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STATE v. THOMAS2014 OK CR 12Case Number: S-2013-767Decided: 09/17/2014Cite as: 2014 OK CR 12, __  __

OPINION
SMITH, VICE PRESIDING JUDGE:
¶1 Kanton Damont Thomas was charged with Count I, Possession of a Controlled 
Dangerous Substance (Marijuana) in violation of 63 O.S.2011, § 2-402, and Count II, Possession of a Firearm After 
Former Conviction of a Felony in violation of 21 O.S.2011, § 1283, in the District Court of Oklahoma County, Case No. 
CF-2012-5639.1 Thomas moved to suppress the evidence 
against him, and a hearing was held on July 22, 2013. On August 2, 2013, the 
Honorable Glenn Jones denied the motion in part and granted the motion in part, 
suppressing evidence obtained as a result of the search of Thomas's cellular 
phone. The State timely appealed that Order under 22 O.S.2011, § 1053(5). The State raises four propositions of error in support of 
its appeal.
¶2 After his arrest for possession of a small amount of marijuana, officers 
searched Thomas's cell phone without his permission. They saw pictures of Thomas 
holding firearms, cash, and drugs, and used the information from those pictures 
to get a search warrant for the contents of the phone. The pictures formed the 
basis for the charge in Count II, that Thomas illegally possessed firearms after 
a former felony conviction.
¶3 A review of the record shows the appeal is proper and review of the issue 
is in the best interests of justice. 22 O.S.2011, § 1053(5); State v. Pope, 2009 OK CR 9, ¶ 3, 204 P.3d 1285, 1287.
¶4 Our decision in Proposition II resolves this case. In Proposition II the 
State argues that the trial court erred in finding that the search of Thomas's 
cell phone was an invalid warrantless search not within any exceptions. We 
review this decision for an abuse of discretion. State v. Bass, 
2013 OK CR 7, ¶ 10, 300 P.3d 1193, 1196. An abuse of discretion is any unreasonable or 
arbitrary action taken without proper consideration of the facts and law 
pertaining to the issue; a clearly erroneous conclusion and judgment, clearly 
against the logic and effect of the facts. Neloms v. State, 
2012 OK CR 7, ¶ 35, 274 P.3d 161, 170. As we noted, the initial issue is whether Thomas has a 
reasonable expectation of privacy in his cell phone contents. State v. 
Marcum, 2014 OK CR 1, ¶ 7, 319 P.3d 681, 683. The State concedes that Thomas has an actual, 
subjective expectation of privacy, which society is prepared to recognize as 
reasonable. Champeau v. State, 1984 OK CR 54, ¶ 11, 678 P.2d 1192, 1195-96; Bass, 
2013 OK CR 7, ¶ 5, 300 P.3d at 1195.
¶5 Warrantless searches are unreasonable under the Fourth Amendment unless 
they fall under "a few specifically established and well-delineated exceptions." 
Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). The State 
argues that the officers' initial search of Thomas's phone was lawful as a 
search incident to arrest. A search incident to arrest may include the suspect's 
person and the area within his immediate control, where he could reach a weapon 
or destroy evidence. Arizona v. Gant, 556 U.S. 332, 339, 129 S.Ct. 1710, 1716, 173 L.Ed.2d 485 
(2009), quoting Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685 
(1969). This doctrine is designed to promote officer safety and prevent the 
destruction of evidence. Gant, 556 U.S. at 339, 129 S.Ct. at 1716; Chimel, 
395 U.S. at 
762-63, 89 S.Ct. 
at 2040. The United States Supreme Court recently considered the 
search of cell phones incident to arrest in two cases, and held that, absent 
exigent circumstances or some other exception, police must get a warrant before 
searching the data on a cell phone. Riley v. California, __ U.S. __, 134 
S.Ct. 2473, 189 L.Ed.2d 430 (2014).2
¶6 The State argues that, because a cell phone is a container and a search 
incident to arrest of a container is lawful, the search was lawful. The State 
relies on a broad reading of United States v. Robinson, 
414 U.S. 
218, 235-36, 94 
S.Ct. 467, 477, 38 L.Ed.2d 427 (1973), arguing that any container found on an 
arrested person may be searched incident to the arrest, whether or not it might 
hold a weapon or contraband. In Riley, the Supreme Court rejected this 
