Full Opinion

STATE OF MINNESOTA IN SUPREME COURT A24-1417 A25-1371 Crow Wing County Thissen, J. Concurring in part, dissenting in part, McKeig, Moore, III, Hennesy, JJ. State of Minnesota, Respondent, vs. Filed: September 23, 2026 Office of Appellate Courts Michael Lee LaFlex, Appellant. ________________________ Keith Ellison, Attorney General, Saint Paul, Minnesota; and Kelsey A. Hopps, Crow Wing County Attorney, Quinn Hoffman, Assistant County Attorney, Brainerd, Minnesota; and Travis J. Smith, Special Assistant County Attorney, Slayton, Minnesota, for respondent. Cathryn Middlebrook, Chief Appellate Public Defender, Adam Lozeau, Assistant State Public Defender, Saint Paul, Minnesota, for appellant. ________________________ SYLLABUS 1. The district court did not err when it determined that exigent circumstances justified the warrantless seizure of appellant’s cell phone. 2. The district court committed plain error by instructing the jury on the order in which to consider appellant’s charges and lesser-included offenses and that the jury should not consider a lesser-included offense if it found appellant guilty of a greater offense, which, here, affected appellant’s substantial rights and must be corrected to ensure the fairness and integrity of the judicial proceedings. Reversed and remanded. OPINION THISSEN, Justice. Appellant Michael Lee LaFlex appeals his conviction for first-degree premeditated murder, Minn. Stat. § 609.185(a)(1). LaFlex was convicted for the murder of his daughter’s boyfriend, Bryce Brogle, who died after LaFlex shot him. LaFlex argues he is entitled to a new trial because the district court erred in denying his motion to suppress evidence obtained following a warrantless seizure of his cell phone. LaFlex also argues that the district court committed reversible error because, after granting LaFlex’s request for a first-degree heat-of-passion manslaughter instruction, the court instructed the jury on the order in which it should consider the offenses and that the jury should not consider the lesser-included offense of first-degree heat-of-passion manslaughter if it found LaFlex guilty of first-degree murder. For the reasons stated below, we conclude that the district court did not err in denying LaFlex’s motion to suppress, but we conclude that the district court’s jury instruction was plain error, the error affected LaFlex’s substantial rights because there is a reasonable likelihood that it had a significant effect on the jury’s verdict, and the error must be corrected to ensure the fairness and integrity of the judicial proceedings. We therefore reverse LaFlex’s conviction and remand to the district court for a new trial. 1 FACTS On the afternoon of October 28, 2022, LaFlex’s daughter, C.L., entered the Crow Wing County Sheriff’s office to report that her boyfriend, Bryce Brogle, was missing. In her initial statement to Investigator Loeffler, C.L. said that the last time she saw Brogle was two days prior when he and LaFlex left LaFlex’s house to unload a U-Haul trailer at LaFlex’s storage locker. Loeffler contacted his supervisor, Sergeant Downie, and provided the initial details from C.L.’s statement. Downie initiated an investigation and directed Loeffler to obtain a detailed statement from C.L. Among Downie’s first investigatory steps was arranging with cell service companies to “ping” Brogle’s cell phone to try to determine its location. Brogle’s cell phone pinged in the area of LaFlex’s storage locker, which was located approximately a quarter mile from LaFlex’s house. Downie drove to the storage locker to investigate. Meanwhile, Loeffler interviewed C.L. and obtained her detailed statement about the circumstances of Brogle’s disappearance. C.L. told Loeffler that, until recently, she and Brogle lived in the state of Washington. Several days before Brogle’s disappearance, the couple rented a U-Haul trailer, loaded their possessions, and moved from Washington back to Minnesota. They planned to store their possessions in LaFlex’s storage locker. C.L. told Loeffler that she and Brogle arrived at LaFlex’s house around 5:00 p.m. on October 26. When they arrived, LaFlex insisted that C.L. stay behind to shower at her grandmother’s house while he and Brogle unloaded the U-Haul. C.L. described LaFlex’s insistence that she stay behind as “suspicious.” Loeffler asked C.L. if LaFlex and Brogle 2 “g[o]t along,” and C.L. stated that they “tolerate[d] each other,” but that their relationship was “tense.” C.L. stated that LaFlex and Brogle left to unload the trailer around 5:30 p.m. Approximately an hour to an hour and a half later, LaFlex returned