COMMONWEALTH OF KENTUCKY VS. SNOWDEN (RORY)
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RENDERED: JULY 29, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2010-CA-001673-MR
COMMONWEALTH OF KENTUCKY
v.
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE ERNESTO M. SCORSONE, JUDGE
ACTION NO. 09-CR-01739
RORY SNOWDEN
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: TAYLOR, CHIEF JUDGE; CAPERTON AND CLAYTON, JUDGES.
TAYLOR, CHIEF JUDGE: The Commonwealth of Kentucky brings this appeal
from an August 12, 2010, order of the Fayette Circuit Court granting a motion to
suppress evidence filed by Rory Snowden. We affirm.
In October 2009, detectives with the Lexington Police Department
received a tip from an informant that he had delivered marijuana to an individual
whose nickname was “Rizzo” and who lived “about half way down” Wintergarden
Drive. The informant did not know the individual’s proper name or exact street
address but relayed that Rizzo drove a green Pontiac motor vehicle. Detectives
then went to Wintergarden Drive and observed a green Pontiac vehicle parked in
front of 2925 Wintergarden Drive. The Pontiac vehicle was registered to a Rory
Snowden, and it was determined that Snowden had previously reported residing at
2925 Wintergarden Drive, Apartment D.
Based upon this information, detectives decided to conduct a “knock
and talk” at 2925 Wintergarden Drive, Apartment D. Snowden was living in
Apartment D, identified himself, and talked with the detectives. Snowden gave
detectives permission to search his Pontiac vehicle but refused permission to
search his apartment. The search of Snowden’s vehicle revealed a small amount of
suspected marijuana residue on the floorboard and a torn corner of a sandwich
baggie. After searching Snowden’s vehicle, one of the detectives searched
Snowden’s trash toter. The search of the trash toter revealed marijuana seeds, a
marijuana roach, and a torn corner of a plastic baggie. Based upon the evidence
seized during the search of Snowden’s vehicle and trash toter, a search warrant was
secured for Snowden’s apartment. A search of Snowden’s apartment produced a
large quantity of marijuana.
Snowden was subsequently indicted by a Fayette County Grand Jury
upon the offenses of trafficking in marijuana (eight ounces to less than five
pounds) and possession of drug paraphernalia. Thereafter, Snowden filed a motion
to suppress evidence seized during the search of his trash toter. Kentucky Rules of
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Criminal Procedure (RCr) 9.78. Following an evidentiary hearing, the circuit court
granted Snowden’s motion to suppress evidence seized from the trash toter. The
circuit court reasoned:
That [Snowden]’s apartment building contained four (4)
separate units. The trash cans were in the rear of the
building, were on private property, and were not set out
for collection. The trash cans can also only be seen from
the street if a [sic] one stands at the far right side of the
driveway. This location is far from the sidewalk, the site
for collection.
....
The parking area where the trash can was located
was directly behind [Snowden]’s apartment building.
[Snowden]’s parking area is partially fenced in and is
clearly separated from the parking areas of the
neighboring apartment buildings. The rear of
[Snowden]’s building has a “Tenant Parking Only” sign
to further protect the property. Furthermore, the trash
can was only visible from the street when one stood at
the far right side of the driveway. Based on these factors,
the Court finds the trash can was located within the
curtilage of [Snowden]’s home and any evidence
gathered from his trash can was seized in violation of his
Fourth [A]mendment right against unreasonable searches
and seizures. Such evidence may not be used by the
police to obtain a search warrant.
The Court next turns its attention to whether the
affidavit, minus the improperly seized evidence [from the
trash toter], is sufficient to establish probable cause.
....
Absent this information [evidence from the trash
toter], there is very little contained in the affidavit to
connect any alleged narcotics activity to [Snowden]’s
residence. Therefore, the Court finds that if the affidavit
had contained only properly obtained information, it
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would have been insufficient to establish probable cause
to search [Snowden]’s apartment. Wherefore, the
evidence seized as a result of the search warrant is
suppressed.
