In State v. James, No. 106,083 (Kan. Ct. App. 2012), as a matter of first impression in the state, the Court of Appeals of Kansas held that officers may read an arrestee's text messages in a cell phone found on his person as part of a search incident to arrest.
The defendant had been pulled over for having a headlight out. The officer smelled alcohol and soon learned the defendant and his passenger had been making drinks and consuming alcohol while in the vehicle. A search of the car revealed marijuana, and the defendant suggested it may belong to his brother. He did not know his brother's phone number, but because he was in handcuffs, he "stuck out his hip" as a gesture to get the officer to obtain his phone and call his brother. Here's what happened next:
While removing the cell phone from James' pocket, the deputy asked "are there going to be any text messages on here relating to drug sales?" And James responded that there was nothing about drugs on his phone.
Deputy Voigts proceeded to look at the cell phone in James' presence. In scrolling through James' text messages, the deputy found two incoming messages that caught his attention. On December 8, 2009, a person named Ash sent a text message to James' cell phone, which read: "U got green I will meet U somewhere." Another text message, sent on December 9, 2009, said, "Hey T-Ray this is Cotie. U got a 20?"Never was the officer told he could not search the messages, and the phone did not require a password. The defendant was later charged with various drug crimes. The text messages were used as evidence at trial, and the defendant was convicted and sentenced to 44 months in prison.
On appeal, he argued that the search violated his Fourth Amendment rights and that the use of the messages was improper under the rules of evidence.
The Court of Appeals found that the search of the cell phone for text messages "probative of criminal conduct ... was a valid search incident to a lawful arrest." Further, the court found unpersuasive the defendant's arguments that cell phones should be treated differently than other containers including Ohio's Smith v. State (finding that the search of cell phone requires a warrant) and Kansas's own State v. Rupnick (holding that the search of a computer hard drive requires a warrant). The state made a consent argument, but the court did not need to consider it.
Finally, the court found that the text messages were not inadmissible hearsay. The questions "U got green" and "U got a 20" were not "offered to prove the truth of the matter stated." The questions are "neither true nor false" and thus do not qualify as hearsay.