Opinion
NO. 2011-CA-000236-MR
04-26-2013
DANNY JOE WHITE, JR. APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Roy A. Durham II Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Frankfort, Kentucky J. Hays Lawson Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE ERNESTO SCORSONE, JUDGE
INDICTMENT NO. 09-CR-01868
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; CAPERTON AND TAYLOR, JUDGES. TAYLOR, JUDGE: Danny Joe White, Jr., appeals from the January 18, 2011, Final Judgment and Sentence of Imprisonment of the Fayette Circuit Court. This judgment was entered on White's conditional plea which found White guilty of first-degree trafficking in a controlled substance, first offense and second-degree persistent felony offender. White was sentenced to a total concurrent sentence of twelve-years' imprisonment. This appeal looks to the trial court's denial of his motion to suppress certain evidence. We affirm.
In September of 2009, Lexington Police Detective Jared Curtsinger was advised by a confidential informant that a friend, Brooke Niehaus, was purchasing thirty milligram Oxycodone pills from a man named D.J., living at 115 West Loudon Ave., trailer 33. The informant further advised Det. Curtsinger that she had witnessed Niehaus make such a purchase on at least five occasions. Based upon the informant's description of D.J., and the address provided, Det. Curtsinger determined that D.J. was appellant White.
On October 19, 2009, the informant advised Det. Curtsinger that Niehaus was going to White's trailer that day to purchase Oxycodone pills. At the direction of Det. Curtsinger, the informant requested four pills and Niehaus agreed to middleman the deal for $50. The informant and Det. Curtsinger then met and the informant was searched for contraband. None was found. Det. Curtsinger provided the informant with money to purchase the pills and then drove her to White's trailer. While en route to White's residence, Det. Curtsinger overhead a phone conversation between the informant and Niehaus wherein they agreed that Niehaus would go inside White's home to retrieve the pills while the informant remained on the front porch, because White did not want the informant to come inside. Once Det. Curtsinger and the informant arrived at White's residence, Det. Curtsinger witnessed the informant give Niehaus $50 on the front porch of White's trailer before Niehaus entered. Niehaus quickly returned from the trailer and handed the pills to the informant. The informant then returned to Det. Curtsinger's vehicle, presented him with four thirty milligram Oxycodone pills, and verified that she had given the money to Niehaus to purchase the pills from White.
The next day, Det. Curtsinger contacted the informant and requested that she contact Niehaus for the purpose of making another purchase from White. This time the informant was provided with a recording device. The informant later returned to Det. Curtsinger with four thirty milligram Oxycodone pills, purchased from White by Niehaus and the recording device.
A search of White's criminal history by Det. Curtsinger revealed that he had been convicted of no less than four drug-related charges. Det. Curtsinger was also informed by another police officer that a recent search of White's trailer in another case uncovered the presence of marijuana and illegally possessed prescription pills for which charges were pending. Based upon this information and his recent activities with the informant, Det. Curtsinger obtained a search warrant for White's trailer.
The warrant was executed on October 21, 2009, during which officers seized twenty thirty milligram Oxycodone pills, thirty-one Methadone pills, marijuana, digital scales, and other drug paraphernalia. White was indicted on three counts of first-degree trafficking in a controlled substance; possession of a controlled substance; possession of drug paraphernalia, second offense; possession of marijuana; and persistent felony offender, second degree.
White filed a motion to suppress all evidence seized as a result of the search warrant. At the suppression hearing, White argued that there was no probable cause for the warrant because there were no controlled buys between the informant and White, only controlled buys between the informant and Niehaus. White also argued that the information used to obtain the warrant was based entirely upon hearsay statements by Niehaus, with whom Det. Curtsinger was unfamiliar. The trial court concluded there was sufficient evidence to support the warrant and, in the event that there was not sufficient evidence, White had failed to defeat the good faith exception of United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984). White filed a motion to reconsider which was subsequently denied.
On October 4, 2010, White entered into a conditional guilty plea. The plea was accepted and the trial court's final judgment and sentence of imprisonment was entered on January 18, 2011. Therein, White was found guilty of first degree trafficking in a controlled substance, first offense and second-degree persistent felony offender, and sentenced to twelve years in prison. This appeal followed.
White's first argument on appeal is that the trial court erred when it denied his motion to suppress the search of his residence because the information used in the affidavit to obtain the search warrant was insufficient, lacked any indicia of reliability, and was wholly lacking in probable cause. We disagree.
"Our review of a search warrant must give great deference to the warrant-issuing judge's findings of probable cause and should not be reversed unless arbitrarily exercised." Moore v. Com., 159 S.W.3d 325, 329 (Ky. 2005). As long as there is a "substantial basis for concluding that a search warrant would uncover evidence of wrongdoing," nothing more is required. Id.