argument and declined to extend Robinson to searches of data on cell 
phones. Riley, 134 S.Ct. at 2484-85.3
¶7 In Riley, the Supreme Court considered the characteristics of cell 
phones in the context of the Chimel exceptions - officer safety and 
preservation of evidence. The Court first noted that data stored on cell phones 
"cannot itself be used as a weapon to harm an arresting officer or to effectuate 
the arrestee's escape." Riley, 134 S.Ct. at 2485. Officers may examine 
the phone itself to ensure it cannot, physically, be used as a weapon, but once 
the officer has secured the phone, the data it contains is not a threat. 
Id. The Supreme Court also rejected the argument that cell phone data 
should be subject to search incident to arrest in order to prevent the 
destruction of evidence. While acknowledging concerns regarding remote wiping of 
data and data encryption, the Court noted these concerns were both distinct from 
and broader than the Chimel focus on a defendant who might try to destroy 
evidence within his reach. Riley, 134 S.Ct. at 2486. In addition, the 
Court noted, law enforcement can seize and secure a phone to prevent the 
destruction of evidence, and has the means to prevent destruction of data on 
cell phones. Riley, 134 S.Ct. at 2486-87. The Court advised that any 
broader concerns regarding use of the data on a cell phone immediately after 
arrest should be addressed through established exceptions to the warrant 
requirement such as exigent circumstances. Riley, 134 S.Ct. at 2485, 
2487-88.
¶8 Part of the rationale for a search incident to arrest is an arrestee's 
diminished expectation of privacy, but even with that diminished expectation, 
where the privacy concern is important enough, a warrant may be necesary. 
Riley, 134 S.Ct. at 2488. The Court rejected the State's argument that 
the search of cell phone data was materially indistinguishable from a search of 
other physical items, stating: "That is like saying a ride on horseback is 
materially indistinguishable from a flight to the moon. Both are ways of getting 
from point A to point B, but little else justifies lumping them together." 
Id. The Court discussed the various and versatile uses of cell phones, 
their immense storage capacity, their pervasive use and the highly personal 
nature of the data stored on each phone, all of which differ significantly from 
physical records and items that any person is likely to carry. Riley, 134 
S.Ct. at 2488-91. Furthermore, the Court recognized that the data on a cell 
phone - the contents that officers wish to search - may be stored remotely, not 
on the device itself. Authorizing a warrantless search of data would thus 
resemble, as the opinion puts it, "finding a key in a suspect's pocket and 
arguing that it allowed law enforcement to unlock and search a house." 
Riley, 134 S.Ct. at 2491. The Court rejected partial solutions to these 
concerns in favor of a bright-line test, easy for officers to understand and 
apply. 
¶9 The trial court here, anticipating the decision in Riley, correctly 
found that Thomas's right to privacy in the contents of his cell phone precluded 
its search incident to his arrest. The trial court did not abuse its discretion 
in granting Thomas's motion to suppress the evidence gained from the illegal 
search. Bass, 2013 OK CR 7, ¶ 10, 300 P.3d at 1196. 
¶10 In Proposition I, the State argues the evidence should not have been 
suppressed because officers only downloaded the pictures from Thomas's phone 
after they got a warrant, and there was probable cause for the warrant. The 
State notes that Thomas was walking in a high drug area, next to houses under 
surveillance for drug activity and for which police had search warrants, and 
that he possessed marijuana when he was stopped. The State contends that all 
this would have supported a finding of probable cause for the search warrant. 
However, the warrant itself explicitly states that, while looking through 
Thomas's phone, the affiant saw several pictures of Thomas holding crack 
cocaine, guns and cash. The affiant uses these photographs as the basis for the 
probable cause for the search warrant. The State tacitly admits that the 
