IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-0936-20

JEREL CHINEDU IGBOJI, Appellant

v.

THE STATE OF TEXAS

ON STATE'S PETITION FOR DISCRETIONARY REVIEW

FROM THE FOURTEENTH COURT OF APPEALS

FORT BEND COUNTY

NEWELL, J., delivered the opinion of the Court in which HERVEY,

RICHARDSON, WALKER, SLAUGHTER and MCCLURE, JJ., joined. YEARY, J., filed 

a dissenting opinion in which KELLER, P.J., and KEEL, J., joined.

OPINION

For exigent circumstances to justify a warrantless seizure of 

personal property, such as a cell phone, the record must show that law 

enforcement officers reasonably believed that evidence would be 
Igboji — 2

imminently destroyed if they waited to obtain a warrant to seize the 

property. Affirmative conduct by the suspect is not required, but it is 

one circumstance in the totality-of-the-circumstances test that may 

show that the potential destruction of evidence was imminent. 

However, the absence of such affirmative conduct does not foreclose an 

exigent-circumstances determination. We agree with the State that the 

court of appeals erred to hold that it did. We reverse the court of 

appeals and remand for a proper exigent-circumstances analysis. 

Background

Appellant worked at a Kentucky Fried Chicken in Stafford, Texas. 

Shortly after the restaurant closed for the night on December 10, 2015,

two armed men entered the restaurant through an unsecured back door. 

The men forced Appellant and his coworkers into the freezer while they 

took the money from the cash registers. After taking the money, the 

men fled, and the manager triggered the security alarm. Officers with 

the Stafford Police Department responded to the restaurant and began 

investigating the robbery that night. 

The Investigation

After responding to the restaurant, officers interviewed the 

employees that were present during the robbery. Through those 

interviews, officers learned that the robbers had entered through the 
Igboji — 3

back door, which Appellant had left unsecured when he took the trash 

out that night. Appellant cooperated with the investigation and told 

officers that he was asked to take the trash out by the manager, Tammi 

Ball. When officers spoke to Ball, however, she told them that Appellant 

had offered to take the trash out, which she found to be suspicious 

because, according to her, Appellant usually avoided work. Ball also 

said that Appellant took the trash out through the restaurant’s back 

door, which was against the restaurant’s policy.

The next morning, the Stafford Police Department assigned 

Detective Michael Ramirez to investigate the robbery. Detective 

Ramirez spoke with some of the restaurant employees. One of the 

employees told Detective Ramirez that Appellant had posted several 

videos that captured the initial police response to the robbery on 

Snapchat, a social media platform. The employee showed Detective 

Ramirez the videos on her phone, but Detective Ramirez did not obtain 

a copy or recording of the videos from the employee. He did not contact 

Appellant about the Snapchat video or otherwise attempt to secure the 

video that day.

Instead, Detective Ramirez called Appellant three days later and 

asked him to provide a formal statement. Appellant agreed to meet 

with Detective Ramirez, and Detective Ramirez drove Appellant to the 
Igboji — 4

Stafford Police Department. Once there, Detective Ramirez asked 

Appellant to show him the videos from Snapchat. Appellant explained 

that Snapchat automatically deleted the videos after 24 hours and told 

Detective Ramirez that he did not have any other videos relevant to the 

investigation. 

Detective Ramirez told Appellant that he only had two options: 

either (1) give consent to search the phone, in which case Appellant 

would have the phone back quickly, or (2) Detective Ramirez would have 

to seize the phone and obtain a search warrant, which would take much 

longer. Appellant responded that Detective Ramirez should get a search 

warrant, at which point Detective Ramirez seized Appellant’s phone. 

Detective Ramirez again asked Appellant for consent to search 

Appellant’s phone and told him that he had never had a search warrant 

denied in his decade of experience as a police officer. Appellant again 

declined to give Detective Ramirez consent to search the phone. 

Detective Ramirez then seized Appellant’s phone but did not search its 

contents.

