Opinion
NO. 2011-CA-000371-MR
10-05-2012
JAVIER CRUZ-VASQUEZ APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Samuel N. Potter Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Jeffrey A. Cross Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM MADISON CIRCUIT COURT
HONORABLE JEAN CHENAULT LOGUE, JUDGE
ACTION NO. 10-CR-00099
OPINION
AFFIRMING
BEFORE: MOORE, STUMBO, AND VANMETER, JUDGES. VANMETER, JUDGE: Javier Cruz-Vasquez appeals from the Madison Circuit Court's order denying his motion to suppress all evidence related to his arrest and detention on drug charges. For the following reasons, we affirm.
On March 20, 2010, Officers Alfred Gray and Joseph Lain of the Richmond Police Department were on foot patrol in Williams' Mobile Home Park in Madison County, Kentucky. The mobile home park is situated on a horseshoe-shaped access road; the homes are located in two rows inside the horseshoe road, and in one row along the outside of the horseshoe road, with grassy areas between each trailer. The officers patrolled the mobile home park for indications of criminal activity along the access road. After completing their patrol, the officers took a short cut through a grassy area between two mobile homes to return to their cruiser. While walking between the two mobile homes, Officer Gray observed through a window Cruz-Vasquez "manipulating items" which he suspected to be cocaine and a plastic bag. Cruz-Vasquez had the blinds of the window drawn, but Officer Gray stated he could see into the home through a small gap between the drawn blinds and the bottom of the window seal.
Officers Gray and Lain approached the mobile home and knocked on the door. Cruz-Vasquez answered the door holding the plastic bag. When the officers began to question him, Cruz-Vasquez dropped the plastic bag and stepped back into the home. The officers grabbed and handcuffed Cruz-Vasquez. Officer Lain then conducted a protective sweep of the home to ensure no other persons were present. The officers field-tested the bag and found traces of cocaine. Cruz-Vasquez was then placed under arrest. After obtaining a search warrant for the home, the officers found drugs and more paraphernalia.
Cruz-Vasquez was charged with first-degree trafficking in a controlled substance, second-degree trafficking in a controlled substance, and possession of drug paraphernalia. He moved to suppress the evidence seized from the mobile home on the basis that Officer Gray's actions of looking through his window from the area located next to his rented mobile home was an illegal government search in violation of the Fourth Amendment, and any evidence later seized from his home was a fruit of the illegal search. Based on the holding in Quintana v. Commonwealth, 276 S.W.3d 753 (Ky. 2008), the trial court determined that Officer Gray's actions did not violate the Fourth Amendment and denied the motion to suppress. Thereafter, Cruz-Vasquez entered a guilty plea conditioned on his right to appeal the denial of his motion to suppress. The court accepted the guilty plea and sentenced Cruz-Vasquez to five years' probation. This appeal followed.
When a trial court denies a motion to suppress evidence, we apply a clearly erroneous standard of review to its factual findings and conclusions of law are reviewed de novo. Jackson v. Commonwealth, 187 S.W.3d 300, 305 (Ky. 2006) (citation omitted).
Cruz-Vasquez argues the trial court erred by determining that Officer Gray did not violate his Fourth Amendment rights by observing him through his window from a vantage point located next to his mobile home. Specifically, Cruz-Vasquez maintains that the area from which Officer Gray observed him is curtilage to the home, in which he has a reasonable expectation of privacy. We disagree.
Generally, a home and its surrounding curtilage are protected by the Fourth Amendment's exclusion of evidence from warrantless searches and seizures. U.S. v. Dunn, 480 U.S. 294, 300, 107 S.Ct. 1134, 1139, 94 L.Ed.2d 326 (1987). The concept of curtilage originated at common law to extend to the area immediately surrounding a dwelling house, and thus plays a part in interpreting the reach of the Fourth Amendment. Id. Curtilage is considered the area surrounding a home, the extension of which is based upon the individual's reasonable expectations that the area should be treated as the home itself. Id. Therefore, any land beyond the reach of the curtilage to one's home is typically not subject to Fourth Amendment protection. Id. (citation omitted).
Consistently, Kentucky courts have held that Section 10 of the Kentucky Constitution affords no greater protection than the Fourth Amendment. Dunn v. Commonwealth, 360 S.W.3d 751, 758 (Ky. 2012) (citations omitted). Kentucky cases addressing "the limits of the curtilage of a home are consistent with federal Fourth Amendment law." Id.
The United States Supreme Court defined four factors to be considered when deciding whether an area near a home is curtilage: "the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by." Dunn, 480 U.S. at 301, 107 S.Ct. at 1139 (citations omitted). The factors should not be applied mechanically; rather, they are analytical tools to ascertain "whether the area in question is so intimately tied to the home itself that it should be placed under the home's 'umbrella' of Fourth Amendment protection." Id., 107 S.Ct. at 1140. In other words, the central component of the inquiry is to determine the area which harbors the intimate activity typically associated with the privacies afforded to one's home. Id. at 300, 107 S.Ct. at 140.