affidavit relied solely on the warrantless, unconsented search, arguing only 
that it should not be void because the other information in the warrant could 
have established probable cause. While the other information might have 
established probable cause to arrest and search Thomas, it did not establish 
probable cause to search the contents of Thomas's cell phone. The State also 
relies on the fact that officers were about to serve warrants on the two 
residences. There is nothing in the record, other than the pictures on his 
phone, which directly connects Thomas to either residence, and those residence 
warrants cannot justify the search of Thomas's phone. 
¶11 The State also argues that, even if the search warrant for the phone 
lacked probable cause (because it was based on the results of the unconsented, 
warrantless search), the evidence should not be suppressed because the officers 
relied on the warrant in good faith. The State inexplicably appears to argue 
that in cases dating back to 1992, this Court adopted the good faith argument 
(in fact, the State relies on the case in which the Court declined to adopt that 
doctrine, Solis-Avila v. State, 1992 OK CR 27, ¶ 4, 830 P.2d 191, 192). This Court adopted the 
good-faith doctrine in Sittingdown v. State, 2010 OK CR 22, ¶ 17, 240 P.3d 714, 718. However, the State offers no compelling reason to apply 
that doctrine here. Courts will not apply the exclusionary rule when officers 
act with an objectively reasonable belief that their conduct is lawful. 
United States v. Leon, 468 U.S. 897, 909, 922, 104 S.Ct. 3405, 3420, 82 L.Ed.2d 677 (1984). This 
is not a question of a warrant based on stale information, or one which relied 
on an informant without establishing the informant's credibility. Rather, this 
warrant was explicitly based on the results of an illegal search. When this stop 
and search occurred, there was no binding appellate precedent which could have 
justified the search of Thomas's cell phone, so officers could not have acted in 
objectively reasonable reliance on previously settled law. Davis v. U.S., 
__ U.S. __, 131 S.Ct. 2419, 2428, 180 L.Ed.2d 285 (2011). The initial search of 
Thomas's cell phone was unlawful, and the good faith exception does not 
apply.
¶12 In Proposition III the State argues that the search was lawful under 
Gant and Chimel because officers were looking on the phone for 
evidence directly related to the crime for which Thomas was arrested. 
Gant included this exception, but stressed that it was appropriate given 
"circumstances unique to the vehicle context." Gant, 556 U.S. at 343, 129 S.Ct. at 1719. Riley 
emphasized the unique circumstances of that exception. Riley, 134 S.Ct. 
at 2484. Its subsequent discussion of the nature of cell phones starkly 
differentiates them from the vehicle search context, and Riley did not 
include this Gant exception in its clearly stated requirement that 
officers seeking to search cell phone data should "get a warrant." Riley, 
134 S.Ct. at 2495. Furthermore, nothing in the record supports this claim. 
Thomas was arrested for possessing a small quantity of loose marijuana in a 
pocket. That was a complete crime in itself, and needed no further 
investigation.
¶13 In Proposition IV the State argues that the district court erred in 
suppressing the evidence because police acted reasonably and no police 
misconduct occurred. The State argues generally that suppression of the evidence 
here would serve no purpose, because it would not deter police misconduct. This 
claim depends on whether the officers acted reasonably in searching the cell 
phone upon arrest. In fact, the officers' search of Thomas's cell phone without 
a warrant was unreasonable, and Riley is dispositive. Riley, 134 
S.Ct. at 2495.
DECISION
¶14 The Judgment of the District Court of Oklahoma County sustaining in part 
Appellee's Motion to Suppress is AFFIRMED. Pursuant to Rule 3.15, 
Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. 
(2014), the MANDATE is ORDERED issued upon the delivery and filing 
of this decision.
AN APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTYTHE 
HONORABLE GLENN M. JONES, DISTRICT JUDGE



