COURT OF APPEALS

DECISION

DATED AND FILED

August 24, 2021

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2020AP1399-CR Cir. Ct. No. 2018CF187

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT III

STATE OF WISCONSIN,

 PLAINTIFF-RESPONDENT,

 V.

JEREMY J. DEEN,

 DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Eau Claire

County: JON M. THEISEN, Judge. Affirmed. 

Before Stark, P.J., Hruz and Nashold, JJ.

¶1 STARK, P.J. Jeremy Deen appeals a judgment convicting him, 

upon his no-contest plea, of one count of possession of child pornography. Deen 

argues the circuit court erred by denying his motion to suppress evidence 

discovered during a search of his cell phone. Although the search was conducted 
No. 2020AP1399-CR

2

pursuant to a search warrant, the phone was initially seized without a warrant, and 

Deen contends that the warrantless seizure violated his Fourth Amendment rights. 

Like the circuit court, however, we conclude that the warrantless seizure was 

permissible under the exigent circumstances exception to the warrant requirement 

because, under the facts known at the time, a law enforcement officer would have 

reasonably believed that the delay required to procure a search warrant would risk 

the destruction of evidence. We therefore affirm.

BACKGROUND

¶2 Deen was charged with four counts of possession of child 

pornography, based on four images that were found during a law enforcement 

search of his cell phone. As noted above, Deen moved to suppress the images, 

arguing, among other things, that the police had seized his phone without a 

warrant in violation of the Fourth Amendment.

¶3 The following facts were adduced at the hearing on Deen’s 

suppression motion. On November 20, 2017, the National Center for Missing and 

Exploited Children (NCMEC) received a tip indicating that an image of child 

pornography had been uploaded on that date from a particular IP address.1 The tip 

reported that the image was uploaded through an internet site called Chatstep, in a 

chatroom called “Lilslutz,” under the username “Josh.” An administrative 

subpoena was then used to determine that the IP address from which the image 

had been uploaded was associated with a specific street address on Sara Street in 

the city of Eau Claire. The Eau Claire County Sheriff’s Office received 

 

1

 An IP address is a unique address that identifies a device on the internet. State v. 

Baric, 2018 WI App 63, ¶4, 384 Wis. 2d 359, 919 N.W.2d 221.
No. 2020AP1399-CR

3

NCMEC’s tip on January 16, 2018, and shared it with the Eau Claire Police 

Department.

¶4 Eau Claire police detective Ryan Prock and another officer went to 

the Sara Street address on January 17, 2018, and made contact with Deen outside 

the home. The officers asked to speak to Deen inside, and he gave them 

permission to enter the residence. The officers informed Deen that they had 

received a tip about child pornography that had come from his IP address. In 

response to the officers’ questions, Deen stated that he used his cell phone to 

access the internet, and that he looked at pornography on the internet, but he did 

not think he had looked at any child pornography. He stated, however, that when 

using internet chat rooms, “sometimes files get downloaded on his phone and he 

has clicked on them, but he doesn’t remember if he did or not.” Deen told the 

officers that he had heard of the Chatstep site but had never used it. The officers 

ascertained that Deen’s middle name is Joshua, which Prock believed connected 

Deen to the username “Josh” that was referenced in the NCMEC tip.

¶5 At some point during their conversation with Deen, the officers 

noticed that Deen had a knife on his person. They therefore conducted a 

“pat-frisk” of Deen, during which they located his cell phone in one of his pockets. 

The cell phone was placed on a table, and the officers subsequently asked Deen 

for consent to look at the phone. Deen responded that he needed the phone for 

work, and “if [the officers] could come back at a later time to get it, that would be 

fine then.”

¶6 The officers then seized Deen’s cell phone, even though they did not 

have a warrant to do so. Prock testified that the officers believed the phone

contained evidence of possession of child pornography, and if they left the phone 
No. 2020AP1399-CR

4

with Deen, he would have “ample opportunity to destroy the phone, to erase 

everything off the phone or just get rid of the phone.” Prock further testified that 

the police did not search the phone until they received a warrant to do so.

