Opinion
NO. 2014-CA-000501-MR NO. 2014-CA-000621-MR
06-19-2015
BRANDON LEE COLLINS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE AND JOSEPH WADELL PACE, III APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANTS: Linda Roberts Horsman Department for Public Advocacy Frankfort, Kentucky Counsel for Brandon Lee Collins Steven J. Buck Department for Public Advocacy Frankfort, Kentucky Counsel for Joseph Wadell Pace, III ORAL ARGUMENT FOR APPELLANTS: Steven J. Buck Department for Public Advocacy Frankfort, Kentucky BRIEFS FOR APPELLEE: Jack Conway Attorney General James Harvey Assistant Attorney General Frankfort, Kentucky ORAL ARGUMENT FOR APPELLEE: James Harvey Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE JAMES D. ISHMAEL, JR., JUDGE
ACTION NO. 13-CR-00566-001
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE JAMES D. ISHMAEL, JR., JUDGE
ACTION NO. 13-CR-00566-002
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; D. LAMBERT AND MAZE, JUDGES. MAZE, JUDGE: In this combined appeal, Brandon Lee Collins and Joseph Wadell Pace, III appeal following their conditional pleas of guilty to drug-related charges. Specifically, Collins and Pace appeal on the basis that the Fayette Circuit Court wrongfully denied their respective motions to suppress the fruits of a warrantless search of their apartment.
Though our analysis and reasoning departs from that of the trial court, our ultimate conclusion is the same. The search of Collins and Pace's apartment and the seizure of incriminating evidence violated neither the Fourth Amendment to the United States Constitution nor Section 10 of the Kentucky Constitution. Hence, we affirm.
Background
On April 18, 2013, officers with the Lexington Police Department conducted what officers at the scene called a "protective sweep" and subsequent search pursuant to consent of Apartment 14 at 1854 Augusta Drive. Inside, they found bagged marijuana, drug paraphernalia, a marijuana grow operation, and cocaine. The lease listed Collins and Pace as the apartment's tenants, and police took them into custody. The trial court conducted a suppression hearing following motions by both Collins and Pace. The following facts arose from that hearing.
In April 2013, a homicide occurred during an event at a bowling alley in Lexington, Kentucky. In the days following this event, police received information which gave rise to concerns of retaliation for the recent homicide. Police also received reports of assaults and shots fired near Augusta Drive and Etawa Drive.
On April 18, Sergeant Jared of the Lexington Police Department was on patrol in the vicinity of Augusta Drive when he parked his marked patrol car across from an apartment building at 1854 Augusta Drive. Shortly thereafter, Sergeant Jared observed a Dodge Charger pull into a driveway between 1854 Augusta Drive and a neighboring building. Three individuals got out of the Charger and walked behind the apartment building. At the same time, another group that had been loitering near the front of the building before the Charger arrived walked around the opposite side of the building, indicating that the two groups would converge behind the building. Based on this observation and citing a concern that the groups might engage in violence, Sergeant Jared radioed for additional officers to join him at the scene, and he walked to the back of the apartment building.
Sergeant Jared and other officers encountered several individuals behind and between the apartment buildings. One individual who had been in the Charger and who was clearly under the influence of marijuana pointed toward the back of the building - where Apartment 14 was situated - and told officers that he had just smoked marijuana.
One of the officers who arrived to assist Sergeant Jared was Officer Shepherd of the Lexington Police Department's heroin taskforce. Upon arriving, Officer Shepherd learned from officers and residents that two men had been seen at the back door to Apartment 14, that the occupant of that apartment was not among those outside, and that others had been observed coming from behind the apartment building, two of whom were found to be armed. When officers' knocks on the front door of Apartment 14 went unanswered, Officer Shepherd joined other officers at the back door to the apartment.
To reach the back door of Apartment 14, officers walked through an outside common area between apartment buildings to the rear of 1854 Augusta Drive. There, officers encountered a patio abutting a sliding glass door to the apartment. Officer Shepherd described the patio as follows: "There's a little brick wall probably less than my height when you come around it - when you walk around it . . . you have the patio and then the sliding glass door." Officer Shepherd later clarified that the patio was "not totally enclosed[,]" that the wall was roughly four-and-a-half feet from the sliding glass door, and that there was no gate through which officers had to pass to enter the patio. She stated that officers merely had to walk around the brick wall to get to the sliding glass door.
