SMITH (BYRON DEWAYNE) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: OCTOBER 23, 2009; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-000770-MR
BYRON DEWAYNE SMITH
v.
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE KIMBERLY N. BUNNELL, JUDGE
ACTION NO. 07-CR-01324
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CAPERTON AND STUMBO, JUDGES; BUCKINGHAM,1 SENIOR
JUDGE.
CAPERTON, JUDGE: Byron Dewayne Smith entered a conditional plea of guilty
on April 21, 2008,2 reserving the right to appeal from the Fayette Circuit Court’s
1
Senior Judge David C. Buckingham, sitting as Special Judge by Assignment of the Chief
Justice pursuant to Section 110 (5) (b) of the Kentucky Revised Statutes (KRS) 21.580.
2
Smith conditionally pleaded guilty to trafficking in a controlled substance, first degree;
possession of drug paraphernalia, first offense; and being a persistent felony offender (PFO), first
adverse determination on his suppression motion entered January 7, 2008. At the
heart of Smith’s appeal is whether the Kentucky Constitution affords greater
protection for its citizens than its federal counterpart when the police perform a
search of one’s trash cans left for collection and then subsequently use the
information gathered therefrom to obtain a search warrant. After a review of the
arguments presented by the parties, the record, and the applicable law, we affirm
the Fayette Circuit Court.
On September 6, 2007, a search warrant for 2716 Hayden Park Lane
was executed based on the affidavit sworn by Detective David Lewis.3 Detective
Lewis based his affidavit on information gathered over the course of six months
from numerous anonymous tips and three independent investigations4 commonly
degree.
3
During the execution of the search warrant officers recovered cocaine, marijuana, scales, cell
phones, paraphernalia, and $12,085 in cash, and subsequently arrested Smith.
4
The following is a synopsis of the information Detective Lewis stated in his affidavit and
testified to at the suppression hearing:
March 18, 2007: Anonymous complaint of drug trafficking at 2716 Hayden Park Lane.
March 25, 2007: Anonymous complaint of narcotic sales at 2716 Hayden Park Lane.
March 26 2007: Anonymous complainant reported drug activity occurring at 2716 Hayden Park
Lane. Complainant gave physical description of subject, named the subject as Byron Smith, and
gave a description of Smith’s car.
April 13, 2007: Anonymous complaint of drug activity at 2716 Hayden Park Lane; caller
identified as Smith.
April 15, 2007: Two anonymous complaints; one of a disorder at 2716 Hayden Park Lane
involving Smith and another report of drug activity at 2716 Hayden Park Lane.
April 18, 2007: First trash pull. Detective Lewis finds suspected marijuana stem and identifying
mail in trash can, which was partially in the front lawn and roadway. Mail found in the trash can
included a Sprint phone bill, Insight cable bill in name of Nakia Talbert (who was later
established to be Smith’s girlfriend), and a pizza box with the address of 2716 Hayden Park
Lane.
June 8, 2007: Anonymous complaint of crack cocaine sell at 2716 Hayden Park Lane involving
firearms.
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referred to as “trash pulls.”5 Smith filed a motion to suppress the evidence
obtained by the search warrant and argued that the search warrant was not
adequately supported by the affidavit and the information contained therein was
inaccurate and misleading.
The trial court held a hearing on the matter. In contention at the
hearing was Smith’s whereabouts prior to the last trash pull, whether the
information used in the search warrant was stale, and the accuracy6 of the
information contained within the affidavit. Smith testified that he was out of town
from September 4, 2007, till September 6, 2007, and that he did not put his trash7
can out for collection on or before he left on September 4, 2007. Detective Lewis
testified in accordance with his affidavit. He also testified that the trash cans in the
neighborhood were placed in front of the residences and that the only trash can
searched was associated with Smith’s address. Detective Lewis further testified
June 14, 2007: Second trash pull. Detective Lewis finds another suspected stem of marijuana
and identifying mail. Mail showing address of 2716 Hayden Park Lane found. Trash can was
located in the same place as before.
August 24, 2007: Smith’s vehicle seen outside of 2716 Hayden Park Lane by Detective Lewis.
September 5, 2007: Third trash pull. Detective Lewis found items containing cocaine residue
and baggies, a piece of newspaper, and a piece of kilo wrapping paper. No identifying mail
found. Trash can located in the same place as prior trash pulls.
