COMMONWEALTH OF KENTUCKY v. DAVID OPELLAnnotate this Case
RENDERED: February 19, 1999; 2:00 p.m.
TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
COMMONWEALTH OF KENTUCKY
APPEAL FROM LAWRENCE CIRCUIT COURT
HONORABLE JAMES A. KNIGHT, JUDGE
ACTION NO. 97-CR-000001
REVERSING AND REMANDING
** ** ** ** **
JOHNSON, KNOX AND SCHRODER, JUDGES.
The Commonwealth has appealed pursuant to
Kentucky Revised Statutes (KRS) 22A.020(4) from an order of the
Lawrence Circuit Court entered on October 29, 1997, suppressing
from evidence all items seized during a search conducted by
police officers on August 31, 1996.
We reverse and remand.
On August 31, 1996, the appellee, David Opell (Opell),
was observed near his home by Fish and Wildlife Officer Carl
Salyers (Officer Salyers) tending to several marijuana plants.
Officer Salyers made a videotape of Opell riding on a three-wheel
vehicle between his residence and the marijuana plants.
Salyers reported Opell’s activity to Detective Robert Garnes
(Detective Garnes) of the Kentucky State Police that same day.
Detective Garnes prepared an affidavit for a search
warrant which stated in part as follows:
[O]n the 31st day of August, 1996, at
approximately 14:00 p.m., Affiant received
information from Carl Salyers from the
Department of Fish and Wildlife. Salyers
[and] Officer Dale McKenzie observed David
Opell tending to marijuana on property close
to his residence. Opell drove a threewheeler from his residence to the marijuana
and then back to his residence. According to
information received from Salyers, Opell
picked leaves from one of the plants and
drove back to his residence. Salyers and
McKenzie counted more than five marijuana
plants growing in the area acting on a tip
from an anonymous informer. Salyers and
McKenzie spotted marijuana growing from the
Detective Garnes also prepared a search warrant which
described Opell’s residence on McIntire Hollow Road and all
vehicles on the premises as places to be searched for marijuana
and those items used in the cultivation and distribution of any
Detective Garnes could not locate a judge
in Lawrence County to authorize the search, but eventually
contacted Boyd District Court Judge, the Honorable Marc Rosen,
who reviewed the affidavit and signed the search warrant.
Later on August 31, 1996, Detective Garnes, accompanied
by Officers Salyers and McKenzie and another unidentified Fish
and Wildlife officer, and two sergeants and three troopers from
the Kentucky State Police, went to Opell’s residence to execute
the search warrant.
Opell was not at home when the officers
A search of the house resulted in the seizure of seven
white pills and a set of 100 gram scales.
Outside the house the
officers discovered two Honda three-wheel vehicles, one of which
was identified by Officer Salyers as the one used by Opell
earlier in the day to tend the marijuana plants.
checked the serial number on the other three-wheel vehicle
through the National Crime Information Center (NCIC) computer and
learned it had been stolen.
The officers also found and seized a
total of 31 marijuana plants on the property near where Opell had
been observed earlier in the day.
As the officers were preparing to leave, Opell pulled
into his driveway in a rental car.
He was wearing the same
clothes he had been wearing when videotaped by Officer Salyers.
Opell was immediately placed under arrest by Detective Garnes for
the crime of cultivating marijuana and the officers proceeded to
search the rented vehicle.
containing blue pills.
They found and seized a pill bottle
In the trunk, they found a bag with
$11,025 in cash and a bank envelope.
Opell was indicted by the Lawrence County Grand Jury on
February 14, 1997.
On May 16, 1997, Opell moved to suppress the
evidence obtained from the rental car, alleging it was seized as
a result of a “warrantless” search.
Since officers had found no
contraband in the vehicles he owned, Opell argued they had no
probable cause to search the rental car.
He moved to suppress
any evidence obtained by the officers after checking the serial
number on the three-wheel vehicle and argued that the search
warrant “[did] not describe any Three-Wheeler [sic] to be seized
and [did] not authorize the seizure of any Three-Wheeler [sic].”
