Opinion
NO. 2017-CA-000771-MR
07-13-2018
DAVID SUAREZ APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Karen Shuff Maurer Assistant Public Advocate Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Emily Bedelle Lucas Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE KIMBERLY N. BUNNELL, JUDGE
ACTION NO. 16-CR-00490 OPINION
REVERSING AND REMANDING
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BEFORE: CLAYTON, CHIEF JUDGE; JOHNSON AND NICKELL, JUDGES. CLAYTON, CHIEF JUDGE: David Suarez appeals from the Fayette Circuit Court's final judgment entered April 26, 2017, following a conditional guilty plea to first-degree trafficking in a controlled substance, being a felon in possession of a handgun, and being a second-degree persistent felony offender. Because the circuit court erroneously denied his motion to suppress, we reverse and remand for further proceedings.
Kentucky Revised Statutes (KRS) 218A.1412, a Class C felony.
KRS 527.040, a Class C felony.
KRS 532.080(2). --------
BACKGROUND
The central incident in this case involves a joint law enforcement investigation into suspected drug trafficking in central Kentucky. On or about December 1, 2015, Sergeant Bruce Crouch of the Nicholasville Police Department contacted Detective Danny Page of the Lexington Police Department with information regarding Suarez. Sergeant Crouch informed Detective Page that Suarez had an outstanding arrest warrant for violating his parole, in addition to numerous warrants for trafficking methamphetamine in Jessamine County. Sergeant Crouch also informed Detective Page that Suarez was currently residing at 3525 Galahad Drive in Lexington, Kentucky. After verifying Suarez was the subject of those active warrants, Detective Page and Sergeant Crouch initiated surveillance of 3525 Galahad Drive.
At approximately 3:00 p.m. on December 1, 2015, Detective Page and Sergeant Crouch observed a group of people leaving the Galahad Drive residence, one of whom was Suarez. He and a female companion entered a black sport utility vehicle (SUV) and began driving away. The police chose not to stop the black SUV immediately because they did not wish to alert Suarez to the surveillance at Galahad Drive. The officers followed Suarez in an unmarked police vehicle for approximately one quarter-mile to one half-mile before attempting to initiate a traffic stop. When police engaged their emergency lights and sirens, the SUV did not pull over, but instead fled the area. The officers began to chase the SUV but shortly afterward terminated active pursuit as too dangerous, due to the presence of school buses and children. Detective Page and Sergeant Crouch patrolled the area for twenty to twenty-five minutes in an unsuccessful search for the SUV, before finally electing to return to Suarez's residence.
Upon the officers' return to Galahad Drive, Detective Page noted that neither the black SUV nor any additional vehicles were parked at the residence. However, no officers had remained behind to surveil 3525 Galahad Drive when Detective Page and Sergeant Crouch left to follow the black SUV. The officers therefore approached the residence believing it possible Suarez had returned home after eluding police.
When the officers knocked on the door, they met Jeffrey Davidson, the homeowner. Davidson was cooperative and consented to show police around the home. He informed the officers that Suarez rented a room in the basement and had been living in the home for approximately three weeks. Davidson did not know if Suarez was home but believed Suarez and his female companion had left a while ago. Because the basement has its own sliding glass door leading outside, it was possible Suarez had returned to the home using that entrance. Davidson escorted police downstairs into the basement and pointed out the closed door to Suarez's room.
Detective Page knocked on Suarez's door and announced his presence as a police officer. He then tried the doorknob but found the door was locked. Davidson, surprised, told Detective Page the door should not be locked and that it was never locked, though he did not explain precisely what he meant by these statements. Detective Page would later testify he heard no sounds coming from the room. Nevertheless, believing the locked door signified a possibility Suarez had returned and was inside, Detective Page opened the door by using a credit card to force the latch. Inside, in plain view, Detective Page observed several items consistent with drug trafficking, including hypodermic needles, empty plastic bags, a set of scales, and a floor safe. After obtaining a search warrant, police would eventually discover within the room over seventy grams of methamphetamine, lesser quantities of heroin and marijuana, opioid pills, a narcotics ledger, and a box of .380 caliber ammunition.
