SHARON MCCLOUD v. COMMONWEALTH OF KENTUCKY
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RENDERED: OCTOBER 5, 2007; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2006-CA-002498-MR
SHARON MCCLOUD
v.
APPELLANT
APPEAL FROM GRAYSON CIRCUIT COURT
HONORABLE SAM H. MONARCH, JUDGE
ACTION NO. 06-CR-00058
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: LAMBERT, TAYLOR, AND WINE, JUDGES.
TAYLOR, JUDGE: Sharon McCloud brings this appeal from a November 13, 2006,
judgment of the Grayson Circuit Court upon a conditional plea of guilty to first-degree
possession of a controlled substance (Kentucky Revised Statutes (KRS) 218A.1415),
possession of drug paraphernalia (KRS 218A.500(2)), and possession of marijuana (KRS
218A.1422). We affirm.
On December 22, 2005, Deputies Terry Blanton and Jerry Henderson of the
Grayson County Sheriff's Office were dispatched to serve an arrest warrant upon
McCloud at her residence on Claggett Road in Leitchfield, Kentucky, for her failure to
appear in Hardin District Court. Although the warrant listed McCloud's address as “406
West Chestnut, Leitchfield, Kentucky,” Deputy Blanton believed McCloud had recently
moved to Claggett Road. Deputy Henderson was familiar with the location of McCloud's
residence as he had previously surveilled the residence for suspicious drug activity. The
deputies proceeded to Claggett Road where McCloud was believed to reside. The
deputies turned off Claggett Road and onto a gravel driveway where two trailers were
located on each side of the driveway. The deputies then approached the trailer situated
on the right. Deputy Henderson went to the front door while Deputy Blanton walked to
the rear of the residence to secure the back door. When McCloud answered Henderson's
knock on the front door, she was placed under arrest pursuant to the arrest warrant.
However, while covering the rear of the trailer, Deputy Blanton observed several items
customarily used in the manufacturing of methamphetamine.
Based upon the items viewed at the residence and upon information
Blanton previously secured regarding McCloud's recent purchase of pseudoephedrine
from a Wal-Mart pharmacy, Deputy Blanton obtained a search warrant for McCloud's
residence from the Grayson District Court. The search warrant directed a search of the
premises known as “460 Claggett Road” and, more particularly, described as the “first
trailer on the right.” Several items of drug paraphernalia, methamphetamine, and
marijuana were ultimately seized from McCloud's residence during the search.
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McCloud was indicted by a Grayson County Grand Jury upon first-degree
possession of a controlled substance, possession of drug paraphernalia, and possession of
marijuana. McCloud filed a motion to suppress evidence seized from her residence.
Following an evidentiary hearing, the motion to suppress was denied. McCloud
subsequently entered a conditional plea of guilty to the charges but reserved her right to
appeal the denial of her motion to suppress. Ky. R. Crim P. (RCr) 8.09. This appeal
follows.
McCloud contends the circuit court erred by denying the motion to suppress
evidence seized from her residence. Specifically, McCloud asserts that the search
warrant lacked particularity in describing the place to be searched (her residence), thus
violating the Fourth Amendment to the U.S. Constitution and Section 10 of the Kentucky
Constitution.
Our standard when reviewing a trial court's decision on a motion to
suppress evidence initially looks to whether the trial court's findings of fact are supported
by substantial evidence. If the findings of fact are supported by substantial evidence,
such findings are conclusive. RCr 9.78. Based on the findings of fact, we then conduct a
de novo review of the trial court's application of the law to those facts to determine
whether its decision is correct as a matter of law. Com. v. Neal, 84 S.W.3d 920 (Ky.App.
2002); see also Nichols v. Com., 186 S.W.3d 761 (Ky.App. 2005).
It is well-established that a search warrant must describe with particularity
the place to be searched under the Fourth Amendment of the U.S. Constitution and
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Section 10 of the Kentucky Constitution.1 This particularity requirement is satisfied if the
description in the search warrant enables the officer executing the warrant to identify the
place to be searched with reasonable effort. Duff v. Com., 464 S.W.2d 264 (Ky. 1971);
Com. v. Smith, 898 S.W.2d 496 (Ky.App. 1995); see also 68 Am. Jur. 2d Searches and
Seizures § 211 (2000).