alone. He appeared “agitated,” “shaky,” and “a little manic.” In her statement to Loeffler, C.L. reported that LaFlex told C.L. that while he and Brogle were inside the storage locker facility unloading the U-Haul, two vehicles that looked like “patrol cars” or “undercover military” pulled up. According to LaFlex, men exited the vehicles wearing “tan gear and black vests,” and had emblems on their uniforms rather than badges. LaFlex told C.L. the men ordered LaFlex and Brogle to the ground and handcuffed them. LaFlex said they read Brogle his rights, placed him into a vehicle, and left. As Loeffler took C.L.’s statement, Downie investigated the storage locker. During his investigation, dispatch informed Downie that Brogle’s cell phone pings indicated that the cell phone had moved away from the storage locker and was now pinging in the city of Brainerd. Downie contacted Loeffler and learned that LaFlex was at his sister’s house in Brainerd, in the vicinity of Brogle’s pinging cell phone. Downie arranged to meet Loeffler at LaFlex’s sister’s house. They arrived at approximately 5:45 p.m. During a brief interview, LaFlex told the officers that Brogle had been apprehended. Unlike C.L.’s account of what he had told her, LaFlex told the officers that Brogle was apprehended outside the storage facility, after they unloaded the U-Haul. The officers asked LaFlex if he would show them the storage locker where Brogle was last seen and if he was willing to answer additional questions. LaFlex agreed and 3 drove to the storage locker where he met Loeffler, Downie, and another investigator at approximately 6:05 p.m. Loeffler asked LaFlex if officers could search the storage unit. LaFlex gave consent and stated that he was expecting to be contacted by law enforcement because C.L. told him she planned to file a missing person report. As Loeffler conducted the search, Downie interviewed LaFlex. During the course of the interview, LaFlex made a number of potentially incriminating statements. LaFlex repeated that Brogle was apprehended outside the storage facility after they unloaded the U-Haul, which was inconsistent with C.L.’s statement that LaFlex told her the incident occurred within the storage facility while they were unloading the U-Haul. LaFlex also told officers, “I don’t care for [Brogle] much.” LaFlex explained that Brogle and C.L. lived with him previously, and at that time “there was a lot of verbal abuse toward [C.L.],” and at one point C.L. appeared with “a big bruise on her face.” LaFlex stated that he had “messages” on his cell phone demonstrating that Brogle was “nasty” toward him and other family members, and in which LaFlex had told Brogle, “if I ever see another bruise on [C.L.] … I won’t be having words with you.” LaFlex attempted to find the messages in his cell phone and told officers that he might have deleted them. During the interview, Downie briefly walked away and spoke to another investigator on site and learned that Brogle’s cell phone was still pinging in Brainerd, and that it had not moved when LaFlex left his sister’s house. Approximately 27 minutes into the interview—a bit after 6:30 p.m.—Downie told LaFlex that the officers were tracking Brogle’s cell phone and asked LaFlex if he had had anything to do with the cell phone 4 moving earlier that day. LaFlex denied that he had and volunteered to let the officers search his truck. In a brief search of the truck the officers did not find anything they connected to Brogle’s disappearance. At 6:44 p.m., Downie asked LaFlex if he would consent to a search of his cell phone. LaFlex responded “yeah.” Downie then told LaFlex that he was interested in location data on the cell phone and asked LaFlex about where he went after Brogle was apprehended. LaFlex responded that he visited his uncle’s house before returning home. Downie asked again if LaFlex had possession of Brogle’s cell phone that day. LaFlex then changed his story. He stated that he had found a cell phone belonging to Brogle in his car after Brogle was arrested. LaFlex told Downie that he had kept the cell phone and that he “just wanted [his] daughter to get away from [Brogle]” and not “keep after him.” LaFlex said that he’d had the cell phone with him on his way to his sister’s house and that he threw it into a garbage can at a gas station along the way.1 Although LaFlex had previously consented to a search of his own cell phone, Downie asked for consent again. LaFlex consented again and stated that he would follow the officers to the sheriff’s office. Downie stated that, rather than meeting at the office, he needed to take immediate possession of the cell phone to “make sure that you don’t do anything to it.” LaFlex asked if he should speak to a lawyer. Downie replied that he could 1 Although LaFlex indicated during the interview that he found a single cell phone belonging to Brogle, upon searching the gas station garbage can law enforcement recovered two cell phones. C.L. told police that the second cell phone also belonged to Brogle, but lacked a service plan, and that Brogle used it for Wi-Fi and to listen to music. Because LaFlex does not dispute the fact of the second cell phone, and the second cell phone does not change our analysis, we refer to Brogle’s cell phone in the singular. 