5
A “trash pull” occurs when the police perform a search of one’s trash can left for collection.
6
On appeal Smith argues that the affidavit fails to state whether the suspected marijuana stem
tested positive or not and that the affidavit fails to state that the trash can had an identifying
address on it. At the hearing Detective Lewis testified that the address associated with the
residence was on the back of the trash can.
7
After great contemplation over what to call waste disposed of by humans and the container in
which it might be stored, and in light of the parties various references to trash can, garbage,
garbage can, trash receptacle and/or garbage receptacle, we have decided to just call it plain old
"trash” and, where appropriate, use the term “trash can.”
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that he did not believe that anything was wrong with the warrant, i.e., he executed
it in good faith.
After hearing the testimony presented by the parties, the trial court
found that the information contained in the affidavit was not stale. The court
further found that Smith presented ample evidence to establish that he was in
Chicago prior to the day the trash was to be picked up. However, while Smith
testified that his trash can was in the garage, Detective Lewis explained that the
trash pull was taken from the trash can that was associated with 2716 Hayden Park
Lane. While there is discrepancy in the testimony, the court found that the search
warrant was adequately supported by the affidavit and that the information in the
affidavit was accurate and not misleading.
Thereafter Smith entered a conditional guilty plea and was sentenced
to ten years. It is from the trial court’s order overruling his motion to suppress that
Smith now appeals.8
Smith presents this Court with three arguments as to why the trial
court wrongly denied his motion to suppress the evidence obtained in the execution
of a search warrant based on Detective Lewis’s affidavit. First, Smith argues that
the trial court’s findings were not supported by substantial evidence. Second,
Smith argues that, as a matter of public policy, Section 10 of the Kentucky
Constitution should be held to afford greater protection than the Fourth
8
We recognize that in his brief Smith appeals from a “judgment of the Fayette Circuit Court
convicting him of . . .[and] also appeals. . . deni[al] [of] his motion to suppress evidence.” We
only address the denial of his motion to suppress, as his conditional guilty plea was based on the
denial of his motion to suppress.
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Amendment of the U.S. Constitution. Third, Smith argues that this Court should
require an articulable individualized suspicion for a warrantless trash pull.
The Commonwealth counter-argues that sufficient evidence existed to
uphold the search warrant affidavit. Further, the Commonwealth counter-argues
that Section 10 of the Kentucky Constitution provides no greater protection than its
counterpart, the Fourth Amendment of the U.S. Constitution, and that Detective
Lewis did not need any suspicion to conduct the trash pull.
At the outset we note that our standard of review of the trial court's
decision on a motion to suppress requires us to assess whether the trial court's
findings of fact are supported by substantial evidence. If they are, then they are
conclusive. See Kentucky Rules of Criminal Procedure (RCr) 9.78. Substantial
evidence means “[e]vidence that a reasonable mind would accept as adequate to
support a conclusion” and evidence that, when “taken alone or in the light of all the
evidence, . . . has sufficient probative value to induce conviction in the minds of
reasonable men.” See Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003).
If the findings of fact are supported by substantial evidence, then
“[b]ased on those findings of fact, we must 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.” Commonwealth v. Neal, 84 S.W.3d 920, 923 (Ky.App.
2002) (citing Adcock v. Commonwealth, 967 S.W.2d 6, 8 (Ky. 1998);
Commonwealth v. Opell, 3 S.W.3d 747, 751 (Ky.App. 1999)). In the matter sub
judice, we will review the sufficiency of the affidavit underlying the search warrant
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in a commonsense, rather than hypertechnical manner. Moore v. Commonwealth,
159 S.W.3d 325, 329 (Ky. 2005).9
In support of his first argument, that the trial court’s findings were not
supported by substantial evidence, Smith alleges numerous items of
misinformation provided in the affidavit to obtain the search warrant. The alleged
defects may be summarized as (1) staleness of the information provided10 in
support of the search warrant and (2) that Detective Lewis was reckless and
misleading with the information he failed to provide.11
9
Moore went on to discuss our appellate review of a search warrant:
[We] must give great deference to the warrant-issuing judge's
findings of probable cause and should not be reversed unless
arbitrarily exercised. Courts should review the sufficiency of an
affidavit underlying a search warrant in a commonsense, rather than
hypertechnical, manner. The traditional standard for reviewing an
issuing judge's finding of probable cause has been that so long as
the magistrate had a substantial basis for concluding that a search
warrant would uncover evidence of wrongdoing, the Fourth
Amendment requires no more.
