
The Fourth Amendment
The Fourth Amendment guarantees “[t]he right of the people to
be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures[.]” 15 Generally, the Fourth
Amendment requires that searches and seizures be accomplished
10
Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005).
11
Kothe v. State, 152 S.W.3d 54, 62–63 (Tex. Crim. App. 2004).
12
Ford, 158 S.W.3d at 493.
13
Id.14
Turrubiate v. State, 399 S.W.3d 147, 151–52 (Tex. Crim. App. 2013) (citing O’Hara v.
State, 27 S.W.3d 548, 551 (Tex. Crim. App. 2000)).
15
U.S. CONST. amend. IV.
Igboji — 12
pursuant to a judicial warrant issued upon probable cause and
particularly describing the items to be searched or seized. 16 A
warrantless search or seizure is per se unreasonable under the Fourth
Amendment unless it falls within a recognized exception to the warrant
requirement. 17
One such exception is based upon the existence of exigent
circumstances. The exigent-circumstances exception applies when “the
exigencies of the situation make the needs of law enforcement so
compelling that [a] warrantless search is objectively reasonable under
the Fourth Amendment.” 18 The exception enables law enforcement
officers to handle emergencies—situations presenting a “compelling
need for official action and no time to secure a warrant.” 19 Under this
exception, law enforcement may be justified in conducting a warrantless
search “to prevent the imminent destruction of evidence.” 20 Whether
law enforcement faced an emergency that justified acting without a
16
United States v. Place, 462 U.S. 696, 701 (1983).
17
Missouri v. McNeely, 569 U.S. 141, 148 (2013); Place, 462 U.S. at 701; Kothe, 152 S.W.3d
at 59 n.10 (“warrantless searches and seizures are presumed to be unreasonable”).
18
Kentucky v. King, 563 U.S. 452, 460 (2011).
19
Riley v. California, 573 U.S. 373, 402 (2014); McNeely, 569 U.S. at 149.
20
McNeely, 569 U.S. at 149.
Igboji — 13
warrant calls for a case-by-case determination based on the totality of
circumstances existing at the time of the search or seizure. 21
Because a warrantless search or seizure is per se unreasonable
under the Fourth Amendment, once a defendant has shown that a
warrantless search or seizure has occurred, the burden shifts to the
State to prove that an exception to the warrant requirement applies. 22
To validate a warrantless search based on exigent circumstances, the
State must satisfy a two-step process. 23 First, there must be probable
cause to enter or search a specific location. 24 In the context of
warrantless searches, probable cause exists “when reasonably
trustworthy facts and circumstances within the knowledge of the officer
on the scene would lead a man of reasonable prudence to believe that
the instrumentality . . . or evidence of a crime will be found.” 25
Second, an exigency that requires an immediate action on the part
of law enforcement must exist. 26 We have identified three categories of
21
Cole v. State, 490 S.W.3d 918 (Tex. Crim. App. 2016); see also Lange v. California, 141
S.Ct. 2011, 2018 (2021).
22
State v. Garcia, 569 S.W.3d 142, 148 (Tex. Crim. App. 2018); see also 43 George E. Dix &
John M. Schmolesky, Texas Practice—Criminal Practice and Procedure § 18:20 (3d ed. 2011).
23
Parker v. State, 206 S.W.3d 593, 597 (Tex. Crim. App. 2006).
24
Id.25
Estrada v. State, 154 S.W.3d 604, 609 (Tex. Crim. App. 2005).
26
Parker, 206 S.W.3d at 597.
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exigent circumstances that justify a warrantless intrusion by police
officers: (1) providing aid or assistance to persons whom law
enforcement reasonably believes are in need of assistance; (2)
protecting police officers from persons whom they reasonably believe to
be present, armed, and dangerous; and (3) preventing the destruction
of evidence or contraband. 27 In this case, we are only concerned with
the third circumstance.
Analysis
As discussed above, a warrantless seizure of personal property is
per se unreasonable. 28 This principle applies even though a Fourth
Amendment challenge may ultimately focus on the subsequent search
of a container rather than its initial seizure. 29 When law enforcement
has probable cause to believe that a container holds contraband or
evidence of a crime, but has not secured a warrant, law enforcement
may seize the property, pending the issuance of the warrant to examine
the contents, if the exigencies of the circumstances demand it or some
27
McNairy v. State, 835 S.W.2d 101, 107 (Tex. Crim. App. 1991), abrogated in part on other
grounds by Turrubiate, 399 S.W.3d at 153.
28
Place, 462 U.S. at 701.
29
Id. at 700-01.
