NOT FINAL UNTIL TIME EXPI RES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

ANTHONY DAVID HANIFAN, ) ) Appellant, ) ) v. ) Case No. 2D13-4480 ) STATE OF FLORIDA, ) ) Appellee. ) ) Opinion filed September 18, 2015. Appeal from the Circuit Court for Sarasota County; Donna P. Berlin, Judge. Howard L. Dimmig, II, Public Defender, and Jeffrey Sullivan, Special Assistant Public Defender, Bartow, for Appellant. Pamela Jo Bondi, Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Appellee.

LUCAS, Judge. Anthony Hanifan raises several arguments on appeal of his conv ictions for multiple counts of sexual battery, lewd or lascivious molestati on, lewd or lascivious exhibition, use of a child in a sexual performance, and transmi ssion of child pornography. Because we find no error in the judgment or sente nces, we affirm. We- 2 - write to address Mr. Hanifan's argument that the trial court er red in denying his motion to suppress evidence extracted from his iPhone, which he claims was wrongfully seized without a warrant and in violation of the "police-created exige ncy" doctrine.

Much of the evidence in Mr. Hanifan's trial revolved around di gital images of child pornography that were st ored within his personal smart phone, an Apple iPhone 3GS. We must briefly trace the events leading up to its seizu re. In late October 2011 North Port Police Department investigators received an alert fr om a Massachusetts state trooper that an individual named Anthony Hanifan had tran smitted child pornography to a criminal defendant in Massachusetts. After in terviewing Mr. Hanifan’s wife, North Port police officers became apprised of Mr. Hanifan 's physical description,

as well as his c ar's description, and that Mr. Hanifan possesse d a smartphone that he kept in a black protective case. Through further coordination of North Port police investigators and Massachusetts l aw enforcement, the North Port police learned that Mr. Hanifan's smartphone was directly implicated in Mr. Hanifan 's alleged criminal

activities. Two North Port police detective s then went to Mr. Hanifan's ho use in an attempt to contact him. Finding no one home, they waited in th eir vehicle in a neighbor's driveway until they observed Mr. Hanifan driving his vehicle toward his house. He came almost to a complete stop in front of his drive way then suddenly sped away. In pursuit, the detectives saw Mr. Hanifan's vehicle dri ve through two intersections, each time passing a stop sign without making a c omplete stop. The detectives relayed this observation to their supervisor and wer e ordered to execute a stop of the vehicle and take custody of a smartphone in a black case if they observed- 3 - one. They stopped Mr. Hanifan, identified him, and seized his iPhone, which was lying in its black case in the officers' plain view on the passenger- side front floorboard. The iPhone was secured, but not accessed or searched, until the det ectives obtained and

executed a search warrant. 1 Ordinarily, a law enforcement officer must obtain a warrant pr ior to seizing the personal effects of an individual. See, e.g., Arizona v. G ant, 556 U.S. 332, 338 (2009) ("[O]ur analysis begins . . . with the basic rule that ' searches conducted outside the judicial process, without prior approval by judge or magist rate, are per se unreasonable under the Fourth Amendment—subject only to a few s pecifically

established and well-delineated exc eptions.' " (quoting Katz v. United States, 389 U.S. 347, 357 (1967))); United States v. Jeffers, 342 U.S. 48, 51 (1 951) ("The Fourth Amendment prohibits both unreasonable searches and unreasonable seizures, and its protection extends to both 'hous es' and 'effects.' " (footnote omitted)). However, as the Supreme Court has repeatedly observed, prevention of the immine nt destruction of evidence has long been recognized as a sufficient justification for a warrantless search or seizure. Kentucky v. King, 131 S. Ct. 1849, 1856 (2011) (ci ting Brigham City, Utah v. Stuart, 547 U.S. 398 (2006)). The State bears the burden of sh owing that an exigent circumstance, such as the potential destruction of evidence, ex isted at the time of the seizure; it must also rebut the pr esumption that a warrantless search is unreasonable.

