Opinion
NO. 2009-CA-002305-MR
03-21-2014
RODNEY LEE BECKHAM APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Erin Hoffman Yang Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky John Paul Varo Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
ON REMAND FROM SUPREME COURT OF KENTUCKY
NO. 2012-SC-000840-D
APPEAL FROM BOONE CIRCUIT COURT
HONORABLE ANTHONY W. FROHLICH, JUDGE
ACTION NO. 09-CR-00277
OPINION
AFFIRMING
BEFORE: CAPERTON, DIXON AND STUMBO, JUDGES. DIXON, JUDGE: Rodney Lee Beckham appeals a judgment of conviction and sentence rendered by the Boone Circuit Court following his conditional guilty plea. Beckham asserts the court erroneously denied his motion to suppress evidence. In its initial opinion, this Court reversed the order denying suppression, vacated Beckham's conviction, and remanded the case to the trial court. The Kentucky Supreme Court granted discretionary review and vacated and remanded our opinion for further consideration in light of Kentucky v. King, 131 S. Ct. 1849, 179 L. Ed. 2d 865 (2011) and King v. Commonwealth, 386 S.W.3d 119 (Ky. 2012). After careful review, we affirm the judgment of the Boone Circuit Court.
On the evening of April 25, 2009, Deputy Nate Boggs and Deputy Ryan Whalen of the Boone County Sheriff's Department were on bicycle patrol in the Deer Trace trailer park. At approximately 10:20 p.m., the deputies detected the odor of marijuana in the area surrounding a mobile home located at 328 Deer Trace. The deputies stopped in the roadway, approximately thirty feet from the front door of the mobile home, noting its front door was open, but an outer "storm door" was closed. The storm door featured plexi-glass on the bottom half and a screen on the top half. The deputies walked along the eastern and western boundaries of the property, and they became convinced the odor of marijuana was emanating from 328 Deer Trace. The deputies decided to conduct a "knock and talk" to speak with the resident of the trailer about the odor. As they approached the doorway, the deputies noted the odor of marijuana grew "pungent." Appellant Beckham came to the door in response to the deputies' knock. Beckham locked the storm door and spoke to the deputies through the screen. The deputies noted Beckham's eyes appeared bloodshot and dilated. Boggs advised Beckham they detected the strong smell of marijuana coming from the residence. Boggs asked Beckham to step outside, and Beckham refused. Boggs then asked Beckham if they could come inside the trailer. Beckham again refused and told Boggs that he wanted to speak to his attorney. Boggs told Beckham that was okay, but advised Beckham that he would be detained while one of the officers obtained a search warrant. At that point, Beckham turned and fled into the interior of the trailer out of the deputies' sight, causing the deputies to believe Beckham was going to destroy evidence. Boggs kicked in the plexi-glass on the storm door, entered the residence and apprehended Beckham in the living room, where he was stuffing items into his pockets. Whalen conducted a protective sweep of the living room and placed Beckham on the couch. Although the deputies saw marijuana and drug paraphernalia in plain view on the living room table, they detained Beckham and sought a search warrant before searching the residence. After obtaining the search warrant, the deputies discovered additional items of contraband concealed in the residence. Beckham was arrested and later indicted by a Boone County grand jury on charges of trafficking in marijuana (second offense) and possession of drug paraphernalia (second offense).
Beckham moved to suppress the evidence seized from his home, and the court held an evidentiary hearing on July 16, 2009. Both Boggs and Whalen testified at the hearing regarding the circumstances of their warrantless entry into Beckham's residence. The trial court denied the motion to suppress, concluding that the deputies permissibly knocked on Beckham's door to investigate the strong odor of marijuana. The court found the warrantless entry was justified to prevent the imminent destruction of evidence after Beckham fled; further, the court noted that once the deputies apprehended Beckham, they secured the scene and obtained a search warrant. In November 2009, Beckham entered a conditional guilty plea to the charges and was sentenced to one and one-half years' imprisonment.