¶7 The circuit court denied Deen’s suppression motion, concluding that 

even though the officers seized Deen’s cell phone without either a warrant or 

Deen’s consent, the seizure was permissible under the exigent circumstances 

exception to the warrant requirement “to preserve evidence, and to prevent the 

destruction thereof.” Deen subsequently pled no contest to a single count of 

possession of child pornography, and the remaining counts were dismissed and 

read in. Deen now appeals, arguing that the court erred by denying his 

suppression motion because the warrantless seizure of his cell phone was not 

justified by exigent circumstances.

2

DISCUSSION

¶8 Our review of a circuit court’s decision granting or denying a motion 

to suppress evidence presents a question of constitutional fact, to which we apply a 

two-step standard of review. State v. Tullberg, 2014 WI 134, ¶27, 359 Wis. 2d 

421, 857 N.W.2d 120. First, we uphold the circuit court’s findings of historical 

fact unless they are clearly erroneous. Id. Second, we independently apply the 

relevant constitutional principles to those facts. Id.

¶9 Both the Fourth Amendment to the United States Constitution and 

article I, section 11 of the Wisconsin Constitution protect against unreasonable 

 

2

 An order denying a motion to suppress evidence may be reviewed on appeal 

notwithstanding the defendant’s guilty or no-contest plea. WIS. STAT. § 971.31(10) (2019-20).
No. 2020AP1399-CR

5

searches and seizures. Tullberg, 359 Wis. 2d 421, ¶29. “A seizure conducted 

without a valid warrant is presumptively unreasonable.” State v. Brereton, 2013 

WI 17, ¶24, 345 Wis. 2d 563, 826 N.W.2d 369. Nevertheless, the warrant 

requirement is subject to certain limited exceptions. Id. One of those exceptions

exists where the State can show “both probable cause and exigent circumstances 

that overcome the individual’s right to be free from government interference.” 

State v. Hughes, 2000 WI 24, ¶17, 233 Wis. 2d 280, 607 N.W.2d 621. Here, 

Deen does not dispute that law enforcement had probable cause to believe that his 

cell phone contained evidence of a crime. The only issue on appeal is whether 

exigent circumstances were present.3

¶10 Courts have recognized that exigent circumstances exist where there 

is a risk that evidence will be destroyed if officers delay performing a search or 

seizure in order to obtain a warrant. See id., ¶25. The test to determine whether 

exigent circumstances justify a warrantless search or seizure to prevent the 

destruction of evidence is objective, and asks “whether a police officer, under the 

facts as they were known at the time, would reasonably believe that delay in 

 

3

 The State observes that, based on the United States Supreme Court’s decision in 

Illinois v. McArthur, 531 U.S. 326 (2001), “some federal courts have imposed additional 

requirements beyond the required probable cause and exigency showing to justify an exigent 

seizure of evidence.” Specifically, the State notes that some federal courts have interpreted 

McArthur to require a showing that the warrantless seizure lasted “no longer than reasonably 

necessary for the police, acting with diligence, to obtain the warrant,” and a showing that the 

police “made reasonable efforts to reconcile their law enforcement needs with the demands of 

personal privacy.” See, e.g., United States v. Burton, 756 F. App’x 295, 299 (4th Cir. 2018) 

(quoting McArthur, 531 U.S. at 332-33). The State asserts that both of these additional 

requirements were satisfied in the instant case. Deen does not address these additional 

requirements in his appellate briefs, much less develop any argument that they were not satisfied. 

Deen has therefore conceded the issue. See Charolais Breeding Ranches, Ltd. v. FPC Sec. 

