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Kamphaus v. Commonwealth

Court of Appeals of Kentucky

September 8, 2017

JOHN KAMPHAUS APPELLANT
v.
COMMONWEALTH OF KENTUCKY APPELLEE

         APPEAL FROM KENTON CIRCUIT COURT HONORABLE PATRICIA M. SUMME, JUDGE ACTION NO. 14-CR-00504

          BRIEFS FOR APPELLANT: David E. Davidson Covington, Kentucky

          BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Jeffrey R. Prather Assistant Attorney General Frankfort, Kentucky

          BEFORE: ACREE, JONES AND THOMPSON, JUDGES

          OPINION AFFIRMING

          THOMPSON, JUDGE

         John Kamphaus appeals from his judgment of conviction after a jury trial for the offense of using electronic communications for the purpose of procuring or promoting a minor to engage in sexual activities in violation of Kentucky Revised Statutes (KRS) 510.155. Kamphaus argues the circuit court erred by failing to suppress the search of his cell phone data incident to arrest, giving erroneous jury instructions and failing to grant his motion for a directed verdict.

         Kamphaus was indicted based on an April 23, 2014 incident for violating KRS 510.155 by using a communication system to procure or promote the use of a minor for any activity in violation of KRS 510.110 (sexual abuse in the first degree). Kamphaus filed a motion to suppress evidence, which was denied.

         After a jury trial, the jury convicted Kamphaus as charged. The jury recommended a sentence of thirty-months' incarceration and the circuit court sentenced Kamphaus in accordance with this recommendation.

         At the suppression hearing and trial, relevant testimony was provided by Kenton County Officers Steve Benner and Jake Noe, and Kamphaus, [1] resulting in the following undisputed facts: Officer Benner served as an Internet Crimes Against Children (ICAC) task force officer. His ICAC investigations were to identify adults chatting with minors over the internet who were arranging to engage in sexual offenses with these minors. He was trained to never initiate contact, make friend requests or escalate the sexual nature of any conversation beyond what the other participant had done.

         Officer Benner created a Yahoo profile for S.[2] which indicated she was thirteen. However, when anyone asked S.'s age, his policy was to state that she was fifteen-years-old. As S., he participated in the Yahoo groups "Kentucky" and "parenting" and interacted with various people, including "bigdog069000."

         On December 12, 2011, "bigdog069000, " who was later identified as Kamphaus, initiated contact with S. via Yahoo instant messaging and asked her age. S. told Kamphaus that she was fifteen. Kamphaus continued to contact S. over the next two and one-half years and used sexually explicit language and content when chatting with S.

         S. repeatedly told Kamphaus that she was fifteen or about to turn fifteen and made other references to being underage. On June 9, 2013, S. told Kamphaus she had turned fifteen in April. On February 2, 2014, S. told Kamphaus that in April she would be fifteen. She also told him she could not access adult websites, was not old enough to drive, was not physically developed and made various references to being in high school and living at home with her mother. If S. existed, based on the age she initially gave Kamphaus when they first began chatting, she would have turned eighteen by the time she agreed to meet Kamphaus.

         Kamphaus's statements responding to S. showed his awareness that S. was a child including his acknowledgment that he was too old for her and stating that he wished he was fifteen. Despite frequent reminders that S. was fifteen, Kamphaus repeatedly directed the conversations to sexual talk, including being naked, wanting to see naked pictures, watching naked females, using adult websites, masturbation, sex toys, underwear, and wanting to engage in oral sex.

         During the chats, Kamphaus revealed many accurate personal details about himself including his height, weight, birthday, age, physical description, marital status, that he was a parent, and city and state of residence. These details along with his screen name and its associated email allowed Officer Benner to locate the same person on other social networking sites and obtain additional information. Officer Benner then used all the information he had to identify "bigdog069000" as Ohio resident John Kamphaus.

         On April 18, 2014, S. told Kamphaus she turned fifteen on April 17. Kamphaus told S. he wanted to give S. a birthday spanking on her bare bottom.

         On April 22, 2014, and just after midnight on April 23, 2014, Kamphaus and S. discussed meeting at a park. Kamphaus asked whether S. would be naked and told her he wanted to engage in oral sex with her and explained exactly what that involved. He told her he would be driving a truck. They continued to chat while Kamphaus traveled toward the park in Kenton County.

         Officer Benner obtained a printout of Kamphaus's Ohio driver's license and determined Kamphaus owned two trucks, including a red Ford F-150. He briefed other officers who would be taking part in the stop and gave them Kamphaus's driver's license picture and descriptions of his vehicles.