Two days after the warrantless seizure of the phone, Detective 

Ramirez applied for a search warrant. The affidavit recited that 

Appellant told Detective Ramirez that Snapchat deleted any videos after 

24 hours and that he did not have any videos that could help the 
Igboji — 5

investigation, which Detective Ramirez “refused to believe.” The 

affidavit also recited that Detective Ramirez, being a forensic cell phone 

examiner himself, knew that content deleted from phones could 

sometimes be recovered. Similarly, the affidavit also later stated that 

cell phones save and delete information on both the internal memory 

system and the SIM card, so even though an item may have been 

deleted, it could still be possible to recover the deleted files. Detective 

Ramirez recited in the affidavit that Appellant’s motives for recording 

the initial investigation were unknown. Moreover, Detective Ramirez 

sought to discover whether Appellant might have “recorded the actual 

robbery as he has shown an inclination to record with his cell phone 

despite the propriety of the activity.” Finally, Detective Ramirez also 

relied in the affidavit upon Appellant’s refusal to consent to the search 

of the phone as support for the search warrant.

The warrant issued the same day as the application. The Warrant 

Return and Inventory indicated that the warrant was not executed, 

however, until two days later, which was four days after the phone had 

been seized. The search of the phone pursuant to the search warrant

revealed text messages that incriminated Appellant. It is unclear 

whether the Snapchat video was obtained during the search.
Igboji — 6

Police arrested Appellant on January 10, 2016. The State indicted 

Appellant for aggravated robbery.1 Appellant pleaded not guilty and 

elected to proceed with a jury trial.

The Trial & Suppression Hearing

Appellant filed a pretrial motion to suppress. In his motion, 

Appellant argued that Detective Ramirez’s warrantless seizure of his cell 

phone violated the Fourth Amendment and asked the trial court to 

suppress all evidence obtained from the phone. The trial court held a 

hearing on Appellant’s motion to suppress after jury selection.

Detective Ramirez testified at the suppression hearing. His 

testimony largely echoed the information in his affidavit. When asked 

how urgent he felt it was to obtain Appellant’s phone, Detective Ramirez 

responded, “The device, not very urgent at all. I needed a copy of the 

videos and any other evidence.” He conceded that he did not obtain a 

copy of the video from the employee who showed it to him. When asked 

why, Detective Ramirez explained that the employee did not want to 

copy the video because she was concerned that doing so would notify 

Appellant. Detective Ramirez acknowledged that, although he felt 

1 See TEX. PENAL CODE § 29.03.
Igboji — 7

obtaining a copy of the videos was “pretty urgent at that time,” he did 

not seize the employee’s phone. 

On redirect, Appellant’s counsel asked what prevented Detective 

Ramirez from obtaining a search warrant for Appellant’s phone earlier. 

Detective Ramirez responded, “[h]onestly, I was hoping with him being 

a witness, he would just consent and it wouldn't have been a big deal.” 

He also acknowledged that, before seizing the phone, he did not view 

Appellant as a suspect. When asked whether he expected the Snapchat 

videos to be inculpatory or exculpatory, Detective Ramirez stated, “I 

mean, I just believed that they were -- they were videos that could have 

contained evidence to my investigation. I really didn't know what all was 

on there. I saw one short clip. I didn't know what else was there. I mean, 

I really -- I don't know how to answer that, to be honest with you.” 

Detective Ramirez ultimately agreed that he could have obtained the 

warrant “a lot sooner” than he did. 

