Opinion
NO. 2012-CA-000139-MR
02-15-2013
JAMAAR DESHAWN MAYES APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Steven J. Buck Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Gregory C. Fuchs Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE KIMBERLY N. BUNNELL, JUDGE
ACTION NO. 11-CR-00876-001
OPINION
REVERSING AND REMANDING
BEFORE: DIXON, LAMBERT, AND TAYLOR, JUDGES. LAMBERT, JUDGE: Jamaar Deshawn Mayes has appealed from the final judgment of the Fayette Circuit Court convicting him of drug-related offenses pursuant to a guilty plea conditioned upon his right to appeal the denial of his motion to suppress. Mayes contends that the circuit court improperly held that the plain view exception to the warrant requirement applied. Because we agree with Mayes that the circuit court erred in denying the motion to suppress, we reverse the judgment on appeal.
In July 2011, the Fayette County grand jury indicted Mayes and his wife, Regina Lynn Mayes, in a multi-count indictment. Both Mayes and Reginawere charged with trafficking in a controlled substance pursuant to Kentucky Revised Statutes (KRS) 218A.1412; possession of marijuana pursuant to KRS 218A.1422(2); and possession of drug paraphernalia pursuant to KRS 218A.500(2). The trafficking charge is a Class C felony and the possession charges are Class A misdemeanors. The charges all arose from the events of May 4, 2011, when they were accused by officers from the Lexington Fayette Urban County Police Department of possessing more than four grams of cocaine, marijuana, and drug paraphernalia, including baggies, digital scales and a bong, all with the intent of trafficking in said substances and materials.
We shall refer to Mayes' wife as Regina throughout this opinion for ease of understanding.
After entering a not guilty plea, Mayes filed a motion to suppress the evidence seized from his residence by the police officers, arguing that the evidence was seized as the result of a warrantless search and in the absence of any exigent circumstances. His primary argument was that the evidence seized was not in plain view and its incriminating nature was not immediately apparent. He also contended that the search violated his reasonable expectation of privacy. Regina apparently filed her own motion to suppress, but that motion is not in the record of Mayes's case. She and her attorney were present at and participated in the hearing.
The circuit court held a suppression hearing on October 26, 2011. At the hearing, the witnesses testified both about the discovery of the tin containing marijuana as well as about the subsequent consent Regina provided to the officers to search the residence. We shall focus on the appearance of the tin and discovery of the marijuana, as that is the basis of Mayes's motion to suppress and the present appeal.
The first witness to testify was Officer Roman Fowler of the Lexington Division of Police. He and other members of a specialized unit called the Clear Unit received a complaint that drugs were possibly being sold at an address on Rugby Road. Three officers, Officers Fowler, Thomas, and Green, responded to the complaint by going to the address. Officer Fowler saw a female standing in the doorway to the residence as they were walking towards the house. She was later identified as Regina Mayes. Regina indicated she was a resident of the address, and the officers told her they were there to discuss a narcotics complaint and asked to be admitted to the house. Regina consented, and permitted all three of the officers into the living room area. Regina sat on a couch behind a coffee table while the officers continued to stand on the other side of the coffee table.
While Officer Fowler went into more details about the complaint, Officer Thomas noticed a tin can on the coffee table. Because there was no lid on the tin, they could see marijuana inside of the tin. Officer Thomas told Regina that they could see marijuana in front of her on the table. Officer Fowler read Regina her Miranda rights and told her they had enough information to apply for a search warrant. Regina then consented to a search of the residence after Officer Fowler informed her of the options he could take. Officer Fowler identified the tin when the Commonwealth Attorney presented it to him as an exhibit. He stated that when the officers first saw the tin on the coffee table, the lid of the tin was off and to the side. Officer Fowler was immediately able to identify the substance inside as marijuana. He stated that all of the officers could easily see into the tin from their standing positions in the room a foot away from the table. Once Regina granted consent, she never revoked her consent, and the officers proceeded to search the rest of the residence.
