ALLAN KYLE DAVIS v. COMMONWEALTH OF KENTUCKY
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RENDERED:
October 10, 2003, 2:00 p.m.
TO BE PUBLISHED
October 31, 2003; 10:00 a.m.
MODIFIED:
Commonwealth Of Kentucky
Court of Appeals
NO. 2001-CA-002262-MR
ALLAN KYLE DAVIS
APPELLANT
APPEAL FROM McLEAN CIRCUIT COURT
HONORABLE DAVID H. JERNIGAN, JUDGE
ACTION NO. 00-CR-00017
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI, JOHNSON AND KNOPF, JUDGES.
JOHNSON, JUDGE:
Allan Kyle Davis has appealed from the final
judgment and sentence entered by the McLean Circuit Court on
October 11, 2001, following his conditional plea of guilty to
the charges of trafficking in a controlled substance within
1,000 yards of a school,1 possession of a controlled substance in
1
Kentucky Revised Statutes (KRS) 218A.1411.
the first degree (methamphetamine),2 possession of marijuana,3
possession of drug paraphernalia,4 and cultivation of marijuana,
five or fewer plants, while in the possession of a firearm.5
Having concluded that the trial court properly denied Davis’s
motion to suppress all of the evidence seized during the search
of his residence, we affirm.
On February 1, 2001, McLean County Deputy Sheriff Jeff
Palmer received information from another deputy that Rodney
Crick, a man wanted in connection with an outstanding arrest
warrant, was residing with Davis at his mobile home in Island,
McLean County, Kentucky.
Deputy Sheriff Palmer contacted
Kentucky State Police Trooper Chuck Payne and the officers
proceeded to Davis’s residence.
When the officers arrived at
Davis’s mobile home, Trooper Payne went around to the back door
and Deputy Palmer walked up to the front door and proceeded to
knock.
Deputy Palmer then heard a voice from within telling him
to come inside.
Upon entering the living room of Davis’s home, Deputy
Palmer immediately noticed a thick haze of smoke and he smelled
2
KRS 218A.1415. Davis entered a plea pursuant to North Carolina v. Alford,
400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d (1970), on the methamphetamine charge.
3
KRS 218A.1422.
4
KRS 218A.500.
5
KRS 218A.1423 and KRS 218A.992.
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the distinct odor of burnt marijuana.
Deputy Palmer also
noticed two partially burnt marijuana cigarettes in an ashtray
on the coffee table in the living room.
Davis was sitting on a
couch in the living room alongside a Mr. Fields.6
Deputy Palmer
immediately radioed Trooper Payne, who came around to the front
and entered the residence.
arrest.
Davis and Fields were placed under
The officers then noticed a loaded handgun,7 rifles, and
a shotgun in plain view.
In addition, Trooper Payne found a
Browning nine millimeter handgun stuffed between the cushions in
the sofa where Fields had been seated.
Both officers then asked Davis if anyone else was
present and they informed him that they were looking for Rodney
Crick.
Davis stated that there was no one else in the mobile
home.
Soon thereafter, Johnny Revlett was seen coming from the
back of the mobile home.
Deputy Palmer immediately conducted a
pat down search of Revlett, found a syringe on him, and placed
him under arrest.
Since the officers continued to be concerned that
someone else might still be present in the mobile home, Deputy
Palmer proceeded to search the other rooms of the mobile home in
an attempt to locate Rodney Crick or any other person and to
6
Fields’s first name does not appear in the record.
7
Deputy Palmer testified at the suppression hearing that he could tell the
handgun was loaded because he could see through the cylinder.
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safely secure the area.
Trooper Payne remained in the living
room with the three suspects.
Upon opening the closet door in
the master bedroom, Deputy Palmer found a marijuana growing
operation which consisted of several hanging lamps and three
marijuana plants.
Deputy Palmer also found a baggie full of
marijuana and a triple slide scale in an adjacent bedroom.8
Sitting on top of the scale was a large trash bag, which also
contained a large amount of marijuana residue.
Deputy Palmer
also noticed a glass pipe on a dresser in the bedroom and other
firearms were found in the bedroom as well.
Trooper Payne also found a plastic bag filled with
what appeared to be methamphetamine in a ceramic container on
the kitchen counter and a metal box which contained some baggies
and two hemostats.9
The ceramic container was sealed and Trooper
Payne only discovered the contraband upon removing the lid to
the dish.