The trial court denied Appellant’s motion to suppress. The State 

offered—and the trial court admitted into evidence during the 

guilt/innocence phase of the trial—text messages obtained from the 

search of Appellant’s phone. The State did not offer the Snapchat video 

into evidence, however. The jury found Appellant guilty of aggravated 

robbery and sentenced him to 17 years imprisonment.
Igboji — 8

The Appeal

On appeal, Appellant’s sole argument was that the trial court erred 

by denying his motion to suppress the evidence obtained following the 

warrantless seizure of his cell phone.2 The court of appeals agreed, 

concluding that Detective Ramirez's warrantless seizure of Appellant's 

phone did not fall within the exigent-circumstances exception.3 In 

reaching this conclusion, the court of appeals cited our opinion in 

Turrubiate v. State for the proposition that the exigent-circumstances 

exception to the warrant requirement requires “proof of imminent 

destruction based on affirmative conduct.”4 Though some facts 

suggested that potential evidence could have been deleted 

automatically by Snapchat, the court of appeals found that the record 

lacked “any evidence showing or permitting an inference that Appellant 

was taking affirmative steps to destroy evidence on his phone.”5 Finding 

that the erroneous admission of the evidence seized from Appellant’s 

2 Igboji v. State, 607 S.W.3d 157, 160–61 (Tex. App.—Houston [14th Dist.] 2020).

3 Id. at 170.

4 Id. at 169 (citing Turrubiate v. State, 399 S.W.3d 147, 153–55 (Tex. Crim. App. 2013)).

5 Id.
Igboji — 9

cell phone was not harmless, the court of appeals reversed and 

remanded for a new trial.6 

In a dissenting opinion, Justice Christopher opined that the 

majority was wrong to apply the affirmative conduct requirement to a 

case involving the seizure of personal property.7 She noted that 

Turrubiate dealt with the warrantless search of a house, which 

implicated a protected privacy interest beyond the possessory interest 

a person has in his or her personal property.8 Instead, Justice 

Christopher opined the warrantless seizure of the cellphone was justified 

under the exigent-circumstances exception despite the lack of any 

affirmative conduct on the part of Appellant suggesting the imminent 

destruction of evidence.9

The State Prosecuting Attorney’s Office filed a petition for 

discretionary review, asking this Court to review the court of appeals’ 

decision. Specifically, we granted review to consider the following 

questions: 

6 Id. at 172.

7 Id.

8 Id. at 172–73.

9 Id. at 174.
Igboji — 10

(1) Do exigent circumstances to seize a cellular phone for 

fear of unintentional loss of evidence require that law 

enforcement act at the earliest possible opportunity?

(2) Do exigent circumstances to seize a cellular phone for 

fear of intentional destruction of evidence require 

“affirmative conduct” by the suspect?

(3) Does the exigent circumstances exception require proof 

that the evidence was unavailable from other sources?

However, the court of appeals’ decision rests on the proposition that the 

seizure at issue was unjustified because there was no evidence of 

“affirmative conduct” on the part of Appellant. To the extent that the 

court of appeals touched on the availability of the same information from 

other sources and the lack of alacrity with which Detective Ramirez 

sought the evidence, those were observations about the facts of the 

case and not part of the legal decision. Consequently, we dismiss issues 

one and three as improvidently granted and focus solely on the State’s 

second issue. The question before us is whether the court of appeals 

failed to apply the proper standard for determining whether exigent 

circumstances existed by requiring a showing of affirmative conduct on 

the part of a suspect suggesting the destruction of evidence is imminent.

Standard of Review
Igboji — 11

We review a trial court's denial of a motion to suppress under a 

bifurcated standard of review.10 We review a trial court's determination 

of whether a specific search or seizure was reasonable under a de novo

standard,11 but we give trial courts almost complete deference in 

determining historical facts that depend on credibility and demeanor.12 

Because the trial court did not make explicit findings of fact in this case, 

we review the evidence in a light most favorable to the trial court's ruling

and assume that the trial court made implicit findings of fact supported 

by the record.13 Generally, our review is limited to the record at the 

time of the suppression hearing.14

The Fourth Amendment

The Fourth Amendment guarantees “[t]he right of the people to 

be secure in their persons, houses, papers, and effects, against 

unreasonable searches and seizures[.]”15 Generally, the Fourth 

Amendment requires that searches and seizures be accomplished 

10 Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005). 

11 Kothe v. State, 152 S.W.3d 54, 62–63 (Tex. Crim. App. 2004).

12 Ford, 158 S.W.3d at 493.

13 Id.

14 Turrubiate v. State, 399 S.W.3d 147, 151–52 (Tex. Crim. App. 2013) (citing O’Hara v. 

State, 27 S.W.3d 548, 551 (Tex. Crim. App. 2000)).

15 U.S. CONST. amend. IV.
Igboji — 12

pursuant to a judicial warrant issued upon probable cause and 

particularly describing the items to be searched or seized.16 A 

warrantless search or seizure is per se unreasonable under the Fourth 

Amendment unless it falls within a recognized exception to the warrant 

requirement.17 

One such exception is based upon the existence of exigent 

circumstances. The exigent-circumstances exception applies when “the 

exigencies of the situation make the needs of law enforcement so 

compelling that [a] warrantless search is objectively reasonable under 

the Fourth Amendment.”18 The exception enables law enforcement 

officers to handle emergencies—situations presenting a “compelling 

need for official action and no time to secure a warrant.”19 Under this 

exception, law enforcement may be justified in conducting a warrantless 

search “to prevent the imminent destruction of evidence.”20 Whether 

law enforcement faced an emergency that justified acting without a 

16 United States v. Place, 462 U.S. 696, 701 (1983).

17 Missouri v. McNeely, 569 U.S. 141, 148 (2013); Place, 462 U.S. at 701; Kothe, 152 S.W.3d 

at 59 n.10 (“warrantless searches and seizures are presumed to be unreasonable”).

