Cell phone search incident to arrest violates Fourth Amendment

Washburn intern ReAnne Wentz and I won in State v. James, No. 106,083 (Kan. May 8, 2015), obtaining a suppression order in a Franklin County possession with intent to sell prosecution. An officer had arrested Mr. James after a traffic stop and went through text messages on his cell phone incident to that arrest, discovering some potentially incriminating text messages. The KSC held that a 2014 SCOTUS case, Riley v. California (SCOTUSblog coverage here) was controlling:

Riley decided two consolidated cases—one involving a smart phone and the other a less technologically sophisticated "flip" phone—both involving a warrantless search of a cell phone following arrest. The Riley Court declined to extend the Robinson rationale to the world of digital information, stating that "while Robinson's categorical rule strikes the appropriate balance in the context of physical objects, neither of its rationales has much force with respect to digital content on cell phones." Riley held that the risks to officer safety and of evidence destruction are significantly lessened in the context of "digital data" and that the privacy interests at stake are significantly heightened because digital data storage devices such as cell phones "place vast quantities of personal information literally in the hands of individuals." Because a search for digital data on a cell phone "bears little resemblance to the type of brief physical search considered in Robinson," the Court declined "to extend Robinson to searches of data on cell phones" and instead ruled that "officers must generally secure a warrant before conducting such a search." Riley was decided while this case was pending on appeal. As such, Riley controls the constitutional issue in this case.

The KSC rejected the state's alternative argument that Mr. James had consented to the cell phone search and, as a result, reversed and remanded with directions to suppress the cell phone text messages.

"I ain't talking no more" is unambiguous invocation of right to remain silent

Benjamin J. Fisher won in State v. Brisco, No. 112,644 (Kan. App. May 1, 2015)(unpublished), affirming Judge Chambers' suppression of several incriminating statements in a Reno County murder prosecution. The following facts were set out in the COA opinion:

The next day, Brisco was interviewed by law enforcement the first time. He denied any involvement in the murder. The following day, Brisco was arrested and interviewed a second time. The detective read Brisco his Miranda rights, and he agreed to speak with the detective. Brisco began to talk to the detective about his version of the events from the night of the murder. At one point during the interview, Brisco indicated he did not want to talk to the detective during the interview but then continued to talk anyway. However, 4 hours into the interview at approximately 11:25 p.m. Brisco placed his hat on his head, folded his arms over his chest, and stayed silent for several seconds. The detective reinitiated questioning. He asked about the gun used, but Brisco remained silent until he stated, “I ain't talking no more.” The silence continued until the detective asked Brisco further questions to which Brisco gave responses.

The COA agreed with Judge Chambers that the statements were obtained in violation of the right to remain silent:

While Brisco's first invocation of his right to remain silent was ambiguous because he continued speaking to the detective of his own accord, Brisco's second invocation of his right to remain silent was not ambiguous or equivocal. During the interview, Brisco placed his hat on his head, folded his arms over his chest, and stayed silent for several seconds. The detective then asked about the gun used, but Brisco remained silent until he stated, “I ain't talking no more.” The silence continued until the detective asked Brisco further questions to which Brisco gave responses. Moreover, the detective never asked any clarifying questions pertaining to Brisco's invocation of his right to remain silent. Not only did Brisco's body language suggest that he was no longer willing to talk, but he specifically stated that he was no longer willing to talk to the detective. Unlike Brisco's first attempt to invoke his right to remain silent, he did not reinitiate the conversation; the detective did. The state concedes that it was the detective that reinitiated the conversation. Thus, the district court did not err when it determined that Brisco's statements made after he unambiguously invoked his right to remain silent should be suppressed.

[Update: the state filed a PR on May 28, 2015.]

[Further update: the KSC denied the state's PR and the mandate issued on July 31, 2015.]

Absconding is more than just not reporting

Patrick H. Dunn won in State v. Huckey, No. 112,273 (Kan. App. April 24, 2015), obtaining a remand order in a Ellsworth County probation violation case. In particular, the COA expounded on the definition of "absconder" for purposes of an intermediate sanction statutes. The panel looked to other cases defining "absconder" for purposes of the fugitive disentitlement doctrine and concluded that "absconder" means something more than failure to report on probation:

The Campbell court ruled that the district court's finding that Campbell was a fugitive based upon a mere allegation in the State's motion was insufficient. The panel ruled that the district court erred on this point, but it ultimately affirmed based upon the legal insufficiency of Campbell's motion to modify sentence.

We find the reasoning of the Campbell panel sound. In this case, the only mention of Huckey being an absconder from supervision was by the State when counsel argued that caselaw suggested that if you failed to report for 2 months you are an absconder; if it is less than 2 months, you are not an absconder. We have found no reported cases that rule this way. 

On appeal, the State has abandoned that argument. Instead, the State contends that because the statute fails to define absconder, then it is left to the absolute discretion of the sentencing court to decide if a probationer is an absconder. In other words, if a probationer fails to report one time, the court, acting within its discretion, could validly rule such a probationer is an absconder, making the intermediate sanctions inapplicable when probation is revoked.