Corp., 90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct. App. 1979). In any event, given Deen’s failure 

to address these additional requirements, we take no position regarding their applicability in this 

case.
No. 2020AP1399-CR

6

procuring a search warrant would ... risk destruction of evidence.” Id., ¶24. The 

State bears the burden of proving that exigent circumstances exist in a given case. 

State v. Richter, 2000 WI 58, ¶29, 235 Wis. 2d 524, 612 N.W.2d 29.

¶11 Like the circuit court, we conclude the State met its burden in this 

case to demonstrate the existence of exigent circumstances justifying the 

warrantless seizure of Deen’s cell phone to prevent the destruction of evidence. 

As noted above, it is undisputed that the officers had probable cause to believe that 

Deen’s phone contained evidence of a crime—i.e., possession of child 

pornography. During the officers’ questioning of Deen, he became aware that 

they were investigating a tip that child pornography had been uploaded from an 

IP address associated with his residence, and the officers questioned him about his 

internet use and his pornography viewing habits. In response to the officers’ 

questioning, Deen specifically told them that he used his cell phone to access the 

internet and view pornography. Deen also became aware during the interview that 

the officers wanted to search his cell phone, as they asked for his consent to do so. 

Under these circumstances, the officers could reasonably conclude—as Prock 

testified at the suppression hearing—that if they allowed Deen to retain the phone 

while they left to obtain a search warrant, he would destroy the phone, get rid of it, 

or erase evidence from it.

¶12 The United States Supreme Court has recognized that it is 

objectively reasonable for the police to conclude that the warrantless seizure of 

property is necessary to prevent the destruction of evidence where a suspect is 

aware of law enforcement’s desire to search the property as part of an 

investigation. See Illinois v. McArthur, 531 U.S. 326, 332 (2001). In McArthur, 

the defendant’s wife asked the police to accompany her to the trailer where she 

lived with the defendant in order to “keep the peace” while she removed her 
No. 2020AP1399-CR

7

belongings. Id. at 328. When she exited the trailer after collecting her things, she 

told an officer that the defendant had “dope” in the trailer, which he had slid under 

the couch. Id. at 329. The officer then knocked on the trailer door and asked the 

defendant for permission to search the trailer, which the defendant denied. Id. 

The officer subsequently told the defendant, who was by that time on the porch, 

that he could not re-enter the trailer unless accompanied by a police officer. Id. 

After obtaining a warrant, the police searched the trailer and found marijuana and 

drug paraphernalia inside. Id.

¶13 The Supreme Court determined that the officers’ warrantless seizure 

of the defendant was justified under the exigent circumstances exception to the 

warrant requirement. Id. at 331-32. The Court stated that the police had “good 

reason to fear that, unless restrained, [the defendant] would destroy the drugs 

before they could return with a warrant.” Id. at 332. In support of that conclusion, 

the Court explained that the officers “reasonably might have thought” that the 

defendant: realized his wife knew about his marijuana stash; observed that his 

wife was angry or frightened enough to ask the police to accompany her to the 

trailer; saw that his wife had spoken to the police after leaving the trailer; and 

noticed that she had walked off with one of the officers, while another officer

remained outside to observe the trailer. Id. Based on those facts, the Court stated 

the officers “reasonably could have concluded that [the defendant], consequently 

suspecting an imminent search, would, if given the chance, get rid of the drugs 

fast.” Id.

¶14 Relying on McArthur, other courts have upheld warrantless seizures 

of electronic devices based on the risk that a suspect would destroy those devices,

or the evidence they contained, after learning of law enforcement’s investigation. 

For instance, in United States v. Burton, 756 F. App’x 295, 297 (4th Cir. 2018), 
No. 2020AP1399-CR

8

an officer questioned the defendant at the police station about an allegation that 

the defendant had used his cell phone to take an up-skirt photograph of a woman. 

During the interview, the officer made it clear that he disbelieved the defendant’s 

explanation for his conduct. Id. At the end of the interview, the officer seized two 

cell phones that the defendant had brought to the station, and two days later the 

police obtained a warrant to search the phones. Id.

