By Jani Maselli Wood
Court of Appeals in Houston by Ben Giannantonio

Igboji v. State, No. PD-0936-20, 2023 WL 2396388 (Tex. Crim. App. Mar. 8, 2023)

Issue: Do exigent circumstances to seize a cellular phone for fear of intentional destruction of evidence require “affirmative conduct” by the suspect?

Facts: Igboji worked at a fast food restaurant that was robbed. He had offered to bring out the trash for two days in a row, which was suspicious “because he did not like to work.” He also brought it out through the back door which was against policy. After the robbery the police were called and he videotaped the police arrival and posted it on Snapchat. Another co-worker showed it to the police. The officers asked for consent to search Igboji’s phone. He said no and the police officer seized the phone. A search warrant was obtained four days later.

Procedural posture: Igboji filed a motion to suppress and he lost. The Fourteenth Court of Appeals reversed 2-1. The Court of Criminal Appeals established a test for “exigent circumstances’ regarding the possible destruction of evidence.

Holding: 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 property. Affirmative conduct by the suspect is not required, but it is one way the record may show that the potential destruction was imminent.