Opinion
NO. 2016-CA-001942-MR
01-25-2019
BOBBY JOE WADDELL APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Molly Mattingly Assistant Public Advocate Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Jesse L. Robbins Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM MUHLENBERG CIRCUIT COURT
HONORABLE BRIAN WIGGINS, JUDGE
ACTION NO. 16-CR-00181 OPINION
AFFIRMING
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BEFORE: TAYLOR, K. THOMPSON, AND L. THOMPSON, JUDGES. TAYLOR, JUDGE: On November 28, 2016, Bobby Waddell entered a conditional guilty plea to first-degree trafficking in a controlled substance and trafficking in synthetic drugs, reserving the right to appeal the Muhlenberg Circuit Court's denial of his motion to suppress evidence seized from his residence. On December 14, 2016, the Muhlenberg Circuit Court entered Judgment and Final Sentencing on Waddell's guilty plea, sentencing Waddell to eight-years' imprisonment. Waddell argues on appeal that the search of the residence where he was staying while on parole was improper. We disagree and affirm.
In June 2016, Detective Troy Gibson received information from confidential informants of drug activity at a residence where Waddell was allegedly residing. Gibson had previously arrested someone for purchasing illegal drugs from that residence. Gibson surveilled the residence at issue multiple times and observed suspected drug activity, as well as vehicles registered to Waddell parked nearby. Because Waddell was on parole, Gibson informed the Department of Probation and Parole of the information.
On June 7, 2016, Gibson, along with Probation and Parole Officers Tommy Kirkpatrick and Paul Newman - neither of whom was Waddell's assigned parole officer - went to the residence. Waddell's truck was parked nearby. Kirkpatrick knocked on the door, and when Sarah Morris answered he asked her if Waddell lived there. Morris initially denied that Waddell resided there. After some prodding by Kirkpatrick, she acknowledged that Waddell stayed there sometimes. Morris indicated to the officers that Waddell was currently at the residence and she called out for him. With neither an invitation nor objection from Morris, Kirkpatrick entered the residence and motioned for Newman and Gibson to follow him.
Morris told Newman that James Dennison was downstairs, so Newman and Gibson proceeded there. According to Newman, they went downstairs due to officer safety and because Newman wanted to speak to Dennison, who Newman had previously been assigned to supervise while Dennison was on parole. Dennison affirmed to Newman that Waddell sometimes stayed at the residence. While that conversation was ongoing, the officers observed what they believed was marijuana in plain view. After Dennison denied their request to search the house, they cleared the residence and obtained a search warrant. During the subsequent search, they found illegal drugs, which Waddell admitted were his.
Waddell, Morris and Dennison were indicted on various drug offenses. Following their indictment, Morris and Dennison filed a motion to suppress the evidence found in the search, which Waddell joined in. Upon conducting two evidentiary hearings, the Muhlenberg Circuit Court denied the motion to suppress by order entered November 14, 2016. Thereafter, Waddell entered a conditional guilty plea to, inter alia, first-degree trafficking in a controlled substance, and trafficking in synthetic drugs, for which he was sentenced to eight-years' imprisonment. This appeal followed. The lone issue raised by Waddell on appeal is whether the entry into the residence by the officers was improper and thus violated Waddell's Fourth Amendment rights.
Officers Tommy Kirkpatrick, Paul Newman and Troy Gibson testified at the first hearing; Bobby Jo Waddell's designated parole officer, Cynthia Moore, testified at the second, over the defendants' objection. Generally, the officer testified about difficulties she had encountered in getting accurate information as to Waddell's residence and to his having admitted during parole revocation proceedings that he resided with James Dennison. However, Moore was not part of the home visit - indeed, she did not even know about it for several days afterwards. Because evidence unknown at the time of the official action cannot be retroactively used to justify it, the testimony at the second hearing was irrelevant. See, e.g., Strange v. Commonwealth, 269 S.W.3d 847, 851 (Ky. 2008) ("Additional factors cited by the Court of Appeals . . . did not become known until after the seizure and cannot therefore be factors articulated to justify the reasonableness of the seizure."); Maryland v. Garrison, 480 U.S. 79, 85 (1987) ("But we must judge the constitutionality of their conduct in light of the information available to them at the time they acted. Those items of evidence that emerge after the warrant is issued have no bearing on whether or not a warrant was validly issued.").