Suarez was arrested in a traffic stop several months later. The Fayette County grand jury thereafter indicted Suarez on three counts of first-degree trafficking in a controlled substance, being a felon in possession of a handgun, possession of drug paraphernalia, possession of marijuana, and being a second-degree persistent felony offender. He subsequently moved the circuit court to suppress evidence discovered during the forced entry and resulting search of his residence on December 1, 2015, arguing police violated the constitutional prohibition against unreasonable search and seizure. As grounds for his motion, Suarez asserted the following: Suarez did not give consent for police to search the room, Davidson could not have given consent to search a room which police knew Suarez had rented, the locked door showed a clear expectation of privacy, police may not lawfully conduct a warrantless search without both probable cause and exigent circumstances, and no exigent circumstances existed in this case.
On January 3, 2017, the circuit court conducted a hearing on Suarez's suppression motion. Detective Page was the only witness and testified to the aforementioned facts relating the events of December 1, 2015. The circuit court considered the arguments and found this to be a "very close" question as to whether police had probable cause to search. The Commonwealth urged the court to consider the locked door to his room as probative of Suarez's presence. The court replied, "don't people do that when they leave the home?" The court later added, "at my house right now, everything is locked—it doesn't mean I'm there." The Commonwealth replied by stating Suarez could have been inside his room destroying evidence. Ultimately, the court denied Suarez's motion to suppress. It found police could reasonably believe Suarez had returned to his room through the basement's sliding glass door, and the absence of the SUV at the residence did not necessarily indicate Suarez was absent as well. The court then found the police had probable cause and exigent circumstances allowing warrantless entry into Suarez's room.
Following the denial of his suppression motion, Suarez entered a conditional guilty plea to charges of first-degree trafficking in a controlled substance, being a convicted felon in possession of a handgun, and being a second- degree persistent felony offender. Pursuant to the terms of his negotiated plea, the Commonwealth moved to dismiss the remaining charges in the indictment. The circuit court entered final judgment on April 26, 2017, sentencing Suarez to eleven years in prison in accordance with the plea agreement. This appeal follows.
ANALYSIS
For his sole issue on appeal, Suarez contends the circuit court erroneously denied his motion to suppress evidence resulting from the warrantless entry and search of his room, in violation of his rights under the Fourth Amendment to the United States Constitution and Section Ten of the Kentucky Constitution. "The standard of review of the trial court's denial of a suppression motion is twofold: first, the trial court's findings of fact are reviewed for clear error and are deemed conclusive if supported by substantial evidence; and second, the trial court's legal conclusions are reviewed de novo." Barrett v. Commonwealth, 470 S.W.3d 337, 340-41 (Ky. 2015) (citing Commonwealth v. Marr, 250 S.W.3d 624, 626 (Ky. 2008)).
Courts subject warrantless searches of an individual's home to an exacting level of scrutiny:
The Fourth Amendment to the U.S. Constitution and Section 10 of the Kentucky Constitution protect citizens against unreasonable searches and seizures by the government. The "physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed."Barrett, 470 S.W.3d at 341 (quoting United States v. U.S. Dist. Court for E. Dist. of Mich., S. Div., 407 U.S. 297, 313, 92 S. Ct. 2125, 32 L. Ed. 2d 752 (1972)). "A basic tenet of Fourth Amendment law is that warrantless searches and seizures inside a home are presumptively unreasonable." Brumley v. Commonwealth, 413 S.W.3d 280, 284 (Ky. 2013) (citing Payton v. New York, 445 U.S. 573, 586, 100 S. Ct. 1371, 1380, 63 L. Ed. 2d 639 (1980)). "[T]he Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant." Payton, 445 U.S. at 590, 100 S. Ct. at 1382.
