Opinion
NO. 2015-CA-000877-MR
01-20-2017
RICKY DALE SHELTON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Robert C. Yang Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General Courtney J. Hightower Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM CARROLL CIRCUIT COURT
HON. STEPHEN L. BATES, JUDGE
INDICTMENT NO. 14-CR-00127 OPINION
VACATING AND REMANDING
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BEFORE: CLAYTON; JONES; AND NICKELL, JUDGES. JONES, JUDGE: Ricky Dale Shelton ("Ricky") appeals from the Carroll Circuit Court's Final Judgment and Sentence of Imprisonment entered December 9, 2014. The circuit court's judgment was entered following Ricky's guilty plea, conditioned on his right to appeal the circuit court's denial of his suppression motion. For the reasons set forth below, we vacate and remand for further proceedings.
I. BACKGROUND
On June 10, 2014, Kentucky State Police Troopers Brody Jodry and Matt Whalen were checking the national precursor log for recent pseudoephedrine purchases when they noticed that Melissa Rose had purchased pseudoephedrine earlier that day, and had previously been blocked from purchasing the drug. The troopers went to Rose's house and spoke with her husband, who told them that he and his wife were separated, but that she was known to visit with the appellant, Ricky Shelton, at his residence. A subsequent search of the national precursor log indicated that both Ricky and his wife, Dana Harmon Shelton ("Dana"), had extensive histories of pseudoephedrine purchases. The troopers decided to conduct a knock and talk at the Shelton residence, 205 Highway 36 West, Carroll County.
The troopers, along with a third trooper named Gosser, took separate vehicles to the residence. The driveway leading to the Shelton property splits into a Y-intersection, with a house at the end of the right fork, and a garage at the end of the left. As Trooper Jodry drove up the driveway, he saw Dana walking from the garage area toward the house; however, the record is clear that Trooper Jodry did not see Dana actually exit the garage. Dana informed Trooper Jodry that Ricky was in the garage. By this time, Troopers Whalen and Gosser had already gone up to the garage and, without entering, yelled into the garage asking Ricky to come out. When he did, the troopers advised Ricky that they believed that he may be manufacturing methamphetamine in the garage and asked for consent to search. Ricky refused consent until he was able to speak with his attorney. At the suppression hearing, Trooper Jodry admitted that at that time they had only the national precursor logs indicating that Ricky and Dana had made past pseudoephedrine purchases, which would not have been sufficient to obtain a search warrant.
After Ricky refused consent, the troopers discovered that Dana was on parole and had a warrant for her arrest on a parole violation. The troopers contacted Dana's parole officer, Stacy Warren, and asked Warren to come to the residence with a copy of the arrest warrant. When Warren arrived the troopers informed her that they had information that there was an active methamphetamine laboratory in the garage, that Dana had been purchasing pseudoephedrine, and that Ricky had refused consent to search the property. Based on that information, Warren asked the troopers to search the garage.
At the suppression hearing, the testimony indicated that the troopers had no information beyond the pseudoephedrine purchases.
Warren later testified to her belief that all parolees are subject to being searched without a warrant at their property, which she considers any property to which the parolee has access. Dana had listed her address with the parole office as 205 Highway 36 West, the property on which the primary residence is located. While no one had seen Dana accessing the garage, Warren believed that Dana did have access to it by analogizing the situation to her own experience: Warren stated that her husband claims their garage as his own, yet Warren considers herself to have access to it. The troopers searched the garage at Warren's instruction and discovered an active methamphetamine laboratory in a 20-ounce plastic soda bottle located in an office area in the back of the garage. Ricky moved to suppress the evidence discovered in the search of the garage, contending that while Dana does reside and does have access to the property located at 205 Highway 36 West, the garage is located at 200 Highway 36 West and was thus not subject to a warrantless search absent his consent.