Finally, he contended that all evidence seized as a result of the
issuance of the search warrant should be suppressed because it
was “impossible” for the court to determine whether or not the
information received from Officer Salyers was “stale.”
The Commonwealth responded that the search warrant
authorized the officers to search “two particular types of
vehicles on the premises as well as
’. . . any and all other
vehicles on the premises.’”
It also argued the car was searched
incident to Opell’s arrest.
The Commonwealth argued it was
entitled to seize the three-wheeler, identified by Officer
Salyers as the one used by Opell when tending to the marijuana
plants, under the authority of Horton v. California, 496 U.S.
128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990), and that the
officers were entitled to check the serial number on the other
three-wheeler, although not mentioned in the warrant, pursuant to
Basham v. Commonwealth, Ky., 675 S.W.2d 376 (1984).
There was no disposition of the motion to suppress at
On September 24, 1997, Opell renewed his motion to
suppress and amended his motion to include the suppression of the
marijuana as also having been seized “near [or] within the
curtilage” of his residence during a “warrantless search.”
A hearing was conducted on October 10, 1997, during
which the following exchange took place between Opell’s attorney,
Lowell Spencer, and Detective Garnes:
Did you prepare
Yes, I did.
Did you prepare
Yes, I did.
Did you include
the date that
and McKenzie gave
you the information in that
When they gave me the information-The date they gave it to you?
Yeah, I included that day.
Have you got the affidavit in front
I don’t have that.
May I have the affidavit? What I’m
getting at, the date that they gave
you the information?
Yeah, I included that day.
BY THE COURT: Oh, I’m sorry. Do you need
. . . .
[Attorney Spencer reads that portion of the
affidavit set forth supra at page 2.]
. . . .
The date they observed the offense,
where does it say in there the day
that they observed the offense?
You said the date that you received
the information was August the
You didn’t ask me-When did they observe it?
They observed it that same day but
I didn’t put it in the affidavit,
It isn’t in the affidavit?
And the County Attorney didn’t
. . . nobody prepared
this . . . the County
Attorney didn’t prepare
this for you, did he?
I prepared it.
You prepared it?
Why didn’t . . . you’re familiar
with preparing affidavits, is that
I’ve prepared several.
And you knew that you should have
put the date in there of the
observance, didn’t you?
I put the day that it was given to
You put the day it was given to
you. Correct. But you failed to
put the date that McKenzie and
Salyers observed the event. Is
I didn’t put the date on there but
it was the same day that I did the
In the order from which the Commonwealth has appealed,
the trial court found “that the Affidavit for a Search Warrant
prepared by Detective R. Garnes failed to state the date that
Officer Salyers and Officer McKenzie observed any event and the
Commonwealth fail[ed] to introduce evidence supporting a
warrantless search exception. . . .”
The trial court furthered
ordered that all items seized as a result of the search executed
on August 31, 1996, be suppressed and, except for the contraband,
be returned to Opell.
Before addressing the merits of the Commonwealth’s
appeal, we will address Opell’s argument that we do not have
jurisdiction in this matter.1
Opell insists that the appeal must
be dismissed as having been filed untimely.
The order from which this appeal has been taken was
entered and noted on the clerk’s docket sheet as served on
counsel of record by first class mail on October 29, 1997,
commencing the Commonwealth’s time for taking an appeal.
Kentucky Rules of Civil Procedure (CR) 73.02(1).
of Criminal Procedure (RCr) 12.04, which governs when and how
appeals are taken, provided at that time, in pertinent part, as
Opell previously moved this Court to dismiss the appeal as
having been untimely filed. The motion was denied by a threejudge panel of this Court on May 13, 1998.
(1) An appeal is taken by filing a notice of
appeal in the trial court.
. . . .