Beckham appealed the suppression ruling to this Court. We rendered a decision reversing the trial court's denial of the suppression motion, vacating Beckham's conviction, and remanding for further proceedings. Beckham v. Commonwealth, 2009-CA-002305-MR, 2011 WL 1598735 (Apr. 29, 2011). In reversing the circuit court, we relied on King v. Commonwealth, 302 S.W.3d 649, 656 (Ky. 2010), wherein the Kentucky Supreme Court determined the exigent circumstances exception did not apply to the warrantless entry of a residence if it was reasonably foreseeable the officers' own conduct would create the exigency. Shortly after we rendered our opinion, the United States Supreme Court reversed King and remanded the case to the Kentucky Supreme Court. Kentucky v. King, 131 S. Ct. 1849, 179 L. Ed. 2d 865 (2011).
In King, police officers followed a suspect into an apartment building after observing a "buy-bust" operation. King v. Commonwealth, 302 S.W.3d at 651. The officers heard an apartment door slam shut, but did not see which unit the suspect had entered. Id. The officers smelled a strong odor of marijuana emanating from the apartment on the left, which prompted them to knock on the door and announce their presence. Id. After knocking, the officers heard movement inside the apartment. Id. at 651-52. Because the officers believed evidence was about to be destroyed, they forcibly entered the apartment. Id. at 652. Once inside, the officers did not find the initial suspect (who had actually entered the apartment across the hall); instead, the officers found King and two companions, along with evidence of drug trafficking. Id. The trial court denied King's motion to suppress evidence, finding that exigent circumstances justified the warrantless entry to prevent the destruction of evidence, and a panel of this Court affirmed. Id. On discretionary review, the Kentucky Supreme Court reversed, concluding it was reasonably foreseeable, when the officers knocked on the door and announced their presence, the occupants would attempt to destroy evidence. Id. at 656.
The United States Supreme Court rejected the reasonable foreseeability test as an impractical method of evaluating the conduct of police officers who are "forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving." Id. at 1860. The Court emphasized that once an investigation yields probable cause to search a particular location, officers are under no constitutional duty to stop their investigation and immediately seek a search warrant. Id. at 1860-61. The Court explained several legitimate reasons officers might pursue an investigation despite having sufficient evidence to establish probable cause.
The Court stated, "First, the police may wish to speak with the occupants of a dwelling before deciding whether it is worthwhile to seek authorization for a search. They may think that a short and simple conversation may obviate the need to apply for and execute a warrant. Second, the police may want to ask an occupant of the premises for consent to search because doing so is simpler, faster, and less burdensome than applying for a warrant. A consensual search also may result in considerably less inconvenience and embarrassment to the occupants than a search conducted pursuant to a warrant. Third, law enforcement officers may wish to obtain more evidence before submitting what might otherwise be considered a marginal warrant application." Id. at 1860 (internal citations and quotation marks omitted).
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The Court held "that the exigent circumstances rule applies when the police do not gain entry to premises by means of an actual or threatened violation of the Fourth Amendment." Id. at 1862. In reversing the Kentucky Supreme Court, the Court concluded that the officers had not violated or threatened to violate the Fourth Amendment by knocking on King's door and announcing their presence. Id. at 1863. The Court remanded the case to the Kentucky Supreme Court to determine whether exigent circumstances actually existed at the time of the warrantless entry. Id.
In King v. Commonwealth, 386 S.W.3d 119 (Ky. 2012) ("King II"), the Kentucky Supreme Court, on remand, concluded it was not objectively reasonable for the officers to believe evidence was being destroyed, as nothing in the record indicated that the noises described by the officers "were anything more than the occupants preparing to answer the door." Id. at 122-23. The Court held that suppression of the evidence was proper because there must be something more than a "possibility" of the destruction of evidence to justify a warrantless search. Id. at 123.
In the case at bar, the Kentucky Supreme Court granted the Commonwealth's petition for discretionary review. The Court vacated our opinion and remanded the case for further consideration in light of Kentucky v. King and the Court's subsequent decision on remand, King II. With these authorities in mind, we now consider Beckham's appeal.
On appellate review of an order denying a motion to suppress evidence, we first review the trial court's findings of fact under the clearly erroneous standard, and then we review de novo the application of the law to those facts. Welch v. Commonwealth, 149 S.W.3d 407, 409 (Ky. 2004).
