ROBERT FOWLER V. COMMONWEALTH OF KENTUCKY
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RENDERED:
October 5, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 2000-CA-001892-MR
ROBERT FOWLER
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE JOHN R. ADAMS, JUDGE
INDICTMENT NO. 00-CR-00046
V.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING IN PART
AND
REVERSING IN PART
* * * * * * * * *
BEFORE:
DYCHE, EMBERTON and HUDDLESTON, Judges
HUDDLESTON, Judge:
Robert Fowler appeals from an August 3, 2000,
final judgment and an August 7, 2000, amended judgment entered by
Fayette Circuit Court, following his conditional guilty plea1 to
one count of felony trafficking in marijuana2 in which he reserved
his right to appeal the circuit court’s denial of his motion to
suppress evidence and denial of his motion for the return of
property.
1
2
Ky. R. Crim. Proc. (RCr) 8.09.
Ky. Rev. Stat. (KRS) 218A.1421.
Betty Moore worked for Louisa Fowler, Fowler’s deceased
mother, as the caretaker of Ms. Fowler’s residence at 409 Bristol
Road in Lexington. On November 18, 1999, sometime after Ms. Fowler
had died, Moore found several gallon-sized baggies that contained
what she suspected to be marijuana in a bathroom cabinet at 409
Bristol Road. Moore telephoned a secretary at the Drug Enforcement
Agency’s Lexington office who advised her to contact the Lexington
police.
On November 19, 1999, Moore returned to 409 Bristol Road
and removed one of the baggies of suspected marijuana and took it
to the DEA office where she meet with Lexington Police Detective
Pete Ford.
Before she left the residence, Moore found a note from
Fowler, who was the executor of his mother’s will.
In the note
Fowler thanked Moore for her services and asked her to return the
keys and garage door opener to the residence.
Based on Moore’s information, Ford obtained two search
warrants, one for 409 Bristol Road and the other for 2440 Millbrook
Drive, Fowler’s residence. Police executed both warrants and found
several baggies of a substance believed to be marijuana at 409
Bristol Road and a substance believed to be marijuana, rolling
papers,
scales,
firearms
and
approximately
$8,000.00
at
2440
Millbrook Drive.
On January 18, 2000, a Fayette County grand jury indicted
Fowler
for
trafficking
in
marijuana
over
five
possession of drug paraphernalia, second offense.4
pounds3
and
Subsequently,
Fowler moved to suppress the evidence and argued that both search
3
KRS 218A.1421.
4
KRS 218A.500.
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warrants were issued without probable cause because Moore lacked
credibility and reliability and police failed to connect Fowler to
the marijuana at either residence.
Following an evidentiary
hearing, the trial court denied Fowler’s motion with respect to 409
Bristol Road, but granted the motion with respect to 2440 Millbrook
Drive, suppressing the evidence obtained there.5
On June 7, 2000, Fowler moved to return the money seized
from 2440 Millbrook Drive.
The Commonwealth countered by moving,
pursuant to Kentucky Revised Statute (KRS) 218A.410, to forfeit the
money found at 2440 Millbrook Drive.
Commonwealth
could
not
forfeit
the
Fowler argued that the
money
since
it
had
been
illegally seized. Further, Fowler contended that part of the money
came from his most recent paycheck, which he produced at the time
of the search, and that the rest was Debbie Preston’s gambling
winnings, for which Fowler provided partial documentation at the
suppression
forfeited.
hearing.
The
circuit
court
ordered
the
money
Later, on June 9, 2000, Fowler entered a conditional
guilty plea to trafficking in marijuana greater than eight ounces
but less than five pounds and was sentenced to three years’
imprisonment.
Fowler reserved his right to appeal the circuit
court’s denial of his motion to suppress and his motion for return
of property.
The circuit court sentenced Fowler consistent with
the Commonwealth’s recommendation.
On
appeal,
Fowler
raises
two
assignments
of
error.
First, he argues that the circuit court erred in denying his motion
5
The Commonwealth has not appealed from
suppressing evidence seized at 2440 Millbrook Drive.
-3-
the
order
to suppress evidence seized from 409 Bristol Road because the
affidavit submitted to obtain the search warrant was insufficient
to support a finding of probable cause. Second, Fowler argues that
the circuit court erred in forfeiting the money from 2440 Millbrook
Drive because it had been illegally seized and was not contraband
since it was not connected to any criminal activity.
When reviewing suppression hearings, we use a two-prong
standard.6
First, we accept the circuit court’s factual findings
as conclusive if they are supported by substantial evidence.7
Second, we review the lower court’s decision de novo to determine
if it was correct as a matter of law.8
In his first assignment of error, Fowler argues that the
affidavit in support of the search warrant was insufficient to
support a finding of probable cause by the issuing judge.