The ceramic container was located approximately eight
to ten feet from the couch where Davis had been sitting.10
8
Both the marijuana and the scale were found in plain view in the bedroom.
9
A hemostat is a long-handled clamp used to control bleeding in surgery. The
device is commonly referred to by marijuana smokers as a “roach clip.” As
for the metal box and the baggies and hemostats found inside the box, the
trial court granted Davis’s motion to suppress due to the fact that neither
of the officers could remember where the box was located or how it was found.
10
The record is unclear as to the exact size of the ceramic container,
however, it was described by Trooper Payne as “some kind of little knick
knack. Like to me, something a lady would have on her dresser or something.”
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Davis was subsequently charged by a McLean County
grand jury in an indictment filed on April 18, 2001, with
trafficking in a controlled substance within 1,000 yards of a
school, while in the possession of a firearm; possession of a
controlled substance in the first degree, while in the
possession of a firearm; possession of marijuana, while in the
possession of a firearm; possession of drug paraphernalia; and
cultivation of marijuana, five or fewer plants, while in the
possession of a firearm.
On May 23, 2001, Davis filed a motion
to suppress the evidence seized from his residence, arguing that
the search did not fall within any of the exceptions to the
search warrant requirement and therefore was violative of
Section 10 of the Kentucky Constitution and the Fourth Amendment
to the United States Constitution.
A suppression hearing was held on May 29, 2001, and
the trial court entered an order denying Davis’s motion to
suppress on June 22, 2001.
The trial court found that since
Deputy Palmer was asked to come inside the mobile home, his
entry was consensual.11
The trial court then concluded that any
contraband Deputy Palmer saw in plain view when he first entered
the mobile home was admissible pursuant to the “plain view”
11
Davis argued before the trial court that the entry was not consensual, but
concedes on appeal that there was sufficient evidence to support the trial
court’s findings.
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exception to the search warrant requirement.12
As for the
contraband found in the bedrooms, the trial court reasoned that
since the officers had reason to fear for their safety, they had
a right to enter the other rooms of the mobile home to look for
another person.
Thus, the marijuana growing operation, other
firearms, glass pipe, and marijuana residue were all held to
have been properly seized.
The Browning nine millimeter found
between the cushions of the sofa was also held to have been
lawfully seized as it was within the immediate vicinity of Davis
at the time of his arrest.
The more difficult question before the trial court
pertained to the items seized from the ceramic container found
on the kitchen counter.
The ceramic container was located
approximately eight to ten feet from the couch where Davis was
sitting when the officers entered his mobile home.
It appears
from the record below that the living room and kitchen were
immediately adjacent to one another.
The trial court described
the living room and kitchen as “one large open area.”
Based
upon these circumstances, the trial court concluded that the
ceramic container, and the methamphetamine found therein, were
admissible as they were within Davis’s immediate control.13
12
See Hazel v. Commonwealth, Ky., 833 S.W.2d 831 (1992).
13
The trial court cited Collins v. Commonwealth, Ky., 574 S.W.2d 296 (1978),
in support of its ruling.
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On September 19, 2001, Davis entered a conditional
plea of guilty and an Alford plea to the charge of possession of
methamphetamine; and a conditional plea of guilty to the charges
of trafficking in a controlled substance within 1,000 yards of a
school; possession of marijuana, while in the possession of a
firearm; possession of drug paraphernalia; and cultivation of
marijuana, five or fewer plants, while in the possession of a
firearm.14
The final judgment and sentence of the McLean Circuit
Court was entered on October 11, 2001.
Davis was sentenced to
four years’ imprisonment on each of the felony convictions and
12 months on the misdemeanor paraphernalia conviction, with the
sentences to run concurrently.
This appeal followed.
Davis raises two issues on appeal.
First, Davis
claims the trial court abused its discretion by ruling that the
evidence seized from the two bedrooms in his mobile home was
admissible pursuant to the “safety check” exception to the
search warrant requirement.
Second, Davis claims the trial
court abused its discretion by ruling that the evidence seized
from the ceramic container located on the kitchen counter was
justified under the “search incident to arrest” exception to the
search warrant requirement.
14
Pursuant to a plea agreement with the Commonwealth, the language “and while
in the possession of a firearm” was deleted from the charges of possession of
a controlled substance in the first degree and trafficking in a controlled
substance within 1,000 yards of a school.