This appeal follows.
The Commonwealth contends that the circuit court erred by granting
Snowden’s motion to suppress evidence. The Commonwealth maintains that the
trash toter was not within the curtilage of Snowden’s apartment and, thus, not
entitled to the Fourth Amendment’s protection against unreasonable search and
seizure.
To begin, our review of a circuit court’s decision upon a motion to
suppress evidence is twofold. First, we must determine whether the circuit court’s
findings of fact are supported by substantial evidence. Adcock v. Com., 967
S.W.2d 6 (Ky. 1998). If supported by substantial evidence, the findings of fact are
conclusive. RCr 9.78; Drake v. Com., 222 S.W.3d 254 (Ky. App. 2007). And,
substantial evidence has been defined as evidence possessing sufficient probative
value to induce conviction in the minds of reasonable men. Moore v. Asente, 110
S.W.3d 336 (Ky. 2003). Second, we then conduct a de novo review of the circuit
court’s application of law to the facts. Adcock, 967 S.W.2d 6. In this appeal, the
material facts are undisputed, so our review proceeds de novo.
Snowden’s apartment at 2925 Wintergarden Drive is located in a twostory apartment building. The building contains four separate apartment units –
two on the top floor and two on the bottom floor. The apartment building has one
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front door located in the center of the building and a sidewalk leading directly to
the door. Just to the right of Snowden’s building is a driveway. The driveway
runs alongside the building and leads to a parking area directly behind the building.
The parking area is for residents of 2925 Wintergarden Drive and is marked with a
sign that reads “Tenant Parking Only.” The parking area is also partially fenced
and is separate from the parking areas of the neighboring buildings. Along the
back edge of Snowden’s parking area there are four separate trash toters – one for
each apartment unit. The trash toters are clearly marked with its respective
apartment number – A, B, C or D. When Snowden’s toter was searched, it was
located in its normal location – in the grass behind the parking area – and had not
been pushed around to the front of the building for collection.
The Fourth Amendment to the United States Constitution and Section
10 of the Kentucky Constitution protect individuals from unreasonable search and
seizure. Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576
(1967). Relevant to the case sub judice, the constitutional guarantee against
unreasonable search and seizure prohibits warrantless searches where there exists a
reasonable expectation of privacy in the object searched. Katz, 389 U.S. 347. An
expectation of privacy is recognized as reasonable if “(1) the individual manifests a
subjective expectation of privacy in the object of the challenged search; and (2)
society is willing to recognize that subjective expectation as reasonable.” Hause v.
Com., 83 S.W.3d 1, 11 (Ky. App. 2001)(quoting LaFollette v. Com., 915 S.W.2d
747, 749 (Ky. 1996)).
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The United States Supreme Court has addressed the warrantless
search of garbage and stated that “garbage bags left at the curb outside the
[respondent’s] house would violate the Fourth Amendment only if respondents
manifested a subjective expectation of privacy in the garbage that society accepts
as objectively reasonable.” California v. Greenwood, 486 U.S. 35, 39, 108 S. Ct.
1625, 100 L. Ed. 2d 30 (1988); accord Smith v. Com., 323 S.w.3d 748 (Ky. 2009).
When an individual leaves trash outside the curtilage of his home for collection, he
generally has no reasonable expectation of privacy in such trash. The reason for
this rule is that any expectation of privacy that the individual has in such trash is
not considered reasonable by society. Greenwood, 486 U.S. 35. The Greenwood
Court explained its rationale as follows:
It is common knowledge that plastic garbage bags left on
or at the side of a public street are readily accessible to
animals, children, scavengers, snoops, and other
members of the public. See Krivda, supra, 5 Cal.3d, at
367, 96 Cal.Rptr., at 69, 486 P.2d, at 1269. Moreover,
respondents placed their refuse at the curb for the express
purpose of conveying it to a third party, the trash
collector, who might himself have sorted through
respondents' trash or permitted others, such as the police,
to do so. Accordingly, having deposited their garbage
“in an area particularly suited for public inspection and,
in a manner of speaking, public consumption, for the
express purpose of having strangers take it,” United
States v. Reicherter, 647 F.2d 397, 399 (CA3 1981),
respondents could have had no reasonable expectation of
privacy in the inculpatory items that they discarded.