Fowler
contends that Moore, the named informant upon whom Ford relied, was
neither credible nor reliable.
Fowler argues that Moore lacked
credibility because he had fired her; that her information lacked
reliability because Ford failed to corroborate it and that Ford
failed to connect Fowler with 409 Bristol Road and the marijuana
found there.
Therefore, Fowler concludes, the warrants lacked
probable cause and should have been suppressed.
6
Stewart v. Commonwealth, Ky. App., 44 S.W.3d 376, 380
(2000), sets forth the two-prong standard that this Court uses when
reviewing a circuit court’s denial of a motion to suppress that was
the subject of an evidentiary hearing.
7
Id. quoting RCr 9.78 and Adcock v. Commonwealth, Ky., 976
S.W.2d 6, 8 (1998).
8
Id. quoting Commonwealth v. Opell, Ky. App., 3 S.W.3d
747, 751 (1999).
-4-
In the instant case, Moore told Ford that Fowler was a
white male, approximately 53 years old; that he resided at 2440
Millbrook Drive; and that he had been arrested in the past for
drugs.
Ford
independently
corroborated
this
information
and
discovered that Fowler had registered his vehicle at 409 Bristol
Road.
Further, Ford learned, Fowler had resided at 409 Bristol
Road as recently as 1997, the date of his last drug arrest.
When
the
issuing
judge
reviewed
the
affidavit
to
determine probable cause, he had an affirmative duty to consider
the totality of the circumstances as set forth in the affidavit.9
When the circuit court reviewed the issuing judge’s decision at the
suppression hearing, it had an affirmative duty to make sure the
issuing judge had a "substantial basis" for finding probable
cause.10
In examining the circuit court’s ruling, we have an
affirmative duty to "review the historical facts for clear error"
and to "give due weight to inferences drawn from those facts" by
the circuit court, if its decision is supported by substantial
evidence.11
Although Ford engaged in but a minimum amount of
independent investigation before seeking the search warrants, he
did manage to verify the information Moore had given him.
The
issuing judge applied the totality of the circumstances test and
concluded this was sufficient to find probable cause with respect
9
Beemer v. Commonwealth, Ky., 665 S.W.2d 912, 914-915
(1984), quoting Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317,
76 L. Ed.2d 527 at 546-547, 548.
10
Id.
11
Stewart v. Commonwealth, supra, quoting Ornelas v. United
States, 517 U.S. 690, 698-700, 116 S. Ct. 1657, 134 L. Ed.2d 911
(1996).
-5-
to 409 Bristol Road.
regarding
both
At the suppression hearing, Ford testified
Moore’s
information
corroborate that information.
and
his
investigation
to
Given this evidence, the circuit
court concluded that the issuing judge had a substantial basis for
finding probable cause.
We affirm the circuit court for the following reasons.
First, two judges reviewed the affidavit in support of the search
warrant for Bristol Road and both concluded that probable cause
existed to issue the warrant.
Even though the standard of review
set forth above allows us to consider the suppression issue de
novo, it also requires us to review the historical record for clear
error and to give due weight to the inferences both judges drew
from the facts.
After reviewing the historical record, we have
found no clear error on either judge’s part, and both judges
concluded that the facts set forth in affidavit supported a finding
of probable cause.
Although the question is a close one, giving
all due weight to the judges’ conclusions and given the lack of any
clear error, we conclude that the affidavit was sufficient to
support a finding of probable cause.
Second, the exclusionary rule’s purpose is to deter and
punish police misconduct when the police use deception or reckless
action to obtain a search warrant.12
The rule was never meant to
deter or punish judges who erroneously issue defective search
warrants.13
Excluding evidence obtained by a warrant that is
12
United States v. Leon, Et Al., 468 U.S. 897,916, 104 S.
Ct. 3405, 82 L. Ed.2d 677 (1984).
13
Id.
-6-
defective due to judicial mistake, as opposed to police misconduct,
would not promote the exclusionary rule’s purpose nor effectively
deter future judicial error.14
If an officer has relied with
objective good faith upon a defective search warrant issued by a
judge, then any evidence found as result of the proper execution of
said defective warrant will not be excluded.15
This is the good
faith exception to the exclusionary rule.
In this case, nothing suggests that Ford acted recklessly
or deceived the issuing judge when he obtained the search warrant
for 409 Bristol Road; and, Fowler does not allege that Ford engaged
in any misconduct to obtain the search warrant nor that the
officers who executed it acted improperly.
Absent evidence to the
contrary, we infer the police acted in good faith reliance when
they executed the search warrant at 409 Bristol Road.
Therefore,
even if Fowler is correct that the affidavit is an insufficient
basis upon which to find probable cause, we are compelled by the
good faith exception to conclude the circuit court was correct in
denying his suppression motion.