¶15 The Fourth Circuit concluded the officer’s warrantless seizure of the 

cell phones was justified under the exigent circumstances exception, given the 

defendant’s knowledge that he was the subject of an investigation into his use of 

cell phones to take up-skirt photos, and the defendant’s awareness that the officer 

was skeptical of his version of events. Id. at 298-99. The court reasoned: “Given 

the ease with which [the defendant] could have deleted, transferred, or otherwise 

removed the digital photos from the phones, [the officer] reasonably assumed [the 

defendant] might destroy any evidence contained on the phones, or the devices 

themselves.” Id. at 299. Stated differently, the officer had “good reason to fear” 
No. 2020AP1399-CR

9

that the defendant “would destroy digital evidence if allowed to depart the police 

station with the phones.”4 Id. (quoting McArthur, 531 U.S. at 332).

¶16 Similarly, in this case, the officers had good reason to fear that Deen 

would destroy digital evidence on his cell phone—or the phone itself—if they 

allowed him to keep the phone while they left to obtain a search warrant. Deen 

was aware of the officers’ investigation and knew that they were specifically 

interested in searching his cell phone for evidence of child pornography. Deen 

could have easily destroyed the phone or deleted evidence from it during the time 

it took the officers to obtain a search warrant. On these facts, the officers could 

reasonably believe that the delay needed to obtain a warrant would risk the 

destruction of evidence. See Hughes, 233 Wis. 2d 280, ¶24.

¶17 Deen nevertheless asserts, for four reasons, that it was not 

reasonable for the officers to conclude that the warrantless seizure of his cell 

phone was necessary to prevent the destruction of evidence. First, Deen notes that 

 

4

 Other federal and state courts have reached the same conclusion in cases presenting 

similar facts. See, e.g., United States v. Pérez-Diaz, 848 F.3d 33, 36-37, 40-41 (1st Cir. 2017) 

(concluding that officers reasonably seized the defendant’s residence to prevent him from 

destroying evidence contained on computers located inside while the officers obtained a search

warrant, in circumstances where the defendant was aware that the officers were looking for 

evidence of child pornography and the officers had specifically asked the defendant to turn on his 

laptop, which he refused to do); United States v. Bradley, 488 F. App’x 99, 100-01, 103 (6th Cir. 

2012) (holding that exigent circumstances justified the warrantless seizure of the defendant’s 

laptop where the defendant was aware that law enforcement was investigating an upload of child 

pornography and knew that his laptop contained an identifying marker associated with that 

upload, as “[c]ourts 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”); State v. Deem, 849 S.E.2d 918, 921-22, 926-27 (W. Va. 2020) 

(upholding the warrantless seizure of a suspect’s cell phone where the police believed the suspect 

had used the phone in the commission of a crime, the suspect was aware of the investigation and 

knew the police believed that his phone contained pertinent evidence, and a reasonable officer 

would have recognized that the potential evidence on the phone “could have been quickly 

damaged or destroyed”).
No. 2020AP1399-CR

10

the NCMEC tip was generated on November 20, 2017, approximately two months 

before the date when the police questioned him and seized his phone. Deen 

asserts the police had no information to suggest that, during that two-month 

period, he had attempted to get rid of any electronic devices that he used to access 

the internet or had attempted to delete data from his phone. Deen asserts it was 

unreasonable for the officers “to determine that destruction of evidence was 

imminent when ... Deen had not done anything in the prior months to indicate he 

might destroy evidence.” Deen also suggests that it was unreasonable for the 

officers to conclude there was a risk that he would destroy his phone, given that he 

had expressly told them he needed to keep the phone so that he could use it for 

work.

¶18 Deen is correct that, before the officers questioned him at his 

residence, there was nothing to suggest that he would destroy either his cell phone

or any evidence it contained. As the State correctly notes, however, the situation 

changed when the officers spoke to Deen about their investigation. Again, during 

that conversation, Deen became aware that the officers were investigating an 

upload of child pornography from an IP address associated with his residence, and 

that they wanted to search his cell phone in connection with their investigation. 

