Opinion
NO. 2014-CA-002047-MR
04-15-2016
JASON ANTHONY CAMPBELL APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Samuel N. Potter Assistant Public Advocate Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Julie Scott Jernigan Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM MUHLENBERG CIRCUIT COURT
HONORABLE BRIAN WIGGINS, JUDGE
ACTION NO. 14-CR-00194 OPINION
AFFIRMING BEFORE: KRAMER, TAYLOR AND THOMPSON, JUDGES. THOMPSON, JUDGE: Jason Anthony Campbell entered guilty pleas to trafficking in a controlled substance, first degree, or by complicity, possession of drug paraphernalia, or by complicity and possession of marijuana, less than eight ounces, or by complicity. He was sentenced to seven-years' imprisonment for the trafficking conviction, twelve months for the possession of drug paraphernalia conviction, and forty-five days for the possession of marijuana conviction. The sole issue presented on appeal is whether the search warrant affidavit upon which a search warrant was issued to search his residence provided probable cause to issue the warrant. We conclude that under the totality of circumstances, the affidavit was sufficient.
In the early morning on September 20, 2014, Morgantown Police Officer James Embry stopped a vehicle operated by David Couch and found several baggies of methamphetamine in the vehicle. Couch was later questioned by Detective Troy Gibson with the drug task force. Couch informed Detective Gibson he purchased the drugs and provided an address for the property where he made the purchase. Couch also indentified the seller as Jason Jarvis. Officers went to the address provided by Couch and verified the property was as Couch described. The substance seized from Couch tested positive for methamphetamine.
Detective Gibson met with the county attorney and presented a search warrant signed by Gibson which was then presented to the district court at 7:40 a.m. that same morning. The search warrant stated that Detective Gibson had been investigating illegal drug activities in Muhlenberg County and he was contacted earlier that same morning by Officer Embry after stopping Couch and finding suspected methamphetamine. He further stated that a field test of the substance seized tested positive for methamphetamine. The affidavit then relayed the information provided by Couch:
After advising David E. Couch of his Miranda rights, Affiant received a detailed statement from suspect that indicated that he had recently purchased the
methamphetamine earlier that day at approximately 1:00 a.m. from Jason G. Jarvis, aka "Soup". Suspect, David E. Couch, gave a detailed explanation of the residence, including the amount of methamphetamine being held by Jason "Soup" Jarvis. Affiant cooberated David Couch's statement by driving to the residence and confirming Couch's description as being accurate. Based on the foregoing, Affiant has reason to believe that Jason G. Jarvis, aka "Soup" now has or is in possession of methamphetamine.
The search warrant was issued and executed at the address provided by Couch where the officers encountered Campbell and Danielle Wellbourne. A search of the residence revealed a handgun, $1,294, digital scales, 34 grams of crystal methamphetamine, marijuana, and other drug paraphernalia.
Campbell filed a motion to suppress the evidence seized. The trial court conducted a suppression hearing at which Detective Gibson acknowledged he did not previously know Couch and was unaware of any prior relationship between Campbell and Couch. He was also unaware that Couch was a convicted felon but stated that the knowledge would not have affected his handling of Campbell's case.
Campbell did not present any evidence and did not dispute the testimony provided by the Commonwealth. He argued that based on the facts presented by the Commonwealth, the affidavit was insufficient to establish probable cause for the warrant to issue.
The trial court orally denied the motion and, the same day, Campbell entered his conditional guilty plea. The trial court later issued detailed written findings and conclusions. After Campbell was sentenced, he filed this appeal.
Campbell argues the search warrant was unconstitutionally issued because it was not supported by probable cause. Specifically, he contends the affidavit did not establish probable cause because Detective Gibson did not perform a sufficient investigation to corroborate the information provided. We disagree.
To satisfy the Fourth Amendment, search warrants must be supported by probable cause. Minks v. Commonwealth, 427 S.W.3d 802, 810 (Ky. 2014). In Beemer v. Commonwealth, 665 S.W.2d 912, 914 (Ky. 1984), Kentucky adopted the totality of the circumstances approach adopted by the United States Supreme Court in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), to determine whether probable cause exists. As described in Gates, probable cause is a "practical, commonsense decision" that "given all the circumstances set forth in the affidavit" there is "a fair probability that contraband or evidence of a crime will be found in a particular place." Gates, 462 U.S. at 238, 103 S.Ct. at 2332. "It is the duty of the judicial officer to issue or deny the warrant based solely on the facts contained within the four corners of the affidavit." Crayton v. Commonwealth, 846 S.W.2d 684, 689 (Ky. 1992).
In Commonwealth v. Pride, 302 S.W.3d 43, 49 (Ky. 2010), the Court set forth a two-step appellate review process of a suppression hearing ruling regarding the constitutional sufficiency of a search warrant: "First, review the factual findings of the circuit judge to see if they are supported by substantial evidence . . . and then review the ruling on the motion to suppress de novo to see whether the decision was correct as a matter of law." There is no dispute as to the facts presented by the Commonwealth or as found by the circuit court. The question is whether the decision that the facts stated in Detective Gibson's affidavit were sufficient to establish probable cause upon which to issue the search warrant was correct as a matter of law.
While an informant's veracity, reliability, and basis of knowledge are all "relevant considerations in the totality of the circumstances analysis," they are not conclusive and "a deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability." Gates, 462 U.S. at 233, 103 S.Ct. at 2329. In making a probable cause determination there must be "a balanced assessment" of the relative indicia of reliability accompanying an informant's tip. Id. at 234, 103 S.Ct. at 2330. "Typically, a bare and uncorroborated tip received from a confidential informant, without more, would be insufficient to establish probable cause for a search warrant." Lovett v. Commonwealth, 103 S.W.3d 72, 78 (Ky. 2003).
However, further investigation is not always required when the informant is known and the indicia of reliability heightened. "[A]n explicit and detailed description of alleged wrongdoing, along with a statement that the event was observed first-hand, entitles the informant's tip to greater weight than might otherwise be the case." Id. (quoting Gates, 462 U.S. at 234, 103 S.Ct. at 2330). In cases involving identifiable informants who could be found if the information was determined to be unfounded or fabricated, such information is entitled to a greater "presumption of reliability" as opposed to the tips of unknown "anonymous" informants. Commonwealth v. Kelly, 180 S.W.3d 474, 477 (Ky. 2005).
Additionally, "[s]tatements against the informant's penal interest also increase the degree of veracity that a court may attribute to the statements." Lovett, 103 S.W.3d at 78. As noted in Lovett, the United States Supreme Court explained, that "[p]eople do not lightly admit a crime and place critical evidence in the hands of the police in the form of their own admissions. Admissions of crime, like admissions against proprietary interests, carry their own indicia of credibility—sufficient at least to support a finding of probable cause to search." Id. at 78-9 (quoting United States v. Harris, 403 U.S. 573, 583, 91 S.Ct. 2075, 2082, 29 L.Ed.2d 723 (1971)).
In this case, the informant, Couch, was identified and gave first-hand knowledge that he purchased methamphetamine from Campbell on the same date the warrant was issued. Although he identified Campbell by the wrong last name, Couch gave a specific address where the buy took place. Additionally, Couch admitted to purchasing illegal drugs from Campbell, an admission against his penal interest and bolstering his credibility. Although the statements in Gibson's affidavit may not have been sufficient if the information was given by an unknown informant without further investigation by officers that is simply not the situation. Under the totality of the circumstances, there was probable cause to issue the search warrant.
The judgment of the Muhlenberg Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Samuel N. Potter
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky Julie Scott Jernigan
Assistant Attorney General
Frankfort, Kentucky