ATTORNEYS AT MOTION HEARING
 
MATTHEW SEARSASSISTANT PUBLIC DEFENDEROKLAHOMA COUNTY 
      PUBLICDEFENDERS OFFICE611 COUNTY OFFICE BLDG.320 ROBERT S. 
      KERR AVE.OKLAHOMA CITY, OK 73102COUNSEL FOR DEFENDANT
 
 
THOMAS SCHURRASSISTANT DISTRICT ATTORNEY505 COUNTY OFFICE 
      BLDG.320 ROBERT S. KERR AVE.OKLAHOMA CITY, ok 73102COUNSEL FOR 
      STATE

ATTORNEYS ON APPEAL
 
DAVID W. PRATEROKLAHOMA CO. DISTRICT ATTORNEYWILLIAM R. 
      PIERCEASSISTANT DISTRICT ATTORNEY320 ROBERT S. KERR AVE.SUITE 
      505OKLAHOMA CITY, OK 73102COUNSEL FOR APPELLANT/STATE
 
 
PAUL M. CLARKASSISTANT PUBLIC DEFENDEROKLAHOMA COUNTY PUBLIC 
      DEFENDERS OFFICE611 COUNTY OFFICE BUILDING320 ROBERT S. KERR 
      AVE.OKLAHOMA CITY, OK 73102COUNSEL FOR 
    APPELLEE
OPINION BY: Smith, V.P.J.Lewis, P.J.: CONCURLumpkin, J.: CONCUR 
IN RESULTSA. Johnson, J.:CONCUR
FOOTNOTES
1 Thomas had earlier received deferred sentences in Oklahoma 
County Case No. CF-2011-5826 for trafficking in illegal drugs; and in Oklahoma 
County Case No. CF-2010-185 for possession of marijuana within 2000 feet of a 
school. The Honorable Kenneth Watson granted the State's application to 
accelerate these deferred sentences on March 18, 2013. This Court denied 
Thomas's appeal from this decision in Thomas v. State, Case No. 
F-2013-330 (Okl.Cr. Apr. 9, 2014) (not for publication). 
2 This case was fully briefed in this Court on May 
2, 2014, and counsel did not have the benefit of the guidance Riley gives 
this novel issue. 
3 The State argues that the "fundamental 
difference" between the two cases is that Robinson addresses an item 
found on an arrestee, while Gant, Chimel and Belton concern 
objects within an arrestee's reach. On the contrary, the fundamental difference 
between these cases is that Gant was decided thirty-seven years after 
Robinson. This area of law has evolved significantly since 1973. At the 
time of the trial court's ruling in this case, Gant was the Supreme 
Court's latest ruling on the purpose and scope of searches incident to arrest. 
The State misses this elementary point when it argues that subsequent decisions 
following Gant ignore Robinson. One cannot view this jurisprudence 
in isolation. The Supreme Court's decision in Riley renders this argument 
moot. 


LUMPKIN, JUDGE: CONCURING IN RESULT
¶1 I concur in the Court's decision to affirm the District Court's order 
suppressing evidence obtained as a result of the search of Appellee's cellular 
phone but write separately to address the following.
¶2 The United States Supreme Court's opinion in Riley v. California, 
___ U.S. ___, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014), controls this Court's 
determination of the present case. In Riley, the Supreme Court determined 
that an officer's warrantless search of data on a cell phone incident to arrest 
violated the Fourth Amendment to the United States Constitution. Id., 134 
S.Ct. at 2485-86. Absent other case-specific circumstances justifying a 
warrantless search, a warrant is required before an officer may search the data 
on a cell phone, even when incident to arrest. Id., 134 S.Ct. at 2485, 
2493-94.
¶3 In the present case, officers arrested Appellee for possession of a 
controlled dangerous substance, searched his phone incident to arrest, viewed 
certain photographs of Appellee stored within the phone's data and discovered 
evidence of a separate criminal offense. The officers' viewing of the contents 
of Appellee's cell phone constituted a search. As this search was warrantless 
and not supported by exigent circumstances, it was unlawful under Riley. 
Id. 
¶4 The State argues for application of the good-faith exception to the 
exclusionary rule that the United States Supreme Court outlined in United 
States v. Leon, 468 U.S. 897, 920-21, 104 S.Ct. 3405, 3419, 82 L.Ed.2d 677 (1984). However, the 
good-faith exception does not apply to the circumstances of the present case. 