(3) The time within which an appeal may be
taken shall be ten (10) days after the date
of entry of the judgment or order from which
it is taken, subject to Rule 12.06 . . . .
Thus, pursuant to this rule, the notice of appeal should have
been filed no later than Monday, November 10, 1997.
of appeal, which is certified as having been mailed on November
7, 1997, contains a stamp and a notation by the clerk that it was
“entered” on November 11, 1997.
There is no notation on the
notice of appeal by the clerk as to when it was received or
However, the clerk’s docket sheet contains the following
notation: “11/11/97--Document Filed--NOTICE OF APPEAL,
If the notice of appeal were actually
filed by the appellant on November 11, 1997, the appeal would be,
as Opell argues, untimely.
In response to Opell’s previous motion to dismiss, the
Commonwealth produced the affidavit of Tania S. Holbrook who
stated that she personally took the notice of appeal to the
United States Post Office in Paintsville on November 7, 1997, and
transmitted the document to the clerk of the Lawrence Circuit
Court by overnight express mail.
The Commonwealth also submitted
a copy of the tracking envelope which contains the signature of
Jodi Parsley, an employee of the clerk’s office, and a delivery
date of November 8, 1997 (a Saturday), as proof that the notice
RCr 12.04 was amended effective January 1, 1999, to allow
30 days for taking an appeal.
of appeal was actually received by the clerk two days before it
was due and three days before it was actually “filed” by the
Opell is correct that the doctrine of substantial
compliance has no application to the filing of a notice of
Fox v. House, Ky.App., 912 S.W.2d 450 (1995).
notice of appeal within the prescribed time frame is still
mandatory and failure to do so is fatal to an appeal.”
In Fox, the appellant placed her notice of appeal with an
overnight mail service within the time for taking an appeal, but
the carrier failed to deliver it timely.
Clearly, placing a
notice of appeal in the mail does not constitute “filing.”
Because the notice of appeal was not received by the clerk within
the appropriate time in that case, Fox’s appeal was dismissed.
However, in the case sub judice, the notice of appeal was
received by the clerk within the ten-day jurisdictional time
That is all, in this Court’s opinion, that is required to
constitute “filing” of a pleading such as a notice of appeal.
See CR 5.05(2).
That the clerk neglected to comply with CR
5.05(3)3 is of no consequence.
“Otherwise, the timeliness of the
filing would be under the control of the personnel of the clerk’s
office rather than the appellant.
To state the possibility is to
reject this construction of the Rule.”
United States v. Solly,
545 F.2d 874, 876 (1976) (filing of notice of appeal under Fed.R.
App.P.4(b) construed to mean the date of receipt of the notice
This portion of the rule reads: “The Clerk shall indorse
upon every pleading and other papers filed with [her] in an
action the date of its filing.”
rather than the date it is filed by clerk’s personnel).
the Commonwealth having demonstrated that its notice of appeal
was timely received by the clerk of the Lawrence Circuit Court, a
fact not challenged by Opell, we hold that the notice of appeal
was timely filed as contemplated by RCr 12.04, despite the
clerk’s notation on her docket sheet to the contrary.
In its appeal, the Commonwealth argues that the trial
court erred in suppressing all the evidence seized on August 31,
1996, because of a technical flaw in the affidavit supporting the
issuance of the search warrant.
Specifically, although the
affidavit did not state when Opell was observed taking care of
the marijuana plants, the Commonwealth argues that suppression of
all the evidence seized was inappropriate under the “good-faith
exception” to the exclusionary rule created in United States v.
Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), and
first recognized in Kentucky in Crayton v. Commonwealth, Ky., 846
S.W.2d 684 (1992).
Our standard of review of an order suppressing evidence
The factual findings of the trial court are
conclusive if supported by substantial evidence.
only finding made by the trial court—that the affidavit did not
contain the date Opell was observed tending to his plants—is
supported by the evidence and is not in dispute.
prong of our review involves a de novo review to determine
whether the trial court’s ruling is correct as a matter of law.
