Opinion
NO. 2018-CA-001810-MR
02-21-2020
DAVID D. DAMRON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Daniel C. Thomas Wickliffe, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky James P. Judge Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM BALLARD CIRCUIT COURT
HONORABLE TIMOTHY A. LANGFORD, JUDGE
ACTION NO. 17-CR-00073 OPINION
AFFIRMING
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BEFORE: CALDWELL, DIXON, AND MAZE, JUDGES. DIXON, JUDGE: David D. Damron appeals from the orders denying his motions to suppress and to set aside and vacate his convictions, as well as the final judgment and sentence entered on April 17, 2018, August 9, 2018, and November 2, 2018, respectively, by the Ballard Circuit Court. Following review of the record, briefs, and law, we affirm.
On July 29, 2017, Ballard County Sheriff's Deputy Kevin Green and several other law enforcement officials executed a search warrant at the residence of Danny Fithen for evidence of illegal drug activity. Fithen was present and uncooperative with the investigation but admitted the cell phone located by law enforcement officials at his residence belonged to him. Another law enforcement officer reviewed text messages between Fithen and "D. David" and told Deputy Green they outlined specifics of illegal drug transactions.
Marty Hartfelder, Fithen's girlfriend, was also present during the execution of the search warrant. Hartfelder was cooperative and told Deputy Green that Fithen had purchased illegal drugs from David Damron at Damron's residence on multiple occasions—two to three times per week. According to Deputy Green, Hartfelder provided a street address and description of the house, stating that she had accompanied Fithen for these transactions.
Deputy Green testified the woman's name was Mary Hartfelder, but the written record indicates her name is Marty Hartfelder. Thus, we choose to use the name Marty Hartfelder in our Opinion.
The street address provided to Deputy Green by Hartfelder was incorrect; however, the description did match Damron's residence. It was late in the evening and early the following morning when the affidavits and warrants were written, and the Property Valuation Administrator's (PVA) office was closed. Therefore, law enforcement could not confirm the correct street address with the PVA.
Based on this investigation, on July 30, 2017, at 12:16 a.m., Deputy Green swore an affidavit for a search warrant upon David Damron's residence for evidence of illegal drug activity. On July 30, 2017, at 12:52 a.m., a search warrant was issued for Damron's residence.
Later that night, Deputy Green and several other law enforcement officers executed the search warrant at Damron's residence shared with his girlfriend, Holly Sullivan. Damron and Sullivan were known to other officers executing the warrant, and law enforcement was able to locate the residence, which had a different street address than that in the search warrant, without difficulty. Damron, Sullivan, and contraband were present at the residence. Consequently, Damron and Sullivan were arrested.
Damron's residence matched the physical descriptions provided in the affidavit and warrant.
On September 1, 2017, Damron was indicted on thirteen offenses. Damron moved the trial court to suppress evidence obtained pursuant to the search warrant issued on July 30, 2017. The Commonwealth responded in opposition to Damron's suppression motion. A suppression hearing was held on January 30, 2018. The trial court ultimately denied Damron's suppression motion on April 17, 2018, ruling that the issuing judge had a substantial basis for finding that probable cause evidence of wrongdoing would likely be found at Damron's residence. Damron moved the trial court to set aside and vacate this order. On August 9, 2018, the trial court denied Damron's motion.
Damron entered a conditional guilty plea to several of the charges against him, and the trial court—upon motion of the Commonwealth Attorney—dismissed the remaining charges against Damron. On November 2, 2018, the trial court entered its final judgment and sentence on Damron's conditional guilty plea. This appeal followed.
The basis for Damron's appeal centers on the validity of the search of his residence. He first attacks the portion of the affidavit for search warrant that reads:
Acting on the information received, Affiant conducted the following independent investigation:(Emphasis in original.) Damron takes issue with the assertion that the text messages "outline specifics for drug purchases." Damron then takes issue with the Affiant's—Deputy Green's—assertion that he conducted the independent investigation because he did not initially search the phone, nor could he recall the name of the law enforcement officer that reviewed the text messages. Damron further criticizes Deputy Green's assumption that "D. David" was David Damron absent independent verification.
Cell phone messages from Danny Fithen's phone outline specifics for drug purchases by Fithen from David Damron. Messages go back to July 11, 2017.
