Opinion
NO. 2014-CA-001685-MR
04-08-2016
JODY POPE APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Matthew W. Boyd Lexington, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Tami Allen Stetler Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE KIMBERLY N. BUNNELL, JUDGE
ACTION NO. 14-CR-00125 OPINION
AFFIRMING BEFORE: COMBS, J. LAMBERT AND THOMPSON, JUDGES. COMBS, JUDGE: Appellant, Jody W. Pope ("Pope"), entered a conditional guilty plea to cultivation of marijuana, five or more plants, first offense. On September 24, 2014, the Fayette Circuit Court entered Final Judgment and Sentence of Probation. Pope now appeals the trial court's denial of his motion to suppress. Pope contends that police officers made a warrantless search of his home after they were dispatched in response to a neighbor's 911 call reporting a possible burglary at Pope's residence. He claims that they acted in violation of the Fourth Amendment of the United States Constitution and of §10 of the Kentucky Constitution. Finding no error, we affirm.
Hall v. Com., 438 S.W.3d 387, 389-90 (Ky. App. 2014), sets forth the constitutional protection against unreasonable searches and seizures as follows:
The Fourth Amendment of the United States Constitution and Section 10 of Kentucky's Constitution provide protection against unreasonable searches and seizures. A basic tenet of Fourth Amendment analysis is that evidence obtained in an illegal or unreasonable search is not admissible in court.
Simpson v. Commonwealth, 474 S.W.3d 544 (Ky. 2015), discusses the applicable standard of review:
At the time of Appellant's trial, RCr 9.78 was in effect and governed pretrial motions to suppress evidence. RCr 9.78 provided that "[i]f supported by substantial evidence, the factual findings of the trial court shall be conclusive." Under RCr 9.78 we apply the two-step process adopted in Adcock v. Commonwealth, 967 S.W.2d 6 (Ky. 1998). First, we review the trial court's findings of fact under a clearly erroneous standard. Welch v. Commonwealth, 149 S.W.3d 407, 409 (Ky. 2004). Under this standard, the trial court's findings of fact will be conclusive if they are supported by substantial evidence. See CR 52.01; Canler v. Commonwealth, 870 S.W.2d 219, 221 (Ky. 1994) (citations omitted). We then "conduct a de novo review of the trial court's application of the law to the facts to determine whether its decision is correct as a matter of law." Payton v. Commonwealth, 327 S.W.3d 468, 471-72 (Ky. 2010) (quoting Commonwealth v. Neal, 84 S.W.3d 920, 923 (Ky.App. 2002)).
Effective January 1, 2015, RCr 9.78 was superseded by RCr 8.27. Unlike its predecessor, RCr 8.27 does not specifically address an appellate standard
of review. However, CR 52.01 provides that findings of fact shall not be set aside unless clearly erroneous. "A finding supported by substantial evidence is not clearly erroneous." Hunter v. Mena, 302 S.W.3d 93, 97 (Ky.App. 2010) (citation omitted). Consequently, the application of CR 52.01 leads us to the identical standard applied under RCr 9.78. Accordingly, while RCr 9.78 has been superseded, the standard of review for a pretrial motion to suppress as stated in Adcock, Welch, Canler, Payton, and Neal, all of which were buttressed by RCr 9.78, remains substantively unaffected.Id. at 546-47 (footnotes omitted).
In its Order of June 17, 2014, denying Pope's Motion to Suppress, the trial court made the following factual findings:
On November 13, 2013, Officer Ray was dispatched to a burglary call at 1990 Parallel Rd. [Pope's residence]. Dispatch advised Officer Ray that a neighbor had called to report a male white [sic] back his car into the driveway of her neighbor's home, that he entered the house from the back and exited the house carrying a television and drove away. She advised that her neighbor was not home because his car was not there. She wrote down the license plate number and provided that to police.
Once Officer Ray arrived, he spoke to the neighbor first and confirmed the information that dispatch had given him. Officer Ray then went to the home. He saw a back window open and the back storm door closed with the wood door partially open. There was no indication of a forced entry.
