Opinion
NO. 2018-CA-000109-MR
03-29-2019
JUAN R. DAVIS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Cassandra F. Kennedy Assistant Appellate Defender Louisville Metro Public Defender's Office Louisville, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Joseph A. Newberg, II Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE OLU A. STEVENS, JUDGE
ACTION NO. 15-CR-001868 OPINION
AFFIRMING
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BEFORE: ACREE, KRAMER, AND L. THOMPSON, JUDGES. KRAMER, JUDGE: Appellant Juan R. Davis appeals from a judgment of the Jefferson Circuit Court following his entry of a conditional guilty plea to numerous felony offenses. Davis's plea is conditioned on his right to appeal the circuit court's denial of his motion to suppress evidence seized from his residence by police. Having reviewed the arguments of the parties, the record and the applicable law, we find no reversible error and affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
On January 30, 2014, the Louisville Metro Police Department (LMPD) received an anonymous tip. The tip contained a photograph of Davis, his address, and the following: "Tipster stated that listed subject is selling cocaine at listed location. Tipster stated that there are people coming & [sic] going at all times. Tipster stated that subject does have a gun in the home." On or about February 11, 2014, the tip was passed along to Detective James Kaufling of Louisville Metro Narcotics. On February 20, 2014, Kaufling went to Davis's residence to do a "knock and talk." Upon arrival, Kaufling saw Davis in the alley behind the home. Kaufling got out of his vehicle and approached Davis. Kaufling told Davis who he was and that he was investigating a narcotics complaint. Davis immediately told Kaufling that he needed to get a warrant. Kaufling then informed Davis that the complaint also indicated that he had a gun in the residence. Davis acknowledged that he did have a gun in the home for protection. He also stated that he had marijuana and a digital scale in the home. Kaufling had previously conducted a records check and knew that Davis was a convicted felon.
There is a slight discrepancy regarding dates. The tip sheet states that the anonymous call was received by LMPD on January 30, 2014. Detective James Kaufling, who received the tip, stated in his affidavit for search warrant that he received the tip on February 11, 2013, and went to Davis's residence to do a "knock and talk" on February 20, 2014. Davis argues that there were nine days between receipt of the anonymous tip and the issuance of the warrant. The Commonwealth acknowledges a typographical error in the affidavit for search warrant. Because there is no evidence in the record that the tip was received in 2013, and Davis does not argue the point, we acknowledge a typographical error in the affidavit for search warrant, which should reference February 11, 2014, as the date that Kaufling received the tip.
Davis offered to take Kaufling inside and give him the gun. Davis allowed Kaufling to enter the kitchen through the back door of residence. Although Davis consented to Kaufling's entering the home, once inside, he reiterated that Kaufling was not permitted to search without a warrant. He did not give the gun to Kaufling. At that point Davis's home was secured and Kaufling obtained a search warrant. LMPD seized various drug paraphernalia, a Taurus 9mm handgun, marijuana, and cocaine from the residence. Davis was indicted by the Jefferson County grand jury on six felony counts.
Davis filed a motion to suppress all physical evidence seized as a result of the search warrant. The motion was denied by the circuit court. Davis eventually entered a guilty plea to illegal possession of a controlled substance in the first degree, cocaine (as amended); possession of a handgun by a convicted felon; receiving a stolen firearm; and illegal use or possession of drug paraphernalia while in possession of a firearm. The plea was conditioned on his right to appeal the circuit court's denial of his motion to suppress. Davis received a sentence totaling seven years' imprisonment, probated for five years. This appeal followed. Further facts will be developed as necessary.
Davis received three years' incarceration for illegal possession of a controlled substance in the first degree, cocaine; seven years' incarceration for possession of a handgun by a convicted felon; five years' incarceration for receiving a stolen firearm; and five years' incarceration for illegal use or possession of drug paraphernalia while in possession of a firearm. All counts were set to run concurrently for a total of seven years' incarceration.
II. STANDARD OF REVIEW
When faced with a motion to suppress evidence obtained pursuant to a search warrant, the circuit court should apply the standard set forth in Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed.2d 527 (1983). The court must determine whether, under the totality of circumstances presented within the four corners of the affidavit, a warrant issuing judge had a substantial basis for concluding that probable cause existed. Commonwealth v. Pride, 302 S.W.3d 43, 49 (Ky. 2010).
On appellate review, this Court must first determine if the facts found by the circuit judge are supported by substantial evidence. Then, we determine whether the circuit judge correctly determined whether the issuing judge did or did not have a substantial basis for concluding that probable cause existed. Id.
III. ANALYSIS
A. The circuit court's analysis of the totality-of-circumstances
Davis first claims that the circuit court erred because it failed to analyze the totality of the circumstances and summarily dismissed his suppression motion based on Abney v. Commonwealth, 483 S.W.3d 364 (Ky. 2016). We disagree.
Technical requirements for warrants and their supporting affidavits have largely been done away with. Id. at 367. Search warrant affidavits are instead evaluated under a totality-of-circumstances analysis. The United States Supreme Court has held that
The task of the [warrant] issuing magistrate is simply to make a practical, common sense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, 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. The Kentucky Supreme Court adopted the totality-of-circumstances approach in Beemer v. Commonwealth, 665 S.W.2d 912 (Ky. 1984).
