Opinion
NO. 2016-CA-001053-MR
06-22-2018
PATRICIA ANN GIBSON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Molly Mattingly Assistant Public Advocate Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Julie Scott Jernigan Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE JAMES D. ISHMAEL, JR., JUDGE
ACTION NO. 16-CR-00006-001 OPINION
AFFIRMING
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BEFORE: COMBS, D. LAMBERT AND THOMPSON, JUDGES. THOMPSON, JUDGE: Patricia Ann Gibson was indicted for possession of a controlled substance, first degree; possession of drug paraphernalia; and trafficking in a controlled substance, third degree. She entered a conditional guilty plea in the Fayette Circuit Court to one count of criminal attempt of possession of a controlled substance in the first degree and one count of possession of drug paraphernalia. In accordance with the plea agreement, Gibson was sentenced to twelve months concurrently, probated for two years. Her conditional guilty plea preserved her right to appeal the trial court's denial of her motion to suppress evidence found in a motel room she occupied. Gibson argues that the plain view doctrine did not authorize police officers to enter her motel room because the incriminating character of a glass pipe and grinder was not immediately apparent. We affirm.
A hearing was held on Gibson's motion to suppress. Gibson and the Commonwealth agree on the content of the testimony and of a sound recording activated by Officer McBride as he entered the hotel room.
Officer Jason Rothermund testified that on October 25, 2015, he responded to a request from Officer John McBride and Sergeant Jarret to assist in a narcotics investigation, after police received an anonymous tip that a person identified as "Trisha" was trafficking Xanax bars from room 125 at an Econo Lodge. After the officers arrived at the motel, he and Sergeant Jarret approached the room to do a knock-and-talk. Both officers were armed and wearing uniforms. When the officers approached the area of the room, a man and a woman, who was later identified as Gibson, were standing in a breezeway. After the officers realized the couple were walking toward room 125, the officers engaged the couple in conversation. Officer Rothermund testified that as the couple entered the room, they stood inside the doorway holding the door open and, as the officers spoke with them, the officers stood on the outside threshold.
Officer Rothermund testified that the position of the door allowed him a limited field of vision into the room. However, he testified that on a nightstand, he saw a glass pipe and a grinder next to each other. Officer Rothermund testified that in his training and experience, the glass pipe and grinder viewed together, indicated the items were drug paraphernalia. However, the glass pipe and grinder were legal to possess.
Officer Rothermund testified he entered the hotel room after viewing the glass pipe and grinder. He did not see marijuana residue or smell burnt marijuana until he entered the room and closely observed the items.
Gibson testified that she and her companion were approached by the officers in the hallway and were told to return to their hotel room. In contrast to Officer Rothermund's testimony, Gibson testified that the officers did not ask any questions and when she opened the door, the officers entered the room directly behind her.
Officer McBride testified that upon arrival at the motel, he went to the front desk to identify who was registered in room 125. He learned the room was registered to Patricia Gibson. As he was speaking with motel management, McBride received a call from the officers in room 125, who were waiting for him to arrive. Officer McBride arrived in the room and requested consent to search the room. Gibson declined, and Officer McBride informed her that the officers were going to "seize and freeze" the scene and obtain a warrant. After Gibson and others in the room were patted-down and a protective sweep of the room was conducted, Officer McBride left and obtained a search warrant.
At the conclusion of the suppression hearing, the trial court found that the officers were lawfully at the room's doorway when they saw the glass pipe and grinder and that those items were plainly visible. The trial court also found the incriminating character of the glass pipe and grinder was immediately apparent to the officers. The trial court concluded that the plain view doctrine applied to justify the warrantless seizure of the glass pipe and grinder and denied the motion to suppress.
When reviewing a trial court's denial of a motion to suppress, we apply different standards of review to the trial court's factual findings and to its legal conclusions. "A more deferential standard of review applies to the trial court's factual findings than to its legal conclusions[.]" Payton v. Commonwealth, 327 S.W.3d 468, 471 (Ky. 2010). As explained in Commonwealth v. Neal, 84 S.W.3d 920, 923 (Ky.App. 2002) (footnotes omitted):
An appellate court's standard of review of the trial court's decision on a motion to suppress requires that we first determine whether the trial court's findings of fact are supported by substantial evidence. If they are, then
they are conclusive. Based on those findings of fact, 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.
The Fourth Amendment to the United States Constitution, made applicable to the states through the Fourteenth Amendment and Section Ten of the Kentucky Constitution, protects citizens from unreasonable searches and seizures by the government. A basic tenet of Fourth Amendment law is that "searches [and seizures] conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment subject only to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967) (footnote omitted). Under the fruit of the poisonous tree doctrine, evidence obtained as a result of an unreasonable search and seizure is inadmissible. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); Baltimore v. Commonwealth, 119 S.W.3d 532, 539-40 (Ky.App. 2003).
Fourth Amendment protection applies only to areas searched wherein the defendant possesses a reasonable expectation of privacy. Rawlings v. Kentucky, 448 U.S. 98, 104, 100 S.Ct. 2556, 2561, 65 L.Ed.2d 633 (1980). While a motel guest may have no reasonable expectation that a police officer would not look through an uncovered window or open door of a motel room, Commonwealth v. Johnson, 777 S.W.2d 876, 878 (Ky. 1989), there is a reasonable expectation of privacy in the inside of a motel room. Blades v. Commonwealth, 339 S.W.3d 450, 453 (Ky. 2011).