18 Kentucky v. King, 563 U.S. 452, 460 (2011).

19 Riley v. California, 573 U.S. 373, 402 (2014); McNeely, 569 U.S. at 149.

20 McNeely, 569 U.S. at 149.
Igboji — 13

warrant calls for a case-by-case determination based on the totality of 

circumstances existing at the time of the search or seizure.21 

Because a warrantless search or seizure is per se unreasonable 

under the Fourth Amendment, once a defendant has shown that a 

warrantless search or seizure has occurred, the burden shifts to the 

State to prove that an exception to the warrant requirement applies.22

To validate a warrantless search based on exigent circumstances, the 

State must satisfy a two-step process.23 First, there must be probable 

cause to enter or search a specific location.24 In the context of 

warrantless searches, probable cause exists “when reasonably 

trustworthy facts and circumstances within the knowledge of the officer 

on the scene would lead a man of reasonable prudence to believe that 

the instrumentality . . . or evidence of a crime will be found.”25

Second, an exigency that requires an immediate action on the part 

of law enforcement must exist.26 We have identified three categories of 

21 Cole v. State, 490 S.W.3d 918 (Tex. Crim. App. 2016); see also Lange v. California, 141 

S.Ct. 2011, 2018 (2021).

22 State v. Garcia, 569 S.W.3d 142, 148 (Tex. Crim. App. 2018); see also 43 George E. Dix & 

John M. Schmolesky, Texas Practice—Criminal Practice and Procedure § 18:20 (3d ed. 2011).

23 Parker v. State, 206 S.W.3d 593, 597 (Tex. Crim. App. 2006).

24 Id. 

25 Estrada v. State, 154 S.W.3d 604, 609 (Tex. Crim. App. 2005). 

26 Parker, 206 S.W.3d at 597. 
Igboji — 14

exigent circumstances that justify a warrantless intrusion by police 

officers: (1) providing aid or assistance to persons whom law 

enforcement reasonably believes are in need of assistance; (2) 

protecting police officers from persons whom they reasonably believe to 

be present, armed, and dangerous; and (3) preventing the destruction 

of evidence or contraband.27 In this case, we are only concerned with 

the third circumstance.

Analysis

As discussed above, a warrantless seizure of personal property is 

per se unreasonable.28 This principle applies even though a Fourth 

Amendment challenge may ultimately focus on the subsequent search 

of a container rather than its initial seizure.29 When law enforcement 

has probable cause to believe that a container holds contraband or 

evidence of a crime, but has not secured a warrant, law enforcement 

may seize the property, pending the issuance of the warrant to examine 

the contents, if the exigencies of the circumstances demand it or some 

27 McNairy v. State, 835 S.W.2d 101, 107 (Tex. Crim. App. 1991), abrogated in part on other 

grounds by Turrubiate, 399 S.W.3d at 153.

28 Place, 462 U.S. at 701.

29 Id. at 700-01.
Igboji — 15

other recognized exception to the warrant requirement is present.30 

Relying in part upon our holding in Turrubiate v. State, the court of 

appeals set out the legal standard, discussed above, for evaluating 

whether exigent circumstances existed to justify the warrantless seizure 

of Appellant’s phone to avoid the imminent destruction of evidence.31 

However, the court read too much into our holding in Turrubiate 

v. State. Relying on Turrubiate, the court of appeals required a showing 

of some affirmative conduct by Appellant indicating a danger of 

imminent destruction of the Snapchat videos.32 Finding that the record 

did not “contain any evidence showing that Appellant, by his affirmative 

conduct, was actively deleting evidence on his phone[,]” the court of 

appeals concluded that the warrantless seizure did not fall within the 

exigent-circumstances exception.33 However, we agree with the dissent 

below that, in the context of a warrantless search or seizure pursuant

30 Id. at 701; see also Riley, 573 U.S. at 401-02 (2014) (noting that the exigent circumstances 

exception may apply to cell phones and citing Kentucky v. King, 563 U.S. at 469, which 

involved a search of a residence, for the application of that exception to cell phone searches).

