JAMES KEVIN JARBOE v. COMMONWEALTH OF KENTUCKY
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RENDERED: OCTOBER 26, 2007; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2006-CA-002470-MR
JAMES KEVIN JARBOE
v.
APPELLANT
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE PATRICIA M. SUMME, JUDGE
INDICTMENT NO. 05-CR-00697
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
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BEFORE: LAMBERT, TAYLOR, and WINE, JUDGES.
LAMBERT, JUDGE: James Jarboe appeals from a judgment of the Kenton Circuit Court
that sentenced him to a five-year probated term after his entry of a conditional plea of
guilty. Jarboe contends that the trial court erred in failing to grant his motion to suppress
evidence that was found in a search of a residence he occupied but in which he claimed
no ownership interest. After our review, we affirm.
On April 16, 2005, Officer J.J. Byrd, Kenton County Police, went to a
private residence at 14361 Dixon Road based on a tip that he received from a detective
that some runaway juveniles were at the residence. Upon arrival, Byrd did not observe
anyone outside. He further had no information that its owner, Dwight Henry, was
involved in any controlled substance activity nor did he have an arrest warrant or a search
warrant. The residence has a front door, which was shut, and the shades on the front of
the house were drawn. Officer Byrd did not approach the front door as it appeared the
side sliding glass door was used as the main entry. Upon approaching the sliding glass
door, Byrd saw Jarboe lying on the floor. Byrd, who was armed and in uniform, knocked
on the sliding glass door, and Jarboe came to the door.
Officer Byrd testified that he had detected the odor of marijuana before
Jarboe opened the door, but it grew stronger after the door was opened. When asked if
this was his residence, Jarboe told Officer Byrd that he did not live at the house, but that
he had gotten a flat tire on the truck parked outside and was resting on the floor. Officer
Byrd asked whether there were any juveniles in the residence, and Jarboe said there were
not. Officer Byrd then informed Jarboe that he smelled marijuana and inquired whether
there was any marijuana there. Jarboe became nervous and tried to shut the door. Officer
Byrd put his foot in the door to prevent it from closing all the way and promptly called
for another unit.
Jarboe called the owner of the residence, Dwight Henry, and told him that
the police were at his house. Byrd overheard Jarboe tell Henry that he had smoked
marijuana in the garage so the smell should not be in the house. Officer Byrd asked to
speak with Henry, informed him that he had smelled marijuana, and requested permission
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to search the residence. Meanwhile, Jarboe was growing more excited and began yelling,
“[t]hey're already in the house so he doesn't need your f***in permission cause he's
already in the house.” Henry, however, consented to a search of his residence.
Upon searching the residence, Officer Byrd observed a small planter of
marijuana and freshly picked buds in the living room as well as an elaborate growing
operation with over 200 plants, marijuana in a bucket, and a video on how to grow
marijuana.
Jarboe was subsequently charged with a single count of Cultivation of More
than Five Marijuana Plants in violation of KRS 218A.1423. After entering a plea of not
guilty, Jarboe filed a Motion to Suppress the evidence based on the warrantless entry of
the residence. At the suppression hearing, both Officer Byrd and Henry testified. Henry
testified that Jarboe was a friend he allowed to be on the premises almost whenever he
wanted to be there. Furthermore, he admitted that Jarboe occasionally slept there and
was permitted to smoke marijuana on the premises. After careful review, the trial court
denied the Motion to Suppress based on lack of standing. Jarboe then entered a
conditional guilty plea under Rule 8.09 and was sentenced to five years probated for a
term of five years. This appeal followed.
Jarboe argues that the trial court erred in denying his Motion to Suppress
based on lack of standing. He specifically contends that he had a legitimate expectation
of privacy in the premises and his expectation was reasonable. He alleges that because he
was given free access to the residence that he should be classified as a co-
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tenant/occupant/guest, giving him standing to challenge the police officer's entry into the
residence. Furthermore, he asserts that his act of closing the door was a clear and
permissible withholding of consent to search that is not only equal to but also more valid
than the owner's consent to search. We disagree.
The Unites States Supreme Court has held that “capacity to claim the
protection of the Fourth Amendment depends...upon whether the person who claims the
protection...has a legitimate expectation of privacy in the invaded place.” Rakas v.
Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 430, 58 L.Ed.2d 387 (1978); see also Rawlings
v. Kentucky, 448 U.S. 98, 106, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980). A legitimate
expectation of privacy incorporates two elements. First, the defendant must have
“exhibited an actual (subjective) expectation of privacy,” and second, the defendant's
subjective expectation must be “one that society is prepared to recognize as reasonable.”
