BOBBY JOE EVANS v. COMMONWEALTH OF KENTUCKY
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RENDERED:
AUGUST 29, 2003; 2:00 p.m.
TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2001-CA-001685-MR
BOBBY JOE EVANS
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE SHEILA ISSAC, JUDGE
ACTION NO. 01-CR-00287
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JOHNSON, KNOPF AND McANULTY, JUDGES.
JOHNSON, JUDGE:
Bobby Joe Evans has appealed from a judgment of
conviction and sentence entered by the Fayette Circuit Court on
July 10, 2001, following his conditional plea of guilty to the
charges of trafficking in a controlled substance in the first
degree (cocaine),1 and being a persistent felony offender in the
second degree (PFO II).2
Having concluded that the trial court
correctly applied the law in denying Evans’s motion to suppress
1
Kentucky Revised Statutes (KRS) 218A.1412.
2
KRS 532.080(2).
and that the trial court did not abuse its discretion in its
evidentiary ruling concerning expert testimony, we affirm.
The underlying facts of this case are not in dispute.
On December 20, 2000, Detective David Straub of the Lexington
Metro Police Department (LMPD) received information from a
confidential informant that Evans was selling cocaine and
morphine out of his apartment in Lexington, Kentucky, where he
lived with his girlfriend.
In January of the following year,
the same confidential informant made a “controlled purchase” of
cocaine from Evans.
Based upon the information provided by the
informant, and other evidence, the police obtained a warrant to
search Evans’s apartment for the following items:
Cocaine, notes, letters, writings,
documents, recordings, photos, monies, drug
paraphernalia, or whatever type drug,
presence of which may tend to indicate the
illegal use of, possession of, or
trafficking in a controlled substance as
defined the uniformed narcotics act of 1982
[sic].
Det. Straub and several other officers from the LMPD
executed the search warrant on January 16, 2001, at
approximately 9:00 p.m.
Evans was not present when the officers
began searching his apartment, however, his girlfriend was
present throughout the duration of the search.
While searching
Evans’s apartment, the officers found a locked fireproof safe in
the living room.
Det. Shane Ensminger took the safe to the
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bedroom and pried it open.
In the safe he found several items
of contraband, namely, cocaine, digital scales, morphine
tablets, and marijuana.
Shortly thereafter, Evans arrived at
his apartment and he was placed under arrest.
According to the
police report filed by Det. Straub, Evans admitted to owning the
contraband found in the safe.3
On March 12, 2001, Evans was indicted by a Fayette
County grand jury for trafficking in a controlled substance in
the first degree (cocaine), possession of drug paraphernalia,4
possession of marijuana,5 and being a PFO II.
On July 5, 2001,
Evans filed a motion to suppress the items seized from the safe.
Evans claimed that the safe did not fall within the scope of the
search warrant and that he had a greater expectation of privacy
with respect to the contents of the safe due to the fact they
were secured in a locked container.
Evans also filed a motion
in limine asking the trial court, inter alia, “[t]o test any
police so-called ‘expert testimony’ pursuant to KRE 702.”6
3
In his report, Det. Straub also noted that Evans “was in possession of the
key that opened the locked box[.]”
4
KRS 218A.500(2).
5
KRS 218A.1422.
6
Evans relied upon Kuhmo Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct.
1167, 143 L.Ed.2d 238 (1999), Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), Goodyear Tire & Rubber
Co. v. Thompson, Ky., 11 S.W.3d 575 (2000), and Mitchell v. Commonwealth,
Ky., 908 S.W.2d 100 (1995), in support of his motion in limine.
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On July 9, 2001, the trial court held an evidentiary
hearing on Evans’s pre-trial motions.
Counsel argued their
respective positions but neither attorney cited any case law nor
did either seek leave to file legal memoranda.
Following their
arguments, the trial court issued on oral ruling denying Evans’s
motion to suppress.
The trial court concluded that the scope of
the search warrant “naturally includes any place existing in the
home where these items could be found, including a locked box.”
The trial court also denied part 5 of Evans’s motion
in limine.
In arguing this motion, Evans’s counsel objected to
any police officer testifying as an expert witness concerning
the methods and procedures commonly used by a cocaine trafficker
and a cocaine user, but he failed to specify the questions to
which he was objecting.
The trial court, with the apparent
acquiescence of counsel for both sides, framed the questions as
follows:7
1.
