RONALD TERRANCE HARDRICK v. COMMONWEALTH OF KENTUCKY
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RENDERED: APRIL 25, 2003; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-001678-MR
RONALD TERRANCE HARDRICK
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE LAURANCE B. VANMETER, JUDGE
ACTION NO. 02-CR-00289-1
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BAKER, GUIDUGLI AND KNOPF, JUDGES.
GUIDUGLI, JUDGE:
Ronald Terrance Hardrick (“Hardrick”) appeals
from a criminal judgment in Fayette Circuit Court on a
conditional plea of guilty to charges of first-degree possession
of a controlled substance and first-degree persistent felony
offender.
Hardrick maintains that the trial court erred in
overruling his motion to suppress evidence.
We affirm.
On January 23, 2002, Probation and Parole Officer
Lezlei Kelly (“Kelly”) went to Hardrick’s residence to conduct a
home visitation pursuant to the terms of Hardrick’s parole.
Hardrick was paroled from a conviction on burglary and
persistent felony offender (“PFO”) charges in 1996.
Kelly was
accompanied by Lexington Fayette Police Officer Franklin Patrick
(“Patrick”).
Upon arrival, Kelly knocked at the door and Hardrick
answered.
Hardrick stated to Kelly that he needed to put a
shirt on, and, according to Kelly, said “come on in”.
Hardrick
partially closed the door, and went back into the residence
while Kelly and Patrick remained outside.
After waiting for
approximately two minutes, Kelly and/or Patrick became
suspicious and entered the residence.
Kelly heard “rustling”
sounds coming from a bedroom and smelled a strong scent of air
freshener.
When Kelly approached the bedroom, Hardrick closed
the door before she could enter.
She told Hardrick to come out,
and after a brief delay he complied.
Hardrick’s girlfriend also
came out of the bedroom.
Patrick directed Hardrick and his girlfriend to be
seated on a couch, and asked Hardrick if he (Hardrick) had any
drugs or drug paraphernalia on him.
Hardrick then told Patrick
that he had a crack pipe in his pocket, and subsequently he was
arrested and mirandized.
Patrick then went into the bedroom and
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retrieved an ashtray containing crack cocaine residue.1
Hardrick
and his girlfriend then admitted that they had some cocaine, and
told Patrick where it was located in the residence.
On March 13, 2002, Hardrick was indicted by a Fayette
grand jury on one count each of first-degree possession of a
controlled substance, tampering with physical evidence,
possession of drug paraphernalia, and first degree PFO.
On
April 10, 2002, Hardrick filed a motion to suppress the
admission of the drugs and paraphernalia found at the residence.
After a hearing on the matter was conducted and written
arguments were filed, the trial court entered an order denying
the motion to suppress.
Thereafter, Hardrick entered into a plea agreement
under which the tampering and paraphernalia charges were
dismissed, and a guilty plea was entered as to the remaining
counts.
The plea was conditioned on Hardrick’s reservation of a
right to appeal the suppression issue.
He then received an
enhanced sentence of ten (10) years in prison.
This appeal
followed.
The sole issue now before us is whether the trial
court erred in overruling Hardrick’s motion to suppress.
Hardrick argues that Patrick was present at his residence for
the sole purpose of accompanying Kelly to ensure her safety, and
1
Hardrick maintains that Patrick retrieved the ashtray before finding the
crack pipe.
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that instead Patrick illegally conducted a search of Hardrick’s
residence.
He goes on to argue that he never consented to the
search, and claims that Patrick had no probable cause to justify
the search.
He maintains that since the search was illegal, the
evidence obtained should not be admitted against him.
He seeks
an order reversing the denial of his motion to suppress and the
resultant conviction.
We have closely studied Hardrick’s claims of error,
and find nothing in the record or the law which compels us to
tamper with the order on appeal.
The first question is whether
evidence exists in the record upon which the trial court could
conclude that Kelly and Patrick had the lawful authority to
enter Hardrick’s residence.
This question must be answered in
the affirmative for at least two reasons.
First, Kelly stated
that Hardrick said “come on in” when he answered the door.
And
second, it is uncontroverted that Hardrick, as a condition of
his parole, consented in writing to allow a parole officer to
enter and conduct a warrantless search of his residence if the
officer had “reason to believe” that contraband was present.
See generally, Wilson v. Commonwealth, Ky., 998 S.W.2d 473
(1999).
Kelly’s statement that Hardrick acted “nervous”
accompanied by his two-minute absence arguable would give Kelly
“reason to believe” that contraband was present.
Either way,
Kelly’s testimony that Hardrick gave them permission to enter is
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a sufficient basis upon which the trial court could have
concluded that entry was lawful.
The next question is whether the search of Hardrick’s
person and his bedroom was supported by the law.
Given that all
parties agree that Hardrick consented to be searched, there can
be little argument but that this portion of the search was
lawful.
Similarly, the parties agree that Hardrick told Patrick
and Kelly that he was in possession of a crack pipe even before
the actual search of Hardrick’s body was conducted.
It is clear
that the search of Hardrick’s person was lawful.
Similarly, we must also conclude that the search of
Hardrick’s bedroom was lawful, given that Patrick stated that he
observed an ashtray containing a burned brillo pad in the
bedroom, and because Hardrick was found to be in possession of
the pipe and admitted that crack cocaine was present in the
bedroom.
Clearly, Kelly and Patrick had the duty to retrieve
the cocaine after Hardrick admitted its existence.
Alternatively, the search of Hardrick’s room was
lawful given the totality of the circumstances known to Patrick
and Kelly at the time.
As the Commonwealth notes, the officers
were aware that Hardrick was nervous when he answered the door;
that he had not returned to the door after two minutes; that the
strong odor of air freshener was present; that Patrick observed
an ashtray containing a burned brillo pad; and, that rustling
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sounds came from the bedroom and that Hardrick closed the door
just as Kelly approached.
When this knowledge is combined with
Hardrick’s admitted possession the crack cocaine and pipe, there
can be little doubt but that the officers were authorized to
retrieve the ashtray and cocaine from the bedroom.
Accordingly,
we cannot conclude that the trial court erred in overruling
Hardrick’s motion to suppress.
This conclusion is supported by
Unites States v. Knights, 534 U.S. 112, 122 S.Ct. 587, 151
L.Ed.2d 497 (2001), wherein the Court ruled that a defendant's
status as a probationer, subject to conditions of supervision
including that of search and seizure, diminished his reasonable
expectation of privacy.
For the foregoing reasons, we affirm the judgment of
the Fayette Circuit Court.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Gene Lewter
Fayette County Legal Aid
Lexington, KY
A. B. Chandler
Attorney General
Louis F. Mathias, Jr.
Assistant Attorney General
Frankfort, KY
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