McCloud argues the search warrant lacked sufficient particularity because it
contained an incorrect address for the residence to be searched. The search warrant read,
in part:
[Y]ou are commanded to make an immediate search of the
premise known and numbered as 460 Claggett Road,
Leitchfield Grayson County, Kentucky and more particularly
described as follows:
Beginning at the Grayson County
Courthouse, Public Square, Leitchfield, travel
West on Highway 54 for 3.7 miles, turning right
onto Claggett Road travel north 4.10ths of a
mile. There are two mailboxes one numbered
424 and 460. Turn right into a gravel driveway
and stay to the left for a 1/10th of a mile ending
at the first trailer on the right.
The search warrant listed the premises to be searched as “460 Claggett Road;” however,
McCloud's correct address and the actual premises to be searched was 456 Claggett
Road.2 McCloud argues the erroneous address in the search warrant created a reasonable
1
The Kentucky Supreme Court has recognized that the protection afforded by Section 10 of the
Kentucky Constitution against unreasonable search and seizure is coextensive with the protection
afforded by the Fourth Amendment of the U.S. Constitution. LaFollette v. Com., 915 S.W.2d
747 (Ky. 1996).
2
At the suppression hearing, there was testimony presented that McCloud's address was actually
456 Claggett Road and was the trailer on the right side of the driveway.
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probability that the wrong residence would be searched, thus violating the particularity
requirement of Section 10 of the Kentucky Constitution and the Fourth Amendment of
the U.S. Constitution. We disagree.
Although never specifically articulated in this Commonwealth, we are
persuaded that a search warrant containing an incorrect address for the premises to be
searched may still be constitutionally valid if the warrant contains a description of the
premises to be searched with such particularity that the officer executing the warrant is
able to identify the place to be searched with reasonable effort. See 68 Am. Jur. 2d
Searches and Seizures § 213 (2000).
In the case sub judice, the search warrant contained a detailed description of
the premises to be searched. Although the warrant contained the wrong address, the
warrant clearly recited that the premises to be searched was “the first trailer on the right.”
As there only existed two trailers at the end of the driveway, one on the left and one on
the right, an officer exercising reasonable effort could easily ascertain the proper trailer to
be searched. Additionally, Deputy Henderson knew the trailer on the right was
appellant's residence and had served the Hardin County arrest warrant upon McCloud at
the trailer earlier that day. When Deputy Henderson returned to execute the search
warrant, he was obviously able to identify the correct premises to be searched under the
search warrant.
Considering the description of the premises to be searched contained in the
warrant and Deputy Henderson's prior knowledge concerning the correct location of
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McCloud's trailer, we do not believe the search warrant violated the particularity
requirement of Section 10 of the Kentucky Constitution or the Fourth Amendment of the
U.S. Constitution.
McCloud also argues that Deputy Blanton's actions at the time the arrest
warrant was served violated her right to be free from unreasonable search and seizure as
secured by the Fourth Amendment of the U.S. Constitution and Section 10 of the
Kentucky Constitution. Specifically, McCloud maintains that Deputy Blanton unlawfully
proceeded to the rear of the trailer when executing the arrest warrant and improperly
invaded the curtilage of her private residence. In particular, McCloud contends:
Officer Blanton had no right to send his partner to the
front door and simultaneously run around back and search the
curtilage area behind Sharon McCloud's trailer on December
22, 2005. . . .
....
Blanton testified that Sharon [McCloud] answered the
front door immediately on December 22, 2005. He was there
to arrest her, to be sure, but for cold checks, and not for any
violent offense. There was no evidence that Sharon had ever
resisted or fled from the police on any prior occasion, no
evidence that she had any weapons or posed any threat, and
no evidence was offered to justify Blanton's trespass in the
back yard area of the two trailers. The officers were not in
“hot pursuit” of Ms. McCloud, and were not justified to
search her back yard on that basis. Certainly no “safety
check” or “protective sweep” was “necessary” and Officer
Blanton was not justified in running around back to search for
signs of manufacturing methamphetamine. . . .
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McCloud's Brief at 16-17. McCloud points out that Deputy Blanton observed items
consistent with manufacturing methamphetamine while behind the trailer.3 McCloud
argues that such evidence of manufacturing methamphetamine was included in Deputy
Blanton's affidavit to establish probable cause to secure the search warrant.
