Opinion
NO. 2015-CA-001352-MR
05-26-2017
COMMONWEALTH OF KENTUCKY APPELLANT v. CHAD EDWARD TIPTON APPELLEE
BRIEFS FOR APPELLANT: Jack Conway Attorney General of Kentucky Bryan D. Morrow Assistant Attorney General Frankfort, Kentucky BRIEF FOR APPELLEE: Paul Blaine Hamilton Bardstown, Kentucky
NOT TO BE PUBLISHED APPEAL FROM NELSON CIRCUIT COURT
HONORABLE JOHN DAVID SEAY, JUDGE
ACTION NO. 14-CR-00266 OPINION
AFFIRMING
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BEFORE: J. LAMBERT, TAYLOR AND THOMPSON, JUDGES. THOMPSON, JUDGE: The Commonwealth of Kentucky appeals from the Nelson Circuit Court's interlocutory orders granting Chad Edward Tipton's motion to suppress and denying the Commonwealth's motion to amend the circuit court's factual findings and judgment granting the motion to suppress. After hearing testimony at the suppression hearing, the circuit court determined that while a social worker had consent to enter Tipton's home, that consent did not extend to police officers who entered later and exigent circumstances were not present. The circuit court ruled it was improper for evidence discovered to form a basis for a search warrant.
On appeal, the Commonwealth argues the motion to suppress was improperly granted because: (1) Tipton's consent for the social worker to enter acted as consent for the officers to enter; (2) the officers lawfully entered based on exigent circumstances; (3) if the entry was unlawful, the search warrant contained probable cause based on the tip to the Cabinet for Health and Family Services, information from the men who exited the home prior to the officers' entry and an officer's observations at a burn pile; and (4) if the search warrant was issued without probable cause, the officers acted properly by relying on it.
Tipton was indicted for (1) manufacturing methamphetamine, first offense; (2) complicity to manufacture methamphetamine, first offense; and (3) being a persistent felony offender, second degree. On January 9, 2015, Tipton entered a plea of guilty in exchange for the Commonwealth recommending a sentence of ten-years on complicity to manufacture methamphetamine and dismissal of the other counts. Before final sentencing, the circuit court allowed Tipton to withdraw his guilty plea.
Tipton filed a motion to suppress. At the hearing on May 28, 2015, the circuit court heard testimony from social worker Megan Couch, Detective McKenzie Mattingly and Deputy Mike Watts. The witnesses testified consistently.
Mattingly and Watts (the officers) of the Nelson County Sheriff's Office drug task force were aware of two anonymous reports that methamphetamine was being manufactured at Tipton's home in Bardstown, Kentucky. The first report was received by dispatch on October 4, 2014, and the officers did not know if any action had been taken in regard to this report. The second report was received by the Cabinet and relayed to Couch on October 6, 2014. Although Mattingly believed at the time that the Cabinet knew who made the report, this was not correct.
The Cabinet had an open case on the family for neglect due to domestic violence between Tipton and his girlfriend, Nicole Baum, in front of their two daughters and Baum's son. Previously, the Cabinet received and investigated multiple allegations regarding domestic violence and drug abuse. Tipton and Baum had a case plan to follow, which included completing drug abuse assessments, mandatory drug testing and agreeing to allow home visits.
Couch followed standard Cabinet protocol by requesting that police accompany her to the home because of the reported methamphetamine manufacturing. She was not able to visit the home on the day the Cabinet received the report because the officers were not available to accompany her until the next day.
On the morning of October 7, 2014, Couch and the officers met and approached the home together. While Couch approached the side door that was used as the main door and located off a deck, Mattingly stayed between the front and side doors and Watts remained by the back door. Both officers were trying to look into the windows and listen for any conversation inside. Watts could hear talking but could not make out the words.
Couch testified that when she knocked at the door, Tipton asked who it was and then asked her to wait while he got fully dressed. While she was waiting, two men exited. Shortly after they exited, Tipton told her to come in. She did not wait for or consult with the officers before entering.
Tipton opened the door and entered through the kitchen. Tipton then walked from the kitchen into the living room. Couch never told Tipton she had the police with her and Tipton could not see the officers from his vantage point.
Couch observed a messy home and the two young girls in the living room. Tipton told her the boy was asleep in his and Baum's bedroom. She addressed the allegations with Tipton but did not look around the home. During her visit, she never went beyond the living room.