In his second assignment of error, Fowler argues that the
circuit court erred when it forfeited the money seized from the
residence at 2440 Millbrook Drive because it had been illegally
seized as the result of a search that was later suppressed.
contends
that
the
circuit
court
should
have
Fowler
denied
the
Commonwealth’ motion to forfeit based on the exclusionary rule set
14
Id. at 916-917.
15
Id. at 920-921.
-7-
forth in Mapp v. Ohio.16
Further, Fowler contends that the money
was not connected to any criminal activity nor was it contraband.
Fowler cites One 1958 Plymouth Sedan v. Pennsylvania17 for
the proposition that the exclusionary rule applies to forfeiture
proceedings. In that case, two state liquor control board officers
stopped
a
vehicle,
contraband liquor.18
conducted
a
warrantless
search
and
found
The officers arrested the vehicle’s owner and
seized both the vehicle and the liquor.19
When the Commonwealth of
Pennsylvania sought to forfeit the vehicle, the owner objected to
the forfeiture and argued that the forfeiture was dependent upon
the
admission
of
evidence
Amendment.20
The
forfeiture.21
The
seized
Pennsylvania
in
violation
Supreme
of
Court
the
Fourth
allowed
the
United States Supreme Court held that the
exclusionary rule applied to forfeiture proceedings.22
The Court
reasoned that the vehicle was not contraband per se, that is, not
illegal
by
its
nature.
To
be
forfeited
as
contraband,
the
Commonwealth of Pennsylvania would have had to show that the
vehicle had been illegally used.
To do that, the Commonwealth
would have had to use evidence that had been seized in violation of
16
367 U.S. 643, 6 L. Ed.2d 1081 (1961).
17
380 U.S. 693, 14 L. Ed.2d 170 (1965).
18
Id. at 694.
19
Id.
20
Id. at 694-695.
21
Id.
22
Id. at 696.
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the Fourth Amendment and subsequently suppressed.23
The Court
concluded that
[i]t would be anomalous indeed . . . to hold that in the
criminal proceeding the illegally seized evidence is
excludable, while in the forfeiture proceeding, requiring
the determination that the criminal law has been
violated, the same evidence would be admissible.24
Thus, the Court concluded that the exclusionary rule should apply
to forfeiture proceedings, which are quasi-criminal proceedings
that penalize a person for committing a crime.25
The Commonwealth argues that Plymouth Sedan is factually
distinguishable, thus inapplicable, because the vehicle in Plymouth
Sedan was subject to a warrantless search, while Fowler’s residence
was searched subject to a warrant.
The Commonwealth also points
out that the good faith exception to the exclusionary rule did not
exist when Plymouth Sedan was decided.
The Commonwealth contends
that the officers relied in good faith upon the search warrant that
had been signed by a judge; thus, the money was not illegally
seized for forfeiture purposes.
We
dispositive.
disagree
and
concluded
that
Plymouth
Sedan
is
To prove the money had been illegally used or
connected to illegal drug activity, the Commonwealth would have
been required to introduce the evidence seized from Fowler’s home,
23
Id. at 699.
24
Id. at 700-701.
25
Id.
-9-
specifically the drug paraphernalia and marijuana.
The circuit
court had previously suppressed that search and excluded that
evidence.
It would be logically inconsistent to exclude the
evidence in the criminal proceeding yet admit it in the forfeiture
proceeding. The circuit court should have consistently applied the
exclusionary rule and excluded the evidence from the forfeiture
proceeding.
Without that evidence, the Commonwealth could not
sustain its burden of proof, and the money would not and should not
have been forfeited.
We
forfeiture.
reverse
the
circuit
court
with
respect
to
the
However, we order the circuit court to return only
$1,400.00, the amount Fowler claimed to be his.
Fowler has
acknowledged that the remaining money did not belong to him but to
Debbie Preston.
any
other
Neither has he claimed an ownership interest or
lesser
property
interest
in
the
remaining
money.
Therefore, Fowler has no interest in the approximately $6,600.00
that allegedly belongs to Debbie Preston, nor does he have standing
before this Court or the circuit court to demand the return of
Preston’s money.26
Since Preston is not before this court, we
decline to address the issue of the approximately $6,600.00 that
allegedly belongs to her.
For the foregoing reasons, we affirm the circuit court in
respect to the search of the residence at 409 Bristol Road and
affirm Fowler’s conviction.
However, we reverse the circuit court
in respect to forfeiture of the money seized from the residence at
26
See United States v. $515,060.42
Currency, 152 F.3d. 491 (6th Cir. 1997).
-10-
in
United
States
2440 Millbrook Drive and remand this case to the circuit court with
instructions to order return of $1,400.00 to Robert Fowler.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Henry E. Hughes
Lexington, Kentucky
Albert B. Chandler III
Attorney General
Todd D. Ferguson
Assistant Attorney General
Frankfort, Kentucky
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