Opinion
NO. 2016-CA-001825-MR NO. 2017-CA-000177-MR
04-13-2018
GARY WARICK APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE AND GARY D. WARICK APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Karen Shuff Maurer Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Todd D. Ferguson Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JOHNSON CIRCUIT COURT
HONORABLE JOHN DAVID PRESTON, JUDGE
ACTION NO. 14-CR-00225 APPEAL FROM FLOYD CIRCUIT COURT
HONORABLE THOMAS M. SMITH, JUDGE
ACTION NO. 14-CR-00102 OPINION
AFFIRMING
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BEFORE: DIXON, NICKELL, AND THOMPSON, JUDGES. DIXON, JUDGE: Gary D. Warick appeals separate judgments entered by the Johnson Circuit Court and the Floyd Circuit Court following conditional guilty pleas. Warick's plea agreement reserved his right to appeal the denial of his motion to suppress evidence. After careful review, we affirm.
On June 5, 2014, Warick, along with "Mr. Bertram and Ms. Bertram," drove to the Dairy Queen in Prestonsburg, Floyd County, Kentucky. After ordering, Warick was asked to pull into a parking space and wait for his food. Unbeknownst to Warick, a Dairy Queen employee had seen an open alcohol container in his car and called the police.
Mr. and Ms. Bertram's first names do not appear in the record.
Officer George Tussey of the Prestonsburg Police Department arrived at the scene within minutes to investigate a possible motorist driving under the influence (DUI). He was soon joined by other members of the Prestonsburg Police Department and Emit Thompson, of the Kentucky Attorney General's Office and a task force officer with the Drug Enforcement Administration. Upon arrival, Officer Tussey saw the open alcohol container and asked Warick to exit the vehicle. Warick was then given a field sobriety test, which he passed, and blew a "triple 0" in a preliminary breath test. A subsequent pat-down search revealed Warick had approximately $3,000 cash in his pocket. Mr. Bertram was also asked to exit the vehicle. A marijuana cigarette and hypodermic needle and syringe were discovered during a search of Bertram's person.
After discovering these items, Officer Tussey called a K-9 unit to the scene, which arrived approximately twenty-seven minutes after the stop. While approaching Warick's vehicle, the K-9 unit was alerted to a grassy area approximately ten to fifteen feet from where Warick's vehicle was parked. A small bag of marijuana and a pill bottle with Warick's name on it were discovered in the grassy area. The pill bottle was labeled "levaquin" but actually contained seven oxycodone pills. The officers then obtained a warrant to search the interior of Warick's vehicle. A napkin, suspected to be a drug ledger, and three cell phones were discovered in the interior. One of the phones was receiving incoming text messages containing language consistent with language used in narcotic transactions.
The next day, Thompson obtained a warrant to search Warick's residence in Johnson County, Kentucky. A bag of marijuana, a set of scales, a notebook that appeared to be a drug ledger, and approximately forty marijuana plants growing near the residence were discovered during the search.
Thompson testified at an evidentiary hearing that forty plants were discovered. Warick, citing a forensic report in the record, alleges thirty-three plants were discovered.
Warick was subsequently indicted in Floyd County for trafficking in a controlled substance in the first degree; tampering with physical evidence; possession of a controlled substance that was not in original container; possession of an open alcoholic beverage container in a motor vehicle; improper parking; and being a persistent felony offender in the second degree. Warick was indicted in Johnson County for cultivating marijuana (more than five plants) and being a persistent felony offender in the first degree.
Warick then filed multiple motions to suppress, alleging, inter alia, that the police obtained warrants to search his vehicle and residence by unduly prolonging a DUI stop. Following an evidentiary hearing and oral arguments in the Floyd County case, the trial court denied the motion. The trial court found the search and seizures by the Prestonsburg Police Department to be reasonable because they resulted from the natural progression of events related to the DUI stop. Warick then entered conditional pleas to both criminal cases, reserving his right to appeal the denial of his motions to suppress. He was convicted of possession of a controlled substance in the third degree in the Floyd County case and possession of marijuana in the Johnson County case. Warick then filed these appeals, and we later granted his motion to consolidate.
We must first address the Commonwealth's argument that Warick's appeals should be dismissed as untimely. Judgment in the Johnson County case was entered on November 2, 2016, and judgment in the Floyd County case was entered on November 23, 2016. Under Kentucky Rules of Criminal Procedure (RCr) 12.04, Warick had thirty days to file a notice of appeal. On December 2, 2015, Warick, through counsel, filed a notice of appeal for the Johnson County case. On December 5, 2016, Warick, proceeding pro se, filed a notice of appeal along with a motion to proceed in forma pauperis in the Floyd County case. The Floyd Circuit Court denied the motion to proceed in forma pauperis. On January 24, 2017, Warick filed another notice of appeal with the Floyd Circuit Court along with the required filing fee.
