                         Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE                                         NEWS RELEASE #027


FROM: CLERK OF SUPREME COURT OF LOUISIANA



The Opinions handed down on the 26th day of June, 2019, are as follows:




PER CURIAM:

2018-KK-1518      STATE OF LOUISIANA v. KELLY FOLSE (Parish of Jefferson)

                  On this record, we cannot say whether defendant merely acquiesced
                  to a claim of lawful authority, see Bumper v. North Carolina, 391
                  U.S. 543, 548–550, 88 S.Ct. 1788, 1792, 20 L.Ed.2d 797 (1968), or
                  validly consented to provide her passcode in exchange for
                  the phone. We are also unable from this record to determine
                  whether the officer acted reasonably in good faith, as urged
                  by the State, or the police conduct was coercive and indicative
                  of bad faith, as the court of appeal found. Therefore, rather
                  than rule on the merits of such significant questions on a
                  deficient record, we reverse the court of appeal, and we
                  remand to the district court to conduct further evidentiary
                  proceedings, after which the district court is directed to
                  reconsider whether the evidence ought to be suppressed.

                  REVERSED AND REMANDED.

                  WEIMER, J., dissents and assigns reasons.
                  GENOVESE, J., dissents for the reasons       assigned   by   Justice
                  Weimer.
06/26/19


                       SUPREME COURT OF LOUISIANA


                                  No. 2018-KK-1518

                              STATE OF LOUISIANA

                                        VERSUS

                                   KELLY FOLSE


        ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
             FIFTH CIRCUIT, PARISH OF JEFFERSON



PER CURIAM

       Defendant, a veterinarian, was charged with aggravated cruelty to animals,

La.R.S. 14:102.1, and illegal use of a weapon, La.R.S. 14:94, arising from the

allegation she shot her neighbor’s dog in River Ridge. 1 Defendant was arrested and

her home was searched pursuant to arrest and search warrants. Her iPhone was

seized at the time of her arrest. Access to the phone was locked by a passcode.

      On December 19, 2017, police obtained a search warrant to extract and

examine the contents of the phone. On January 3, 2018, defendant came to the

Detective Bureau, accompanied by her lawyer, to retrieve her phone. It is not clear

how that event was arranged, and the extent of counsel’s participation in the

arrangement is not known. It is clear, however, that she consulted with the attorney

who accompanied her as well as with additional counsel by phone.

      At some point, she was informed that police had a search warrant for the

phone but they would return it to her after she provided the passcode and they


1
  A search of defendant’s residence also resulted in charges of possession of a legend drug
without a prescription (methocarbamol), La.R.S. 40:1060.13, and possession of a controlled
dangerous substance (diazepam), La.R.S. 40:969.
extracted a copy of its contents. However, the 10-day period provided in

La.C.Cr.P. art. 163(C) (“a search warrant cannot be lawfully executed after the

expiration of the tenth day after its issuance”) had passed at that time. It is not clear

who (if anyone) was aware of that fact. Under circumstances that were not well

developed at the evidentiary hearing, defendant ultimately provided her passcode,

her data was extracted, and her phone returned to her.

      Defendant moved to suppress the contents of the phone because the warrant

had expired at the time the phone was searched. The district court found that the

warrant could not be executed because the 10-day period provided in La.C.Cr.P.

art. 163(C) had passed. However, because defendant, with the assistance of

counsel, consented to the search by providing her passcode in exchange for the

return of her phone, the district court denied defendant’s motion to suppress.

      The court of appeal held that defendant’s consent to search her phone was

not free and voluntary because it was given only after an officer asserted that she

had a warrant to search the phone, citing Bumper v. North Carolina, 391 U.S. 543,

88 S.Ct. 1788, 20 L.Ed.2d 797 (1968) for the proposition: “[A] law enforcement

officer cannot rely upon the authority of a warrant to obtain a person’s consent to a

search of his or her property. Such conduct is coercive and, in our view, indicative

of bad faith.” State v. Folse, 18-0458, p. 4 (La. App. 4 Cir. 8/16/18) (unpub’d).

Therefore, the court of appeal reversed the district court’s denial of defendant’s

motion to suppress and remanded for further proceedings.

      The State contends the court of appeal erred because La.C.Cr.P. art.

