DANA MERCER v. COMMONWEALTH OF KENTUCKY
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RENDERED: JUNE 18, 2004; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2003-CA-001801-MR
DANA MERCER
APPELLANT
APPEAL FROM GRAYSON CIRCUIT COURT
HONORABLE ROBERT A. MILLER, JUDGE
ACTION NO. 02-CR-00141
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE:
GUIDUGLI AND KNOPF, JUDGES; AND EMBERTON, SENIOR JUDGE1.
KNOPF, JUDGE:
Dana Mercer appeals from a judgment of the
Grayson Circuit Court, entered August 11, 2003, convicting her
pursuant to her guilty plea of manufacturing methamphetamine,2
possession of anhydrous ammonia in an unapproved container and
1
Senior Judge Thomas D. Emberton sitting as Special Judge by
assignment of the Chief Justice pursuant to Section 110(5)(b) of
the Kentucky Constitution and KRS 21.580.
2
KRS 218A.1432.
for the purpose of manufacturing methamphetamine,3 wanton
endangerment in the first degree,4 possession of marijuana,5 and
possession of a controlled substance in the first degree
(methamphetamine).6
She was sentenced to concurrent terms of
imprisonment totaling ten years.
Mercer contends that the trial
court erroneously refused to suppress evidence seized during a
warrantless search of her residence.
her right to appeal from that refusal.
Her guilty plea preserved
To the extent that the
search of Mercer’s residence appears to have exceeded its lawful
scope, we agree with her contention and so must vacate the trial
court’s judgment and remand for additional proceedings.
Pursuing a tip that a suspect with an outstanding
arrest warrant was present at 1010 Shain Road in Caneyville,
three Grayson County deputies and a state trooper approached the
residence at that address at about 10:30 p.m. on October 15,
2002.
The officers had not obtained a warrant to search the
residence.
After a deputy and the trooper had positioned
themselves behind the residence where they could see the back
door, the other two deputies knocked at the front door.
Mercer
answered the knock, informed the officers that the suspect was
3
KRS 250.489.
4
KRS 508.060.
5
KRS 218A.1422.
6
KRS 218A.1415.
2
not present, and denied the officers’ request for permission to
enter.
At the same time, Mercer’s roommate, Frank Magolis,
exited the building through the back door.
According to the
report of the back-yard deputy, Magolis was carrying a large jar
or jug, and as soon as he noticed the officers he turned
abruptly around and went back inside.
Almost immediately the
officers heard the sound of breaking glass.
emanate from a window next to the back porch.
The sound seemed to
As the officers
approached the window, in which an exhaust fan had been set up,
they detected a strong odor of what they believed to be ether.
Through the window they saw glass shards on the floor.
They
also observed on the back porch two starter-fluid cans with
holes punched in them and a can of Coleman fuel.
Believing that they may have stumbled upon a
methamphetamine lab, the four officers requested assistance from
deputy Tony Willen, who was trained to deal with that situation.
About thirty minutes later Willen and State Trooper Danny Payne,
who has similar expertise, arrived at the scene.
Willen and
Payne testified at the suppression hearing that they recognized
a strong odor of ether coming from the rear window, and because
ether is both noxious and volatile they decided that any
children in the house should be evacuated.
3
Although the exact sequence of events following that
decision is unclear, it is undisputed that soon thereafter the
officers entered the residence and searched every room for
occupants.
In the course of that search they saw in plain view
in a back bedroom (the room with the exhaust fan) chemicals,
containers, tubing and other paraphernalia their training
enabled them immediately to recognize as implements for the
manufacture of methamphetamine.
Thereupon, apparently, Mercer
and Magolis were arrested and the officers entered upon a
general search of the premises, eventually finding additional
incriminating evidence.
Mercer contends that the warrantless entry and search
of her home violated her right under the Fourth Amendment to the
United States Constitution and Section 10 of the Kentucky
Constitution to be free from unreasonable governmental searches
and seizures.
She correctly notes that a person’s interest in
being free from unreasonable state intrusions into her home is
the principal interest the Fourth Amendment protects.7
As a
general rule, that amendment and Section 10 of the Kentucky
Constitution, prohibit the police from entering and searching a
residence unless they obtain either the resident’s consent or a
7
Steagald v. United States, 451 U.S. 204, 68 L. Ed. 2d 38, 101
S. Ct. 1642 (1981); Coleman v. Commonwealth, Ky., 100 S.W.3d 745
(2002).
