Opinion
NO. 2013-CA-001095-MR
04-10-2015
PATRICIA C. SMITH APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: H. Wayne Roberts Lexington, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Julie Scott Jernigan Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE KIMBERLY N. BUNNELL, JUDGE
ACTION NO. 12-CR-01228
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; MAZE AND THOMPSON, JUDGES. ACREE, CHIEF JUDGE: Patricia Smith appeals the trial court's denial of her motion to suppress evidence discovered during a warrantless search of her home. We affirm.
In October 2012, Smith was charged with numerous drug-related offenses and with being a second-degree persistent felony offender. She moved to suppress certain evidence found in her residence. An evidentiary hearing was held on January 30, 2013. Detective Donnell Gordon of the Lexington Police Department testified first.
While on foot patrol with a contingent of law enforcement personnel, Officer Gordon observed what he perceived to be a drug deal occur at Smith's residence. After parking in front of Smith's home, a Caucasian female exited her vehicle and knocked on Smith's front door. No one answered. After a quick phone call, the female was allowed access to Smith's home. The female remained there for a relatively short period of time. Officer Gordon testified the female noticed the officers upon exiting the residence; she looked nervous and quickly drove away.
Approximately ten officers were patrolling the Woodhill neighborhood due to complaints of drug activity in the area.
Officer Gordon testified the female was there two minutes while Smith testified she was there ten to fifteen minutes. The trial court found this dispute to be inconsequential.
Officer Gordon, accompanied by Officer James Norris, decided to conduct a friendly "knock and talk." As they approached the residence, the officers detected a strong odor of marijuana. Officer Gordon knocked on the door and Smith answered. The marijuana odor intensified when Smith opened the door; the officers were convinced it was coming from inside her residence. Smith stepped outside and firmly shut the door behind her.
The officers and Smith engaged in a tête-à-tête on Smith's front porch. Officer Gordon explained that they were in the neighborhood investigating drug activity and that he smelled marijuana coming from her home. Smith replied it could have been coming from anywhere. Officer Gordon requested permission to go inside and look around. Smith denied the officers entry. Smith also denied smoking marijuana and denied possessing marijuana or other drugs. Officer Gordon reiterated that he smelled marijuana emanating from her house. The officers again asked to search the residence. Smith again refused permission.
Officer Gordon observed that Smith appeared nervous. She was sweating, breathing heavily, and fidgeting. When Officer Gordon mentioned for the third time that he smelled marijuana coming from her house, Smith admitted that she had smoked marijuana and had a "blunt" in an ash tray in the residence. Officer Gordon advised Smith that the officers could freeze the scene and apply for a search warrant, or Smith could give them consent to search and help them locate the marijuana.
"A 'blunt' is a hollowed-out cigar with marijuana in place of the tobacco." Jackson v. Commonwealth, 319 S.W.3d 347, 348 (Ky. 2010).
Smith began to cry, stating she could not afford to get a citation. She feared that a citation would hinder her ability to regain custody of her children. Inexplicitly, Smith subsequently asked the officers if they would just give her a citation. Officer Gordon explained that it depended on what the officers found inside her residence.
Officer Gordon clarified at the suppression hearing that if Smith only had a burnt marijuana cigarette in the house that she would not have been arrested, but would have been cited to court.
Smith then said "come on in" and opened the door. The officers followed her inside. Upon entering the home, Smith hollered "the cops are here!" Officer Gordon heard frantic movement upstairs. He ascended the stairs and, in a bedroom at the top, observed a male subject - later identified as Wayne Fischer - swipe his hand across a television stand and then put his hands into his pockets. Despite Officer Gordon's repeated requests, Fischer refused to remove his hands from his pockets. Officer Gordon physically restrained Fischer, placed him under arrest, and searched his person, finding crack cocaine, marijuana, and cash. While securing the bed where Fischer was seated, Officer Gordon discovered a firearm between the box spring and the mattress.
Officer Gordon testified narcotics and drug paraphernalia were "absolutely everywhere," and he was literally stepping on and over drugs. Officer Gordon discovered multiple baggies of marijuana, multiple baggies of cocaine, pills, and cash. Officer Gordon testified each item was located in plain view in the room where Fischer was detained. Downstairs, Smith began yelling that everything in the house belonged to her, not Fischer. Except for a protective sweep of the house conducted by another officer, the propriety of which is not before us, the officers did not search the remainder of the residence.
Smith testified in her defense at the suppression hearing. Her version of events largely tracked that provided by Officer Gordon with a few key differences. Smith testified the conversation on the porch lasted six minutes but, according to Officer Gordon, they were on the porch no more than 1-2 minutes. Smith also testified that she felt trapped between the officers and the closed front door, and the officers refused her request to sit on the porch steps. Smith also claimed the officers asked for her consent to enter the residence at least five to six times; Officer Gordon testified it was three times. Smith claimed she repeatedly told the officers to get a warrant. Officer Gordon testified Smith made no mention of a warrant. Smith testified Officer Norris threatened to "make her life a living hell" if she refused to consent and that "they were coming in one way or another." Officer Gordon claimed no such statements were ever made.
