BRANDON SCOTT ROBERTS v. COMMONWEALTH OF KENTUCKY and DEANNA ELDRIDGE v. COMMONWEALTH OF KENTUCKY

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RENDERED: March 26, 1999; 10:00 a.m. NOT TO BE PUBLISHED C ommonwealth O f K entucky C ourt O f A ppeals NO. 1997-CA-002467-MR BRANDON SCOTT ROBERTS APPELLANT APPEAL FROM SIMPSON CIRCUIT COURT HONORABLE WILLIAM HARRIS, JUDGE ACTION NO. 97-CR-00012 v. COMMONWEALTH OF KENTUCKY TBHW: APPELLEE NO. 1997-CA-002468-MR DEANNA ELDRIDGE v. APPELLANT APPEAL FROM SIMPSON CIRCUIT COURT HONORABLE WILLIAM HARRIS, JUDGE ACTION NO. 97-CR-00012 COMMONWEALTH OF KENTUCKY APPELLEE OPINION AFFIRMING ** ** ** ** ** BEFORE: EMBERTON, GARDNER, AND MILLER, JUDGES. MILLER, JUDGE: Brandon Scott Roberts (Roberts) brings Appeal No. 1997-CA-002467-MR from a September 18, 1997, judgment of the Simpson Circuit Court. Deanna Eldridge (Eldridge) brings Appeal No. 1997-CA-002468-MR from a September 18, 1997, judgment of the Simpson Circuit Court. We affirm both appeals. The facts are these: On January 13, 1997, a Simpson County Grand Jury indicted Roberts and Eldridge on one count of cultivation of marijuana over five plants (Ky. Rev. Stat. (KRS) 218A.1423(2)), one count of possession of drug paraphernalia (KRS 218A.500(2)), and one count of trafficking in marijuana less than eight ounces (KRS 218A.1421(2)). The evidence underlining these charges was obtained when executing a search warrant for Roberts's residence. Believing the warrant invalid, Roberts and Eldridge filed a motion to suppress evidence. A hearing was held upon the motion, and the court ultimately entered an order overruling same. Subsequently, Roberts and Eldridge entered conditional pleas of guilty to the charges, thereby reserving their right to appeal the circuit court's overruling of their suppression motion. Ky. R. Crim. Proc. 8.09. Roberts and Eldridge each received a sentence of two years' imprisonment. This appeal followed.1 Roberts and Eldridge contend that the circuit court committed reversible error by overruling their motion to suppress evidence. The circuit court did indeed find that the search 1 The Commonwealth urged this court not to review Roberts's and Eldridge's claims of error because the video tape of the suppression hearing was not part of the record on appeal. It appears, however, that the Commonwealth is in error. The video tape was specifically designated and included in the record on appeal. -2- warrant lacked probable cause. Specifically, the court concluded: [T]he search warrant issued by District Judge Wakefield on September 24, 1996, was not sufficiently supported by probable cause inasmuch as the affidavit of Detective Hopson failed to establish any time connection between the confidential informant's asserted knowledge and the time of the affidavit. . . . Also, the affidavit is conclusionary [sic] and fails to set forth sufficient factual information to establish probable cause. Even under the “totality of circumstances” test of Beemer v. Commonwealth . . . [Ky., 665 S.W.2d 912 (1984)], the affidavit is inadequate and the search warrant accordingly is invalid. Relying upon the “good faith” exception enunciated in United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984), the circuit court held that the evidence seized through execution of the constitutionally infirm warrant was nonetheless admissible. Its ratiocination was as follows: (3) The Court finds from the evidence adduced that Detective Hopson was acting in good faith in his reliance on the search warrant when he conducted his search, for the following reasons: (a) Neither Detective Hopson nor Chief Powell misrepresented any information to Judge Wakefield, nor did they conceal any information which would have caused Judge Wakefield not to issue the search warrant; (b) The search warrant was issued after regular office hours and in accordance with the customary practice in Simpson County, Kentucky, Detective Hopson did not seek the assistance of the County Attorney or the Commonwealth's Attorney in preparing his affidavit, and instead prepared same himself; (c) Detective Hopson is an experienced police officer who had prepared search -3- warrant affidavits in the past and he augmented the information related by the confidential informant through Chief Powell by an independent confirmatory investigation as shown in his affidavit; (d) There was no “misconduct” on the part of Detective Hopson; (e) The search warrant was issued by an experienced District Court Judge, whose status as a neutral and detached magistrate is not in issue . . . . This Commonwealth adopted the “good faith” exception of Leon in Crayton v. Commonwealth, Ky., 846 S.W.2d 684 (1992). Under the precepts of Leon and Crayton, we are compelled to agree with the circuit court that the police reasonably relied upon the invalid search warrant, thus justifying invocation of the good faith exception. We reach such decision reluctantly. While we are bound to follow Crayton, we nevertheless harbor grave doubt concerning the path followed therein. 