5 not answer that question for LaFlex and stated that, “[W]ith what you’ve told me … I need to take possession on the phone to make sure nothing gets destroyed.” LaFlex handed Downie the cell phone. After seizing the cell phone, the officers obtained a warrant to search it. The search revealed location data showing that the night Brogle disappeared LaFlex left the storage locker and drove to a friend’s house, and then to his uncle’s house, before returning to his own house. The data also showed that at around 4:45 a.m. the following morning, the cell phone moved from LaFlex’s house to the storage facility where it remained for around 22 minutes. The cell phone then moved to a piece of wooded public land and remained there from 5:20 a.m. until 6:17 a.m., when it moved back to LaFlex’s house. Officers searched that wooded location and discovered an area of disturbed dirt. Footage from Loeffler’s body-worn camera suggests that the disturbed dirt was an approximately one-minute walk from the parking area. A team from the Bureau of Criminal Apprehension (BCA) excavated the disturbed area and found Brogle’s body buried approximately three feet deep. The medical examiner determined that Brogle died from a single gunshot wound to his head. LaFlex was arrested and indicted for first- degree premeditated murder and second-degree intentional murder. Before trial, LaFlex moved to suppress the evidence obtained from his cell phone, arguing that the seizure was unconstitutional. At the suppression hearing, Downie described his investigation and the interview at the storage locker in which LaFlex revealed that he had lied about Brogle’s cell phone and disposed of it in a garbage can. Downie testified that he did not obtain a search warrant before the seizure “[b]ecause the 6 data on cell phones is easily destroyable,” and that “to prevent the destruction of evidence [he] seized the phone.” Relying on our decision in State v. Horst, 880 N.W.2d 24 (Minn. 2016), the district court denied LaFlex’s motion. The district court determined that exigent circumstances justified the seizure because the officers reasonably believed that seizing the cell phone before obtaining a warrant was necessary to prevent the destruction of evidence. At trial, the State argued that Brogle’s killing was premeditated. The State presented witnesses who testified to hearing LaFlex say he believed that Brogle was abusing C.L. and that he wanted to kill Brogle. Multiple witnesses testified that they heard LaFlex say he knew where to hide a body and that he had already “dug the hole.” LaFlex’s sister testified that LaFlex stored his guns at her house and that he picked one of them up the day that Brogle was killed. LaFlex testified in his own defense. He admitted that he had shot Brogle and buried him in the woods, but argued that he acted in the heat of passion. LaFlex testified that he insisted C.L. stay home rather than help unload the U-Haul because he was concerned Brogle had abused C.L. He described being unable to reach C.L. by phone when she and Brogle lived out of state because her cell phone was broken in a fight with Brogle and Brogle would not buy her a new one. He testified that he asked for her address in Washington so that he could send her a phone, but that “she wasn’t allowed to tell anybody where [she and Brogle] were at.” He said he wanted to confront Brogle about his concerns, and that he chose the storage locker for the confrontation because he believed the facility had security cameras and he wanted video footage in the event that 7 Brogle assaulted him. LaFlex testified that when he confronted Brogle at the storage locker Brogle mocked him, stating LaFlex couldn’t protect C.L. and that he would “kill C.L. before let[ting] her come back to [her family].” LaFlex said that Brogle was “raising his voice … with every response,” and that after the exchange Brogle went into the storage locker and LaFlex “wasn’t sure if [Brogle] was going after a weapon,” but