[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 17

- 13678

________________________ D.C. Docket No. 2:16

- cr
- 14071

- KAM

- 1

UNITED STATES OF AMERICA,
Plaintiff

- Appellee,

versus DARRELL MARK BABCOCK,
Defendant

- Appellant.

________________________ Ap pe al from the United Stat es D istrict Court for the Southern District of Florida

________________________ ( May 2 4 , 2 019) Before WILLIAM PRYOR and NEWSOM, Circuit Judges, and VRATIL, * District Judge.

* Th e Ho norable Kath ryn H. Vrat il, United States Dist rict Court Jud ge f or the Distr ict of Kansas, sitting by des ig nation

.

Case: 17-13678 Date Filed: 05/24/2019 Page: 1 of 322 NEWSOM , Circuit Judge : In this case, police officers i nvestigating a domestic dist u rb ance confiscated a suspect’s cell phone and held it for two days before eventually obtaining a warrant to search it. The appeal before us presents two Fourth Amendment questions. First, was the seizure justified on the gro u nd that the officers had

rea s on able suspicion to believe that the phone’s owner was engaged in criminal wrongdoing

— was it, in effect, a permissible “ Terry stop” of the phone? We hold that it was not. Second, in the particular circumstances of this case, did the officers
have probab l e cause to believe not only that the phone’s owner had committed a
crime and that the phone contained evidence of that crime, but also that the suspect
would likely destroy that evidence before they could procure a w arrant? We hold
that th ey did. Acc ord i ng ly, and on that ground, we affirm the district court’s order denying the motion to suppress. We separately affirm the district court’s sentence

. I
A Early o ne Friday morni ng, Deputy An drea O lson of the Stuart, F lo rida Police Department r esponded t o a d o me stic

- disturbance cal l r eporting a ruckus

co ming from a camper parked at Darrell Babcock’s residence

— specifically , a female had been heard yelling, “ S top , stop, stop! ” When Deputy Olson knocke d
on the door of Babcock ’ s camp e r, Ba bcock exited , closed the do or behind h im , and

Case: 17-13678 Date Filed: 05/24/2019 Page: 2 of 323 volunte e red that no one else was inside

. Almost immediately, th ough, Deputy
Ol son heard a female announce that she wa s coming out. A teenage girl emerged
f

ro m the tra i ler ; s he was w earing only yo ga shorts and a camo jacket , and s he had
blood on he r lef t thigh. Seemingly by way of e x planation, Babcock handed
D eputy Olson his cell phone to show her a video of the girl

— we ’ ll call her C.A.

— sitting on a b ed , holding a knife to her own th r oat and sayi ng that she want ed to
die

. In t he vid eo Ba bco ck c o uld be heard berating the girl, telling he r, “ y o u ’re
dumb as f *** ” and comp lain in g , “ t his i s what I deal with right here . . . you got ta
do drama and fi gh ting me all over the pla ce
. ” After vie wing the clip, Deputy
Olso n returned Bab coc k ’ s pho ne
. When backup arrived on th e scene, Deputy
Olson ask ed for the phone again so that she could show the vide o to her colleague , Office r Michael Mc M ah a n
. Th e officers then interview ed Babcock and C.A

. separately. Babc oc k denied
knowi ng C.A.’s age and al so di sputed tha t t he two were in a rel ati onship , although
he admitted that he had kn own C.A. for three years a nd that she u sed to be his neighb or . H e a lso said t hat C.A. had shown up at his camper un ann ounced,
sometime during th e midd le of the nig h t

. C.A

. , by contrast

— whose license
showed that she was only 16 years old

— stated that she a nd Babcock had gone

t o ge ther t he ni ght b efore to a Hallow e en party , where she had consumed alcoho l , cocaine, and other substances

. After answering a few question s , C.A. be gan either

Case: 17-13678 Date Filed: 05/24/2019 Page: 3 of 324 panicki n g or e xperie nc ing the eff ects of an ov er dose, so the o ffi cers called an
ambulance. Deputy Olson rode with C.A. to the hosp i ta l

. Meanwh ile, another officer, Detective Brian Broughton , remained behind to continue questioning Babco ck

. D ete ctive Brought on sought and receive d permiss ion to search Babcock ’ s camper , where he d iscove red b lo od on the
b e dsheets and pr escript ion pills scattered about

. When Detective Broughton asked to further inspect Babcock’s phone, Babco ck refused and asked t o h ave it back

. Babcock offe red to e

- mail the video clip of C.A. wi th th e knife, but Dete ct iv e
B ro ughton d e cid ed to kee p the phone instead

. He told Officer McMah a n to ente r it
into evide nce and the n took it with him to th e hospital to talk t o C.A.
At t he hospital, C.A. again insis te d that she an d Ba bcock were just fr ien d s, that they ha d gone t o a Hal loween party, and that the two had then argued. She firmly denied any fur ther re lationship. But w hen Detective Broughto n inform ed
C. A. that he had Babcock ’s ph one, sh e a bru pt ly reversed course and a dmitted that
the two had bee n i n a re lationship and , further, tha t th e officers would find s exually explicit images of her on the phone. Two days later, Dete ctiv e Broughton applied
for a nd obtained a warran t to s ea rch th e pho ne, where h e found nude ima ges of
C .A. an d explicit video r ecordings of Babcock and C.A

. tog ether.

Case: 17-13678 Date Filed: 05/24/2019 Page: 4 of 325 B Babcock was charged wit h two counts of produc ing a visua l depiction of sexually explicit condu ct with a minor in vi ola t ion of 18 U.S .C

. § 2 25 1(a) , (e). He
file d a mo tion to su ppress, arguing that o fficers had seized his phone wit ho ut a

warrant or pro bable c ause. The government f iled a response , arguing primarily
that the cell

- phone s e izur e was re asonable beca us e “ under the t otality of th e

c i rcumstanc es ” the off icer s had “ rea sonab le suspicion to investigate f urther , ” and adding that, at any rat e, t he officers had probable cause to believe that t h e phone
contained evidence of a crime. The go v er nm ent further contended th at “detent ion
of the ce ll phone was necessary to preserve the eviden ce observed by t he
d eputies.” Finally, t he government asser ted tha t , even in the absence of a warrant,
either Babcock ’ s cons ent or t he i ne vitab ility th at the images would have been
discovered rendered th e se izu re con sti tutional

. A ma gistr ate judge recommended tha t Babco ck’s motion be denied . He
concluded

— refere ncing t wo distinc t Fourth Amendment standards

— that “ t he
collec tiv e knowledge an d informat ion received b y the offi cers a t the scene
constit ute d suffi cie nt probable caus e and reas onable suspicion that there ma y have
been a crime com mi tted which ma y hav e b een p reser ved on the cell phone.” The
dis t r ict court agr eed, noting

— al so somewha t vaguely

— that the surrounding
circu mstances wer e “sufficient for law enf orcement to suspe ct inappro priate Case: 17-13678 Date Filed: 05/24/2019 Page: 5 of 326 conduct between [Babcock ] and C.A .” Later , at sen t enc ing, t he district judge
further remarked that a l t houg h he “d idn’t say [it] in the or der, ” he was “ putting [it]

on the record for appell ate purposes” that in the vide o C .A. “ appea r [ed] to be either
with no pants on or underwea r ” and that , based o n “ what she says and how she
says i t about what she wants t o do to h ers elf, ” i t was “ obvious