Whether probable cause exists is determined by examining the
totality of the circumstances. Furthermore, the test for probable
cause is whether there is a fair probability that contraband or
evidence of a crime will be found in a particular place . . . . Probable
cause does not require certainty that a crime has been committed or
that evidence will be present in the place to be searched.
Id. at 329 (internal citations omitted).
10
Smith argues that there was a long delay between the anonymous tips as there had been no
complaints about Smith or the residence in the three months prior to the last trash pull.
11
Smith characterizes this misleading information as: 1) there was no identifying mail found in
the third trash pull and, since the Detective listed the identifying mail found in the previous two
trash pulls, this invites the magistrate to assume it was present; 2) the affidavit failed to state that
Smith had not been seen for months at his residence; 3) Detective Lewis had not kept Smith’s
residence under surveillance and could not state the connection between Smith and the address or
even if he was there; and 4) the affidavit failed to state whether the suspected stems tested
positive for marijuana.
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Smith argues that if these alleged errors had been rectified, then the
judge would not have signed the search warrant. In addition, Smith argues that the
trial court could not rely on any additional information supplied by the police at the
hearing but must instead look at the four corners of the affidavit to determine
whether probable cause existed to obtain a search warrant.12
Smith is correct that a judge is bound by the four corners of the
affidavit when determining whether to issue or deny a search warrant. Crayton v.
Commonwealth, 846 S.W.2d 684, 689 (Ky. 1992); see also Illinois v. Gates, 462
U.S. 213, 230, 103 S.Ct. 2317, 2328, 76 L.Ed.2d 527 (1983) (totality-of-thecircumstances standard); Whiteley v. Warden, Wyoming State Penitentiary, 401
U.S. 560, 565 n. 8, 91 S.Ct. 1031, 1035, 28 L.Ed.2d 306 (1971) (court limited to
review of affidavit itself). However, we disagree with Smith that the trial court’s
denial of his suppression motion was erroneous.
Smith’s motion to suppress the evidence was properly denied, as the
trial court’s finding that the information contained in the affidavit was not stale
was supported by substantial evidence in light of our accompanying jurisprudence.
See Ragland v. Commonwealth, 191 S.W.3d 569, 584 (Ky. 2006), when “the
affidavit properly recites facts indicating activity of a protracted and continuous
12
Smith cites this Court to U.S. v. Elliott, 576 F.Supp. 1579 (D.C. Ohio 1984), to support his
argument that the small amount of marijuana discovered in his trash can was insufficient to
obtain a search warrant as it would not provide probable cause that there was a continuing
presence of marijuana in the home. We do not find Elliott to be persuasive as the facts are easily
distinguishable. Unlike Elliot, the facts of the case sub judice reflect numerous complaints made
against Smith and/or his residence. Moreover, Detective Lewis initiated three separate trash
pulls prior to obtaining a search warrant.
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nature, a course of conduct, the passage of time becomes less significant.” (internal
citations omitted).
Ragland further discusses how a judge must employ a “totality of the
circumstances” approach to probable cause. “Under this test, the issuing
magistrate need only make a practical, common-sense decision whether, given all
the circumstances set forth in the affidavit before him . . . there is a fair probability
that contraband or evidence of a crime will be found in a particular place.” Id. at
583 (internal citations omitted).
The information provided in the four corners of the affidavit indicates
that the type of criminal activity was of a protracted and continuous nature, thus,
based on the nature of the crime, a judge may properly infer that there is a fair
probability that evidence of wrongdoing would still be found on the premises given
the totality of the circumstances. Accordingly, the trial court correctly found the
information provided in the affidavit was not stale.
Turning now to Smith’s claim that Detective Lewis intentionally
omitted critical information in his affidavit that would have resulted in the search
warrant being denied, we find Guth v. Commonwealth, 29 S.W.3d 809, 810
(Ky.App. 2000), to be controlling.
To attack a facially sufficient affidavit, it must be shown
that (1) the 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. The same basic standard also applies
when affidavits omit material facts. An affidavit will be
vitiated only if the defendant can show that the police
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omitted facts with the intent to make, or in reckless
disregard of whether the omission made, the affidavit
misleading and that the affidavit, as supplemented by the
omitted information, would not have been sufficient to
support a finding of probable cause.