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The proper standard of review is set forth in
Commonwealth v. Neal,15 as follows:
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. 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 [footnotes
omitted].16
The factual findings in the case sub judice are not in dispute
and they are clearly supported by substantial evidence
consisting of the testimony presented at the suppression
hearing.
Thus, the question now becomes, “‘whether the rule of
law as applied to the established facts is or is not
violated.’”17
The “safety check” exception to the warrant
requirement was first addressed by this Court in Commonwealth v.
Elliott.18
Elliott was residing with his sister in Jefferson
County when the probation office received information that he
had been going out of state for the purpose of obtaining illegal
15
Ky.App., 84 S.W.3d 920, 923 (2002).
16
Id. (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)).
17
Adcock, supra at 8 (quoting Ornelas v. United States, 517 U.S. 690, 697,
116 S.Ct. 1657, 1662, 134 L.Ed.2d 911 (1996)).
18
Ky.App., 714 S.W.2d 494 (1986).
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drugs.
Upon receiving this information, several law enforcement
officers went to the home of Elliott’s sister, Rosetta Palmer.19
The officers knocked on the door and were subsequently permitted
to enter the residence.
and arrested Elliott.20
Once inside, they immediately located
After arresting Elliott, some of the
officers decided to search the rest of the house for any
potential accomplices.
In the process of searching Palmer’s
home, the officers seized several items of contraband that were
located in plain view.
Elliott was subsequently charged with
trafficking in a controlled substance and as being a persistent
felony offender in the first degree.
Elliott filed a motion to
suppress the evidence obtained during the search of his sister’s
home and the motion was granted.21
On appeal, the Commonwealth attempted to invoke the
“safety check” exception to the warrant requirement.
In
declining to apply the “safety check” exception, this Court
concluded that, “if the ‘safety check’ exception is adopted,
there must be a ‘serious and demonstrable potentiality for
danger’” [citation omitted].22
19
This Court went on to conclude
Id. at 495.
20
Id. Elliott was on parole from a manslaughter conviction. Although the
officers did not have an arrest warrant, a parole officer is nonetheless
authorized by statute to make an arrest upon a reasonable belief that the
parolee has violated the terms of his release. KRS 439.430.
21
Id.
22
Id. at 496.
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that no such immediate threat or security risk existed.
The
following facts were central to this Court’s holding:
The parole officer testified that he had no
information that Elliott’s alleged
“accomplice” was in the house, that Elliott
was armed or had any weapons in the house,
or even that there were controlled
substances in the house. Mr. Elliott
offered no resistance to the arrest and the
officers admittedly had several days to
obtain a search warrant prior to making the
arrest.23
Davis relies on Elliott and claims that “[t]he
Commonwealth simply failed to prove that any serious or
potential danger to the officers existed.”
Davis further argues
that “[t]here was no violence or threat of violence by the
Appellant or anyone else.”
We are unpersuaded by this argument,
however, as the facts in the case sub judice are clearly
distinguishable from Elliott.
Upon entering Davis’s home, Deputy Palmer immediately
detected the presence of smoke and the smell of burnt marijuana.
He also observed in plain view a loaded handgun.
other firearms were located in the room.
Additionally,
Moreover, after the
officers were falsely informed by Davis that no one else was
present, Revlett suddenly appeared from the back of the mobile
home.
In Elliott, this Court specifically declined to apply the
“safety check” expectation due to the absence of such
23
Id.
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circumstances.24
Clearly, in the case sub judice, the presence
of a loaded handgun, rifles, a shotgun, drugs, and various
individuals suspected of criminal activity constituted a
“‘serious and demonstrable potentiality for danger’” [citation
omitted].25
To hold otherwise would severely undermine the
ability of law enforcement officials to safely and effectively
perform their duties.
Accordingly, we hold that the trial court
properly denied Davis’s motion to suppress the items seized
during the search of the bedrooms.
The methamphetamine found in the ceramic container
located in the kitchen presents a far more difficult issue.
Davis claims the trial court abused its discretion by ruling
that the search of the ceramic container was justified under the
“search incident to arrest” exception to the search warrant
requirement.
The Commonwealth claims that the search of the
container was justified as it was within Davis’s immediate
control.26
The Commonwealth relies primarily upon Collins in
support of this argument.27
24
Id.
