No.
15-113397-A
IN THE
COURT OF APPEALS OF THE
STATE OF KANSAS
FILEB
STATE OF KANSAS
JUN - 4 20I5
P la in tiff-A p p e lla n t
h e a t h e r l . s m it h
CLERK OF APPELLATE COURTS
vs.
CORNELIOUS JONES
D efendant-Appellee
BRIEF OF APPELLEE
A ppeal fro m the D is tric t C ourt o f Labette C ounty, Kansas
H onorable R obert J. Flem ing, D is tric t C ou rt
D is tric t C ou rt Case No. 14 CR 62 PA
T im o th y J. G rillo t, #11415
P.O. B ox 311
1816 Main Street, Suite A
P arsons, Kansas 67357
(620)421-3010
A tto rn e y fo r D efendant
TABLE OF CONTENTS
NATURE OF THE CASE
1
.
STATEMENT OF THE FACTS
.
.
.
1
.
2
ARGUMENTS AND AUTHORITIES
STATUTES
K.S.A. 22-2501
K.S.A. 60-1507
5
.
.
.
6
.
CASES
Wyoming v. Houghton, 562 U.S. 295 (2014)
1
Riley v. California, _
2 .4
U.S. _ , 134 S. Ct. 2473 (2014)
Kentucky v. King, 563 U. S .
2
, ___
Chimel v. California, 395 U.S. 752 (1969)
3.4
United States v. Robinson, 414 U.S. 752 218
3 .4
Arizona v Gant, 556 U.S. 332 (2009)
3, 5 ,6
Wyoming v Houghton, 526 U.S. 295, 300 (2014)
4
State v. McAdam, 277 Kan. 136, 83 P.3d . (2008)
4 .6
Barrv. State, 287 Kan. 190, 196 P.3d 357 (2008)
4 .6
State v. Pettay, 299 Kan. 763, 326 P.3d 1039 (2014)
4 .5
State v. Dennis, 297 Kan. 229, 300 P.3d 81 (2013)
5
State v. Daniel, 291 Kan. 490, 242 P.3d 1186 (2010)
5
291 Kan. At 496.” 299 Kan. at 768
5
Davidson, 41 Kan. App.2d at 148 .
5
Sanders, 5 Kan. App.2d at 196-97.” 299 Kan. at 771
5
State v. Phinney, 280 Kan. 394 (2005)
6
Easterwood v. State, 273 Kan. 361, 44 P.3d 1209 (2002)
6
Barnes, 278 Kan. at 122-28
6
.
.
.
.
Katz v. United States, 389 U.S. 347, 357.
6
Davis v. U.S., 131 S. Ct. 2419 (2011)
7
New York v. Belton, 453 U.S. 454.
7
Herring v. United States, 555 U.S. 135 (2009)
.
.
.
7
United States v. Leon, 468 U.S. 897(1984)
.
.
.
7
C O N C L U S I O N .......................................................................................................... 8
NATURE OF THE CASE
The vehicle the Appellee, Cornelious Jones was a passenger in, was stopped on
March 8, 2014 after the vehicle turned onto a four lane roadway and went immediately
into the inner lane rather than taking the outside lane and later signaling to change
lanes. Affidavit of Probable Cause (PCA) Vol. I, p. 7-1 la n d 21-24. A brief chase ensued
and the car stopped abruptly with the Appellee, a passenger, running on foot and was
arrested after a brief chase. Id. The officers searched the Appellee and retrieved a
cellular phone from his pocket and searched the phone for texts and calls without first
obtaining a warrant. Id. The search allegedly revealed multiple sales of illicit drugs and
multiple charges were filed. Id. The Appellee filed a motion to suppress based upon the
recent United States Supreme Court ruling in Wyoming v. Houghton, 562 U.S. 295
(2014). Vol. I, p. 42-45. The Trial Court granted the motion and suppressed all evidence
emanating from the search based upon the Houghton ruling. Id., p. 52-54. The State
appeals.
STATEMENT OF FACTS
1.
The Appellee was stopped on the 8th day of March, 2014, in Labette
County, Kansas by officers from the Parsons Police Department. Id., p. 7-11 and 21-24.
2.
The Appellee was a passenger in a 2001 Infinity I30 4door owned by
Alfonso Johnson. Id.
3.
The officers initiated the traffic stop by activating their emergency lights
and sirens. Id.
1
4.
There was a short pursuit with the vehicle coming to stop on the 600 block
of S. 17th, Parsons, Kansas. Id.
5.
The Appellee exited the driver side of the suspect vehicle and ran
westbound and was apprehended shortly thereafter. Id.
6.
The Defendant’s pockets were searched resulting in money and a black
ATT touch cell phone being seized. Id.
7.
Shortly thereafter Officer Tony Adamson searched the Defendant's cell
phones text messages to determine if the cash was obtained as a result of sales and
distribution of narcotics. Id.
I
8.
Based upon the seizure of the cell phone and review of the text messages
an arrest was made and charges were filed for distribution of narcotics among other
charges. Id.
9.
No search warrant was obtained to search the cell phone. Id., p.49-51.