While Couch was inside, Mattingly and Watts detained the men who exited the home. The officers asked the men if they had any drugs or weapons and then were given consent to search the men.
The officers found marijuana and drug paraphernalia on the first man and a foil "meth boat" which contained traces of methamphetamine on the second man. The second man also admitted to recently smoking methamphetamine. They summoned a uniformed officer to take charge of the men.
A meth boat is a folded piece of aluminum foil used to smoke methamphetamine. The methamphetamine is placed inside the foil by the crease and then a heat source, usually a lighter, is held up to the bottom of the foil to convert the methamphetamine into smoke that can be inhaled through a straw. Used meth boats will be blackened on the outside and will contain trace amounts of methamphetamine inside the foil. --------
About five minutes after Couch entered the home, Mattingly came inside through the open side door. He had not seen Couch enter the home earlier and entered the home to check on her. He did not ask permission from Tipton before entering the home. Mattingly explained he was in the house for Couch's safety because of the methamphetamine manufacturing report.
When the boy woke up, Couch took him outside to the deck and interviewed him. He did not say anything that incriminated Tipton.
While Couch was outside, Mattingly asked Tipton if he could search the home. Tipton refused, stating only Baum was on the lease. Mattingly asked if anyone else was in the home and Tipton said "no." Mattingly asked Tipton if he could check to see if anyone else was in the home and Tipton said "no" again.
Three doors off the living room led to two bedrooms and a bathroom. Mattingly testified that he did not know how long he and Couch were going to be in the home, so he checked the other rooms for their safety. Mattingly approached a closed door that was behind him and identified as the boy's bedroom. Tipton appeared nervous and told him that he did not want him in there. Tipton may have told him the door was locked but when Mattingly checked it was not. Mattingly opened the door and glanced inside. He saw a haze, like smoke, with a chemical odor he could not identify and a bottle of table salt on the floor in the corner. The salt container seemed out of place to him. The bedroom did not have a bed and only had a chair in it. He did not enter the room. After glancing around for two to three seconds, he shut the door.
Mattingly also looked in the other bedroom, identified as Baum's and Tipton's room, and the bathroom. It took less than a minute to look at the other rooms. He entered the other bedroom to make sure no one was hiding on the other side of the bed. He saw nothing notable in these rooms.
After about ten minutes, Couch finished interviewing the boy and they came back inside. When they came inside, everyone was in the living room.
Mattingly brought Watts inside to see if he could convince Tipton to consent to a search because Tipton and Watts knew each other from being former neighbors. He also tried to explain that Tipton could authorize a search without being on the lease. Tipton continued to refuse consent for a search.
The officers decided to ask Baum to consent to a search of the home. Another officer picked her up from work and brought her to the home. When Baum arrived, she also refused consent.
Mattingly and Watts decided Mattingly would leave to apply for a search warrant while Watts held the scene. When Mattingly left, Couch and Watts remained in the home.
Watts and Tipton had a friendly conversation while waiting for Mattingly to return. Tipton complained that he was having trouble with his washing machine draining and thought it was related to a pipe in his back yard. Watts told him it sounded like a discharge pipe and suggested the problem could be solved by using a plumber's snake to clean out the line. Tipton asked Watts if he would look at the pipe.
Watts went to look at the pipe in the back yard and noticed a burn pile. The burn pile was about fifteen to twenty feet away from the pipe. Watts noticed a Coleman fuel can and a shell/frame of a washing machine next to the burn pile.
Watts thought the burn pile was suspicious because Bardstown has mandatory garbage pick-up and he knew from his training and experience that methamphetamine manufacturers often dispose of evidence by burning it. He walked up to the burn pile and observed spent lithium battery casings and folded pieces of aluminum foil that he believed were meth boats.
The burn pile was located about two-thirds of the way back in the yard, about 150 to 200 feet from the deck on which the side door was located and could be viewed from the deck. The suspicious contents of the burn pile could not been seen from the deck or from the pipe in the back yard. The back yard was surrounded by shrubs and may have been fenced.
While Mattingly was preparing the search warrant affidavit, Watts called him about the burn pile he observed in the back yard and Mattingly added this information to the affidavit.
The affidavit for the search warrant contained information about the anonymous report to the Cabinet, the evidence obtained from the two men who were searched outside the home, Mattingly's observations of the suspicious items in the bedroom and Watts's observations about the contents of the burn pile. The search warrant was approved.
After executing the search warrant, a number of incriminating items were found in the boy's room. These included an inactive one-step methamphetamine lab rolled up in a towel behind a chest of drawers, coffee filters, drain cleaner, salt and funnels.
