JOHN R. HIBBENS v. COMMONWEALTH OF KENTUCKY AND SANDY COMBS v. COMMONWEALTH OF KENTUCKY
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RENDERED:
October 31, 1997; 2:00 p.m.
NOT TO BE PUBLISHED
NO. 96-CA-2421-MR
JOHN R. HIBBENS
APPELLANT
APPEAL FROM MAGOFFIN CIRCUIT COURT
HONORABLE JOHN ROBERT MORGAN, JUDGE
ACTION NO. 96-CR-000023
v.
COMMONWEALTH OF KENTUCKY
AND
APPELLEE
NO. 96-CA-2827-MR
SANDY COMBS
v.
APPELLANT
APPEAL FROM MAGOFFIN CIRCUIT COURT
HONORABLE JOHN ROBERT MORGAN, JUDGE
ACTION NO. 96-CR-000023
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
REVERSING, VACATING, AND REMANDING
* * *
BEFORE:
GUDGEL, GUIDUGLI, AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
These are consolidated appeals from judgments
convicting co-defendants/appellants of trafficking in a
controlled substance in the second degree pursuant to conditional
guilty pleas.
Appellants argue that the search warrant which
lead to discovery of the controlled substances was defective
because it did not describe the property to be seized.
We agree
and, thus, reverse the orders denying the motions to suppress,
vacate the judgments of conviction, and remand for further
proceedings.
On March 29, 1996, Officer Chalmer Wireman of the
Magoffin County Sheriff's Department submitted an affidavit for a
search warrant which provided as follows:
On the 25 day of March, 1996, at
approximately 10:00 a.m. affiant received
information from a confidential informant,
that the affiant knows to be truthful, that
[sic] has given the affiant information in
the past year about unlawful drugs that
proved to be true, the informant stated to
the affaint [sic] that on March 22th [sic]
1996 at appoximately [sic] 7:30 p.m. the
informant and another person went to Pine
Point Apartments, Apartment B-9, []
Salyersville Ky. & bought form [sic] Sandy
Coldiron, who was in Apartment B-9 a bag of
marijuana, supposedly six (6) grams for the
some [sic] of (25.00) twenty five dollars
U.S. currency. This buy took place in
Magoffin County, State of Ky.
Acting on the information received, affiant
conducted the following independent
investigation: That Sandy Combs Coldiron has
a reputation by nieghbors [sic] people of the
communty [sic] for dealing unlawful drugs.
In the space on the affidavit reserved for describing
the personal property for which the police would be searching, it
stated, "Apartment B-9 Rooms, ect. [sic]."
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Based upon Officer Wireman's affidavit, the court
issued a search warrant for the apartment of Sandy Combs which
provided as follows:
Proof by affidavit having this day been made
before me by Chalmer Wireman, a peace officer
of Magoffin County Sheriff Department, that
there is probable and reasonable cause for
the issuance of this Search Warrant as set
out in the affidavit attached hereto and made
a part hereof as if fully set forth herein;
you are commanded to make immediate search of
the premises known and numbered as B-9 Pine
Point Apartments more particularly described
as follows: going east U.S. 460 from
Magoffin County Courthouse on U.S. 460 to
Junction Mtn. Pkwy. then east on U.S. 460 to
the left side of U.S. 460 going east, the
Pine Point Housing Complex B-Building
Apartment B-9 and/or in a vehicle or vehicles
described as: Owned by Sandy Combs, Cole,
Coldiron and/or on the person or persons of:
Sandy Combs, Cole, Coldiron person or
premises. The following described personal
property: Apartment B-9 Rooms Etc. and if
you find the above described property or any
part thereof you will seize the property and
deliver it forthwith to me or any other court
in which the offense in respect to which the
property or things taken is triable, or
retain it in your custody subject to order of
said court.
Pursuant to the search warrant to which the affidavit
was attached, the Magoffin County Police searched the apartment
of Sandy Combs and seized marijuana, scales, rolling papers,
bottles of controlled substances, and cash.
Thereafter, on
May 16, 1996, appellants, Sandy Combs and John Hibbens, were
indicted for:
trafficking in marijuana, second degree; two
counts of controlled substances not in original containers; and
possession of drug paraphernalia.
3
On August 19, 1996, the trial court held a suppression
hearing on the validity of the search warrant.
Appellants argued
that the search warrant was defective because it failed to
describe the property to be seized as required by the Kentucky
and United States Constitutions.
The Commonwealth argues that
the language contained in the affidavit was incorporated by the
search warrant and was described therein with sufficient
particularity to identify the seized property.
The trial court
denied the appellants' motions to suppress.
Subsequently, appellants entered conditional guilty
pleas to trafficking in a controlled substance, second degree,
reserving the issue of the validity of the search warrant for
appeal.
