Opinion
NO. 2017-CA-001789-MR
12-07-2018
DANIEL HUNSUCKER APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Emily Holt Rhorer Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky James P. Judge Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM MADISON CIRCUIT COURT
HONORABLE JEAN LOGUE, JUDGE
ACTION NO. 16-CR-000656-002 OPINION
AFFIRMING
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BEFORE: CLAYTON, CHIEF JUDGE; COMBS AND JONES, JUDGES. CLAYTON, CHIEF JUDGE: Daniel Hunsucker appeals from the order of the Madison Circuit Court denying his motion to suppress evidence. For the following reasons, we affirm.
BACKGROUND
On October 19, 2017, Hunsucker pled guilty to first-degree trafficking in a controlled substance, tampering with physical evidence, and first-degree possession of a controlled substance, and was sentenced to seven years' imprisonment. The underlying events leading to Hunsucker's guilty plea occurred on October 1, 2016, in which Richmond Police Officers Corey Barron and Thomas Ottis responded to an anonymous telephone complaint of suspected drug activity in a room at a Red Roof Inn. Hunsucker moved to suppress all the evidence seized and statements obtained from and in the motel room pursuant to the Fourth Amendment.
The trial court held a suppression hearing, in which testimony was elicited from Officers Barron and Ottis. The officers' testimony contained some discrepancies, as Officer Barron testified that no room number was identified by the anonymous caller, but rather that the drug activity was on the third floor, while Officer Ottis testified that dispatch sent them directly to Room 302. Upon exiting their vehicles, however, both officers testified that they could smell marijuana outside of the hotel. Officer Barron further testified that the officers first went to the lobby and spoke with the manager, who told them that she had received complaints from other guests about several people going in and out of, as well as the odor of marijuana coming from, Room 302. Additionally, Officer Barron testified that the manager told them that the room was registered to an individual named Stephanie Powers and offered a key to facilitate the officers' entry into the room.
Upon arrival on the third floor of the hotel, both officers testified that the hallway smelled of marijuana, and that they each identified Room 302 as the source of the odor. While Officer Barron testified that the hotel manager knocked on the door and announced, "hotel management" and Officer Barron announced, "Richmond Police Department," Officer Ottis' recollection was that only Officer Barron knocked on the door and announced, "Richmond Police Department." In either event, after the officers' presence was made known, Officer Barron testified that he heard a toilet flush and a window open, while Officer Ottis testified that he heard scrambling inside the room. Both officers testified that they were concerned about the destruction of evidence based on the noises they heard. The officers further testified that the manager opened the door with her key, and Officer Barron saw Hunsucker attempting to hide behind a mattress. At that point, the officers entered the motel room to do a protective sweep.
Four occupants were detained in the room, and they were ultimately identified as Hunsucker, Shannon McKeehan, Brandy Snowden, and Theresa Bush. Snowden gave the police permission to search the room and confirmed that, although Stephanie Powers was not present, Powers was the individual who had rented the room for Snowden. Loose marijuana, scales, and baggies were scattered around the room. Additionally, officers found a hidden lockbox with cash, pills, marijuana, and heroin. Upon Hunsucker's exit from his attempted hiding place, the officers found a machete under the mattress. Additionally, the officers found methamphetamine in a plastic baggie in Hunsucker's pocket. Officer Barron testified that Hunsucker was obviously under the influence of methamphetamine and was removed from the premises for officer safety.
Officers also discovered a backpack directly underneath the room window. The backpack contained one hundred seventeen grams of methamphetamine. In a statement at the police department, Snowden said that she and Hunsucker were trafficking the methamphetamine found inside the backpack. Officer Barron further testified that both Snowden and Bush stated that Hunsucker had thrown the backpack out the window upon hearing the officers at the door.
At the suppression hearing, the trial court orally denied Hunsucker's motion to suppress due to the exigent circumstance of the imminent destruction of evidence. The trial court based its finding of exigent circumstances on the fact that the officers' testimony had been consistent that they both smelled marijuana outside of the hotel, they both smelled marijuana outside of Room 302, and they both heard sounds that were consistent with evidence being destroyed. The court noted that, while there was some varying testimony between the two officers, it was most likely based on the fact that the events had happened over a year before and had unfolded quickly.
Hunsucker reserved his right to appeal the suppression issue, and this appeal followed.
ANALYSIS
This Court "utilize[s] a clear error standard of review for factual findings and a de novo standard of review for conclusions of law[,]" when reviewing a trial court's determination on a motion to suppress evidence. Jackson v. Commonwealth, 187 S.W.3d 300, 305 (Ky. 2006) (citing Welch v. Commonwealth, 149 S.W.3d 407, 409 (Ky. 2004)).