As we have already explained, under these circumstances, it was reasonable for 

the officers to conclude that the delay required to obtain a search warrant would 

risk the destruction of evidence. 

¶19 Furthermore, while it is true Deen told the officers that he needed his 

phone for work, Deen cites no legal authority in support of the proposition that the 

officers were required to accept his assertion in that regard. Given the surrounding 

circumstances, the officers could have instead reasonably concluded that Deen lied 

about needing his phone for work to provide an excuse for refusing to let them
No. 2020AP1399-CR

11

take the phone. The officers could have also reasonably concluded that, even if 

Deen needed his phone for work, he would have been willing to destroy the phone 

to prevent them from discovering incriminating evidence that it contained. In the 

alternative, the officers could have reasonably concluded that while Deen’s need 

to use his phone for work may have prevented him from destroying the phone

itself, it would not have prevented him from deleting incriminating evidence.

Under any of these scenarios, the officers could have reasonably concluded that 

there was a risk Deen would destroy either the phone or the evidence it contained 

if they allowed him to keep the phone while they left to obtain a search warrant.

¶20 Second, citing State v. Kiekhefer, 212 Wis. 2d 460, 569 N.W.2d 316 

(Ct. App. 1997), Deen argues the dispositive inquiry is whether the officers had

sufficient information at the moment they entered Deen’s home to support a 

reasonable belief that evidence might be destroyed. Deen notes that in Kiekhefer, 

we concluded exigent circumstances did not justify law enforcement’s warrantless 

entry into the defendant’s bedroom because: (1) although the officers believed the 

defendant was in possession of a large amount of marijuana, “the presence of 

contraband without more does not give rise to exigent circumstances”; (2) a large 

quantity of marijuana “could not be easily or quickly destroyed in [the 

defendant’s] bedroom”; and (3) the officers “were not confronted with the sounds 

of destruction emanating from within [the defendant’s] room.” Id. at 478-79. 

Deen contends that this case is similar to Kiekhefer because at the moment the 

officers entered Deen’s home, they merely believed that contraband (i.e., evidence 

of child pornography) might be present, but that contraband could not have been 

easily or quickly destroyed, and the officers did not hear any sounds that indicated 

Deen was about to destroy it.
No. 2020AP1399-CR

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¶21 Deen’s reliance on Kiekhefer is misplaced. He is correct that the 

Kiekhefer court framed the relevant inquiry as “whether the facts, as they 

appeared at the moment of entry, would lead a reasonable, experienced agent to 

believe that evidence might be destroyed before a warrant could be secured.” Id.

at 478 (quoting United States v. Rivera, 825 F.2d 152, 156 (7th Cir. 1987)). 

Kiekhefer referred to the moment of entry, however, because the issue in that case 

was whether the police had violated the Fourth Amendment by entering the 

defendant’s bedroom without a warrant. See id. at 466, 474-76. Similarly, Rivera, 

which the Kiekhefer court relied upon, addressed whether officers violated the 

Fourth Amendment by entering a hotel room without a warrant. See Rivera, 852 

F.2d at 156-57. 

¶22 Thus, in both Kiekhefer and Rivera, the alleged Fourth Amendment 

violation occurred at the moment law enforcement entered into a legally protected 

space. As such, in those cases, the relevant question was whether law enforcement 

had enough information to support a reasonable belief at the moment of entry that 

evidence might be destroyed before a warrant could be secured. Here, in contrast, 

the alleged Fourth Amendment violation did not occur at the moment the officers 

entered Deen’s home. Prock testified during the suppression hearing that Deen 

gave the officers permission to enter the home, and Deen does not argue otherwise 

on appeal. Instead, Deen contends the officers violated the Fourth Amendment 

when they subsequently seized his cell phone. On these facts, the relevant inquiry 

is whether an officer would have reasonably believed at the moment the phone 

was seized that evidence on the phone might be destroyed before a warrant could 
No. 2020AP1399-CR

13

be secured. As explained above, an officer would have reasonably drawn that 

conclusion under the circumstances of this case.

