Opinion
NO. 2014-CA-000663-MR NO. 2014-CA-000664-MR
04-07-2017
COMMONWEALTH OF KENTUCKY APPELLANT v. RAED I. ZAMARA APPELLEE AND COMMONWEALTH OF KENTUCKY APPELLANT v. YOUSEF I. ALABIAT APPELLEE
BRIEFS FOR APPELLANT: Jack Conway Attorney General of Kentucky Ken W. Riggs Assistant Attorney General Frankfort, Kentucky BRIEFS FOR APPELLEES: Scott Crisler Newport, Kentucky Michael L. Schulkens Cold Springs, Kentucky
NOT TO BE PUBLISHED APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE FRED A STINE V, JUDGE
ACTION NO. 13-CR-00569 APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE FRED A STINE V, JUDGE
ACTION NO. 13-CR-00570 OPINION
AFFIRMING
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BEFORE: ACREE, JONES AND NICKELL, JUDGES. ACREE, JUDGE: The issue before us is whether an officer's affidavit established probable cause to issue a search warrant for a neighborhood corner store in which Appellees Raed Zamara and Youseff Alabiat have an interest. The Campbell Circuit Court found it did not. Finding the affidavit was insufficient to support a finding of probable cause and the "good faith" exception to the search warrant requirement inapplicable, we affirm.
On April 10, 2013, Detective John Dunn of the Newport Police Department submitted an affidavit for a search warrant in the Campbell District Court. Detective Dunn believed Zamara and Alabiat were selling drug paraphernalia through their store. After reciting a lengthy definition of contraband, the affidavit contained the following representations in support of Detective Dunn's belief:
The affiant observed in a display case, with only access from the rear, a wide array of drug paraphernalia items. Inside the case there were glass and metal pipes and bong's [sic] in plain view for sale to the public. Also tools used to shred marijuana for consumption. In a separate display case, to the left of the drug paraphernalia, is a rotating display that contains jewelry with marijuana leaves displayed on them.The district court determined the affidavit established probable cause and issued a warrant. Detective Dunn and others searched the store. Among the items seized during the search were pipes and water bongs; shirts, jewelry, and other merchandise adorned with marijuana leaves; at least twenty assorted cell phones, some of which were missing their identification numbers; two Ipad tablets; several boxes of glass tubes, brillo pads, cotton filters, and plastic Ziplock baggies; and several thousands of dollars of loose cash from the store's safe.
Zamara and Alabiat jointly moved to suppress the evidence obtained. The circuit court conducted an evidentiary hearing, at which Detective Dunn testified. The circuit court determined the finding of probable cause unjustified. It also ruled that the "good faith" exception established by United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), did not save the search. By order entered January 16, 2014, it granted Zamara and Alabiat's suppression motion.
The Commonwealth requested post-judgment reconsideration under CR 59.05. The circuit court denied its motion. It explained:
Kentucky Rules of Civil Procedure.
The Court wishes the record to be clear. The instant case involves a store, not unlike a garden-variety smoke shop or "head shop" (of which hundreds exist in Kentucky), in which pipes and water bongs were available for purchase. These are items which, in their new, unused and unsold condition, were not self-evidently drug paraphernalia (as they would be if found in someone's home with drug residue). Simply calling them drug paraphernalia, without more to go on, does not make them so, nor does calling them drug paraphernalia generate probable cause for a search warrant. A warrant affidavit which explained the uses and conditions of the items, perhaps explaining, with reference to the list of criteria in KRS 218A.510, why these items are drug paraphernalia, might push this Court to a different conclusion. These are the facts and rationale that should be included in a warrant
affidavit, which would have allowed the issuing judge to properly evaluate the assertions of the officer without relying on an affidavit, composed entirely of conclusory statements.(R. at 100). This appeal followed.
We begin by noting that the circuit court's suppression order is interlocutory, not final. However, KRS 22A.020(4) provides the Commonwealth with a statutory right to appeal such interlocutory orders. Parker v. Commonwealth, 440 S.W.3d 381, 383 (Ky. 2014); Ballard v. Commonwealth, 320 S.W.3d 69 (Ky. 2010). The foundation underpinning this rule is that "[a]n order suppressing the Commonwealth's key evidence, such as the one at issue in the present case, may end the Commonwealth's case for all practical purposes." Parker, 440 S.W.3d at 383. Orders granting suppressions, like the one in this case, are indisputably appealable despite their interlocutory nature.
Kentucky Revised Statutes.