However, as the United States Supreme Court has observed:
"[W]hen the Fourth Amendment demands a factual showing sufficient to comprise 'probable cause,' the obvious assumption is that there will be a truthful showing" (emphasis in original). This does not mean "truthful" in the sense that every fact recited in the warrant affidavit is necessarily correct, for probable cause may be founded upon hearsay and upon information received from informants, as well as upon information within the affiant's own knowledge that sometimes must be garnered hastily. But surely it is to be "truthful" in the sense that the information put forth is believed or appropriately accepted by the affiant as true. It is established law that a warrant affidavit must set forth particular facts and circumstances underlying the existence of probable cause, so as to allow the magistrate to make an independent evaluation of the matter. If an informant's tip is the source of information, the affidavit must recite "some of the underlying circumstances from which the informant concluded" that relevant evidence might be discovered, and "some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, . . . was 'credible' or his information 'reliable.'"Franks v. Delaware, 438 U.S. 154, 164-65, 98 S.Ct. 2674, 2681, 57 L.Ed.2d 667 (1978) (citations omitted).
Deputy Green has over sixteen years of law enforcement experience and is well acquainted with reading text messages evincing drug deals. At the suppression hearing, Deputy Green testified that his reading of the text messages between Fithen and "D. David"—whom he reasonably believed was Damron based on Hartfelder's information that Fithen bought drugs from David Damron—demonstrated exchanges like those used in other known illegal drug transactions. Deputy Green testified that the exchanges were cryptic with hidden meanings. Deputy Green further testified that while the text exchanges were not "specific" in the sense of being overt, he reasonably believed that the exchanges outlined drug transactions.
It matters not whether Deputy Green was the law enforcement officer who read the text messages at Fithen's residence. Nor does it matter that Deputy Green could not later recall the name of the other law enforcement officer who initially read the text messages. Under Franks and the collective knowledge doctrine, Deputy Green was able to rely on Hartfelder's information and the investigation conducted by another law enforcement official in making his affidavit. Id.
The Supreme Court of Kentucky has held:
Under the collective knowledge doctrine, an arresting officer is entitled to act on the strength of the knowledge communicated from a fellow officer and he may assume its reliability provided he is not otherwise aware of circumstances sufficient to materially impeach the information received. See United States v. Hensley, 469 U.S. 221, 232-233, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985) (Under the collective knowledge doctrine, when law enforcement officers are in communication regarding a suspect, the knowledge of one officer can be imputed to the other officers); Darden v. Commonwealth, 298 S.W.2d 687, 689 (Ky. 1957)[.]
Damron has offered no proof that it was not believed or appropriately accepted by Deputy Green—who relied on information given to him by another law enforcement official—that the text messages contained "specifics for drug purchases." Therefore, Damron has failed to show that the statement in Deputy Green's affidavit for search warrant was untruthful as defined in Franks, or that it must be stricken.
Next, Damron attacks the alleged deficiencies in the search warrant. Damron takes issue with the fact that the search warrant affidavit did not specifically state that Hartfelder was present at any of the drug transactions. Although Deputy Green testified that Hartfelder stated she was present for these drug transactions, it does not matter whether, in fact, she was. As stated in Franks, information contained in the affidavit for search warrant may be based upon hearsay. Id. Thus, Hartfelder's actual presence at the illegal drug transactions was not required for her to reliably relay information she possessed concerning those transactions to Deputy Green.
Damron also takes issue with the fact that law enforcement officers went to a residence other than the one with the street address provided to them by Hartfelder. It is clear from the affidavit for search warrant that Hartfelder told law enforcement officers that Fithen bought illegal drugs from David Damron. Damron further alleges that the description of Damron's residence was provided by another law enforcement officer rather than Hartfelder. Again, under Franks, it matters not whether the source of the information concerning the residence was Hartfelder or another law enforcement officer. Id.
The warrant was executed at 5318 Woodville Road, Kevil, Kentucky, rather than 5610 Woodville Road, Kevil, Kentucky.
Additionally, another panel of our Court observed:
a search warrant containing an incorrect address for the premises to be searched may still be constitutionally valid if the warrant contains a description of the premises to be searched with such particularity that the officer executing the warrant is able to identify the place to be searched with reasonable effort.McCloud v. Commonwealth, 279 S.W.3d 162, 165 (Ky. App. 2007). Like that panel's holding, considering the detailed and accurate description of the premises to be searched contained in the warrant and law enforcement officer's prior knowledge concerning the correct location of Damron's residence, the search warrant did not violate the particularity requirement of Section 10 of the Kentucky Constitution or the Fourth Amendment of the U.S. Constitution. This conclusion is further supported by the fact that law enforcement officers did not execute the warrant at any residence but Damron's, which was the actual target of the search.