Igboji — 15
other recognized exception to the warrant requirement is present. 30
Relying in part upon our holding in Turrubiate v. State, the court of
appeals set out the legal standard, discussed above, for evaluating
whether exigent circumstances existed to justify the warrantless seizure
of Appellant’s phone to avoid the imminent destruction of evidence. 31
However, the court read too much into our holding in Turrubiate
v. State. Relying on Turrubiate, the court of appeals required a showing
of some affirmative conduct by Appellant indicating a danger of
imminent destruction of the Snapchat videos. 32 Finding that the record
did not “contain any evidence showing that Appellant, by his affirmative
conduct, was actively deleting evidence on his phone[,]” the court of
appeals concluded that the warrantless seizure did not fall within the
exigent-circumstances exception. 33 However, we agree with the dissent
below that, in the context of a warrantless search or seizure pursuant
30
Id. at 701; see also Riley, 573 U.S. at 401-02 (2014) (noting that the exigent circumstances
exception may apply to cell phones and citing Kentucky v. King, 563 U.S. at 469, which
involved a search of a residence, for the application of that exception to cell phone searches).
31
Igboji, 607 S.W.3d at 167-68 (examining Turrubiate, 399 S.W.3d at 151-52).
32
Igboji, 607 S.W.3d at 169 (citing Turrubiate, 399 S.W.3d at 153–55).
33
Id. at 170.
Igboji — 16
to exigent circumstances, there is no requirement that the record show
affirmative conduct on the part of the suspect. 34
In this case, the court of appeals, perhaps understandably, placed
too much emphasis on our use of the phrase “affirmative conduct” in
Turrubiate. Our decision in Turrubiate relied upon the Supreme Court
holding in Kentucky v. King. 35 As we explained, the Supreme Court in
King rejected a presumption that those in possession of narcotics would
destroy evidence upon learning of a police presence. 36 In saying that
Kentucky v. King required “proof of imminent destruction based on
affirmative conduct”, our point in Turrubiate was that there was no
presumption that evidence would be imminently destroyed simply
because a suspect knew that law enforcement was nearby or had
contacted the suspect. 37 And based on King, we rejected the State’s
argument that law enforcement could infer that the destruction of
evidence was imminent simply because the suspect knew that police
34
See id. at 172–73 (Christopher, J., dissenting).
35
Turrubiate, 399 S.W.3d at 152 (discussing the holding of King, 563 U.S. at 462-63).
36
Turrubiate, 399 S.W.3d at 152 (citing King, 563 U.S. at 469-70).
37
See id. at 153; see also King, 563 U.S. at 469-70 (noting that a suspect may simply decline
to answer the door when police knock on it, but if a suspect attempts to destroy evidence
that may change the calculus).
Igboji — 17
were present. 38 We explained that such an approach “would abandon
the requirement that the record affirmatively show facts that reasonably
indicate exigent circumstances that a defendant was attempting to, or
would attempt to, destroy evidence, a requirement vital to the Supreme
Court’s holding in King.” 39 And, as we reiterated later, “[w]e require
some evidence of exigency beyond mere knowledge of police presence
and an odor of illegal narcotics.” 40 But the critical thing the record must
show is facts suggesting an imminent destruction of evidence, 41 not
necessarily affirmative conduct on the part of the criminal suspect.
Put another way, affirmative conduct by a suspect suggesting that
he or she will soon destroy evidence or is in the process of destroying
evidence—such as furtive movements—is one way of showing that an
exigency—the imminent destruction of evidence—exists. 42 But
affirmative conduct is not the only way that a record may affirmatively
38
Id. at 152.
39
Id.
40
Id. at 154.
41
Precedent consistently affirms that the potential destruction of evidence must be
“imminent.” See, e.g., Brigham City, Utah v. Stuart, 547 U.S. 398, 403 (2006); Riley, 573
U.S. at 402; Birchfield v. North Dakota, 579 U.S. 438, 455 (2016); Lange, 141 S.Ct. at 2018;
Cole, 490 S.W.3d at 923.
42
See, e.g., Turrubiate, 399 S.W.3d at 154.
Igboji — 18
show that evidence was in danger of being imminently destroyed. 43
Given the fact-bound nature of the inquiry, 44 we decline to hold that
affirmative conduct by a suspect is always required to show that the
destruction of evidence was imminent. To the extent that our language
in our holding in Turrubiate requires otherwise, we explicitly disavow it
as an unwarranted extension of King.
