Opinion
NO. 2014-CA-000896-MR
06-19-2015
ANTONIO LAMAR HINKSTON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Kathleen K. Schmidt Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Courtney J. Hightower Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM BOONE CIRCUIT COURT
HONORABLE JAMES R. SCHRAND, II, JUDGE
ACTION NO. 14-CR-00058
OPINION
AFFIRMING IN PART, VACATING IN PART AND REMANDING
BEFORE: D. LAMBERT, MAZE, AND THOMPSON JUDGES. MAZE, JUDGE: Antonio Lamar Hinkston appeals from a Boone Circuit Court judgment imposing a sentence of one year for first-degree possession of a controlled substance, possession of drug paraphernalia and theft of services. Hinkston entered a plea of guilty to the charges conditioned on his right to appeal the trial court's denial of his motion to suppress evidence.
The incident which led to the charges began when Hinkston met an unidentified man on an adult online website. The men spoke on the phone for about twenty minutes, and exchanged photographs. They did not exchange names, although they knew each other's online names and email addresses.
The man invited Hinkston to his home to talk, have drinks, and possibly spend the night. He directed Hinkston to take a cab to an address on Deer Run, and told him he would pay for the cab. During the cab ride, Hinkston texted the unidentified man, who told him to come to the back of the house. When Hinkston went to the back, there was no one there. He then received a call from the cab company, saying he had run out on paying his fare. Hinkston, who was carrying a brown leather brief case-type bag, set the bag down on the back porch against the wall of the house, and returned to the front of the house where the cab was waiting. The driver called the police to report the unpaid fare.
Deputies Ridgell, Evans, and Nelm arrived at the house. After checking with dispatch, Ridgell discovered that a number of serious prank calls had been made from the Deer Run address. Ridgell got no answer when he knocked on the front and back doors of the house. He ran Hinkston's ID through the police computer and discovered that he had a prior firearms charge. Hinkston told Ridgell how he had arranged to meet the unidentified man at that address, and showed him his phone which had instructions directing him to take the cab and walk around to the back of the house. The cab driver told the deputy that Hinkston had a bag with him when he arrived and that Hinkston took it to the back of the house but did not have it with him when he returned. Ridgell asked Hinkston about the bag several times, but Hinkston refused to discuss it. Deputy Ridgell wondered whether there were any weapons, contraband, or stolen items in the bag. He and Deputy Nelm went to the back of the house and retrieved the bag from the deck. Deputy Evans stayed with Hinkston.
When he returned, Ridgell asked Hinkston if there was anything in the bag he needed to know about. Hinkston said he was not going to find anything illegal. According to Ridgell, he immediately asked Hinkston for consent to search the bag, and Hinkston agreed. Although Ridgell's dashboard camera was running, there is no recording of this conversation. Ridgell searched the bag and found a meth pipe and a cellophane wrapper that field tests revealed to be methamphetamine.
The trial court denied Hinkston's motion to suppress the evidence, ruling that he did not have a reasonable expectation of privacy in the home or its curtilage, and that he voluntarily consented to the search of the bag. Hinkston entered his conditional guilty plea, and this appeal followed.
Our review of a trial court's ruling on a motion to suppress is two-fold. First, the factual findings are deemed conclusive if they are supported by substantial evidence. Kentucky Rules of Criminal Procedure (RCr) 9.78. If unsupported by substantial evidence, the trial court's factual findings are deemed clearly erroneous. Commonwealth v. Banks, 68 S.W.3d 347, 349 (Ky. 2001). Second, we conduct a de novo review to determine whether the trial court's decision was correct as a matter of law. Roberson v. Commonwealth, 185 S.W.3d 634, 637 (Ky. 2006).
Hinkston argues that he had a reasonable expectation of privacy in the curtilage of the home on Deer Run because he believed he was an overnight guest, and that he expected the back deck to be a safe and private place to leave his bag while he spoke with the cab driver. He contends that his Fourth Amendment right to be free of unreasonable searches and seizures was violated when the police officers removed the bag from the back porch.
