Opinion
NO. 2012-CA-001162-MR
05-30-2014
GARY WOOD APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Karen Shuff Maurer Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General Frankfort, Kentucky Ken W. Riggs Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE GREGORY M. BARTLETT, JUDGE
ACTION NO. 12-CR-00113
OPINION
REVERSING
BEFORE: CLAYTON, JONES, AND TAYLOR, JUDGES. CLAYTON, JUDGE: Gary Wood appeals from the June 27, 2012, final judgment of the Kenton Circuit Court which found him guilty of first degree possession of a controlled substance and sentenced him to eighteen months' incarceration, probated for three years. In particular, Wood appeals from the trial court's May 10, 2012 order denying his motion to suppress evidence discovered during a warrantless entry of his apartment. Because we hold that the trial court improperly concluded that exigent circumstances existed which would justify the warrantless entry, we reverse.
On March 28, 2011, Covington police officers Justin Tucker and Eric Higgins arrived at Wood's apartment complex in order to execute an arrest warrant on David Banyon, who resided on the sixth floor, in apartment 604. Upon exiting the elevator on the sixth floor, Officer Tucker smelled the odor of burnt marijuana. The officers determined that the odor was coming from Wood's apartment, unit 601, where they could hear music playing and men conversing. Officer Tucker knocked on the door of the apartment and identified himself. The music and voices stopped and Wood opened the door to the apartment, at which time the smell of burning marijuana emanated from the apartment. Officer Tucker would later testify that he could tell, based on his training and experience, marijuana had just been smoked in the apartment. From the open apartment door, Officer Tucker could ascertain that there was a second person inside the apartment. The officers requested permission to enter, which Wood denied. Based on the smell of marijuana and the presence of another person in the apartment, the officers entered anyway. Upon entry, the officers recognized the second inhabitant of the apartment as Banyon, for whom they had the arrest warrant. Banyon was arrested and the officers did a protective sweep of the apartment to ensure that no one else was present. Banyon was then searched and the officers found a burnt marijuana cigarette. A search warrant for the apartment was subsequently sought. Upon execution of the search warrant, methamphetamine was discovered.
Wood was indicted for illegal possession of a controlled substance, methamphetamine, first degree. Wood filed a motion to suppress, in which he argued that Officer Tucker and Officer Higgins illegally entered his apartment. Following a hearing, the motion to suppress was denied by the trial court in its order entered on May 10, 2012. Thereafter, Wood entered into a conditional guilty plea in which he reserved his right to appeal the suppression issue. A final judgment was entered on June 27, 2012, in which Wood was sentenced to eighteen months incarceration, to be probated for three years. This appeal followed.
We review a trial court's ruling on a motion to suppress in two steps. First, we 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 must then conduct a de novo review of the trial court's application of the law to those facts to determine whether its decision is correct as a matter of law." Smith v. Commonwealth, 323 S.W.3d 748, 752 (Ky. App. 2009).
Wood's sole argument on appeal is that the trial court committed reversible error when it denied his motion to suppress the evidence discovered in his apartment. More precisely, Wood argues that the police officers unlawfully entered his apartment and there were no exigent circumstances which would warrant entry. For the following reasons, we agree.
It is well established that "in the absence of consent, police may not conduct a warrantless search or seizure within a private residence without both probable cause and exigent circumstances." King v. Commonwealth, 386 S.W.3d 119, 122 (Ky. 2012). It is the burden of the Commonwealth to demonstrate that an exigent circumstance is present. Id. Relevant to this case is that the "[d]estruction of evidence is a recognized exigent circumstance creating an exception to the warrant requirement." Posey v. Commonwealth, 185 S.W.3d 170, 173 (Ky. 2006).
