State v. Kisack
190 So. 3d 806
La. Ct. App.2016Background:
- In October 2011 a cell phone and charger were found hidden in a crevice of the Tier C2 dayroom wall in Orleans Parish Prison; cellphone contents (texts and photos) linked the device to Keith Kisack.
- Kisack, an inmate on Tier C2 (also known as K.K.), was charged with possession of contraband in a penal institution (La. R.S. 14:402 E(7)); convicted by a jury.
- The State filed a multiple bill alleging Kisack was a fourth felony offender based on prior convictions (notably 1992 illegal discharge of a weapon; 1995 aggravated battery; 2001 federal conviction for felon-in-possession).
- Trial court denied Kisack’s motions (new trial, to quash multiple bill, and to suppress phone data), adjudicated him a fourth felony offender, and sentenced him to life imprisonment without benefit of parole, probation, or suspension of sentence.
- On appeal the court affirmed the conviction, held the search/download did not require a warrant given Kisack’s reduced prison privacy expectations and abandonment of the phone, found the delay waiver implicit, upheld use of the federal conviction as a predicate, rejected the excessiveness challenge, but amended the sentence to restore parole eligibility (deleting the parole-ineligibility clause).
Issues:
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Kisack) | Held |
|---|---|---|---|
| Whether downloading photos/texts from the found cell phone required a warrant under Riley | Warrant not required because prisoner has diminished privacy and the phone was abandoned in a common area | Riley requires warrant to search phone data; suppression warranted | Denied suppression; Riley inapplicable to incarcerated persons; Hudson v. Palmer and abandonment/abuse-of-privacy principles permit download |
| Whether sentencing immediately after denial of new-trial motion violated the 24-hour delay | Proceeding with argument at sentencing implicitly waived any delay | Failure to formally waive 24-hour delay requires vacatur and resentencing | No error; defense counsel’s argument constituted implicit waiver |
| Whether the State proved the ten-year "cleansing period" had not elapsed for the prior federal conviction | Certified federal judgment + timeline (2001 sentence + 3-year supervised release) show cleansing period had not expired by Oct 2011 | Record does not show actual discharge date from federal custody, so State failed its burden | Held for State; evidence more likely than not showed the cleansing period had not elapsed |
| Whether life sentence (with parole prohibition) was excessive under multiple offender statute | Multiple-offender statutes permit up to life; defendant’s extensive record and in-custody status justified severe sentence | Life without parole is excessive for contraband (cell phone) possession | Sentence affirmed as to life term but amended to remove parole ineligibility (parole prohibition not authorized by the cited statutes); overall not manifestly disproportionate given record |
Key Cases Cited
- Hudson v. Palmer, 468 U.S. 517 (1984) (prisoners have diminished Fourth Amendment privacy rights; searches of cells not protected in same manner as free persons)
- Riley v. California, 134 S. Ct. 2473 (2014) (generally requires warrant to search cell-phone data; court distinguished Riley for incarcerated persons)
- State v. Draughter, 130 So.3d 855 (La. 2013) (prisoner-search/privacy principles applied in Louisiana context)
- State v. Britton, 633 So.2d 1208 (La. 1994) (abandoned property may be seized without warrant)
- State v. Belton, 441 So.2d 1195 (La. 1983) (rules on searches incident to arrest and property seizure)
- State v. Turner, 365 So.2d 1352 (La. 1978) (cleansing period analysis: where record shows more probably than not that cleansing period has not elapsed, multiple bill may stand)
- State v. Ladd, 146 So.3d 642 (La. App. 4th Cir.) (authority referenced regarding parole-eligibility sentencing corrections)