         The park was isolated and had only one approaching road. While Kamphaus was driving, he updated S. as to where he was and Officer Benner identified the approximate time Kamphaus should arrive. About ten seconds after Officer Benner received a message of "here" from "bigdog069000, " Officer Benner saw a red F-150 approaching his location across from the park. The arrival of the truck was consistent with when Officer Benner expected it from the location Kamphaus provided. As the truck passed, Officer Benner saw that the truck had Ohio plates. He then ordered another officer to stop it.

         Officer Noe initiated the traffic stop pursuant to Officer Benner's radioed direction. He saw a red Ford F-150 with Ohio plates pass him. There was minimal traffic that evening and, during his approximately forty-five minute wait, this was the first vehicle he had seen drive by his location.

         After Kamphaus was in custody, Officer Benner looked through the data on Kamphaus's cell phone and found the chat with S. During the trial, the entire transcript of chats between Kamphaus and S. was admitted into evidence along with photographs of his truck and cell phone, and screen shots of the last chat messages on his cell phone.

         According to Kamphaus, he never intended to have sex with an underage girl. He believed he met S. in an adult chatroom, either "married and flirting" or a role-playing chatroom because these were the only chatrooms he visited. He thought S. was an adult role-playing that she was a child.

         Kamphaus testified that when he arranged to meet S., he did not know whom he was going to meet. He knew it could be a middle-aged woman or an old man, but he hoped it was a good-looking woman. However, he drove past the park and planned to go home because he did not want to damage his marriage further and he was troubled that the park was so isolated.

         We discuss additional facts as relevant to each individual issue.

         On appeal, Kamphaus argues the evidence seized in the search of his cell phone data should have been suppressed.

         At the suppression hearing, Officer Benner testified it was common practice to search cell phones incident to arrest. He had reason to believe Kamphaus's phone was used in the chats with S., because Kamphaus had explained an hour-long gap earlier in the chat on April 22 and 23 as being because his phone died and Officer Benner located the phone on the center console being charged. He looked at the phone and saw the chat with S. and MapQuest directions to the park. He used the information he had, including what he found in the phone, to get a search warrant for the phone.

         In denying the motion to suppress, the circuit court found that when Kamphaus was stopped there was probable cause to arrest Kamphaus. It then considered whether the search of the cell phone's data was proper as a search incident to arrest. The circuit court ruled that at the time of Kamphaus's arrest, there was some non-binding law, which could support a good faith objective belief that a limited search of cell phone data could be lawful incident to arrest. Therefore, it was reasonable for Officer Benner to believe he could lawfully view chat messages at the scene to confirm that the person who appeared at the park was the same person with whom S. chatted. However, the circuit court ruled that once Kamphaus's identity as the chat message participant was confirmed, any further search of the cell phone was outside of the limits of the warrant exception and suppressed the MapQuest inquiry and geographic location.

         There is no dispute that the circuit court's findings of fact in denying Kamphaus's motion to suppress in part are supported by substantial evidence. Therefore, "[b]ased on those findings of fact, we must then conduct a de novo review of the trial court's application of the law to those facts to determine whether its decision is correct as a matter of law." Commonwealth v. Neal, 84 S.W.3d 920, 923 (Ky.App. 2002).

         At the time of Kamphaus's arrest, the United States Supreme Court had previously granted certiorari for but not yet decided Riley v. California, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014). It accepted certiorari because of a spilt among the circuits and states about the admissibility of evidence seized from cell phone data without a warrant. Therefore, Kamphaus argues, there was no clearly defined exception to the warrant requirement that permitted search of cell phones' data and the officers could not rely on previous law as a good faith basis for conducting such a search.

         In Riley, the United States Supreme Court held that officers must generally secure a warrant before conducting a search of data on a cell phone seized incident to arrest. Id. at 2485. In arriving at this conclusion, the Court analyzed the reasoning behind the three cases which established the parameters of what could properly be searched incident to arrest, Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); and Arizona v. Gant, 556 U.S. 332, 350, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009). Riley, 134 S.Ct. at 2483-85. The Riley Court noted that in each case "concerns for officer safety and evidence preservation underlie the search incident to arrest exception." Id. at 2484. However, once a cell phone has been seized, these concerns do not justify a warrantless search of cell phone data.

Digital data stored on a cell phone cannot itself be used as a weapon to harm an arresting officer or to effectuate the arrestee's escape. Law enforcement officers remain free to examine the physical aspects of a phone to ensure that it will not be used as a weapon- say, to determine whether there is a razor blade hidden between the phone and its case. Once an officer has secured a phone and eliminated any potential physical threats, however, data on the phone can endanger no one.

Id. at 2485. Therefore, while data stored on a cell phone might aid an officer's safety indirectly and there might be a small risk that data could be wiped from a phone remotely or the data encrypted, these concerns could not justify a general exception to ...


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