1 Because of this sequence of events, we are primarily focused on the initial seizure of the iPhone, not its later search that reveal ed the inculpatory images. The case at bar is thus distinguishable from Willis v. State, 1 48 So. 3d 480 (Fla. 2d DCA 2014), which held that the subsequent, warrantless search of a driver's cell phone violated the Fourth Amendment even though the phone had been va lidly seized during a traffic stop arrest. Mr. Hanifan also challenges the warrant on various grounds, but we find no merit in any of his arguments.- 4 - Riggs v. State, 918 So. 2d 274, 278 (Fla. 2005); Hornblower v. State, 351 So. 2d 716, 718 (Fla. 1977). The State has met its burden here. Having been informed of Mr . Hanifan's alleged criminal activity and the likelihood that a smartphone on his person could contain direct evidence of that criminal activity, and then obs erving what, by all appearances, was an attempt to elude law enforcement officers b y driving through two stop signs, there was reasonable ju stification for the seizure of the iPhone. The detectives' concerns that Mr. Hanifan could destroy or conceal the iPhone or delete the electronic data and digital im ages stored on it were reasonable and authorized them to temporarily retain custody of the phone while they obtained a w arrant. Cf. Riley v. California, 134 S. Ct. 2473, 2486 (2014) (noting petitioners' " sensible" concession "that officers could have seized and secured their cell phones to pre vent destruction of evidence while seeking a warrant."). Mr. Hanifan contends that the facts of this case implicate the "policecreated exigency" exception to this rule. He argues that any p robable cause or exigent circumstances that might have justified seizing his iPhone were of the detectives' own machination. For this proposition, Mr. Hanifan cites United St ates v. Chambers, 395 F.3d 563, 566 (6th Cir. 2005), which states that "for a warrant less search to stand, law enforcement officers must be responding to an unanticipated exi gency rather than simply creating the exigency for themselves." We do not find h is argument persuasive, particularly since the holding in Chambers was abrogated by the Supreme Court in Kentucky v. King, 131 S. Ct. 1849 (2011).- 5 - In King, the Supreme Court recogni zed that in some sense the p olice always create the exigent circumstances, as there is an inheren t degree of police involvement whenever they undertake a search or seizure to prev ent the potential destruction of evidence. Id. at 1857 ("[A] rule that precludes the police from making a warrantless entry to prevent the destruction of evidence whenev er their conduct causes the exigency would unreasonably shrink the reach of this well-e stablished exception to the warrant requirement."). The King Court concluded that a wa rrantless search or seizure to prevent the destruc tion of evidence is reasonable an d, therefore, allowed so long as "the police did not create the exigency by engaging or threatening to engage in

conduct that violates the Fourth Amendment." Id. at 1858. In effect, Mr. Hanifan's argument would liken the mere presenc e of these detectives in his neighborhood to a threat against his constitu tional rights. We fail to see that parallel. The detectives' parking and waiting in a ne arby driveway was not akin to, "for example, [police] announcing that they would break dow n the door if the occupants did not open the door voluntarily." Id. at 1863. In deed, the detectives made no contact with Mr. Hanifan whatsoever before they observed his traffic infractions and stopped him. Accordingly, the police-created exigency doctrine does not apply here, and the trial court properly denied the motion to suppress.

Affirmed.

KHOUZAM, J., Concurs. VILLANTI, C.J., Concurs specially.- 6 - VILLANTI, Chief Judge, Specially concurring.

I concur in the decision to affi rm Hanifan's convictions and s entences, but I would uphold the trial court's denial of Hanifan's motion to suppress his iPhone on a slightly different basis than that articulated by the majority. I also write to commend the officers in this case, who acted with considerable restraint at a time when the outcome of Riley v. California, 134 S. C t. 2473 (2014), was still unkno wn. The record in this case shows that the North Port police recei ved information from a police officer in Massachusetts that a perso n in Florida using a telephone with a particular telephone number was connected with an individual arrested in Massachusetts for possessing child pornography. The informa tion from the

Massachusetts officer included that the individual with the Flo rida phone had called the

Massachusetts defendant on several occasions and had transmitte d pornographic photographs of at least one child to the Massachusetts defendan t. The Massachusetts officer also provided the North Port police with information li nking the telephone in question to Hanifan. Upon receiving this information, the North Port police met wit h Hanifan's wife, who told the officers that the telephone in question was an iPhone in a black case. She also confirmed details about her living room furniture that matched the description of the background shown in sev eral of the pornographic photos s eized in