This Court's standard of review of a trial court's denial of a motion to suppress requires a two-step analysis. First, the trial court's factual findings are conclusive if supported by substantial evidence. Milam v. Commonwealth, 483 S.W.3d 347, 349 (Ky. 2015). Second, the court's application of the law to those facts is reviewed de novo. Simpson v. Commonwealth, 474 S.W.3d 544, 547 (Ky. 2015).
There is no dispute that Waddell was on parole at the time of the events relevant to this appeal. And, it is also unrefuted that Waddell was a resident of the house where he was confronted by the officers. Persons on parole have greatly diminished expectations of privacy. See, e.g., Bratcher v. Commonwealth, 424 S.W.3d 411, 413-14 (Ky. 2014). The Kentucky Supreme Court has held that "[t]he Fourth Amendment does not prohibit a police officer from conducting a suspicionless search of a parolee." Id. at 415 (citing Samson v. California, 547 U.S. 843, 857 (2006)). Thus, Waddell's argument that the authorities lacked reasonable suspicion to enter the residence because of Waddell's parole status is without merit.
Waddell seems to fleetingly argue that Bratcher v. Commonwealth, 424 S.W.3d 411 (Ky. 2014) is not dispositive because it is based solely on the federal constitution and not its state counterpart, Section 10 of the Kentucky Constitution. We reject any argument that Section 10 somehow provides greater protection than does the Fourth Amendment. See, e.g., Cobb v. Commonwealth, 509 S.W.3d 705 (Ky. 2017). Similarly, Waddell's argument that the entry into the home was improper because, unlike himself, Sarah Morris and/or Dennison did not have reduced expectations of privacy is without merit as there were ample indicia that Waddell resided at the residence at issue and, in any event, rights under the Fourth Amendment are personal. See, e.g., Rakas v. Illinois, 439 U.S. 128 (1978); Garcia v. Commonwealth, 185 S.W.3d 658 (Ky. App. 2006).
Notwithstanding, we have examined Waddell's argument on appeal in regard to the reasonable suspicion standard. "Reasonable suspicion 'is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence.'" Williams v. Commonwealth, 147 S.W.3d 1, 5 (Ky. 2004) (quoting Illinois v. Wardlow, 528 U.S. 119, 123 (2000)). In this case, the officers involved had sufficient information to meet the reasonable suspicion test: Officer Gibson had previously arrested someone for buying drugs at that residence; he had observed what he believed to be drug transactions at the residence; he had information from confidential informants that Waddell was living there; Gibson had observed Waddell's vehicle(s) regularly parked nearby the residence; and, prior to their entry of the residence Morris had acknowledged that Waddell was present and sometimes resided on the premises; and, of course Waddell was a parolee.
Waddell later acknowledged to his parole officer that he had resided at the residence with Dennison for a couple of months.
Based upon all those factors, the officers had reasonable suspicion to enter the house given the possible parole violations and the fact that the house was Waddell's residence. Without objection and once inside the residence, there was no indication given by any witness that Waddell, as a resident, did not have access to or control over the downstairs area. Accordingly, the officers were permitted to go downstairs to conduct a protective sweep, after which they observed incriminating evidence in plain sight. See, e.g., Simpson v. Commonwealth, 474 S.W.3d 544, 549 (Ky. 2015) ("Drug houses, and their occupants, inherently pose dangers to police officers. Under the totality of the circumstances, this more expansive protective sweep was justified because of the reasonable concern that unseen additional persons may be on the premises posing a threat to the officers.").
The validity of the search warrant issued below is not an issue in this appeal. --------
Accordingly, we conclude that entry into the residence under the facts of this case was permissible. The conduct of the officers did not violate Waddell's Fourth Amendment rights.
For the foregoing reasons, we affirm the Muhlenberg Circuit Court's Judgment and Final Sentencing in this case.
L. THOMPSON, JUDGE, CONCURS.
K. THOMPSON, JUDGE, CONCURS IN RESULT ONLY. BRIEFS FOR APPELLANT: Molly Mattingly
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Jesse L. Robbins
Assistant Attorney General
Frankfort, Kentucky