In general, an affidavit supporting a search warrant must "reasonably describe the property or premises to be searched and state sufficient facts to establish probable cause for the search of the property or premises." Guth v. Com., 29 S.W.3d 809, 811 (Ky. App. 2000). "[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, 159 S.W.3d at 329 (citation omitted).
In this case, the issuing judge was presented with evidence that several controlled drug purchases had taken place at White's residence, that White had a history of drug related charges, and that drugs and drug paraphernalia had recently been obtained from his residence in an unrelated case. Although the physical exchange of drugs and money only took place between the informant and Niehaus, the information presented in the petition for the search warrant created a fair probability that evidence of a crime would be found at White's residence. Accordingly, we find no error with the trial court's determination that the warrant was properly obtained.
Even assuming for purposes of argument that the affidavit in question was deficient as asserted by White, evidence seized from a searched premise can still be admitted at trial pursuant to the good faith exception to the exclusionary rule as provided for in U.S. v. Leon, 468 U.S. 897, and followed by the Kentucky Supreme Court in Crayton v. Commonwealth, 846 S.W.2d 684 (Ky. 1992). Another panel of this Court has recently discussed the application of Leon and the good faith exception as follows:
Historically, a violation of the Fourth Amendment required the automatic suppression of the evidence seized. However, in Leon, supra, the Supreme Court reversed this per se suppression rule and added what we know today as the "good faith exception." The Supreme Court in Leon held an officer's reasonable reliance on a search warrant issued by a neutral and detached magistrate could save evidence from being excluded when the warrant was later determined to be deficient for lack of probable cause. However, the Court went on to add that if the magistrate had been misled with false information, any evidence seized should be suppressed as the officer's reliance on the search warrant could not be seen as reasonable. Further, if the magistrate abandons the "detached and neutral" judicial role or if the officer's belief in the existence of probable cause was wholly unreasonable, suppression of evidence remains available as a remedy. . . .Hensley v. Com., 248 S.W.3d 572, 577 (Ky. App. 2007). White made no allegation that the issuing judge was misled with false information. In fact, the trial court specifically asked White if there were any inconsistencies between Det. Curtsinger's testimony and the information presented in the petition for the warrant and White agreed that there were none. Therefore, we agree with the trial court's conclusion that even if the warrant was not supported by probable cause, White failed to defeat the good faith exceptions to preclude the admission of the evidence.
White's final argument on appeal is that the trial court erred by failing to enter written findings of fact on White's suppression motion in violation of Kentucky Rules of Criminal Procedure (RCr) 9.78, the Kentucky Constitution, and the United States Constitution. RCr 9.78 requires that a trial court shall conduct an evidentiary hearing on a party's suppression motion and thereafter "shall enter into the record findings resolving the essential issues of fact raised by the motion or objection and necessary to support the ruling." RCr 9.78. The findings of the trial court in this instance were made orally at the conclusion of the hearing. However, White made no objection. Accordingly,
A final judgment shall not be reversed or remanded because of the failure of the trial court to make a finding of fact on an issue essential to the judgment unless such failure is brought to the attention of the trial court by a written request for a finding on that issue or by a motion pursuant to Rule 52.02.Kentucky Rules of Civil Procedure (CR) 52.04. See also CR 13.04. White failed to raise the issue of lack of written findings or request the trial court to make additional findings as required. White thus waived the right to raise that issue on appeal. Farmer v. Com., 169 S.W.3d 50 (Ky. App. 2005).
For the forgoing reasons, the January 18, 2011, Final Judgment and Sentence of Imprisonment of the Fayette Circuit Court is affirmed.
ACREE, CHIEF JUDGE, CONCURS.
CAPERTON, JUDGE, CONCURRING IN PART AND DISSENTING IN PART.
CAPERTON, JUDGE, CONCURRING AND DISSENTING: I join the majority insofar as it upheld the officer's search of the premises based upon the good faith reliance of the officer, Leon, and the arguments based on RCr 9.78, CR 52, and CR 13.04 concerning preservation of the issue as to whether the trial court should have entered written findings. I dissent only on the propriety of the issuance of a search warrant for the premises based on the facts and arguments presented.
I understand the argument and agree with White's argument that, from all appearances, Niehaus could just as easily have been the trafficker, and that the link to White was tenuous. However, no issue was raised on the commonality of control over the premises where the drugs were found. Though the CI had no personal knowledge of the transactions, if any, inside the residence, he did have the statements of Niehaus that the inside of the residence was the source of the drugs. At this point, the home of White may, with proper evidence, have been characterized as the drug storage area used by Niehaus. The viability of such an argument turns upon facts and case law that establishes common control over the premises. U.S. v. Ayers, 924 F.2d 1468 (9th Cir. 1991). It was not argued and, accordingly, shall it be decided. BRIEFS FOR APPELLANT: Roy A. Durham II
Assistant Public Advocate
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Frankfort, Kentucky
J. Hays Lawson
Assistant Attorney General
Frankfort, Kentucky