. . . that there was an i napprop riate relationship going o n which would have gi ven [ th e officers ] reasonable probable cause to believ e that there wa s inappropriate se xual activity
b etween ” Ba bco ck a nd C.A. Babc ock took a p lea, re servin g his right to appeal t he
denial of his m otion to suppress.
At sente ncing, Babco ck asked for the mandat or y minimum o f 180 m onths, arguing that his co nduc t, while inappro p riate , was outsid e the core c hild

po rn ogr ap hy

- di s tribution be havior th at Congres s soug h t to deter un der § 2251 ( a)
and (e)

. T he government in turn a sked fo r a sentence within the 3 60

- to

- 720

- mo nth

rec ommended Guid elines rang e, s tressing the harm to C. A. and her family

. T he

court imposed a below

- G ui del in es se ntence of 324 m on ths

. Babcock appea l ed
both the denial of his motion to suppress an d his sente nce. II
W e ’ ll tackle the F ourth Amendmen t i ssues first . A person suffers a

“ seizure ” of h i s property within th e meaning of the Fourth Am end ment whe n t here
is a “mea ningfu l in terfere n ce” w ith his posse ssory intere s t in it

. United S tates v.

Case: 17-13678 Date Filed: 05/24/2019 Page: 6 of 327 Virden , 488 F. 3d 1317, 1321 (11th Cir. 2007). 1 Whi le t he seizure of private property generally requires a warrant , t he Sup rem e Court has interpreted th e
F ourt h Am end m ent t o al low a warrant l ess sei zur e when police can show both ( 1) proba ble cause to believe t hat property contains contraband or evidence of a cr ime
and (2) an applicable warrant exception, such a s exigent circumst anc es. See , e.g. , Kentuc ky v. King , 56 3 U .S. 45 2, 4 59

– 60 (201 1) (citations omitte d). According ly,

a bsent eith er a warrant or pr obable cause plus an exc eption, police may not seiz e priv a te property. There is, however, an as terisk. Under a line of luggage

- r elated
cases from th e 1 980s, police may “br iefly de tain ” property

— Terry

- s t o p sty l e

— on the strengt h o f reas onable suspi cio n alone

. See United State s v. Pl ac e , 462 U.S.
69 6 , 697

– 98 (198 3) ; Un i ted States v. Puglisi , 723 F.2d 7 79, 788

– 89 (11th C ir. 1984)

. H ere, t he governmen t pr inci pally argue s th at t hese cases p ermit ted the
officer s to detai n Babcock ’ s phone based on t heir reasonab le sus pi cion th at he had
committed a crime. A lternative ly , t he government contends that the officers h ad probable cause to believe that the phone con tained evidence of a cr ime and that exigent circumstanc es

— namely, th e need to pre ve nt the destruc tion of that

ev id ence

— all owed them to seize the phon e. We consider e a ch argument in tur n.

1 Whe n re viewing the denia l o f a motion to suppress , we revie w factua l f indings for c lear error and legal de t e rminations de n ovo . United S tat es v. Gibson , 708 F.3d 1256, 1274 (11th Cir. 2013)

. We als o re view th e evi dence in the l ight most favo rab le to t h e gov e rnm ent, as the prevailing party. Se e Unite d S tates v. Capers , 708 F.3d 1 286, 1 295

– 9 6 (11th Cir. 2013).

Case: 17-13678 Date Filed: 05/24/2019 Page: 7 of 328 A
1
R easonable suspici on i s “a particularized and objective ba sis” for su specting
a perso n o f crimina l a ct ivity. Ornelas v. United Sta tes , 517 U. S . 690 , 696 (1996 ) (quotation mark s om itte d). It requires “ s pecific, ar ti culable, a nd obje ctive facts

re asonably to suspect” that a c rime is bei ng or will soon be committe d , P uglisi , 723 F.2 d at 78 9 , b u t “is a les s de mandin g stand ard tha n probable cause,” I llinois v.
Wardlow , 528 U.S. 119, 123 ( 2000)

. In Terry v. Ohio , th e Supreme Court
fa mously held that, even absent probable cause, police officers may brief ly detain

a n ind ividual based on r easonab le s us picion that he i s ( or is a b out to be) engaged in
criminal a ctiv i ty. See 392 U.S. 1 , 3 0

– 31 (1968).
The Supreme Court f irst exte nded T err y ’ s rational e from people to property
in United States v. Place , 462 U.S. 696 (1983 ). There , the Cou rt h eld tha t wh ile a
br ie f inves tigato ry de t enti on of property could be j usti f i ed on the basis of

r ea so nable suspicion alone , an offi cer’ s 90

- minute sei zur e of an airl ine tr aveler’s
suitcase exceeded constitutional boundaries

. Id . at 70 2

. I n so holding, the Co urt

r e cog n ized th at “ [t] he intrusion o n possessory inte rest s occ asi one d by a seizure of

one ’ s p ersonal e ffects can vary both in its natur e and ext ent

. ” Id

. at 7 05

. While some “brief detentions of personal effects”

— such as, the C ou rt h ypothesized, “on

t he

- spot ” do g sniffs

— ma y be “so minimall y intrusive” as to “ju stify a sei zure

Case: 17-13678 Date Filed: 05/24/2019 Page: 8 of 329 based only on spec if ic artic ulable facts that the proper ty co ntains con tra band,” the luggage seizure did n ’ t fit the bill. Id . at 705

– 06. B y way of ex pl anat ion, the Court emphas i zed sev eral factors : t he duration of th e detenti on , the d egree of th e in trusion on the ow ner’s possessory interest s in hi s property , and the officer ’ s lack
of di ligence in timely pursuing the ir investigation. Id . at 709

– 10. The Cou r t al s o highligh ted th a t a con fisc ation of luggag e , in part icu lar , interferes not o nly with
possess ory interests but also with liberty interests b ecause , wh ile a suspect w hos e luggag e is stopped is “technically still free to continue ” on his way, the dete nt ion might “effectivel y re stra in” him by d is rup ting his tr avel plans. Id

. a t 708

– 09

. Sho r tly after the Supreme Cou rt decided Place , this C o urt had occasi on to apply it on similar fa cts. In United States v. Puglis i , an officer made what began as
a brief stop by or deri ng a su s pici ou s tra veler’s bag s rem oved f rom a luggage ca rt ; he then st owed the luggage in his office until a drug

- sn iffing dog became a vaila ble.
723 F. 2 d 77 9 , 7 90 (11 th C ir. 1984)

. Meanwhile , t he traveler boarded his flight
without hi s bag s. Although w e deeme d t he in itia l seizur e per mis sible under T err y ,

we foun d t hat the l en gth and intrusi veness

— 140 minutes

— caused the “brief s top”
to “r ipen” into a ful l

- blo w n seizur e that c ould be justified only by probable cause.
Id . at 784. W e explain ed t hat “ Place requir e s the s a m e te st as Terry : a court must
wei gh the i nt rusiven ess of a limited seizure of the individual against socie ty ’ s interest i n detection and pr eve ntion of crime

. ” Id . at 785. We cautioned, however,

Case: 17-13678 Date Filed: 05/24/2019 Page: 9 of 3210 that b ecause the Fourth Amend ment “p rotects people , n ot th ing s , ” the f ocus was the ef fecti ve “ seizure of perso ns, th rough their luggage

