LISA GAIL TAYLOR V. COMMONWEALTH OF KENTUCKY
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RENDERED: April 15, 2005; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-000056-MR
LISA GAIL TAYLOR
APPELLANT
APPEAL FROM BARREN CIRCUIT COURT
HONORABLE PHILLIP R. PATTON, JUDGE
INDICTMENT NO. 02-CR-00376
V.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
MINTON AND TACKETT, JUDGES; HUDDLESTON, SENIOR JUDGE.1
MINTON, JUDGE:
Law enforcement officers arrived at Lisa Gail
Taylor’s home and informed her that they were there on a tip
that she was making and selling methamphetamine.
According to
the officers, Taylor then agreed to a search of her residence.
Taylor said she only agreed to let them “look around.”
1
But the
Senior Judge Joseph R. Huddleston sitting as Special Judge by
assignment of the Chief Justice pursuant to Section 110(5)(b) of the
Kentucky Constitution and KRS 21.580.
ensuing search of Taylor’s home uncovered methamphetamine,
evidence of its manufacture, and marijuana.
When Taylor’s case
came to circuit court, the court denied Taylor’s motion to
suppress the evidence seized in the search, ruling that she
consented to it.
Taylor then entered a conditional plea of
guilty reserving the consent-to-search issue for this appeal.
We agree with the circuit court’s ruling and affirm.
Approximately four or five weeks before July 27, 2002,
Officer Lafferty responded to a report that Taylor was
manufacturing methamphetamine.
Lafferty approached Taylor at
her home; and after informing Taylor why he was there, she gave
him permission to “look around” her residence.
Lafferty
testified that he “looked around” Taylor’s kitchen and living
room but found no evidence of methamphetamine.
Lafferty returned to Taylor’s home on July 27, 2002,
in response to another tip that she was manufacturing
methamphetamine.
Lafferty, Police Chief Minton, and Patrolman
McClendon arrived at Taylor’s house at approximately 11:00 p.m.
Taylor admitted the officers into her home.
Lafferty testified that upon entering Taylor’s home,
he informed her they had received another complaint that she was
“cooking meth.”
When he asked Taylor if the allegations were
true, she responded, “Ron, does it smell like it?”
According to
Lafferty, he then asked Taylor “if she had any problem” with the
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officers “searching the residence.”
Lafferty testified that
Taylor then gave the officers permission to search her home.
In contrast, Taylor testified that Lafferty only asked
if he could “look around,” to which she responded, “Yeah, Ron,
go ahead.”
Because Lafferty allegedly used the words “look
around,” Taylor testified she assumed the search would be
cursory and not a “full search” of her residence.
To Taylor’s dismay, the July 27 search was more
thorough than Lafferty’s first search.
During the search, the
officers found evidence that Taylor was manufacturing,
trafficking, and in possession of methamphetamine, and that she
was trafficking in and in possession of marijuana.
also uncovered drug paraphernalia.
later released on $2,500 bond.
The search
Taylor was arrested and
Lafferty filed a Uniform
Citation and an Individual Incident Report.
In both documents,
he wrote that Taylor gave “verbal consent” to the officers’
request to search her residence.
After indictment, Taylor filed a motion to suppress
the evidence seized from her residence as a result of the
July 27, 2002, search.
Taylor argued that the officers asked if
they could “look around,” not “search,” her residence;
therefore, she claimed she was “tricked by the term and this
method of police investigation.”
She further asserted that she
“would never have consented to a search of this nature.”
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In response, the Commonwealth argued that Taylor had
freely given the officers consent to search her home.
Specifically, the Commonwealth stated that there was no evidence
the officers had tried to overcome Taylor’s free will.
Rather,
the officers simply asked Taylor once for permission to search
and Taylor consented.
The circuit denied Taylor’s motion to suppress.
The
court found that she had given her informed consent for the
officers to search her residence, finding that “[t]he officers
engaged in no form of coercion; their weapons were not drawn, no
threats were made.
Nor did the officers fraudulently claim to
have a warrant to search the residence.”
With regard to
Taylor’s argument that Lafferty used the term “look around”
rather than “search,” the court concluded that “even if the
officers had only asked to ‘look around’ in the residence,
Defendant Taylor’s affirmative response would have been a valid
consent to search the residentfor what does ‘look around’ mean
except to search?”
Following the court’s order, Taylor entered a
conditional plea of guilty, reserving the right to appeal the
denial of her motion to suppress.
She was sentenced in
accordance with the plea bargain agreement to five years in
prison and a $1,000 fine on charges of trafficking in
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methamphetamine, trafficking in marijuana, and possession of
drug paraphernalia.2
This appeal follows.