Davis argues that the instant action is distinguishable from Abney because it lacked any temporal reference whatsoever to the alleged selling of drugs, unlike the tip in Abney. Davis's argument misses a crucial distinction.
Kaufling admitted in his testimony that the anonymous tip to LMPD was "pretty vague." Rather than attempt to secure a warrant based on the vague and anonymous tip, Kaufling decided to pursue a knock and talk with Davis. Kaufling secured a warrant only after Davis admitted that he possessed a handgun, marijuana, and a digital scale during the knock and talk.
Davis has not challenged any matter related to the knock and talk.
The affidavit for search warrant, as prepared by Detective Kaufling, stated, in relevant part:
On the 11th day of February 2013 [sic] approximately 1400 hrs, affiant received information from/observed a narcotics complaint that stated that Juan Davis is selling cocaine from [his home] and states that people coming and going at all times. Complaint states that the subject does have a gun in the home.
Acting on the information received, affiant conducted the following independent investigation. ****On 02-20-14 Detective Kaufling went to [Davis's residence] to conduct a knock and talk to speak with Juan Davis. Upon parking in the rear of the location Detective observed Juan Davis walking to the rear of the home and was approaching a White Lincoln Navigator. Detective Kaufling knew what Davis looked like due to a photo of Davis on the complaint. Detective Kaufling then approached Davis to speak with him. Upon explaining to Davis about the narcotics complaint he stated you need a warrant. At this point Detective Kaufling asked about the gun inside the home, Davis stated that he does have a handgun inside the home for his protection. Prior to today's date Detective Kaufling has looked up Davis [sic] criminal history and observed that Juan Davis is a convicted felon. At this point Davis told Detective Kaufling that he wanted to go inside the home to retrieve the gun to give to the detectives. Detective Kaufling and Davis went into the kitchen and Davis stated you are not searching without a warrant. Detective Kaufling then read Davis his rights and asked if there was anything else inside the house besides the handgun. Mr. Davis stated that he had an ounce of marijuana and a digital scale. . ."
We decline to list Davis's complete address in this opinion.
Davis argues that the information contained in the anonymous tip was stale and that probable cause cannot be premised on stale information. Even if we accept this argument, any stale information was cured by the contemporaneous information in Davis's own statements. The Kentucky Supreme Court has ruled that, if the stale information is corroborated by recent information showing that the evidence remains in the location to be searched, probable cause may be found. Ragland v. Commonwealth, 191 S.W.3d 569, 584 (Ky. 2006) (internal citations omitted).
The affidavit for search warrant provided a substantial basis for concluding that probable cause existed. Davis was a convicted felon who, during the knock and talk, admitted to Kaufling that he possessed a handgun, marijuana, and a digital scale. He stated that these items were located in his home. Kaufling's testimony regarding the contents of the affidavit and statements made by Davis during the knock and talk was unrefuted. Accordingly, the circuit court correctly determined that the judge who issued the warrant had a substantial basis for concluding that probable cause existed.
B. Whether the gun was obtained through a warrantless search
Davis's second claim is that the circuit court erred because, in its order denying his motion to suppress, it did not address the issue of what he claimed—after the suppression hearing—was a warrantless search. We disagree.
Paragraph 3 of Davis's original motion to suppress states "[f]urther, some of the information in the affidavit was obtained when the detective entered the defendant's home without permission." After the suppression hearing, Davis filed a memorandum with the court alleging, in part, that the make and model of the gun were known to Kaufling because he had seized the gun through an unlawful warrantless search. Davis's assertions are unsupported by the record.
Any error of the circuit court for failing to not recognize and address Davis's claim of warrantless search and seizure based on the contents of his motion, which stated only that Kaufling had entered his home without permission, was harmless error at best. RCr 9.24 states, in relevant part, "no error or defect in any ruling or order, or in anything done or omitted by the court or by any of the parties, is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order unless it appears to the court that the denial of such relief would be inconsistent with substantial justice."
Kentucky Rules of Criminal Procedure.
Kaufling's testimony was that he obtained permission from Davis to enter the residence because he did not want Davis, a convicted felon, handling the gun. Kaufling testified that he did not search the premises until he had obtained a warrant. Davis had given him permission to be in the kitchen and Kaufling did not move beyond the kitchen until after the search warrant was obtained. He did not see the gun until after the search warrant was executed.
The gun was eventually seized from a bookshelf in the living room of the home. The record indicates that Officer R. Nichols seized the gun during execution of the search warrant. --------
Davis provided no evidence to refute the search warrant affidavit or Kaufling's testimony that he entered Davis's home with permission. Davis provided no evidence that Kaufling conducted a warrantless search. Kaufling was the only witness that testified at the hearing for Davis's motion to suppress. During cross-examination, Davis did not seek to elicit testimony from Kaufling regarding how he knew the make and model of the gun. His testimony was entirely unrefuted.
That the circuit court did not specifically address any claims from Davis that Kaufling had entered his home without permission or conducted a warrantless search was harmless error. There was a total lack of evidence to support either claim.
IV. CONCLUSION
For the reasons stated herein, we affirm the judgment of the Jefferson Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Cassandra F. Kennedy
Assistant Appellate Defender
Louisville Metro Public Defender's
Office
Louisville, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Joseph A. Newberg, II
Assistant Attorney General
Frankfort, Kentucky