JERRY ALLEN RUNNINGEN v. COMMONWEALTH OF KENTUCKY
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RENDERED: DECEMBER 13, 2002; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2002-CA-000004-MR
JERRY ALLEN RUNNINGEN
APPELLANT
APPEAL FROM LARUE CIRCUIT COURT
HONORABLE LARRY D. RAIKES, JUDGE
ACTION NO. 00-CR-00055
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
EMBERTON, CHIEF JUDGE, JOHNSON, AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
Jerry Allen Runningen appeals from his
conviction of trafficking in marijuana, complicity to possession
of drug paraphernalia, and operating a motor vehicle under the
influence, pursuant to a conditional guilty plea reserving the
right to appeal the denial of a motion to suppress.
Having
concluded that the affidavit upon which the search warrant was
based was sufficient to establish probable cause, we affirm.
On July 28, 2000, Trooper Jeremy Thompson of the
Kentucky State Police submitted an affidavit for a search warrant
for appellant’s home at 2327 Wunderland Road which provided, in
relevant part:
On the 27 day of July 2000, at approximately
1900 [] p.m. affiant received information
from/observed: On June 24, 2000 this officer
met with persons he knew to be reliable,
Jones and Underwood who stated that Runningen
on Wunderland Rd. was growing marijuana.
They also provided this officer with a list
of names they believed to be trafficking
marijuana and other controlled substances.
On June 30, 2000 this officer arrested two of
the subjects on the list provided to him by
Jones and Underwood for four separate felony
counts of possession of narcotics. On
July 27, 2000 this officer listened to an
anonymous caller that called Post 4, E-town,
KSP, to report that Dennis Asbell was at 2327
Wunderland Rd., at a Jerry Runningen
residence purchasing marijuana. This officer
was given vehicle information as well as a
destination of Asbell. Asbell was stopped
pulling from Wunderland Rd. and arrested for
possession of marijuana.
Acting on the information received, affiant
conducted the following independent
investigation: Jerry Runningen resides at
2327 Wunderland Rd. Upton, Ky 42784. This
was corroborated by a [sic] operators license
check. Jerry Runningen has a 1949 Harley
Davidson, black, and a 1981 Honda 4-dr, grey
that are registered to him. This was
corroborated by a vehicle check. Jerry
Runningen has no criminal history pertaining
to controlled substances or marijuana
trafficking/possession.
Based upon the affidavit, the court issued a search warrant for
appellant’s residence.
While police officers were executing the
search warrant, appellant pulled up on a motorcycle.
Pursuant to
the search warrant, the officers searched appellant’s residence
and seized marijuana, drug paraphernalia, and a handgun.
Thereafter, on September 18, 2000, appellant was indicted for
trafficking in marijuana, complicity to commit trafficking in
marijuana, possession of handgun while committing offense,
complicity to commit possession of handgun while committing
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offense, possession of drug paraphernalia, complicity to commit
possession of drug paraphernalia, and operating a motor vehicle
while under the influence of alcohol.
Appellant moved to suppress the evidence seized
pursuant to the search warrant, and a suppression hearing was
held on April 2, 2001.
Appellant argued that the search warrant
was based on an affidavit that was facially insufficient, on
grounds including the fact that the stop of Asbell described in
the affidavit was later determined to have been illegal.1
In an order dated August 11, 2001, and entered
August 14, 2001, the trial court denied the motion to suppress.
On August 24, 2001, appellant filed a motion to vacate, alter or
amend the August 14, 2001, order, and/or make specific findings
of fact on various issues.
In an order dated September 25, 2001,
and entered on September 27, 2001, the court denied appellant’s
motion, making the following additional findings:
(1) The Court does not believe or find that
the dismissal of the charges against Asbell
on constitutional grounds negates
consideration of the facts emanating from his
visit to the Runningens, including the
possession of marijuana, for purposes of
issuance of a search warrant. In other
words, although Asbell had standing to
contest the evidence obtained from him, the
Runningens possessed no such standing to
object to such evidence within the context of
the search warrant affidavit involved herein.
(2) Had the information relating to Asbell’s
visit to the Runningens and his possession of
1
The stop of Asbell occurred in Hardin County. On
February 1, 2001, the Hardin District Court entered an order
finding that the Commonwealth did not have probable cause to stop
Asbell, and therefore suppressed the evidence obtained as a
result of the stop.
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marijuana shortly after leaving their home
not been available to the Court it probably
would have found the search warrant affidavit
facially deficient.
Subsequently, on October 5, 2001, appellant entered a
conditional guilty plea to trafficking in marijuana over eight
ounces, complicity to possession of drug paraphernalia, and
operating a motor vehicle under the influence, reserving the
right to appeal the trial court’s denial of his motion to
suppress.
Appellant was sentenced to a total concurrent sentence
of three years’ imprisonment.
This appeal followed.
We first address appellant’s argument as to whether he
has standing to object to the use of the evidence obtained
pursuant to the illegal stop of Asbell in the affidavit for the
search warrant for appellant’s residence.
Appellant contends
that because the stop of Asbell was illegal, that anything
flowing from the stop should be suppressed as “fruits of the
poisonous tree,” and thus, the information relating to the stop
of Asbell should not be considered in the affidavit.
