Officer, put down that phone

Andrew M. Delaney, of Delaney Law Office, won in State v. Isaac, No. 101,230 (Kan. App. June 26, 2009) (unpublished), affirming Judge Weingart's suppression of evidence retrieved by police off of Isaac's phone without a court order.

Following Isaac's arrest for drug charges, his cell phone rang several times. Ultimately, a police officer answered the phone, and the caller stated that he needed "a 20," which was allegedly slang for $20 worth of marijuana. The police then obtained names and numbers off of the phone, which led to the discovery of other evidence. The district court suppressed the evidence obtained from the phone on evidentiary grounds and because the evidence was obtained without a search warrant. The State filed an interlocutory appeal of the suppression.

The COA affirmed the district court's suppression of the evidence obtained from the interception of the phone call and the subsequent search of the data on Isaac's phone. Regardig the interception of the phone call, the court noted, "Law enforcement officers in Kansas can legally intercept wire, oral, or electronic communications in two ways, either by consent or by court order." (Citing K.S.A. 22-2515 and K.S.A. 22-2516.) The court held:

The officers followed none of the statutory procedures authorizing the interception of phone calls in this case. Clearly, they did not try to get consent from Isaac, nor did they seek a court order. They simply answered the phone, intercepted the call, and played along with the caller.

The owner of a cell phone has just as much an expectation that his or her phone calls will be private as an owner of a telephone that uses wires. See K.S.A. 21-4002(a)(1); Rupnick, 280 Kan. at 732-33. In his case, Isaac enjoyed such an expectation. . . . We hold the district court's suppression of the evidence of the phone call and what followed between the deputy and the caller was proper.

Regarding the subsequent search of the phone, the COA also agreed with the district court's comparison of the search of data from the phone to the search of information from a personal computer. The court held that there was not a valid search incident to arrest because the search of the phone was several hours after the arrest. The court also held that the search of the phone was not justified by probable cause plus exigent circumstances. The court noted that there was neither probable cause nor exigent circumstances to search the phone.

On a prior bad acts issue, the COA did reverse the district court's decision to prohibit prior bad acts evidence, noting that the district court failed to comply with the three-step analysis set forth in Gunby.

[Update: the state did not file a PR and the mandate issued on July 30, 2009.]