Officer Ray waited for backup to arrive. Once Officer Halls arrived they entered the home. As they entered they yelled police and no one responded. Officer Ray testified that they entered the home to "clear the residence." He testified that they also entered the home to make sure that no one was inside and that no one was injured. He also testified they entered to avoid future
liability issues. Once inside, the police walked through the entire residence, including the basement that had a closed latch on the door. While inside, the officers viewed illegal items in plain view. They exited the home and called their sergeant.
We have carefully reviewed Officer Ray's testimony at the May 1, 2014, suppression hearing, which provides a substantial evidentiary foundation for the trial court's findings. Therefore, they are conclusive. We review de novo the trial court's application of the law to these facts.
The trial court properly concluded that the officers' initial entry into the home was lawful:
The Court finds the officers had probable cause to believe that a burglary was in progress or had just been completed when they arrived at the home. The Court also finds that an exigency existed to enter the home to determine that no one was injured or that no other suspects were in the home. U.S. v. Brown, 449 F.3d 741 (6 cir. [sic] 2006). While it is not disputed that the neighbor advised the police that they did not believe that the homeowner was home while the burglary occurred and that the neighbor believed the suspect had driven away, the police had a duty to investigate the eye witness reporting of a burglary to determine if everyone was safe.
The manner in which the police conducted the safety sweep was legal, including entry into the basement that was closed by way of a latch on the door.
Pope argues that the trial court erred in applying U.S. v. Brown, 449 F.3d 741 (6 Cir. 2006), and in finding that exigent circumstances justified the warrantless entry into his home.
"The exigent circumstances exception [to the warrant requirement] relies on the premise that the existence of an emergency situation, demanding urgent
police action, may excuse the failure to procure a search warrant." United States v. Radka, 904 F.2d 357, 361 (6th Cir. 1990). To justify a warrantless entry based on exigent circumstances, there must also be probable cause to enter the residence.Brown, at 745. See United States v. Dighera, 2 F. Supp. 2d 1377, 1379 (D. Kan. 1998) ("[I]t appears well-settled that responding to a burglary alarm (or other reports of a possible burglary) is an exigent circumstance authorizing the police to make a warrantless entry to a home.").
In Brown, a police officer was dispatched to Brown's residence in response to a report of an activated security alarm on the exterior basement door. When the officer arrived, the alarm was sounding. A cursory check of the premises revealed that the front door was locked. No car was in the driveway. There was no sign of forced entry, but the exterior basement door was ajar. Upon entering the basement, the officer observed an interior door which was slightly open. The officer smelled what he believed was marijuana as he approached the interior door. He testified that he pushed it open quickly to catch anyone off guard who might be inside. No one was inside, but the room contained what appeared to be an indoor marijuana growing operation. Brown filed a motion to suppress the evidence on grounds that the officer's warrantless entry and search were in violation of his Fourth Amendment rights. The district court denied the motion.
On appeal, Brown contested the district court's finding that entry into his residence was justified by exigent circumstances. The Court disagreed. "This and other circuits have held that an officer may lawfully enter a residence without a warrant under the exigent circumstances exception when the officer reasonably believes a burglary is in progress." Id. at 748. The Court also disagreed with Brown's argument that the district court erred in finding probable cause merely because the officer did not find evidence of forced entry. "[I]t is the totality of the circumstances and not the presence of pry marks or a broken window that is determinative." Id.
Brown argued that even if the initial entry were lawful, the search of the interior basement room exceeded the scope justified by exigent circumstances. Again, the Court disagreed. "On the contrary, the exigent circumstances justified the brief and cursory inspection of the premises, including the interior room in the basement where an intruder could be hiding or a resident restrained." Id. at 750.
In the case before us, Pope contends that the Commonwealth failed to prove that an exigent circumstance existed because "law enforcement . . . [was] told that the suspect and the sole resident were not inside the house." We disagree. Without entering the residence, the officers could not have known if anyone were hiding, injured, or restrained inside. We find no error in the trial court's conclusion that "an exigency existed to enter the home to determine that no one was injured or that no other suspects were in the home." Its decision is amply supported by substantial evidence.
We affirm the denial of the motion to suppress.
ALL CONCUR. BRIEF FOR APPELLANT: Matthew W. Boyd
Lexington, Kentucky BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky Tami Allen Stetler
Assistant Attorney General
Frankfort, Kentucky