31 Igboji, 607 S.W.3d at 167-68 (examining Turrubiate, 399 S.W.3d at 151-52).

32 Igboji, 607 S.W.3d at 169 (citing Turrubiate, 399 S.W.3d at 153–55).

33 Id. at 170.
Igboji — 16

to exigent circumstances, there is no requirement that the record show

affirmative conduct on the part of the suspect.34 

In this case, the court of appeals, perhaps understandably, placed 

too much emphasis on our use of the phrase “affirmative conduct” in 

Turrubiate. Our decision in Turrubiate relied upon the Supreme Court 

holding in Kentucky v. King.35 As we explained, the Supreme Court in 

King rejected a presumption that those in possession of narcotics would 

destroy evidence upon learning of a police presence.36 In saying that 

Kentucky v. King required “proof of imminent destruction based on 

affirmative conduct”, our point in Turrubiate was that there was no 

presumption that evidence would be imminently destroyed simply 

because a suspect knew that law enforcement was nearby or had 

contacted the suspect.37 And based on King, we rejected the State’s 

argument that law enforcement could infer that the destruction of 

evidence was imminent simply because the suspect knew that police 

34 See id. at 172–73 (Christopher, J., dissenting).

35 Turrubiate, 399 S.W.3d at 152 (discussing the holding of King, 563 U.S. at 462-63).

36 Turrubiate, 399 S.W.3d at 152 (citing King, 563 U.S. at 469-70).

37 See id. at 153; see also King, 563 U.S. at 469-70 (noting that a suspect may simply decline 

to answer the door when police knock on it, but if a suspect attempts to destroy evidence 

that may change the calculus).
Igboji — 17

were present.38 We explained that such an approach “would abandon 

the requirement that the record affirmatively show facts that reasonably 

indicate exigent circumstances that a defendant was attempting to, or 

would attempt to, destroy evidence, a requirement vital to the Supreme 

Court’s holding in King.”39 And, as we reiterated later, “[w]e require 

some evidence of exigency beyond mere knowledge of police presence 

and an odor of illegal narcotics.”40 But the critical thing the record must 

show is facts suggesting an imminent destruction of evidence,41 not

necessarily affirmative conduct on the part of the criminal suspect. 

Put another way, affirmative conduct by a suspect suggesting that 

he or she will soon destroy evidence or is in the process of destroying 

evidence—such as furtive movements—is one way of showing that an 

exigency—the imminent destruction of evidence—exists.42 But 

affirmative conduct is not the only way that a record may affirmatively 

38 Id. at 152.

39 Id.

40 Id. at 154.

41 Precedent consistently affirms that the potential destruction of evidence must be 

“imminent.” See, e.g., Brigham City, Utah v. Stuart, 547 U.S. 398, 403 (2006); Riley, 573 

U.S. at 402; Birchfield v. North Dakota, 579 U.S. 438, 455 (2016); Lange, 141 S.Ct. at 2018; 

Cole, 490 S.W.3d at 923.

42 See, e.g., Turrubiate, 399 S.W.3d at 154.
Igboji — 18

show that evidence was in danger of being imminently destroyed.43 

Given the fact-bound nature of the inquiry,44 we decline to hold that 

affirmative conduct by a suspect is always required to show that the 

destruction of evidence was imminent. To the extent that our language 

in our holding in Turrubiate requires otherwise, we explicitly disavow it

as an unwarranted extension of King. 

The court of appeals also appears to have announced a categorial 

rule when it rejected the dissent’s argument that police may reasonably 

seize personal property in order to secure a warrant when a criminal 

suspect realizes that police are on his trail.45 According to the court of 

appeals, “Such a test would arm law enforcement with a weapon to 

defeat the Fourth Amendment as a matter of law, thereby rendering it 

effectively null with respect to protecting the People’s property from 

unreasonable seizure.”46 At first blush, relying upon the mere fact that 

a suspect knows police are “on his trail” to establish exigency would 

seem to authorize the type of impermissible presumption that a suspect 

43 See, e.g., McNeely, 569 U.S. at 153 (referring to “circumstances in which the suspect has 

control over easily disposable evidence” as a “now or never” situation giving rise to an 

exigency) (citing Georgia v. Randolph, 547 U.S. 103, 116, n. 6 (2006)).