25
Id.
26
The Commonwealth does not attempt to justify the search under the “safety
check” exception to the search warrant requirement. In fact, the
Commonwealth concedes that Trooper Payne’s sole purpose for opening the
container was to search for drugs.
27
Davis claims that Clark v. Commonwealth, Ky.App., 868 S.W.2d 101 (1993), is
controlling. We disagree as Clark is clearly factually distinguishable from
the case sub judice. Clark involved an automobile search which was
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In Collins, the defendant was arrested while in a
motel room after the police found an automatic pistol and 20
bags of what appeared to be heroin lying on the ground outside
his window.28
The police patted Collins down and then proceeded
to search an air conditioner which was located approximately
four to seven feet from where Collins was seated.
A bus station
locker key was found inside a small compartment of the air
conditioner.
A subsequent search of the locker pursuant to a
warrant led to the discovery of several grams of heroin and
various drug paraphernalia.29
Collins filed a motion to suppress
the items found within the locker, arguing that the search
warrant authorizing the search of the locker was invalid because
it was dependent upon the discovery of the key hidden in the air
conditioner.
This motion was denied.
Our Supreme Court granted discretionary review on the
issue of whether the warrantless search of the air conditioner
was a valid search incident to the lawful arrest of Collins.
Our Supreme Court began its analysis by citing Chimel v.
California,30 for the proposition that “[t]he constitutionality
predicated upon an arrest which was later determined to be arbitrary and
capricious. Id. at 107. The arrest in the case sub judice was valid and did
not serve as a pretext for conducting a search incident to arrest.
28
Collins, 574 S.W.2d at 297.
29
Id.
30
395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969).
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of a search incident to an arrest turns upon whether the area
searched is ‘within [the arrestee’s] immediate control’ –
construing that phrase to mean the area from within which he
might gain possession of a weapon or destructible evidence.”31
Our Supreme Court then went on to cite United States v.
Robinson,32 for the following proposition:
The authority to search the person incident
to a lawful custodial arrest, while based
upon the need to disarm and to discover
evidence, does not depend on what a court
may later decide was the probability in a
particular arrest situation that weapons or
evidence would in fact be found upon the
person of the suspect [emphasis added].33
Our Supreme Court concluded its analysis by adopting the
following position enunciated by the Sixth Circuit Court of
Appeals in Watkins v. United States:34 “even after a defendant
has been restrained pursuant to arrest, the search of an area
from which he might gain possession of a weapon is lawful.”35
In
upholding the search of the motel room, and, more specifically,
the air conditioner, our Supreme Court reasoned that since the
31
Collins, 574 S.W.2d at 297 (quoting Chimel, 395 U.S. at 763).
32
414 U.S. 218, 235, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973).
33
Id. at 235. The language “upon the person of the suspect” was omitted from
our Supreme Court’s quote from Robinson. Collins, supra at 298.
34
564 F.2d 201 (6th Cir. 1977), cert. denied, 435 U.S. 976, 98 S.Ct. 1626, 56
L.Ed.2d 71 (1978).
35
Id. at 204.
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air conditioner was located within the immediate area where
Collins might have reached, the search was not unconstitutional.
In order to better understand the reasoning underlying
our Supreme Court’s holding in Collins, we believe a more
careful review of the principles at play in Chimel and Robinson
is necessary.
In New York v. Belton,36 the United States Supreme
Court provided a detailed discussion of the principles
underlying the search incident to arrest exception to the
warrant requirement.
In Belton, the U.S. Supreme Court stated
as follows:
It is a first principle of Fourth
Amendment jurisprudence that the police may
not conduct a search unless they first
convince a neutral magistrate that there is
probable cause to do so. This Court has
recognized, however, that “the exigencies of
the situation” may sometimes make exemption
from the warrant requirement “imperative.”
Specifically, the Court held in Chimel v.
California, that a lawful custodial arrest
creates a situation which justifies the
contemporaneous search without a warrant of
the person arrested and of the immediately
surrounding area. Such searches have long
been considered valid because of the need
“to remove any weapons that [the arrestee]
might seek to use in order to resist arrest
or effect his escape” and the need to
prevent the concealment or destruction of
evidence [citations omitted].37
. . .
36
453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981).
37
Id. at 457.
