United States Court of Appeals

for the Fifth Circuit ____________

No. 21-51229

____________

United States of America, 

Plaintiff—Appellee, 

versus

Hae Yeong Song, 

Defendant—Appellant. 

______________________________

Appeal from the United States District Court 

for the Western District of Texas

USDC No. 5:19-CR-63-1 

______________________________

Before Jones, Clement, and Haynes, Circuit Judges.

Per Curiam:*

The Government charged Hae Yeong Song with receipt and 

possession of child pornography after investigative agents found an illicit 

image on Song’s cellphone during an investigation into an unrelated incident. 

Song subsequently moved to suppress the child pornography evidence, 

asserting that the agents violated his Fourth Amendment rights when they 

seized and searched his cellphone. The district court denied Song’s motion 

_____________________

* This opinion is not designated for publication. See 5th Cir. R. 47.5.

United States Court of Appeals

Fifth Circuit

FILED

August 1, 2023

Lyle W. Cayce

Clerk

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and found him guilty after a bench trial. Song appealed. For the reasons set 

forth below, we AFFIRM.

I. Factual Background

When he was a soldier in the United States Army, Song was accused 

of sexually assaulting another soldier, “PFC Kim,” and recording videos of 

the assault on his cellphone. PFC Kim reported the incident to Army 

investigative agents. She also stated that, days after the alleged assault, Song 

messaged her on the “Kakao Talk” app,sent her one of the video recordings, 

and told her he would use it as blackmail if she refused to have sex with him 

again. PFC Kim permitted the agents to review her cellphone, where they 

found a video associated with the incident. 

After receiving PFC Kim’s report and the video, Special Agent 

Andrew Cerean began an investigation. He first arranged a standard

interview with Song at an Army field office. Before the interview, Agent 

Cerean attempted to contact the on-duty military magistrate judge and a 

second military magistrate judge to obtain a search and seizure authorization 

for Song’s cellphone.1

 Despite several attempts to reach them, however, 

Agent Cerean did not receive a response. Song later arrived at the office for 

the interview, where he was instructed to follow the standard practice of 

placing his belongings in a locker, which he did. 

The interview began casually, and Song was generally responsive. He

confirmed that he knew PFC Kim and that she had visited him. However, 

when Agent Cerean began questioning Song about his visit with PFC Kim, 

Song ceased responding and requested a lawyer. Based on PFC Kim’s 

report, the video from her phone, and his conversation with Song, Agent 

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1 A “search and seizure authorization” is another term for a “warrant” in the 

military context. See Mil. R. Evid. 315(a), (d)

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Cerean determined he had probable cause that (1) Song had sexually 

assaulted PFC Kim and (2) evidence of that assault would be on Song’s 

cellphone. Accordingly, when the interview ended, Agent Cerean declined 

to return Song’s cellphone. 

Before Agent Cerean was able to seek a search and seizure 

authorization, his commanding officer ordered him to give his attention to a 

different matter. Three days later, Agent Cerean submitted an affidavit 

detailing the results of his investigation, and a magistrate judge issued a 

search and seizure authorization for Song’s cellphone. The authorization 

permitted a search of “any contacts; call logs; texts; SMS; MMS: videos; 

images; call & Application Data, including contents from the ‘Kakao Talk’

application; as well as any deleted messages, content & application data 

between” Song and PFC Kim related to the sexual assault investigation. 

A different agent, Agent Jeffrey Cunningham, conducted the search. 

In his initial review, he was unable to find a particular video related to the 

sexual assault. So, he broadened his review. During this search, he stumbled 

upon an image of child pornography. He immediately ceased his review and 

obtained a second search authorization. During the search conducted 

pursuant to that second authorization, Agent Cunningham discovered

extensive images and videos of child pornography. 

The Government subsequently charged Song with receipt and 

possession of child pornography involving a prepubescent minor, in violation 

of 18 U.S.C. § 2252A(a)(2) and § 2252A(a)(5)(B), respectively. Song moved 

to suppress the initial image, and all evidence stemming from that image, as 

fruit of the poisonous tree. He urged that Agent Cerean’s initial seizure of 

his cellphone and Agent Cunningham’s subsequent search violated his 

Fourth Amendment rights. After two evidentiary hearings, the district court 

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denied Song’s suppression motion. Song proceeded to a bench trial, in which 

the district court found him guilty. After sentencing, Song timely appealed.

II. Standard of Review

Our review of a district court’s denial of a suppression motion is twofold: we review conclusions of law de novo and factual findings for clear error. 

United States v. Robinson, 741 F.3d 588, 594 (5th Cir. 2014). “[T]he clearly 

erroneous standard is particularly strong” where, as here, the district court 

heard oral testimony and “had the opportunity to observe the demeanor of 

the witnesses.” United States v. Gibbs, 421 F.3d 352, 357 (5th Cir. 2005) 

(quotation omitted). Accordingly, under that standard, we defer to the 

district court’s factual findings unless we are left with “a definite and firm 

conviction that a mistake has been committed.” United States v. Scroggins, 

599 F.3d 433, 440 (5th Cir. 2010). Importantly, we view the evidence “in the 

light most favorable to the prevailing party,” here, the Government. Gibbs, 

421 F.3d at 357.

III. Discussion

The district court concluded that neither the seizure nor the 

subsequent search violated Song’s Fourth Amendment rights. Therefore, 

suppression of the child pornography evidence was not warranted. As 

discussed below, we agree.