On cross-examination, Officer Fowler testified that the lid was not on the tin when they saw it on the coffee table, although he could not state with certainty where the lid was on the table. He did not see Officer Thomas put the lid on the tin. He then testified concerning photographing evidence at the scene; they took photographs themselves. He denied smelling marijuana before noticing the tin or seeing a hollowed out cigar on the table. He identified the substance as marijuana on the basis of his experience as a police officer. At this point, he read Regina her rights and asked for and received consent to search. The officers opted not to arrest Regina, but rather cited her, because three young children were present in the residence.
Officer Robert Thomas of the Lexington Division of Police was the second witness to testify. He responded to the complaint with Officer Fowler resulting in the charges in this case. Once they entered the house, Officer Thomas noticed the tin containing marijuana on the coffee table in the living room. He stated that the lid was off of the tin, and he did not have to manipulate the tin in any way to identify the substance inside as marijuana. Officer Thomas let Officer Fowler know that there was marijuana on the coffee table, and Officer Fowler addressed this with Regina. Officer Fowler asked for consent to search the home, which they received.
On cross-examination, Officer Thomas stated that when they entered the house, Regina walked to the living room and sat on the couch, while they continued to stand. He indicated that Officer Fowler was sitting on the couch, while Officer Thomas was on the other side of the coffee table. Officer Thomas took the photograph once they had collected all of the evidence, and stated that the lid had been put back on the tin prior to the photograph being taken in order to prepare it for transportation. He did not pick up the tin until they were preparing to leave. Looking at the tin in evidence during the hearing, he described the top of the tin as clear with some paper and muck on it. He agreed that it would be harder to identify marijuana in the tin with the lid on, and would take more investigation to determine what the tin contained. He also agreed that they did not have consent to search when he saw the tin. Officer Thomas identified the photograph he took as an accurate portrayal of the evidence as they placed it on the table, although he was unsure if he took the photograph on the coffee table or the kitchen table. The photograph showed that the lid was on the tin.
The Commonwealth did not call any other witnesses, and the defense called Regina to testify. She recalled the events of May 4, 2011, when the police officers came to her residence and she permitted them to enter. Regina sat on the couch and began to talk to Officer Fowler. She said all of the officers were standing around the coffee table, then said that Officer Fowler was sitting next to her on the couch. Officer Thomas saw the tin can on the glass-covered coffee table. He picked up the can and looked into it before saying that there was marijuana in the tin. On cross-examination by Mayes's counsel, Regina stated she let the officers in her home just to talk about the complaint. She said the tin can was on the table in front of her on the coffee table; she said she was pretty sure, and then that she was sure, that the top was on the tin can. Nothing was beside it on the table, other than an ashtray. She said she had forgotten that the tin was on the table when she brought the officers in and sat on the couch. Officer Thomas picked up the can before saying there was marijuana inside of it, then he put it back on the table.
On cross-examination by the Commonwealth, Regina continued to testify concerning the events that took place. She denied knowing anything about drug activity at her home when Officer Fowler asked her. She remembered seeing the tin before the officers arrived at her house, and the lid was on the tin. She denied being able to recognize marijuana in the tin with the lid on the tin. On redirect examination, Regina stated that she always kept the lid on so nothing would fall out and so that no one could see what was in it. She generally kept the tin under the table.
At the conclusion of the hearing, the court permitted the attorneys for Regina, Mayes, and the Commonwealth to argue their respective positions. Mayes discussed the photograph showing the lid on the tin as well as Regina's testimony that she always left the lid on the tin. With the lid on the tin, counsel argued that it would take getting close to the tin and manipulating it to tell that marijuana was inside of it. The court then made oral findings:
I do find that while there are some factual disputes, some inconsistencies in testimony starting back with, is Officer Fowler sitting on the couch or not sitting on the couch. Had he wanted to, he could have just relied upon his written notes and said "Obviously, I wrote this closest in time to when I did this, and that's got to be right," but his memory of the event was inconsistent with his notes. And so even though Officer Thomas came in and said his notes really were right; he didn't say that, but he could prove that Office Fowler was sitting on the couch, which is probably accurate. But regardless it didn't matter because Officer Fowler's positioning wasn't what was material because I think Ms. Mayes clearly testified that she and Officer Fowler were talking to each other and that's where his attentions were. He was looking at her and she was looking at him, and they were talking to each other.The court also made findings regarding the consent issue before orally denying the motions to suppress. The court entered a written order on October 27, 2011, memorializing the oral ruling and incorporating its oral findings.
