Opinion
NO. 2012-CA-001103-MR
2013-09-20
VICTORIA WALKER APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Roy A. Durham Assistant Public Advocate Lexington, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General M. Brandon Roberts Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE ERNESTO SCORSONE, JUDGE
INDICTMENT NO. 11-CR-0169
OPINION
AFFIRMING
BEFORE: CLAYTON, DIXON AND MAZE, JUDGES. MAZE, JUDGE: Victoria Walker appeals from the May 21, 2012, final judgment of the Fayette Circuit Court which found Walker guilty of one count of possession of drug paraphernalia and sentenced her to twelve months imprisonment, probated for two years. In particular, Walker challenges the denial of a pretrial suppression motion. Because we find no error with the trial court's denial of Walker's motion, we affirm.
On January 1, 2011, Officer Daniel Leddy received an anonymous tip that there was a methamphetamine lab inside of Walker's apartment. Officer Leddy and Officer M. Olivares were both dispatched to investigate the tip, but Officer Leddy arrived at Walker's residence first. Upon arrival, Officer Leddy knocked on the apartment door, whereupon Walker answered. Officer Leddy later testified that he had intended to employ a ruse in order to gain entry into the apartment. Upon opening the door to the apartment, Walker told Officer Leddy "they left." Officer Leddy then informed Walker that he was unclear what was meant by her statement. Walker then stated that the people who had been involved in the disturbance inside her apartment had left. Officer Leddy again told Walker that he did not know what she meant and requested permission to enter the apartment in order to confirm that everyone inside was alright. Walker then permitted Officer Leddy to enter the apartment. Once inside the apartment, Officer Leddy observed a man, later identified as Antonio Smith, abruptly stand from a sitting position and run towards the back of the apartment. Officer Leddy ordered Smith to stop, return to living room, and have a seat on the couch. Officer Leddy then waited for Officer Olivares to arrive.
Upon Officer Olivares' arrival, he performed a protective sweep of the apartment. Officer Olivares discovered a baggie of marijuana in plain view in the hallway and observed a glass crack pipe in plain view in the kitchen. Smith admitted that he had thrown the marijuana down the hallway. Smith was then taken into custody. A protective sweep of the area in which Smith had been sitting then revealed a bag of cocaine and Smith's identification. The identification revealed that Smith had initially lied to the officers about his identity and Smith was then placed under arrest. The officers requested permission to search the remainder of the apartment, and Walker declined. Officer Leddy then left and obtained a search warrant for the apartment. The execution of the search warrant revealed additional drug paraphernalia.
On February 8, 2011, Walker was indicted with one count each of possession of a controlled substance, first degree; possession of marijuana; possession of drug paraphernalia; and being a persistent felony offender, second degree. Walker filed a motion to suppress the evidence discovered in her apartment. Following a suppression hearing, in which Walker argued that Officer Leddy had gained entry into her apartment by means of a coercive rouse, the suppression motion was denied. Thereafter, Walker entered into a conditional guilty plea to one count of possession of drug paraphernalia, for which she received a sentence of twelve months, probated for two years. The remaining charges were dismissed. This appeal followed.
When reviewing the denial of a motion to suppress, we first examine the factual findings of the trial court, which are deemed conclusive if supported by substantial evidence. Kentucky Rules of Criminal Procedure (RCr) 9.78; Smith v. Com., 181 S.W.3d 53 (Ky. App. 2005). Next, we conduct a de novo review of the trial court's application of the law to those facts to determine whether the lower court's decision is correct as a matter of law. Matthews v. Com., 371 S.W.3d 743, 747 (Ky. App. 2011).
On appeal, Walker argues that the evidence should have been suppressed because Officer Leddy had used a rouse to gain entry into her apartment. We disagree. The general prohibition against warrantless searches can be overcome by the consent of either an "individual who is the target of the search or from a third party who possesses common authority over the premises." Com. v. Neal, 84 S.W.3d 920, 923 (Ky. App. 2002). While Walker concedes that she gave Officer Leddy permission to enter her apartment, she maintains that such permission was coerced. It is well established that when consent to search is obtained through coercion, that the resulting consent does not serve to defeat the prohibition against an otherwise warrantless search. Krause v. Com., 206 S.W.3d 922, 924 (Ky. 2006) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)). Whether consent has been acquired by means of coercion is a question of fact. Id.
In this case, the trial court found that Walker had indicated to Officer Leddy that there had been an altercation, at which point Officer Leddy was within his right to follow up and confirm that everyone in the apartment was okay. The trial court further found that the situation was created by the information provided by Walker herself and not a rouse created by Officer Leddy. Our review of the record confirms that these findings are supported by substantial evidence. Although testimony confirmed that Officer Leddy's original intent was to create a rouse to enter the apartment, he further testified that his intent was never carried out, due to the information provided by Walker. Officer Leddy further testified that once he had been informed of a disorder inside the apartment that he had a duty to investigate and that this was the purpose he articulated when he requested and received permission to enter the apartment. Because the trial court found that no rouse existed, we find no error with its denial of Walker's motion to suppress.
For the foregoing reasons, the May 21, 2012 final judgment of the Fayette Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Roy A. Durham
Assistant Public Advocate
Lexington, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General
M. Brandon Roberts
Assistant Attorney General
Frankfort, Kentucky