Opinion
NO. 2016-CA-000547-MR NO. 2016-CA-000548-MR
05-12-2017
DAVID W. MADDLE APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE AND PHILLIP L. MADDLE APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: DAVID W. MADDLE F. Todd Lewis Louisville, Kentucky BRIEF FOR APPELLANT: PHILLIP L. MADDLE Ryan Vantrease Louisville, Kentucky BRIEFS FOR APPELLEE: Andy Beshear Attorney General of Kentucky Courtney Hightower Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM MEADE CIRCUIT COURT
HONORABLE ROBERT A. MILLER, JUDGE
ACTION NO. 14-CR-00150 APPEAL FROM MEADE CIRCUIT COURT
HONORABLE ROBERT A. MILLER, JUDGE
ACTION NO. 14-CR-00151 OPINION
AFFIRMING
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BEFORE: COMBS, MAZE, AND STUMBO, JUDGES. COMBS, JUDGE: David W. Maddle and Phillip L. Maddle appeal separately from their conditional guilty pleas to the common charges of: manufacturing methamphetamine; trafficking in a controlled substance; possession of drug paraphernalia; and the status offense of being persistent felony offenders. We have considered their appeals together. Both appellants argue that the trial court erred by denying their joint motion to suppress evidence seized during the execution of an allegedly invalid search warrant. After our review, we conclude that the trial court did not err by denying the motion to suppress evidence. Consequently, we affirm the convictions.
On July 31, 2014, at approximately 9:00 p.m., Detective James Terry of the Meade County Sheriff's Department received a tip from a reliable confidential informant that David Maddle and Phillip Maddle (father and son, respectively) were manufacturing and selling methamphetamine from their garage. The informant had made a controlled buy from David in the garage and indicated that he had also observed narcotics inside the Maddles' home. The informant specifically indicated that he had observed narcotics and drug paraphernalia at the home within 48 hours of his passing along the tip. Detective Terry's independent investigation was supportive of the informant's report. On August 1, 2014, Detective Terry prepared an affidavit in support of a search warrant for the premises. The warrant was promptly issued, but it was not executed until August 6, 2014.
Following execution of the search warrant, David and Phillip were arrested by Meade County sheriff's deputies. A week later, David filed an affidavit of indigency and received appointed counsel. Phillip, too, filed an affidavit of indigency and was appointed counsel.
On September 8, 2014, a Meade County grand jury returned separate indictments charging David and Phillip with manufacturing methamphetamine; trafficking in a controlled substance; and possession of drug paraphernalia. In addition, David was charged with being a persistent felony offender in the first degree; Phillip was charged with being a persistent felony offender in the second degree.
David posted bond (secured by a cash deposit of $5,000.00) and was released from custody the following day. Several days later, David and his surety assigned the bond to retained counsel. On September 12, 2014, Phillip put up a $10,000.00, full-cash bond. At their arraignments, both David and Phillip entered pleas of not guilty. Discovery ensued.
On April 3, 2015, Phillip's counsel filed a motion to suppress the evidence seized as a result of the execution of the search warrant. Counsel argued that the "age of the evidence at the time the officer sought to obtain the warrant and the lengthy delay in executing the warrant" caused the warrant to be fatally flawed. Counsel contended that the recovered evidence should be suppressed because the search and seizure violated provisions of the Fourth Amendment to the U.S. Constitution and Section 10 of the Kentucky Constitution. David's counsel joined the motion, but he filed a motion to withdraw from the representation on May 22, 2015. David's newly retained counsel made an entry of appearance on June 12, 2015. The trial court consolidated the cases for trial and scheduled an evidentiary hearing on the suppression motion.
Following the hearing, the trial court granted the parties an opportunity to file memoranda. On October 28, 2015, the Commonwealth filed its memorandum in response to the motion to suppress. It addressed the single issue presented to the court in the motion: whether the alleged staleness of the evidence rendered the search warrant invalid.
The defense attorneys filed separate memoranda in support of their positions. David argued that the search and seizure were unconstitutional for three reasons: 1) the detective's affidavit did not establish probable cause to justify issuance of a search warrant; 2) the information contained in the detective's affidavit was stale at the time that it was presented to the issuing magistrate and at the time the warrant was executed; and 3) the affidavit contained false and misleading information. Phillip also argued that the detective's affidavit contained material misstatements of fact. Once purged of the material misrepresentations, the affidavit could not establish probable cause to justify issuance of a search warrant. Counsel reasserted his position that the delay in executing the search warrant was fatal.
After hearing the evidence and considering the memoranda, the trial court denied the motion to suppress. The court found that "incorrect, sloppy and mis-timed information" was presented in the detective's affidavit. After purging that information from the affidavit, the court nonetheless concluded that the affidavit sufficiently established probable cause to justify issuance of the search warrant. The court also found that the delay in execution of the search warrant was reasonable under the circumstances. The court concluded that the defendants' constitutional rights had not been violated and that suppression of the evidence recovered pursuant to the search warrant was not required.
Subsequently, David and Phillip each entered conditional guilty pleas. They specifically reserved their right to appeal the trial court's denial of the motion to suppress. Judgments of convictions were entered. These appeals followed.