An arrest warrant authorizes a limited invasion of the arrestee's privacy
interest in order to execute the warrant. 6A C.J.S. Arrest § 56 (2004). A valid arrest
warrant also permits the police to enter the home of the arrestee to serve the warrant.4 It
is uncontroverted that Deputy Blanton was participating in the execution of a lawful
arrest warrant at the time he approached the rear of McCloud's trailer. He proceeded to
the rear of the trailer in order to secure the rear door of the trailer to aid in effectuating the
arrest. As a valid arrest warrant authorizes a limited invasion of the arrestee's privacy
interest and, more specifically, authorizes entry into the arrestee's home, we conclude that
a valid arrest warrant also authorizes the police to enter that part of the curtilage of a
private residence necessary to secure the rear door of the residence. 6A C.J.S. Arrest §
55 (2004). Accordingly, we hold that Deputy Blanton properly proceeded to the rear
door of McCloud's trailer in execution of the arrest warrant.
3
According to the affidavit of Deputy Terry Blanton, he observed a “mason jar sitting beside of
a burn barrel . . . [and] what appeared to be a paper towel inside the jar with what appeared to be
a pink color residue on it believed to be pseudoephedrine. There was also white powder
substance in the bottom of the jar. . . . [and] several cans of what appeared to be starting fluid
cans inside the barrel.”
4
This limited invasion into the arrestee's home is only justified when the police possess a
reasonable belief that the arrestee is within the home. 6A C.J.S. Arrest § 56 (2004).
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McCloud finally contends that the affidavit submitted by Deputy Blanton
was insufficient to establish probable cause to issue the search warrant. Specifically,
McCloud contends Deputy Blanton's affidavit contained false statements made with
reckless disregard for the truth.
It is axiomatic that a search warrant may only be issued upon a finding of
probable cause. See Dixon v. Com., 890 S.W.2d 629 (Ky.App. 1994). Probable cause
exists for the issuance of a search warrant if there is a fair probability that contraband or
evidence of criminal activity will be found in the place to be searched. Moore v. Com.,
159 S.W.3d 325 (Ky. 2005). Specifically, McCloud claims that Deputy Blanton
erroneously stated in the affidavit that McCloud purchased “two boxes of 48 count
120mg pseudoephedrine” from Wal-Mart on December 2, 2005. McCloud points out that
the Wal-Mart pharmacy summary sheet revealed she actually only purchased two boxes
of 20 count 120mg pseudoephedrine.
To successfully attack a facially sufficient affidavit, defendant must
demonstrate:
(1)[T]he affidavit contains intentionally or recklessly false
statements, and (2) the affidavit, purged of its falsities, would
not be sufficient to support a finding of probable cause.
Com. v. Smith, 898 S.W.2d 496, 503 (Ky.App. 1995).
In the case at hand, if Deputy Blanton's affidavit was purged of the
allegedly false information, it would still be sufficient to support a finding of probable
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cause.5 See id. The affidavit also contained the following information regarding
evidence of manufacturing methamphetamine observed by Deputy Blanton at McCloud's
residence:
Detective Blanton noticed a mason jar sitting beside of a burn
barrel in the left back corner of the residence. Detective
Blanton noticed what appeared to be a paper towel inside the
jar with what appeared to be a pink color residue on it
believed to be pseudoephedrine. There was also white
powder substance in the bottom of the jar. Detective Blanton
also saw several cans of what appeared to be starting fluid
cans inside the barrel.
The actual observation of various items consistent with manufacturing methamphetamine
by Deputy Blanton at McCloud's residence provided probable cause to issue the search
warrant. Simply put, there existed a fair probability that contraband and evidence of a
crime would be found at McCloud's residence.
Upon the whole, we are of the opinion the circuit court properly denied
McCloud's motion to suppress evidence seized from her residence.
For the foregoing reasons, the judgment of the Grayson Circuit Court is
affirmed.
ALL CONCUR.
5
We would note that the Wal-Mart pharmacy sheet or log was very confusing and could easily
result in misreading, thus causing inaccurate information being placed in Blanton's affidavit.
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BRIEFS AND ORAL ARGUMENT
FOR APPELLANT:
BRIEF FOR APPELLEE:
Gregory D. Stumbo
Attorney General
Susan Jackson Balliet
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky
George G. Seelig
Assistant Attorney General
Frankfort, Kentucky
ORAL ARGUMENT FOR APPELLEE:
Gregory C. Fuchs
Assistant Attorney General
Frankfort, Kentucky
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