Colorado Court of Appeals People v. Taylor 09CA2681

Decision here.

   Undercover narcotics investigators watched Taylor make gestures which they later testified were consistent with trying to initiate drugs sales.  So they asked him for a hook up (specifically crack).  He told them that he doesn't sell drugs, but offered to call a dealer for them.  He made the call, and a female showed up and sold the cops some crack.  Both the dealer and Taylor were arrested after the sale.  Incident to the arrest, a sergeant checked Taylor's cell phone call log.

   Taylor was convicted of conspiracy to distribute a controlled substance (and acquitted of actually distributing said controlled substance).  He appealed his conviction on several grounds: he argued that the search of his cell phone was unlawful, that the court should have given the jury an entrapment instruction, and that the court improperly denied one of his juror challenges (I won't be summarizing the juror challenge issue, but the appellate court didn't buy it).

   As far as entrapment goes, in Colorado entrapment is an affirmative defense which the defendant has to present some evidence of in order to  claim.  The court held that since Taylor was contesting the allegations, he couldn't claim the defense.  The court also explained that nothing in the record would have supported an entrapment defense anyway (the fact that the police initiated contact with Taylor and asked him to sell them drugs wasn't the sort of action that would induce someone to commit a crime they were not already predisposed to, so it wasn't entrapment).

   But most of the decision deals with the search of the cell phone.  The trial court apparently held that the search was admissible as a search incident to arrest, and alternately that it was admissible based on exigency or on plain view (I have no idea what facts could possibly support either conclusion, but the court of appeals didn't address either one).  The court of appeals observed that the authority to search incident to arrest is based on the authority to arrest, and does not depend on any independent suspicion of weapons or contraband.  And although over time the courts have frequently modified police authority to search the area within a suspect's control, the authority to search a suspect's person has remained constant.  The court held that in this case, searching the phone's call log incident to arrest was valid.