44 See, e.g., Lange, 141 S.Ct. at 2018.

45 Igboji, 607 S.W.3d at 170.

46 Id.
Igboji — 19

will attempt to destroy evidence merely because he possesses it and is 

aware of police presence.47 The Supreme Court appears to have 

rejected this approach in King and noted that a suspect could choose to 

stand on his constitutional rights rather than acquiesce to a request from 

law enforcement.48

However, King and Turrubiate both dealt with situations involving 

warrantless entry into a person’s home in order to conduct a warrantless 

search rather than the warrantless seizure of personal property in order 

to secure a search warrant. As noted in the dissent below, there are 

differences between searches and seizures.49 In Segura v. United 

States, the United States Supreme Court held that a warrantless seizure 

to maintain the status quo during the time necessary to secure a warrant 

can be a reasonable warrantless seizure even if a warrantless search 

47 Turrubiate, 399 S.W.3d at 152. 

 

48 King, 563 U.S. at 470 (“Occupants who choose not to stand on their constitutional rights 

but instead elect to attempt to destroy evidence have only themselves to blame for the 

warrantless exigent circumstances search that may ensue.”). At least arguably, it also raises 

the question of whether law enforcement created its own exigency through actual or 

threatened violation of the Fourth Amendment. See King, 563 U.S. at 469 (“For these 

reasons, we conclude that the exigent circumstances rule applies when the police do not gain 

entry to premises by means of an actual or threatened violation of the Fourth Amendment.”). 

However, it is an open question, left unconsidered by the court of appeals, whether this 

limitation on the exigent-circumstances exception applies to seizures of personal property in 

addition to searches of a premises. 

49 Igboji, 607 S.W.3d at 172 (Christopher, J. dissenting).
Igboji — 20

would have been impermissible.50 And in United States v. Place, the 

Supreme Court recognized that law enforcement could essentially 

“detain” personal property based upon less than probable cause so long 

as the seizure was not unreasonably prolonged.51 Rather than 

announcing a categorical rule that police may never seize personal 

property simply because a criminal suspect knows he is a suspect, the 

court of appeals should have analyzed under the totality of the 

circumstances whether law enforcement’s seizure of Appellant’s phone 

was the type of reasonable seizure necessary to maintain the status quo 

to provide law enforcement with time to secure a search warrant.52 

Conclusion

For exigent circumstances to justify a warrantless seizure of 

personal property, such as a cell phone, the record must show that law 

enforcement officers reasonably believed that evidence would be 

imminently destroyed if they waited to obtain a warrant to seize the 

50 Segura v. United States, 468 U.S. 796, 806 (1984).

51 Place, 462 U.S. at 708; but see Florida v. Bostick, 501 U.S. 429, 437 (1991) (“We have 

consistently held that a refusal to cooperate, without more, does not furnish the minimal level 

of objective justification needed for a detention or seizure.”); Wade v. State, 422 S.W.3d 661, 

668 (Tex. Crim. App. 2013) (“A person’s refusal to cooperate with police during a consensual 

encounter cannot, by itself, provide the basis for a detention.”). 

52 See, e.g., Segura, 468 U.S. at 806; Place, 462 U.S. at 708 (recognizing that police may 

seize personal property on reasonable suspicion in order to obtain a warrant, but they may 

not unduly prolong the seizure).
Igboji — 21

property. Affirmative conduct by the suspect is not required, but it is 

one way the record may show that the potential destruction was 

imminent. We remand for the court of appeals to reconsider the 

arguments of the parties regarding whether exigent circumstances 

existed to justify the warrantless seizure of Appellant’s cell phone in this 

case and whether the officer’s conduct in seizing the property to obtain 

a warrant was reasonable under those circumstances.53

Delivered: March 8, 2023

Publish

53 See, e.g., McClintock v. State, 444 S.W.3d 15, 20-21 (Tex. Crim. App. 2014) (“But the 

issue of the proper application of the exclusionary rule to the facts of this case is not remotely 

clear cut, and we believe that the proper disposition here should be to remand for the court 

of appeals to address it in the first instances. The parties make a number of substantial 

arguments in support of their respective positions in this Court, and our resolution of this 

issue (if any should even be necessary after a remand) would benefit from a carefully wrought 

decision from the court of appeals.”).