Opinion
NO. 2012-CA-001723-MR NO. 2012-CA-001761-MR
05-09-2014
JENNIFER MORRIS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE BRAD MORRIS APPELANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT JENNIFER MORRIS: Gene Lewter Frankfort, Kentucky BRIEFS FOR APPELLANT BRAD MORRIS: Steven N. Howe Frankfort, Kentucky BRIEF FOR APPELLEES: Jack Conway Attorney General of Kentucky David W. Barr Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM HARRISON CIRCUIT COURT
HONORABLE JAY DELANEY, JUDGE
ACTION NO. 12-CR-00007
AND
APPEAL FROM HARRISON CIRCUIT COURT
HONORABLE JAY DELANEY, JUDGE
ACTION NO. 12-CR-00006
OPINION
AFFIRMING
BEFORE: LAMBERT, TAYLOR, AND VANMETER, JUDGES. VANMETER, JUDGE: Bradford "Brad" Morris and Jennifer Morris appeal from the orders of the Harrison Circuit Court which denied their individual motions to suppress evidence. For the following reasons, we affirm.
On October 28, 2011, Kentucky State Troopers Allen, Moore and Hall were attempting to serve a fugitive arrest warrant on Brad based on a tip that Brad might be staying in a camper located inside a red barn on Fields Lane in Harrison County. The troopers located the barn and attempted to knock and shout to get the attention of any inhabitants, but the noise could not be heard over the sound of a generator running inside the barn.
The troopers were able to see inside the barn through a window, and noticed the camper inside. Trooper Allen testified that he slid open the barn door, allowing Trooper Hall to enter. Trooper Hall turned off the generator and proceeded to knock on the door of the camper. Trooper Hall testified that he could see feet on a bed through the camper window, and he identified Jennifer as the person he had seen on the bed when she answered the door. Jennifer was ordered to exit the camper, and was placed under arrest when she admitted that there were bench warrants out for her arrest. When asked, Jennifer told the troopers that Brad was inside the camper.
The troopers called into the camper, ordering Brad to exit. He came to the door and was immediately handcuffed and arrested. Brad asked the troopers if he could go inside to retrieve his jacket, but Trooper Hall told him that he would not be permitted to reenter the camper, and that the troopers would get his jacket for him. Brad did not respond to Trooper Hall's offer to retrieve the jacket, nor did he object to the troopers entering the camper.
When Troopers Hall and Moore entered the camper to retrieve Brad's jacket, they saw a bag containing a green leafy substance believed to be marijuana lying on the bed in plain view. Thereafter, Brad expressly refused to consent to a full search of the camper. Trooper Moore then obtained a search warrant to search the camper. The subsequent search revealed three packages of marijuana and an "electric Proctor silex grinder with white powder residue."
Brad and Jennifer were each indicted by the Harrison Circuit Court on charges of manufacturing methamphetamine, second or greater offense, possession of marijuana and persistent felony offender first degree ("PFO1"). They each filed motions to suppress the evidence recovered, claiming that the warrantless search of the barn and camper was unlawful and no exception to the warrant requirement applied. Following a joint suppression hearing on the allegedly illegal search, the trial court denied their motions on grounds that neither Brad nor Jennifer had standing to challenge the search. In the order denying Brad's motion, the trial court specifically held:
The testimony at the hearing was that the barn was possibly owned by the family of a person that the Defendant's mother had some relationship with. There was no testimony that the Defendant or Jennifer Morris had any interest in the property. Furthermore, there was no testimony as to how they came to be present on the property. The Court does not have any information as to how long they had been there, whether they were invited, or what level of control they had over the property. Therefore, the Court finds that the Defendant has failed to establish that he had any legitimate expectation of privacy as to the barn, and consequently lacks standing to contest the police entry thereto.The trial court further held that Brad consented to the search of the camper when he did not object or respond in any way to the trooper's statement that he would retrieve Brad's jacket for him.
Brad and Jennifer both entered conditional guilty pleas to manufacturing methamphetamine, first offense, and possession of marijuana, with the PFO1 charge dismissed. Jennifer was sentenced to 13 years in prison on the manufacturing methamphetamine charge and 45 days on the marijuana charge, to run concurrently. Brad was sentenced to 15 years on the manufacturing methamphetamine charge and 45 days on the marijuana charge, also to run concurrently.
Brad and Jennifer appeal from the denial of their motions to suppress. First, they argue that they had a reasonable expectation of privacy within the barn, so the troopers' entrance therein without a warrant constituted an illegal search, and thus all evidence discovered as a result of that search should be suppressed. They further maintain that Brad did not consent to the troopers entering the camper, and the warrantless search of the camper was therefore illegal.