The Supreme Court of Kentucky recently held that the Commonwealth failed to show the existence of exigent circumstance, based on destruction of evidence, which would allow a warrantless entry into an apartment. King, 386 S.W.3d 119. The officers in King were in pursuit of a suspected drug dealer when the suspect entered an apartment, from a common breezeway. The officers did not witness which apartment the suspect entered, but could smell a strong odor of marijuana emanating from the back left apartment. Officers would later learn that their suspect had, in fact, entered the back right apartment. After knocking on the door of the back left apartment and identifying themselves, the officers could hear people moving around. Believing that evidence was being destroyed, the officers forced their way into the apartment, where they discovered drugs and drug paraphernalia. The Supreme Court held that there was no exigent circumstance which would justify a warrantless entry into the apartment. Id at 122. More precisely, it was held that the officer who performed the entry failed to articulate the specific details which would lead him to believe that evidence was being destroyed. Id. In so holding, the Supreme Court further clarified:
no exigency is created simply because there is probable cause to believe that a serious crime has been committed[.] Exigent circumstances do not deal with mere possibilities, and the Commonwealth must show something more than a possibility that evidence is being destroyed to[] defeat the presumption of an unreasonable search and seizure.Id. at 123 (citation omitted).
In the case presently before us, the trial court made the following relevant findings and conclusions in support of its denial of Wood's motion to suppress:
The Detectives asked the Defendant for permission to enter his apartment, but he refused. Detective Tucker saw that there was another individual inside the apartment. Despite the Defendant's refusal to give consent, the Detectives entered the apartment. Once inside, they conducted a protective sweep and discovered Mr. Banyon, the individual for whom they had an active arrest warrant. Detective Higgins placed Banyon under arrest and took him to jail.
. . .
The Detectives testified that they entered the apartment to prevent the destruction of the contraband.
. . .
Upon examination of the totality of the circumstances, this Court is of the opinion and finds that it was reasonable for the Detectives to enter the Defendant's apartment to secure the premises and prevent the destruction of contraband. Clearly, the strong smell of marijuana emanating from the apartment into the hallway
established probable cause to obtain a warrant if they had chosen to do so. However, this Court also is of the opinion and finds that there were exigent circumstances that justified the Detectives entering the Defendant's apartment, despite his refusal.
. . .
Believing that criminal activity was occurring in the apartment, that being the possession of marijuana, the Detectives were justified in their belief that they needed to enter the apartment to prevent destruction of the contraband.
This case can be distinguished from [King] . . . the Detectives did not break into Defendant's apartment and immediately conduct a search. Rather, they entered the apartment, performed a protective sweep and secured the premises. No search was conducted until a warrant was obtained.
We disagree that this case is distinguishable from King. Like the officers in King, the officers herein entered the apartment based solely on their observations that marijuana was being smoked and people were present in the apartment. No other facts were articulated which would lead the officers to believe that evidence was being destroyed. The King opinion is clear that it is the "warrantless entry" of the officers that was unsupported by the facts and does not delineate between the entry and the resulting search. Thus the lack of an active search in the case before us is irrelevant. In short: the warrantless entry makes the discovered evidence improper for submission. King 386 S.W.3d at 122.
A properly limited "protective sweep" can also serve as an exception to the warrant requirement. Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990); Guzman v. Commonwealth, 375 S.W.3d 805, 808 (Ky. 2012). However, no such facts exist herein which would support such an act. Protective sweeps are only to be performed in conjunction with an in-home arrest and when officers believe the residence may be harboring a dangerous person. Id. Here, at the time Officers Tucker and Higgins forced entry into Woods' apartment, no arrest was taking place. The arrest of Banyon came after the forced entry. Moreover, a protective sweep can only be sanctioned by "articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene." Id. at 334 (emphasis added). Officers Tucker and Higgins never claimed to be searching Woods' apartment for dangerous persons, but rather only sought to prohibit the destruction of evidence. Thus, any language in the trial court's order pertaining to a "protective sweep" is unsupported by the evidence.
For the foregoing reasons, the May 10, 2012, and June 27, 2012, orders of the Kenton Circuit Court are reversed.
TAYLOR, JUDGE, CONCURS.
JONES, JUDGE, DISSENTS. BRIEFS FOR APPELLANT: Karen Shuff Maurer
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General
Frankfort, Kentucky
Ken W. Riggs
Assistant Attorney General
Frankfort, Kentucky