On appeal, Taylor makes two main arguments:
first,
the officers conducted an illegal search and seizure, thereby
violating her rights under the Fourth Amendment of the United
States Constitution and the Tenth Amendment of the Kentucky
Constitution; and second, her due process rights were violated
when the court imposed a $1,000 fine, despite her indigent
status.
We will discuss each argument separately.
CONSTITUTIONALITY OF THE SEARCH AND SEIZURE
Taylor argues that her constitutional rights were
violated when Lafferty, Police Chief Minton, and Patrolman
McClendon searched her home on the night of July 27, 2002.
She
specifically argues that the officers engaged in “trickery” and
“chicanery” by asking if they could “look around,” not “search,”
her residence and that she was never given notice of her right
to refuse the search.
Taylor also claims the search of her home
was unreasonable because it exceeded her expectations.
Since
Lafferty had only “looked around” the residence during his first
visit, Taylor asserts she reasonably believed the second
2
Upon the posting of a $5,000 surety bond, Taylor was released from
jail to attend a 28-day drug treatment program at Park Place, a
rehabilitation facility. She was later granted an appeal bond, so
long as she abided by the conditions recommended by Park Place,
including abstaining from all mind/mood altering substances;
attending AA/NA meetings; weekly sessions of aftercare at Park
Place; and weekly sessions of aftercare group therapy at LifeSkills.
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“search” would similarly be a cursory tour of the house.
Finally, Taylor states that the search was unconstitutional
because it occurred at night without proof of exigent
circumstances.
We disagree with Taylor’s arguments on all
points.
Although it is well settled that a “search conducted
without a warrant issued upon probable cause is ‘per se
unreasonable,’” there are several “‘specifically established and
well-delineated exceptions.’”3
Because “[t]he touchstone of the
Fourth Amendment is reasonableness,” the courts have long
recognized the validity of consensual searches.4
This exception
is based on the premise that “it is no doubt reasonable for the
police to conduct a search once they have been permitted to do
so.”5
In Schneckloth v. Bustamante, the United States
Supreme Court clarified the purpose behind the consent exception
to the warrant requirement, stating, “[i]n situations where the
police have some evidence of illicit activity, but lack probable
cause to arrest or search, a search authorized by a valid
consent may be the only means of obtaining important and
3
Schneckloth v. Bustamante, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043,
36 L.Ed.2d 854 (1973) (citations omitted).
4
Florida v. Jimeno, 500 U.S. 248, 250, 111 S.Ct. 1801, 1803,
114 L.Ed.2d 297 (1991).
5
Id. at 250, 251.
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reliable evidence.”6
With regard to what constitutes “voluntary”
consent, the Court stated:
[T]he Fourth and Fourteenth Amendments
require that a consent not be coerced, by
explicit or implicit means, by implied
threat or covert force. For, no matter how
subtly the coercion was applied, the
resulting ‘consent’ would be no more than a
pretext for the unjustified police intrusion
against which the Fourth Amendment is
directed.7
The Court further recognized that “knowledge of a right to
refuse is not a prerequisite of a voluntary consent”; rather,
“it is only by analyzing all the circumstances of an individual
consent that it can be ascertained whether in fact it was
voluntary or coerced.”8
The United States Supreme Court has held that “[t]he
scope of a search is generally defined by its expressed object.”9
In Jimeno v. United States, a police officer pulled over a car
for a traffic violation and on suspicions that the car was being
used to transport narcotics.
The officer informed the driver
that he had been stopped for committing a traffic violation and
because there was reason to believe he was carrying narcotics.
The officer then asked the driver if he could search the
6
Schneckloth, supra at 227.
7
Id. at 228.
8
Id. at 233; see also, Commonwealth v. Neal, 84 S.W.2d 920 (Ky.App.
2002).
9
Jimeno, supra at 251.
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vehicle.
The driver consented and after opening a paper bag in
the back seat of the vehicle, the officer found a kilogram of
cocaine.
At trial, the driver moved to suppress the cocaine,
claiming the officer had exceeded the scope of his authority.
The driver argued that because the officer had asked to search
the vehicle and not the containers in the vehicle, his search of
the bag was unlawful.
The Court disagreed, stating:
We think that it was objectively reasonable
for the police to conclude that the general
consent to search respondent’s car included
consent to search containers within that car
which might bear drugs. A reasonable person
may be expected to know that narcotics are
generally carried in some form of a
container . . . . The authorization to
search in this case, therefore, extended
beyond the surfaces of the car’s interior to
the paper bag lying on the car’s floor.
Based on the Court’s holdings in Bustamante and
Jimeno, Taylor’s unreasonableness arguments are without merit.
First, Taylor gave her consent to the search.