he “knew [that Brogle] had an extensive … collection of knives.” LaFlex testified that after Brogle’s remarks he was “shocked,” “enraged,” and was afraid for his life and his daughter’s life. LaFlex said that he “looked for anything,” saw his gun laying in a bin, loaded it, and shot Brogle. According to his testimony, LaFlex did not “even remember aiming the gun.” LaFlex testified that after shooting Brogle he sat down and “cried,” and didn’t “know where [he] was mentally.” At the close of evidence, the district court granted LaFlex’s request for a first- degree heat-of-passion manslaughter instruction. In its instructions to the jury, the district court told the jurors that if they found LaFlex guilty of premeditated murder, they must “bypass” and “ignore” the manslaughter instruction and only consider whether LaFlex was guilty of second-degree intentional murder. The jury found LaFlex guilty of first-degree premeditated murder and second- degree intentional murder. LaFlex filed a direct appeal, which we stayed to allow him to pursue postconviction relief. In his postconviction petition, LaFlex requested a Schwartz hearing.2 He asserted that during deliberations, a witness overheard two of the jurors 2 “A Schwartz hearing is a procedure in which a trial court may investigate alleged juror misconduct by summoning a juror for questioning about the alleged misconduct in 8 discussing LaFlex’s guilt in the parking lot outside the courthouse. The district court denied LaFlex’s request for a Schwartz hearing and LaFlex appealed. We lifted the stay of his direct appeal and consolidated both appeals for review.3 ANALYSIS LaFlex challenges the district court’s denial of his motion to suppress the evidence obtained after the warrantless seizure of his cell phone, arguing the district court erred when it determined that the seizure was justified by exigent circumstances. LaFlex also argues that the district court committed reversible plain error when it instructed the jury that if it found LaFlex guilty of first-degree premeditated murder it should not consider the lesser-included offense of first-degree heat-of-passion manslaughter. I. We first address LaFlex’s argument that the district court erred when it determined that exigent circumstances justified the officers’ warrantless seizure of his cell phone. We begin with a discussion of the relevant law, including our decision in Horst, which the district court relied on in upholding the seizure. We then consider the merits of LaFlex’s claim. the presence of counsel for both parties.” Martin v. State, 969 N.W.2d 361, 363 n.1 (Minn. 2022). 3 Because we reverse LaFlex’s conviction and remand for a new trial, we need not address LaFlex’s request for a Schwartz hearing. 9 A. The United States and Minnesota Constitutions protect a person’s right to be free from unreasonable searches and seizures. U.S. Const. amend. IV; Minn. Const. art. I, § 10. A warrantless seizure is presumptively unreasonable, but that presumption may be overcome if the seizure falls within a recognized exception to the warrant requirement. State v. Stavish, 868 N.W.2d 670, 675 (Minn. 2015) (citing Missouri v. McNeely, 569 U.S. 141, 148 (2013)). “One well-recognized exception to the warrant requirement applies when ‘the exigencies of the situation make the needs of law enforcement so compelling that the warrantless [seizure] is objectively reasonable under the Fourth Amendment.’ ” Id. (quoting Mincey v. Arizona, 437 U.S. 385, 394 (1978)); see also Michigan v. Tyler, 436 U.S. 499, 509 (1978) (stating that exigent circumstances may exist when “there is compelling need for official action and no time to secure a warrant”). Such exigent circumstances may exist when “the delay necessary to obtain a warrant would significantly undermine the efficacy of the search,” Stavish, 868 N.W.2d at 677, or would “result in the loss or destruction of the evidence,” State v. Richards, 552 N.W.2d 197, 203 (Minn. 1996). See also Kentucky v. King, 563 U.S. 452, 460 (2011) (“[T]he need ‘to prevent the imminent destruction of evidence’ has long been recognized as a sufficient justification for a warrantless search.” (quoting Brigham City v. Stuart, 547 U.S. 398, 403 (2006))). In determining whether a warrantless seizure of LaFlex’s cell phone was lawful, we consider the totality of the circumstances and conduct an “objective evaluation of the 10 facts reasonably available to the officer at the time of the [seizure].” Stavish, 868 N.W.2d at 675. Our analysis includes whether probable cause supported the underlying seizure and whether it was objectively reasonable for the officer to