. ” I d

. at 787

– 88

. Althou gh Place and Puglisi concerned luggage , b oth this Court and other s have since indicated that any detention of property based on reasonable suspic i on
must b e fairly a nal o go us to a T erry stop , r egardl ess of t he i tem at issue

. Accordingly, we have said , “the factors us ed to d et ermine whether a T err y stop has
matured int o an arrest are also useful in evaluating whether a seizure o f pr operty
req uired p r o bable caus e ” rathe r than mere reasonab le suspici on. Vi rden , 488 F

. 3d

at 1321

. Echoing Place , we have said that t hese factors i nclude , but are not li mited

to , (1) the detention ’ s duration , (2) its intrusiveness , (3) the diligence wi th w hich
officers pur s u ed the ir i nvestiga tion, and (4) the la w - enforcement p ur poses served by the detentio n. See i d

. ; accord United States v. Gonzale z , 781 F.3d 4 22, 4 28

– 29 (8th Cir. 2015); Farm L abor Org. Comm. v. Ohio State Highway P atrol , 308 F

. 3 d 523, 54 4

– 4 5 (6th Cir. 200 2 ) ; Un i t ed S tates v. $557, 933.89 , More o r Less , in U.S.
Fund s , 287 F.3d 66, 8 6 (2d Cir. 2002). We ’ ll explain each in a bit more detail here
befor e a ppl ying them to the facts of this case First, d uration. A lthough the Supreme Co urt h as “ declin e[d] to adop t any

ou t si de time l i mit fo r a permissib le Terry st op , ” the Co urt in Place observed that it
had “ ne ve r approved a sei zure of the person for the pr o lo nge d 90

- minu te p eriod
involved ” in that case and that , on the facts presented there, it w ould n ’ t approve a

Case: 17-13678 Date Filed: 05/24/2019 Page: 10 of 3211 9 0

- min ut e d etention of pr operty , either

. 462 U.S. at 70 9

– 10. In Vi rden , this Cou rt
similar ly de termined that an of ficer ’ s tran sf er of a d efenda nt a nd his car to an other
location fo r a dog sniff, “ [w] hile not unduly leng th y ” at about 30 minutes , w a s
nonet h eless “ u nr easona b l e absent probable cau se .” 488 F.3d at 132 1

. 2
At the other end of the s pectrum, t he Fou rth Circuit has appr oved a seconds

long c ell

- phone stop on th e basis of reasonable suspici on alo ne
. I n U nited States v.
Lawi n g , th a t c ourt held tha t an off ice r’s brief dete nt ion of a su sp ect’ s phone du rin g

a traffic stop

— for just long enough to see if it would ring when the officer d ialed a
kn ow n d rug
- distribu tor ’ s number

— was suffi ciently mini mal to qualify for Terry / Place trea tmen t

. 703 F.3d 229, 2 3 8 (4th Cir . 20 1 2 ). Similarly, the Seco nd
Cir cuit held t hat reasona ble sus picion j ustified a brief investi gat or y dete ntion that
occurred when a dete cti ve took betw een two and 20 minutes to respond to a request for a luggage investig a tio n while a traveler w aited a t a n airport se curit y che ckpoint with his l uggage
. See $557, 933. 89 , Mor e or Less , 287 F.3d at 71, 86

– 87 & n.16

. Second, i ntrusiveness. The “in trusi veness ” factor con cerns the de gree to
which a property dete ntion interf ere s with a person’s possess o ry int e res t in his belongings

. I n Plac e , for ins t ance , th e C ourt emphasized that although “ the

2 Even though the d etentio n t here more dire ctly implic ated the owne r’s l iberty int erests t h an in Place because th e own er remained in h i s car w hile it wa s transported to anoth er l ocation , we an aly zed t he stop primarily as one of pro pe rty rather than of an individual

. See Virden , 48 8 F .3d at 1321

. Case: 17-13678 Date Filed: 05/24/2019 Page: 11 of 3212 particular course of inv esti gat ion that th e agents i nte nde d to pu rsue ”

— just a brief

“ exposure of respondent ’ s luggag e, which was located in a public place, to a
tra ine d c anine ”

— w o uld have been per mis sible based on mere re ason able
susp i cion , t h e 90

- m inute seizure that they actually effected was no t. 462 U.S . a t
70 7 , 70 9

– 10 (emphasis added)

. T he Court e xplaine d that the planned sniff would
hav e revealed “ only th e presen ce or absen c e of nar co tics, a c o ntr a ba nd item , ” and
would n ’ t h av e expose d the trave ler ’ s p ersonal “ no ncontraband items that o therwise
would r ema in hi dden from public vi ew, as [would] , for exampl e, an officer ’ s rummaging throu gh t he contents of the l uggage. ” Id. at 70 7.
This Co urt has l ikew ise recognized that in div iduals have strong interests i n containers that h old p ersonal effects or p ri vate in formation , such as lugga g e and computers. In Puglisi , w e emph a sized that “ privacy and possessory intere s ts in
l ugg a g e are oft en hi gh ” beca use a tr aveler may have “ his most important and private possessions in his suitcase ” and likely wa nt s “to shi eld t he m from the prying eyes of s trangers , especi ally the govern ment. ” 723 F. 2 d at 786

. And i n United States v . Lais t , we acknowle d ged that “ c omputer s are a u niqu e posse ssio n,

o ne in wh ich individuals may have a par ticularly powe rful possesso ry inter est , ”
be cau s e they stor e “personal letters, e

- mails, fin ancial information , passwords,
fami ly phot os, and count less other i tems of a pers o nal nat ure
. ” 702 F.3d 608, 6 14 (11th Cir. 20 12 ) ; see also United States v. Mitchell , 565 F.3d 13 47, 1352 (11t h Cir.

Case: 17-13678 Date Filed: 05/24/2019 Page: 12 of 3213 200 9) ( ca lli ng a computer hard drive “ t he digital equi valent of its owner ’ s h ome , capabl e of holdin g a u niverse of p r ivate i nform ation ” ) ( internal quotat ion marks omitted)

. Third, d i ligence. W hen police di ligently pursue their inves tigation , a revi ewing court ca n h ave greater con fidence tha t the gov ernmen tal i nterest is legiti mate and that t he intrus i on occasioned by the cha llenged detention was n o
gr eater than reaso nably necessary

. See United St ates v. Burg a rd , 675 F.3d 1029,
1033 (7th Cir. 2012 )

. “ Diligence ” in this c ontext includes not onl y seeking a warrant application pr omptly , but al so communi cating with the s u spec t c on cerning the sp ecific s of the d etention

. In Place , for instance, the Court faulted officers for failing to infor m the suspect where and for ho w long they were taking his bags,
and when and how he could get them back. Se e 462 U.S . at 710

. So to o , i n Far m Labor , t he Sixth Cir cuit ob ser ved

— in the c ourse of h olding that the seizure of two suspects ’ green cards couldn ’ t be justif ied based on rea son able suspicion alon e

— tha t an officer had fai led to act d ili gent ly when he “ wait [ed] for four d ays to ret u rn [ the ir] green cards ” and t ha t “[t ] he unreasonable nature of the seizure was exacerbated by the undi sputed fact that [the officer] did not make cl e ar
. . . ho w

Case: 17-13678 Date Filed: 05/24/2019 Page: 13 of 3214 long t he doc u ments would be h eld or when or how he w ould return th em
. ” 30 8
F.3 d at 546

– 47 (i n ternal quot ation marks omitte d)

