Background
Evans was convicted in the Eastern District of Missouri of attempted sexual exploitation of a minor under 18 U.S.C. Section 2251(a). On appeal, he challenged the denial of his motion to suppress evidence recovered from his phone and argued that the evidence was insufficient to support the conviction.
The court’s reasoning
On suppression, the court reviewed factual findings for clear error and the Fourth Amendment issue de novo. It explained that warrantless searches are generally unreasonable unless an exception applies, including consent and exigent circumstances. The panel noted that voluntariness of consent is assessed under the totality of the circumstances and acknowledged that Officer Smith’s statement about obstruction made the initial consent issue a close question. But the court resolved the suppression issue on exigent circumstances. It held there was probable cause because Smith received consistent and timely accounts identifying Evans and the phone used to record the minor. It also held Smith reasonably believed evidence could be imminently destroyed because Evans knew he had been accused, videos on a phone could be easily deleted, and no other officer was available to secure Evans or the residence while a warrant was sought. Because the seizure was lawful, the later search of the phone, which the court said was authorized by voluntary consent, was not tainted by prior illegality. The court therefore did not address inevitable discovery. On sufficiency, the court said the government had to prove intent to produce a visual depiction of a minor engaged in sexually explicit conduct, here a lascivious exhibition of the genitals or pubic area, and a substantial step toward that offense. The panel emphasized that this case was submitted on an attempt theory, so the question was intent, not whether Evans succeeded in capturing a qualifying image. Viewing the evidence in the light most favorable to the verdict, the court concluded a reasonable jury could find intent from the repeated recording conduct, the zooming toward intimate areas, Evans’s statement that he had another opportunity, and his later resetting of a second phone. It also held that recording the five videos was a substantial step toward the offense.
Exigent circumstances justified the warrantless seizure of the phone.
What it means going forward
The decision leaves in place Evans’s conviction and sentence and reinforces that officers may seize a phone without a warrant when they have probable cause and an objectively reasonable basis to believe digital evidence will be quickly destroyed. It also underscores that an attempt conviction can rest on proof of intent and a substantial step even if the defendant argues the recorded images did not ultimately amount to completed child pornography.