Upon stepping onto the patio, Officer Shepherd could see into the apartment through the open sliding glass door. To the left of the door, inside the apartment, she observed three individually bagged and tied bags of a green substance she immediately suspected was marijuana. Officer Shepherd and other officers then entered the apartment. At the suppression hearing, she cited the following as the basis for the entry:
We couldn't locate anybody to talk to. We didn't know what was going on. The front door's open. We have - felt that we have subjects that have weapons outside and subjects that were high that came from that apartment. With the retaliation, with the disorders and the shots fired recently, we went in to do a protective sweep to make sure that the - possibly the owner of that apartment wasn't in there injured.
Upon entering and searching the apartment for persons, officers observed the bagged marijuana, drug paraphernalia, a marijuana grow operation inside a closet, and a person hiding under a bed. Officers did not seize any of the items during this protective sweep. Upon removing the person from the apartment and speaking with him, officers learned that he was not a tenant of the apartment.
While police were at the scene, an unidentified person called Collins at his place of employment and informed him that police were at his apartment. Collins arrived home and informed officers that Pace was also a tenant of the apartment. When Pace arrived at the apartment, both he and Collins executed written documents consenting to a search of their apartment. Officers Mirandized Collins and Pace and informed them that they could end the warrantless search at any time. Upon executing a search of the apartment, officers found and seized the aforementioned items along with a small amount of cocaine. Collins later admitted ownership of some marijuana and paraphernalia.
Based on the items seized from the apartment, officers arrested Collins and Pace and charged each with drug-related offenses. Each moved for suppression of the items seized from their apartment on the basis that the initial search of their apartment ran afoul of the Kentucky and United States Constitutions. Specifically, Collins and Pace alleged that no exigent circumstance existed justifying the initial warrantless search and that the circumstances did not permit application of the "plain view" exception. They did not challenge the validity of their consent to the second search.
Immediately following the suppression hearing, the trial court entered extensive verbal Findings of Fact and Conclusions of Law. The court found that the back patio to the apartment was not the curtilage of the apartment where Collins and Pace would have a reasonable expectation of privacy; and therefore it was a legal vantage point from which officers could view the suspected marijuana. The court further found that officers were not in hot pursuit of any suspect nor was there a blood trail or cries for help to answer. Rather, the trial court concluded that the "protective sweep" was valid, based on the "heightened and increased level of concern" stemming from recent violence, threats of retaliation, and other information available to officers.
Accordingly, the trial court overruled the motions to suppress. Collins and Pace later entered conditional pleas of guilty to amended charges. Pursuant to those plea agreements, they now appeal on the sole question of suppression.
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. Second, if the findings are supported by substantial evidence, we will conduct a de novo review to determine whether the trial court's ruling was correct as a matter of law. Id.
Kentucky Rules of Criminal Procedure. --------
Analysis
We begin by reciting the universal constitutional canon that a warrantless search of an individual's home is per se unreasonable. See Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L. Ed. 2d 639 (1980) and Commonwealth v. Ousley, 393 S.W.3d 15, 23 (Ky. 2013) (citation omitted). However, "the exigencies of the situation [may] make the needs of law enforcement so compelling that the warrantless search is objectively reasonable." Michigan v. Fisher, 558 U.S. 45, 47, 130 S.Ct. 546, 175 L. Ed. 2d 410 (2009), quoting Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L. Ed. 2d 290 (1978).
For this reason, exceptions to the presumptive unreasonableness of warrantless searches exist. Among these are the so-called "protective sweep" doctrine recognized under Maryland v. Buie, 494 U.S. 325, 110 S. Ct. 1093, 108 L. Ed. 2d 279 (1990) and Guzman v. Commonwealth, 375 S.W.3d 805, 807 (Ky. 2012); the "emergency aid" exception employed in Mincey and Hawley v. Commonwealth, 435 S.W.3d 61, 67 (Ky. App. 2014); and the "plain view doctrine" outlined in Coolidge v. Brown, 403 U.S. 443, 91 S.Ct. 2022, 29 L. Ed. 2d 564 (1971) and Hazel v. Commonwealth, 833 S.W.2d 831 (Ky. 1992). The parties invoked, either implicitly or expressly, all of these exceptions before the trial court; and we discuss them in reviewing the trial court's decision.