Both appellants were sentenced to one year imprisonment,
probated for one year.
These appeals followed.
The Fourth Amendment to the United States Constitution
provides that ". . . no Warrants shall issue, but upon probable
cause, supported by Oath or affirmation and particularly
describing the place to be searched, and the person or things to
be seized."
Section 10 of the Kentucky Constitution contains a
similar provision that "[n]o warrant shall issue to search any
place, or seize any person or thing, without describing them as
nearly as may be. . . ."
In interpreting the above provisions,
it has been held that a search warrant "must contain such a
description of the place, person or thing to be searched or
seized as will reasonably identify them."
Williams v.
Commonwealth, Ky., 261 S.W.2d 416, 417 (1953).
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Appellants contend that because the warrant only
described the place (B-9 Pine Point Apartments) and person (Sandy
Combs, Cole, Coldiron) with particularity and did not describe
any personal property for which the police were searching and
ultimately seized, the warrant was defective under both the
Federal and Kentucky Constitutions.
The Commonwealth counters
that because the affidavit in support of the search warrant was
attached to the search warrant, the affidavit and search warrant
should be read together.
In reading both together, the
Commonwealth maintains that it is clear that the police were
searching for unlawful drugs.
The Commonwealth cites no authority for its position
that the affidavit and search warrant can be read together to
meet the specific description requirement, and we believe
prevailing authority on the issue is contrary to the
Commonwealth's position.
In construing Section 10 of the
Kentucky Constitution, the Court in Coker v. Commonwealth, Ky.
App., 811 S.W.2d 8 (1991) stated:
This section has long been held to require
that the affidavit for a search warrant
reasonably describe the property or premises
to be searched and state sufficient facts to
establish probable cause for the search of
the property or premises. Commonwealth v.
Diebold, 202 Ky. 315, 259 S.W. 705 (1924).
Likewise, the warrant itself must contain a
reasonably specific description of the object
of the search. William v. Commonwealth, Ky.,
261 S.W.2d 416 (1953). (Emphasis added.)
Id. at 9.
5
The purpose behind the specific requirements for search
warrants is to avoid cloaking the police with selective
discretion in determining what may be searched as such discretion
would allow intrusions upon the property of strangers to the
process.
Commonwealth v. Smith, Ky. App., 898 S.W.2d 496 (1995).
One purpose of the search warrant itself is to demonstrate
judicial authority for the search to the owner or person in
possession of the property in order to show that it is a lawful
search.
The affidavit in support of the search warrant does not
serve that purpose, but rather is to show probable cause for the
search to the judicial body authorizing the search.
Although the
affidavit was attached to the search warrant in the instant case,
it is not required to be shown to the person occupying the
property.
In any event, the affidavit in the present case did
not explicitly state the personal property for which the police
were searching.
It only stated the probable cause information
regarding unlawful drugs being sold out of the apartment by Sandy
Combs.
The degree of specificity required in a search warrant
is flexible and will vary depending on the crime involved and the
types of items sought.
United States v. Henson, 848 F. 2d 1374
(6th Cir. 1988), cert. denied by 488 U.S. 1005, 109 S. Ct. 784,
102 L. Ed. 2d 776 (1988).
General warrants are unconstitutional,
and a general description in a search warrant is only acceptable
where a specific description is unavailable.
Viers, 637 F. Supp. 1343 (W.D. Ky. 1986).
6
United States v.
In United States v.
Blakeney, 942 F. 2d 1001 (6th Cir. 1991), cert. denied by 502
U.S. 1000, 112 S.Ct. 646, 116 L. Ed. 2d 663 (1991), a warrant to
search for "jewelry" was held to be overbroad, where inventory of
items taken during a jewelry store robbery was available to the
agent applying for the warrant.
In the case at bar, the warrant should have, at the
very least, stated that the authorities were searching for
unlawful drugs or controlled substances.
The listing of the
apartment and the person to be searched was simply too general
given the information available to the authorities regarding the
reported drug activity in the apartment.
Accordingly, the
failure to list any personal property intended to be searched
rendered the search warrant defective under the Kentucky and
United States Constitutions.
For the reasons stated above, the orders of the
Magoffin Circuit Court denying appellants' motions to suppress
are reversed.
Hence, we also vacate the judgments of conviction
entered pursuant to appellants' conditional guilty pleas and
remand for further proceedings.
GUIDUGLI, JUDGE, CONCURS.
GUDGEL, JUDGE, DISSENTS.
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BRIEF FOR APPELLANTS:
BRIEF FOR APPELLEE:
Lowell E. Spencer
Paintsville, Kentucky
A. B. Chandler, III
Attorney General
J. Kirk Ogrosky
Assistant Attorney General
Frankfort, Kentucky
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