The proper test for appellate review of a suppression hearing ruling regarding a search pursuant to a warrant is to determine first if the facts found by the trial judge are supported by substantial evidence, ... and then to determine whether the trial judge correctly determined that the issuing judge did or did not have a "substantial basis for ... conclud[ing]" that probable cause existed. In doing so, all reviewing courts must give great deference to the warrant-issuing judge's decision.Commonwealth v. Pride, 302 S.W.3d 43, 49 (Ky. 2010) (citations and footnotes omitted). Our review is limited to the four corners of the affidavit. Id. Extrinsic evidence must not influence our decision. Id.
We must also, however, examine the totality of the circumstances, a practical, common-sense inquiry, to determine the propriety of the finding of probable cause. Id. at 48 (citing Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). Garnering these concepts, the legal question before us is this: whether, under the totality of the circumstances, the information presented within the four corners of the affidavit established probable cause to support the issuance of the warrant. Id. at 49-50.
"[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). An affidavit relying on wholly conclusory statements is insufficient to meet this requirement. Gates, 462 U.S. at 239, 103 S.Ct. at 2332-33. "Sufficient information must be presented to the [warrant-issuing judge] to allow that official to determine probable cause; his action cannot be a mere ratification of the bare conclusions of others." Leon, 468 U.S. at 915, 104 S. Ct. at 3416.
Turning to the case before us, the Commonwealth first disagrees with the circuit court's assessment that the affidavit contained no other details about Detective Dunn's observations or rationale for the issuance of the warrant. It claims this finding is erroneous because the affidavit defined "drug paraphernalia" at length. We find the Commonwealth's argument meritless. The definition of "drug paraphernalia" sheds no light on the detective's observations or rationale. It is simply a statutory definition undoubtedly well-known to the issuing judge.
The Commonwealth next contends that the information contained in the warrant affidavit was sufficient to support a finding of probable cause because it established the likely presence of drug paraphernalia in the appellees' place of business. It is no logical feat, the Commonwealth asserts, that pipes, bongs, and "tools" displayed near a collection of items depicting illegal cannabis images are certainly intended to be used to consume illegal cannabis. Accordingly, so the argument goes, employing a common sense, totality of the circumstances approach, the issuing judge had a substantial basis for concluding that probable cause existed justifying the issuance of the warrant. We are not persuaded.
Setting aside all we know about this case, including what was ultimately seized, and examining solely the contents of the affidavit, the only items observed by Detective Dunn were: glass and metal pipes, "bong's," "tools used to shred marijuana," and nearby jewelry embellished with marijuana leafs. This is simply not enough to establish "a fair probability that contraband or evidence of a crime will be found" in that store. Moore, 159 S.W.3d at 329.
Glass and metal pipes are sold in stores throughout Kentucky. There is nothing incriminating about these items absent other factors, such as drug residue or the presence of drugs. Near proximity to jewelry adorned with marijuana leaves does not transform an innocent item into drug paraphernalia. This same reasoning applies to bongs. Critically absent from the detective's affidavit is the answer to the question "why." Why are pipes and bongs indicative of drug paraphernalia? Why is their proximity to the jewelry significant?
It may be common knowledge among law enforcement officers, even the community at large, that pipes and bongs are frequently associated with drugs and often found to be drug paraphernalia. However, a store selling ordinary merchandise, even in close proximity to one another and to jewelry containing marijuana leaves, is not sufficient for a finding of probable cause, particularly given the innocuous, pre-utilized state of the items in this particular case. That is, employing a common sense approach and absent facts indicating otherwise, a reasonable person would assume these items were new, in original packaging, marked for sale, and displayed in a case for public perusal. There is nothing incriminating about items thus situated.
That leaves "tools used to shred marijuana." This is merely a conclusory statement without adequate foundation. What "tools" did the detective observe? How did the detective know these "tools" are routinely used to shred marijuana? What caused him to reach this conclusion? This is precisely the type of information that ought to be included in a warrant affidavit. Greater specificity of description would have been valuable to the district judge; it would have removed the taint of conclusion and allowed the district judge to adequately evaluate the detective's representations. Again, selling new, unused "tools" - even though these same tools may be used in other contexts to shred marijuana - is not a criminal act.
Ultimately, the detective's affidavit as a whole suffers from a paucity of descriptors and explanation which attenuate his conclusion. The cumulative impact of the statements contained in his affidavit, for purposes of a probable cause inquiry, is underwhelming. The items viewed by the detective have legitimate, non-criminal uses. Further, they lack all indicia of criminal doings when offered for sale in their original condition and packaging in a store's display case. As a result, Detective Dunn's affidavit does not pass constitutional muster as it contained no substantial basis for the conclusion that probable cause existed.
This takes us to the Commonwealth's final argument. It claims the circuit court erred in holding that the good faith exception found in Leon did not save the search and seizure in this case. We disagree.