We first address the validity of officers' so-called "protective sweep" of Collins and Pace's apartment prior to obtaining consent to conduct a second, more thorough search. In doing so, we must confront an allegation the Commonwealth makes on appeal: that Collins fails on appeal to allege error by the trial court on the question of justification for the protective sweep. While Collins's brief is almost exclusively devoted to application of the "plain view" doctrine," we nonetheless hold that Collins's arguments are properly before this Court, and that he did not waive them.
I. The "Protective Sweep" and "Emergency Aid" Exceptions
Acknowledging that "[a]n in-home arrest puts the officer at the disadvantage of being on his adversary's 'turf[,]'" the United States Supreme Court has enumerated two types of protective sweeps authorities may execute absent a warrant for the purpose of ensuring officers' safety during an arrest. Buie, 494 U.S. at 333, 110 S.Ct. at 1097-1098. Under the first category, "as an incident to the arrest[,] the officers could, as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be launched." Id. at 334. Under the second category of protective sweep, officers could conduct a more pervasive search, extending beyond the area immediately adjoining the place of arrest; however, unlike the first category, officers must first possess "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." Id. Kentucky's Supreme Court adopted this exception in Guzman.
Kentucky also recognizes the easily distinguishable "emergency aid" exception, the purpose of which "is to allow police officers to assist persons who are seriously injured or threatened with such injury." Mundy v. Commonwealth, 342 S.W.3d 878, 882-83 (Ky. App. 2011) (quotation and citation omitted). Accordingly, officers may enter and search without a warrant when they "reasonably believe that a person within is in need of immediate aid." Mincey, 437 U.S. at 392, 98 S.Ct. at 2413. For purposes of a simple comparison, the "protective sweep" concerns the safety of officers, while the "emergency aid" exception concerns that of an occupant.
The initial entry of officers into Collins and Pace's apartment was a "protective sweep" by misnomer only. It is uncontested that the protective sweep of Collins and Pace's apartment was not incident to their arrest, a vital prerequisite to application of the doctrine. Furthermore, neither Sergeant Jared nor Officer Shepherd cited a perceived threat to officers as a reason for entering the apartment. Rather, Officer Shepherd cited her concern that, given the abundance of firearms at the scene and the threats of violence in recent days, an occupant of the apartment was injured inside. Therefore, though Officer Shepherd, counsel, and others repeatedly refer to officers' initial entry into the apartment as a "protective sweep," the facts and testimony in this case actually implicate the "emergency aid" exception, and we will direct our analysis accordingly.
II. Application of the "Emergency Aid" Exception
A warrantless search - even one made under exigent circumstances such as the medical emergency Officer Shepherd apparently feared existed - must be "strictly circumscribed by the exigencies which justify its initiation[.]" Mincey, 437 U.S. 385, 393, 98 S.Ct. at 2413, quoting Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L. Ed. 2d 889 (1968). Hence, officers must possess "an objectively reasonable basis for believing . . . that a person within [the house] is in need of immediate aid[.]" Fisher, 558 U.S. at 47, 130 S.Ct. at 548 (quotation marks and citations omitted). In considering the reasonableness of the search, courts are not to rely upon an officers' subjective intent or the gravity of the suspected crimes they were investigating when the alleged emergency arose. Id.; see also Bringham City, 547 U.S. at 405-06, 126 S.Ct. at 1948.
We seek guidance for our analysis of the present facts in the application of the emergency aid by other courts in other cases. In Bringham City, the federal Supreme Court found exigent circumstances existed justifying a search where officers could hear a physical altercation occurring inside a home as they approached it on foot. In Fisher, the same Court reached the same conclusion regarding officers who, upon entering a home after a report of a "disturbance," observed "signs of a recent injury, . . . violent behavior[,]" as well as a person "screaming and throwing things." 558 U.S. at 48, 130 S.Ct. at 548-49. Finally, this Court in Hawley held the exception was properly applied where an officer entered a home after detecting a strong odor emanating from the home and after observing items commonly used in the manufacture of methamphetamine. We concluded that the officer's concern as to "whether anyone was inside and subject to injury due to asphyxiation or an explosion[]" was objectively reasonable. 435 S.W.3d at 67.