. 3
Fin ally, g overnmental i nter est. The final factor looks at the other side of th e ledger

. As the Court exp lained in Place , “ [ t] he exception to the p ro bable

- cause requirement for lim ited seizures of t he person recognized in Terr y and its progeny
rest s on a bal ancing of the competing interests to determine the reasonable ness of the type of seizure

. ” 4 62 U.S. at 703

. Th us, “ [w] e must balance the n ature and
q uality of th e intrus ion on the individ ual ’ s Four th Amendment inte r ests ag ain st the importance o f the gove rnmental interests alleged to justify the intrusion

. ” Id

. I n Place , that meant taking accoun t of th e public ’ s c om pelling int ere st in

“ det ecting thos e who would tr affic in dea dly drugs for personal p rofit

. ” Id

. (int e rnal qu ota tion marks omitted)

. 2
H ow , t hen, do these cons iderations stack up in this case? In short, n ot well
for t he g overnment. To begin at the end , we don ’ t doubt for a mo ment the government ’ s “ compelling ” in t erest in preve n ting the creation and dist r ibution of
chi ld p o r n o graph y
. E .g. , Ne w York v. Ferber , 458 U.S. 74 7, 761 (1982 ) . S tanding alone, though, that interest can ’ t coun terbala nce the d ura tion, intrusion, and

3 T he d il igence component of the analysis necessa ril y intersects with the duration component becaus e , “[i] n th e ordinary case, the soone r the warrant issu es, the soo ner the pr operty owner ’ s possess ory rig hts c an b e restored if the search re vea ls not hing incriminating ”

— and , of course, the sooner an officer s eek s a warrant, the sooner a warrant can issue. See Mi tch e l l , 565 F.3d at 1352 ( ci tation omitted)

.

Case: 17-13678 Date Filed: 05/24/2019 Page: 14 of 3215 diligence factors , all of which

— for reaso n s we wi ll explain

— w eigh heavily here in
f

a vor of a dete rmination that t he officer s ’ two

- day seizure of Babc ock ’ s phone was not just a bri ef “ investigatory stop ” but rather a full

- blown seizu re that required a showing of full

- blown probable cause

. See Plac e , 4 62 U.S. at 699

– 700

. L ook ing f irst to d urat ion , t he government cites Un ited St ates v. Brignoni

Ponce , 422 U. S. 873 , 881 (1 975) , for t he pr oposition that law enforce ment ma y

“ conduct a lim ite d wa rr antles s s e izure of a pers on or item ‘on f act s that do not
constitute probable cau se
. ’ ” Br. of App e llee at 1 5

. Br ignoni

- Ponce , however,

c onsidered only whether a momentary stop for “ a brief question or tw o ” was permissibl e on l e ss than probable c aus e. 422 U.S. at 880 ; s ee also Place , 462 U.S. at 709 (des cri bing Terry and Brigno ni Ponc e a s involving “ m o menta r y ” stops )

. But t hat ’ s a fa r cry f rom the two

- da y pre
- warrant seizure at issue here

. T he
g overnment also points to what it cal ls the “simila r ” ca s e of Laist , in which we
hel d tha t a 25

- day de lay between a seizure and a warrant was permissi ble

. 70 2
F.3d a t 6 1 4

– 1 5

. But L aist isn ’ t similar at all ; the s eizure in that case was based on probable cause, not mere reasonabl e suspic ion. Id

. ; s ee als o B urg a rd , 675 F.3d at
1033 (explaining , in justif yi ng a six

- day delay, tha t a se izur e supported by probable cause permits a much g reate r in tr usion t ha n a se izure suppor ted by mere
reasonable suspicion)

.

Case: 17-13678 Date Filed: 05/24/2019 Page: 15 of 3216 What of the more analog ous decisions in Plac e and Pu g li si ? T he government seeks to distinguish the m o n the ground that bot h c ases a na lyzed the

s e izure of lug gag e “ a s essentially a de ten tion of the person. ” Br. of Appellant at 16
n.4

. T he governm ent asserts that Puglisi , in p articular, is inap t b ecause the Court
there held that “ [f] or ti me eve n to be re levant, the s eizure of l ugga ge must hav e
actu ally or cons tructiv ely seized the person
. ” 723 F.2d at 788

. Two responses. For starters , w e don ’ t think that t his one line, ta ken a lo ne,

r epresents th e ho ldin g o f Puglisi

. See Dantz ler v. I

. R

. S

. , 1 8 3 F.3d 1 247, 1251 (11t h Cir. 1999 ) (“A judicial o p inion is not a st atute, and not every sentenc e in a judicial opinion is law.”). Construc tive seizure of the person was n ot the only
ele me nt rele vant t o whet her the lug gage detention in Pug lisi was permiss ible base d
on reasonabl e suspicion alone

. Instead , we a nalyzed the 140

- mi n ute seizure
ag ainst P lace ’s considerations of duration, intrusiveness, and di ligence before deeming t he dete ntio n unlawful

. Puglisi , 723 F.2 d a t 788 , 7 90

– 91

. Furthermore

— and mo re i mportan tly

— it ’ s not c l ear w hy , u nder the r a t io na le
of Place and P u glisi , an offic er ’ s c onfisca tion of a cell phone is any less a
constr uctive seizure of its owner than his detention of lug ga ge (whic h , per P lace ,

wo uld make even 90 minutes too long). In Place the Court re a s one d t ha t whil e a suspect whos e lugg age is detai ned i s “technically s till f r ee to continue his tr av els,”
the seizur e might nonetheless “effectively restrain” him by d i s rupting his t ravel

Case: 17-13678 Date Filed: 05/24/2019 Page: 16 of 3217 p lans. 4 62 U.S. at 70 8

. Given the ubiquity of cell pho ne s

— and our incr e asing
reli ance on them

— it ’ s no s tretch to h a zard th at a modern

- da y trave ler would li kely
rather arrive in a strange place with out her luggage th an without her phone.
Without t he forme r , she m ay be l e ft with only th e “clothes on [ he r ] back,” P uglis i , 7 23 F.2d at 786 , but without the lat t er she may b e lef t without direct ions, h o tel
reservatio ns , and payment and ride

- share apps, not to mention voice, t ext, an d
email communications

— in s hort, isola ted and incapacitated

. W hatever hef t the

constru ctive

- s e izu re argument ha s with respec t to lugg age applies equally (if not a for ti ori ) to cell p hones

. In any event , no matter wh at one thinks about the relative imp ort of lugga ge and phones , it ’ s clea r tha t t he duration of the se izure in thi s cas e
p uts i t in a di f ferent bucket t han the on
- th e
- spot in quiry h ypo th esized in Place , see 462 U.S . at 705

– 706, or carried out in Lawing , see 703 F

. 3d at 238

. 4
Next , t he intrus ion into Babcock ’ s possessory inte rest i n his priva te property

was seri ous
. For m any of th e reasons just explained, a pe rson’s posse ssor y interest
in his ce ll phone is at least as high as

— if not higher than

—his interest in his

4 Th e govern m ent sugges ted for the first time at oral ar gum en t that , r ather than lasting tw o da ys, the reasonable

- suspicion

- b ased se izur e lasted o nly until Det e ctive Broughton use d th e phon e to pro mpt C. A

. ’ s con fes si on , at which tim e the reasonable susp i ci on became pro bable caus e and, presum ably , washed away any b ud din g issues with the se izur e
. We decline to wade into thi s argument when the ent ire record bel ow is predicated on the seizure l asting t wo day s
. B ec aus e t he government made no a r gumen t

— and th e di stri c t cou r t made no find ing

— concerning t he length of t im e between the seizure and the c o nfes sion , any determina tion of the same on our part would be m ere sp ec u l ation

. See Byrd v. United States , 1 38 S

. Ct. 15 18, 1 530 (2018) (decli ning to consider the gove rnment ’ s ar gument rai sed for the first time on appeal whe n argument was predicated on fa c tual issue “ not addressed ” below and “ un clear ” from the record )

.