2.
How much cocaine would a cocaine user
commonly consume?
3.
What types of items are commonly used
by a cocaine dealer?
4.
7
How is cocaine commonly packaged for
sale?
What types of items are commonly used
by a cocaine user?
These questions have been paraphrased by this Court.
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The trial court orally ruled that these types of questions would
be allowed if the Commonwealth were able to lay the proper
foundation for the expert witness’s testimony.
On July 10, 2001, Evans entered a conditional plea of
guilty to the charges of trafficking in a controlled substance
in the first degree and being a PFO II.8
Evans was sentenced to
prison for five years on the trafficking conviction, which was
then enhanced to ten years as a result of his PFO II conviction.
This appeal followed.
Evans raises two issues on appeal.
First, Evans
claims the trial court erred by denying his motion to suppress
the contraband seized from the safe found in his apartment.
In
Commonwealth v. Neal,9 this Court stated:
An appellate court’s standard of review of
the trial court’s decision on a motion to
suppress requires that we first determine
whether the trial court’s findings of fact
are supported by substantial evidence. If
they are, then they are conclusive. RCr
9.78. Based 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.10
8
The remaining counts of the indictment were dismissed.
9
Ky.App., 84 S.W.3d 920, 923 (2002).
10
Neal, 84 S.W.3d at 923 (citing Adcock v. Commonwealth, Ky., 967 S.W.2d 6, 8
(1998); and Commonwealth v. Opell, Ky.App., 3 S.W.3d 747, 751 (1999)).
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When the trial court’s findings of fact are not in dispute, as
in the case sub judice, the question necessarily becomes,
“‘whether the rule of law as applied to the established facts is
or is not violated.’”11
Evans argues that the scope of the search warrant did
not include the safe found in his apartment.
We disagree.
The
United States Supreme Court and the Supreme Court of Kentucky
have both held “that a lawful search of fixed premises generally
extends to the entire area in which the object of the search may
be found, including the authority to search through drawers,
chests, closets, and containers where that object may likely be
found.”12
In the case sub judice, the search warrant
specifically authorized the police to search Evans’s apartment
for cocaine and any other drug or drug paraphernalia “which may
tend to indicate the illegal use of, possession of, or
trafficking in a controlled substance[.]”
It is obvious that
the contraband specified in the search warrant could fit inside
the safe and it was reasonable for the officers to search inside
11
Adcock, 967 S.W.2d at 8 (quoting Ornelas v. United States, 517 U.S. 690,
697, 116 S.Ct. 1657, 1662, 134 L.Ed.2d 911 (1996) (citing Pullman-Standard v.
Swint, 456 U.S. 273, 289, n.19, 102 S.Ct. 1781, 1791, n.19, 72 L.Ed.2d 66
(1982))).
12
Hazel v. Commonwealth, Ky., 833 S.W.2d 831, 834 (1992) (citing United
States v. Ross, 456 U.S. 798, 820-21, 102 S.Ct. 2157, 2170-71, 72 L.Ed.2d
572, 591 (1982); and Estep v. Commonwealth, Ky., 663 S.W.2d 213 (1983)).
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the safe for such contraband.13
Thus, the language of the search
warrant clearly encompassed the safe.
As Professor LaFave
points out in his treatise on the Fourth Amendment:
[C]ourts are least demanding when the
objects described are contraband. “If the
purpose of the search is to find a specific
item of property, it should be so
particularly described in the warrant as to
preclude the possibility of the officer
seizing the wrong property; whereas, on the
other hand, if the purpose is to seize not a
specific property, but any property of a
specified charter, which by reason of its
charter [footnote omitted] is illicit or
contraband, a specific particular
description of the property is unnecessary
and it may be described generally as to its
nature or charter.”14
Evans also argues that beyond the expectation of
privacy he had in his apartment that he had an even greater
expectation of privacy with respect to the contents of the safe
due to the fact they were secured in a locked container.
Evans
contends that his expectation of privacy in the safe was
independent of rather than part of his expectation of privacy in
his apartment.
We cannot agree.
“The fact that the [safe] was locked did not give
[Evans] any greater expectation of privacy in its contents than
[his] limited privacy expectation in the rest of [his] apartment
13
See United States v. Wright, 704 F.2d 420, 422-23 (8th Cir. 1983).