Damron next attacks the order denying his motion to set aside and vacate. He asserts that the trial court's findings are erroneous and rely on information outside the affidavit for a search warrant. However, the trial court found that the issuing judge still had a substantial basis for finding probable cause even if all the so-called offending portions were removed. Damron claims the findings—there was an independent investigation, there were texts messages of "specifics for drug purchases by Fithen from David Damron," and there was probable cause to search 5318 Woodville Road—were clearly erroneous.
However, to this point, the Supreme Court of Kentucky has noted:
The reasons for requiring an affidavit are to enable the judicial determination of whether probable cause exists and to fix responsibility for civil redress or criminal prosecution in the event of false accusation. Sullivan v. [Commonwealth, 304 Ky. 780, 202 S.W.2d 619 (1947)]; Goode v. [Commonwealth, 199 Ky. 755, 252 S.W. 105 (1923)]. It is for the court and not the accuser to determine whether probable cause exists, and since the sufficiency of the affidavit must be measured by what appears within the four corners of the affidavit, it is necessary that the affiant state facts as a basis for his belief.Ruth v. Commonwealth, 298 S.W.2d 300, 301 (Ky. 1957). As previously discussed, Damron has failed to demonstrate that the statements contained in the affidavit were either false or made with a reckless disregard for their validity in violation of Franks.
Nevertheless, the balancing approach that has evolved in various contexts—including criminal trials—"forcefully suggest[s] that the exclusionary rule be more generally modified to permit the introduction of evidence obtained in the reasonable good-faith belief that a search or seizure was in accord with the Fourth Amendment."United States v. Leon, 468 U.S. 897, 909, 104 S.Ct. 3405, 3413, 82 L.Ed.2d 677 (1984) (citation omitted).
Similarly, the Supreme Court of Kentucky held, "when it appears that the affidavit was made in good faith but the warrant erroneously issued by virtue of judicial error, neither the Constitution nor sound public policy requires suppression of the evidence." Crayton v. Commonwealth, 846 S.W.2d 684, 688 (Ky. 1992).
Said otherwise, a technically defective search warrant obtained in good faith after proper application to a judicial officer is preferable to an unsupervised and potentially fraudulent warrantless search. We therefore hold that application of a good faith exception to the warrant requirement, as articulated in United States v. Leon, supra, does not violate Section 10 of the Constitution of Kentucky.Id. at 688-89.
The minor inaccuracies in the affidavit and search warrant—such as the inclusion of the word "specific" referring to the text messages and the wrong street address—do not amount to police misconduct from dishonesty or recklessness, nor does it mean that the search pursuant to the warrant was a violation of Damron's constitutional rights. The trial court did not err in denying Damron's motions.
Damron further complains that the individual supplying information—Hartfelder—was of "unknown reliability." However, "[t]he general rule has long been that an affidavit for a search warrant based on information furnished by a named individual is ordinarily sufficient to support the warrant." Edwards v. Commonwealth, 573 S.W.2d 640, 641 (Ky. 1978). Hartfelder was named in the affidavit, allowing the judge the ability to make an independent judgment to determine probable cause for the issuance of the search warrant. See Commonwealth v. Eilers, 503 S.W.2d 724, 726 (Ky. 1973).
Damron attempts to distinguish the case herein from an unpublished opinion of another panel of our Court in Campbell v. Commonwealth, No. 2014-CA-002047-MR, 2016 WL 1557601 (Ky. App. Apr. 15, 2016). In Campbell, the informant was identified and had firsthand knowledge. Damron argues that Hartfelder's knowledge was not based on her firsthand experience.
This unpublished opinion is cited pursuant to Kentucky Rule of Civil Procedure (CR) 76.28(4)(c) as illustrative of the issue before us and not as binding authority. --------
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 [v. Commonwealth, 103 S.W.3d 72, 78 (Ky. 2003).] 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)).Id. at *3. There is no doubt that Hartfelder provided sufficient detail to lend credence to her reliability. While the affidavit does not specifically state that Hartfelder accompanied Fithen to his drug purchases, and Deputy Green testified this was the case, Hartfelder's physical presence during the transactions is but one factor to consider when determining her reliability. Moreover, as previously discussed, Hartfelder's physical presence at the illegal drug transactions was not required for her information to be considered reliable. Considering the totality of the circumstances, the trial court did not err in the denial of Damron's motions.
Therefore, and for the foregoing reasons, the orders entered by the Ballard Circuit Court are AFFIRMED.
ALL CONCUR. BRIEF FOR APPELLANT: Daniel C. Thomas
Wickliffe, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky James P. Judge
Assistant Attorney General
Frankfort, Kentucky
Lamb v. Commonwealth, 510 S.W.3d 316, 323 (Ky. 2017).