Obviously we have a factual dispute about this tin can. Both officers were very clear without any doubt, any inconsistencies, about the top of that can being off. Now while I agree with Ms. Brooks-English [Mayes's attorney] that it doesn't make sense that the top would be off, it also doesn't make any sense that this lady would invite officers to come into her home with a tin can of marijuana sitting on her coffee table and have everybody come on over to the coffee table and let's have a sit down
and talk. That doesn't make any sense. So just cause it's not necessarily logical doesn't mean it didn't happen because that very clearly happened. She said, "Come on in. Let's go over here to the coffee table." She didn't say that, but she goes over to the couch and sits down and it's like, "Dang. There's the can." And so while she didn't think through that very good, I understand that, she was eating. I mean, police knock on the door, she didn't have time to process it very good. But just because it's not logical doesn't mean it didn't happen.
And so I find that there's insufficient evidence to establish that the top was off, therefore I find I agree with Ms. Baird [the Assistant Commonwealth Attorney] that absolutely the officer could have leaned over and looked at the can had he needed do. He didn't testify that's what he needed to do. The officer testified that he found that to be roaches, not the bug variety, but the leftover marijuana cigarette variety, the end of a joint, so to speak, and I think based upon his training and experience it is very clear that it appears to be remnant of joints, marijuana stems, and then probably some trash marijuana left in there. Anyway, I don't have any problem with the plain view portion of what they did.
After the court denied the motion to suppress, Mayes moved to enter a guilty plea to all three charges, conditioned on his right to appeal the suppression ruling. On January 3, 2012, pursuant to the terms of the plea agreement, Mayes was sentenced to five years on the trafficking charge and to twelve-month sentences on the possession charges, which were ordered to run concurrently for a total of five years' imprisonment. The court opted to withhold the imposition of the prison sentence and instead sentenced Mayes to probation for five years subject to several conditions, including that he serve thirty days in custody. This appeal follows.
We take judicial notice that Regina entered a guilty plea and received a probated sentence, and she was ordered to pay court costs of $155.00. In an opinion rendered December 21, 2012, a different panel of this Court reversed the portion of the judgment imposing costs on her and remanded the matter for a determination of whether she was exempt from paying costs as a "poor person" pursuant to KRS 23A.205(2). While it is unclear whether she entered a conditional plea at the trial court level, Regina did not contest the suppression ruling in her appeal. See Mayes v. Commonwealth, 2012 WL 6633133 (2012-CA-0000246-MR) (Ky. App. Dec. 21, 2012). No review was sought, and this opinion became final on February 4, 2013.
On appeal, Mayes continues to argue that the circuit court erred in denying his motion to suppress, noting that the court specifically found that there was insufficient evidence to establish that the lid was off of the tin, meaning that the lid was on the tin, and that the marijuana in the tin could not have been identified or be in plain view. The Commonwealth appears to concede that the court did make a finding that there was insufficient evidence that the top was off of the tin, but argues that this was a misstatement in the context of the rest of the court's findings and that other findings support the court's ultimate ruling. In his reply brief, Mayes points out that it was the court's explicit finding that the top was not on the tin. And because the court chose not to make separate written findings, but instead relied upon its oral findings, it should be the court's responsibility to correct and clarify misstatements, not the responsibility of the parties.