4
search warrant.8
We agree with Mercer, furthermore, that she did
not consent to the search of her home by allowing her stepfather, who happens to be a deputy jailer, to remove her
children,9 and that the police may not rely on their after-thefact discovery that Magolis was a probationer.10
Nevertheless, a well established exception to the
general warrant requirement authorizes police officers without a
warrant to enter a residence in order to address an exigent
circumstance, such as the threat of imminent injury or the
imminent destruction of evidence.11
It is widely recognized, as
Willen and Payne testified, that the chemicals and chemical
reactions involved in methamphetamine production, including
ether, pose significant health and safety risks.12
We agree with
the trial court that these risks are grave enough to justify
8
Id.
9
Commonwealth v. Fox, Ky., 48 S.W.3d 24 (2001) (Consent is
assessed by asking what a reasonable officer would have
understood in the circumstances. Here no reasonable officer
could have understood Mercer to be consenting to a search.)
United States v. Ivy, 165 F.3d 397 (6th Cir. 1998) (consent to
search must be unequivocal).
10
People v. Sanders, 73 P.3d 496 (Cal. 2003).
11
Commonwealth v. McManus, Ky., 107 S.W.3d 175 (2003); Hughes v.
Commonwealth, Ky., 87 S.W.3d 850 (2002).
12
United States v. Walsh, 299 F.3d 729 (8th Cir. 2002).
5
immediate police intervention.13
We also agree that the strong
smell of ether, the punched starter-fluid cans, the Coleman
fuel, and Magolis’s evasive behavior gave the police adequate
reason to suspect the presence of a methamphetamine lab.
The authority provided by exigent circumstances,
however, is limited to whatever intervention is reasonably
necessary to address the exigency.14
Exigent circumstances do
not license the police utterly to disregard the warrant
requirement.15
Here, having become aware of the likely presence
of a hazardous methamphetamine lab, the police could lawfully
enter Mercer’s residence to ascertain whether the lab was
operating and if so to stabilize it and to remove any occupants
in danger from the fumes of ether and other chemicals.
They
could, of course, note and seize evidence they came across in
plain view as they carried out this limited search.16
They were not authorized, however, to search beyond
what was necessary to address the health and safety emergency.17
13
Kleinholz v. United States, 339 F.3d 674 (8th Cir. 2003);
United States v. Wilson, 865 F.2d 215 (9th Cir. 1989); People v.
Duncan, 720 P.2d 2 (Cal. 1986); State v. Chapman, 813 P.2d 557
(Or. App., 1991).
14
Mincey v. Arizona, 437 U.S. 385, 57 L. Ed. 2d 290, 98 S. Ct.
2408 (1978).
15
Id.
16
Id.; Kleinholz v. United States, supra.
17
Mincey, supra.
6
For that a warrant was required.
Apparently, however, the
police disregarded that requirement and conducted a general
search for evidence throughout the property.
In an outbuilding,
for example, they found a container with anhydrous ammonia.
Somewhere, the record does not indicate where, they found
marijuana.
If these items or any others the police collected
were not in plain view during the brief search for occupants,
then their seizure without a warrant was unlawful and any
evidence based upon them should have been suppressed.
Because the record does not show which seized items
were in plain view and which were not (although it seems certain
that the container in the outbuilding was not), we are obliged
to vacate the trial court’s judgment and remand for
reconsideration of Mercer’s suppression motion in light of this
opinion.
If it turns out that all the evidence against Mercer
was in plain view and so lawfully seized, then the judgment
against her should be reinstated.
If any of the evidence was
not in plain view, however, that evidence should be suppressed
and Mercer should be permitted to withdraw her plea and reassess
her options.
Accordingly, we vacate the August 11, 2003, judgment
of the Grayson Circuit Court and remand for additional
proceedings consistent with this opinion.
7
EMBERTON, SENIOR JUDGE, CONCURS.
GUIDUGLI, JUDGE, DISSENTS AND FURNISHES SEPARATE
OPINION.
GUIDUGLI, JUDGE, DISSENTING.
I respectfully dissent.
While the majority would vacate and remand for additional
proceedings, I would reverse and remand with instructions that
all evidence seized during the illegal search be suppressed.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Samuel N. Potter
Assistant Public Advocate
Frankfort, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky
8
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