As a preliminary matter, we note the Commonwealth's arguments before the circuit court asserted exigent circumstances allowing entry; Suarez could have been inside the room destroying evidence. However, as briefed before us, the Commonwealth abandons this argument and urges this Court to affirm because Suarez had outstanding warrants for his arrest: "[F]or Fourth Amendment purposes, an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within." Barrett, 470 S.W.3d at 341 (quoting Payton, 445 U.S. 573 at 603, 100 S. Ct. 1371 at 1388). Ordinarily, a party may not argue one set of issues before the trial court and a different set of issues before the appellate court. Kennedy v. Commonwealth, 544 S.W.2d 219, 222 (Ky. 1976), overruled on other grounds by Wilburn v. Commonwealth, 312 S.W.3d 321 (Ky. 2010). However, the Commonwealth correctly points out "that an appellate court may affirm a lower court for any reason supported by the record." McCloud v. Commonwealth, 286 S.W.3d 780, 786 n.19 (Ky. 2009) (citation omitted). Accordingly, we will consider the suppression issue as briefed by the parties.
There are two prongs to Payton's reasonable-belief standard allowing police with a suspect's arrest warrant to enter his or her dwelling: (1) officers must have a reasonable belief the suspect resides at that location; and (2) officers must have a reasonable belief the suspect is inside at the time they enter. El Bey v. Roop, 530 F.3d 407, 416 (6th Cir. 2008). The key question before us is the second prong: whether police had "reason to believe" Suarez was inside the room at the time they entered it. Payton, 445 U.S. 573 at 603, 100 S. Ct. 1371 at 1388. The Commonwealth argues that the officers could reasonably believe Suarez would return to his home upon successfully evading police. Furthermore, the Commonwealth contends the room's locked door and the basement door leading outside, combined with the homeowner's uncertainty about whether Suarez was home, would likewise support a likelihood Suarez had returned and was within the room. The Commonwealth explains the absence of the black SUV by arguing an intelligent suspect who had successfully eluded police in a vehicle would not park that same vehicle outside his home.
We disagree with the Commonwealth's application of these facts to the second prong of Payton, because there was no reason to believe Suarez was inside the room at the time police entered it. "Reason to believe is established by looking at common sense factors and evaluating the totality of the circumstances and requires less proof than does the probable cause standard." Barrett, 470 S.W.3d at 342. However, reason to believe still requires some proof of a suspect's presence at the moment police enter. "[P]olice executing a valid arrest warrant may lawfully enter a residence if they have reason to believe that the suspect lives there and is presently inside." Id. (emphasis added). "[A]n arrest warrant is sufficient to enter a residence if the officers, by looking at common sense factors and evaluating the totality of the circumstances, establish a reasonable belief that the subject of the arrest warrant is within the residence at that time." Roop, 530 F.3d at 416 (quoting United States v. Pruitt, 458 F.3d 477, 483 (6th Cir. 2006)) (emphasis added).
Here, there was nothing to support a reasonable belief Suarez was occupying his residence at the time Detective Page forced his door. The Commonwealth lists factors supporting how police believed Suarez may have returned to Galahad Drive, but these are mere possibilities, not reasons. Suarez's locked door does not necessarily indicate a person is inside the room; the circuit court described her own home as an example of a locked residence where no one was present. Detective Page heard no sounds coming from within the locked room. There were no police left to observe Galahad Drive when the black SUV departed; therefore, no one witnessed Suarez return to the residence. Davidson informed police he was uncertain whether Suarez was home because his basement had its own entrance. In short, the second prong of the Payton rule requires a "reason to believe" Suarez was present, but the Commonwealth attempts to reformulate this into "it was not impossible to believe he could be present." The two standards are not equivalent. Because police had no reason to believe Suarez was present, we cannot sanction the warrantless entry of Suarez's room under Payton.