"A defendant bears the burden of establishing standing to challenge a Fourth Amendment search. That burden requires proof that the defendant had a legitimate expectation of privacy in the premises." Ordway v. Commonwealth, 352 S.W.3d 584, 592 (Ky. 2011) (internal citations omitted). "[A] defendant must demonstrate that . . . his expectation is reasonable; i.e., one that has a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society." Minnesota v. Carter, 525 U.S. 83, 88, 119 S.Ct. 469, 472-73 142L.Ed.2d 373 (U.S.,1998) (internal citations and quotation marks omitted). In Minnesota v. Olson, the United States Supreme Court held that an overnight guest has a reasonable expectation of privacy in the home of his or her host, stating that "[w]e will all be hosts and we will all be guests many times in our lives. From either perspective, we think that society recognizes that a houseguest has a legitimate expectation of privacy in his host's home." 495 U.S. 91, 98, 110 S.Ct. 1684, 109 L.Ed.2d.85 (1990).
The trial court concluded that Hinkston did not have a reasonable expectation of privacy in the residence at Deer Run or its curtilage because he had never physically met the purported owner of the home, talking to him only on the phone and through text and email messages. He did not know the individual's real name, he had never been to the property before, and he had no personal knowledge of who owned the property. No one answered the door when he knocked, he was at the residence for only a short time, and he never entered the residence or spoke with anyone inside the residence after arriving.
We agree with the trial court's analysis. Hinkston argues that his situation is no different from that of someone who meets an individual at a bar or social event and then goes with them to their home to spend the night. The key distinction, however, is that Hinkston never met his purported host, received no answer at the door, observed that the house was dark, and realized that the cab would not be paid. No reasonable person would believe at that point that he was a guest who had a right to privacy in the home and its curtilage. The situation might indeed have been different if someone had been present at the home, welcomed Hinkston, and either invited him to leave his bag on the porch, or granted permission to leave the bag there, which is what occurred in United States v. Waller, 426 F.3d 838 (6th Cir. 2005). In that case, Waller stored some belongings in his friend Howard's apartment, where he also showered and shaved. Waller was later arrested leaving the apartment, and Howard consented to a search of the premises. The police found a closed luggage bag belonging to Waller in the closet. They opened the bag and recovered some illegal firearms. The Sixth Circuit Court of Appeals held that Waller had a reasonable expectation of privacy in the luggage. 426 F.3d at 842. Although Hinkston relies on Waller, it is inapposite for two reasons: first, as we have already noted, Waller had Howard's permission to store the luggage in his apartment and, more importantly, the issue in Waller was whether the police were entitled to search inside the luggage. Here, the issue is whether the police were entitled to enter the curtilage of the house in which Hinkston claims a privacy interest and retrieve his bag. Because his expectation of privacy was unreasonable under the circumstances, they were.
Hinkston further argues that the bag was illegally seized when Deputy Ridgell picked it up at the back of the house and carried it to the front where Hinkston, the cab driver, and the other deputies were standing. Warrantless seizures of personal belongings are permitted under certain circumstances. "[W]hen an officer's observations lead him reasonably to believe that a traveler is carrying luggage that contains narcotics, the principles of Terryand its progeny would permit the officer to detain the luggage briefly to investigate the circumstances that aroused his suspicion, provided that the investigative detention is properly limited in scope." United States v. Place, 462 U.S. 696, 706, 103 S.Ct. 2637, 2644, 77 L.Ed.2d 110 (1983). In this case, Deputy Ridgell was investigating a theft of services call late at night and Hinkston had left his bag at the back door, which was in itself a suspicious circumstance considering that the home appeared to be uninhabited. Ridgell was also aware that Hinkston had a prior firearms charge. Under the circumstances, Ridgell had sufficient reasonable suspicion of criminal activity to justify carrying Hinkston's bag to the front of the house and inquiring about its contents.
Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) permits the police to make a brief investigative stop and search if they have a reasonable suspicion that criminal activity is afoot.
Next, Hinkston argues that he had a reasonable expectation of privacy in the contents of the closed bag, and the police required a warrant to search it. Consent is an exception to the warrant requirement, and the trial court found that Hinkston had consented to the search of the bag. See Commonwealth v. Jones, 217 S.W.3d 190, 198 (Ky. 2006). Hinkston contends that the trial court did not have substantial evidence from which to conclude that he gave consent. Hinkston points to the following weaknesses in the evidence: his own testimony that he did not give consent because he knew there was a meth pipe in the bag and that he could "get in trouble for that;" Deputy Nelm's statement that he did not hear the conversation during which Deputy Ridgell asked for Hinkston's consent; and the discrepancy between Ridgell's testimony that he started the cruiser video after he asked for consent, but the video actually showed it had been started before Ridgell even retrieved the bag. On the other hand, as the Commonwealth points out, both Deputy Ridgell and Deputy Evans testified that Hinkston consented to the search, and described Hinkston as cooperative.
"At a suppression hearing, the ability to assess the credibility of witnesses and to draw reasonable inferences from the testimony is vested in the discretion of the trial court. . . . In conducting our review, our proper role is to review findings of fact only for clear error while giving due deference to the inferences drawn from those facts by the trial judge." Neal v. Commonwealth, 449 S.W.3d 370, 376 (Ky. App. 2014) (internal citations and quotation marks omitted). The testimony of Deputy Ridgell and Deputy Evans that Hinkston gave consent provides substantial support for the trial court's findings, and they are therefore not clearly erroneous.
Finally, Hinkston argues that the trial court erred in imposing a $1,000 fine on the felony charge of first-degree possession of a controlled substance, and additional fines of $1,000 on each misdemeanor. The fines were all ordered to be run concurrently for a total fine of $1,000. He was also assessed $156 in court costs. Because the issue of fines and court costs is unpreserved, we review for palpable error.
The Commonwealth concedes that the imposition of the fine for the felony was improper because Hinkston was determined to be indigent. Accordingly we vacate that portion of the final judgment imposing the fines.
As to the court costs, Kentucky Revised Statutes (KRS) 23A.205 provides for the mandatory payment of court costs by persons convicted of a crime in circuit court, "unless the court finds that the defendant is a poor person as defined by KRS 453.190(2) and that he or she is unable to pay court costs and will be unable to pay the court costs in the foreseeable future." KRS 23A.205(2). KRS 453.190, the in forma pauperis statute, defines a "poor person" as one "who is unable to pay the costs and fees of the proceeding in which he is involved without depriving himself or his dependents of the necessities of life, including food, shelter, or clothing." KRS 453.190(2). The trial court found that Hinkston was a pauper under KRS 453.190 and KRS 31.110(2)(b) for purposes of proceeding in forma pauperis on appeal. The Commonwealth argues that Hinkston received a relatively short sentence and was eligible for early release after serving 15 percent of the sentence, and that he has a bachelor's degree and was therefore able to pay the court costs. The trial court, however, did not make such a finding. Under the circumstances, we must also vacate the portion of the final judgment imposing court costs, and remand for a hearing to determine whether or not Hinkston is unable to pay the court costs and will be unable to pay the court costs in the foreseeable future.
To summarize: the trial court did not err in denying the motion to suppress, and its final judgment on that issue is therefore affirmed. The portion of the final judgment imposing the fines is vacated. The portion of the final judgment imposing court costs is vacated, and the matter is remanded for a hearing solely to determine Hinkston's ability to pay the court costs.
ALL CONCUR. BRIEFS FOR APPELLANT: Kathleen K. Schmidt
Assistant Public Advocate
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky