DONALD G. BROWNING v. COMMONWEALTH OF KENTUCKY
Annotate this Case
Download PDF
RENDERED:
OCTOBER 10, 2003; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-000358-MR
DONALD G. BROWNING
APPELLANT
APPEAL FROM McLEAN CIRCUIT COURT
HONORABLE DAVID H. JERNIGAN, JUDGE
ACTION NO. 01-CR-00040
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI, JOHNSON AND KNOPF, JUDGES.
JOHNSON, JUDGE:
Donald G. Browning has appealed from a judgment
and sentence of the McLean Circuit Court entered on January 9,
2002, which, pursuant to Donald’s conditional plea of guilty,
convicted him of three offenses and sentenced him to prison for
one year.
Having concluded that the trial court correctly
denied Donald’s motion to suppress evidence, we affirm.
On July 24, 2001, Donald Browning was indicted by a
McLean County grand jury on one count of marijuana cultivation
over five plants,1 one count of possession of drug
paraphernalia,2 and on one count of possession of marijuana under
eight ounces,3 all while in the possession of a firearm.4
On
March 4, 2002, a hearing was held on Donald’s motion to suppress
evidence obtained from a search of a residence.
The evidence
was that Donald and his brother Ronald Browning, who are twins,
lived in a house owned by Ronald in Rumsey, Kentucky.
While
Donald lived at the house, he did not pay his brother rent.5
According to Donald, a man named Alton Rickard accused him of
harassing Rickard’s wife.6
Presumably in retaliation for this
perceived harassment, Rickard began burglarizing the home where
Donald and Ronald resided.7
On June 1, 2001, Rickard and an
accomplice, Boyd Stewart, were in the process of burglarizing
1
Kentucky Revised Statutes (KRS) 218A.1423. For a first offense, marijuana
cultivation over five plants is a Class D felony.
2
KRS 218A.500. For a first offense, possession of drug paraphernalia is a
Class A misdemeanor.
3
KRS 218A.1422.
misdemeanor.
Possession of marijuana under eight ounces is a Class A
4
As part of Donald’s plea agreement, the Commonwealth recommended that all
three charges be amended to delete the “while in possession of a firearm”
language. The trial court entered an order to that effect on December 18,
2001.
5
Donald did not graduate high school and only completed the ninth grade.
Ronald described his brother as being “a little slow” and unable to read or
write well.
6
Donald and Rickard’s wife were at one time co-workers.
7
Rickard has admitted to committing at least three burglaries at the Browning
home.
-2-
the Browning residence when they were startled by Donald,8 who
had been hiding in a building on the property in an attempt to
catch Rickard breaking into the house.
Rickard and Stewart
quickly fled the scene, but Donald pursued them in a pickup
truck owned by his brother Ronald.
During the chase, Donald
called the Kentucky State Police on his cellular phone to report
the burglary.
Kentucky State Trooper Russell Nichols joined the
pursuit, and he was eventually able to stop both Rickard and
Donald.
A search of Rickard’s vehicle at the scene of the stop
revealed various items of drug paraphernalia and a nine
millimeter handgun, all of which had apparently been stolen from
the Browning home.
Rickard subsequently informed Troopers
Nichols and Payne that drugs could be found at the Browning
residence.
Trooper Payne testified that he then advised Donald
of his Miranda9 rights and requested permission to search the
8
There is conflicting testimony from the suppression hearing regarding which
one of the brothers startled the burglars and was eventually stopped along
with the Rickard vehicle. Ronald testified that he was the one who chased
Rickard and Stewart and that his brother Donald was at work at the time.
Kentucky State Trooper Charles Payne, who assisted Trooper Russell Nichols
with the stop in question, testified that Donald was the brother who had been
stopped at the scene. The record of Donald’s arrest corroborates Trooper
Payne’s testimony. Further, the trial court found that it was Donald who was
stopped along with the Rickard vehicle. As no argument has been made that it
was not Donald who was stopped, we presume that the trial court’s finding was
correct.
9
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
Curiously, Donald has repeatedly argued in his brief to this Court that he
was never advised of his Miranda rights. He makes this claim despite the
fact that (1) he has failed to point to any evidence whatsoever in the record
supporting this allegation; (2) Trooper Payne testified that he advised
-3-
pickup truck.10
After no evidence was found in the truck,
Trooper Payne and Donald proceeded to the Browning home.
Trooper Payne testified that upon arriving at the
Browning home, he once again advised Donald of his Miranda
rights, and the record shows Donald signed a written waiver of
his rights at that time.