The court of appeals also appears to have announced a categorial
rule when it rejected the dissent’s argument that police may reasonably
seize personal property in order to secure a warrant when a criminal
suspect realizes that police are on his trail. 45 According to the court of
appeals, “Such a test would arm law enforcement with a weapon to
defeat the Fourth Amendment as a matter of law, thereby rendering it
effectively null with respect to protecting the People’s property from
unreasonable seizure.” 46 At first blush, relying upon the mere fact that
a suspect knows police are “on his trail” to establish exigency would
seem to authorize the type of impermissible presumption that a suspect
43
See, e.g., McNeely, 569 U.S. at 153 (referring to “circumstances in which the suspect has
control over easily disposable evidence” as a “now or never” situation giving rise to an
exigency) (citing Georgia v. Randolph, 547 U.S. 103, 116, n. 6 (2006)).
44
See, e.g., Lange, 141 S.Ct. at 2018.
45
Igboji, 607 S.W.3d at 170.
46
Id.
Igboji — 19
will attempt to destroy evidence merely because he possesses it and is
aware of police presence. 47 The Supreme Court appears to have
rejected this approach in King and noted that a suspect could choose to
stand on his constitutional rights rather than acquiesce to a request from
law enforcement. 48
However, King and Turrubiate both dealt with situations involving
warrantless entry into a person’s home in order to conduct a warrantless
search rather than the warrantless seizure of personal property in order
to secure a search warrant. As noted in the dissent below, there are
differences between searches and seizures. 49 In Segura v. United
States, the United States Supreme Court held that a warrantless seizure
to maintain the status quo during the time necessary to secure a warrant
can be a reasonable warrantless seizure even if a warrantless search
47
Turrubiate, 399 S.W.3d at 152.
48
King, 563 U.S. at 470 (“Occupants who choose not to stand on their constitutional rights
but instead elect to attempt to destroy evidence have only themselves to blame for the
warrantless exigent circumstances search that may ensue.”). At least arguably, it also raises
the question of whether law enforcement created its own exigency through actual or
threatened violation of the Fourth Amendment. See King, 563 U.S. at 469 (“For these
reasons, we conclude that the exigent circumstances rule applies when the police do not gain
entry to premises by means of an actual or threatened violation of the Fourth Amendment.”).
However, it is an open question, left unconsidered by the court of appeals, whether this
limitation on the exigent-circumstances exception applies to seizures of personal property in
addition to searches of a premises.
49
Igboji, 607 S.W.3d at 172 (Christopher, J. dissenting).
Igboji — 20
would have been impermissible. 50 And in United States v. Place, the
Supreme Court recognized that law enforcement could essentially
“detain” personal property based upon less than probable cause so long
as the seizure was not unreasonably prolonged. 51 Rather than
announcing a categorical rule that police may never seize personal
property simply because a criminal suspect knows he is a suspect, the
court of appeals should have analyzed under the totality of the
circumstances whether law enforcement’s seizure of Appellant’s phone
was the type of reasonable seizure necessary to maintain the status quo
to provide law enforcement with time to secure a search warrant. 52
Conclusion
For exigent circumstances to justify a warrantless seizure of
personal property, such as a cell phone, the record must show that law
enforcement officers reasonably believed that evidence would be
imminently destroyed if they waited to obtain a warrant to seize the
50
Segura v. United States, 468 U.S. 796, 806 (1984).
51
Place, 462 U.S. at 708; but see Florida v. Bostick, 501 U.S. 429, 437 (1991) (“We have
consistently held that a refusal to cooperate, without more, does not furnish the minimal level
of objective justification needed for a detention or seizure.”); Wade v. State, 422 S.W.3d 661,
668 (Tex. Crim. App. 2013) (“A person’s refusal to cooperate with police during a consensual
encounter cannot, by itself, provide the basis for a detention.”).
52
See, e.g., Segura, 468 U.S. at 806; Place, 462 U.S. at 708 (recognizing that police may
seize personal property on reasonable suspicion in order to obtain a warrant, but they may
not unduly prolong the seizure).
Igboji — 21
property. Affirmative conduct by the suspect is not required, but it is
one way the record may show that the potential destruction was
imminent. We remand for the court of appeals to reconsider the
arguments of the parties regarding whether exigent circumstances
existed to justify the warrantless seizure of Appellant’s cell phone in this
case and whether the officer’s conduct in seizing the property to obtain
a warrant was reasonable under those circumstances. 53
Delivered: March 8, 2023
Publish
53
See, e.g., McClintock v. State, 444 S.W.3d 15, 20-21 (Tex. Crim. App. 2014) (“But the
issue of the proper application of the exclusionary rule to the facts of this case is not remotely
clear cut, and we believe that the proper disposition here should be to remand for the court
of appeals to address it in the first instances. The parties make a number of substantial
arguments in support of their respective positions in this Court, and our resolution of this
issue (if any should even be necessary after a remand) would benefit from a carefully wrought
decision from the court of appeals.”).