Opinion
NO. 2014-CA-001408-MR
05-13-2016
CURTIS NEAL BERRY, JR. APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Roy A. Durham Assistant Public Advocate Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Jeffrey R. Prather Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM MONTGOMERY CIRCUIT COURT
HONORABLE WILLIAM EVANS LANE, JUDGE
ACTION NO. 12-CR-00228 OPINION
AFFIRMING
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BEFORE: DIXON, JONES, AND J. LAMBERT, JUDGES. JONES, JUDGE: The Appellant, Curtis Neal Berry, Jr., brings this appeal following his entry of a conditional guilty plea in Montgomery Circuit Court on five counts of manufacturing methamphetamine. On appeal, Appellant argues that the trial court erred when it denied his motion to suppress evidence obtained during the search of a residence. Having reviewed the record, we find no error. The evidence was sufficient to establish that Appellant was not a legal resident of the home in question, and therefore, had no reasonable expectation of privacy in its contents. Therefore, we affirm.
I.
Detective Mark Collier of the Montgomery Sheriff's Department was called to investigate suspicious garbage in grocery bags. These bags were later confirmed to have contained plastic bottles which appeared to be one-step methamphetamine labs. One of these bags also contained a receipt from Kroger, which listed cold packs commonly used in the production of methamphetamine. Detective Collier was able to identify Appellant from Kroger's video surveillance when Appellant purchased the items. Detective Collier was familiar with Appellant's appearance from previous encounters with him.
Detective Collier decided to attempt to make contact with Appellant and went to a home where he had previously conducted a controlled drug buy with Appellant. No one answered when Detective Collier knocked on the door. To his left, Detective Collier saw a trash can and trash bags. Though the top of the trash bag was tied, the bottom was torn. A water bottle was sticking out of the hole in the bottom. Detective Collier believed that this was suspicious because this bottle looked similar to the bottles that he seen used as one-step methamphetamine labs. Another officer looked at the bottle and confirmed that it appeared to be part of a methamphetamine lab.
The police conducted the search and discovered three more methamphetamine labs in the residence. When Appellant was taken into custody, he incriminated himself. Appellant was then indicted by a Montgomery County grand jury for five counts of manufacturing methamphetamine.
Appellant's counsel then filed a motion to suppress the contents located in the residence police searched. Ultimately, the trial court denied Appellant's motion to suppress on the basis that the warrant was supported by probable cause.
II.
"A determination of whether the judicial remedy of suppression should be exercised to safeguard Fourth Amendment rights depends on whether a reasonable expectation of privacy exists." Hause v. Commonwealth, 83 S.W.3d 1, 11 (Ky. App. 2001).
At the hearing, it was established that the residence was owned by Christopher Rummagon who had leased it to Linzi Wixon, Appellant's girlfriend. Appellant testified at the hearing that he did not have any belongings at the residence and did not get his mail there. Instead, he lived with his mother in Menifee County. Appellant admitted that he drew unemployment in Menifee County, received mail in Menifee County and that all of his possessions were located in Menifee County. However, Appellant did stay at the home several nights and was in and out of the home quite frequently. The Commonwealth alleges that under these facts the Appellant is not entitled to relief because he lacks "standing" to challenge the search.
"The concept of standing is a misnomer for Fourth Amendment analysis. More properly, a court must determine whether a defendant . . . 'had an actual, subjective expectation of privacy, and second, whether that expectation was a legitimate, objectively reasonable expectation.'" McCloud v. Commonwealth, 286 S.W.3d 780, 784 (Ky. 2009) (quoting United States v. Smith, 263 F.3d 571, 582 (6th Cir.2001)). --------
We agree with the Commonwealth that Appellant cannot demonstrate a reasonable expectation of privacy in the residence searched because the testimony unequivocally established that Appellant did not reside in the home.
In Hawley v. Commonwealth, 435 S.W.3d 61 (Ky. App. 2014), a panel of this Court examined this issue in the context of highly similar facts. This Court held as follows:
[W]e must agree with the Commonwealth that Hawley did not have standing to challenge the search because he did not have any possessory or ownership interest in the property or any expectation of privacy. Hawley told the detectives when they arrived that the residence belonged to his grandfather who was not there at the time. Ms. Hawley's testimony established that while her father (Hawley's grandfather) had owned the property where the search was conducted for many years, she in fact was the current administrator of the house, and her father lived with her and Hawley at her apartment. No one lived at the house in question, and Hawley was only there at his mother's direction to mow the yard, work in the house, and do his laundry. Hawley only occasionally stayed at the house one or two nights in the past to protect the property from break-ins. Because Hawley did not have any type of possessory interest in the house or garage, he did not have a legitimate expectation of privacy and therefore was precluded from challenging the search.Id. at 66 (emphasis added). Furthermore, in Ordway v. Commonwealth, 352 S.W.3d 584 (Ky. 2011), our Supreme Court held that the appellant did not have an expectation of privacy in his girlfriend's apartment even though he was a frequent visitor to the apartment.
It is clear under both Hawley and Ordway that Appellant did not establish a reasonable expectation of privacy in the residence. As such, the trial court did not err in refusing to suppress the evidence located during the search.
III.
The Montgomery Circuit Court's order denying Berry's motion to suppress is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Roy A. Durham
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky Jeffrey R. Prather
Assistant Attorney General
Frankfort, Kentucky