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Although the principle that limits a search
incident to a lawful custodial arrest may be
stated clearly enough, courts have
discovered the principle difficult to apply
in specific cases. Yet, as one commentator
has pointed out, the protection of the
Fourth and Fourteenth Amendments “can only
be realized if the police are acting under a
set of rules which, in most instances, makes
it possible to reach a correct determination
beforehand as to whether an invasion of
privacy is justified in the interest of law
enforcement” [citation omitted]. This is
because
“Fourth Amendment doctrine, given
force and effect by the
exclusionary rule, is primarily
intended to regulate the police in
their day-to-day activities and
thus ought to be expressed in
terms that are readily applicable
by the police in the context of
the law enforcement activities in
which they are necessarily
engaged. A highly sophisticated
set of rules, qualified by all
sorts of ifs, ands, and buts and
requiring the drawing of subtle
nuances and hairline distinctions,
may be the sort of heady stuff
upon which the facile minds of
lawyers and judges eagerly feed,
but they may be ‘literally
impossible of application by the
officer in the field.’”
In short, “[a] single, familiar
standard is essential to guide police
officers, who have only limited time and
expertise to reflect on and balance the
social and individual interests involved in
the specific circumstances they confront”
[citation omitted].38
38
Belton, 453 U.S. at 457-58.
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The Belton Court went on to discuss the interplay between
Chimel and Robinson:
So it was that, in United States v.
Robinson, the Court hewed to a
straightforward rule, easily applied, and
predictably enforced: “[I]n the case of a
lawful custodial arrest a full search of the
person is not only an exception to the
warrant requirement of the Fourth Amendment,
but is also a ‘reasonable’ search under that
Amendment.” In so holding, the Court
rejected the suggestion that “there must be
litigated in each case the issue of whether
or not there was present one of the reasons
supporting the authority for a search of the
person incident to a lawful arrest”
[citations omitted].39
In Belton, the defendant was pulled over pursuant to a
lawful traffic stop and was subsequently arrested for the
unlawful possession of marijuana.40
After the defendant was
placed under arrest, the officer conducted a search of the
automobile which yielded evidence of contraband, namely cocaine.
The cocaine was found in the defendant’s jacket pocket, which
was left in the back seat of the car.
The pocket was zipped and
the cocaine was only discovered after the officer unzipped the
pocket.41
39
Id. at 459.
40
Belton was not driving the car, he was a passenger along with several other
men. Moreover, the car did not belong to Belton.
41
Id. at 455-56.
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The United States Supreme Court upheld the search
under Chimel and Robinson.
The Court held that “when a
policeman has made a lawful custodial arrest of the occupant of
an automobile, he may, as a contemporaneous incident of that
arrest, search the passenger compartment of that automobile”
[footnotes omitted].42
The Court went on to conclude that “the
police may also examine the contents of any containers found
within the passenger compartment, for if the passenger
compartment is within reach of the arrestee, so also will
containers in it be within his reach” [footnote and citations
omitted].43
The Court noted that such containers may be searched
whether they are open or closed as “the justification for the
search is not that the arrestee has no privacy interest in the
container, but that the lawful custodial arrest justifies the
infringement of any privacy interest the arrestee may have.”44
The Court acknowledged the possibility that “these containers
will sometimes be such that they could hold neither a weapon nor
evidence of the criminal conduct for which the suspect was
42
Id. at 460.
43
Id.
44
Id. at 461.
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arrested.”45
However, the Court went on to note that this very
argument was rejected in Robinson.46
Although Belton involved the search of the passenger
compartment of an automobile, a close reading of the case
reveals that the principles underlying the Court’s decision are
not limited to the “automobile exception.”
It is true that
footnote 3 of the opinion reads as follows:
Our holding today does no more than
determine the meaning of Chimel’s principles
in this particular and problematic content.
It in no way alters the fundamental
principles established in the Chimel case
regarding the basic scope of searches
incident to lawful custodial arrests.47
However, the Court went on in footnote 6 of the opinion to
expressly disclaim reliance on the so-called automobile
exception: “[b]ecause of this disposition of the case, there is
no need here to consider whether the search and seizure were
permissible under the so-called ‘automobile exception’”
[citations omitted].48
45
Moreover, Wayne LaFave has touched on
Id.