Greenwood, 486 U.S. at 40-41 (footnotes omitted). Simply put, the Fourth
Amendment to the United States Constitution and Section 10 of the Kentucky
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Constitution do not prohibit a warrantless search of garbage deposited outside the
home’s curtilage in the location designated for garbage collection.
A more difficult issue is presented when police search garbage located
within the curtilage of the home that has not been placed in the location designated
for garbage collection. These cases require a decision based upon their respective
facts to determine whether a reasonable expectation of privacy exists. As
previously stated, the expectation of privacy is reasonable when an individual
possesses a subjective expectation of privacy in the garbage that society accepts as
objectively reasonable. Greenwood, 486 U.S. 35.
In its decision to grant Snowden’s motion to suppress evidence, the
circuit court concluded that the trash toter was located within the curtilage of
Snowden’s home. The circuit court focused upon the factors identified by the
Kentucky Supreme Court in Quintana v. Commonwealth, 276 S.W.3d 753 (Ky.
2008). These factors include (1) proximity of area to the home, (2) whether area is
enclosed, (3) how the area is used, and (4) steps taken to prevent observation by
passerbys. The circuit court noted that the area is located “directly behind
[Snowden’s] apartment building . . . is partially fenced . . . is clearly separated
from the parking areas of the neighboring apartment buildings . . . has a ‘Tenant
Parking Only’ sign to further protect the property . . . [and] was only visible from
the street when one stood at the far right side of the driveway.”
While the circuit court’s determination that the trash toter was located
within the curtilage of Snowden’s home is relevant to the disposition of this
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appeal, it is not dispositive. The constitutional protection against unreasonable
search and seizure of garbage is not based upon property concepts; rather, it is
based upon an individual’s reasonable expectation of privacy in such trash. Thus,
the pivotal question becomes whether Snowden’s subjective expectation of privacy
is viewed as objectively reasonable by society.
In this case, Snowden’s trash was located in an area directly behind
the apartment building. Each of the four tenants was provided with a separate
toter, and each toter was clearly identified as belonging to a particular tenant. It is
clearly distinguishable from a communal trash receptacle that is shared by all
tenants. Each building also had a clearly delineated parking area reserved for the
four residents of each building.
Considering the factors delineated in Quintana along with the factors
of this case, we conclude that Snowden’s trash toter was located within the
curtilage of his house. See Quintana, 276 S.W.3d 753. And, considering the
unique circumstances herein, it cannot be said that a member of the public would
reasonably believe he was free to enter the private parking area behind Snowden’s
building and rummage through his trash toter. See Greenwood, 486 U.S. 35.
Simply put, the public would recognize Snowden’s expectation of privacy as
reasonable. As such, we believe Snowden possessed a constitutionally cognizable
expectation of privacy in the trash toter.
In sum, we hold that Snowden possessed a reasonable expectation of
privacy in his trash toter and the warrantless search of his trash toter violated the
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Fourth Amendment to the United States Constitution and Section 10 of the
Kentucky Constitution. As such, we conclude that the circuit court properly
granted Snowden’s motion to suppress evidence.
For the foregoing reasons, the order of the Fayette Circuit Court is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Jack Conway
Attorney General of Kentucky
Frankfort, Kentucky
Derek G. Gordon
Lexington, Kentucky
Anthony B. Gray
Assistant Attorney General
Frankfort, Kentucky
ORAL ARGUMENT FOR
APPELLEE:
Rachel D. Yavelak
Lexington, Kentucky
ORAL ARGUMENT FOR
APPELLANT:
Anthony B. Gray
Assistant Attorney General
Frankfort, Kentucky
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