We begin by noting that "[a]ll searches without a valid search warrant are unreasonable unless shown to be within one of the exceptions to the rule that a search must rest upon a valid warrant. The burden is on the prosecution to show the search comes within an exception." Gallman v. Commonwealth, 578 S.W.2d 47, 48 (Ky. 1979). One of these exceptions includes exigent circumstances in which "the physical destruction of incriminating evidence is imminent." Commonwealth v. McManus, 107 S.W.3d 175, 180 (Ky. 2003) (citing Cormney v. Commonwealth, 943 S.W.2d 629 (Ky. App. 1996)). If officers have both probable cause to believe that a crime has taken place and probable cause to believe that evidence of that crime may imminently be destroyed, "it is reasonable for law enforcement officers to secure the place where the evidence is located in order to prevent its imminent destruction." Posey v. Commonwealth, 185 S.W.3d 170, 173 (Ky. 2006) (citing McManus, 107 S.W.3d at 177)).
"[T]he test for probable cause is whether there is a fair probability that contraband or evidence of a crime will be found in a particular place." Moore v. Commonwealth, 159 S.W.3d 325, 329 (Ky. 2005). "Probable cause does not require certainty that a crime has been committed or that evidence will be present in the place to be searched." Id. (citing United States v. Hall, 8 Fed. App'x 529, (5th Cir. 2001), cert. denied, 536 U.S. 961, 122 S.Ct. 2668, 153 L.Ed.2d 841 (2002)). When determining whether both probable cause and exigent circumstance exist, courts must evaluate the totality of the circumstances. See Moore, 159 S.W.3d at 329 (citing U.S. v. Hammond, 351 F.3d 765, (6th Cir. 2003)); Bishop v. Commonwealth, 237 S.W.3d 567, 569 (Ky. App. 2007) (citing U.S. v. Atchley, 474 F.3d 840, 850 (6th Cir. 2007)). Finally, police may rely on exigent circumstances so long as "the police did not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment . . . ." King v. Commonwealth, 386 S.W.3d 119, 121 (Ky. 2012) (quoting Kentucky v. King, 563 U.S. 452, 462, 131 S.Ct. 1849, 1858, 179 L.Ed.2d 865 (2011)).
In this case, the trial court properly denied the motion to suppress, as its determination that probable cause supported the officers' initial contact with the hotel room is supported by the evidence of record. Here, the police, pursuant to an anonymous call regarding drug activity on the third floor and the hotel manager's confirmation of complaints of drug activity specifically in Room 302, as well as both officers' testimony concerning the odor of marijuana coming from Room 302, knocked on the door without initially entering the room. The facts establish probable cause of "a fair probability that contraband or evidence of a crime" would be found in Room 302. Further, the Kentucky Supreme Court has held that "the knock and talk procedure is a proper police procedure and may be used to investigate the resident of the property, provided the officer goes only where he has a legal right to be." Quintana v. Commonwealth, 276 S.W.3d 753, 755 (Ky. 2008). As a result, the officers' conduct in knocking on the door, announcing their presence, and initially remaining in the common area hallway was entirely consistent with the Fourth Amendment.
Additionally, under the totality of the circumstances, the trial court's finding that the police were justified in entering the room based on exigent circumstances was supported by the evidence. The officers testified that they did not enter the room until they heard the sounds of a toilet flush and a window open. Hunsucker relies on the King case, in which the Kentucky Supreme Court found that the exigent circumstances exception did not apply. 386 S.W.3d at 122-23. In King, the Court noted that the officer:
never articulated the specific sounds he heard which led him to believe that evidence was about to be destroyed. In fact, the sounds as described at the suppression hearing were indistinguishable from ordinary household sounds, and were consistent with the natural and reasonable result of a knock on the door.Id. at 122. Here, Officer Barron described the exact noises he heard regarding the imminent destruction of evidence, including a flushing toilet and a window opening. The sounds of a toilet flushing and a window opening are not "the natural and reasonable result of a knock on the door" but are more in line with an attempt to destroy evidence. Id. As the United States Supreme Court has observed, "[d]estruction of evidence issues probably occur most frequently in drug cases because drugs may be easily destroyed by flushing them down a toilet King, 563 U.S. at 461, 131 S.Ct. at 1857. Therefore, sufficient evidence of exigent circumstances existed to permit the officers to enter the room to prevent the destruction of evidence. The trial court properly denied Hunsucker's motion to suppress.
CONCLUSION
For the reasons stated herein, we affirm the judgment of the Madison Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Emily Holt Rhorer
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky James P. Judge
Assistant Attorney General
Frankfort, Kentucky