ARGUMENTS AND AUTHORITIES
In a landmark decision the United States Supreme Court in R iley v. C alifornia,
U.S.
134 S. Ct. 2473 (2014) ruled:
Held: The police generally may not, without a warrant, search digital
information on a cell phone seized from an individual who has been arrested
Pp. 528. (a) A warrantless search is reasonable only if it falls within a specific
exception to the F ourth Amendment's warrant requirement. Sjee Kentucky v.
King, 563 U. S .
, ___ . The well established exception at issue here
applies when a warrantless search is conducted incident to a lawful arrest.
Id., at P.2.
2
The language of the ruling is plain and unambiguous. Cellular phones do not in and of
themselves present a danger. Maybe an argument for exigent circumstances may be
made if there was evidence the Appellee was using the phone to call|for back up or a
ride but no such evidence exists and in addition, had it existed once detained a search
warrant could easily be applied for and obtained.
The United States Supreme Court in Chim el v. C alifornia, 39!5 U.S. 752 (1969),
requires that a search incident to arrest be limited to the area within the arrestee's
immediate control, where it is justified by the interest in the officers safety and in
preventing evidence destruction. In U nited States v R obinson, 414IU.S. 218, the court
applied the C him el analysis to a search of a cigarette pack found onlthe arrestee’s
person. It held that the risks identified in Chim el were present in all custodial arrests,
414 U.S. 235 (1973), even when there is no specific concern about the loss of evidence
or the threat to officers in a particular case, id., 236. The trilogy concludes with A rizona
v Gant, 556 U.S. 332 (2009), which permits searches of a car wherelthe arrestee is
unsecured and within reaching distance of the passenger compartment, or where it is
reasonable to believe that evidence of the crime of arrest might be fo'und in the vehicle,
id., 343. p. 5-8.
I
The court refused to extend R o b in so n ’s categorical rule to searches of data
I
stored on cell phones. The court must balance the degree to which the search intrudes
i
i
3
upon an individual’s privacy and, on the other, the degree to which it is needed for the
promotion of legitimate governmental interests. Wyoming v Houghton, 526 U.S. 295,
300 (2014). The Supreme Court, in Riley does the analysis and finds1that it “implicates
substantially greater individual privacy interests than a brief physical search.1’ p. 8-22.
The court goes on to find the data stored on cell phones present neither the
Chimel risk nor can the data on the cell phone be used as a weapon! to harm an
arresting officer or to effectuate the arrestee's escape. They may examine the phones
physical aspects to ensure it may not use as a weapon but the data bn the phone can
endanger no one. The court further discusses that cell phones differ in both a
quantitative and qualitative sense from other objects that may be carried on a arrestee’s
person that they have an immense storage capacity.
The Appellant appears to ask that the Appellate Court carve out two exceptions
to this rule. One for ‘good faith’ and the other because the officers were unaware of the
decision at the time they made the arrest. This case is indistinguishable from Riley v.
California, supra, the officers were unaware that the highest court would require a
search warrant to seize and search cellular phones. These two cases are identical. This
i
argument might hold some merit if the Appellee was seeking this relief with a collateral
i
attack after all his direct appeals had been exhausted. See State v. Me Adam, 277 Kan.
136, 83 P.3d and see also Barr v. State, 287 Kan. 190,196 P.3d 357 (2008)
The Appellant’s reliance upon State v. Pettay, 299 Kan. 7 6 3 ,1326 P.3d 1039
i
(2014) and its progeny is misguided. Pettay is a follow up from the case of State v.
4
Dennis, 297 Kan. 229, 300 P.3d 81 (2013). Dennis resolved issues from divided
panels of the Court of Appeals regarding the legislature repealing K.S.A. 22-2501 which
provided a stricter rule regarding search and seizure than was required under
Constitutional Law. The statute prohibited searches once the arrestee was handcuffed
and no longer in the vicinity of the search. These cases do not address search of a
cellular phone. In Pettay, the State argued for a “good faith" exception because the
search occurred two days prior to the holding in State v. Daniel, 291 Kan. 490, 242
P.3d 1186 (2010). The Kansas Supreme Court rejected this argument reversing the
Court of Appeals and suppressed the evidence. The Court states unequivocably:
“Warrantless searches are considered unreasonable and invalid unless they fall
within recognized exceptions to the warrant requirement. The State bears the
burden to demonstrate a challenged search was lawful. 291 Kan. At 496. In
Pettay’s case, it is undisputed there was no warrant authorizing the vehicle
search, and the State agrees the search was unlawful under Gant and Henning.
The only question then is whether the appropriate remedy is to suppress the
illegally seized evidence. This is a question of law. See 291 Kan. At 496.” 299
Kan. at 768.
The Court continues:
“The only remaining question is whether applying the exclusionary rule would
serve the purpose of deterring future law enforcement misconduct.(Citations
om itted).. .We hold that it does, although it is a closer call given the contradictory
caselaw prior to the search from the Court of Appeals. See Davidson, 41 Kan.
App.2d at 148; Sanders, 5 Kan. App.2d at 196-97.” 299 Kan. at 771.