5

¶23 Third, citing the criminal complaint, Deen notes that when the 

officers questioned him about his internet usage, he told them that he used both his 

cell phone and a laptop computer to access the internet. Deen then argues that 

“[t]he inconsistency in seizing the phone but not the laptop demonstrates that the

seizure was based on speculation rather than a reasonable belief that evidence 

would be destroyed before a warrant could be secured.”

¶24 No testimony or other evidence was introduced at the suppression 

hearing, however, to support the assertion that Deen told the officers he used both 

his cell phone and a laptop to access the internet. The suppression hearing 

 

5

 We acknowledge that the presence of contraband, without more, does not give rise to 

exigent circumstances. See State v. Kiekhefer, 212 Wis. 2d 460, 478, 569 N.W.2d 316 (Ct. App. 

1997). In this case, however, additional factors were present supporting a reasonable belief that if 

the officers allowed Deen to keep his cell phone while they obtained a warrant, there was a risk 

that he would destroy evidence. Again, Deen was aware that law enforcement was investigating 

an upload of child pornography from his home’s IP address, and he knew that the officers wanted 

to search his phone in connection with their investigation. Contrary to Deen’s assertion, under 

these circumstances it is not dispositive that the officers did not hear any sounds indicating that 

Deen was actively destroying evidence before they seized his phone.

We also reject Deen’s argument that, like the large quantity of marijuana in Kiekhefer, 

the evidence at issue in this case could not have been quickly or easily destroyed. Deen cites 

State v. Gralinski, 2007 WI App 233, ¶31, 306 Wis. 2d 101, 743 N.W.2d 448, where we stated 

that “possession of child pornography on one’s computer differs from possession of other 

contraband in the sense that the images remain even after they have been deleted.” Be that as it 

may, rather than deleting any images of child pornography on his phone, Deen could have 

destroyed the evidence by destroying the phone itself, or by transferring it to another person or 

location to prevent the police from finding it. Although Deen suggests that the officers could 

have accessed images on his phone in other ways even without possession of the phone—for 

instance, via “the cloud”—his argument in that regard is purely speculative. There is nothing in 

the record to suggest that the officers knew at the time they seized Deen’s phone—or that a 

reasonable officer in their position would have known—that any incriminating images on the

phone were backed up to “the cloud” or would have been otherwise accessible even if Deen 

destroyed the phone itself.
No. 2020AP1399-CR

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transcript does not contain any reference to a laptop or a computer of any kind, 

and no exhibits were introduced into evidence during the hearing. We have 

previously stated that when reviewing a suppression order, an appellate court “is 

not limited to examination of the suppression hearing record” but may also 

consider “the trial evidence,” “the evidence at the preliminary hearing,” and “the 

record supporting issuance of a warrant.” State v. Gaines, 197 Wis. 2d 102, 106 

n.1, 539 N.W.2d 723 (Ct. App. 1995). Deen cites no authority for the proposition 

that we may also consider the criminal complaint when reviewing a circuit court’s 

decision on a motion to suppress.

