Opinion
NO. 2015-CA-000985-MR
01-06-2017
ALEX GORDON HOLT APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Steven J. Buck Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky James Havey Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM UNION CIRCUIT COURT
HON. C. RENE WILLIAMS, JUDGE
INDICTMENT NO. 14-CR-00072 OPINION
VACATING AND REMANDING
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BEFORE: COMBS, DIXON AND NICKELL, JUDGES. COMBS, JUDGE: Alex Holt appeals from an order of the Union Circuit Court denying his motion to suppress. After our review, we vacate the order of the circuit court and remand for additional proceedings.
On July 7, 2014, at approximately 1:35 a.m., Officer Geoffrey Deibler and two other police officers of the Morganfield Police Department were dispatched to investigate a complaint in Holt's apartment complex. The officers spoke to witnesses, who alleged that Holt had been engaged in a heated argument, that he kicked a car door, and that he then hurriedly left. Upon learning this information, the police officers proceeded to walk toward Holt's apartment to speak with him about the incident.
The apartments in this particular development resemble ranch-style duplex housing with sidewalks connecting the entryways, small grassy front yards, and shrubs planted against the exterior walls of the buildings. Residents of the apartment complex typically use the areas outside their windows for flowers, solar lighting, or furniture.
When the police officers arrived at Holt's apartment, a light illuminated one of the windows. Officer Deibler left the sidewalk leading to Holt's front door, walked across the front yard, and peered into Holt's bedroom window. The window was located about seven feet from the sidewalk, and the window itself was shielded by mini-blinds in a slanted but slightly open position. Because of his position near the window and his height of 6 feet 10 inches, Officer Deibler was able to peer at a downward angle through the blinds directly into Holt's bedroom. From this vantage point, Officer Deibler was able to see Holt handling a small box that contained a handgun. By means of whispers and hand signals, Officer Deibler communicated with the other two officers standing at the door to wait before knocking. After watching Holt handle the box for another minute or so, Officer Deibler directed the other officers to knock on the door. When they did so, Officer Deibler observed that Holt closed the box and placed it on the floor before leaving the room. He then saw a woman enter the bedroom. She picked up the box and tried to place it in a drawer.
Officer Deibler then proceeded to the front door, where Holt was conversing with one of the other officers. Officer Deibler asked Holt if he had any weapons in the house. Holt replied, "Yes, I've got a gun." He then turned and walked toward his bedroom while still talking to the officers. The officers followed Holt and watched him place the box upon his bed. Officer Deibler cautioned him to open the box slowly. Holt did so, and Officer Deibler removed the gun and handed it to another officer.
The box also contained an object wrapped in a cloth rag. Officer Deibler asked Holt if the object was a weapon, and Holt stated it was not. Officer Deibler then asked what the object was, and Holt only stated that the object was not his. This exchange between the two men was repeated a few times. Holt finally stated that the object was a "glass," which the officer understood to be slang for a methamphetamine pipe. Holt unwrapped the object, and the pipe fell out. The pipe tested positive in a field test for methamphetamine.
A subsequent search of the home did not result in the discovery of any other drugs or paraphernalia. The gun that was the original object of concern was not stolen; the appellant was entitled to possess it; and he was not criminally charged for its possession. However, Officer Deibler placed Holt under arrest for first-degree possession of a controlled substance and possession of drug paraphernalia.
On August 6, 2014, Holt filed a motion to suppress the evidence as the fruit of an unlawful search, arguing that Officer Deibler impermissibly invaded the curtilage of the apartment to observe the interior of Holt's bedroom from an unlawful vantage point in violation of his expectation of privacy. Officer Deibler was the only witness who appeared at the initial suppression hearing on September 8, 2014. He testified that his vantage point was no more than three feet away from the sidewalk and that he could have seen through the angled blinds even from the sidewalk. The court denied Holt's motion to suppress.
On September 22, 2014, Holt filed a motion to reconsider on grounds of additional evidence based on photographs of the scene. A second suppression hearing was held November 10, 2014. Officer Deibler admitted that his initial statement (i.e., that he was only three feet from the sidewalk when he looked through the angled blinds) was incorrect. He acknowledged that the distance from the sidewalk to the window was actually about seven feet. He also admitted that there was grass growing in the area from which he stood peering into the window and that other residents used similar areas in front of their apartments for flower beds.