In our initial opinion, we concluded the exigency was police-created due to the deputies' decision to conduct a knock and talk at Beckham's residence, despite having probable cause to obtain a warrant, which alerted Beckham to their presence and created the subsequent exigent circumstances relied upon to enter the trailer without a warrant.
As noted above, Kentucky v. King recognizes the investigatory tactics of police officers working in the field, including an officer's legitimate decision to initiate contact with a suspect before seeking a search warrant, whether in an effort to obtain consent to search or gather additional information in furtherance of the investigation. Kentucky v. King, 131 S. Ct. at 1860. Accordingly, in the case at bar, although the deputies had probable cause to support a search warrant affidavit, they were under no constitutional duty to suspend their investigation and seek a warrant, rather than knocking on Beckham's front door. See id. at 1860-61.
Next, we conclude the deputies did not gain entry to the residence by relying on an actual or threatened violation of the Fourth Amendment, which would preclude application of the exigent circumstances rule. See id. at 1862.
The factual findings of the trial court were supported by the testimony of the deputies at the suppression hearing. The deputies opted to make contact with the resident of the trailer in order to further investigate the overwhelming odor of burning marijuana. Boggs advised Beckham of the strong odor, and he asked for consent to enter the residence, which Beckham denied. Beckham also refused Boggs's request to step onto the porch to speak with the officers and stated he wanted to speak to his attorney. Boggs told Beckham that was okay, but the officers would need to detain him while waiting for a search warrant. Boggs's statements were premised on his belief that Beckham was in possession of a controlled substance due to the odor of burning marijuana emanating from the screen door. It is well settled that an officer's baseless threat to secure a warrant may be improperly coercive. U.S. v. White, 979 F.2d 539, 542 (7th Cir. 1992). "When the expressed intention to obtain a warrant is genuine, however, and not merely a pretext to induce submission, it does not vitiate consent." Id. Here, Boggs legitimately advised Beckham that the deputies were going to get a search warrant, and Beckham fled from the officers' sight. We are not persuaded that the deputies' conduct was overreaching or threatening. Neither the trial court's factual findings nor the testimony of record indicated the officers engaged Beckham in an aggressive manner, threatened violence, or attempted to forcibly enter the residence prior to Beckham's flight. After careful review, we believe the deputies engaged in a permissible knock and talk to investigate the smell of marijuana.
Finally, we consider the applicability of the exigent circumstances rule. "It is a 'basic principle of Fourth Amendment law' that searches and seizures inside a home without a warrant are presumptively unreasonable." Payton v. New York, 445 U.S. 573, 586, 100 S. Ct. 1371, 1380, 63 L. Ed. 2d 639 (1980). "Absent exigent circumstances, law enforcement officers may not enter an individual's private residence in order to conduct a warrantless search." Commonwealth v. McManus, 107 S.W.3d 175, 177 (Ky. 2003). "Destruction of evidence is a recognized exigent circumstance creating an exception to the warrant requirement." Posey v. Commonwealth, 185 S.W.3d 170, 173 (Ky. 2006).
While the officers were speaking to Beckham about the smell of marijuana and their intent to obtain a search warrant, Beckham turned and ran from the officers' sight. Boggs described Beckham's movements as "furtive," and both officers agreed that they thought Beckham ran to destroy evidence. "Where officers have probable cause to believe that a crime has occurred and that evidence from that crime is in imminent danger of being destroyed, it is reasonable for law enforcement officers to secure the place where the evidence is located in order to prevent its imminent destruction." Id. We conclude that Beckham's decision to run created an exigency that evidence was about to be destroyed; accordingly, the deputies' warrantless entry was permissible to secure Beckham and preserve the scene until a search warrant was obtained. Id. The trial court properly denied Beckham's motion to suppress.
For the reasons stated herein, we affirm the judgment of the Boone Circuit Court.
CAPERTON, JUDGE, CONCURS.
STUMBO, JUDGE, DISSENTS. BRIEFS FOR APPELLANT: Erin Hoffman Yang
Assistant Public Advocate
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
John Paul Varo
Assistant Attorney General
Frankfort, Kentucky