¶25 Moreover, even if we considered the criminal complaint, it provides 

a reasonable explanation for the officers’ decision to seize the cell phone, but not 

the laptop. Specifically, the complaint states that Deen told the officers “he just 

bought the laptop computer[,] and before the computer he would only use his cell 

phone for internet.” Because the tip from NCMEC was approximately two 

months old at the time the officers interviewed Deen, they could reasonably 

assume that any evidence related to that tip would be found on Deen’s cell phone, 

rather than his recently acquired laptop. We agree with the State that under these 

circumstances, instead of demonstrating a lack of exigent circumstances, the 

officers’ decision to seize only Deen’s cell phone shows that they “reasonably 
No. 2020AP1399-CR

15

limited their seizure to the electronic device most likely to contain evidence of the 

crime they were investigating.”6

¶26 Fourth and finally, Deen asserts that the exigent circumstances 

exception does not apply here because any exigency related to the risk of 

destruction of evidence was caused by the officers’ own unreasonable conduct. It 

is well established that police officers “may not benefit from exigent 

circumstances that they themselves create.” State v. Robinson, 2010 WI 80, ¶32, 

327 Wis. 2d 302, 786 N.W.2d 463. However, in Kentucky v. King, 563 U.S. 452, 

462 (2011), the Supreme Court clarified that the exigent circumstances exception 

applies “when the conduct of the police preceding the exigency is reasonable” 

within the meaning of the Fourth Amendment. As such, where the police “did not 

create the exigency by engaging or threatening to engage in conduct that violates 

the Fourth Amendment, warrantless entry to prevent the destruction of evidence is 

reasonable and thus allowed.” Id.

 

6

 Deen argues we cannot consider the statement from the criminal complaint that he had 

just purchased his laptop and had previously used only use his cell phone to access the internet 

because there was no testimony regarding that statement during the suppression hearing. As 

noted above, however, there was no testimony about the laptop whatsoever during the 

suppression hearing, and Deen himself relies on the criminal complaint to support his argument 

that the officers’ failure to seize the laptop demonstrates a lack of exigent circumstances. Deen

cannot rely on the criminal complaint to support his argument that exigent circumstances were 

not present, and then fault the State for relying on that same document to refute his argument.

In any event, even absent Deen’s statement that he had just purchased his laptop and had 

previously used only his cell phone to access the internet, we would conclude that the officers’ 

seizure of only the phone, and not the laptop, does not show a lack of exigent circumstances. The 

officers could have reasonably concluded that it is easier to destroy, hide, or lose a cell phone 

than a laptop, which is larger in size. On that basis, the officers could have reasonably concluded 

that any possible evidence on Deen’s cell phone was at a greater risk for destruction than 

evidence on his laptop.
No. 2020AP1399-CR

16

¶27 Here, the officers did not create the exigency that necessitated the 

seizure of Deen’s cell phone by engaging or threatening to engage in conduct that 

violated the Fourth Amendment. The officers made contact with Deen outside of

his residence. They entered the residence only after receiving Deen’s permission 

to do so. They located Deen’s cell phone during a pat-frisk, which one of the 

officers initiated after observing that Deen had a knife. Deen does not argue that 

either the officers’ entry into his home or the pat-frisk violated the Fourth 

Amendment.

¶28 Nor does Deen develop any argument that the officers violated the 

Fourth Amendment merely by approaching him to ask him questions related to 

their investigation. In any event, an argument in that regard would appear to be 

contrary to King, where the Court held that officers do not violate or threaten to 

violate the Fourth Amendment merely by knocking on an individual’s door

without a warrant because, by doing so, “they do no more than any private citizen 

might do.” See id. at 469-70. Similarly, in this case, the officers did no more than 

any private citizen might do by approaching Deen outside his home and asking to 

speak to him. We therefore reject Deen’s argument that the exigent circumstances 

exception is inapplicable here because the officers created the exigency.

¶29 For all of the foregoing reasons, we conclude that at the moment 

Deen’s cell phone was seized, an officer would have reasonably believed that the 

delay necessary to obtain a search warrant would risk the destruction of evidence. 

Consequently, like the circuit court, we conclude that the exigent circumstances 

exception to the warrant requirement applies. As a result, the warrantless seizure 

of Deen’s cell phone did not violate the Fourth Amendment, and the court 

properly denied Deen’s suppression motion.
No. 2020AP1399-CR

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By the Court.—Judgment affirmed.

Not recommended for publication in the official reports.