Smith denied that she admitted to smoking inside her residence and denied ever stating that she had a blunt inside in an ash tray. The trial judge then cautiously questioned Smith about the consent she gave the officers. Smith admitted she told the officers they could enter her home. The trial judge asked Smith what she thought the officers were going to do when they came into her home. Smith responded, "I just thought they were going to walk through and leave. Maybe speak with [Fischer] and speak with me and leave. . . . I just figured I would let them walk through my house, they would see nothing, and leave." Finally, according to Smith none of the items seized was in plain view.
The trial court denied Smith's suppression motion.
Shortly thereafter, on March 8, 2013, Smith entered into a conditional guilty plea to first-degree trafficking in a controlled substance, more than ten dosage units, and trafficking in marijuana, eight ounces to five pounds. Smith reserved as part of her plea the right to appeal the trial court's denial of her suppression motion. The trial court sentenced her to five years' imprisonment on the controlled-substance count and one year imprisonment on the marijuana count, to be served consecutively, probated for five years. This appeal followed.
Our review of a trial court's decision on a motion to suppress is two-fold. First, we must determine whether the trial court's findings of fact are supported by substantial evidence. If so, then they are conclusive. Kentucky Rules of Criminal Procedure (RCr) 9.78. Second, we review de novo the trial court's application of the law to those facts. Brown v. Commonwealth, 416 S.W.3d 302, 307 (Ky. 2013).
Smith first argues, albeit somewhat vaguely, that she was unconstitutionally "seized" by the officers while being interrogated on her front porch. Smith's argument lacks meaningful substance. The officers were legitimately on the premises for a knock and talk, a constitutionally sanctioned investigative technique. See Quintana v. Commonwealth, 276 S.W.3d 753, 757 (Ky. 2008) ("[T]he officer who approaches the main entrance of a house has a right to be there, just as any member of the public might have."). Smith voluntarily answered the door and stepped outside. She was in no manner detained, and was free to leave at any time. Smith has pointed to nothing which indicates to us that she was at any point unlawfully seized.
Smith also criticizes the officers for seeking her consent to search instead of obtaining a warrant. Smith asserts that time was not of the essence and obtaining a warrant "would not have presented any significant problem." (Appellant's Brief at 5). The United States Supreme Court has rejected the notion that officers are duty bound to obtain a warrant "as soon as the bare minimum of evidence needed to establish probable cause is acquired." Kentucky v. King, 131 S. Ct. 1849, 1860, 179 L. Ed. 2d 865 (2011); Hoffa v. United States, 385 U.S. 293, 310, 87 S. Ct. 408, 417, 17 L. Ed. 2d 374 (1966) ("Law enforcement officers are under no constitutional duty to call a halt to a criminal investigation the moment they have the minimum evidence to establish probable cause[.]"). "There are many entirely proper reasons" fully consistent with "legitimate law enforcement strategies" for continuing an investigation before seeking a warrant. King, 131 S. Ct. at 1860. King identifies many of these reasons. Id. "Faulting the police for failing to apply for a search warrant at the earliest possible time after obtaining probable cause imposes a duty that is nowhere to be found in the Constitution." Id. at 1861.
Next, Smith argues that she did not voluntarily consent to the search. Smith claims the officers used intimidation, deceit, trickery, misrepresentation, threats, and/or coercion to gain entry to her residence. We are not persuaded.
Generally, a warrantless search of an individual's private residence, absent exigent circumstances, is prohibited by the Fourth Amendment to the United States Constitution. Brumley v. Commonwealth, 413 S.W.3d 280, 284 (Ky. 2013). Consent is an exception to the warrant requirement. Helphenstine v. Commonwealth, 423 S.W.3d 708, 714 (Ky. 2014). Consent must be voluntarily given, meaning it must "not be coerced, by explicit or implicit means." Id. at 714- 15 (citation omitted). The issue of voluntary consent to search is a question of fact that turns on "careful scrutiny of all the surrounding circumstances in a specific case." Cook v. Commonwealth, 826 S.W.2d 329, 331 (Ky. 1992). We must defer to the trial court's finding if it is supported by substantial evidence. Krause v. Commonwealth, 206 S.W.3d 922, 924 (Ky. 2006). Here, the trial court found Smith's consent to be voluntary. We agree.
The officers did not delude or deceive Smith to obtain her consent to search. The officers fairly apprised Smith of why they were there, why they wanted to search her residence, and what they were searching for. They engaged in a sensible conversation with Smith for a reasonable amount of time. In the course of their conversation, Officer Gordon legitimately informed Smith that the officers had the option to freeze the scene while they applied for a search warrant. Considering Smith's admission to smoking marijuana, her alleged statement that a blunt was in the house, the pervasive smell of marijuana coming from her residence, and the possible drug deal observed by the officers, Officer Gordon's belief that there was adequate probable cause to support a search warrant was certainly valid. Guzman v. Commonwealth, 375 S.W.3d 805, 810 (Ky. 2012) (Cunningham, J., concurring)("freezing the scene" is reasonable if the police have probable cause). Accordingly, Officer Gordon's statement that the officers could freeze the scene and apply for a warrant was a statement of fact, not a coercive threat.
Furthermore, while Smith offered testimony indicating the officers utilized coercive techniques - such as threatening to make her life a living hell - Officer Gordon denied that such statements or threats were ever made. It was certainly within the trial court's discretion to believe Officer Gordon and to find his testimony more persuasive. Henson v. Commonwealth, 20 S.W.3d 466, 469 (Ky. 1999) ("When the trial court is faced with conflicting testimony regarding the [issue of] voluntariness . . . its evaluation of credibility, if supported by substantial evidence, is conclusive."). Ultimately, Smith's decision to give the officers consent to enter her residence was the product of her free choice in view of the options before her. Considering the totality of the circumstances we agree with the trial court that Smith's consent was freely and voluntarily obtained without any threat or express or implied coercion.
Finally, Smith argues the officers exceeded the scope of a permissible protective sweep when they searched the upstairs bedroom. Smith claims the officers used the protective sweep concept as a ruse to conduct a full scale investigation. We disagree.
In Kerr v. Commonwealth, 400 S.W.3d 250 (Ky. 2013), the Supreme Court recognized "two types of protective sweeps incident to an arrest that are reasonable and lawful under the Fourth Amendment." Kerr, 400 S.W.3d at 266. We are not convinced, however, that it is necessary to engage in a full scale discussion of the protective sweep doctrine. According to Officer Gordon's testimony, upon entering the upstairs bedroom, he was literally tripping over drugs and related paraphernalia. He testified all the evidence seized was located in plain sight. Plain view is another exception to the warrant requirement. Id. The plain-view exception applies "when the object seized is plainly visible, the officer is lawfully in a position to view the object, and the incriminating nature of the object is immediately apparent." Id. (footnote omitted). Again, Officer Gordon testified all of the objects seized were plainly visible in the bedroom and their incriminating nature was readily apparent. While Smith offered opposing testimony, it was within the trial court's discretion to accept Officer Gordon's version of events. The question then becomes whether Officer Gordon was lawfully in the upstairs bedroom.
There are a few exceptions: the items found on Fischer's person and the firearm located between the mattress and the box springs. Officer Gordon testified that, after arresting Fischer, they searched him, placed him on the bed, and searched the area immediately surrounding his person. This was not a "protective sweep" but a proper "search incident to arrest," which permits law enforcement to search the "arrestee's person and the area within his immediate control - construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence." Rose v. Commonwealth, 322 S.W.3d 76, 79 (Ky. 2010). In any event, the charges against Smith did not derive from the items found on Fischer or the weapon, and we question her standing to challenge the admissibility of these items.
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The trial court found Officer Gordon's entry into the upstairs bedroom was lawful in light of his concern for officer safety and the preservation of evidence. In our view, there is a more basic justification for Officer Gordon's presence in the bedroom - he had consent to be there. "[W]e are not bound by the analysis of the [trial court] and may affirm on any grounds supported by the record." Southern Fin. Life Ins. Co. v. Combs, 413 S.W.3d 921, 926 (Ky. 2013).
It is well-established that "[e]ven when a search is authorized by consent, the scope of the search is limited by the terms of its authorization." Guzman, 375 S.W.3d at 808. "The standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of 'objective' reasonableness - what would the typical reasonable person have understood by the exchange between the officer and the suspect?" Id. (citation omitted). In this case, Smith testified, without contradiction, that, when she gave the officers consent to enter the house, she thought the officers would walk through the house and leave. Smith's consent was not confined or limited to a specific room or space. We think a reasonable person would construe Smith's consent as giving the officers authority to walk through the entire house. Accordingly, we find Officer Gordon was lawfully in the residence, including the upstairs bedroom, with consent.
In sum, we find the officers did not exceed the scope of a permissive protective sweep because there was no protective sweep. Instead, the officers seized only those items that were in plain view, and their actions were in accord with Kentucky's plain-view jurisprudence.
We affirm the Fayette Circuit Court's February 26, 2013 order denying Smith's suppression motion.
MAZE, JUDGE, CONCURS.
THOMPSON, JUDGE, CONCURS IN RESULT ONLY. BRIEF FOR APPELLANT: H. Wayne Roberts
Lexington, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Julie Scott Jernigan
Assistant Attorney General
Frankfort, Kentucky