Case: 17-13678 Date Filed: 05/24/2019 Page: 17 of 3218 luggage

. A smart p h one, as the Supreme C ourt recently empha si zed , is un i que in
both the breadth and d epth of personal infor matio n it st or es , in cludin g “pho togra phs, picture mess ages, t ext messages, Int erne t b rowsing h istory, a calendar, a thousand

- e ntry phone book”

— informa tion that, all told, “rev ea l [s]
much more in combina ti o n than any isola ted record. ” Riley v . Califor nia , 573 U .S.
373 , 394 (2 014)

. In ot her w ords, while a pi e ce of l uggage may hol d certa in physical items that an individ ual needs for a trip, a cell phone hold s “ [ t]he s um of

an indi vidua l’s private life ”

— he nce our attentiveness to (which is to sa y obsessi on with) our cell phones. I d

. Put simply, the governmen t ’ s confi sc ation of Bab cock ’ s
p hone for a period of two days

— and with it his personal messages, cont acts, calendar, and mo re

— worked a serious interf er enc e with his possessor y interes ts , and undermine s the government ’ s curren t contention that the s eizure wa s but a

“ limited intrus ion ” al lowable based on m ere reasonable suspicion

. F inally, diligence . Det ective Broughto n ’ s actio ns he re

—ho ldin g o nto
Bab c o ck ’ s phon e over the weekend r ather than more prom pt ly attem pting to secur e

a warrant , either tel ephonicall y or in p erson

— further confi rm that the seizure i n this c ase looks nothing like a Terry st op
. The g overnment ha s o f fered n o explanati on as to why D et ect ive Broughton wait ed more than tw o days to tak e any action regarding th e phone , n or does the record ev id e nce ind icate that he explain ed
to Babcock when or whether he could expect to get his phone back

. An d w hile a

Case: 17-13678 Date Filed: 05/24/2019 Page: 18 of 3219 two

- day delay cer tainl y wouldn ’ t cro ss th e line in the probable

- cause cont ext , see,
e.g . , Laist , 7 02 F.3d at 61 4

– 1 5 ( approving a 25

- day d elay in o btainin g a warrant
follo wing a proba ble

- cause seizure ) , we know from p recedent t hat it ’ s well outsid e th e re alm of a permissi ble Terry stop , and thu s w eigh s h eavily against a finding of diligence her e , s ee P lace , 4 62 U.S. at 710 ; Virden , 488 F.3d at 1321 ; Farm La b or , 3 08 F.3 d at 546

– 47

. * * * Accordingl y, we reject the governme nt ’ s conten tion that the offic ers ’ t wo
day de tentio n of Bab cock ’ s cell ph on e was a mere investigatory “ stop ” a llowable
based on reas ona ble suspicion alone

. Rather, we h old that it “ r ip ened ” int o a fu ll

blown s e i z ure that requ ir ed probable cause. See Puglisi , 723 F. 2 d at 784

. B The government conten ds, in the alternative , tha t it can meet the probable

ca use stan d ard and, further, that i t can show that exigent cir cum st an ces justi fied a

war ran t less s eizure. We will consider the two component s of the government ’ s

ar gument in turn, loo k ing fir st to whet h e r the off ice rs at Ba bc ock ’ s res idence had probable caus e to be l i eve that his ph one cont ained evidence of a cr ime , and th e n to
whet her exi gen t c ircumstance s ex cus ed the m from the need to obtain a warrant
p re
- se i z ure
. Case: 17-13678 Date Filed: 05/24/2019 Page: 19 of 3220 1
P robable cause t o seiz e property i s w hat it s ou nds like

— a be li ef that
evi dence wil l p robably be f o und in a particular locat ion. See Uni te d States v.
Nor iega , 676 F.3 d 1252 , 12 61 (11th Cir. 2012)

. As the Supre me Court re cently reiterated, p robable cause “is not a high bar.” D istrict of C olumbia v. Wesby , 13 8
S . C t. 577, 586 (2018) (quoting Kaley v. U nited States , 5 71 U.S. 3 2 0 , 338 (2014) )

. Although p robab le cause re quires more t han rea sonable sus picion that criminal
behav ior is afoot , it does n ’ t entail the s ame “standard of conclusiveness and
pro bability a s th e f acts necessary to support a conviction .” Uni ted S tates v.
Dunn , 345 F. 3d 1285, 12 90 (11th Cir. 2 003) (int ernal q uotati ons omitted)

. Rat her , it requi res only “ a substantial chance ” that evidence of c riminal activity exists.
Illinois v. Gates , 462 U.S. 21 3, 243 n. 1 3 (1983 ). We recently expla ined that this

“ su bstanti al cha nce ” exi sts “ where the facts with in t he co l l ective knowledge o f law
enforcement o fficials ” suffice “ to cause a person of reasona b le caution to believe
that a criminal offense ha s been or is being comm itted ”

— and here, that evi dence
of that offense w il l be found in a pa rticular pla ce. Gat es v. Kho ka r , 884 F.3d 1290,
129 8 (1 1th Cir. 2018 ) (internal quotation marks omitted)

. Ba bcock contends that while the officers in th is case mi ght hav e s uspected that something was up, the ir collective knowledge a t t he time of the sei zure did n ’ t
ri se to the l evel o f p roba ble cause tha t a c rime had been committed. To ev aluate

Case: 17-13678 Date Filed: 05/24/2019 Page: 20 of 3221 that contention , let ’ s recap : At the time Detective B roughton re tained Babcoc k ’ s
p hone , the officers knew

—

• that a dome st ic

- distu rban ce call h ad reporte d a female at Babcock ’ s re sid en ce y ellin g “ S to p, s top , stop ! ” ;

• that after Babco ck had de nied that anyone e lse was in his camper , a teenage g irl emerge d wit h cuts on her l egs ;

• that Ba bc ock had accompanie d the girl to a Hal loween pa rt y t he night b efore , where she had consumed al co ho l and d rugs, a nd tha t she was in his c amper t he next m orning ;

• that the g irl had b een in or on Bab cock ’ s bed and lef t traces of blood there;

• that the g irl ha d been dis tr aught , hol ding a knife to her ow n throat and say ing , “ I just want to d ie ” ; and

• that short ly aft e r they arriv ed at B ab co ck ’ s residence, the girl appeared to be pani ckin g o r suffering an o v erdose

. F inally

— and p erh aps most telling ly

— the of f

icers knew that , while th e girl s at o n Babcock ’ s bed with the kn ife t o her nec k , Babcock called her “ dumb a s f * * * ” and
then comp lain e d

— in the present tens e

— that “ this is w hat I deal with right here

. . . you gotta do drama and fighting me all ove r t he pla c e
. ”
Coll ectively, the se circumst ances gave th e offic e rs p robab le c ause to believe
that Babcock had comm itted a crime against C.A