A. Seizure

We begin with Agent Cerean’s seizure of Song’s cellphone. Song 

makes two main challenges. First, he urges that Agent Cerean violated the 

Fourth Amendment’s protection against unreasonable seizures when he 

confiscated Song’s cellphone without a warrant. While seizures generally 

must be conducted pursuant to a warrant, see United States v. Place, 462 U.S. 

696, 701 (1983), there are exceptions. For instance, “the exigencies of the 

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situation [may] make the needs of law enforcement so compelling that [a] 

warrantless search is objectively reasonable.” Kentucky v. King, 563 U.S. 452, 

460 (2011) (second alteration in original) (internal quotation marks and 

citation omitted). Accordingly, under this “exigent circumstances 

exception,” an agent does not need a warrant to seize property if he has 

(1) probable cause to believe that a suspect might destroy evidence, and 

(2) exigent circumstances demand it. See Illinois v. McArthur, 531 U.S. 326, 

330–31 (2001); Place, 462 U.S. at 701. 

Here, the Government urges that its warrantless seizure of Song’s 

cellphone was justified by exigent circumstances. We agree. First, there is 

no real debate that Agent Cerean had probable cause that Song’s cellphone 

contained evidence of a sexual assault. PFC Kim’s report, the video on her 

cellphone, and Song’s interview provided ample basis for that conclusion, 

and Song’s counsel agreed as much at oral argument. That requirement is 

easily satisfied. 

Second, we are also satisfied with the district court’s determination 

that exigent circumstances existed. At the conclusion of the interview, Song 

was aware that he was under investigation for sexual assault. See United 

States v. Mata, 517 F.3d 279, 287 (5th Cir. 2008). Therefore, it was 

reasonable for Agent Cerean to believe that Song would remove evidence 

from his phone, which could be readily deleted. See id; see also United States 

v. Diaz, 435 F. App’x 329, 332 (5th Cir. 2011) (per curiam) (concluding that 

the warrantless seizure of a computer was justified under the exigent 

circumstances exception because the “digital images” it contained were 

“easily destructible”). That observation is bolstered here by the fact that 

Agent Cerean did not place Song under arrest at the conclusion of the 

interview. So, it was reasonable for Agent Cerean to assume that Song would 

have had the opportunity to delete incriminating evidence, had Agent Cerean

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not kept the cellphone. All of these factors weigh in favor of exigency. See 

Mata, 517 F.3d at 287. 

Song challenges the application of the exception because he says that, 

if any “exigency” existed, it was “manufactured” by Agent Cerean. We 

disagree. It’s true that an agent who deliberately “creates” exigent 

circumstances cannot later claim the benefit of the exception. King, 563 U.S. 

at 462, 471–72. But, under guiding Supreme Court precedent, an agent 

“creates” an exigency only when he “engag[es] or threaten[s] to engage in 

conduct that violates the Fourth Amendment.” Id. at 462, 469. 

Here, Agent Cerean’s pre-warrant conduct plainly did not violate, or 

threaten to violate, the Fourth Amendment. Song fails to cite to anything 

about the lead-up to the interview or the interview itself that would cause us 

to pause.

2 There’s no indication, for example, that Agent Cerean unlawfully 

required him to appear for the interview; unconstitutionally coerced Song to 

bring his cellphone to the Army office; or violated Song’srights by requesting

that Song place his belongings in a locker. Rather, Song concedes that such 

a request is “routinely done.” Moreover, the Supreme Court has expressly 

rejected the notion that an agent “manufactures” exigency if he conducts an

interview without a seizure authorization.

3

 See id. at 458, 466–67 (rejecting 

lower court tests that considered whether an officer could have obtained a 

search warrant prior to the development of the exigent circumstances). 

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2 In fact, his counsel conceded at oral argument that nothing about the interview 

violated the Fourth Amendment.

3 The Court observed that “[f]aulting the police for failing to apply for a search 

warrant at the earliest possible time after obtaining probable cause imposes a duty that is 

nowhere to be found in the Constitution.” Id. at 467. It therefore concluded that those 

tests were “unsound” and would “unjustifiably interfere[] with legitimate law 

enforcement strategies.” Id. at 464, 466. 

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Thus, for all these reasons, we conclude the exigent circumstances exception 

justified the warrantless seizure.

We now turn to Song’s second challenge, which involves Agent 

Cerean’s post-seizure conduct. Song asserts that it was constitutionally 

unreasonable for Agent Cerean to wait three days to obtain a warrant after 

seizing Song’s cellphone. Therefore, suppression was warranted. While a 

delay could possibly become unreasonable, Song has no authority that the

brief delay at issue here was unreasonable, particularly since Agent Cerean 

had a more pressing emergency in the few intervening days. See United States 

v. Martinez, 25 F.4th 303, 308–09 (5th Cir. 2022); see also United States v. 