The Kentucky Supreme Court embraced Leon's good faith exception in Crayton v. Commonwealth, 846 S.W.2d 684, 686 (Ky. 1992). --------
In Leon, supra, the United States Supreme Court adopted a "good faith" exception to the exclusionary rule requiring suppression of evidence obtained pursuant to a deficient warrant. 468 U.S. at 920-25, 104 S.Ct. 3419-22. Recognizing that the exclusionary rule is designed to deter police misconduct, id. at 916, 104 S.Ct. at 3417, the Supreme Court reasoned that "the marginal or nonexistent benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant cannot justify the substantial costs of exclusion." Id. at 922, 104 S.Ct. at 3420. Accordingly, evidence seized by a police officer need not be suppressed despite the warrant's subsequent invalidation if the officer executing the warrant had an objectively reasonable good faith belief in the warrant's sufficiency. Id. at 918-22, 104 S.Ct. at 3418-20; Crayton v. Commonwealth, 846 S.W.2d 684, 687 (Ky. 1992).
The good faith exception is not limitless. Evidence may still be suppressed if: (1) the affidavit contains "false or misleading information"; (2) the judge who issued the search warrant has abandoned his "detached and neutral role"; (3) the affidavit is so lacking in indicia of probable cause such that the officer's reliance cannot be reasonable; or, (4) the warrant is "facially deficient by failing to describe the place to be searched or the thing to be seized." Commonwealth v. Opell, 3 S.W.3d 747, 752 (Ky. App. 1999).
The circuit court found the third prospect applicable here - the affidavit in this case was so lacking in indicia of probable cause that the detective's reliance on it could not be reasonable. In other words, "the warrant application was supported by [nothing] more than a 'bare bones' affidavit[.]" Leon, 468 U.S. at 915, 104 S. Ct. at 3416. "An affidavit that states suspicions, beliefs, or conclusions, without providing some underlying factual circumstances regarding veracity, reliability, and basis of knowledge, is a 'bare bones' affidavit." United States v. Weaver, 99 F.3d 1372, 1378 (6th Cir. 1996).
In applying this exception to the Leon good faith exception, the circuit court reasoned:
Here, the affidavit is so bare bones as to preclude any reasonable reliance on the warrant it supported. As noted above, the affidavit contains only the affiant's conclusions that drug paraphernalia was present at the store, but no reasons or rationale supporting that conclusion. This bare conclusion, without more, cannot establish the required nexus between illegal activity and the place to be searched because it does not allege that illegal activity has taken place. The affidavit does not
even assert that the "pipes and bongs [sic] for sale to the public" were intended for use with marijuana, nor does the affidavit contain any rationale in support of the detective's claims that the tools he saw were for the purpose of "shredding marijuana." [I]t would have taken relatively little to establish the required nexus. In U.S. v. Savoca, [761 F.2d 292 (6th Cir. 1985),] the application of the good faith exception hinged on statements in the warrant affidavit that the suspects were known to have previously participated in the criminal activity being investigated. Similarly, in U.S. v. Schultz, [14 F.3d 1093 (6th Cir. 2004,] the 6th Circuit held that the minimal nexus was satisfied merely by the officer's reliance on his years of experience as a narcotics and knowledge of drug dealers' business practices. The affidavit in the instant case lacks even such small indicia of reliability, and is instead predicated entirely upon conclusions for which the affiant provides no factual basis within the body of the affidavit.(R. at 72) (footnotes omitted). The circuit court's reasoning is not unsound. The affidavit in this case is so lacking in detail, descriptions, and information that the detective's belief in the existence of probable cause was an entirely unreasonable basis for issuing a warrant.
We do not render our decision lightly. There is nothing in the record to suggest Detective Dunn intentionally sought to produce a deficient affidavit. Nevertheless, we cannot and must not turn a blind eye to a deficient warrant affidavit of this nature even if motivated by experience and good faith. Police must cautiously craft affidavits disclosing all, or at least enough, information to the issuing court such that it can determine probable cause. No matter the reason, if the affidavit lacks sufficient indicia of probable cause and is simply bare bones, the officer's reliance cannot be reasonable and suppression of the evidence seized is an available remedy. Crayton, 846 S.W.2d at 687-88.
We affirm the Campbell Circuit Court's January 16, 2014, order granting Zamara and Alabiat's joint motion to suppress.
ALL CONCUR. BRIEFS FOR APPELLANT: Jack Conway
Attorney General of Kentucky Ken W. Riggs
Assistant Attorney General
Frankfort, Kentucky BRIEFS FOR APPELLEES: Scott Crisler
Newport, Kentucky Michael L. Schulkens
Cold Springs, Kentucky