¶5 Years ago this Court recognized that Article II, § 30 of the Oklahoma 
Constitution and the Fourth Amendment to the Federal Constitution contain almost 
exactly the same wording and in substance are identical in the rights protected. 
Sittingdown v. State, 2010 OK CR 22, ¶ 17, 240 P.3d 714, 718; State v. McNeal, 2000 OK CR 13, ¶ 10, 6 P.3d 1055, 1057; Long v. State, 
1985 OK CR 119, ¶ 6, 706 P.2d 915, 916-17; State v. Thomason, 1975 OK CR 148, ¶ 14, 538 P.2d 1080, 1086; DeGraff v. State, 
1909 OK CR 82, 2 Okla.Crim. 519, 103 P. 538, 541. Therefore, this Court follows the United States Supreme Court's 
precedent concerning the Fourth Amendment and, in particular, the good-faith 
exception to the exclusionary rule. Id.; see Tomlin v. 
State, 1994 OK CR 14, ¶ 33, 869 P.2d 334, 341 (recognizing the Court's repeated refusals to extend Leon 
good-faith exception beyond the parameters that the Supreme Court has 
outlined)
¶6 The extent of the good-faith exception is well defined. "The exclusionary 
rule is not applied when a law enforcement officer has conducted a search in 
'objectively reasonable reliance' upon a search warrant issued by a magistrate 
and has abided by the terms of the warrant even if the warrant is subsequently 
determined to be invalid." State v. Sittingdown, 2010 OK CR 22, ¶ 17, 240 P.3d 714, 718, citing Leon, 468 U.S. at 922, 104 S.Ct. at 3420. The good-faith exception 
turns on objective reasonableness. Leon, 468 U.S. at 923, 104 S.Ct. at 3421. In Davis v. United 
States, ___ U.S. ___, 131 S.Ct. 2419 180 L.Ed.2d 285 (2011), the Supreme 
Court listed those areas where the Court had extended the good-faith exception 
to similarly themed circumstances. 