Mitchell, 565 F.3d 1347, 1353 (11th Cir. 2009) (noting that delay may be 

reasonable where “some overriding circumstances arose, necessitating the 

diversion of law enforcement personnel to another case”); accord United 

States v. Stabile, 633 F.3d 219, 236 (3d Cir. 2011) (“[S]uch overriding 

circumstances were present because [the agent] was assigned to what was 

obviously important security work.”). In any event, “police imperfection is 

not enough to warrant reversal,” particularly when a delay is relatively brief.

United States v. Burgard, 675 F.3d 1029, 1034 (7th Cir. 2012). 

We therefore conclude that Agent Cerean did not unreasonably 

interfere with Song’s possessory interests, and the three-day delay did not 

amount to a Fourth Amendment violation.4

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4 We recognize that Song undoubtedly has a possessory interest in his cellphone, 

which likely holds personal and confidential information. See Riley v. California, 573 U.S. 

373, 393–94 (2014). But Agent Cerean’s overall diligence simply outweighs that possessory 

interest.

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B. Search

Song next asserts that suppression was warranted because Agent 

Cunningham violated the Fourth Amendment’s protection against 

unreasonable searches. Song advances two challenges. 

First, Song contendsthat Agent Cunningham impermissibly exceeded 

the scope of the search authorization. We disagree. As we have noted, 

“Fourth Amendment reasonableness is the bedrock principle that guides 

computer as well as physical searches.” United States v. Triplett, 684 F.3d 

500, 505 (5th Cir. 2012). With a physical search, an officer executing a search 

warrant may look anywhere evidence described in the warrant might 

conceivably be located. United States v. Ross, 456 U.S. 798, 820–21 (1982). 

Similarly, in the digital context, a “search may be as extensive as reasonably 

required to locate the items described in the warrant based on probable 

cause.” Triplett, 684 F.3d at 505 (quotation omitted). 

Here, the purpose of the search authorization was to locate 

conversations and media related to the alleged sexual assault;5 and Agent 

Cunningham “followed a reasonable protocol toward that end,” starting 

narrowly and expanding only as needed to find responsive data. See id. 

There’s no indication that Agent Cunningham freely roamed through 

all the contents of Song’s cellphone, as Song protests. He did need to 

broaden his search at some point. But that was not unreasonable. Rather, as 

we have advised, agents “should limit [their] exposure to innocent files”; but 

“in the end, there may be no practical substitute for actually looking in many 

_____________________

5 Recall that the search authorization permitted Agent Cunningham to examine 

Song’s cellphone for “texts; SMS; MMS; videos; images; call [and] [a]pplication data” 

from the Kakao Talk App, “as well any deleted messages, content, and [a]pplication data 

between” Song and PFC Kim “related to the alleged” sexual assault. 

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(perhaps all) folders and sometimes at the documents contained within those 

folders.” Id. at 506 (internal quotation marks and citation omitted). Because 

Agent Cunningham, “followed a reasonable protocol toward” locating the 

“items described in the warrant,” we conclude that he did not “violate[] the 

Fourth Amendment in a way requiring suppression.” 6 Id. at 505–06.

We now turn to Song’s second challenge, which asserts that the 

search authorization was impermissibly broad. We again disagree. It’s true 

that an overly broad warrant may violate the Fourth Amendment, and 

therefore, warrant suppression. See United States v. Sanjar, 876 F.3d 725, 735 

(5th Cir. 2017). But a warrant is sufficiently tailored—and therefore, not 

overbroad—when (1) it “provide[s] sufficient notice” of the particular areas

an agent may search, and (2) “probable cause exist[s] to justify listing” those 

areas as being subject to search. See id. at 735–36. The search authorization 

here satisfied both requirements.

First, the authorization provided specific notice of the types of data

(i.e., areas) Agent Cunningham could search: SMS, MMS, videos, images, 

calls, and application data related to the sexual assault. Even if that 

authorization was “somewhat generic,” it nevertheless “provided sufficient 

notice of what items” Agent Cunningham could view. See id. at 736; Triplett, 

684 F.3d at 504–05. Song concedes as much, recognizing that “the warrant 

restricted” Agent Cunningham “to discrete and limited categories of 

information on Song’s phone.” 

_____________________

6 We also find unpersuasive Song’s argument that Agent Cunningham should have 

ceased his investigation after locating some of the relevant videos. “[L]aw enforcement 

officers are under no constitutional duty to call a halt to criminal investigation the moment 

they have the minimum evidence to establish probable cause.” King, 563 U.S. at 467 

(quotation omitted). 

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Second, as discussed above, there’s no debate that the agents had 

probable cause to believe that Song’s cellphone contained videos, images, 

and conversation related to the alleged sexual assault. The authorization here 

constrained Agent Cunningham’s search to only content related to the 

incident. Accordingly, we conclude the authorization was not overly broad, 

and suppression was not warranted.

IV. Conclusion

For all these reasons, we AFFIRM.

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