State v. James

• Decision Date: 08 May 2015
• Docket Number: 106,083.
• Citation: 301 Kan. 898,349 P.3d 457
• Parties: STATE of Kansas, Appellee, v. Tommy Ray JAMES, Appellant.
• Court: Kansas Supreme Court

301 Kan. 898
349 P.3d 457

STATE of Kansas, Appellee
v.
Tommy Ray JAMES, Appellant.

106,083.

Supreme Court of Kansas.

May 8, 2015.

Randall L. Hodgkinson, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.

James T. Ward, deputy county attorney, argued the cause, and Stephen A. Hunting, county attorney, Heather R. Jones, former county attorney, and Derek Schmidt, attorney general, were on the briefs for appellee.

Opinion

The opinion of the court was delivered by STEGALL, J.:

301 Kan. 899

Tommy Ray James was pulled over for driving with a defective headlight. Smelling of alcohol, James stepped out of his vehicle to examine the headlight. He was able to produce his driver's license to the officer but had no proof of insurance. After initially denying that he had been drinking, James admitted he had had a few. When Demi Scott, James' passenger, stepped out of the vehicle, the officer was able to see an open container of alcohol behind the driver's seat. James admitted it was in the vehicle, and he was then handcuffed and advised of his rights.

James told the officer the two cups in the cup holders contained alcohol that he and Scott had been drinking. While searching for additional alcohol containers, the officer found a large plastic bag of what was later confirmed to be marijuana inside the glove box. During questioning on the scene, James denied the marijuana was his and suggested that it might belong to his brother. After being advised of her rights, Scott too disclaimed any ownership of the marijuana. At this point, James advised the officer that he did not know his brother's phone number but that it was stored in his phone, which he indicated was in his hip pocket.

There is a video recording of this encounter showing James moving his hip towards the officer and the officer reaching into James' hip pocket to retrieve the phone (while James is handcuffed) and asking at the same time, “Are there going to be any text messages on here related to drug sales?” To which James answered, “No, but I would tell you ... but that's but I'm saying I'm thinking that I had his number ... I may not.... Ain't no text messages noth-

301 Kan. 900

unintelligible] nothing about drugs.” The officer repeated, “ Nothing about drugs?” James replied, “No sir.”

The officer then read through James' text messages, finding messages from potential marijuana buyers asking James if he had any to sell. The officer went back to search the car for drug paraphernalia and discovered a drug scale. James claimed that the scale was decorative only, something he hung from his rear view mirror, which he had removed when pulled over.

James was ultimately charged with possession of marijuana with intent to sell or distribute, unlawfully arranging sales or purchases of controlled substances using a communication facility, felony possession of drug paraphernalia, no tax stamp affixed, ignition interlock device violation, no proof of insurance, transporting an open container, and defective equipment. James moved to suppress much of the evidence against him, including the text messages discovered on his phone. Following an evidentiary hearing, the district court declined to suppress the text messages on the grounds that the search of the cell phone was a lawful search incident to arrest. Additionally, James lodged a number of evidentiary objections to the admission of the text messages. The district court again declined to exclude the cell phone evidence but did condition its admission on a limiting instruction that the evidence could only be used to show James' knowledge of the marijuana and his intent to sell or distribute it.

James was convicted of possession of marijuana with the intent to distribute, possession with the intent to use drug paraphernalia, possession of marijuana without a tax stamp, transporting alcohol in an open container, and operating a motor vehicle with defective equipment. Appealing to the Court of Appeals, James claimed: (1) The warrantless search of his cell phone violated the Fourth Amendment to the United States Constitution;

[349 P.3d 461

(2) the district court erred by admitting the text messages at trial; (3) the district court erred in permitting the officer to give opinion testimony about the meaning of the text messages; (4) prosecutorial misconduct; (5) sufficiency of the evidence; and (6) cumulative error. A panel of the Court of Appeals found no error and affirmed James'

301 Kan. 901

convictions. State v. James, 48 Kan.App.2d 310, 311, 288 P.3d 504 (2012).

In particular, the panel noted that “neither the United States Supreme Court nor the Kansas Supreme Court has directly addressed” whether a cell phone search, such as occurred in this case, can be conducted as a valid search incident to arrest. James, 48 Kan.App.2d at 318, 288 P.3d 504. The panel observed that the United States Supreme Court held in United States v. Robinson, 414 U.S. 218, 236, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), that a warrantless search of a crumpled cigarette package found in an arrestee's pocket is a permissible search incident to arrest. James, 48 Kan.App.2d at 318–19, 288 P.3d 504. The panel then considered the burgeoning split of authority from courts in other jurisdictions to have considered whether the rule in Robinson should extend to warrantless cell phone searches incident to arrest, including an unpublished Tenth Circuit decision that “ ‘the permissible scope of a search incident to arrest includes the contents of a cell phone found on the arrestee's person.’ ” 48 Kan.App.2d at 320–21, 288 P.3d 504 (quoting Silvan W. v. Briggs, 309 Fed.Appx. 216, 225 [10th Cir.2009] ). Finally, the panel concluded that Robinson should apply and that “as part of a search incident to arrest, it is reasonable for a law enforcement officer to view the text messages contained in a cell phone found on an arrestee's person for evidence probative of criminal conduct.” James, 48 Kan.App.2d at 322, 288 P.3d 504.

This court granted James' petition for review reprising all of the arguments he made at the Court of Appeals. We exercise jurisdiction pursuant to K.S.A. 60–2101(b). Because we hold, as discussed below, that the lower court erred in not suppressing the text messages and that this error requires reversal, we need not discuss, and do not reach, any of James' other claims of error.

Discussion

Following the panel's decision on James' appeal, the United States Supreme Court ruled that a valid search incident to arrest does not extend to a search of a cell phone found on the arrestee's person. Riley v. California, 573 U.S. ––––, 134 S.Ct. 2473, 2485, 189 L.Ed.2d 430 (2014). Riley decided two consolidated cases—

301 Kan. 902

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.” 134 S.Ct. at 2484. 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.” 134 S.Ct. at 2484–85. 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.” 134 S.Ct. at 2485.

“[N]ewly announced rules of constitutional criminal procedure must apply ‘retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception.’ ” Davis v. United States, 564 U.S. ––––, 131 S.Ct. 2419, 2430, 180 L.Ed.2d 285 (2011). Riley was decided while this case was pending on appeal. As such, Riley controls the constitutional issue in this case. Before resolving this case on constitutional grounds, however, it is incumbent upon us, in light of our recent decision in State v. Julian, 300 Kan. 690, 333 P.3d 172 (2014), to first decide whether James' claims must be decided as a matter of statutory, rather than

349 P.3d 462

constitutional, law. And Julian is only the latest in a line of cases from this court discussing the interplay between the statutory scope and the constitutional scope of permissible searches incident to arrest. Because we here undertake the task of providing needed clarity to this area of the law, and in the process overrule Julian, a detailed review of caselaw development is necessary.

301 Kan. 903

The statutorily prescribed scope of searches...