MILES (MARK) VS. COMMONWEALTH OF KENTUCKY
Annotate this Case
Download PDF
RENDERED: OCTOBER 9, 2009; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-000463-MR
MARK MILES
v.
APPELLANT
APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE FRED A. STINE, V, JUDGE
ACTION NO. 07-CR-00360
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS, CHIEF JUDGE; THOMPSON, JUDGE; HARRIS,1 SENIOR
JUDGE.
HARRIS, SENIOR JUDGE: Mark Miles appeals from a Campbell Circuit Court
final judgment convicting him of Trafficking in Marijuana Within 1000 Yards of a
School and sentencing him to four years’ imprisonment. Miles raises three issues2
1
Senior Judge William R. Harris sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
(KRS) 21.580.
2
On page 10 of his brief, Miles mentions a failure of the officers to read his Miranda rights. No
such issue was raised in the trial court, and we will not address it.
on appeal: (1) whether the police had authority to enter his residence; (2) whether
the plain view exception to the warrant requirement applies to certain items seized;
and (3) whether the police improperly searched boxes in his home. Finding no
error in the trial court’s decisions, we affirm the judgment of conviction.
On February 25, 2008, Mark Miles was convicted of one count of
Trafficking in Marijuana within 1,000 Yards of a School. The conviction stemmed
from the events of July 4, 2007. On that date, Amy Due, Miles’s girlfriend, went
to the Newport Police station and reported that Miles assaulted her. She told police
that Miles kept a gun in their residence. Officer Chris Fangman accompanied Due
to the residence where she opened the door with her keys.
Upon entering the residence, Officer Fangman saw Miles sitting at a
computer desk along with a scale and a plastic baggy of marijuana. Officer
Fangman also smelled marijuana. While in the home, Officer Fangman located
several lock boxes. After Miles gave him consent to open the boxes, Officer
Fangman found two sets of scales, $1,200, and five baggies of marijuana.
Following his indictment, Miles moved to suppress the incriminating evidence, an
evidentiary hearing was held, and the trial court denied the motion by an order
entered on November 13, 2007. Miles was subsequently tried by a jury and
convicted. This appeal follows.
First, Miles claims that Officer Fangman unlawfully entered his
residence because Due did not have the authority to invite them. When
-2-
determining whether a third-party consent to enter was valid, we must examine
whether a “reasonable police officer faced with the prevailing facts reasonably
believed that the consenting party had common authority over the premises to be
searched.” Commonwealth v. Nourse, 177 S.W.3d 691, 696 (Ky. 2005), quoting
United States v. Gillis, 358 F.3d 386, 390 (6th Cir. 2004). Further, “[c]ommon
authority . . . rests on mutual use of the property by persons generally having joint
access or control for most purposes[.]” United States v. Matlock, 415 U.S. 164,
171 n.7, 94 S.Ct. 988, 993 n.7; 39 L.Ed.2d 242 (1974).
Due told Officer Fangman that she lived at the residence with Miles
and used her key to unlock the door. When Due and Officer Fangman entered the
residence, Miles did not object to her entrance or the entrance of Officer Fangman.
Miles, however, argues that Due no longer had common authority because she was
in the process of moving out. Due still possessed her key and used the key without
Miles’s objection. Miles failed to present any evidence of moving boxes or
changed locks that should have signified to Officer Fangman that Due no longer
had common control over the residence. In light of these circumstances, we find
that Officer Fangman had a reasonable belief that Due had common authority over
the residence and the authority to consent to his entrance.
Second, Miles argues that the bag of marijuana and scale found on the
desk were illegally seized. Officer Fangman, however, testified that the items were
discovered in plain view. Although a warrantless search is presumed to be
unreasonable and unlawful, the presumption can be overcome when evidence is
-3-
seized under the plain view doctrine. Commonwealth v. Hatcher, 199 S.W.3d 124,
126 (Ky. 2006). Under this exception to the warrant requirement, law enforcement
officials may seize evidence without a warrant when the initial entry was lawful,
the evidence was inadvertently discovered, and the incriminating nature was
readily apparent. Id. Officer Fangman lawfully entered the residence and saw
marijuana and scales on the computer desk where Miles was sitting. Therefore, we
find that a warrant was not required.
As for Miles’s claims that items were not discovered in plain view, we
must give great deference to the trial court’s credibility assessments. The ability to
assess the credibility of witnesses and to draw reasonable inferences from the
testimony is solely vested in the discretion of the trial court. Commonwealth v.
Whitmore, 92 S.W.3d 76, 79 (Ky. 2002). In light of Officer Fangman’s testimony,
we find that ample evidence existed to support the trial court’s conclusion that the
items were lawfully seized under the plain view doctrine.
Finally, Miles claims that Officer Fangman illegally searched the
locked boxes. Officer Fangman, however, claims that Miles consented to the
search of the boxes. Again, the ability to assess witness credibility lies solely
within the sound discretion of the trial court. Id. Although Miles testified that he
never consented to the search, the court obviously gave greater weight to Officer
Fangman’s testimony.
Miles argues that it is unreasonable to believe that a man would
consent to a search of an item containing contraband. Although it may seem
-4-
unwise, it is not uncommon. We are not persuaded by Miles’s argument that his
consent to search would be illogical. We find that Officer Fangman’s testimony
was sufficient evidence to support the trial court’s conclusion that Miles consented
to the search of the boxes.
Because we conclude that the Campbell Circuit Court properly denied
Miles’s motion to suppress the evidence seized at the time of his arrest, we affirm
the judgment under review.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Lisa Bridges Clare
Linda Roberts Horsman
Frankfort, Kentucky
Jack Conway
Attorney General of Kentucky
Jeffrey A. Cross
Assistant Attorney General
Frankfort, Kentucky
-5-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.