Here, the trial court based its determination that Officer Gray did not violate the Fourth Amendment on the Dunn factors as they were interpreted in Quintana, 276 S.W.3d 753. Applying the factors, the trial court stated:
[Officer Gray] had a legitimate purpose for walking between the trailers when he observed Defendant through the window. The mobile homes were located very close to each other and there is no defined yard for each mobile home. Based on the testimony presented, including photographs the Court concludes that Defendant did not have a reasonable expectation of privacy as to his activity inside the mobile home when his blind was not fully closed. The area between the mobile homes is a common area open to the public, and anyone in the area could have viewed Mr. Cruz-Vasquez's activity.
We agree with the trial court that the area from which the officers viewed the evidence was not within the curtilage of Cruz-Vasquez's mobile home. The record reveals that the area between the mobile homes was not enclosed, but was open for the public to pass through without any obstruction. No evidence in the record supported a finding that the area was used for intimate activities that take place in the home. Furthermore, Cruz-Vasquez took no steps to protect the area from observation by the public. The only Dunn factor which supports Cruz-Vasquez's argument, which the Commonwealth concedes, is that the officers observed him from an area in close proximity to his mobile home. Despite such proximity, nothing in the record supports a finding that the area should have been understood by either the public or the police officers as an area in which they had no right to be. Based on these circumstances, we cannot conclude that Cruz-Vasquez had a reasonable expectation of privacy in the area next to his mobile home, or that the area was a "setting for those intimate activities that the [Fourth] Amendment is intended to shelter from government interference or surveillance." Oliver v. U.S., 466 U.S. 170, 179, 104 S.Ct. 1735, 1741, L.Ed.2d 214 (1984).
Cruz-Vasquez next argues that even if the officers legally viewed him manipulating drug items, they violated the Fourth Amendment by entering his home to detain him and seize a plastic bag without a warrant. We disagree.
The law is clear that "[a]bsent exigent circumstances, law enforcement officers may not enter an individual's private residence in order to conduct a warrantless search." Commonwealth v. McManus, 107 S.W.3d 175, 177 (Ky. 2003) (citing Payton v. New York, 445 U.S. 573, 590, 100 SCt. 1371, 1382, 63 L.Ed.2d 639, 653 (1980)). Officers with probable cause to believe that evidence may be destroyed or removed while waiting to obtain a search warrant may enter the premises to prevent such actions without a warrant under the exigent circumstances exception to the warrant requirement. McManus, 107 S.W.3d at 177 (citation omitted). Probable cause has been described as a "fluid concept," not easily definable, but turns "on the assessment of probabilities in particular factual contexts[.]" Commonwealth v. Jones, 217 S.W.3d 190, 196 (Ky. 2006) (citing Illinois v. Gates, 462 U.S. 213, 232, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). Though we defer to the trial court regarding factual findings, the determination of whether probable cause existed is a matter to be reviewed de novo. Jones, 217 S.W.3d at 196 (citation omitted).
In Posey v. Commonwealth, 185 S.W.3d 170 (Ky. 2006), the Supreme Court of Kentucky held that police officers who legally viewed marijuana in a home were provided with an exigent circumstance to justify entering the home in which the marijuana was seen and arresting the occupant without a warrant. Id. at 173. The court reasoned that based on the ease and speed with which drugs can be destroyed, the police had a reasonable fear that, unless restrained, the occupant would have destroyed the drugs. Id. (citing Ker v. California, 374 U.S. 23, 28, n. 3, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963) and Illinois v. McArthur, 531 U.S. 326-327, 121 S.Ct. 946, 148 L.Ed.2d 838 (2001)). In this case, Officer Gray viewed Cruz-Vasquez manipulating drug items, specifically small plastic bags and an off-white rock which Officer Gray testified he suspected was cocaine. Upon knocking on his door, Cruz-Vasquez answered holding one of the plastic bags. The officers stepped into the home and detained Cruz-Vasquez to prevent him from retreating into the home to destroy the drug evidence. Under these circumstances, the warrantless entry into the home was an exigent circumstance to prevent the destruction of evidence. Accordingly, we find no violation of the Fourth Amendment during Cruz-Vasquez's detainment.
Officer Lain retrieved the plastic bag Cruz-Vasquez dropped during his detainment, and field-tested it, which revealed the substance of cocaine. Cruz-Vasquez maintains this seizure was in violation of the Fourth Amendment because the bag was not "intrinsically incriminating." Evidence which is plainly viewed from a place in which law enforcement has a legal right to be in must be of an incriminating nature that is immediately apparent. Commonwealth v. Hatcher, 199 S.W.3d 124, 126 (Ky. 2006) (citing Coolidge v .New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971)). In other words, upon viewing the object, police officers "at that moment must have probable cause to believe the object is contraband or evidence of illegal activity." Id. (quoting U.S. v. McLevain, 310 F.3d 434, 442 (6th Cir. 2002)). Here, the officers previously viewed the bag being manipulated along with a substance they believed to be cocaine. The officers were reasonable to believe the bag was evidence of drug trafficking. Thus, no Fourth Amendment violation occurred because the officers plainly viewed the bag from an area they had a legal right to be in. As a result, we find no error by the trial court in denying Cruz-Vasquez's motion to suppress this evidence.
For the reasons stated above, the judgment of the Madison Circuit Court is affirmed.
MOORE, JUDGE, CONCURS.
STUMBO, JUDGE, DISSENTS. BRIEFS FOR APPELLANT: Samuel N. Potter
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Jeffrey A. Cross
Assistant Attorney General
Frankfort, Kentucky