Donald also signed a written consent
form authorizing Trooper Payne to conduct a complete search of
the premises where the Browning home was located.
A search
inside the home revealed numerous items of drug paraphernalia in
Donald’s room, including two bags of marijuana seeds.
Trooper
Payne also searched an area outside the home, where he found a
five-gallon bucket with more than five marijuana plants growing
inside.
Donald admitted that all of the incriminating items,
including those found in the possession of Rickard, were his.
He was then indicted by a McLean County grand jury.
On December 14, 2001, Donald filed a motion to
suppress the evidence seized at the Browning home.
Following
the suppression hearing, the trial court ruled that Donald’s
constitutional rights had not been violated after finding that
Donald had given valid consent to search the Browning property.
On January 9, 2002, pursuant to an agreement reached with the
Donald of his Miranda rights on two occasions; and (3) a signed, written
waiver of his Miranda rights appears in the record.
10
The record shows that Donald signed a written consent form at the scene of
the stop authorizing Trooper Payne to search the pickup truck.
-4-
Commonwealth, Donald entered a conditional plea of guilty, and
reserved his right to appeal the denial of his motion to
suppress.
Following a pre-sentence investigation, the trial
court ordered Donald to serve one year in prison on the
marijuana cultivation conviction, and 12 months in the county
jail for both the possession of drug paraphernalia conviction
and the possession of marijuana conviction.
All three sentences
were ordered to run concurrently, resulting in a total sentence
of one year in prison.
This appeal followed.
Donald first argues that because he had no ownership
interest in the Browning property, his consent to search the
premises was invalid.
Donald asserts that the evidence obtained
from that search should have been suppressed.
We disagree.
In United States v. Karo,11 the Supreme Court of the
United States stated:
Consent to search a container or a place is
effective only when given by one with
“common authority over or other sufficient
relationship to the premises or effects
sought to be inspected." “Common authority .
. . rests . . . on mutual use of the
property by persons generally having joint
access or control for most purposes. . ."
[citations omitted].
In the case at bar, it is not disputed that Donald had
common authority over the entire Browning property along with
his brother Ronald.
11
At the suppression hearing, Ronald
468 U.S. 705, 725, 104 S.Ct. 3296, 3308, 82 L.Ed.2d 530 (1984).
-5-
testified that Donald had been living at the home for two years,
that Donald had a key to the home, and that Donald had no
restrictions with respect to his use of the property.
Further,
in his signed, written consent form authorizing the search of
the Browning home and surrounding premises, Donald himself
admits to having “full run of the house and property.”
Thus,
Donald’s claim that he could not give valid consent to search
the premises because he had no ownership interest in the
property is without merit.
Donald next argues that Trooper Payne exceeded the
scope of any consent he may have given by not limiting the
search of the Browning property to Donald’s bedroom.
again, we reject Donald’s argument.
Once
The written consent form
bearing Donald’s signature clearly states that he gave Trooper
Payne “authoriz[ation] . . . to conduct a complete search of
[the] premises” where the Browning home is located.
Simply put,
there is no language in this consent form limiting the scope of
the search to Donald’s bedroom.
As we discussed previously,
since Donald had common authority over the “full run of the
property,” and since he gave consent to search the entire
premises, Trooper Payne did not exceed the scope of consent by
searching in areas outside of Donald’s bedroom.
argument to the contrary is wholly without merit.
Donald’s
-6-
Finally, Donald appears to argue that the search of
the Browning property was improper because Trooper Payne did not
first obtain a search warrant.
This argument ignores the fact
that Donald voluntarily consented to Trooper Payne’s search of
the Browning residence and the surrounding premises.
A search
warrant is not required where a valid consent has been obtained
from an individual with the authority to do so.12
Accordingly,
this final argument is also unpersuasive.
Based on the foregoing reasons, the judgment of the
McLean Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
John W. Tullis
Owensboro, Kentucky
Albert B. Chandler III
Attorney General
David A. Smith
Assistant Attorney General
Frankfort, Kentucky
12
See Illinois v. Rodriguez, 497 U.S. 177, 181, 110 S.Ct. 2793, 2797, 111
L.Ed.2d 148 (1990)(holding that “[t]he Fourth Amendment generally prohibits
the warrantless entry of a person's home, whether to make an arrest or to
search for specific objects. The prohibition does not apply, however, to
situations in which voluntary consent has been obtained, either from the
individual whose property is searched, or from a third party who possesses
common authority over the premises” [citations omitted]).
-7-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