Lafferty told
Taylor that he was there on a tip that she was “cooking meth”;
he then asked Taylor for her permission to “search” the
residence.
Although Taylor testified that Lafferty used the
term “look around,” rather than “search,” both Lafferty and
Taylor agreed that Taylor gave the officers her permission.
There is no evidence that the officers used force, intimidation,
or coercion to influence Taylor’s consent.
In fact, both
Lafferty and Taylor testified that the request to search the
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residence was only made once and that Taylor willingly told
Lafferty to “go ahead.”
We find no fault with the trial court’s
determination that this constituted voluntary consent.
Taylor’s argument that the July 27 search “exceeded
her expectations” because it was more thorough than Lafferty’s
first search is also without merit.
Lafferty informed Taylor
why he was at her residence; she was fully aware that the
officers were not there for a social visit but, rather, to
investigate reports she was manufacturing methamphetamine.
Like
the defendant in Jimeno, Taylor did not limit the scope of the
officers’ search.
Rather, when asked for permission to search
her residence, Taylor told Lafferty to “go ahead.”
The officers
proceeded to search all of Taylor’s residence, including the
closets, under the beds, and in containers.
Much like the
search in Jimeno, we hold that it was “objectively reasonable”
for the officers in this case to “conclude that the general
consent” to search Taylor’s residence included the closets and
containers therein.
Therefore, we find no fault with the trial
court’s reasoning on this issue.
Third, we note that Taylor vehemently argues that the
officers failed to tell her of her right to refuse the search.
But as the Court stated in Bustamante, “knowledge of a right to
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refuse is not a prerequisite of a voluntary consent.”10
Thus,
this argument is unavailing.
Finally, Taylor argues the search was unreasonable
because it occurred at night, without exigent circumstances.
Taylor points to the case of Commonwealth v. Gross11 as proof
that exigent circumstances must exist for police to search a
residence at night.
We must disagree with Taylor’s reliance on Gross.
In
Gross, the Supreme Court of Kentucky held that “when exigent
circumstances exist, a search warrant may be executed at any
time.”12
We do not interpret this holding to mean that all
searches at night must be accompanied by exigent circumstances;
this is particularly true when, such as the present case, an
individual clearly consents to the search.
Regardless, because
Taylor gave the officers permission to search her residence,
there was no need to prove the existence of exigent
circumstances.
Therefore, we affirm the trial court’s decision
to deny Taylor’s motion to suppress the evidence seized during
the July 27 search.
10
Id. at 233; see also, Commonwealth v. Neal, 84 S.W.2d 920 (Ky.App.
2002).
11
758 S.W.2d 436 (Ky. 1988).
12
Id. at 437.
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IMPOSITION OF THE $1,000 FINE
Taylor also argues that the court erroneously imposed
a $1,000 fine as part of her sentence.
Taylor claims that
because she is indigent, she should be exempt from payment of
the fine under KRS13 534.030.
We disagree.
KRS 534.030 states:
(1)
Except as otherwise provided for an
offense defined outside this code, a
person who has been convicted of any
felony shall, in addition to any other
punishment imposed upon him, be
sentenced to pay a fine in an amount
not less than one thousand dollars
($1,000) and not greater than ten
thousand dollars ($10,000) or double
his gain from commission of the
offense, whichever is the greater.
. . . .
(4)
Fines required by this section shall
not be imposed upon any person
determined by the court to be indigent
pursuant to KRS Chapter 31.
Taylor claims that because she was “determined to be
indigent within the meaning of Chapter 31” and because she was
allowed to pursue her appeal in forma pauperis, the fine was
improperly imposed.
However, although there is evidence that
the court initially granted Taylor’s “Order and Affidavit of
Indigency,” we cannot find any proof that the court appointed a
public defender to represent Taylor.
13
Kentucky Revised Statutes.
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Rather, it appears that
Taylor retained two different private attorneys to represent
her.
The most compelling argument against Taylor’s claim is
the fact that the $1,000 fine was imposed as a part of the plea
agreement Taylor knowingly, voluntarily, and willfully entered
into with the Commonwealth.
The plea offer included the
Commonwealth’s recommendation that a $1,000 fine be imposed;
further, both Taylor and her counsel signed the page of the
agreement where the recommended sentence appeared.
Taylor never
made a motion to withdraw this plea, nor is there proof that she
objected to the Commonwealth’s recommendation of the fine.
Therefore, we find no fault with the court’s imposition of the
$1,000 fine.
CONCLUSION
For these reasons, we affirm the decision of the
Barren Circuit Court denying Lisa Gail Taylor’s motion to
suppress evidence.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Astrida L. Lemkins
Assistant Public Advocate
Frankfort, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
Dennis W. Shepherd
Assistant Attorney General
Frankfort, Kentucky
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