When addressing a motion to suppress evidence, a trial court must "determine whether under the totality of the circumstances presented within the four corners of the affidavit, a warrant-issuing judge had a substantial basis for concluding that probable cause existed." Minks v. Commonwealth, 427 S.W.3d 802, 809 (Ky. 2014) (quoting Commonwealth v. Pride, 302 S.W.3d 43, 49 (Ky. 2010)). If a defendant alleges that police officers procuring the warrant intentionally or recklessly included false statements or purposefully or recklessly omitted material facts, an evidentiary hearing is necessary to determine whether the allegations are true; and if so, whether probable cause existed without the corrupted facts or with the inclusion of the improperly omitted facts. Minks, supra (citing Guth v. Commonwealth, 29 S.W.3d 809 (Ky. App. 2000)).
Where an evidentiary hearing was necessary to evaluate evidence seized pursuant to an allegedly defective warrant, we must determine whether the lower court's findings of fact are supported by substantial evidence. If the findings of facts are amply supported, then they are conclusive. RCr 8.27. If an evidentiary hearing was not necessary, we consider only whether the trial court correctly determined that the issuing magistrate did or did not have a substantial basis to conclude that probable cause existed. Commonwealth v. Pride, 302 S.W.3d 43 (Ky. 2010). Our review of the trial court's legal conclusions is always de novo. Milam v. Commonwealth, 483 S.W.3d 347 (Ky. 2015).
Kentucky Rules of Criminal Procedure.
Phillip's motion to suppress did not allege that the detective who procured the warrant purposefully or recklessly included false statements in - or omitted material facts from - his affidavit. Instead, Phillip's motion challenged the affidavit as insufficient to provide probable cause to search the premises and contended that the delay in its execution caused the warrant to be fatally deficient. David's counsel did not file a separate motion but merely joined in the motion filed by Phillip. As a result, an evidentiary hearing to consider whether the detective's affidavit included purposefully or recklessly false statements or omitted material facts was unnecessary. Minks, supra. Consequently, we consider only whether the trial court erred in its conclusion: that given the timing of the information, there was a substantial basis to believe that probable cause existed to justify issuance of the warrant and that the warrant had been executed on a timely basis.
At the hearing, the Commonwealth protested in earnest that it had received no notice that the defendants would claim that the detective's affidavit included a false statement. --------
Probable cause is a practical, commonsense decision flowing from an evaluation of all the circumstances set forth in an affidavit. After such a review, a court must consider whether there exists a "'substantial basis for . . . conclud[ing]' that a search would uncover evidence of wrongdoing." Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 2331, 76 L.Ed.2d 527 (1983) (quoting Jones v . United States, 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697 (1960), overruled on other grounds by United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980)). An issuing magistrate's determination of probable cause is entitled to great deference. Id.
David and Phillip contend that the trial court erred by concluding that the evidence contained in the affidavit was sufficient to enable the issuing judge to conclude that probable cause existed because the information was "stale" when it was provided and became even more so given the delay in its execution. We are not persuaded by this argument.
"Whether information supporting probable cause is stale 'must be determined by the circumstances of each case.'" Lovett v. Commonwealth, 103 S.W.3d 72, 80 (Ky. 2003) (quoting Sgro v. United States, 287 U.S. 206, 210-11, 53 S.Ct. 138, 140, 77 L.Ed. 260 (1932)). In Ragland v. Commonwealth, 191 S.W.3d 569 (Ky. 2006) (citing United States v. Spikes, 158 F.3d 913 (6th Cir.1998)), the Supreme Court of Kentucky observed that even where a significant period has elapsed since a defendant's last reported criminal activity, it is still possible that, depending upon the nature of the crime, a magistrate may properly infer that evidence of wrongdoing is still to be found on the premises.
Information was provided by Detective Terry's confidential informant regarding the nature of the criminal activity at the premises and his direct observations of narcotics and related paraphernalia to be found there. That information was not stale at the time that it was presented by Detective Terry in his application for the warrant. At least two reasons support this conclusion.
First, the very character of the alleged crime suggested that evidence of its commission would likely still be found upon the premises. The information received and corroborated by Detective Terry indicated that David and Phillip were engaged in an ongoing business enterprise: manufacturing methamphetamine. The enterprise requires the gathering of materials at a single location and demands further time for production. These elements suggest a fair probability that evidence of contraband or evidence of a crime would still be found at the location to be searched even after 48 hours had elapsed subsequent to its last observation at the premises.
Second, the place to be searched suggested that evidence of the suspected crime would remain there indefinitely. The premises to be searched included the Maddles' residence and garage. These places could be regarded as secure bases for operation - especially safe for David and Phillip, who continued to reside there. The very nature of the premises suggested that evidence of the suspected crime would continue to be found there for an extended period. Thus, the trial court did not err by rejecting the contention that the information was stale when it was presented in the application for the warrant. The nature of the information provided continued to support a finding of probable cause. Furthermore, for these same reasons, we are not persuaded that the five-day delay in the warrant's execution following its timely issuance caused probable cause to dwindle.
Examining the facts and circumstances of this case, we conclude that the trial court did not err by determining that the warrant for the Maddles' premises was properly issued and that it was executed within a reasonable time. Therefore, we affirm the judgments of conviction.
ALL CONCUR. BRIEF FOR APPELLANT:
DAVID W. MADDLE F. Todd Lewis
Louisville, Kentucky BRIEF FOR APPELLANT:
PHILLIP L. MADDLE Ryan Vantrease
Louisville, Kentucky BRIEFS FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Courtney Hightower
Assistant Attorney General
Frankfort, Kentucky