Although
both appellant and the trial court framed the issue in terms of
whether appellant had “standing” to object to the use of the
Asbell evidence in the context of the affidavit, in Commonwealth
v. Bertram, Ky. App., 596 S.W.2d 379, 381 (1980), we stated:
The United States Supreme Court seems to have
discarded the whole concept of “standing” to
contest a search and seizure in favor of an
inquiry into “whether the disputed search and
seizure has infringed an interest of the
defendant which the Fourth Amendment was
designed to protect.” Rakas v. Illinois, 439
U.S. 128, 140, 99 S. Ct. 421, 429, 58 L. Ed.
2d 387 (1978). Put another way, the
appropriate inquiry seems to be whether the
defendant had an interest in connection with
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the searched premises that gave rise on his
part to a reasonable expectation of freedom
from governmental intrusion. [citations
omitted.]
“‘Fourth Amendment rights are personal rights which, like some
other constitutional rights, may not be vicariously asserted.’”
Rakas, 439 U.S. at 133, 99 S. Ct. at 425, quoting Alderman v.
United States, 394 U.S. 165, 174, 89 S. Ct. 961, 966-967, 22 L.
Ed. 2d 176 (1969).
A person who is aggrieved by an illegal
search and seizure only through the
introduction of damaging evidence secured by
a search of a third person’s premises or
property has not had any of his Fourth
Amendment rights infringed. Alderman, [] 394
U.S.[] at 174, 89 S. Ct.[] at 966. And since
the exclusionary rule is an attempt to
effectuate the guarantees of the Fourth
Amendment, United States v. Calandra, 414
U.S. 338, 347, 94 S. Ct. 613, 619, 38 L. Ed.
2d 561 (1974), it is proper to permit only
defendants whose Fourth Amendment rights have
been violated to benefit from the rule’s
protections. [footnote omitted.]
Rakas, 439 U.S. at 134, 99 S. Ct. at 425.
Accordingly, as the
illegal stop of Asbell did not infringe upon appellant’s Fourth
Amendment rights, appellant cannot invoke the exclusionary rule
with regard to evidence obtained from the stop of Asbell.
Id;
Bertram, 596 S.W.2d at 381.
Appellant further argues that, either with or without
the Asbell evidence being considered, that the affidavit
supporting the search warrant was facially defective.
In
addition to the use of the Asbell evidence, appellant contends
that the affidavit was facially invalid on grounds including that
it did not identify the location where appellant was growing
marijuana and therefore did not establish the place to be
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searched with certainty; that the Jones and Underwood information
was stale and was not evidence that appellant was growing
marijuana; and that the affidavit contained an untrue statement
that “Asbell was stopped pulling from Wunderland Rd.” when he was
actually stopped three-and-a-half miles from Wunderland Road.
The affidavit provided that “Runnigen on Wunderland Rd.
was growing marijuana” and that Asbell was at appellant’s
residence at 2327 Wunderland Rd. purchasing marijuana.
Hence, we
conclude that the affidavit “reasonably describe[d] the property
or premises to be searched.”
811 S.W.2d 8, 9 (1991).
Coker v. Commonwealth, Ky. App.,
As to appellant’s assertion that the
information provided by Jones and Underwood was stale, we believe
that time, for the purposes of staleness, is relative to the
charge.
In the present case, we conclude that the Jones and
Underwood information, which was approximately one month old at
the time of the issuance of the search warrant, was not stale as
related to marijuana growing.
Further, with regard to the Jones
and Underwood information, we note that an affidavit for a search
warrant based on information provided by a named individual is
generally sufficient to support the warrant.
Embry v.
Commonwealth, Ky., 492 S.W.2d 929, 931 (1973); Edwards v.
Commonwealth, Ky., 573 S.W.2d 640, 641 (1978).
As to the
statement that “Asbell was stopped pulling from Wunderland Road,”
we conclude that while this statement may not have been artfully
worded, it was not false or misleading.
See Commonwealth v.
Smith, Ky. App., 898 S.W.2d 496, 503 (1995).
While Asbell was
actually stopped a few miles down the road on U.S. 31, Officer
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Thompson had initially observed him pulling from Wunderland Road.
Accordingly, and in light of our conclusion that the Asbell
evidence may be considered with regard to appellant, we consider
the affidavit in its entirety.
In Beemer v. Commonwealth, Ky., 665 S.W.2d 912 (1984),
the Kentucky Supreme Court adopted the “totality of the
circumstances” test for determining probable cause set forth by
the United States Supreme Court in Illinois v. Gates, 462 U.S.
213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983).
The magistrate
must make a:
“practical, common-sense decision whether,
given all the circumstances set forth in the
affidavit before him, including the
‘veracity’ and the ‘basis of knowledge’ of
persons supplying hearsay information, there
is a fair probability that contraband or
evidence of a crime will be found in a
particular place. And the duty of a
reviewing court is simply to ensure that the
magistrate had a ‘substantial basis for . . .
conclud[ing]’ that probable cause existed.
[citation omitted].”
Beemer, 665 S.W.2d at 914-915, quoting Gates, 462 U.S. at 238239, 103 S. Ct. at 2332.
In the present case, under the totality
of the circumstances we conclude that the affidavit established a
substantial basis for a finding that probable cause existed.
Beemer, 665 S.W.2d at 914-915.
Accordingly, the trial court did
not err in denying appellant’s motion to suppress.
For the aforementioned reasons, the judgment of the
Larue Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
Elizabethtown, Kentucky
Dwight Preston
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BRIEF FOR APPELLEE:
Albert B. Chandler, III
Attorney General
Carlton S. Shier, IV
Assistant Attorney General
Frankfort, Kentucky
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