conclude that exigent circumstances justified acting without a warrant. See id. at 676–77, 677 n.1. We also consider the duration and extent of the intrusion. See Horst, 880 N.W.2d at 34 (stating that the seizure of a cell phone for one day until officers could obtain a warrant supported the conclusion that the seizure was reasonable); Illinois v. McArthur, 531 U.S. 326, 331 (2001) (explaining that courts must “balance the privacy-related and law enforcement- related concerns to determine if the intrusion was reasonable”). In Horst, we concluded that exigent circumstances justified the warrantless seizure of a cell phone under circumstances similar to those presented here. 880 N.W.2d at 34. In that case, police investigating Horst’s husband’s murder conducted non-custodial interviews with Horst and Horst’s acquaintance, A.P. Id. at 35. In separate interviews, Horst and A.P. told investigators their versions of events on the night of the murder. Id. Horst also discussed with an investigator the text messages and cell phone calls she exchanged with A.P. and the victim that night. Id. at 33. During a break in the interviews, the investigators compared Horst’s and A.P.’s accounts and discovered discrepancies that caused the investigators to suspect that Horst was involved in her husband’s murder. Id. at 35. Before concluding his interview with Horst—and concerned that Horst would destroy evidence contained in her cell phone—an investigator seized Horst’s cell phone without first obtaining a warrant. Id. at 33–34. 11 On appeal, Horst argued that no exigency justified the seizure because the officers had sufficient time to obtain a warrant. Id. at 34. We upheld the seizure. Id. at 35. We concluded that the discrepancies in Horst’s story, and the fact that she discussed texts and calls that she exchanged with the victim the night he died in her interview, provided probable cause for officers to believe that Horst’s cell phone contained evidence of a crime. Id. at 34. We further concluded that because Horst was not in custody when officers obtained probable cause regarding the cell phone, the officers did not know when or if she would leave the police station and destroy any evidence in her cell phone. Id. at 35. For these reasons, we found that officers acted reasonably in seizing Horst’s cell phone while they obtained a warrant to search it. Id. B. We now turn to LaFlex’s claim that the district court erred in denying his motion to suppress his cell phone location evidence and the fruits of that evidence. When reviewing the denial of a pretrial motion to suppress evidence, “we review the district court’s factual findings for clear error.” State v. Chute, 908 N.W.2d 578, 583 (Minn. 2018). But we review the district court’s legal determinations, and therefore its ultimate determination of exigency, de novo. Stavish, 868 N.W.2d at 677. We conclude that here, as in Horst, exigent circumstances justified the warrantless seizure of LaFlex’s cell phone. 12 First, LaFlex does not dispute the district court’s finding that officers had probable cause to seize his cell phone.4 On the contrary, as we discuss below, LaFlex’s challenge to the district court’s order denying his motion to suppress is premised on his assertion that officers had probable cause long before the interview that culminated in the seizure, and therefore had sufficient time to obtain a warrant. Second, the record shows that it was objectively reasonable for officers to conclude that delaying the seizure of the cell phone to obtain a warrant risked LaFlex destroying evidence. See id. at 676–77. It is undisputed that LaFlex attempted to mislead officers by initially denying that he possessed Brogle’s cell phone. But LaFlex eventually admitted to possessing Brogle’s phone and throwing it into a garbage can. Although LaFlex denied that he disposed of the cell phone to hide it from law enforcement, officers had reason to believe that may not have been accurate. LaFlex stated at the beginning of his interview that C.L. told him that she planned to file a missing person report and that he “figured sometime if not today, tomorrow you guys will be talking with me.” Given the information available to officers at the time, including that LaFlex was aware C.L. planned to file a report and that LaFlex disposed of the cell phone around the time she made the report, a reasonable officer could have concluded that LaFlex attempted to destroy evidence when he threw the cell phone in the garbage can. 4 Probable cause requires a “ ‘fair probability that contraband or evidence of a crime will be found in a particular place.’ ” State v. Wiley, 366 N.W.2d 265, 268 (Minn. 1985) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). 13 Furthermore, before seizing LaFlex’s cell phone, Downie asked for LaFlex’s consent to search it and, in doing so, explained that he was interested in the cell phone’s location data showing where LaFlex was the night Brogle disappeared. During the exchange, LaFlex acknowledged that he had his own cell phone with him that night. Downie therefore knew that if LaFlex had been involved in Brogle’s disappearance, LaFlex’s cell phone would likely contain information valuable to the investigation. It was at this point that LaFlex changed his story and admitted that he had Brogle’s cell phone earlier that day and that he disposed of it. Downie knew, then, that LaFlex was aware that law enforcement was interested in potential evidence in LaFlex’s cell phone and that LaFlex had already attempted to dispose of evidence that evening. Based on these facts, which LaFlex does not dispute, a reasonable officer could have concluded that LaFlex might attempt to destroy evidence in his cell phone if not prevented from doing so. Third, the nature and duration of the seizure was reasonable. See Horst, 880 N.W.2d at 34. The officers in this case chose to seize LaFlex’s cell phone until they obtained a warrant, rather than arresting him or searching his cell phone without a warrant. See McArthur, 531 U.S. at 332 (stating that police, who possessed probable cause that McArthur’s home contained unlawful drugs and had “good reason to fear” that McArthur would destroy the drugs, “made reasonable efforts to reconcile their law enforcement needs with the demands of personal privacy” by preventing McArthur from entering his home unaccompanied until a warrant was issued, rather than arresting him or conducting a warrantless search). After seizing the cell phone, the officers promptly applied for a warrant and did not search the phone until they received a warrant. This 14 supports the conclusion that the officers seized the cell phone “no longer than reasonably necessary … to obtain the warrant.” Id.; see also Horst, 880 N.W.2d at 34 (concluding that a one-day seizure to permit the investigator time to obtain a warrant was a “ ‘limited period of time’ ” (quoting McArthur, 531 U.S. at 331)). Finally, we assess whether the officers had time to obtain a warrant before seizing LaFlex’s cell phone without risking destruction of the evidence. Cf. Stavish, 868 N.W.2d at 675 (noting, in the context of a warrantless search, that “[e]xigent circumstances … may exist when ‘there is compelling need for official action and no time to secure a warrant.’ ” (emphasis added) (quoting Tyler, 436 U.S. at 509)). LaFlex argues that no exigency justified the seizure because the officers had time to obtain a warrant between their first contact with LaFlex at his sister’s house and the moment of seizing the cell phone. LaFlex contends that officers considered him a suspect early in their investigation and planned throughout the investigation to search his cell phone, therefore, they had hours in which to obtain a warrant. LaFlex points to Downie’s testimony at the suppression hearing where he stated that he considered LaFlex a “person of interest” early in the investigation and that “collect[ing] data”—including cell phone location data—is an investigatory technique in missing person cases. Given this testimony, LaFlex compares his case to State v. Olson, 436 N.W.2d 92 (Minn. 1989), aff’d, 495 U.S. 91 (1990), and In re D.A.G., 484 N.W.2d 787 (Minn. 1992). In Olson, a detective investigating a murder received information that a suspect in the case stayed at a particular house. 436 N.W.2d at 93–94. The detective issued a 15 “probable cause arrest bulletin” for the suspect but did not seek a warrant. Id. at 98. Approximately one hour later, the detective learned that the suspect was in the home and directed police to enter, without a warrant, and arrest him. Id. We concluded that no exigency justified the entry, in part because police made no effort to obtain a warrant in the hour between the probable cause to arrest bulletin and the warrantless entry. Id. In D.A.G., police received information about a house that contained a large quantity of drugs. 