Massachusetts. Armed with this information, North Port Detectives Marshall an d Taylor went to Hanifan's house, but he was not home. They decided to wait for Hanifan in the driveway of the house two doors away. When Hanifan drove onto his street and saw- 7 - the detectives, he fled the area, running several stop signs in the process. The detectives followed and effected a traffic stop of Hanifan's ca r. As Detective Marshall was asking Hanifan about the traffic infractions and requesting Hanifan's driver's license, Detective Taylor, who had moved to the passenger side of the car, saw an

iPhone in a black case on the floorboard next to Hanifan. Dete ctive Taylor opened the passenger door, seized the cell phone, turned it off, and place d it into evidence. Later,

after a search warrant was obt ained, other officers searched th e phone and found pornographic pictures of a child on it, along with various call s and messages linking

Hanifan to the Mass achusetts defendant. Hanifan argued in a motion to suppress, and argues again in th is appeal, that the seizure of his iPhone from his car was illegal because it was not supported by probable cause. He contends that the police had no information at the time the iPhone

was seized that it would contain contraband and that the trial court's finding that the police "knew" that his iPhone w as used to transmit child pornog raphy was not supported by the evidence. And this is ar guably true. There was no evid ence presented at the hearing to show that the police knew that the iPhone contained or had been used to transmit pornographic images of children. However, the police did have information leading them to belie ve that Hanifan's iPhone was likely to contain evidence that connected him to the child pornography possessed by the Ma ssachusetts defendant. To legal ly seize Hanifan's iPhone, the police did not need pr obable cause to believe that it contained contraband—only probable cause to believe that it contained evi dence of criminal activity. See United States v. Place, 462 U.S. 696, 701 (1983) (noting that the police- 8 - need probable cause to believe that "a container holds contraba nd or evidence of a crime," along with exigent circumstances, to support the warran tless seizure of the container (emphasis added)). Here, the police had information that Hanifan's iPhone contained evidence of criminal activity, including his contact list, his list of recently dialed or received calls, his tex t messages, and the emails in any email account linked to the iPhone. While this information might not have been crim inal in and of itself, it could well have linked Hanifan to criminal activity, specifical ly the interstate transmission of child pornography. Therefore, in my view, the record fully supports the conclusion that the police had probable cause to seize Hanifan's iPhone. In response, Hanifan correctly points out that "no amount of p robable cause can justify a warrantless search or seizure absent exigen t circumstances." State v. Waterman, 638 So. 2d 1032, 1036 (Fla. 2d DCA 1994) (citing T aylor v. United States, 286 U.S. 1 (1932)); see also Place, 462 U.S. at 701. However, "[d]ifferent interests are implicated by a seizure than by a search" because of the less i ntrusive nature of a seizure. Segura v. United States, 468 U.S. 796, 806 (1984). T he courts have often approved warrantless seizures of property based on probable cau se for the time

needed to obtain a warrant in cases in which a warrantless sear ch might have been impermissible but when the seizure was used "to protect the evi dence from destruction even though there was no immediate fear that the evidence was i n the process of being destroyed or otherwise lost." Id. at 807 (citing United States v. Chadwick, 433 U.S. 1 (1977); Chambers v. Maroney, 399 U.S. 42 (1970)). Essentially, the Supreme Court has held that "society's interest in the discovery and protecti on of incriminating evidence

from removal or destruction can supersede, at least for a limit ed period, a person's- 9 - possessory interest in property, provided that there is probabl e cause to believe that that property is associated with criminal activity." Id. at 80 8. Here, the detective seized Hanifan's iPhone based on probable cause to

believe that it contained evidence that could link Hanifan to t he interstate transmission of child pornography. Given the ease with which information su ch as call logs, texts, emails, and photographs can be delet ed from an iPhone, the Stat e's evidence inarguably established that exigen t circumstances existed to se ize Hanifan's iPhone as the least restrictive means of securing the content and prevent ing it from being destroyed. And this seizure was not illegal even though there was no evidence that Hanifan was in the process of deleting or destroying any data. Hence, the trial court properly denied the motion to suppress the seizure of Hanifan's iPhone. I also wish to commend the North Port police officers for not actually searching Hanifan's iPhone immediately upon its seizure. While the law in this area was arguably unsettled at the time of this seizure, since that time, Riley has specifically held that, absent exigent circums tances, a search warrant autho rizing the search of a cell phone is required before officers can search the data on a phone. See Riley, 134 S. Ct. at 2494-95. Here, whether through caution or prescience , the officers' decision to obtain a search warrant before accessing any of the information on Hanifan's iPhone was eminently proper, and the ensuing search was unquestionably legal. Therefore, I

concur in the affirmance of Hanifan's convictions and sentences

.