. This common

- sen se conclusion
doesn ’ t depend on any particu lar fact taken in isolation ; rat her, as is “ often ” the

ca se, “ th e whole is

. . . greater th an the sum of its par t s
. ” Wesby , 138 S. Ct. at 58 8 ;

s ee United Sta tes v. Arv iz u , 534 U

. S. 266, 274 (2002) (rejecting a “ div i d e
- and

Case: 17-13678 Date Filed: 05/24/2019 Page: 21 of 3222 conquer ” approa ch and instruct ing courts to e valuate probable cau se in l ight of the
totali ty o f t h e ci rcumst ances ). Here, B abco c k ’ s lies c ont ribu te d to probable ca use ,

s ee Wesby , 138 S. C t. at 587 (citi ng D ev e npe ck v. Al ford , 543 U.S. 146, 149, 155

– 56 (2004) ) , as did h is own pres ent

- tense statements clearly indica t ing an on go in g

r elationship

. Whe n t he officers considered Babc ock ’ s own utteranc es i n light of
the lit any of other suspicio us facts the learn ed , th e y c ertainly c ould have suspected

a “ subs tanti al chance of cr iminal activ ity

. ” Gates , 462 U.S. at 243 n. 1 3.
F rom t here, it r equire d no le a p f or the offi cers to deduce t hat evidence of a crim e would likely be found on Babcock ’ s phone

. The officers al rea d y k new t h at
the phone contained on e eyebrow

- raising video suggesting an ong oing re lations hip between a gr own ma n and a teen age g irl

. It was em inently re asonable fo r them to
believe that addit ional evidence of that relationship

— messag es, texts, pict ures,

v ideos , etc.

— would be found in t he s ame pl ace
. T r ue, as Babcock points out, t h e government has been a little w ishy

- washy
about the exac t cr ime that the o fficer s suspecte d at the time of t he s e izure

. The
gover nm ent doesn’ t contend th at t he officers had p r obable cause to believ e that th e phone c ontained evide nce of chi l d porno graphy ; rather, it concedes that un til
Detective B roughton confr ont e d C .A . with the phone a t the h ospita l post

- seizure , he had “no reas on to be lieve that there we re video s of se xu al a c tivity between [the]

two

. ” Import ant ly , though, o ur prec edent d oes n ’ t require officers to pred ict the

Case: 17-13678 Date Filed: 05/24/2019 Page: 22 of 3223 eventuall y - charged offense in order t o d emo nstr ate probable cause , only that the

co llective facts would cause a “ person of reasonable caution ” t o believ e that “ a criminal offense has been or i s being commi tted. ” S e e Khokar , 8 84 F.3d at 129 8 (emphasis ad ded) (inter nal quotation marks omitted )

. H er e , t h e government ’ s ar g uments at the sup pression heari ng focused mainly on p reser ving bot h the video of C.A. o n t he bed and any evidence that mig ht have shed l ight on the ev ents leading u p to it

. An d indeed , that is ex actly
what the officers ended u p f i n din g : ev ide nce of an illegal, coer cive relations hip ,

co nfirming the suspicions sp arked by the video ’ s po rtraya l of Babcoc k ’ s disdainful , bullying tone a nd C.A. ’ s d istra ugh t ap pearance
. The fact that the p h one also (and unexpectedly ) conta ined pornog r aph ic im ages and vi deos does n ’ t
invalidate probable cause for any number of Florida state cri me s t h e of ficers

r e aso n ably could h ave believe d oc curred base d on the s cene greet ing th em at
Babc ock ’ s re si dence

. See , e .g. , Fla. St at. § 794.05 ( 1) ( “ Unl awful sex ual a ctivity
with ce rta in minors ” ) ; i d. § 794.0 11 (4)(a) ( “ S exual battery ” ). Accordi ngly, w e hold that on th e s e fac t s th e o f ficers had probab le caus e to believe that Babco ck was
gu ilty of a crime, a nd that evidenc e of the crime would be fo und on his phon e. 2
Of co u rse, p roba ble cause isn ’ t alone enough to seize an indivi dual ’ s
pe rso nal prop e rty

— officers typic al ly n e ed a war rant

. “ [ A ] wa rrantless search

Case: 17-13678 Date Filed: 05/24/2019 Page: 23 of 3224 a nd seizure can be justif ie d, ” ho wever, “ w h en prob able ca use has been established

to believe that evi den ce w ill be removed o r destroyed before a warrant can be
obtai ned

. ” Unite d Sta t es v. Young , 909 F. 2d 442, 446 (1 1 th Cir. 1990)

. Th is exception

— one branch of the “ exigent

- circum stan ces ” doctrine

— entails , like probable cause itself, an o bjective inquiry. S ee U nited States v. Bradle y , 644 F. 3d 1213, 1262 (11th Cir. 2011)

. His toricall y , we ha ve found the ex igent

- cir cu m stanc e s exception

“ particularly compelling ” in drug cases “ bec ause cont raband and record s can b e easily and quickly dest ro y ed while a searc h i s pr ogres sing. ” You n g , 909 F.2d at
446

. The sa me is true of electron ic files. I n Bradley , for instance, we fou n d that
the exigent

- circums t ances exception permitted of ficers to shut down a comp a ny’s

s ervers

— a seizure of the company’ s p ro pe rty

— when mul t ipl e e mployees “had t h e abili ty and incenti ve to, after learni ng of the raid, des troy damning information

c on tained on the computer servers

. ” 6 44 F.3d at 1 262

– 63

. To be clear , it ’ s n ot that a cell ph o ne its elf create s an exi gent cir cum stance

.

“ T a ken t o i t s logical conclusio n, ” that “ would permi t police of ficers t o seiz e now
u biquitous cell p hones fro m a n y p e r s on, i n any place , at a ny time , so long as the ph o ne contains photog raphs or vide os that coul d serve as evidence of a crime

— si mpl y bec ause th e ‘na tu r e ’ of the d evice use d to capture that evi dence might result
in it b eing l ost.” Cr ocke r v. Beatty , 886 F. 3 d 1132 , 1137 ( 1 1th C ir. 2018)

Case: 17-13678 Date Filed: 05/24/2019 Page: 24 of 3225 ( emph asis i n o riginal)

. In Crocker , we held that th e exigen t

- ci r cumstances exception di dn’t appl y w here an offi cer h ad s e i zed a bystander’s phone to prevent
d ele tion of photographs that he o bserved the onlooker snapping foll o wing a hug e highway crash. Id

. A bsent any reaso n for the officer to th i nk that the bys tander
wouldn ’ t preserve the p ictures o r w ould refu se to tu r n t he m over if ask ed , we found the government ’ s e xige nt

- circ umstan ces argum ent u n convin ci ng
. Id

. This cas e is d i ffe rent

. Given the fact s here , a reason able, experienced agen t
certain ly could have be l ieve d that Ba bcock

— the suspec t, not a mere by stand er

—

wo u ld delete any incri minating evidence o n hi s phone before a war rant coul d be
obtained

. Fo r st arters, Ba bc ock ha d tried to d ec eive the responding officer s from the get

- go , d en ying t hat anyone else was in hi s camper , reporting t hat C. A. had randomly sh ow n u p at his house i n th e midd le of the ni ght , and claiming that he
didn ’ t know her age