When the findings of fact are supported by
substantial evidence, as we conclude they are
herein, the question necessarily becomes,
“whether the rule of law as applied to the
established facts is or is not violated.”
Ornelas v. United States, 517 U.S. 690, 697,
116 S.Ct. 1657, 1662, 134 L.Ed.2d 911 (1996)
(citing Pullman-Standard v. Swint, 456 U.S.
273, 289, n. 19, 102 S.Ct. 1781, 1791, n. 19,
72 L.Ed.2d 66 (1982).
Adcock v. Commonwealth, Ky., 967 S.W.2d 6, 8 (1998).
Under Leon and Crayton, evidence seized by police
should not be excluded if it is obtained pursuant to a search
warrant later determined to be flawed or invalid, if the officers
executing the warrant had an “objectively reasonable belief in
the sufficiency of the warrant. . . .”
Crayton, 846 S.W.2d at
Exclusion of evidence remains an appropriate remedy only
where the circumstances reveal one of the following
circumstances: (1) the affidavit contains “false or misleading
information”; (2) the judge who issued the search warrant has
abandoned his “detached and neutral role”; (3) the affidavit is
so lacking in indicia of probable cause such that the officer’s
reliance cannot be reasonable; or, (4) the warrant is “facially
deficient by failing to describe the place to be searched or the
thing to be seized.”
Id., at 687-688.
evidence obtained pursuant to a warrant should be ordered only on
a case-by-case basis and only in those unusual cases in which
exclusion will further the purposes of the exclusionary rule.”
Leon, 468 U.S. at 918, 104 S.Ct. at 3418, 82 L.Ed.2d at 695.
Having reviewed the evidence in the case sub judice, it
is clear to this Court that the trial court erred in suppressing
the evidence seized by police officers on August 31, 1996.
was no evidence, nor any finding by the trial court, that the
flaw in the affidavit would justify exclusion of the evidence
under the current standard for exclusion articulated in Leon and
Indeed, the flaw in Detective Garnes’ affidavit is
identical to that found insufficient to justify suppression of
evidence by our Supreme Court in
S.W.2d 198 (1994).
Commonwealth v. Litke, Ky., 873
In that case, the Court stated that the
affidavit, which contained a deficiency “with regard to time
specificity,” presented “precisely the type of fact pattern
envisioned in Crayton. . . .
Further, had the affiant been
required to provide additional time specificity, the facts would
have refuted any claim of staleness.”
Id. at 199.
We agree with
the Commonwealth that the evidence at the suppression hearing in
the instant case likewise refuted any claim of staleness.
Accordingly, under the authorities discussed above, we hold as a
matter of law that the evidence should not have been suppressed.
Opell has not addressed the merits of the
Commonwealth’s arguments concerning the good-faith exception to
the exclusionary rule.
The only argument Opell makes in this
regard is that “the trial court was not given an opportunity to
make any ruling on a good faith exception” and that the
Commonwealth did not thereby properly preserve the issue for
However, the fact that the good-faith exception was not
raised or addressed by the trial court was no impediment in
In that case, the trial court did not consider the good-
faith exception as its order suppressing the evidence pre-dated
Nevertheless, the Supreme Court determined that the
evidence should not have been suppressed as a matter of law.
Having determined that the trial court’s suppression of the
evidence seized in this case was likewise erroneous as matter of
law, no purpose would be served to remand the matter to give the
trial court an opportunity to consider the good-faith exception
Accordingly, the order is reversed and the matter is
remanded for further proceedings consistent with this Opinion.
BRIEF FOR APPELLANT:
BRIEF AND ORAL ARGUMENT FOR
Hon. A. B. Chandler III
Hon. Lowell E. Spencer
Hon. Christopher Brown
Assistant Attorney General
Hon. Kurt Kruthoffer
Special Assistant Attorney
ORAL ARGUMENT FOR APPELLANT:
Hon. Michael L. Harned
Assistant Attorney General