Our standard of review of a ruling on a motion to suppress is two-fold. First, a reviewing court must determine whether the lower court's findings of fact are supported by substantial evidence. If so, such findings are conclusive. Kentucky Rules of Criminal Procedure (RCr) 9.78; Adcock v. Commonwealth, 967 S.W.2d 6, 8 (Ky. 1998). Second, the court must perform a de novo review of those factual findings to determine whether the decision is correct as a matter of law. Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); Commonwealth v. Banks, 68 S.W.3d 347, 349 (Ky. 2001); Garcia v. Commonwealth, 185 S.W.3d 658, 661 (Ky. App. 2006); Stewart v. Commonwealth, 44 S.W.3d 376, 380 (Ky. App. 2000).
"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." Pitcock v. Commonwealth, 295 S.W.3d 130, 132 (Ky. App. 2009), citing Commonwealth v. Whitmore, 92 S.W.3d 76, 79 (Ky. 2002). "On review, the appellate court should not reevaluate the evidence or substitute its judgment of the credibility of the witnesses for that of the jury." Commonwealth v. Suttles, 80 S.W.3d 424, 426 (Ky. 2002), citing Commonwealth v. Jones, 880 S.W.2d 544 (Ky. 1994). "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." Perkins v. Commonwealth, 237 S.W.3d 215, 218 (Ky. App. 2007).
The circumstances of this case place this Court in a curious position. Here, the appellant is not contesting the primary finding made by the trial court; namely, that there was insufficient evidence to establish that the top was off of the tin. Rather, he is contesting the circuit court's ruling in light of that finding, which is an issue of law for this court to decide on a de novo basis. Therefore, we need not address the factual findings because Mayes has not argued that they were improper or unsupported by substantial evidence, and the Commonwealth has not filed a protective cross-appeal on this issue. And while we agree with the Commonwealth that the court's finding might appear to contain a misstatement, neither the court nor the Commonwealth attempted to amend that finding, if indeed it was incorrect. If the court did misstate this particular finding, this misstatement represents a judicial error, and the court lost jurisdiction to amend its ruling, at the latest, ten days after the final judgment was entered. See Kentucky Rules of Civil Procedure (CR) 59.05 ("A motion to alter or amend a judgment, or to vacate a judgment and enter a new one, shall be served not later than 10 days after entry of the final judgment."); and Fagan v. Commonwealth, 374 S.W.3d 274, 278-79 (Ky. 2012), for a discussion of the difference between a judicial error and a clerical error.
On the circuit court's decision to incorporate its oral rulings into its written order, we recognize that the law in the Commonwealth has become somewhat more relaxed. The Supreme Court of Kentucky discussed this statement of the law in Commonwealth v. Marshall, 345 S.W.3d 822, 827-28 (Ky. 2011), a case dealing with probation revocation:
After Gamble, this Court considered whether "a trial court's findings of fact and reasons for revocation entered orally on the record from the bench are sufficient to satisfy due process" in Commonwealth v. Alleman. And despite noting that the United States Supreme Court inA case such as the one before us reminds us that "[a] written order facilitates efficiency for all concerned in the appellate review process, and remains the preferred practice." Commonwealth v. Alleman, 306 S.W.3d 484, 488 (Ky. 2010).
Morrissey v. Brewer expressly requires "a written statement by the factfinders as to the evidence relied on and the reasons for revoking parole[,]" a majority of this Court concluded that videotaped oral findings could sometimes suffice. We said:
[O]ral findings and reasons for revocation as stated by the trial court from the bench at the conclusion of a revocation hearing satisfy a probationer's due process rights, presuming the findings and reasons support the revocation, when they are preserved by a reliable means sufficiently complete to allow the parties and reviewing courts to determine the facts relied on and the reasons for revoking probation.So in Alleman, this Court reversed the Court of Appeals and reinstated the trial court's probation revocation order because the trial court had orally stated on the record its reason for revocation even though its written order only generally stated that the terms of probation were violated without specifying any "other facts or reasons for revoking probation." [Citations in footnotes omitted.]