14
2 Wayne R. LaFave, Search and Seizure § 4.6(b), p. 560 (3d ed. 1996)
(quoting People v. Schmidt, Colo., 473 P.2d 698, 700 (1970)).
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in the face of a valid search warrant.”15
As the U.S. Supreme
Court stated in Ross, supra, “[a] lawful search of fixed
premises generally extends to the entire area in which the
object of the search may be found and is not limited by the
possibility that separate acts of entry or opening may be
required to complete the search.”16
Stated otherwise, “[a] legal
search authorized by a valid warrant cannot be thwarted by the
expedience of concealing the contraband in unusual places.”17
While we found no Kentucky case law directly on point, our
holding is consistent with the results reached by the majority
of jurisdictions that have addressed this issue.18
In his brief, Evans cites United States v. Issacs,19
and United States v. Diggs,20 in support of his argument, but
those cases are easily distinguishable from the case sub judice.
The search warrant in Issacs authorized Secret Service agents to
15
State v. Hansen, 732 P.2d 127, 131 (Utah 1987).
16
Ross, 456 U.S. at 820-21 (citing LaFave, supra at 656-57 and 670-71; and
Massey v. Commonwealth, Ky., 305 S.W.2d 755, 756 (1957)).
17
Hansen, supra at 131. See also United States v. Morris, 647 F.2d 568, 573
(5th Cir. 1981). “It would be a different matter if the box had been in a
geographic area not covered by the warrant or if the objects sought in the
warrant were of a size that would not fit in the box. Neither of those
situations are the case here however.” Id.
18
See, e.g., United States v. Gonzalez, 940 F.2d 1413, 1420 (11th Cir. 1991);
United States v. Snow, 919 F.2d 1458, 1460 (10th Cir. 1990); Wright, 704 F.2d
at 422-23; Morris, supra at 573; Hansen, supra at 131; State v. Jackson, 632
A.2d 1285, 1292 (N.J.Super.Ct. Law Div.1993); and People v. Kibblewhite, 178
Cal.App.3d 783, 785 (Cal.App. 1986).
19
708 F.2d 1365 (9th Cir. 1983).
20
569 F.2d 1264 (3rd Cir. 1977).
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search Issacs’s residence for rent receipts and counterfeit
Federal Reserve notes.
While the agents were searching Issacs’s
apartment, they found a locked safe in the bedroom closet.
Issacs provided the agents with the combination and they opened
the safe.
Upon opening the safe, the agents found six journals
bound together with a rubber band.
One of the agents flipped
through the journals and noticed what appeared to be a record of
drug transactions in one of the journals.
Although the agent
noticed nothing similar in the remaining journals, he seized all
six journals.
The trial court, over Issacs’s objection,
admitted the journals as evidence.21
Issacs was convicted of two
counts of possession with intent to distribute methaqualone and
cocaine.22
On appeal, Issacs claimed that the journal which
contained the incriminating notations did not come within the
plain view exception to the search warrant requirement and
should have been suppressed from evidence.23
The United States
Court of Appeals for the Ninth Circuit disagreed and held that
21
The journal that contained the incriminating notations was admitted as
substantive evidence of guilt. The other journals were admitted for
impeachment purposes only. Id. at 1366.
22
Id.
23
Issacs never contested the agents’ authority to examine the contents of the
locked safe. In fact, he provided the agents with the combination. Id. Issacs
simply argued that the journal was beyond the plain view of the agents
because they “needed to read its contents to uncover the incriminating
notations.” Id. at 1367.
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the “trial court properly admitted the journal in which agents
observed the incriminating notations.”24
However, the Court went
on to hold that “since the preliminary examination uncovered
nothing incriminating about the remaining journals, it follows
that the agents had no right to seize them in order that they
might more closely exam them later.”25
The case sub judice is
clearly distinguishable from Issacs since the contraband herein
was seized pursuant to the search warrant and its seizure was
not dependent upon the plain view doctrine.
Since Diggs involved a warrantless search, it is also
clearly distinguishable from the case at bar where the LMPD had
a valid warrant to search Evans’s apartment for drug-related
contraband.26
We conclude that the trial court correctly denied
Evans’s motion to suppress the contraband seized from the safe
found in his apartment.
Evans next contends that the trial court “committed
clear error” when it failed to evaluate the expert opinion
evidence proffered by the Commonwealth under the standard
adopted by the Supreme Court of Kentucky in Goodyear Tire,
supra.
We disagree.
A trial court’s ruling as to the
admissibility of evidence is reviewed under an abuse of
24
Id. at 1370.
25
Id.
26
Diggs, 569 F.2d at 1264-65.
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discretion standard.27
An abuse of discretion occurs when a
“trial judge’s decision [is] arbitrary, unreasonable, unfair, or
unsupported by sound legal principles.”28
In Goodyear Tire the Supreme Court held that the
factors used in determining the admissibility of expert
scientific testimony set forth in Daubert, supra, and Mitchell,
supra, also apply to the testimony of experts with technical or
other specialized knowledge.
Relying on Kumho Tire, the Court
concluded that Daubert and Mitchell apply
not only to testimony based on “scientific”
knowledge, but also to testimony based on
“technical” and “other specialized”
knowledge. [See KRE 702]. We also conclude
that a trial court may consider one or more
of the more specific factors that Daubert
[and Mitchell] mention[] when doing so will
help determine that testimony’s reliability.
But . . . the test of reliability is
“flexible,” and Daubert’s [and Mitchell’s]
list of specific factors neither necessarily
nor exclusively applies to all experts or in
every case. Rather, the law grants [the
trial] court the same broad latitude when it
decides how to determine reliability as it
enjoys in respect to its ultimate
reliability determination.29
The Court went on to note that the application of Daubert and
Mitchell is “markedly different depending on whether the method
27
Goodyear Tire, 11 S.W.3d at 577-78.
28
Id. at 581.
29
Id. at 577 (quoting Kumho Tire, 526 U.S. at 141-42).
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or technique, upon which the testimony is based, has been
recognized as reliable by existing case law.”30
In Sargent v. Commonwealth,31 our Supreme Court had
previously recognized the reliability of police testimony in
drug-related cases as follows:
The trial judge did not commit error in
allowing the police to testify as to their
expert opinion that the Sargents had the
drugs in their possession for sale and not
personal use. . . . Both detectives
testified about the marijuana trade which is
certainly specialized in character and
outside the scope of common knowledge and
experience of most jurors. The opinion of
the police aided the jury in understanding
the evidence and resolving the issues
[citations omitted].32
In Allgeier v. Commonwealth,33 the Supreme Court explained that
a police officer’s expert testimony concerning whether there was
evidence of a forced entry in a burglary “can be distinguished
from the more extensive and complex knowledge required for
testimony by traditional experts, such as accident
reconstructionists and forensic pathologists.”34
30
Goodyear Tire, 11 S.W.3d at 579.
31
Ky., 813 S.W.2d 801 (1991).
32
Id. at 802. Accord Burdell v. Commonwealth, Ky., 990 S.W.2d 628, 634
(1999); Kroth v. Commonwealth, Ky., 737 S.W.2d 680, 681 (1987); and Brown v.
Commonwealth, Ky.App., 914 S.W.2d 355, 357 (1996). See generally Thomas M.
Fleming, J.D., Annotation, Admissibility, in Criminal Prosecution, of Expert
Opinion Allegedly Stating Whether Drugs Where Possessed With Intent to
Distribute—State Cases, 83 A.L.R.4th 629 § 3 (1991).
33
Ky., 915 S.W.2d 745 (1996).
34
Id. at 747.
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Clearly, expert testimony concerning methods and
procedures commonly used in drug trafficking and in the
consumption of drugs is only admissible if it is based upon
proper experience.35
However, in the case sub judice, the trial
court specifically stated that the Commonwealth would be
required to lay a “proper foundation of experience” prior to
introducing any expert testimony concerning methods and
procedures commonly used in the trafficking and use of cocaine.
In fact, the trial court even agreed with Evans that the
Commonwealth would be precluded from offering any expert
testimony regarding whether the drugs found in Evans’s apartment
were intended for resale as opposed to personal use.
Thus, we
cannot say that the trial court abused its discretion in denying
Evans’s motion in limine.
Based upon the foregoing reasons, the judgment of
conviction and sentence entered by the Fayette Circuit Court is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Matthew W. Boyd
Lexington, Kentucky
Albert B. Chandler III
Attorney General
Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky
35
Sargent, 813 S.W.2d at 802.
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