The circumstances which existed in the above cases are conspicuously absent from the present one. Officer Shepherd stated, "[w]ith the retaliation, with the disorders and the shots fired recently, we went in to do a protective sweep to make sure that the - possibly the owner of that apartment wasn't in there injured." However, she also testified that police knew of no shots fired at that location on that day; they saw no trail of blood; and they heard no shots or cries for help coming from inside the apartment. Sergeant Jared's testimony corroborated this. Officers observed nothing which could constitute an objectively reasonable basis for believing that a person within the apartment required immediate aid. In short, no emergency existed justifying a warrantless entry into the apartment.
III. The "Plain View" Exception
The final basis for the Commonwealth's argument that the initial search of Collins and Pace's apartment was justified is that officers standing outside the back door of the apartment observed three baggies of suspected marijuana in plain view. The facts of the case render this argument just as troublesome for officers' initial entry into the apartment.
"It is well established that under certain circumstances the police may seize evidence in plain view without a warrant. But it is important to keep in mind that, in the vast majority of cases, any evidence seized by the police will be in plain view, at least at the moment of seizure. The problem with the 'plain view' doctrine has been to identify the circumstances in which plain view has legal significance rather than being simply the normal concomitant of any search, legal or illegal." Horton v. California, 496 U.S. 128, 134, 110 S.Ct. 2301, 110 L. Ed. 2d 112 (1990), quoting Coolidge, 403 U.S. at 465, 91 S.Ct. at 2037 (emphasis in original).
Muddying the waters further is the necessary distinction between the implications of an officer's seizure of an item found in plain view and his mere observation of that item. Indeed, if an article is already in plain view, neither its observation nor its seizure would involve any invasion of privacy. Id. at 133-34, citing Arizona v. Hicks, 480 U.S. 321, 325, 105 S.Ct. 2778, 86 L. Ed. 2d 370 (1985). A seizure of the article, however, would obviously invade the owner's possessory interest. Id. at 134 (citations omitted). If "plain view" justifies an exception from an otherwise applicable warrant requirement, therefore, it must be an exception that is addressed to the concerns that are implicated by seizures rather than by searches. Id.
To address these concerns, the federal Supreme Court put three requirements in place for determining whether officers can legally seize items discovered in plain view. Horton at 136-37. Kentucky's Supreme Court adopted the same requirements in Hazel. 833 S.W.2d at 833. For the "plain view" exception to properly apply, "the law enforcement officer must not have violated the Fourteenth Amendment in arriving at the place where the evidence could be plainly viewed." Id. In other words, "the officer must be lawfully located in a place from which the object can be plainly seen[.]" Id. Second, the officer "must have a lawful right of access to the object itself." Id. Third, the "incriminating character" of the object must be "immediately apparent" to the officer. Id., citing Coolidge, 403 U.S. at 466, 91 S.Ct. at 2038.
We address the third of the above factors first, as it is most easily resolved. While we applaud counsel's imagination, we are otherwise unmoved by the argument that trained police officers who observed a green, leafy substance enclosed in small, tied plastic bags should more reasonably have suspected that substance of being catnip rather than marijuana packaged for sale. Notwithstanding that the officers' assumptions were correct, we conclude that the criminal nature of the baggies was immediately and reasonably apparent.
Continuing with the more contested factors surrounding the "plain view" exception, it is apparent from Officer Shepherd's testimony that the bags of marijuana were observable inside the apartment from a position just outside its back door on a patio immediately adjacent to the back door. Collins and Pace argue that Officer Shepherd and other officers were not "lawfully located" on the patio and that the "plain view" exception cannot apply. The trial court disagreed, as do we.
An individual's expectation of privacy and protection under the Fourth Amendment extends, within reason, to the curtilage around his home. Oliver v. United States, 466 U.S. 170, 104 S.Ct. 1735, 80 L. Ed. 2d 214 (1984); see also Quintana v. Commonwealth, 276 S.W.3d 753, 757-58 (Ky. 2008). In determining whether that expectation is reasonable, and hence whether the area in question is indeed protected curtilage, courts look to four factors: the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by. United States v. Dunn, 480 U.S. 294, 301, 107 S. Ct. 1134, 1139, 94 L. Ed. 2d 326 (1987). In short, these factors seek to determine whether the vantage point in question is an "area to which extends the intimate activity associated with the sanctity of a man's home and the privacies of life." Oliver at 170. Collins and Pace's patio was no such area.
