Page 30 - TPA Journal March April 2025

the warrant requirement is present. Relying in evidence, a requirement vital to the Supreme
part upon our holding in Turrubiate v. State, the Court’s holding in King.” And, as we reiterated
court of appeals set out the legal standard, dis- later, “[w]e require some evidence of exigency
cussed above, for evaluating whether exigent cir- beyond mere knowledge of police presence and an
cumstances existed to justify the warrantless odor of illegal narcotics. But the critical thing the
seizure of Appellant’s phone to avoid the immi- record must show is facts suggesting an imminent
nent destruction of evidence. destruction of evidence, [report writing lesson
However, the court read too much into our holding here. Ed.] not necessarily affirmative conduct on
in Turrubiate v. State. Relying on Turrubiate, the the part of the criminal suspect.
court of appeals required a showing of some affir- Put another way, the affirmative conduct by a sus-
mative conduct by Appellant indicating a danger pect suggesting that he or she will soon destroy
of imminent destruction of the Snapchat videos. evidence or is in the process of destroying evi-
Finding that the record did not “contain any evi- dence – is one way of showing that an exigency –
dence showing that Appellant, by his affirmative the imminent destruction of evidence – exists.
conduct, was actively deleting evidence on his But affirmative conduct is not the only way that a
phone[,]” the court of appeals concluded that the record may affirmatively show that evidence was
warrantless seizure did not fall within the exigent- in danger of being imminently destroyed. Given
circumstances exception. However, we agree with the fact-bound nature of the inquiry, we decline to
the dissent below that, in the context of a warrant- hold that affirmative conduct by a suspect is
less search or seizure pursuant to exigent circum- always required to show that the destruction of
stances, there is no requirement that the record evidence was imminent. To the extent that our
show affirmative conduct on the part of the sus- language in Turrubiate requires otherwise, we
pect. explicitly disavow it as an unwarranted extension
In this case, the court of appeals, perhaps under- of King.
standably, placed too much emphasis on our use of The court of appeals also appears to have
the phrase “affirmative conduct” in Turrubiate. announced a categorial rule when it rejected the
Our decision in Turrubiate relied upon the dissent’s argument that police may reasonably
Supreme Court holding in Kentucky v. King. As seize personal property in order to secure a war-
we explained, the Supreme Court in King rejected rant when a criminal suspect realizes that police
a presumption that those in possession of narcotics are on his trail. According to the court of appeals,
would destroy evidence upon learning of a police “Such a test would arm law enforcement with a
presence. In saying that Kentucky v. King required weapon to defeat the Fourth Amendment as a mat-
“proof of imminent destruction based on affirma- ter of law, thereby rendering it effectively null
tive conduct”, our point in Turrubiate was that with respect to protecting the People’s property
there was no presumption that evidence would be from unreasonable seizure.”
imminently destroyed simply because a suspect At first blush, relying upon the mere fact that a
knew that law enforcement was nearby or had suspect knows police are “on his trail” to establish
contacted the suspect. And based on King, we exigency would seem to authorize the type of
rejected the State’s argument that law enforcement impermissible presumption that a suspect will
could infer that the destruction of evidence was attempt to destroy evidence merely because he
imminent simply because the suspect knew that possesses it and is aware of police presence. The
police were present. We explained that such an Supreme Court seems to have rejected this
approach “would abandon the requirement that the approach in King and noted that a suspect could
record affirmatively show facts that reasonably choose to stand on his constitutional rights rather
indicate exigent circumstances that a defendant than acquiesce to a request from law enforcement.
was attempting to, or would attempt to, destroy

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