46
“‘The authority to search the person incident to a lawful custodial arrest,
while based upon the need to disarm and to discover evidence, does not depend
on what a court may later decide was the probability in a particular arrest
situation that weapons or evidence would in fact be found upon the person of
the suspect. A custodial arrest of a suspect based on probable cause is a
reasonable intrusion under the Fourth Amendment; that intrusion being lawful,
a search incident to the arrest requires no additional justification.’” Id.
(quoting Robinson, 414 U.S. at 235).
47
Belton, 453 U.S. at 460 n.3.
48
Id. at 462 n.6. In addition, we cannot overlook the fact that when the
police officer in Belton searched the zipped pocket of the arrestee’s jacket,
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this issue in his treatise on the Fourth Amendment and we
believe the following comment is particularly insightful: “the
asserted need for a ‘bright line’ on what constitutes ‘immediate
control’ under Chimel, is essentially the same as to containers
in cars and other containers.”49
Thus, we conclude that the
reasoning employed in Belton is equally applicable to all
containers, with the constitutionality of the search turning
upon whether the area searched was “‘within his immediate
control’ – construing that phrase to mean the area from within
which he might gain possession of a weapon or destructible
evidence.”50
which was located in the passenger compartment of the car, the arrestee was
standing on the side of the highway away from the vehicle.
49
Wayne R. LaFave, Search and Seizure, Vol. III, Chap. 5, § 5.5(a), p. 177
(3d ed. 1996). Moreover, numerous decisions from various federal courts have
relied upon Belton to permit warrantless searches of containers incident to a
lawful arrest in situations were the automobile exception was entirely
inapplicable. See, e.g., United States v. Porter, 738 F.2d 622, 627 (4th
Cir. 1984), cert. denied 469 U.S. 983, 105 S.Ct. 389, 83 L.Ed.2d 323 (1984)
(warrantless search of a carry-on bag at an airport); United States v.
Litman, 739 F.2d 137, 138-39 (4th Cir. 1984) (warrantless search of a
shoulder bag in a hotel room); United States v. Silva, 745 F.2d 840, 847 (4th
Cir. 1984), cert. denied, 470 U.S. 1031, 105 S.Ct. 1404, 84 L.Ed.2d 791
(1985) (warrantless search of a zipper bag in a hotel room); United States v.
Fleming, 677 F.2d 602, 607 (7th Cir. 1982) (warrantless search of paper bag
in the immediate area of the defendant upheld despite the fact that at the
time of the search defendant was handcuffed); United States v. Herrera, 810
F.2d 989, 990 (10th Cir. 1987) (warrantless search of a briefcase carried by
arrestee); United States v. Tavolacci, 704 F.Supp. 246, 252-53 (D.C. 1988)
(warrantless search of luggage at railway station). In addition, several
state courts have taken a similar approach. See, e.g., Lee v. Maryland, 537
A.2d 235, 311 Md. 642, 670-71 (1988); Commonwealth v. Madera, 521 N.E.2d 738,
402 Mass. 156, 157-58 (1988); Colorado v. Hufnagel, 745 P.2d 242 (1987); and
New York v. Smith, 452 N.E.2d 1224, 59 N.Y.2d 454, 458 (1983).
50
Chimel, 395 U.S. at 763, Collins, 574 S.W.2d at 297. This point is further
buttressed by the fact that Chimel provided the theoretical grounding for the
Court’s decision in Belton. Moreover, “[e]ven if we assume that the bright
line test of Belton relates exclusively to searches involving the contents of
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For purposes of the present analysis, we conclude that
the Belton Court relied upon Robinson in precisely the same
fashion as did our Supreme Court in Collins.
That is to say,
the probability that a particular container could hold a weapon
or evidence of criminal conduct is irrelevant provided the
search of the container was incident to a lawful arrest.
The
fact that our Supreme Court left out the language “upon the
person of the suspect” from its citation to Robinson tends to
suggest that the Court intended to extend the reasoning of
Robinson to the entire area within the arrestee’s immediate
control and not just his person.
Thus, we now turn to the
question of whether the ceramic container found on the kitchen
counter was within Davis’s immediate control.
The Commonwealth claims that the search of the air
conditioner in Collins closely parallels the search of the
ceramic container found on Davis’s kitchen counter.
The
Commonwealth further claims that the distance involved in the
case at bar, i.e., eight to ten feet, is “easily congruous” with
the distance involved in Collins, i.e., four to seven feet.