The Supreme Court was very clear that searching a cellular phone requires a search
warrant. The State asks you to either carve out an exception merely for this case or in
allow carte blanche admission if the search of the cellular phone was made in “good
faith." Had the Supreme Court intended exceptions they would have carved those out in
their landmark decision.
5
In Barr, the Court found that McAdam, supra, applied retroactively to cases
pending but not to collateral attacks upon prior convictions. Barr attempted to file an
untimely direct appeal which was denied. He then filed a K.S.A. 60-1507 motion
claiming his trial counsel was ineffective for his failure to timely raise McAdam. The
Court rejected this argument. The only exception to collateral attack and retroactivity is
a watershed constitutional ruling. State v. Phinney, 280 Kan. 394 (2005); See also
Easterwood v. State, 273 Kan. 361, 44 P.3d 1209 (2002). The Court further states:
“In Barnes, 278 Kan. at 122-28, we held that a defendant whose direct appeal
on a McAdam-type issue was still pending at the time McAdams was decided, is
entitled to be resentenced. On the other hand, in Bryant v. State, 280 Kan. 2,
Syl. Para. 3 ,1 1 8 P.3d 685 (2005), we held that a defendant who enters a plea
and does not file a direct appeal cannot collaterally challenge the sentence
imposed on the ground that the offense he or she pled guilty to and second
offense having a lesser penalty have identical elements.” Phinney, 280 Kan. at
p. 400.
Appellee is entitled to retroactive application of this ruling because his case is still
pending.
Arizona v. Gant, 556 U.S. 332 (2009) repeats the common theme:
“Warrantless searches “are per se unreasonable,” “subject only to a few
specifically established and well-delineated exceptions.” Katz v. United
States, 389 U.S. 347, 357. (Emphasis added). Arizona v. Gant, 556 U.S. at
332.
The Court discusses searches incident to a lawful arrest. It was made clear that the
search of a cellular phone is only legal if a properly executed search warrant is issued.
This is new law without any delineated exceptions. In the instant case the Appellee
requests that the Court follow current constitutional law and uphold the District Court’s
suppression of the evidence seized without benefit of a warrant.
6
Davis v. U.S., 131 S. Ct. 2419 (2011), the Defendant filed a habeas corpus. He
was a passenger in a car and obstructed the officers who stopped the car by giving a
false name. He was legally under arrest. The officers conducted a search incident to a
lawful arrest in the vehicle and found Davis’ revolver. He was charged with unlawful
possession of a firearm by a felon. In his petition he acknowledged that the search
complied with then existing precedent in the eleventh circuit interpretating New Y ork v.
Belton, 453 U.S. 454. The precedent on this exact issue was that it was a lawful
search. There are no cases put forward by the State that Kansas had allowed
unfettered and unlimited access to cellular phones. The U.S. Supreme Court reasons
that it is a “good faith” issue because current precedent in the circuit Davis was charged
in was that it was a legal search subsequently found unconstitutional. Respectfully
disagreeing with this position it carves out a niche or small exception to retroactive
application.
In H erring v. U nited States, 555 U.S. 135 (2009) the officer made a lawful
search incident to as it turned out an unlawful arrest as the warrant had been recalled
but never removed from the database. This is exactly the factual situation that the “good
faith” exception was intended for. The officer was following the facts as he in “good
faith” understood them. He made the arrest and searched pursuant to the arrest. A
similar example would be a warrant still in existence that is later found to be improperly
issued. Same result. In the instant case there is no room for “good faith.” There are no
clearly delineated exclusionary exceptions to searching a cellular phone. U nited States
v. Leon, 468 U.S. 897 (1984) cited by the state is of the same ilk. Once again, it was an
7
improperly issued warrant but lawful arrest. Evidence was seized incident to this lawful
arrest. Items that did not require a search warrant because it met a well delineated
exception to the warrant requirement.
CONCLUSION
The U.S. Supreme Court has clearly indicated that a search of a cell phone
without a warrant violates the Fourth Amendment of the U.S. Constitution. The Fourth
Amendment to the U.S. Constitution is made applicable to the states through the
Fourteenth Amendment. The search of the cellular phone without a warrant is improper,
illegal and all fruits and instrumentalities of the poisonous tree should be suppressed.
Respectfully submitted,
Timothy J. Grillot #11415
Attorney for Defendant
P.O. Box 311
1816 Main St., Suite A
Parsons, Kansas 67357
(620) 421-3010
qrillotlaw@sbcqlobal.net
8
CERTIFICATE OF MAILING
I certify that I mailed the Brief of Appellee on this 1st day of June, 2015, by
placing three (3) true and correct copies to Stephen P. Jones and sixteen (16) true and
correct copies of the same to the Court of Appeals in the United States mail, postage
prepaid, addressed as follows:
Court of Appeals
Kansas Judicial Center
301 S.W. 10th
Topeka, KS 66612-1507
Stephen P. Jones
Deputy Labette County Attorney
201 S. Central
Parsons, KS 67357
imothy J. Grillot, #11415
9