Following the testimony, Tipton argued the evidence should be suppressed because Mattingly entered the home not to protect Couch, but to investigate a crime without Tipton's consent. He argued if Couch was in danger, the officers would have entered with her. He further argued there were no exigent circumstances and Watts's search stemmed from his illegal presence in the home. Because Couch never entered any other rooms, there was no need for the officers to do so. Tipton argued even if he consented to Watts viewing the pipe, he did not consent to Watts approaching the burn pile and nothing incriminating about it could be viewed from the pipe. He argued everything besides the items found on the two suspects who exited the home needed to be suppressed as the fruit of the poisonous tree.
The Commonwealth argued the officers had the right to go into the home to ensure the safety of Couch and the children in light of the report about manufacturing of methamphetamine in the home and were authorized to do a protective sweep to make sure there was no one else in the home and there was not an active methamphetamine lab. The Commonwealth further argued Tipton consented to Watts's entry into the backyard and from his vantage point by the pipe he was able to see both the burn pile and the Coleman fuel container, which was suspicious enough for him to approach closer and see the incriminating items. Finally, the Commonwealth argued probable cause was satisfied even if the items observed inside the home and in the burn pile were not included in the warrant affidavit.
The circuit court ruled that Couch had consent to enter the home because Tipton invited her in and because Tipton authorized the Cabinet to conduct home visits. However, the circuit court ruled that the officers did not have consent to enter. Couch did not announce them, they did not enter with her and they did not conduct their safety sweep when they first entered the home. Additionally, consent was never sought or gained for either of the officers to enter on their own and Tipton did not know they were present until they entered his home.
The circuit court found that because the officers failed to initially accompany Couch into the home, exigent circumstances did not exist; it was not persuasive that Mattingly was acting to ensure Couch's safety when he let her enter on her own. There would have been no need to enter to prevent the destruction of evidence had Mattingly not entered the home without a warrant.
The circuit court found the consent Watts obtained from Tipton to visit the back yard was a sufficient act of free will to purge the taint of the initial illegal search. However, the information in the search warrant regarding the men detained who left the home, Watts's observations in the back yard and the anonymous tip to the Cabinet were not sufficient for a finding of probable cause to issue the search warrant.
The Commonwealth filed a motion for the circuit court to amend its factual findings and judgment, pursuant to Kentucky Rules of Civil Procedure (CR) 52.02. The Commonwealth argued the suppressed evidence should have been admitted because the officers accurately reported the information they had in seeking the warrant and because the warrant was granted, the evidence found pursuant to it should have been admitted. The circuit court denied the motion, determining under these circumstances the warrant was not sufficient to support the admission of evidence when the officers who obtained and carried out the search warrant were the same officers who illegally entered the residence.
The Commonwealth appealed. Pursuant to Kentucky Revised Statutes (KRS) 22A.020(4), the Commonwealth is authorized to appeal from the circuit court's interlocutory order granting the motion to suppress and order denying the motion to amend. Parker v. Commonwealth, 440 S.W.3d 381, 383-85 (Ky. 2014).
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.Commonwealth v. Neal, 84 S.W.3d 920, 923 (Ky.App. 2002) (footnotes omitted).
Pursuant to the Fourth Amendment of the United States Constitution and Section Ten of the Kentucky Constitution, citizens are protected from unreasonable searches and seizures without a warrant. Hallum v. Commonwealth, 219 S.W.3d 216, 221 (Ky.App. 2007). This right is heightened when it comes to a person's own home. Neal, 84 S.W.3d at 923. A warrantless search is unreasonable unless it falls within one of the exceptions to the warrant requirement, which include consent to search or the presence of exigent circumstances. Hallum, 219 S.W.3d at 221. The government bears the burden of proof to show that its search was legal pursuant to one of these exceptions. Neal, 84 S.W.3d at 923; Commonwealth v. McManus, 107 S.W.3d 175, 177 (Ky. 2003). Without consent, police may not conduct a warrantless search of a home without both probable cause and exigent circumstances. King v. Commonwealth, 386 S.W.3d 119, 122 (Ky. 2012).
Hallum is instructive in clarifying when a warrantless search by police officers accompanying a social worker on a home visit is legal due to consent or exigent circumstances. In Hallum, a social worker was accompanied on a home visit by police. She explained why she was there and why the police were with her, before the accused told them to "come on in." The social worker then told the accused that she would have to conduct a room-by-room check as required by statute where there was evidence of hazardous health conditions in a home occupied by children under age three (in that case a spliced cord taking electricity from another home). The accused originally refused to allow her to enter one bedroom saying it was only being used for storage, but after the social worker explained why she had to do so, the accused told her "fine then, go ahead." An officer testified he accompanied the social worker into the bedroom to protect her from unknown hidden persons who could harm her. While the social worker was looking through the bedroom, the officer discovered incriminating evidence. Hallum, 219 S.W.3d at 218-19.
The trial court denied the motion to suppress, finding that the accused consented to the entry by police officers and while inside the police officers' conduct was reasonable. On appeal, the accused did not contest that he gave the officers permission to make their initial entry into the home, but only challenged whether the officer could lawfully search the bedroom. The Court of Appeals affirmed the denial of the motion to suppress, explaining "even if we were to assume, arguendo, that it was unreasonable for the detective to enter the bedroom and that he did so without Appellant's consent, exigent circumstances were present, so the entry was nevertheless proper." Id. at 222.
Tipton's situation is distinguishable. The officers were never given consent to enter Tipton's home, they did not accompany the social worker inside and Tipton did not know the officers were present until Mattingly entered his home later. Additionally, Mattingly did not engage in a protective sweep upon first entering and did not accompany Couch in any statutorily required inspection of the home. Couch did not inspect the home and never ventured beyond the kitchen and living room. Tipton unequivocally refused to consent to a search of the other rooms and Mattingly waited until Couch was out of the home before entering the other rooms over Tipton's objections. Under these circumstances, the circuit court was entitled to determine that there was no consent or exigent circumstances to justify a search.
Generally, evidence obtained through an illegal search is inadmissible against an accused, pursuant to the exclusionary rule. Horn v. Commonwealth, 240 S.W.3d 665, 669 (Ky.App. 2007). In Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), the United States Supreme Court explained why statements made pursuant to an illegal arrest should be suppressed under the exclusionary rule as fruit of the poisonous tree:
[T]his Court held nearly half a century ago that evidence seized during an unlawful search could not constitute proof against the victim of the search. The exclusionary prohibition extends as well to the indirect as the direct products of such invasions. Mr. Justice Holmes, speaking for the Court in [Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 183, 64 L.Ed. 319 (1920)], in holding that the Government might not make use of information obtained during an unlawful search to subpoena from the victims the very documents illegally viewed, expressed succinctly the policy of the broad exclusionary rule:
Id. at 484-85, 83 S.Ct. at 416 (internal quotations omitted).The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all. Of course this does not mean that the facts thus obtained become sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others, but the knowledge gained by the Government's own wrong cannot be used by it in the way proposed.
The independent source exception to the exclusionary rule alluded to in Silverthorne Lumber Co. is further explained in Horn, 240 S.W.3d at 669 (internal citation omitted):
[I]t is well established that evidence is not to be excluded if the connection between the illegal police conduct and the discovery and seizure of the evidence is so attenuated as to dissipate the taint of the illegal police conduct.
Essentially, if the police discovered the subject evidence from an "independent source," unrelated to their illegal conduct, the evidence can be admitted against a defendant despite his invocation of the exclusionary rule.
The independent source exception does not aid the Commonwealth here because evidence uncovered during the illegal search was relied upon by Mattingly in obtaining the warrant. Compare with Wilson v. Commonwealth, 37 S.W.3d 746, 748-50 (Ky. 2001) (determining information obtained pursuant to surveillance instigated by neighbors' complaints and an anonymous tip combined with evidence found pursuant to a lawful traffic stop sufficiently attenuated search warrant issued from illegally obtained telephone records); Horn, 240 S.W.3d at 670 (determining confidential informant's information obtained prior to an illegal search was an appropriate independent source for the issuance of a search warrant). Because the warrant would be insufficient without this illegally obtained information, the warrant should not have been issued and the evidence uncovered pursuant to it was properly suppressed as fruit of the poisonous tree.
Accordingly, we affirm the Nelson Circuit Court's orders granting Tipton's motion to suppress and denying the Commonwealth's motion to amend.
ALL CONCUR. BRIEFS FOR APPELLANT: Jack Conway
Attorney General of Kentucky Bryan D. Morrow
Assistant Attorney General
Frankfort, Kentucky BRIEF FOR APPELLEE: Paul Blaine Hamilton
Bardstown, Kentucky