Because there was no reason to believe Suarez was within the residence, the police lacked justification in forcing the lock on Suarez's door and entering his room. As a consequence, their actions impermissibly infringed upon Suarez's rights under the Fourth Amendment of the United States Constitution and Section Ten of the Kentucky Constitution. We hold the circuit court erroneously denied Suarez's motion to suppress evidence resulting from the warrantless search of his room on December 1, 2015.
CONCLUSION
For the foregoing reasons, we reverse the Fayette Circuit Court's judgment of conviction entered April 26, 2017, and remand for further proceedings consistent with this opinion.
NICKELL, JUDGE, CONCURS.
JOHNSON, JUDGE, DISSENTS AND FILES A SEPARATE OPINION.
JOHNSON, JUDGE, DISSENTING: I respectfully dissent from the majority opinion. In my view, substantial evidence supported the trial court's finding that the officers in this case had a reasonable belief that Suarez was inside his room at the time they entered it. Thus, I find no basis for disturbing the trial court's conclusion that the officers' entry into the locked room was lawful.
I agree with the majority that Payton v. New York, 445 U.S.573, 586, 100 S. Ct. 1371, 1380, 63 L. Ed. 2d 639 (1980), sets the standard for reviewing the police conduct in this case. In adopting the Payton standard, our Supreme Court stated:
In sum, we continue to follow a plain reading of the Payton rule which allows police to enter a suspect's residence with a valid arrest warrant when they have a reason to believe that the suspect lives in the residence and can currently be found inside. Reason to believe requires less proof than probable cause and is established by evaluating the totality of the circumstances and common sense factors.Barrett v. Commonwealth, 470 S.W.3d 337, 343 (Ky. 2015).
Therefore, in applying the Payton standard to the facts of this case, we must look to common sense factors and an evaluation of the totality of the circumstances. As the Barrett court noted, "when police have lawfully entered a suspect's residence to execute a valid arrest warrant pursuant to Payton, they may search anywhere the suspect may reasonably be found but must terminate the search when the suspect is located." 470 S.W.3d at 344, citing United States v. Pallais, 921 F.2d 684, 691 (7th Cir. 1990) ("Under Payton, police armed with an arrest warrant can search the entire residence of the person named in the warrant in order to execute it . . . .").
In this case, the facts are clear that preceding entry into the home where Suarez was living, the police had attempted an unsuccessful traffic stop which resulted in a police pursuit. Believing that Suarez may have returned to his residence after successfully eluding them, the police were admitted to the residence by the owner, Suarez's landlord. Although the landlord was not sure whether Suarez was home, he did confirm that Suarez rented a room in his basement and pointed out the door to Suarez's room. When the officers knocked on the door and tried to turn the knob, they found the door was locked. According to the landlord, locking the door was not only highly unusual, but was not permitted. From the landlord's indication that the door should never be locked, the officers could logically infer that the locked door was suspicious. Furthermore, in a subsequent affidavit for a search warrant, one of the officers stated: "Believing that Mr. Suarez had returned to the residence the affiant gained entry to the residence and the room was cleared." The trial judge reviewed each of these factors and ultimately concluded that the officers, acting in good faith, had reason to believe that Suarez, who had just tried to flee from police and was under surveillance due to drug related activities, could be in the locked room destroying evidence.
Given these undisputed facts, I discern no basis for disturbing the trial court's conclusion that the officers' actions were lawful. Using common sense factors and evaluating the totality of the circumstances before them, the police had reason to believe that Suarez, in his continuing attempt to elude them, had returned to his room in an effort to destroy evidence. I am therefore convinced that the Payton standard has been satisfied.
I would affirm the trial court's denial of the motion to suppress. BRIEF FOR APPELLANT: Karen Shuff Maurer
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Emily Bedelle Lucas
Assistant Attorney General
Frankfort, Kentucky