Such an interpretation of the statute runs counter to the elaborate set of intermediate sanctions created by the statute that must be imposed in cases of probation revocation before ordering the original sentence to be served. Why bother to create all of those sanctions if the legislature simply allowed the sentencing court to bypass all of the sanctions with a simple finding that this probationer is an absconder? The reasoning in Campbell is compelling. Absconding is more than just not reporting.

Because the state had not shown any evidence of absconding, the COA remanded for further proceedings.

[Update: the state filed a PR on May 22, 2015.]

[Further update: the KSC denied the state's PR and the mandate issued on August 12, 2015.]

Benign intent does not equal good faith

Sam S. Kepfield won in State v. Cox, No. 112,387 (Kan. App. April 10, 2015), affirming Judge Chambers' suppression order in a Reno County drug prosecution. On appeal, the state argued that Judge Chambers had improperly held that Ms. Cox had standing to challenge the search of her bag. The COA agreed with Judge Chambers:

Under these standards, Cox clearly has standing to challenge the search of the Buckle shopping bag. Cox and Simmons both confirmed that Cox knowingly left her bags in Simmons' car. Simmons positively identified which shopping bag belonged to Cox, and [the trooper] removed and searched only that bag. Even if, as the State argues, [the trooper] did not know for certain that the Buckle bag belonged to Cox before searching it, "the 'state of mind of the searcher regarding the possession or ownership of the item searched is irrelevant to the issue of standing.'" Cox clearly maintained a legitimate expectation of privacy in the bag she readily identified as her own. Thus, Cox had standing to contest the search of the bag.

The COA also rejected the state's argument that Ms. Cox had impliedly consented to search of her bag in these circumstances:

The State's argument that Cox implicitly consented to the search based on the circumstances fails for at least two reasons. First, Simmons specifically identified the Buckle bag that belonged to Cox. Thus, there was no need for [the trooper] to open the bag to look for the wood sander in order to verify ownership of the bag. Second, [the trooper] had the opportunity to ask Cox for her consent to search the bag when he spoke with her on the telephone, but he failed to do so. Under these circumstances, any consent implied by the situation is simply insufficient to substitute for the required express consent.

In summary, the record lacks any indication that Cox's consent to the search of her bag was "'unequivocal, specific, and freely given.'" Because it cannot fairly be said that Cox consented to the search of her Buckle bag, the district court did not err in suppressing the evidence found in the bag.

Finally, the COA rejected the state's claim that the good-faith exception should prevent suppression in this case (1) because it was not raised below and (2) because the trooper was not relying on a search warrant or a statute:

This is not a case where [the trooper] was relying in good faith on a search warrant later found to be invalid or on a statute later declared unconstitutional. Although [the trooper's] motivation for opening Cox's Buckle bag may have been benign, the fact remains that he violated Cox's constitutional rights by searching her bag without a warrant and without her consent. This case presents a situation where the exclusionary rule should be applied in order to deter [the trooper] and other law enforcement officers from making the same type of mistake in the future. Thus, the district court correctly applied the exclusionary rule to suppress the evidence found in the Buckle bag.

[Update: Ms. Cox filed a motion to publish this previously unpublished case, which was granted on July 8, 2015.]

[Further update: the state did not file a PR in this case and the mandate issued on October 29, 2015.]

Written parole agreement required for parole search

Heather Cessna won in State v. Chapman, No. 111,131 (Kan. App. April 10, 2015), obtaining a suppression order in a Sedgwick County identity theft prosecution.  Mr. Chapman was released on parole and was subjected to a residential search of his home. The COA agreed that the state failed to comply with K.S.A. 22-3717(k)(3), which requires that a parolee "agree in writing" to be subject to search on less than probable cause. The COA held that the notice requirement is a critical component of the jurisprudence that allows for such searches.

The COA also disagreed with the state that this particular search was saved by consent. The COA summarized the relevant facts as follows:

When the officers arrived at Chapman's house, they knocked and Chapman answered the door. Bieberle identified himself and told Chapman he was there to investigate financial crimes. Bieberle asked if the officers could come in and search the residence, but Chapman refused. Bieberle was very persistent and continued trying to convince Chapman to consent to a search, but Chapman declined. Chapman told Bieberle that he was not coming in without a search warrant and went back inside his house. By all accounts, it was not until after Chapman received Evans' phone call that he allowed the officers to search. After speaking with Evans, Chapman opened the front door, walked out, and "unhappily" said something to the effect of, "Come on in. I guess, I'm going to let you search." Bieberle estimated that 45 minutes passed between his arrival and the point at which he actually entered Chapman's house.

The COA held that these facts do not evince consent that was "unequivocal, specific, and freely given without duress or coercion, express or implied."  Therefore, the COA reversed and remanded.

[Update: the state did not file a PR and the mandate issued on May 19, 2015.]