163(D)(2), which pertains to the examination or testing of seized property,

authorized the police to extract the data from defendant’s phone notwithstanding

the 10-day period limiting the execution of the search warrant established in

La.C.Cr.P. art. 163(C). Alternatively, if La.C.Cr.P. art. 163(D)(2) does not apply,

                                           2
the State argues that the officer acted reasonably in good faith believing it applied,2

defendant consented to the search,3 or the inevitable discovery exception to the

warrant requirement applies. 4

         After examining La.C.Cr.P. art. 163(D)(2) in its context, one thing is certain:

The legislature has failed to keep pace with developing information technology as

it involves the enduring rights to be free from unreasonable search and seizure. Cf.

Fed. R. Crim. P. 41(e)(2)(B). We are not prepared to adopt the State’s expansive

and novel reading of Art. 163, as applied to the poorly developed facts here,

particularly given the record before us, which includes an evidentiary hearing that

contains just under a dozen pages of testimony, and which inspires more questions

than it answers. Therefore, we decline to consider the State’s first argument

regarding the applicability of La.C.Cr.P. art. 163(D)(2), particularly in light of

what might amount to a concession in the court below that this provision does not

squarely apply. 5

         As to the State’s remaining claims, the sparse record on those issues also

stands as an insurmountable obstacle to their resolution. The circumstances under

which the phone was arranged to be returned, and under which defendant

ultimately agreed to furnish the passcode in exchange, were only skeletally

developed at the suppression hearing. The role of counsel, also unknown, may

further complicate matters. On this record, we cannot say whether defendant

merely acquiesced to a claim of lawful authority, see Bumper v. North Carolina,

391 U.S. 543, 548–550, 88 S.Ct. 1788, 1792, 20 L.Ed.2d 797 (1968), or validly

consented to provide her passcode in exchange for the phone. We are also unable


2
    See generally United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1990).
3
    See generally Schneckloth v. Bustamente, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).
4
    See generally Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984).
                                                 3
from this record to determine whether the officer acted reasonably in good faith, as

urged by the State, or the police conduct was coercive and indicative of bad faith,

as the court of appeal found. Therefore, rather than rule on the merits of such

significant questions on a deficient record, we reverse the court of appeal, and we

remand to the district court to conduct further evidentiary proceedings, after which

the district court is directed to reconsider whether the evidence ought to be

suppressed.

REVERSED AND REMANDED




      5
          See State’s Exhibit B, pp. 5–6.
                                            4
06/26/19

                   SUPREME COURT OF LOUISIANA


                                 NO. 2018-KK-1518

                              STATE OF LOUISIANA

                                       VERSUS

                                   KELLY FOLSE

                ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
                     FIFTH CIRCUIT, PARISH OF JEFFERSON



WEIMER, J., dissenting.

      The majority essentially holds that the law regarding cell phone searches has

not kept pace with technology and provides the state another opportunity to justify

a search of the defendant’s cell phone when the state’s first efforts failed to show the

search complied with statutory and constitutional mandates. I respectfully dissent.

      Nearly five years ago, the United States Supreme Court described in great

detail the constitutionally-protected privacy interests that are presented when, as here,

the government wishes to search a cell phone that is been seized incidental to an

arrest. Riley v. California, 573 U.S. 373 (2014). The Court observed that “[m]odern

cell phones, as a category, implicate privacy concerns far beyond those implicated by

the search of a cigarette pack, a wallet, or a purse.” Id. at 393. “Before cell phones,

a search of a person was limited by physical realities and tended as a general matter

to constitute only a narrow intrusion on privacy.” Id. Now, however, a cell phone

may contain “[t]he sum of an individual’s private life,” with details such as bank

statements, addresses, messages, notes, prescriptions, photographs, and videos. Id.

at 394. To this litany, I add medical records, which are among the most private of

matters that should be safe from government view.
         The search warrant the state obtained here was consistent with the Riley

Court’s ruling “not that the information on a cell phone is immune from search; [the

Court’s ruling] is instead that a warrant is generally required before such a search,

even when a cell phone is seized incident to arrest.” Id. at 401. The fundamental

problem in this case is that the time for conducting a search specified in the warrant

had expired. Long before the advent of cell phones, in the criminal lexicon, the term

“stale warrant” was coined for this situation.

         No technological issue stymied the state and caused its search warrant to go

stale. This case should, therefore, be analyzed under well-established principles to

ascertain whether an exception to the warrant requirement applies.