Illinois v. Krull, 480 U.S. 340, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987), extended the good-faith 
exception to searches conducted in reasonable reliance on subsequently 
invalidated statutes. Id., at 349-350, 107 S.Ct. 1160 ("legislators, like 
judicial officers, are not the focus of the rule"). In Arizona v. Evans, 
supra, the Court applied the good-faith exception in a case where the 
police reasonably relied on erroneous information concerning an arrest warrant 
in a database maintained by judicial employees. Id., at 14, 115 S.Ct. 
1185. Most recently, in Herring v. United States, 555 U.S. 135, 129 S.Ct. 695, 172 L.Ed.2d 496, we 
extended Evans in a case where police employees erred in maintaining records in 
a warrant database. "[I]solated," "nonrecurring" police negligence, we 
determined, lacks the culpability required to justify the harsh sanction of 
exclusion. 555 U.S., at 137, 144, 129 S.Ct. 695.
Id., 131 S.Ct. at 2428. The Supreme Court has also extended the 
good-faith exception to searches conducted in reasonable reliance on binding 
appellate precedent. Id., 131 S.Ct. at 2434. 
¶7 Turning to the seizure of Appellee's cell phone data, none of the 
objectively reasonable circumstances that the United States Supreme Court has 
recognized are present. After the officers viewed the phone's contents and 
discovered photographic evidence of the separate offense, the officers asked 
Appellee for consent to download the contents of the phone and Appellee 
declined. The officers then used their knowledge of the photographs on the phone 
to obtain a search warrant for the phone's contents and seized the data pursuant 
to the warrant. As the officers' initial viewing of the photographs on the cell 
phone was unlawful, the officers could not have acted in the objectively 
reasonable belief that their conduct did not violate the Fourth Amendment. 
Leon, 468 
U.S. at 923, 926, 
104 S.Ct. at 3421, 3422 (holding suppression is appropriate where officers could 
not have harbored objectively reasonable belief that the search warrant was 
valid). 
¶8 In Baxter v. State, 2010 OK CR 20, 238 P.3d 934, this Court discussed application of the exclusionary rule. 
Id., 2010 OK CR 20, ¶ 9, 238 P.3d at 937. The question 
is whether the evidence was "'come at by exploitation of that illegality or 
instead by means sufficiently distinguishable to be purged of the primary 
taint.'" Id., quoting Wong Sun v. United States, 
371 U.S. 
471, 488, 83 S.Ct. 
407, 417, 9 L.Ed.2d 441 (1963). 
¶9 In the present case, the evidence against Appellee was solely the result 
of the unlawful search of his cell phone's contents. The officers would not have 
known of the photographs without first conducting the illegal search of the 
phone's contents. Thus, the officers did not have any independent source for 
their knowledge of the separate offense and there was not any intervening 
occurrence which might attenuate the connection between the unlawful search and 
the evidence and thus dissipate the taint. Wong Sun, 371 U.S. at 487-88, 83 S.Ct. at 417. As the officers 
obtained the data from Appellee's cell phone through exploitation of the initial 
illegal search of the phone's content, the officers did not have an objective 
reasonable belief that the search warrant was valid and the District Court 
properly suppressed the phone's data. 

Citationizer© Summary of Documents Citing This DocumentCite
Name
Level
None Found.Citationizer: Table of AuthorityCite
Name
Level
Oklahoma Court of Criminal Appeals Cases CiteNameLevel 1992 OK CR 27, 830 P.2d 191, SOLIS-AVILA v. STATEDiscussed 1994 OK CR 14, 869 P.2d 334, TOMLIN v. STATEDiscussed 1909 OK CR 82, 103 P. 538, 2 Okl.Cr. 519, De Graff v StateDiscussed 2009 OK CR 9, 204 P.3d 1285, STATE v. POPEDiscussed 2010 OK CR 20, 238 P.3d 934, BAXTER v. STATEDiscussed at Length 2010 OK CR 22, 240 P.3d 714, STATE v. SITTINGDOWNDiscussed at Length 2012 OK CR 7, 274 P.3d 161, NELOMS v. STATEDiscussed 2013 OK CR 7, 300 P.3d 1193, STATE v. BASSDiscussed at Length 2014 OK CR 1, 319 P.3d 681, STATE v. MARCUMDiscussed 1975 OK CR 148, 538 P.2d 1080, STATE v. THOMASONDiscussed 1984 OK CR 54, 678 P.2d 1192, CHAMPEAU v. STATEDiscussed 1985 OK CR 119, 706 P.2d 915, LONG v. STATEDiscussed 2000 OK CR 13, 6 P.3d 1055, 71 OBJ        1922, State v. McNealDiscussedTitle 21. Crimes and Punishments CiteNameLevel 21 O.S. 1283, Convicted Felons and DelinquentsCitedTitle 22. Criminal Procedure CiteNameLevel 22 O.S. 1053, State or Municipality May Appeal in What CasesDiscussedTitle 63. Public Health and Safety CiteNameLevel 63 O.S. 2-402, Prohibited Acts B - PenaltiesCited