1.030(8)(a). Rule of the Supreme Court In this Commonwealth, we believe it fundamental that a search warrant procured without probable cause is in direct violation of §§ 10 and 26 of the Kentucky Constitution. Evidence seized through execution of same likewise offends our constitution and should not be validated by a judicially created so-called “good faith” exception. Indeed, there is little doubt but that history's greatest atrocities have been buttressed by “good faith” convictions. Crayton's tenuous foundation was eloquently exposed in Justice Combs's dissent, which stated in relevant part as follows: . . . I believe the issue is more accurately stated as whether the government may violate -4- the Constitution, and then compound the wrong by using ill-gotten evidence to incriminate the very victim of its trespass. Cardozo's statement of the issue begs the question. It presumes to characterize the appellant as a “criminal,” whereas the real question is the validity of a conviction obtained not pursuant to the law of the land, but in direct contravention of it. Section 10 of the Constitution of Kentucky contains an absolute mandate and an absolute prohibition: [1] The people shall be secure in their persons, houses, papers and possessions, from unreasonable search and seizure; and [2] no warrant shall issue to search any place or seize any person or thing, without describing them as nearly as may be, nor without probable cause supported by oath or affirmation. (Emphasis added.) Another applicable mandate is found in Section 26: “[E]verything in this Bill of Rights . . . shall forever remain inviolate . . . .” It is given in this case that all three of those directives were transgressed: the judge issued the warrant without probable cause; the police conducted a per se unreasonable search and seizure; and thus two arms of government violated the Bill of Rights. Yet we, defenders of the Constitution, and of the rights which it guarantees, hold that the victim has no redress in the criminal justice system, because the government acted in “good faith.” . . . Our majority, while announcing independence, has nevertheless adopted in toto the view of the United States Supreme Court expressed in the decision of United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). While I do not “ignore the logic and scholarship” of the United States Supreme Court (ante at 687), neither do I doubt its fallibility, nor blink the critical eye when called to apply the Kentucky Constitution. -5- . . . The “cost to society” of the exclusionary remedy, if relevant at all, is the same social cost imposed by the Constitution, which requires probable cause, not “good faith.” Sections 10 and 26 clearly intend that a person shall remain secure, even in his/her crimes, until probable cause is established. Against this legitimate cost, one might weigh the cost of today's result, which vitiates a fundamental individual right, and erodes the Constitution. . . . . . . Section 10 of the Constitution of Kentucky, like the Fourth Amendment of the United States Constitution, prohibits the ancient and oppressive practice of issuing general warrants, i.e., warrants grounded on less than probable cause. See Leon, 468 U.S. at 971, 104 S.Ct. at 3451, Stevens, J., dissenting. Today we cultivate the longdormant seed of the general warrant. Our harvest will not, I think, please the palate. Perhaps our supreme court might reconsider the rule announced in in Crayton. For the foregoing reasons, the judgments of the Simpson Circuit Court are affirmed. ALL CONCUR. BRIEF FOR APPELLANTS: BRIEF FOR APPELLEES: Morris Lowe Bowling Green, KY A. B. Chandler III Attorney General and Christopher M. Brown Frankfort, KY -6-

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