Opinion
NO. 2014-CA-000988-MR
02-05-2016
LESTER MARTIN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Matthew W. Boyd Lexington, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Jason B. Moore Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM BATH CIRCUIT COURT
HONORABLE WILLIAM EVANS LANE, JUDGE
ACTION NO. 11-CR-00041 OPINION
AFFIRMING BEFORE: JONES, J. LAMBERT, AND MAZE, JUDGES. MAZE, JUDGE: Lester Martin appeals from the Bath Circuit Court's denial of his Motion to Suppress evidence obtained during a warrantless search of his residence. Martin was later tried and convicted on drug-related charges. We observe no error in the trial court's ruling regarding suppression. We therefore affirm.
Background
On April 8, 2011, a Bath County grand jury indicted Martin on charges of Marijuana Cultivation and Trafficking in Marijuana. The charges stemmed from the fruits of a search conducted by Kentucky State Police following an anonymous tip. Martin's counsel filed a Motion to Suppress the evidence observed and seized at Martin's residence. During a hearing on the motion, the officers who searched Martin's property testified to the facts below.
On September 24, 2010, Kentucky State Police received an anonymous tip that there was drug activity at Martin's address in Bath County. Trooper Shortridge and Trooper (now Detective) Alcala arrived at Martin's residence shortly thereafter to investigate. As Detective Alcala approached the front porch of the residence to initiate a knock-and-talk, Trooper Shortridge walked to the rear of the residence - a measure he testified was "for officer safety reasons not knowing what would - could happen." From behind the residence, Trooper Shortridge could observe digital scales sitting on a table inside the home. However, after hearing that Detective Alcala was speaking with Martin, Trooper Shortridge rejoined them on the front porch.
When asked if he would walk both officers around the property, Martin said he would. As Martin led them toward the multiple buildings on the property, Detective Alcala asked Martin if anyone else was in the residence. When Martin responded that his girlfriend was in the home, Trooper Shortridge asked if Martin minded if he spoke with her. Martin responded in the negative, and Trooper Shortridge proceeded back to the front porch of the home while Detective Alcala and Martin continued to walk around the property.
Once on the front porch, Trooper Shortridge found the front door of the residence open and its screen door closed. When he knocked on the screen door, Martin's girlfriend, Melissa Gamble, answered from inside the home. Trooper Shortridge asked Gamble, "Do you mind if I come in and talk with you?" to which Gamble responded, "no." Upon entering the living room of the home from the front door, Trooper Shortridge immediately detected a "strong odor of marijuana" and observed a loaded .45 caliber handgun with its hammer cocked resting on the back of a couch. Trooper Shortridge "cleared" the handgun and asked Gamble if anyone else was in the home. Gamble said there was not. Trooper Shortidge then walked through the other rooms of the home "for possible officer safety reasons." He testified that this was standard procedure. During this process, Trooper Shortridge observed in plain view marijuana, a marijuana cigarette in an ashtray, and marijuana residue. Gamble never objected or asked Trooper Shortridge to stop looking around the home, and the officers never asked Martin for consent to enter or search the home.
At Trooper Shortridge's request, Detective Alcala and Martin returned to the residence. Upset at Trooper Shortridge's entry and search of his residence, Martin angrily opened drawers in the living room and threw a large bag of marijuana at the officers. After obtaining a search warrant, officers eventually discovered marijuana buds and loose marijuana inside two closets in the residence, as well as marijuana plants in the attic of the home and in the barn on the property.
Based on this testimony, the trial court issued a September 2012 order overruling Martin's Motion to Suppress. Specifically, the trial court held that "[t]he police in this matter either had permission or probable cause at each crucial step in this investigation and thus any aspect of the initial entry and sweep of the house is not violative of the Fourth Amendment...." After the trial court overruled his motion to reconsider, a jury found Martin guilty of the charges in the indictment and sentenced him to one year in prison. Martin now appeals from the trial court's decision on his suppression motion.
Standard of Review
Appellate review of a trial court's rulings on a motion to suppress is two-fold. Brumley v. Commonwealth, 413 S.W.3d 280, 283-84 (Ky. 2013), citing Commonwealth v. Marr, 250 S.W.3d 624, 626 (Ky. 2009), and RCr 9.78. First, the factual findings of the trial court are conclusive if supported by substantial evidence. Id. If the findings are conclusive, we then conduct a de novo review to determine whether the trial court's ruling is correct as a matter of law. Id.
Kentucky Rules of Criminal Procedure. --------
Analysis
The Fourth and Fourteenth Amendments to the United States Constitution as well as Section 10 of the Kentucky Constitution combine to protect citizens from unreasonable government searches and seizures. Warrantless searches and seizures are presumptively unreasonable. See Payton v. New York, 445 U.S. 573, 586, 100 S. Ct. 1371, 1380, 63 L. Ed. 2d 639 (1980); see also Brumley v. Commonwealth, 413 S.W.3d 280, 284 (Ky. 2013). Exceptions to the warrant requirement include consent and search incident to arrest, and it is the Commonwealth's burden to show that such exceptions justified a warrantless search. Kerr v. Commonwealth, 400 S.W.3d 250, 265 (Ky. 2013), citing King v. Commonwealth, 386 S.W.3d 119, 122 (Ky. 2012).
In his Motion to Suppress and on appeal, Martin alleged several instances where the troopers' conduct constituted an unreasonable search. With the aforementioned standard in mind, we address each of Martin's allegations.
I. The Initial Knock-and-Talk
Martin first challenges Trooper Shortridge's decision to walk around the back of the home while Detective Alcala initiated a knock-and-talk with Martin at the front of the home. Martin argues that this was an unjustified entry upon the curtilage of his home and gave rise to an unreasonable search.
Questions concerning officers' execution of a knock-and-talk inevitably implicate the right one has to the area around his home. See Quintana v. Commonwealth, 276 S.W.3d 753, 757 (Ky. 2008). As with any area claimed as protected from unreasonable searches and seizures, an individual must have a reasonable expectation of privacy in that area. Oliver v. United States, 466 U.S. 170, 178, 104 S. Ct. 1735, 1741, 80 L. Ed. 2d 214 (1984) (internal citation and quotations omitted). This can include areas around an individual's home reasonably viewed as an extension of the home. Quintana at 757, citing Oliver. To determine whether an area is protected curtilage, we look to four factors: the proximity of the area to the home, whether the area is included in an enclosure with the home, how the area is used, and steps the resident has taken to prevent observation from the people passing by. See Dunn v. Commonwealth, 360 S.W.3d 751, 758-59 (Ky. 2012), citing United States v. Dunn, 480 U.S. 294, 300, 107 S. Ct. 1134, 1139, 94 L. Ed. 2d 326 (1987). Overall, the central question is "whether the area ... is so intimately tied to the home itself that it should be placed under the home's 'umbrella' of Fourth Amendment protection." Dunn v. Commonwealth at 758, quoting U.S. v. Dunn, 480 U.S. at 301, 107 S.Ct at 1140.
"[A]reas such as driveways, walkways, or the front door and windows of a home frequently do not carry a reasonable expectation of privacy because they are open to plain view and are properly approachable by any member of the public, unless obvious steps are taken to bar the public...." Id. at 758. In the context of a knock-and-talk, "an officer who approaches the main entrance of a house has a right to be there, just as any member of the public might have." Id. "The back door of a home is not ordinarily understood to be publicly accessible[;]" however, whether an officer is where he has a right to be "is defined by his limited purpose in going to the residence and the nature of the area he has invaded." Id. at 759.
Trooper Shortridge's approach of the back of Martin's home did not compel suppression of the items later seen and seized from inside the home. While it very likely was an invasion of the home's curtilage, from his perspective in the back yard of the home, Trooper Shortridge observed nothing inherently illegal which spurred him to search the residence and seize what he saw. In his testimony, Trooper Shortridge stated that he only observed digital scales inside the home. This item was neither illegal nor indicative of criminal activity; and the record reflects that Trooper Shortidge properly decided not to act based upon this observation. Rather, the officers needed, and later discovered, additional indicia of probable cause prior to searching the home and seizing the evidence for which Martin sought suppression.
II. Entry Into the Residence
Martin next challenges officers' entry into his residence. He claims that officers had neither valid consent nor sufficient exigent circumstances to justify their entry into his home. We address this two-part argument in-turn.
"There are various elements, of course, that can make a search of a person's house 'reasonable' - one of which is consent of the person or his cotenant." Illinois v. Rodriguez, 497 U.S. 177, 183-84, 110 S. Ct. 2793, 2799, 111 L. Ed. 2d 148 (1990). Therefore, though Martin partly bases this challenge on his belief that Trooper Shortridge had neither probable cause nor exigent circumstances justifying entry, the Commonwealth is correct that neither is required if Gamble's consent to Trooper Shortridge's entry was sufficient.
Our analysis is objective: Based on the totality of the circumstances, we must decide whether "the facts available to the officer at the moment warrant a man of reasonable caution in the belief that the consenting party had authority over the premises[.]" Rodriguez, 497 U.S at 189, 110 S. Ct. at 2801(citation and quotation omitted). We ask not whether the third party had actual legal authority to enter or control the residence, but "whether it [was] reasonable to believe that the third party actually lives at, has general access to, and/or possesses mutual use of the residence for most purposes." Commonwealth v. Nourse, 177 S.W.3d 691, 697 (Ky. 2005), citing Rodriguez at 186, 110 S. Ct. at 2800.
In Nourse, our Supreme Court addressed a very similar question. Acting on an anonymous tip, police knocked on an apartment door while serving a warrant. A person police knew to be the subject's girlfriend answered the door in her bathrobe and consented to their entry. As in the present case, other facts regarding the girlfriend's status in the home came to light after officers entered and searched the apartment; hence, these two facts constituted the extent of officers' knowledge at the time they requested the girlfriend's consent.
In concluding that officers reasonably believed they had consent to enter the apartment, the Supreme Court relied heavily upon United States v. Matlock, 415 U.S. 164, 171 n. 7, 94 S. Ct. 988, 993, 39 L. Ed. 2d 242 (1974) (common authority is based upon the premise that any co-inhabitant "has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched."). The Court also relied upon a Sixth Circuit opinion which stated that it is "usually" reasonable for an officer to assume that "someone who comes to the door of a house after the police knock" has authority over the space. United States v. Jenkins, 92 F.3d 430, 437 (6th Cir. 1996), citing Matlock at 170-71, 94 S. Ct. at 992. In Nourse, the Supreme Court portrayed Jenkins as standing for the principle that "in the absence of additional information to the contrary," such an assumption is "generally considered reasonable." 177 S.W.3d at 698.
It was reasonable for Trooper Shortridge to believe that Gamble had authority over the space, and therefore the authority to consent to his entry into it. When he approached Martin's home, Trooper Shortridge knew only that Gamble was Martin's girlfriend and that she was inside the home. He did not know definitively how long they had been in a relationship or whether she was living there - both facts became known only after Trooper Shortridge's entry into the home. However, when Trooper Shortridge approached the front door and called into the home, Gamble was not standing merely on the front porch or in the front room of the home. Rather, Officer Shortridge testified that Gamble entered the front room from "a hallway in the middle of the residence" to answer his knock and to answer his request to enter and speak with her.
It was from these facts that Trooper Shortridge formed his belief that Gamble possessed the requisite authority over the residence to consent to his entry. In addition to the mere fact that Gamble responded to a knock at the door of Martin's residence, these facts were sufficient to render Trooper Shortridge's belief reasonable. Though Martin seems to imply otherwise, subsequent testimony concerning Martin's and Gamble's living arrangements is of no import in our objective analysis of what Trooper Shortridge knew or did not know at the moment he decided to enter the home. Therefore, the trial court was correct in its conclusion that the officers had valid consent to enter the residence without a warrant and without Martin's consent.
Martin also challenges whether Trooper Shortridge and Detective Alcala had sufficient probable cause or exigent circumstances justifying their entry into the residence. Once again, "[t]here are various elements, of course, that can make a search of a person's house 'reasonable' - one of which is consent of the person or his cotenant." Rodriguez, 497 U.S. at 183-84, 110 S. Ct. at 2799. We have already concluded that Trooper Shortridge did not enter the home except upon Gamble's consent and that his decision to do so based upon the information available was reasonable. Therefore, additional probable cause or exigency justifying entry into the home is not required. Consent rendered the warrantless search reasonable.
Nevertheless, circumstances arose which gave rise to probable cause justifying additional investigation after the knock and talk. Upon entering the home with the valid consent of Gamble, and from a position in which he was entitled to stand, Trooper Shortridge immediately smelled a "strong odor of marijuana." He also immediately observed in plain view a marijuana cigarette in an ashtray. See Piercy v. Commonwealth, 303 S.W.3d 492, 498 (Ky. App. 2010) ("Objects exposed to the plain view or smell of officers are not protected by the Fourth Amendment.") (Citation omitted). Coupled with the anonymous tip that Martin was running a marijuana cultivation operation out of the home, Trooper Shortridge's suspicions were reasonably aroused. Once Trooper Shortridge and Detective Alcala were inside the home, Martin confirmed the presence of packaged marijuana in the home. Trooper Shortridge's detour into the other rooms of the home notwithstanding, what he saw and smelled immediately after gaining consent to enter and upon crossing the threshold was sufficient to justify further investigation.
Conclusion
Trooper Shortridge's entry upon the curtilage of the home, purportedly as part of standard procedure for a knock and talk, is troubling. However, given the testimony regarding what Trooper Shortridge saw and did not see, as well as the fact that he eventually entered and searched the home acting on other grounds, the trial court's findings are conclusive, and we agree with its conclusion that the officers' entry into the home was constitutionally valid. Therefore, the order of the Bath Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Matthew W. Boyd
Lexington, Kentucky BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky Jason B. Moore
Assistant Attorney General
Frankfort, Kentucky