On June 5, 2015, the circuit court found there had been no invasion of protected curtilage. It based its finding upon an analysis of the four factors used to resolve curtilage questions as set forth in United States v. Dunn, 480 U.S. 294, 107 S.Ct. 1134, L.Ed.2d 326 (1987), and cited by Quintana v. Commonwealth, 276 S.W.3d 753, 760 (Ky. 2008). The circuit court found that "[a]s an apartment dweller the Defendant's right to use and enjoyment of the premises apply to the inside of the apartment and not to the outside," that the grassy yard appeared to be a common area, and that "[b]linds left partially opened with a light on when it is dark outside does [sic] not exhibit any expectation of privacy." Based on these considerations, the circuit court denied the motion to suppress, holding that "this case does not meet the standard of Quintana." Holt entered a conditional guilty plea in open court on June 8, 2015, to the charges of first-degree possession of a controlled substance, first offense, and possession of drug paraphernalia. He was sentenced to a total of three years in prison, probated for five years. This appeal follows.
Holt appeals the denial of his suppression motion based on the impermissible invasion of his curtilage and the violation of his reasonable expectation of privacy. He also argues that the mere presence of his gun did not justify the warrantless search. The Commonwealth argues that the circuit court properly denied the motion to suppress because the area outside the apartment was not curtilage. It also contends that Holt failed to take sufficient precautions to create or to manifest an objectively reasonable expectation of privacy. Furthermore, the Commonwealth argues that the mere existence of the gun in the apartment was sufficient to create an exigent circumstance based on officer safety, contending that Holt's action in walking toward his bedroom where the gun was located constituted an intervening act sufficient to purge any taint of a Fourth Amendment violation.
"Our standard of review of the trial court's denial of a suppression motion is twofold. First, the trial court's findings of fact are conclusive if they are supported by substantial evidence; and second, the trial court's legal conclusions are reviewed de novo." Milam v. Commonwealth, 483 S.W.3d 347, 349 (Ky. 2015) (citations omitted). The facts in this case are not in dispute. The circuit court held two suppression hearings at which Officer Deibler was able to testify at length about the incident. Thus, the circuit court's findings of fact are duly supported by substantial evidence. However, we find error in the court's conclusions of law drawn from those facts.
The home occupies an almost sacrosanct pre-eminence in Fourth Amendment law. Numerous cases highlight its central role as the primary focus of protection of privacy rights. "A basic tenet of Fourth Amendment law is that warrantless searches and seizures inside a home are presumptively unreasonable." Brumley v. Commonwealth, 413 S.W.3d 280, 284 (Ky. 2013) (citing Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980)). "[T]he Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant." Payton, 445 U.S. at 590, 100 S.Ct. at 1382. "At the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion." Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961).
Central to any Fourth Amendment analysis is the issue of whether an individual had a "reasonable expectation of privacy" with respect to the search. Katz v. United States, 389 U.S. 347, 360; 88 S.Ct. 507; 19 L.Ed.2d 576 (1967), "[A]n expectation of privacy is only reasonable where (1) the individual manifests a subjective expectation of privacy in the object of the challenged search; and (2) society is willing to recognize that subjective expectation as reasonable." Hause v. Commonwealth, 83 S.W.3d 1, 11 (Ky. App. 2001).
In the case before us, Officer Deibler conducted a "knock and talk" encounter. His presence at Holt's home was not based on a warrant, probable cause, or exigent circumstances. While the knock-and-talk exchange is contingent upon the consent of the resident to answer his door and speak to the police, the knock and talk may also be used as an investigative technique:
The knock and talk procedure is a helpful and commonly used police tool, often applied in situations as mundane as looking for a lost pet or to ask if the homeowner has seen a suspicious person in the neighborhood. In general, an officer knocking on the door to ask for citizen assistance is appreciated and the citizens are cooperative. However, that is not always the case, as some citizens desire privacy and to be left alone to the enjoyment of their home. Controversy may arise when the officer is not looking for assistance from the resident, but rather is using the procedure to look for evidence of wrongdoing by the resident, and approaches the home to ask for consent to search or to aid in spotting evidence in plain view or plain smell.Quintana v. Commonwealth, 276 S.W.3d 753, 757 (Ky. 2008) (footnote omitted). As an investigative procedure, "knock and talk" is subject to the limitation that an officer first is entitled to be on the property. "[T]he knock and talk procedure is a proper police procedure and may be used to investigate the resident of the property, provided the officer goes only where he has a legal right to be." Id. at 755 (emphasis added).
If the police deviate from the ordinary pathways leading to the door of the residence (as Officer Deibler did in this case), "a separate and distinct curtilage question arises. The trial court is tasked with determining separately whether the new area where the officer ventures is within the protected curtilage of the home." Id. at 753.