At the suppression hearing, a great deal of contention and confusion surrounded, and continues to surround, the address and legal status of Ricky's garage. While the home is recognized as Ricky and Dana's shared residence, and is designated 205 Highway 36 West in Dana's parole paperwork, Ricky states that the garage is known as 200 Highway 36 West, and is owned by Ricky and his brother, Randy Shelton. The deed of conveyance to the brothers of the entire 12-acre lot, encompassing both the house and the garage, indicates that the brothers each own an undivided half interest in the property - but that same deed states that Ricky lives at "205 Highway 36 West" while Randy lives at "200 Highway 36 West." The Property Valuation Administrator for Carroll County seems to view the entire property as 200 Highway 36 West, and the only mailbox for the property refers to 200 Highway 36 West. In other words, the property seems to have originated as a single parcel that acquired a second address through usage, rather than being subdivided into separate lots.
The circuit court denied the motion to suppress in a written order entered October 10, 2014. The Court refers to the property simply as "200/205 Highway 36 West," and states that Warren "had sufficient information to constitute reasonable suspicion that Defendant Dana Shelton was engaged in illegal conduct and that evidence of said illegal conduct would be found in the residence and/or garage located on the subject property." In addition, the court found that:
[r]egardless, pursuant to Bratcher v. Commonwealth, 424 S.W.3d 411 (Ky. 2014), the Fourth Amendment would not have prohibited the Kentucky State Police officers at the request of Probation Officer Warren from conducting a warrantless and suspicionless search of the garage where parolee and Defendant Dana Shelton had just exited as they arrived on the subject property.
Following entry of Ricky's conditional guilty plea, the circuit court entered a Final Judgment and Sentence of Imprisonment on charges of First Offense Manufacturing Methamphetamine and First Offense Complicity to Possession of a Controlled Substance, sentences running concurrently for a total of 10 years served and a fine of $1,000, with a $600 public advocacy fee, in addition to any poundage fees and court costs. This appeal followed.
II. STANDARD OF REVIEW
The standard of a review of a trial court's denial of a motion to suppress is twofold: "First, the trial court's findings of facts are conclusive if they are supported by substantial evidence; and second, the trail court's legal conclusions are reviewed de novo." Milam v. Commonwealth, 483 S.W.3d 347, 349 (Ky. 2015) (citing Commonwealth v. Marr, 250 S.W.3d 624, 626 (Ky. 2008); RCr 9.78).
The Fourth Amendment to the U.S. Constitution and Section 10 of the Kentucky Constitution protect citizens from unreasonable searches and seizures by the government. "A search conducted without a warrant is presumed to violate the Fourth Amendment of the United States Constitution unless it satisfies the criteria of certain exceptions," one of which is valid consent. Hall v. Commonwealth, 438 S.W.3d 387, 390 (Ky. App. 2014) (citing Cook v. Commonwealth, 826 S.W.2d 329, 331 (Ky. 1992)).
III. ANALYSIS
The circumstances surrounding the warrantless search of the garage at 200/205 Highway 36 West, Carroll County, Kentucky are thoroughly muddled by the uncertain legal status of the property upon which the garage sits. What is certain, however, is that at the time the garage was searched the only articulable ground for doing so without a warrant was Dana's status as a parolee. Thus, the core question on appeal is how far the effect of Dana's parolee status should reach. Ricky maintains that the garage is completely separate from the residence that Dana claims on her parole paperwork - it is listed as a separate address, is jointly owned by Ricky and his brother, and is separated from Dana's listed residence by 50 yards - and that Dana does not have enough "control" or "access" to make the garage subject to the conditions of her parole agreement. On the other hand, the Commonwealth argues that it is all the same legal property and that Dana had control and access to all of it, therefore making the warrantless search valid.
The Circuit Court justified the warrantless search of the garage using Bratcher v. Commonwealth, 424 S.W.3d 411 (Ky. 2014), in which the Kentucky Supreme Court follows principles outlined by the United States Supreme Court in Samson v. California, 547 U.S. 843 (2006), to arrive at the conclusion that "the Fourth Amendment presents no impediment against a warrantless and suspicionless search of a person on parole." Bratcher, 424 S.W.3d at 415. While this is the correct analysis as to Dana, it cannot validate the search as to Ricky.
