FROM KENTON CIRCUIT COURT HONORABLE PATRICIA M. SUMME, JUDGE
ACTION NO. 14-CR-00504
FOR APPELLANT: David E. Davidson Covington, Kentucky
FOR APPELLEE: Andy Beshear Attorney General of Kentucky
Jeffrey R. Prather Assistant Attorney General Frankfort,
BEFORE: ACREE, JONES AND THOMPSON, JUDGES
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.
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
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
suppression hearing and trial, relevant testimony was
provided by Kenton County Officers Steve Benner and Jake Noe,
and Kamphaus,  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.
Benner created a Yahoo profile for S. 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,
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
discuss additional facts as relevant to each individual
appeal, Kamphaus argues the evidence seized in the search of
his cell phone data should have been suppressed.
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.
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.
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).
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
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
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 ...