         The state argues that the officer acted reasonably in good faith believing the

search warrant applied,1 defendant consented to the search,2 or the inevitable

discovery exception to the warrant requirement applies.3 Whether relying on the

good faith exception, the inevitable discovery exception, or defendant’s consent, in

each instance the State ultimately carries the burden of proof. See United States v.

Gant, 759 F.2d 484, 487-89 (5th Cir. 1985); State v. Vigne, 01-2940, p. 9 (La.

6/21/02), 820 So.2d 533, 539 (citing Nix v. Williams, 467 U.S. 431, 444, 104 S.Ct.

2501, 2509, 81 L.Ed.2d 377 (1984)); State v. Edwards, 434 So.2d 395, 397 (La.

1983).

         The court of appeal held that defendant’s consent to search her phone was not

free and voluntary because it was given only after an officer asserted that she had a

warrant to search the phone, citing Bumper v. North Carolina, 391 U.S. 543, 88


1
    See generally United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1990).
2
    See generally Schneckloth v. Bustamente, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).
3
    See generally Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984).

                                                2
S.Ct. 1788, 20 L.Ed.2d 797 (1968). That rationale is self-explanatory and is amply

supported by the evidentiary record. However, the appellate court also noted–but did

not analyze–the coercive power of the officer promising to return the phone only after

defendant complied with the search. Coercion, this court has explained, can defeat

a person’s consent to search. See State v. Howard, 15-1404, pp. 8-9 (La. 5/3/17),

226 So.3d 419, 425-26 (“To be valid, consent must be … free and voluntary, in

circumstances that indicate the consent was not the product of coercion, threat,

promise, pressure or duress that would negate the voluntariness … .”).

      To the Riley Court’s observations about the private materials cell phones may

contain, I add the following additional observations about why the state held a

coercive advantage when the officer told the defendant she needed to unlock her cell

phone and consent to its search as a condition for police to return it. Cell phones are

frequently a person’s sole means of tracking schedules and appointment calendars,

as well an exclusive means of telecommunication, since reliance on cell phones has

led to few people maintaining landlines. Cell phones are also quite expensive, and

purchasing a replacement phone and service contract could be difficult for a suddenly

unemployed defendant facing extensive legal bills. Without her phone, defendant

likely had no easy way to communicate with her family, or even contact emergency

services if need be. Communicating with her lawyer would also predictably be a

problem.

      As part of the justification for remanding this matter, the majority notes that the

defendant was actually accompanied by her lawyer when she went to retrieve her cell

phone from the police. The majority appears to view as an open question why the

lawyer did not become more involved in the transaction with police. Under the law,

this is not an open question. Under the law, it is neither police, nor defense counsel,

                                           3
who decide whether a warrant is valid; the law reserves that decision for judges. See,

e.g. La. C.C.P. art. 703(A).

      As noted earlier, the state urges that police reasonably relied on an apparently

valid search warrant that was only later discovered to be stale. However, the state

does not provide any evidence to support this argument. Relatedly, the state argues

that it inevitably would have validly searched the cell phone after seeking and

obtaining a “fresh” warrant. The record on that latter point, however, is developed

but does not support the state’s position. At the suppression hearing, a case detective

acknowledged on cross-examination that “there’s nothing specific about this case that

caused [her] to believe that there was going to be evidence on [defendant’s] phone,”

beyond her general “experience as a police officer that oftentimes people will have

incriminating information on their phone.” This testimony reveals the opposite of

probable cause to believe the cell phone contained evidence germane to this case.

See La. C.Cr.P. art. 162 (“A search warrant may issue only upon probable cause

established to the satisfaction of the judge, by the affidavit of a credible person,

reciting facts establishing the cause for issuance of the warrant.”); see also State v.

Case, 363 So.2d 486, 488 (La.1978) (“a warrant may not issue on mere suspicion”).

      In sum, I would affirm the court of appeal’s ruling, which reversed the district

court, concluding that the evidence seized from defendant’s phone must be

suppressed.




                                          4
06/26/19


                 SUPREME COURT OF LOUISIANA


                          No. 2018-KK-1518
                       STATE OF LOUISIANA
                               VERSUS
                            KELLY FOLSE


    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
         FIFTH CIRCUIT, PARISH OF JEFFERSON



Genovese, J., dissents for the reasons assigned by Justice Weimer.
