United States v. Darrell Mark Babcock (11th Cir. May 2019)
Fourth Amendment – Officers’ warrantless seizure of defendant’s phone for two days, based on evidence it contained evidence of sexual exploitation of a minor, was not a permissible Terry stop due to the seizure’s duration, its degree of intrusion, and the lack of diligence by law enforcement in seeking a warrant, though officers had probable cause to seize and hold the phone based on exigent circumstances indicating the defendant may destroy the evidence.
Sentencing Guidelines – Enhancing the defendant’s base offense level for involving a visual depiction of a sexual act and for committing a pattern of prohibited sexual contact did not constitute impermissible double-counting.
After entering a conditional guilty plea to producing child pornography, Darrell Babcock appealed the district court’s 324-month sentence and its denial of his motion to suppress evidence seized from his cell phone.
Police officers responded to a domestic disturbance call at Babcock’s residence after a caller reported that a female had been heard yelling, “Stop, stop, stop!” Babcock came to the door and informed officers that no one else was inside but was immediately followed by a 16-year-old female who had blood on her left thigh. Babcock showed the officers a video on his phone of the girl holding a knife to her own throat and saying she wanted to die. Babcock and the female were interviewed and gave inconsistent accounts for how she got to Babcock’s residence. Babcock stated he did not know her age and that she had arrived at his home the night before—she stated that they had gone to a Halloween party together and that she had done drugs.
With Babcock’s permission, the officers searched Babcock’s residence and discovered blood on the bedsheets and prescription pills. The girl initially told the police that she and Babcock were just friends, but upon being informed that officers had Babcock’s phone, she confessed that they were in a relationship and that there were sexually explicit images of her on Babcock’s phone. The officers refused to return Babcock’s phone, and instead held it for two days before obtaining a warrant to search the phone, where the images were found.
On Babcock’s appeal from the district court’s denial of his motion, the Government argued both that: 1) the officer’s brief detention of Babcock’s phone was a permissible Terry stop, and 2) officers had probable cause to believe the phone contained evidence of a crime and exigent circumstances justified its immediate seizure (thought the Court chided the Government for not arguing more specifically that exigent circumstances existed).
The Court concluded that the officers’ two-day seizure of Babcock’s phone was not a permissible Terry stop. While the Government had a compelling interest in combating child pornography, the duration of the seizure, the degree of intrusion inherent in seizing a cell phone, and the officers lack of diligence in failing to secure a warrant for two days turned what may have initially began as a permissible Terry stop into a “full-blown seizure that required a showing of full-blown probable cause.”
Fortunately for the Government, the Court held that there was probable cause and exigent circumstances justifying the warrantless seizure of the phone. The Court listed what the officers knew at the time they seized Babcock’s phone—1) a female was heard yelling “stop!” 2) Babcock lied about the presence of a teenage girl in his trailer who was visibly bleeding, 3) the girl’s statements that she went to a party with Babcock and consumed drugs, 4) the girl’s blood on Babcock’s bed, 5) the video of the girl holding the knife to her throat (and Babcock’s statements in that video), and 6) the girl’s panicking demeanor after being questioned. It was immaterial that law enforcement didn’t know the exact crime they suspected Babcock of committing.
The Court held that there were also exigent circumstances indicating that Babcock may delete evidence on the phone if it was returned to him. The Court noted that Babcock had already tried to deceive the officers and clearly knew the officers suspected him of a crime.
The Court rejected Babcock’s sentencing arguments as well. Enhancing Babcock’s offense level under U.S.S.G. § 2G2.1(b)(2)(A), for involving a visual depiction of sexual acts, and § 4B1.5(b), for engaging in a pattern of prohibited sexual conduct, did not constitute impermissible double counting. Nor was the sentence substantively unreasonable.
Appeal from the Southern District of Florida
Opinion by Newsom, joined by W. Pryor and Vratil (sitting by designation from the District of Kansas)