— all li es
. Moreover Ba b c ock s urely knew that he was under suspicion once Detective Br oughton as ked to search the camper and to further inspect his ph one
. Finally, of co urs e, a nd o n top of all that , the el ectronic files on
Babcoc k ’ s phone coul d have be en “ quickly destroyed whil e [the ] search [ wa] s
progr e ssing. ” Young , 9 0 9 F.2d at 44 6. All told, a s in Bradley , it was rea sonable
for the officers here t o c onclu de that Babc ock h a d the “ ability an d incentive t o, after learning ” of th e inv estiga tion in to his relati onsh ip with C.A., “ des tr o y

Case: 17-13678 Date Filed: 05/24/2019 Page: 25 of 3226 damnin g informati on contain ed on ” hi s ph on e
. 644 F. 3d at 1262

– 63. That ’ s all
the exigen t

- circumstances doctrine requ ire s. 5
Babcock conte nds t hat hi s offer to e

- mail the video to th e officers r e moved

an y urgency , thereby undermin ing any exigent

- c ircums t ances argument

. He cites

our decision in United States v. Hernandez

- Cano , 808 F.2d 779 (11th Ci r. 198 7) , for th e proposi tion that officer s can ’ t cl a im exigen t cir cum stance s when th e supposed risk can be allev iated b y alternati ve means
. But Hernande z - Can o was different

— and in fact boomerangs back around on Babcock here

. There , we

con sid ere d a warrantless sea rch of a suspect ’ s lugga ge and det erm ined that , bec ause o fficers had probab le cause to arrest him at the time of the search , “ any exigencies i n h erent in t h e situation could have been removed ” by simply doing so

.

5 Bab cock asserts that the government f orfeit e d its e xig en cy arg um ent by faili ng to use the phra se “ e xigen t cir cu mstance s ”

— and failing to full y develop its p os ition regarding the same

— in it s response to the motion to suppress. We disagree

. While i t ’ s t rue that a lternative the ories of admissib ility

— i ncludin g e xigen t c i rcumst an ce s

— can be forfeited ev en w hen the g overnment is the appellee or respondent , s ee Ste agald v. U nited S tates , 451 U .S. 204, 208 ( 1981) ; Giordenello v. U nited S tates , 357 U.S. 480 , 487

– 88 ( 1958) , we conclude that the governme nt did enough her e t o pr es erve i ts exigen t

- circumstances argu ment

. To be sure , i n re spon ding to Babcock ’ s motion t o s uppress , the government didn ’ t u se the phrase “ exigent circu mstances ” or cite case law specif ical ly in supp o rt o f the exception

. It did a rgu e, t hough, tha t “[ t]he deputie s had probable cause to beli eve that t he ph one had evidentia ry value ” a nd that “deten t ion of t he cell ular phone wa s n e cessary to preserve the evidence observed by the deputies.” Gov ’ t Resp. Mot

. Suppress at 5 (emphasis adde d)

. T h at

— whet her a ccompanied by ma gic wor ds or not

— is th e very def inition of the exigen t

- circum st ances exceptio n
. See , e.g. , Yo ung , 909 F. 2d a t 4 46 ( “ [W] hen probable cau se ha s been established to believe tha t evidence will be removed or destroyed b efore a warr a nt can be ob tai ned, a wa rrantless search an d sei z u re can be justified

. ” )

. That t he government presented a more r obust version of it s a rgume nt on appeal does n ’ t ren de r its initial argum ent null

. See, e .g . , Sec ’ y, U.S. Dep ’ t of Labor v. Presto n , 873 F.3d 8 77, 883 n. 5 (11th Cir. 2017) ( explaini ng that “ [ o] fferin g a new argum e nt or case citation in suppor t of a positio n advanced in the district cou rt is permissible

— an d often advisa b le ” lest “ the quality an d depth of argumen t [fail ] to improve o n appeal

— an un f ortunat e r es ult ” ) , cert. denied sub nom

. Preston v . Acost a , 138 S. Ct

. 2680 (2018)

.

Case: 17-13678 Date Filed: 05/24/2019 Page: 26 of 3227 Id . at 782. We ex pla in e d that “ [e] ven if e xigent circumstanc es existe d that j us tified
th e s ei zu re o f the suitcase to prevent the loss or destructi on of its contents, th e
governme nt stil l had t o ob tain a warrant to sea rch the suitcase. ” Id. (emp hasis added)

. Here, the off i ce rs did n ’ t conduct a w a rra ntl ess search

. Instead, f ac ed wit h the p otential de st ruction of ev idence, they did exactly what Hernandez

- Cano suggest s the y s hould hav e do n e

— the y se i ze d the phone “ to prevent the loss or
destruction of its content s , ” and th en obt ain ed a warrant before searching th rough
it

. See id

. Thu s , because a r easo n a ble officer could have believe d that Babcock would
d elete a ny incriminati ng evidence o n hi s p hone before a warrant could be
obtained

— and because non e of Babcock ’ s arguments c onv ince s us otherwise

— w e fi nd that the exig ent

- circumst an ce s e xc eption applies in this case

. 6
* * *

6 The governm en t also argues in the alternative that Bab coc k consented to the se i z ure by volunt a rily provi ding his pho ne t o the office rs to display t he video o f C. A. threa t ening s elf

- h arm
. It is well

- s e t tled , h owever , that “the scope of a search base d on con sent may n ot exceed the scope of the given consent.” U n ited States v. Watkins , 760 F.3d 1271, 12 79 (11th Cir. 2014) (citing Florida v. Jimeno , 5 0 0 U.S. 248 , 251 (1991) )

. T he st andard f o r measuring th e scope o f co nsent is “objective reasonableness”

— what “ would the typi ca l reason able p erson h ave understood b y t he excha ng e between the of ficer and the [ individual giving the consen t]?” I d. ( internal quota tion mar ks o mitted )

. Here, Babcoc k clea rly con se nt ed only to the officers’ viewing the video he s howed th em . A fter th e initial viewing, De puty Ols on as ked fo r t he phon e again, for the express purpose o f showing Officer M cMah a n the video

. Ba b cock cons e nted to th e o f fi cers viewing t he clip again, but th en ask ed for his phone back and refused consent when Dete ctive Brought on as ked to p oke ar oun d further. Contra ry to the go vernment ’ s c o ntention , t he initial limited

- in

- sc ope consent do e s n ’ t j ustif y a n unl im ited

- in

- scope full s eizure ov e r B abcock’ s objection. Case: 17-13678 Date Filed: 05/24/2019 Page: 27 of 3228 To s um up , we reject the gover nment ’ s c ontention th at a t wo
- day

warra n tles s seizure of a suspect ’ s cell phon e is permissible based on reasonable suspic ion alone. W e conclud e , however, tha t the warrantless s e iz ure of Babcock ’ s pho ne was lawf ul because the officers on the sc ene had probab le cause to believe
both that e videnc e of a crime w ou ld be fou nd on it and that the e vidence would be destroyed before the y c ould obtain a warra nt.
I II
Babcock separ ately cha ll eng e s his sente nce, ar g uing that it is both (1) procedura lly unreasonab l e beca use the district co urt er ro neo u sly im p osed two
enhanceme nts for the sam e harm and (2) subst antivel y unreasonable becaus e i t i s too harsh in ligh t of the facts. 7 Neither arg umen t i s persuasive.
Babcock raises h is procedural

- rea sonab le ness argum ent for t he fi r st time on appeal , so we can c o rrect a n y missteps only if he shows a “ pla in error ” that affect s h is substantial rights an d that se riously undermine s the fairness, integ rit y, or publi c
rep utation o f judic ia l proceedin gs. S ee Uni ted States v. Sh elton , 400 F.3 d 1325,
132 8

– 29 (11th Cir . 2 0 05). Babco c k essentially argues that the district court’s appl ica tion of both § 2G2.1(b )( 2) and § 4B1 .5(b ) of the S entencing Guidelines

con st i tu te s im permissible do ub le

- co u nting.