Despite that warrantless searches and seizures are generally prohibited, there are circumstances when a warrant is not required. One such circumstance is where contraband is in plain view. As the United State Supreme Court has noted, if an item is in plain view, observation of that item does not involve an invasion of privacy. Arizona v. Hicks, 480 U.S. 321, 325, 107 S.Ct. 1149, 1152, 94 L.Ed.2d 347 (1987). In Hazel v. Commonwealth, 833 S.W.2d 831, 833 (Ky. 1992) (internal quotations omitted), our Supreme Court reiterated the elements that must exist for an item to be in plain view to justify a warrantless intrusion:
First, the law enforcement officer must not have violated the Fourteenth Amendment in arriving at the place where the evidence could be plainly viewed. Second, not only must the officer be lawfully located in a place from which the object can be plainly seen, but he or she must have a lawful right of access to the object itself. Finally, the object's incriminating character must also be immediately apparent.
Gibson does not dispute that the officers were properly at the motel to investigate an anonymous tip that drugs were being sold from room 125 and the glass pipe and grinder were plainly visible through the open door. Her appellate argument focuses on whether the incriminating character of the glass pipe and grinder was "immediately apparent" upon Officer Rothermund's seeing the glass pipe and the grinder from the doorway.
"Immediately apparent" does not mean that an officer must know that certain items are evidence of a crime. However, the officer must have probable cause to believe the property is associated with some criminal activity. Hicks, 480 U.S. at 327, 107 S.Ct. at 1153-54. "The test for probable cause is whether, under the totality of the circumstances, a fair probability exists that contraband or evidence of a crime will be found in a particular place." Beckam v. Commonwealth., 284 S.W.3d 547, 549 (Ky.App. 2009). Probable cause is determined by "consider[ing] the totality of the circumstances—including the officers' training and experience as well as their knowledge of the situation at hand." United States v. Buchanan, 70 F.3d 818, 826 (5th Cir. 1995).
Gibson argues there is nothing inherently incriminating about a glass pipe and a grinder, both of which have legal purposes, that made it immediately apparent that the items were contraband. Based on the totality of the circumstances, we disagree.
In United States v. McLevain, 310 F.3d 434, 441 (6th Cir. 2002), the defendant claimed there was "nothing about the intrinsic nature of a twist tie, a cigarette filter, a spoon with residue, or a bottle that [made] it immediately apparent that those items [were] contraband." The Court agreed, noting that the items were not used exclusively for methamphetamine. While some of the items may be "out of the ordinary, the police are not authorized to seize odd items." Id. at 442. The Court concluded that an item is not immediately incriminating if it appears suspicious to an officer, but further investigation is required to establish probable cause as to its association with criminal activity. Id. at 443.
Our Supreme Court quoted McLevain with approval in Hatcher v. Commonwealth, 199 S.W.3d 124, 127 (Ky. 2006). In Hatcher, police responded to a home after an anonymous claim of an allegedly abandoned minor. When they arrived, a minor opened the door and an officer saw a pipe sitting on a table. The officer then entered the home, picked up the pipe and smelled marijuana. The officer testified that based on his training and experience, the pipe he observed was predominantly used to smoke marijuana.
The Court held that there were no exigent circumstances that authorized the officer to enter the home. Therefore, the "incriminating nature of the pipe must have been 'immediately apparent' from his vantage point in the doorway." Id. Holding the immediately apparent element was not met, the Court reasoned that "[a]lthough the pipe appeared suspicious to [the officer], further investigation was required to establish probable cause as to its association with criminal activity, and thus it simply was not immediately incriminating." Id. at 128. The officer's belief based on his training and experience that the pipe was used for smoking marijuana did not authorize his entry and seizure of the pipe. Id. at 129.
The Commonwealth argues two facts distinguish this case from Hatcher. The first is that the anonymous tip that Xanax bars were being sold from the room.
An anonymous tip, alone, does not constitute probable cause. Florida v. J.L., 529 U.S. 266, 270, 120 S.Ct. 1375, 1378, 146 L.Ed.2d 254 (2000). However, when considering the totality of the circumstances to determine probable cause, an anonymous tip that criminal activity is occurring or about to occur at a particular location is a circumstance that may be considered.
In Hatcher, the anonymous tip had no relationship to the presence of marijuana in the home. Here, the tipster informed the officers that Xanax bars were being sold from room 125 and the officers were investigating possible drug activity when they encountered Gibson, who occupied the room.
In addition to the tip, the Commonwealth also argues that the combination of the pipe and grinder at the same location are circumstances that distinguish this case from Hatcher. We agree. Both are legal items but both have known uses related to marijuana use. Although a glass pipe may be used for tobacco and a grinder possibly to grind kitchen herbs, the combination of both in a motel room and Officer Rothermund's testimony as to the glass pipe's and grinder's association with criminal activity were sufficient to establish probable cause without further investigation. Under the totality of the circumstances, the incriminating character of the items was immediately apparent.
For the reasons stated, the judgment of the Fayette Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Molly Mattingly
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Julie Scott Jernigan
Assistant Attorney General
Frankfort, Kentucky