The concept of curtilage began in common law, extending the same protection afforded the inside of one's home to the area immediately surrounding the dwelling. United States v. Dunn, 480 U.S. 294, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987). In Oliver v. United States, 466 U.S. 170, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984), the United States Supreme Court recognized that the Fourth Amendment protects the curtilage of a house, and the area covered extends to that which an individual may reasonably expect to be treated as the home itself.Id. at 757. In contrast to curtilage, "open fields" are not protected under the Fourth Amendment, and the police may freely observe from them without restriction. Oliver, 466 U.S. at 179, 104 S.Ct. 1735; Dunn, 480 U.S. at 304, 107 S.Ct. at 1141. Therefore, when a police officer departs from the direct path to the front door, it is essential to determine whether he is merely standing in the equivalent of open fields or whether he has penetrated and invaded the protected curtilage of the home.
To determine this, the four-factor analysis of Dunn must be applied: proximity to the house, whether the area is enclosed with the house, how the area is being used, and what the resident has done to secure his privacy. If the area is determined to be within the protected curtilage, then the officer is not in a place where he has a right to be, and any evidence thus illegally seized must be suppressed.Quintana, 276 S.W.3d at 760 (citation omitted) (footnote added).
United States v. Dunn, 480 U.S. 294, 301; 107 S.Ct. 1134, 1139; 94 L.Ed.2d 326 (1987).
In Holt's case, the circuit court based its denial of the motion to suppress entirely upon the curtilage issue, which it analyzed exclusively under the four Dunn factors. The first factor: proximity. The circuit court observed that Officer Deibler was in an area that was "very close" to the home. Because Officer Deibler was adjacent (or nearly adjacent) to Holt's exterior wall, we may deduce that this factor weighed in favor of finding a possible invasion of curtilage. The second factor: enclosure. There was no fence, hedge, or other means of securing the front yard. Thus, from a perspective of lack of enclosure, the Commonweaalth would appear to be on favorable footing. The third factor: how the area was being used. This element did not weigh strongly one way or the other. Testimony from Officer Deibler indicated that other residents in the apartment complex used their areas for flowers, lighting, or furniture. Holt conceded that he did not do so. The circuit court concluded that Holt's yard was a "common area" because he failed to plant flowers or otherwise decorate in the manner of his neighbors. We believe that the court erred as to that conclusion.
The fourth factor: what a resident has done to secure his privacy. The circuit court found that "[b]linds left partially opened with a light on when it is dark outside does [sic] not exhibit any expectation of privacy." However, the blinds that the circuit court deemed "partially opened" might as reasonably be characterized as "partially shut." The strongest evidence that the blinds were sufficiently closed to secure privacy was demonstrated by the actions of Officer Deibler himself. He had the advantage of his considerable stature from the perspective of a sidewalk located seven feet from Holt's bedroom window. Nevertheless, in order to view the activity inside Holt's bedroom, an individual not clad in a uniform behaving in such a fashion could easily be charged with voyeurism.
Office Deibler left the sidewalk, walked through the yard, stood adjacent to the window, and peered downward at an angle through the blinds. Justice Harlan's concurrence in Katz, supra, emphasizes that a citizen should have a "reasonable expectation of privacy" (emphasis added). The Fourth Amendment does not require us to live in windowless mausoleums to preserve our privacy interests, and the mere existence of a window does not give license to anyone -- not even an officer of the law -- to peep through its blinds or curtains.
The circuit court apparently reasoned that because the appellant's home was an apartment, there was no curtilage at all. It stated: "[a]t no time were officers in a place where they had no right to be." Contrary to this assumption is the analysis of our Supreme Court:
To commandeer Judge Posner's language: "If this spot was not within [Appellant's] curtilage—if it is to be classified as an 'open field'—then no place outside his house was within the curtilage, and, indeed, attached houses, row houses, and other cramped urban dwellings have no curtilage (beyond the house itself); curtilage is confined to farmers and to wealthy suburbanites and exurbanites." Surely, this dichotomy in Fourth Amendment protection cannot be ... justified.Commonwealth v. Ousley, 393 S.W.3d 15, 28 (Ky. 2013) (quoting United States v. Redmon, 138 F.3d 1109, 1132 (7th Cir. 1998) (Posner, J., dissenting)). Ousley directly addresses the circumstances of this case. If Holt did not have curtilage in the area immediately outside his bedroom window, then he did not have it anywhere. Ousley presents the question of whether someone is entitled to a diminished degree of protection under the Fourth Amendment merely on the basis of the layout of his living quarters, and it answers that query in the negative. We conclude that there was curtilage outside Holt's bedroom window and that Officer Diebler impermissibly invaded that protected area while purporting to conduct a knock and talk at Holt's residence.
A finding that curtilage has been compromised does not automatically mean that the Fourth Amendment has been violated. "Of course, the curtilage of the house is not unassailable... police may enter the curtilage of the house in limited circumstances without violating the Fourth Amendment." Ousley, 393 S.W.3d at 29 (citing Quintana, 276 S.W.3d at 758). Presumably, the front door of a home is within its curtilage; yet there is a license for the public to penetrate that curtilage in order to access the residents. Id. The privilege enjoyed by the general public is similar to the prerogative accorded to the police:
This implicit license typically permits the visitor to approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave. Complying with the terms of that traditional invitation does not require fine-grained legal knowledge; it is generally managed without incident by the Nation's Girl Scouts and trick-or-treaters. Thus, a police officer not armed with a warrant may approach a home and knock, precisely because that is no more than any private citizen might do.Maloney v. Commonwealth, 489 S.W.3d 235, 241 (Ky. 2016) (quoting Kentucky v. King, 563 U.S. [452], 459, 131 S.Ct. 1849, 1862, 179 L.Ed.2d 865 (2011)). (footnote and internal quotation marks omitted). As a general proposition, while performing a knock and talk, the police should not exceed the bounds of what would be permitted to the general public in approaching the residence:
And just as a private salesperson... has implicit permission to approach the house to conduct business with the inhabitants, so too do the police. But just as the salesperson must actually engage or attempt to engage the house, or else be seen as a trespasser, snoop, or peeping tom [sic], so too must the officers actually try to contact the residents, whereupon they may "see or hear or smell from that vantage point."Ousley, 393 S.W.3d at 29 (quoting Quintana, 276 S.W.3d at 758) (emphasis added).
The time of day is also a factor in determining whether police officers may have exceeded the bounds of a knock and talk. "[J]ust as the police may invade the curtilage without a warrant only to the extent that the public may do so, they may also invade the curtilage only when the public may do so." Id. at 31. No doubt it would be disturbing to find a stranger directly outside one's bedroom window during the day. That same occurrence at 1:35 a.m. - as in this case - inevitably would cause heightened alarm. If a private citizen had conducted himself as Officer Deibler did in peeping through a bedroom window in the wee hours of the morning, the situation "would inspire most of us to—well, call the police." Florida v. Jardines, 133 S.Ct. 1409, 1416, 185 L.Ed.2d 495 (2013).
Finally, we must consider Holt's argument that Officer Deibler's sighting of the firearm within the bedroom did not give the police officers a legitimate reason to search Holt's apartment:
[T]he mere presence of guns in the home of an arrestee does not automatically rise to the level of reasonable suspicion that would justify a protective sweep.... common sense suggests that an overwhelming amount of law abiding citizens in Kentucky have guns in their homes for lawful purposes. In other words, [Appellant's] rights under the Fourth Amendment cannot be diminished simply by exercising his rights under the Second Amendment.Brumley v. Commonwealth, 413 S.W.3d 280, 286 (Ky. 2013) (citation omitted). Firearms per se are not illegal. After Holt consented to speak with the police, he admitted to having a gun. The Commonwealth argues that Holt's act of turning and walking to the bedroom in response to the question about the gun created an exigent circumstance with regard to officer safety. Although officer safety is indeed a legitimate concern, the officers themselves created the allegedly exigent circumstance. They could have asked Holt to stop walking toward his bedroom. Instead, they let him proceed and then decided to search the room that they permitted him to enter without protest or warning.
Our Supreme Court in Brumley found that officers did not have sufficient reason to perform a protective sweep when "an attentive departure from the premises... would surely have been safer than an invasion of the home." Id. at 288. It should also be noted that Brumley was a case that involved serving a felony arrest warrant - circumstances greatly distinguishable from a knock and talk. When a protective sweep was not considered justifiable in Brumley's inherently dangerous circumstances, we cannot conclude that it was permissible under the far less serious circumstances of this case.
We reiterate, to the extent that there was an exigency, the police officers effectively created it in this case. They deliberately asked Holt about the firearm that they had viewed through his window. Then they used his responsive action, which may have been merely to retrieve the item about which they inquired, to justify their search. "Under [Kentucky v. King, 563 U.S. 452, 462, 131 S.Ct. 1849, 1858, 179 L.Ed.2d 865 (2011)], a police-created exigency justifies a warrantless search only so long as the police conduct leading up to that exigency was lawful under the Fourth Amendment." Turley v. Commonwealth, 399 S.W.3d 412, 424 (Ky. 2013).
We conclude that the police officers unlawfully violated the sanctity of Holt's home under the Fourth Amendment. "The Commonwealth cannot thereafter justify an otherwise improper seizure on account of an exigency created by [the police officer's] own conduct in demanding to see the contents of the box." Id. Accordingly, we hold that the circuit erred in denying Holt's motion to suppress.
For the foregoing reasons, we vacate the order of the Union Circuit Court entered on June 5, 2015, and we remand for proceedings consistent with this opinion.
ALL CONCUR. BRIEF FOR APPELLANT: Steven J. Buck
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky James Havey
Assistant Attorney General
Frankfort, Kentucky