In reviewing a trial court's denial of a motion to suppress,
the court applies the two-step process adopted in Adcock v. Commonwealth [967 S.W.2d 6 (Ky. 1998)]: first, the court reviews the trial court's findings of fact under a clearly erroneous standard, pursuant to which the findings will be conclusive if they are supported by substantial evidence, then the court conducts a de novo review of the trial court's application of the law to the facts to determine whether its decision was correct as a matter of law.Smith v. Commonwealth, 410 S.W.3d 160, 164 (Ky. 2013).
With respect to Brad and Jennifer's first claim that the trial court erroneously held that they lacked standing to contest police entry into the barn, we disagree. A defendant bears the burden of establishing his standing to challenge a search under the Fourth Amendment. Ordway v. Commonwealth, 352 S.W.3d 584, 592 (Ky. 2011). "That burden requires proof that the defendant had a legitimate expectation of privacy in the premises." Id. In so proving, "[t]he defendant must satisfy a two-part test: 1) whether he manifested a subjective expectation of privacy in the object of the challenged search; and 2) whether society is prepared to recognize that expectation as legitimate." U.S. v. Sangineto-Miranda, 859 F.2d 1501, 1510 (6th Cir. 1988).
As the trial court noted, no evidence was provided as to how Brad and Jennifer came to be in the barn or what interest or status they held on the property. They presented no witnesses or evidence; the only evidence of their control over the barn is the fact that the barn door was either partially or wholly closed. Brad and Jennifer's reliance on the troopers' testimony that the barn was owned by the family of a person that Brad's mother was living with is insufficient to prove that Brad and Jennifer had permission or any right to be in the barn or on the property. Since Brad and Jennifer failed to establish they had a reasonable expectation of privacy in the barn, the trial court correctly held that they lacked standing to contest the entry and search of the barn.
Next, Brad and Jennifer contend that the troopers illegally entered the camper without the consent of either inhabitant and, therefore, all evidence discovered inside the camper should have been suppressed. Jennifer and Brad contend that Brad's silence following the trooper's offer to retrieve Brad's jacket did not constitute consent. We disagree. "[A]ll searches without a warrant are unreasonable unless it can be shown that they come within one of the exceptions to the rule that a search must be made pursuant to a valid warrant. Consent is one of the exceptions to the requirement for a warrant." Cook v. Commonwealth, 826 S.W.2d 329, 331 (Ky. 1992) (internal citations omitted). Consent may be inferred through the nonverbal conduct of a defendant, such as silence and/or acquiescence. Piercy v. Commonwealth, 303 S.W.3d 492 (Ky. App. 2010). Here, Brad did not decline the trooper's offer, nor did he object or voice his disapproval in any way. Jennifer also did not object to the trooper's entry into the camper. We believe their conduct constitutes consent and since the evidence was found in plain view, the trial court properly declined to suppress it.
Brad further argues the barn was within the curtilage of the camper as defined by the court in Quintana v. Commonwealth, 276 S.W.3d 753 (Ky. 2008), and therefore should be considered part of the home itself. Brad also argues the troopers violated the "knock and talk" procedure described in Quintana, so all evidence obtained following that violation should have been suppressed. Lastly, Brad contends that the search warrant ultimately obtained to search the camper was invalid as a result of tainted evidence contained in the affidavit, and once the tainted evidence is excised, the affidavit does not support probable cause. However, Brad did not raise these issues before the trial court, and we therefore decline to address them on appeal. See Reg'l Jail Auth. v. Tackett, 770 S.W.2d 225, 228 (Ky. 1989) (holding if the trial court did not have opportunity to decide an issue, then no potential error exists for an appellate court to review).
Jennifer also argues that the barn is part of the curtilage of the camper, and therefore should not have been searched without a warrant or an exception to the warrant requirement. Jennifer did raise this issue before the trial court by citing United States v. Dunn, 480 U.S. 294, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987), but this argument is subsumed by the fact that Jennifer did not have standing to challenge the search of the barn. Without standing, and no reasonable expectation of privacy, we need not reach the issue of curtilage
The orders of the Harrison Circuit Court are affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT
JENNIFER MORRIS:
Gene Lewter
Frankfort, Kentucky
BRIEFS FOR APPELLANT BRAD MORRIS: Steven N. Howe Frankfort, Kentucky BRIEF FOR APPELLEES: Jack Conway
Attorney General of Kentucky
David W. Barr
Assistant Attorney General
Frankfort, Kentucky