The trial court suffered, as do we, from an unfortunate and fatal lack of information regarding the layout, purpose, and public or private nature of the area in question. The only testimony of record revealed that the patio was immediately adjacent to the back door of the apartment; that the patio was accessed from a public walkway behind or between apartment buildings; that the patio was "not totally enclosed" by a wall roughly four-and-a-half feet from the back door; and that officers only had to walk around the wall to step onto the patio - there was no gate. From these limited facts, we conclude that the patio was not so enclosed, so used, or so protected as to provide Collins and Pace with a reasonable expectation of privacy therein. At the very least, given the limited facts available from testimony and the record, we will not pretend that we could improve upon the trial court's conclusion.
Further controversy arises from the question of whether officers had "lawful right of access" to the baggies they saw from the patio. In the absence of an accompanying exigent circumstance justifying warrantless entry, officers were without lawful right of access to the baggies which were located inside the apartment. See Commonwealth v. Hatcher, 199 S.W.3d 124, 126 (Ky. 2006). Hence, officers' initial entry, and mislabeled "protective sweep," of the apartment was not justified under the plain view exception. It was therefore an unreasonable search.
Much more important to our purposes, however, is the question of what evidence was seized during the initial search. It is important to remember that "[t]he plain view doctrine merely reflects an application of the Fourth Amendment's central requirement of reasonableness to the law governing seizures of property." Soldal v. Cook Cnty., Ill., 506 U.S. 56, 66, 113 S.Ct. 538, 546, 121 L. Ed. 2d 450 (1992) (citations and quotations omitted) (emphasis added). The information available from the record unequivocally shows that officers saw, but did not seize, the baggies of marijuana during this initial, unreasonable search. Rather, officers seized the baggies and other incriminating items only when they had Collins and Pace's written consent to search. This fact is significant and dispositive. Seizure of the evidence during the second, more thorough search of the apartment was proper pursuant to the plain view doctrine as officers then had consent to enter and search the apartment.
Our conclusion is only bolstered by the fact that had officers paused and pursued, obtained, and executed a search warrant, they would have inevitably discovered the items seized and used in evidence against Collins and Pace. Sergeant Jared and Officer Shepherd independently testified that had Collins and Pace not consented to a search, they would have sought search warrants based upon what they had seen and heard at the scene to that point, including marijuana bagged, presumably, for trafficking. Therefore, the testimony and evidence of record in this case established "by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means . . . . Dye v. Commonwealth, 411 S.W.3d 227, 238 (Ky. 2013), quoting Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L. Ed. 2d 377 (1991).
Conclusion
Though we do so on bases which diverge from those of the trial court, we agree that the seizure of incriminating evidence found in Collins and Pace's apartment was ultimately reasonable. Though officers' initial entry into the apartment was unreasonable and unfounded among the breath of possible exceptions to the warrant requirement, seizure of the items in question occurred only after officers obtained Collins and Pace's consent to search; whereupon, circumstances arose under which officers' could validly enter the apartment and legally seize the incriminating items in question.
For these reasons, the Fayette Circuit Court was ultimately correct to deny suppression of the evidence seized from the apartment. The judgments of conviction and sentence are affirmed.
ALL CONCUR. BRIEFS FOR APPELLANTS: Linda Roberts Horsman
Department for Public Advocacy
Frankfort, Kentucky
Counsel for Brandon Lee Collins
Steven J. Buck
Department for Public Advocacy
Frankfort, Kentucky
Counsel for Joseph Wadell Pace, III
ORAL ARGUMENT FOR
APPELLANTS:
Steven J. Buck
Department for Public Advocacy
Frankfort, Kentucky
BRIEFS FOR APPELLEE: Jack Conway
Attorney General
James Harvey
Assistant Attorney General
Frankfort, Kentucky
ORAL ARGUMENT FOR
APPELLEE:
James Harvey
Assistant Attorney General
Frankfort, Kentucky