United States v. Tolbert, 692 F.2d 1041, 1044 (6th Cir. 1982). Furthermore, the Supreme
Court has held that a person who is merely present with the consent of the household may
not assert a Fourth Amendment right. See Minnesota v. Carter, 525 U.S. 83, 119 S.Ct.
469, 142 L.Ed.2d 373 (1998).
In reviewing a denial on a Motion to Suppress, the trial judge's finding of
fact regarding a defendant's standing to challenge alleged Fourth Amendment violations
are examined for clear error, while the legal determination of standing is reviewed de
novo. See RCr 9.78; Commonwealth v. Banks, 68 S.W.3d 347 (Ky. 2001); Adcock v.
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Commonwealth, 967 S.W.2d 6 (Ky. 1998). We find no clear error in the court's findings
of fact, and therefore turn to our de novo review of the application of law to those facts.
The record indicates that Jarboe was present in the residence with the
permission of the owner on a more than regular basis, which would initially and generally
indicate that he was more than merely present in the household. However, the facts also
indicate that by telling Byrd he was not the owner, Jarboe presented himself as a third
party without authority to consent. In addition, Jarboe called Henry, who he identified as
the owner, and told him that they did not need his permission since they were already in
the house. We agree with the trial court that these actions are an admission by Jarboe that
he lacked authority over the premises. If Jarboe had presented Byrd with evidence of
“apparent authority” by “exhibiting an actual (subjective) expectation of privacy” this
would be a different situation, but it is undisputed that when asked if he lived in the
residence Jarboe said no that he was only there to rest because his truck had a flat and
that he further called and identified the owner of the residence.
Jarboe relies heavily on Georgia v. Randolph, 547 U.S. 103, 126 S.Ct.
1515, 164 L.Ed.2d 208 (2006), which we find distinguishable on its facts. In Randolph,
an estranged wife gave police permission to search the marital residence for items of drug
use after her estranged husband, who was also present, had unequivocally refused to give
consent. The Supreme Court held that “a physically present co-occupant's stated refusal
to permit entry renders warrantless entry and search unreasonable and invalid as to him.”
Id. at 1516. In this case, however, Jarboe gave no indication that he was a co-occupant.
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As stated previously, he intentionally misled the police officer by telling him he was
resting there due to a flat tire. We will not now broaden the holding of Randolph to such
a dissimilar fact scenario.
If we were to accept Jarboe's logic, we would be giving him the right to
misrepresent and lie about his status in order to mislead a police officer. By failing to
assert his alleged “privacy interest” at the time the police were present, Jarboe waived his
right because he denied Byrd the opportunity to review the circumstances in light of the
claimed “apparent authority.” Therefore, we find that Jarboe does not have standing to
bring the Motion to Suppress.
Accordingly, we affirm the judgment of the Kenton Circuit Court.
TAYLOR, JUDGE, CONCURS.
WINE, JUDGE, CONCURS IN RESULT ONLY AND FILES SEPARATE
OPINION.
WINE, JUDGE, CONCURRING IN RESULT ONLY: While I agree that
the trial court should be affirmed in its decision denying the motion to suppress, I
disagree that Jarboe lacked standing. Jarboe did not mislead police as to the reason for
his presence at the home on the day in question. He correctly answered that he did not
own the home. However, he clearly had not only the permission of the homeowner to be
in the home but permission to use it as well. Denying ownership is not abandonment as
argued by the Commonwealth. Jarboe tried to stop the officer from entering into the
home and refused permission to search the entire home. As noted by the Appellant, the
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holding in Georgia v. Randolph, 547 U.S. 103, 106, 126 S. Ct. 1515, 164 L. Ed. 2d 208
(2006), supports his position that “a physically present co-occupant’s stated refusal to
permit entry prevails, rendering the warrantless search unreasonable and invalid as to
him.”
While Jarboe had standing to challenge the search, Officer Byrd, based
upon the strong odor of green (or live) marijuana, had probable cause to believe criminal
activity was underfoot. Cooper v. Commonwealth, 577 S.W.2d 34 (Ky. 1979). Officer
Byrd was only looking for a juvenile in the area of the home. It was not unreasonable for
him to become suspicious as he approached the door and saw Jarboe lying on the floor. It
was reasonable for Officer Byrd to knock on the door to see if Jarboe was all right.
Jarboe’s attempt to close the door in Officer Byrd’s face while the officer was talking,
created an exigent circumstance justifying his entry, as evidence might be destroyed.
Hallum v. Commonwealth, 219 S.W.3d 216, 222 (Ky.App. 2007). In light of probable
cause and exigent circumstances, this warrantless search was justified. Commonwealth v.
McManus, 107 S.W.3d 175 (Ky. 2003).
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
W. Robert Lotz
Covington, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky
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