484 N.W.2d at 788. Over an hour later, they conducted a warrantless search of the house. Id. at 791. We concluded that no exigency justified the search in part because police made no attempt to obtain a warrant before the search. Id. at 791–92. In both Olson and D.A.G., we concluded that exigent circumstances did not justify warrantless searches or seizures where the records showed that police determined a search or seizure was necessary but made no effort to obtain warrants for an hour before acting without them. See Tyler, 436 U.S. at 509 (stating that exigent circumstances may exist when “there is compelling need for official action and no time to secure a warrant” (emphasis added)). Unlike Olson and D.A.G., the record here does not support LaFlex’s claim that Downie considered him a suspect early in the investigation or that the officers determined before the interview at the storage facility that they needed to search LaFlex’s cell phone. Downie testified that after learning of C.L.’s missing person report he considered LaFlex a “person of interest,” but he explained that this was because the last person to see someone alive—in this case, LaFlex—is “usually … a person of interest.” He further 16 testified that although he believed Brogle may have been murdered or was being held against his will, he did not have any suspects. Nor is there any support in the record for LaFlex’s claim that the officers planned all along to seize his cell phone. LaFlex relies on Coolidge v. New Hampshire, a case where the United States Supreme Court concluded that “there was no ‘exigent circumstance’ to justify the[] failure to obtain a warrant” to search an automobile because “police knew of the presence of the automobile and planned all along to seize it.” 403 U.S. 443, 478 (1971). LaFlex compares his case to Coolidge based on Downie’s testimony describing his discussion with LaFlex near the end of the storage locker interview: I explained to Mr. LaFlex that this was a missing person investigation and that one of the things that we do in missing person investigations is we try to collect evidence and collect data. That one of those things would be his phone. I asked if he would be willing to consent to us [searching] that phone. But this testimony does not show that the officers “planned all along” to seize LaFlex’s cell phone. See id. Rather, this testimony—that officers investigating a missing person “try to collect evidence and collect data”—is no more than a general description of routine, lawful investigatory steps. The fact that Downie was interested in the data in LaFlex’s cell phone is consistent with that general practice, particularly because LaFlex was considered a person of interest. But Downie’s interest in LaFlex’s cell phone data is not akin to the “probable cause arrest bulletin” issued in Olson. Next, LaFlex argues that there was no exigency because officers discovered discrepancies in his story when they briefly spoke to him at his sister’s house before the 17 interview that culminated in the seizure of his cell phone, and the officers could have attempted to obtain a warrant at that time. During the interview at his sister’s house, LaFlex told officers that Brogle was apprehended after he and Brogle left the storage facility, which was inconsistent with C.L.’s statement that LaFlex described the apprehension as occurring inside the storage facility. LaFlex contrasts this with Horst, where investigators discovered discrepancies in Horst’s story during the interview that culminated in the seizure of her cell phone. We did not establish in Horst that inconsistent statements on their own constitute an exigency justifying a warrantless search or seizure. On the contrary, we reiterated that exigent circumstances require a “case-by-case analysis,” and that, in reviewing warrantless conduct by law enforcement, “we look at the totality of the circumstances.” Horst, 880 N.W.2d at 33, 34 (citing McNeely, 569 U.S. at 149, 152). Accordingly, our decision in Horst did not, as LaFlex suggests, turn solely on the investigator’s discovery of discrepancies in Horst’s story. Among other things, we noted that the exigency arose because “the investigator did not have reason to believe that Horst’s cellphone contained evidence of a crime until after he discovered discrepancies in Horst’s story and the interview had progressed to a discussion of Horst’s texts and calls.” Horst, 880 N.W.2d at 35 (emphasis added). We further noted that the discrepancies in Horst’s story made it “apparent that ‘something was being omitted’ and that Horst was not ‘being completely forthcoming.’ ” Id. Here, the discrepancy LaFlex points to is the initial discrepancy between his firsthand account of Brogle’s alleged apprehension and C.L.’s secondhand recounting of 18 what LaFlex told her. But at the time LaFlex gave this account to the officer at his sister’s house, officers were not yet aware that LaFlex had Brogle’s cell phone earlier that day, that he had attempted to dispose of it by throwing it in the garbage, or of the extent and nature of the animosity between LaFlex and Brogle. Finally, the officer’s interaction with LaFlex happened in the field in an evolving situation. These facts, taken together, make the officer’s brief interaction with LaFlex at his sister’s house distinguishable from Horst. Finally, LaFlex argues that the officers had time to obtain a warrant because Minnesota Rule of Criminal Procedure 36.01 (2024) permits officers to request search warrants telephonically or via electronic submission.5 We addressed this same argument in Horst, where we observed that although technological innovations permit officers to obtain warrants more quickly, “ ‘[w]arrants inevitably take some time for police officers or prosecutors to complete and for … judges to review.’ ” Horst, 880 N.W.2d at 35 (alterations in original) (quoting McNeely, 569 U.S. at 155). We rejected Horst’s argument for the following reason: Even though Minnesota permits oral testimony in support of a warrant, Minn. R. Crim. P. 36.03 requires the preparation of a “duplicate original warrant.” To secure a warrant while Horst was in the interview room, Rule 36 would 5 Minnesota Rule of Criminal Procedure 36.01 in effect at the time officers seized LaFlex’s phone provided that, “[a] request for a search warrant may be made, in whole or in part, on sworn oral testimony, to a judge,” and that “[o]ral testimony may be presented via telephone, radio, or other similar means of communication. Written submissions may be presented by facsimile or electronic transmission, or by other appropriate means.” Minn. R. Crim. P. 36.01 (2025) (amended Feb. 12, 2026). Effective July 1, 2026, the words “or other electronic” replaced “radio, or other similar.” Order Promulgating Amendments to the General Rules of Practice for the District Courts, Rules of Criminal Procedure, and Special Rules of Procedure Governing Proceedings Under the Minnesota Commitment and Treatment Act, Nos. ADM09-8009, ADM10-8046, ADM10-8049, Order at 9 (Minn. filed Feb. 12, 2026). 19 have required the investigator to interrupt the interview, draft a warrant application, and then call the judge to provide oral testimony, all the while hoping that Horst remained in the unlocked conference room. The judge may have then taken time to consider the application. Each of these steps risked destruction of the evidence on the cellphone, which was in Horst’s possession at the time. Id. The same is true in this case, and the risk of LaFlex terminating the interview and destroying the evidence was arguably more substantial than in Horst because LaFlex knew that officers were interested in his cell phone, and why, when Horst did not. We conclude that, under the circumstances, the officers did not have time to obtain a warrant without risking the destruction of the evidence contained on LaFlex’s cell phone. Even assuming one of the officers on scene could have applied for a warrant from their location at the storage facility, the process still would have required that they draft a warrant and apply for the warrant in writing or by oral testimony, and that a judge then consider whether to grant the warrant. See generally Minn. R. Crim. P. 3, 36, 37 (setting forth the requirements and processes to obtain a warrant). Here, LaFlex was not in custody when he made the admissions that provided officers with reason to believe that his cell phone contained evidence of a crime. The officers therefore did not know if or when LaFlex would terminate their interview and leave the storage facility. Had LaFlex terminated the interview and left, he could have quickly erased evidence on his cell phone or destroyed the cell phone altogether. Under these circumstances, the officers’ temporary seizure of LaFlex’s cell phone, to prevent LaFlex from destroying evidence while they obtained a warrant, was reasonable. 20 Accordingly, we conclude that the district court did not err in denying LaFlex’s motion to suppress.6 II. We next turn to LaFlex’s claim that the district court’s erroneous jury instructions warrant reversal of his conviction and remand for a new trial. LaFlex argues that the district court erred by instructing the jury on the order in which jurors should consider the charges and lesser-included offenses and by instructing the jury that it should not consider a lesser-included offense if it found the defendant guilty of a greater offense. LaFlex’s argument is based both on the district court’s instructions to the jury and its response to a question jurors raised during deliberations. After instructing the jury on the elements of the first count—f