We begin with the United States Constitution, the supreme law of the land. The Fourth Amendment provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV. The Fourth Amendment protects reasonable and legitimate expectations of privacy. Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring). The Fourth Amendment generally prohibits warrantless entry into one's home, whether to search for objects or to make an arrest. Colbert v. Commonwealth, 43 S.W.3d 777, 779 (Ky. 2001). This general prohibition may be overcome by any of the valid exceptions to the warrant requirement, including consent to search. Id.
Dana was on parole at the time officers conducted the search. "Parole is defined as the conditional release of a prisoner from imprisonment before the full sentence has been served." Lackey v. Commonwealth, 468 S.W.3d 348, 353 (Ky. 2015). "[P]arolees have fewer expectations of privacy than probationers, because parole is more akin to imprisonment than probation is to imprisonment." Samson, 547 U.S. at 850. "Parolees, upon their release, enter into a contract allowing their residence to be searched at any time, even absent reasonable suspicion." Kirby v. Lexington Theological Seminary, 426 S.W.3d 597, 616-17 (Ky. 2014). For this reason, "[t]he Fourth Amendment presents no impediment against a warrantless and suspicionless search of a person on parole." Bratcher, 424 S.W.3d at 415. This rule necessarily extends to property under the control of the parolee. Id.
Bratcher has been criticized by at least one federal district court for failing to consider the Kentucky Department of Corrections Policies as one factor relating to the reasonableness of the search. See Jones v. Lafferty, No. CV 5:15-51-KKC, 2016 WL 1255720, at *8 (E.D. Ky. Mar. 29, 2016) ("The Kentucky Supreme Court's reliance upon Moore to conclude that the particular terms of the KDOC Policy are simply not relevant to the reasonableness of the search under the Fourth Amendment was misplaced."). We acknowledge this criticism, but are bound to follow Bratcher.
The parties and the trial court devoted significant time to the question of whether the garage was under Dana's control, even going so far as to examine the deed to the property in great detail. In the context of search and seizure cases, the relevant inquiry is whether the officers reasonably believed that Dana had sufficient control over the garage. Perkins v. Commonwealth, 237 S.W.3d 215, 221 (Ky. App. 2007). We would never require officers to perform a title search or take aerial photographs of a property prior to searching a residence. This would be absurd. For this same reason, we should not spend too long on these types of technical issues in examining the question of control. Instead, we should view the facts as closely as possible through the same lens as the officers did at the time of the search. Here, the garage appeared to be located on the same property as the marital home; Dana was observed by the officers coming from the area of the garage when they arrived; and, there was nothing about the garage that indicated that it was used only by Ricky or that Dana did not have common control and authority over it. Thus, if Dana, Ricky's wife, was the appellant we would affirm the trial court without further inquiry. The issue in this case, however, is that the Appellant is not Dana; it is her husband, Ricky, who was not on parole at the time of the search and who expressly refused to consent to it. This makes our analysis far more complex.
The trial court's ruling on the suppression motion was focused entirely on Dana's status. This is problematic because Fourth Amendment rights "are personal in nature." Steagald v. United States, 451 U.S. 204, 219, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981). A search that is reasonable as to one individual may be unreasonable as to another. Id. We must be cautious not to conflate Ricky's privacy rights with those of his wife. Put another way, it is not Dana's privacy interests that matter here—rather, it is the privacy interests of her co-inhabitant that are of consequence to this case. And, the issue that must be decided in this case is whether any implied consent that could be inferred by Ricky's co-habitation with a parolee was overridden by his express objection to the search of the garage he was occupying when police arrived at his home.
For many years, the general rule was that consent by one resident of a jointly occupied premises was sufficient to justify a warrantless search. See United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). However, in Georgia v. Randolph, the Supreme Court reiterated a narrow exception to this consent rule, holding that "a physically present inhabitant's express refusal of consent to a police search is dispositive as to him, regardless of the consent of a fellow occupant." 547 U.S. 103, 122-23, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006). "A warrantless search of a shared dwelling for evidence over the express refusal of consent by a physically present resident cannot be justified as reasonable as to him on the basis of consent given to the police by another resident." Id. at 120. "Kentucky courts must follow the rule in Randolph that an occupant's voluntary consent to a warrantless premises search is ineffective to bind the co-occupant who is physically present and who objects to the search." Payton v. Commonwealth, 327 S.W.3d 468, 469 (Ky. 2010).