7 B abcoc k also argue s that his sent ence is proc edural ly un reasonable because the government did not group t wo counts of conviction w hich were based on the sam e harm. As the g overnm en t po in ts o ut, thoug h, the Gu ideli nes sp e cificall y e xc lude co nvictions under § 2G2.1 from the grouping rules. See U.S. S. G. § 3D1.2 (d)

.

Case: 17-13678 Date Filed: 05/24/2019 Page: 28 of 3229 D ouble

- counting occurs when one pa rt of the Se nt e nc ing Guid elin es i s appl i ed to i ncrease a def endant’ s punishm ent on accoun t o f a harm that has alre ady been fully acc o unt ed for by applicatio n of another pa rt of t he Gu ide lines. Se e United State s v. Du d ley , 463 F.3d 1221, 1226

– 2 7 (11th Cir. 2006). Abs en t
evidence to t he c ontrar y , howev er, the presu mption is that “ the Sentencin g C ommission intended to appl y separate sec t ion s cumu lat ively , ” Uni ted States v.
K

apordel is , 5 69 F.3d 129 1, 1315 (1 1th Ci r. 2009 ) (citation omitted) , suc h that
what might app ear to be impermissible do uble

- c o unting is instea d what we will
cal l permis sibl e “ cumulative

- counting

. ”
We conclude that a p plyi ng both enhanc ements in this case cons titut e s cumulat ive

- ( rather than do uble

- ) counting

. Chapter Two of the Guidelines , focusing o n the sexual explo it ation o f minor s t hrough pictu res , provides that a n of f

en der ’ s base s entenci ng level should be enhanc ed b y two w hen “th e c ommi ssio n of a s exual act o r sexu al c ontact” occur s during a visual depicti on. U .S.S.G. § 2G2

. 1(b) (2) (A)

. C hapter Four then makes cle a r tha t whe n a “ pattern of

. . . prohibited sexual con t a ct ” occurs, a court sh oul d add fi ve t o “the off ense level
determi ne d un der C ha pter[] Tw o.” U. S.S.G. § 4 B1. 5(b). The Guidelines say

not hing a bout adding this enhancem ent to o nly a p ortion of the base level
determin ed under Chapte r Two , or othe rwis e adjus ti ng the calcu lation in an y

wa y

— instea d, they si mply presu ppose th at a c er tain offense level wa s dete rmin ed

Case: 17-13678 Date Filed: 05/24/2019 Page: 29 of 3230 under Chapter Two, and then i nstruc t the s entencing court to add five lev els , period. N othin g in t h e Guide lines , then, i ndicates tha t these sectio ns may not be applied cu m ul at ively

. S e e Kapordel is , 569 F.3 d at 13 15

. M or e over , and in any

e ve nt, it isn ’ t clear that the harm in § 4B 1. 5(b) ’s “ pattern of activity involvi ng prohib ited se xual contact” is “ f ully accounted for ” in § 2G2 .1(b)(2)’s “s exual act

or sex ual contact ” o cc u rrin g in a v isual depi ction , such that a pp lica tion of the two

sect ion s coul d be considered double

- counting at all

. S ee Dudley , 463 F.3d a t
1226

– 2 7

. There was no plain err or h ere.
L ooki ng next to s ubsta ntive reasonablen ess , Babcock argues that the natu re and circu mstances of t his case do not co mpel the same s e vere se nte nce required to
det er creators o f commer cial child porno graphy

. Basically , Babcock contends tha t
his cri me

— a n inap p ro pr iate , lo ng
- term relations hip with an older teenager

— does n ’ t i ndi cat e t hat h e is a threat t o children generally or affect the child

p orno g ra phy market a s would, fo r inst an ce, th e rape of a chil d for video
distribution or other pred atory productio n of c o mmercial child pornography

. Bab cock asse rts that b e cau se there is no evid enc e that he intended ever to sh ow
anyon e h is vi deos or p ict ur es o f C .A

. , his 324

- month sentence is sub stantively
unreasonable. We review challenges t o the substanti ve reaso nablen e ss o f a sentence for
abu se of discr eti on. Gal l v. United States , 552 U. S. 38, 41 (2007). The part y

Case: 17-13678 Date Filed: 05/24/2019 Page: 30 of 3231 challeng ing the sentence bea rs the bur d en of showing that the sentence is unreasonable in light of the record and the 18 U.S. C. § 3553(a) factors. United
St ates v. Tome , 611 F. 3d 1371, 13 78 (11th Ci r. 201 0). While we do not f ormal ly presume th at a within

- G uid e l ines senten ce is reas onable , we ord in arily expect it to
be so
. United States v. Hunt , 526 F.3d 739, 746 (11th Cir. 20 08). T hat a sentence
i s impo s ed well below the sta tutory maxi mum penalty may al so in dicate its

r eason ablen ess. See Uni ted States v. Gon z al ez , 550 F.3 d 1319, 1324 (11th Cir

. 2008) ( per curiam )

. T h ere is a certain intuitive logic to Babco ck ’ s argument he re

— it ’ s true that
nothi ng i n t he recor d n ec essarily indicates a pr opensity t o di stribute chil d
pornogr aphy

. That being said, Babcock ’s con duct falls sq uarely within the

con f i nes of § 2G2.1

— “sexually exp loiting a minor by pro duction of sexually explic it vi sual or printe d ma teria l ”

— and , as the sentencing judge emphasized , th e effect of his actions o n C. A. a nd her family w as far fro m insign ificant. W e are comfort a ble th at t he sentencing j udge took into consi deration al l of the relevant
circumst ances when h e sentenced Babcock to 32 4 mon t h s

— a downward var iance
from the 360 to 720 mon th s r ec ommended by the Guid elines

. See Gonza lez , 550
F.3d at 13 24. Ac c ordingly, w e find no ab us e of d iscretion in the dist rict court ’ s

s e ntencing d ecision

.

Case: 17-13678 Date Filed: 05/24/2019 Page: 31 of 3232 I V For the foregoing rea s ons, w e hold (1) th at rea s onable sus picion alone coul d

n ot have justified t he officer s ’ warrantl ess two

- d ay seizure of Babco ck ’ s ce ll
p hone ; (2 ) tha t the of ficers in thi s case had probabl e caus e to b elie ve that a crime
had been comm itted , that e videnc e of the crime would be found o n Babcock ’ s
p hone , and that th ere was a risk that Ba bcock would d estro y the evidence bef ore they could get a wa rrant, such that the seizu re did n ot violate the Fourth
Amen dment ; and (3) that B abcock ’ s se nte nce was both proce durally a nd
subst antively reaso n ab le . A cc ordingly , w e affi rm the district court ’ s d enial o f
Ba bcock ’ s mo tion to supp re ss as well as its 324

- mo nth sen tence

. AFFIR MED. Case: 17-13678 Date Filed: 05/24/2019 Page: 32 of 32