# United States Court **of Appeals**  **f or 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 investigativ e agent s 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 Case: 21-51229 Document: 00516841935 Page: 1 Date Filed: 08/01/2023No. 21

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2 and found him guilty after a bench trial. Song appealed. For the reasons set forth below, we **AF FIRM** 

. I. Factual Background

When he was a soldier in the U nited 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 investigat ive 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 r eview 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 a n 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, howe ver , 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 plac ing 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) Case: 21-51229 Document: 00516841935 Page: 2 Date Filed: 08/01/2023No. 21

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3 Cerean determined he had probable cause that (1) Song had sexually assaulted PFC Kim and (2) evidence of that assau lt 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 t o 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 co ntacts; 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 investiga tion. 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. S o , 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 t he initial image , and all evide nce stemming from that image , as fruit of the poisonous tree. H e 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, th e district court Case: 21-51229 Document: 00516841935 Page: 3 Date Filed: 08/01/2023No. 21

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4 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 two

fold: we re view 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 hear d oral testimony and “ha d 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 defi nite 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, w e 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 U nited States v. Place , 462 U.S. 696, 7 01 (1983) , there are exceptions. For instance, “ the exigencies of the Case: 21-51229 Document: 00516841935 Page: 4 Date Filed: 08/01/2023No. 21

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

war rantless search is objectively reasonable

. ” Kentucky v. King , 563 U.S. 452, 460 (2011) ( second alteration in original) (internal quotation marks and citation omitted). Accordingly, u nder th is “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 G overnment 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, w e are also satisfied with the district court’s determ ination 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, i t was reasonable for Agent Cerean to believe that Song w ould remove evidence from his phone , which could be readily deleted

. See id ; s ee also United States v. Diaz , 435 F. App’x 329 , 332 (5th Cir. 2011) (per curiam) (concludin g that the warrantless seizur e 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 conclusi on of the interview . So, it was reasonable for Agent Cerean to assume that Song wo uld have had the opportunity to delete incriminating evidence , had Agent Cerean Case: 21-51229 Document: 00516841935 Page: 5 Date Filed: 08/01/2023No. 21

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6 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” exist ed , it was “ manufactured ” by Agent Cerean. We disagree. It’s true that an agent who deliberately “creates” exigent circumstances cannot later cl aim 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 any thing about the lead

- up to the interview or the interview itself that would cause us to pause

. 2 T here’s no indica tion, 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’s rights by requesting that Song place his belongings in a locker. Rather , Song concedes that such a request is “routinely done.” Moreover, t he Supreme Court has expressly rejected the notion that an agent “manufactures” exigency if he conduct s an interview without a seizure authorization

. 3 See id. at 458, 466

– 67 (rejecting lower court test s 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 obser ved 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 we re “unsound” and would “unjustifiably interfere[] with legitimate law enforcement strategies.” Id. at 464, 466. Case: 21-51229 Document: 00516841935 Page: 6 Date Filed: 08/01/2023No. 21

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7 Thus, f or all these reasons, we conclude the exigent circumstances exception justified the warran tless 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. Ther efore, 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, 103 4 (7th Cir. 2012).

W e 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. S ee Riley v. California , 573 U.S. 373, 393

– 94 (2014) . But Agent Cerean’s overall diligence simply outweighs that possessory interest. Case: 21-51229 Document: 00516841935 Page: 7 Date Filed: 08/01/2023No. 21

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8 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.

F irst , Song contends that 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). W ith a physical search , a n 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 , i n the digital context, a “search may be as exte nsive 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 i d. 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, a s 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

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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 betwee n” Song and PFC Kim “related to the alleged” sexual assault. Case: 21-51229 Document: 00516841935 Page: 8 Date Filed: 08/01/2023No. 21

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9 (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 t he search authorization w as impermissibly broad. We again disagree. It’s true that a n overly broad warrant may violate the Fourth Amendment, and therefore, warrant suppression. S ee 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 b oth 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 app lication 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 concede s as much, recognizing that “ the warrant restricted” Agent Cunningham “to discrete and limited categories of information on Song’s phone.”

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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 cons titutional 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). Case: 21-51229 Document: 00516841935 Page: 9 Date Filed: 08/01/2023No. 21

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10 Second, as discussed above, there’s no debate that the agents had probable cause to believe that Song’s cellphone contained vi deos, 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 w as not warranted.

IV. Conclusion

For all these reasons , we **AFFIRM**

. Case: 21-51229 Document: 00516841935 Page: 10 Date Filed: 08/01/2023