We
agree, however, we also hasten to point out that in the search
incident to arrest context, the distance between the arrestee
and the area to be searched is not dispositive of the issue.
automobiles, Belton nevertheless demonstrates that Chimel’s concept of an
area of control is quite flexible.” Lee, 537 A.2d at 249.
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Whether a search is reasonable as incident to a lawful arrest
depends on the particular circumstances involved.
Unfortunately, the case law in Kentucky is rather
underdeveloped as to what circumstances may or may not give rise
to a valid search of the area within an arrestee’s immediate
control pursuant to a custodial arrest.51
However, we believe a
Sixth Circuit Court of Appeals case out of the Western District
of Kentucky, Watkins, supra, is particularly on point and helps
to shed some light on the issue.
In Watkins, the defendant was
arrested in the residence of a friend pursuant to a valid
warrant.
At the time of his arrest, two bundles of heroin were
found in the bathrobe Watkins was wearing.52
The arresting
officers then testified that they accompanied Watkins to the
bedroom so he could get a shirt.
Once in the bedroom, the
officers noticed the butt of a firearm under the mattress of the
bed.
Watkins challenged the search claming that the officers
took him to the bedroom for the sole purpose of conducting a
search, and that they only discovered the gun after lifting the
51
The only Kentucky case dealing with the constitutionality of a search
incident to arrest in which Collins is cited as authority is Commonwealth v.
Montaque, Ky., 23 S.W.3d 629, 633 n.1 (2000), and Montaque does no more than
state that Collins stands for the position that “[t]he constitutionality of a
search incident to an arrest turns upon whether the area searched is ‘within
(the arrestee’s) immediate control construing that phrase to mean the area
from within which he might gain possession of a weapon or destructible
evidence.’”
52
Watkins, 564 F.2d at 203.
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mattress off the bed.53
In upholding the search, the Sixth
Circuit stated as follows:
This Court has squarely held that even
after a defendant has been restrained
pursuant to arrest, the search of an area
from which he might gain possession of a
weapon is lawful [citation omitted]. The
Court stated:
A search incident to arrest may
extend to “the arrestee’s person
and the area ‘within his immediate
control’ - construing that phrase
to mean the area from within which
he might gain possession of a
weapon or destructible evidence”
[citation omitted].54
The Court went on to conclude that “[s]ince the gun in question
was within defendant’s reach in the bedroom where he was taken
to get a shirt, the seizure of the weapon under the
circumstances of this arrest was lawful.”55
In Collins, our Supreme Court agreed with the position
taken in Watkins that “the area which may be searched under
Chimel is that area from which the arrestee might gain
possession of a weapon or destructible evidence” [emphasis
original].56
In the case sub judice, the room in which Davis was
arrested was described as “one large open area.”
53
Id.
54
Id. at 204-05.
55
Id.
56
Collins, 574 S.W.2d at 298.
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Thus, this
case does not involve the search of a separate enclosed area.
Moreover, Deputy Palmer and Trooper Payne did not have to escort
Davis to the kitchen to bring the ceramic container within
Davis’s immediate control.
According to the trial court, the
container was approximately eight to ten feet from where Davis
was situated.
Thus, we hold that the kitchen counter was within
the immediate area where Davis might have “gained possession of
a weapon or destructible evidence.”
Pursuant to Collins, the
constitutionality of a search incident to a lawful arrest,
“‘does not depend on what a court may later decide was the
probability in a particular arrest situation that weapons or
evidence would in fact be found [.]’”57
Accordingly, under the
circumstances of this case, “we cannot say the search was
unreasonable nor unconstitutional.”58
Based on the foregoing reasons, the order of the
McLean Circuit Court denying Davis’s motion to suppress the
items seized from his residence is affirmed.
ALL CONCUR.
57
Id. (quoting Robinson, 414 U.S. at 235).
58
Id. at 298.
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BRIEF AND ORAL ARGUMENT FOR
APPELLANT:
Bill Barber
Owensboro, Kentucky
BRIEF FOR APPELLEE:
Albert B. Chandler III
Attorney General
J. Gary Bale
Assistant Attorney General
Frankfort, Kentucky
ORAL ARGUMENT FOR APPELLEE:
J. Gary Bale
Assistant Attorney General
Frankfort, Kentucky
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