We disagree with Smith that if the affidavit had been supplemented by
the omitted information that it would then have been insufficient to support a
finding of probable cause.13 First, Smith complains of an omission, not a reckless
or false statement. Smith argues that the judge who issued the search warrant
would, in reviewing the affidavit assume or infer that, since the two prior trash
pulls contained mail or materials that tied the prior trash with the residence, the
third trash pull also contained such mail or materials absent a statement in the
affidavit to the contrary. Such an assumption or inference would be contrary to
Crayton, supra, which limits the magistrate’s review to the four corners of the
affidavit.
Second, even if the affidavit had pointedly stated that no information
identifying Smith was found in the trash can on the third trash pull, this would not
result in a lack of probable cause given an evaluation of the “totality of the
circumstances” outlined in the affidavit.14 The affidavit contained a substantial
amount of information from which the magistrate could determine, despite the fact
13
Smith also failed to show that Detective Lewis prepared the affidavit with a reckless disregard
for the truth at the hearing. Thus, we agree with the trial court that the information contained in
the affidavit was accurate.
14
Likewise, reporting whether or not the suspected stem tested positive for marijuana is
immaterial given the presence of cocaine residue found on items in Smith’s trash can.
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that identifying material was not found in the third trash pull, that there was a fair
probability that contraband or evidence of a crime would be found in a particular
place.
Smith also failed to show that Detective Lewis prepared the affidavit
with a reckless disregard for the truth at the hearing. Thus, we agree with the trial
court that the information contained in the affidavit was accurate and not
misleading, and, therefore, find that the trial court properly denied Smith’s motion
to suppress the evidence.
We now turn to Smith’s second argument that as a matter of public
policy Section 10 of the Kentucky Constitution should be held to afford greater
protection than the Fourth Amendment of the U.S. Constitution. While Smith is
correct that states are permitted to extend greater protection to their citizens than
that afforded by the federal constitution,15 our Supreme Court has held that
“Section 10 of the Kentucky Constitution provides no greater protection than does
the federal Fourth Amendment.” LaFollette v. Commonwealth, 915 S.W.2d 747,
748 (Ky. 1996) (internal citations omitted).
Given this explicit language in LaFollette, this Court must disagree
with Smith as our function is to review possible errors made by the trial court and,
15
See Commonwealth v. Wasson, 842 S.W.2d 487(Ky.1992), in which the Court discussed the
protection of individual rights by the Kentucky Constitution as compared to its federal
counterpart. However, Wasson did not address Section 10 of the Kentucky Constitution; given
the explicit language in LaFollette v. Commonwealth, 915 S.W.2d 747 (Ky.1996), we must
disagree with Smith’s argument that today’s concern over the proper disposal of one’s trash
given this age of identity theft merits our public policy to grant a greater right of protection from
police intrusion into our trash cans.
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in our review of the record before us, we find that the trial court did not err given
our jurisprudence. See Kaplon v. Chase, 690 S.W.2d 761, 763 (Ky.App. 1985).16
Last, Smith argues that this Court should require an articulable
individualized suspicion for a warrantless trash pull. As previously discussed,
Section 10 of our Kentucky Constitution provides no greater protection than the
federal Fourth Amendment. In California v. Greenwood, 486 U.S 35, 37, 108
S.Ct. 1625, 1627, 100 L.Ed2d 30 (1988), the U.S. Supreme Court held that the
federal Fourth Amendment does not prohibit the warrantless search and seizure of
trash left for collection outside the curtilage of a home.
Kentucky courts have been consistent with the holding in Greenwood.
See Ragland, 191 S.W.3d at 584 (affidavit for search warrant was based partially
on evidence found during a trash pull). Our courts have not interpreted the
Kentucky Constitution to require an articulable individualized suspicion for a
warrantless trash pull and, accordingly, the trial court committed no error by
denying Smith’s motion to suppress.
Based on the aforementioned reasons, we find no error by the Fayette
Circuit Court and accordingly affirm its denial of Smith’s motion to suppress
evidence.
ALL CONCUR.
16
See also Supreme Court Rule (SCR) 1.030(8)(a) “[t]he Court of Appeals is bound by and shall
follow applicable precedents established in the opinions of the Supreme Court and its
predecessor court.”
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BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
S. Chad Butcher
Lexington, Kentucky
Jack Conway
Attorney General of Kentucky
Bryan D. Morrow
Assistant Attorney General
Frankfort, Kentucky
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