Under Kentucky Rules of Civil Procedure (CR) 73.02(2), failure to timely file a notice of appeal "shall" result in a dismissal but "[f]ailure to comply with other rules relating to appeals or motions for discretionary review does not affect the validity of the appeal or motion, but is ground for such action as the appellate court deems appropriate[.]"
In Foxworthy v. Norstam Veneers, Inc., 816 S.W. 2d 907 (Ky. 1991) the Supreme Court of Kentucky interpreted the language in CR 73.02(2) as requiring substantial, not strict, compliance. Id. at 909. Thus, the Court held that failure to timely pay a filing fee is neither automatically fatal nor a jurisdictional prerequisite to filing a notice of appeal. Id. at 910.
Warick filed notices of appeal within the required time limit. Under the doctrine of substantial compliance, his failure to pay the required filing fee within thirty days of the trial court's judgment did not divest this Court of jurisdiction. Thus, Warick's appeal was timely. Because he was proceeding pro se, we decline to impose sanctions for his failure to timely pay the required filing fee. We now turn to the suppression issue.
A different panel of this Court reached the same conclusion under similar facts. See Butler v. Commonwealth, 2003-CA-001182-MR, 2004 WL 405993, at *3 (Ky. App. Mar. 5, 2004).
The standard of review of a trial court's decision on a motion to suppress evidence consists of a two-pronged analysis. Turley v. Commonwealth, 399 S.W.3d 412, 417 (Ky. 2013). "First, we will affirm the trial court's findings of fact if those findings are supported by substantial evidence." Id. "Second, if the court's findings of fact are supported by substantial evidence, we then conduct a de novo review of the court's application of the law to the facts." Id.
Warick argues the probable cause to search his vehicle and residence was obtained through a dog sniff occurring after the police accomplished the purpose of the DUI stop; therefore, the evidence seized while executing these warrants was obtained by exploiting an unduly prolonged traffic stop and should have been suppressed under the fruit of the poisonous tree doctrine. The Commonwealth argues Warick lacks standing to challenge the seizure of evidence obtained from the K-9 unit's alert because the dog sniff occurred in an area in which he had no expectation of privacy. We agree with the Commonwealth that Warick has not established standing to challenge the dog sniff.
The fruit of the poisonous tree doctrine requires suppression of any evidence obtained as a direct result of a violation of the defendant's rights as well as any evidence obtained by exploiting the original violation. Stevens v. Commonwealth, 354 S.W.3d 586, 590 (Ky. App. 2011). To invoke the doctrine, the defendant bears the burden of establishing standing to challenge the search. Ordway v. Commonwealth, 352 S.W.3d 584, 592 (Ky. 2011). Standing requires proof the defendant had a "reasonable expectation of privacy" in the place searched. Watkins v. Commonwealth, 307 S.W.3d 628, 629-30 (Ky. 2010) (citing Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)). An expectation of privacy is reasonable when "(1) the individual manifests a subjective expectation of privacy in the object of the challenged search; and (2) society is willing to recognize that subjective expectation as reasonable." Hause v. Commonwealth, 83 S.W.3d 1, 11 (Ky. App. 2001) (quoting LaFollette v. Commonwealth, 915 S.W.2d 747, 749 (Ky. 1996)).
In this case, the dog sniff occurred away from Warick's vehicle, and the small bag of marijuana and pill bottle were discovered in the grassy area adjacent to the Dairy Queen parking lot. This parking lot was accessible to the public. Warick has not attempted to establish a reasonable expectation of privacy in such an area. He therefore lacks standing to challenge the dog sniff.
Resolving the standing issue demonstrates that the trial court correctly found there was no illegally-obtained evidence to suppress. Lawful actions incident to the DUI stop led to the discovery that Warick had an unusually large amount of cash on his person and that a passenger in his car possessed marijuana and drug paraphernalia. The dog sniff, which Warick had no standing to challenge, led to the discovery of a bag of marijuana and a pill bottle, with Warick's name on it, containing oxycodone pills that were not in their original container. Even if the DUI stop should have ended earlier, the evidence taken from Warick's vehicle was seized while executing a search warrant based on information obtained without violating Warick's constitutional rights against unreasonable searches and seizures. Thus, the trial court did not misapply the law to the undisputed facts when it denied Warick's motion to suppress.
For reasons stated herein, the judgments of the Johnson Circuit Court and the Floyd Circuit Court are affirmed.
NICKELL, JUDGE, CONCURS.
THOMPSON, JUDGE, DISSENTS AND WILL NOT FILE SEPARATE OPINION. BRIEFS FOR APPELLANT: Karen Shuff Maurer
Department of Public Advocacy
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Todd D. Ferguson
Assistant Attorney General
Frankfort, Kentucky