We are aware that the Supreme Court of Kentucky has amended RCr 8.20, effective January 1, 2013, to address pretrial motions and rulings. RCr 8.20(2) now states, in relevant part, as follows: "When factual issues are involved in deciding a motion, the court shall state its essential findings on the record."
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Turning to the merits of this appeal, we must hold that Mayes has established that he is entitled to relief on appeal. In Commonwealth v. Hatcher, 199 S.W.3d 124, 126 (Ky. 2006), the Supreme Court of Kentucky addressed the constitutional protections against warrantless and unreasonable searches and seizures, and specifically discussed the plain view exception:
The Fourth Amendment of the United States Constitution and Section Ten of the Kentucky Constitution provide safeguards against an unwarranted and unreasonable search and seizure by the state. As espoused by the United States Supreme Court, "searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment-subject only to a few specifically established and well delineated exceptions." Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). One such exception is evidence found within "plain view." Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). See also Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990). In Hazel v. Commonwealth, 833 S.W.2d 831, 833 (Ky. 1992), this Court discussed the elements that must exist before evidence seized pursuant to the "plain view" exception may be admitted:Regarding the "immediately apparent" requirement, the Hatcher Court stated:
First, the law enforcement officer must not have violated the Fourth Amendment in arriving at the place where the evidence could be plainly viewed. Second, "not only must the officer be lawfully located in a place from which the object can be plainly seen, but he or she must have a lawful right of access to the object itself." Finally, the object's "incriminating character must also be 'immediately apparent.'" [Coolidge, 403 U.S. at 466, 91 S.Ct. at 2038.]
The interpretation of "immediately apparent" has presented reviewing courts with significant difficulty. In United States v. McLevain, the Sixth Circuit Court of Appeals noted that "upon viewing the object, the officer must at that moment have probable cause to believe theHatcher, 199 S.W.3d at 127.
object to be contraband or evidence of illegal activity." 310 F.3d 434, 442 (6th Cir. 2002), quoting United States v. Tucker, 305 F.3d 1193, 1198 (10th Cir. 2002). The court further noted that "when an item appears suspicious to an officer but further investigation is required to establish probable cause as to its association with criminal activity, the item is not immediately incriminating." Id. at 443.
Based upon the circuit court's finding that insufficient evidence was presented to establish that the lid was off the tin, we must agree with Mayes that that the marijuana could not be identified in the closed tin without additional investigation on the part of the officers. Officer Thomas specifically testified that he did not lean down to look more closely at the tin before he determined that it contained marijuana. Officer Thomas also agreed that it would be harder to identify marijuana with the lid on and that it would take more investigation to determine what was in the tin. Furthermore, the only photograph introduced into evidence clearly shows that the lid was on the tin. Based upon the circuit court's finding, we must hold that the Commonwealth failed in its burden to establish that the plain view exception applied in this case. The incriminating character of the tin was not immediately apparent because the lid hid its contents. Therefore, we hold that the circuit court erred as a matter of law in denying Mayes's motion to suppress regarding the plain view exception to the warrant requirement and that the court should have suppressed all of the evidence seized from his residence as fruit of the poisonous tree. See Baltimore v. Commonwealth, 119 S.W.3d 532, 539-40 (Ky. App. 2003), citing Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963), and United States v. Rivas, 157 F.3d 364, 368 (5th Cir. 1998) ("Under the fruit of the poisonous tree doctrine, evidence derived from the exploitation of an illegal seizure must be suppressed, unless the government shows that there was a break in the chain of events sufficient to refute the inference that the evidence was a product of the Fourth Amendment violation." (Footnote omitted.)).
For the foregoing reasons, the judgment of the Fayette Circuit Court is reversed, and this matter is remanded for further proceedings in accordance with this opinion.
ALL CONCUR. BRIEFS FOR APPELLANT: Steven J. Buck
Assistant Public Advocate
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Gregory C. Fuchs
Assistant Attorney General
Frankfort, Kentucky