Ricky appears to meet the Randolph requirements. He was physically present in the garage when the police asked to search it and he unequivocally refused to give his consent. The Commonwealth does not contest these facts. Its argument is simply that the Fourth Amendment was not violated because Dana agreed to the search as part of her parole. Of course, as we have already set forth, the fact that the search did not violate Dana's rights does not mean that it was proper as to her husband, a present and objecting individual who was neither on parole nor probation.
This brings us to the next question: can we infer consent or a lesser expectation of privacy from the fact that Ricky was living with a parolee. The reasoning underlying the Supreme Court's view that parolees and probationers have a diminished privacy interest appears not to apply to individuals with whom they live. Parolees and probationers have a low expectation of privacy because their liberty is conditional and because the government "clearly expressed" to them that they were subject to warrantless searches, and they acknowledged this "unambiguously." Samson, 126 S.Ct. at 2199. Neither the parties nor the circuit court addressed whether Ricky was aware of Dana's status and the fact that it allowed police to search their residence.
In invalidating the search in Randolph, the United States Supreme Court was clear that its decision was based on "customary social usage." Randolph, 547 U.S. at 121. The Court explained that customary social usage bears on whether one has a reasonable expectation of privacy vis-à-vis the Fourth Amendment. Id. The Court reasoned "[s]ince the co-tenant wishing to open the door to a third party has no recognized authority in law or social practice to prevail over a present and objecting co-tenant, his disputed invitation, without more, gives a police officer no better claim to reasonableness in entering than the officer would have in the absence of any consent at all." Id. at 114 (emphasis added). It is the "without more" that gives us pause in the case.
Randolph is factually quite different from this case. The wife in Randolph was not on parole. She was cooperating with police, and she was not a target of their search. In our case, Dana was not cooperating. Her consent was obtained because of her status. Police had a right to search her belongings and the areas in her control without a warrant, even if she objected to them doing so. In essence, she gave police a form of irrevocable consent. Therefore, regardless of Ricky's objection, the police had the right to search the garage as related to Dana. While they did so over Ricky's objection, their conduct may have been reasonable even as to Ricky, if Ricky knew about his wife's status and the fact that their home was subject to search. It is difficult to see how Ricky would have a reasonable expectation of privacy if he knew that the marital home was subject to search at any time due to Dana's parole. See, e.g., Taylor v. Brontoli, No. 1:04-CV-0487 GLS/DRH, 2007 WL 1359713, at *1 (N.D.N.Y. May 8, 2007) ("Defendants maintain that the ruling in [Randolph] should not be extended to the facts here because it is undisputed that Taylor was aware that Malloy was on probation and that her trailer was subject to searches. This court agrees. Under these circumstances, Randolph is distinguishable because Malloy's residence was already subject to searches under a probation agreement.").
We are unable to determine from the record before us what Ricky knew about Dana's status and its effect on their residence. Without such facts, we cannot determine whether Ricky had a reasonable expectation of privacy. Therefore, we must remand this matter for additional proceedings. On remand, the trial court should determine whether Ricky had a reasonable expectation of privacy in the common areas he shared with Dana. Ricky's knowledge of Dana's parole conditions and the nature of those conditions should be considered as relevant to his expectations. If the trial court concludes that Ricky had a reasonable expectation of privacy with respect to the garage, it should then apply Georgia v. Randolph to determine whether the search violated Ricky's Fourth Amendment rights. If the trial court determines the search violated Ricky's rights, it should next determine whether suppression is required to remedy the violation. At all times, the trial court should bear in mind that Ricky's privacy rights are separate from Dana's rights.
IV. CONCLUSION
For the foregoing reasons, we vacate the Carroll Circuit Court's Final Judgment and Sentence of Imprisonment entered December 9, 2014, and remand for proceedings consistent with this opinion.
ALL CONCUR. BRIEF FOR APPELLANT: Robert C. Yang
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky