BRIAN BOTTOM and MELISSA BOTTOM v. COMMONWEALTH OF KENTUCKY
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RENDERED:
OCTOBER 6, 2006; 2:00 P.M.
ORDERED PUBLISHED:
NOVEMBER 17, 2006; 2:00 P.M.
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-002480-MR
&
NO. 2004-CA-002488-MR
&
NO. 2004-CA-002489-MR
BRIAN BOTTOM and
MELISSA BOTTOM
v.
APPELLANTS
APPEALS FROM RUSSELL CIRCUIT COURT
HONORABLE VERNON MINIARD, JR., JUDGE
INDICTMENT NOS. 04-CR-00047 and 04-CR-00049
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS, CHIEF JUDGE; HUDDLESTON AND KNOPF, SENIOR
JUDGES.1
HUDDLESTON, SENIOR JUDGE:
Brian Bottom and his ex-wife, Melissa
Jean Bottom, appeal from conditional guilty pleas that each
entered to various drug-related felony charges.
Both Brian and
Melissa argue that the police lacked reasonable and articulable
suspicion when they initially approached Brian’s home and
1
Senior Judges Joseph R. Huddleston and William L. Knopf sitting as Special
Judges by assignment of the Chief Justice pursuant to Section 110(5)(b) of
the Kentucky Constitution and KRS 21.580.
knocked upon his door seeking to talk to him and Melissa.
Finding that reasonable and articulable suspicion was not
necessary, we affirm.
On April 6, 2004, Melissa visited a farm supply store
in Adair County and wandered around inside.
When asked if she
needed help, Melissa stated she wanted to buy dog collars.
After being told that the store did not carry the items she
sought, Melissa immediately grabbed two 16-ounce bottles of
iodine, purchased them and left the store.
The store manager
found Melissa’s behavior odd and, knowing that iodine is often
used in the manufacture of methamphetamine, followed her out of
the store and watched her leave.
The manager noted the make,
model and license of Melissa’s car and contacted the Adair
County Sheriff’s Department.
The sheriff’s department, in turn,
contacted the Kentucky State Police (KSP).
Once the information reached the KSP, Scott Hammond, a
State Police detective, together with Chief Joey Hoover of the
Jamestown Police Department and Chief Joe Michael Irvin of the
Russell Springs Police Department, began an investigation.
Since they had the license plate number of the car, the officers
quickly discovered that it belonged to Melissa and Brian.
Knowing where Brian lived, the officers proceeded to Brian’s
home and drove by it a couple of times until they spotted
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Melissa’s vehicle.
The officers then retreated to discuss their
options.
Although the officers had located Melissa’s car at
Brian’s home, they knew that they lacked probable cause to
secure a warrant to search the home.
So after discussing the
situation, the officers decided to undertake a so-called “knock
and talk”.2
home.
Later that evening, the officers went to Brian’s
Detective Hammond knocked, and both Brian and Melissa
came to the door.
Both stepped outside onto the front porch and
closed the door behind them.
While the detective spoke with the
Bottoms, the officers noticed iodine stains on Melissa’s hands
and detected the chemical odors associated with a
methamphetamine lab emanating from the home.
The officers
questioned Melissa about the iodine she had purchased and
eventually asked Brian if they could search his house.
Brian
refused.
After Brian refused the request to search, the
officers decided to seek a search warrant based on the chemical
odor they had detected and the stains they had observed on
Melissa’s hands.
2
A “knock and talk” is a straight-forward, non-custodial police
investigative procedure. An officer approaches an individual’s residence and
identifies himself as an officer. The officer eventually requests permission
to search the residence. United States v. Hardeman, 36 F. Supp 2d 770, 777
(E.D. Mich. 1999), citing United States v. Miller, 933 F. Supp. 501, 505
(M.D.N.C. 1996).
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While two officers obtained a search warrant, two
other officers stayed at Brian’s home to keep Brian and Melissa
from re-entering the home in order to preserve any evidence that
may have been present.
While the two officers remained at the
scene, Brian offered to pay each officer $1,000.00 if they would
allow him and Melissa to re-enter the home for fifteen minutes.
The officers declined.
After obtaining a search warrant, the two officers
returned and the home was searched.
The police discovered drug
paraphernalia, a quantity of marijuana, approximately $2,000.00
in cash and several components used in the manufacture of
methamphetamine.
Following completion of the investigation, Brian was
charged in an indictment with one count of manufacturing
methamphetamine, a Class B felony, one count of possession of
marijuana, a Class A misdemeanor, and one count of possession of
drug paraphernalia, also a Class A misdemeanor.
In the same
indictment, Melissa was charged with one count of manufacturing
methamphetamine, a Class B felony, one count of possession of
marijuana, a Class A misdemeanor, and one count of possession of
drug paraphernalia, second offense, a Class D felony.
In a
separate indictment, Brian was charged with two counts of
bribery of a public servant, a Class C felony.
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After being indicted, Brian and Melissa moved to
suppress the evidence obtained as a result of the search of
Brian’s home.
They argued that to conduct a “knock and talk”
the officers needed, at least, reasonable and articulable
suspicion that criminal activity was happening inside the home.
According to Brian and Melissa, the officers lacked the
requisite suspicion.
Following an evidentiary hearing, Russell Circuit
Court denied the couple’s suppression motion finding that the
officers had the necessary reasonable and articulable suspicion
to believe that criminal activity was occurring inside Brian’s
home.
After the adverse ruling on their suppression motion,
Brian and Melissa entered conditional guilty pleas to several
felony counts, including manufacturing methamphetamine, and both
reserved the right to appeal from the denial of their
suppression motion.
On appeal, Brian and Melissa argue, as they did below,
that for officers to use the “knock and talk” investigative
procedure, they must have a reasonable and articulable suspicion
that criminal activity is afoot.
In other words, before the
officers could have approached Brian’s home, they had to have
had some reasonable and articulable suspicion that criminal
activity was taking place inside the home.
According to Brian
and Melissa, because the officers lacked such reasonable and
-5-
articulable suspicion, the circuit court erred when it denied
their suppression motion.
When we review suppression issues, we engage in a twopart analysis.
of fact.
First, we examine the circuit court’s findings
If the factual findings are supported by substantial
evidence, then we defer to them as conclusive.
Second, we
review de novo the court’s application of the law to the facts.3
In this case, the facts are not in dispute.
Since the
facts are conclusive, we turn to the circuit court’s application
of the law to the facts.
We have found little caselaw in this
Commonwealth addressing the “knock and talk” procedure; however,
the federal courts have addressed the procedure and have found
that it is a reasonable investigative tool for officers to use
in an attempt to gain an individual’s consent to search that
individual’s residence.4
In United States v. Cormier,5 the
United States Court of Appeals for the Ninth Circuit had this to
say about the “knock and talk” procedure used by police:
Cormier also raises the question of whether
reasonable suspicion or probable cause is
necessary to justify a “knock and talk” by
police. The Fourth Amendment protection
against unreasonable searches and seizures
is not limited to one’s home, but also
extends to such places as hotel or motel
3
Commonwealth v. Neal, 84 S.W.3d 920, 923 (Ky. App. 2002).
4
United States v. Jones, 239 F.3d 716, 720 (5th Cir. 2001). See also United
States v. Tobin, 923 F.2d 1596, 1511 (11th Cir. 1991), and United States v.
Chambers, 395 F.3d 563, 568 (6th Cir. 2005).
5
220 F.3d 1103 (9th Cir. 2000).
-6-
rooms. (Citation omitted.) Because Cormier
had a reasonable expectation of privacy in
his motel room, the question is whether he
voluntarily opened the door or,
alternatively, whether there were coercive
circumstances that turned an ordinary
consensual encounter into one requiring
objective suspicion. See Davis v. United
States, 327 F.2d 301, 303-304 (9th Cir.
1964); see also United States v. Jerez, 108
F.3d 684, 691-92 (7th Cir. 1997) (recognizing
that a “knock and talk” is ordinarily
consensual unless coercive circumstances
such as unreasonable persistence by the
officers turn it into an investigatory
stop); United States v. Kim, 27 F.3d 947,
951 (3d Cir. 1994)(finding in an almost
identical case that a polite knock on the
door without accompanying coercive
circumstances does not create a
nonconsensual encounter).
This court stated the general rule
regarding “knock and talk” encounters almost
forty years ago in the following passage:
Absent express orders from the person in
possession against any possible trespass,
there is no rule of private or public
conduct which makes it illegal per se, or a
condemned invasion of the person’s right of
privacy, for anyone openly and peaceably, at
high noon, to walk up the steps and knock on
the front door of any man’s “castle” with
honest intent of asking questions of the
occupant there of whether the questioner be
a pollster, a salesman, or an officer of the
law.
Davis, 327 F.2d at 303. That view has now
become a firmly-rooted notion in Fourth
Amendment jurisprudence. See Jerez, 108
F.3d at 691; United States v. Taylor, 90
F.3d 903, 909 (4th Cir.1996); United States
v. Roberts, 747 F. 2d 537, 543 (9th Cir.
1984. The facts of this case fall under the
general rule of Davis. Here, Peters knocked
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on the door for only a short period spanning
seconds. In addition, Peters never
announced that she was a police officer
while knocking nor did she ever compel
Cormier to open the door under the badge of
authority. Because there was no police
demand to open the door, see United States
v. Winsor, 846 F.2d 1569, 1573 n. 3 (9th
Cir.1988) (en banc), and Peters was not
unreasonably persistent in her attempt to
obtain access to Cormier’s motel room, see
Jerez, 108 F.3d at 691-92, there is no
evidence to indicate that the encounter was
anything than consensual. Therefore, no
suspicion needed to be shown in order to
justify the “knock and talk.” See Florida
v. Bostick, 501 U.S. 429, 434, 111 S. Ct.
2382, 115 L. Ed. 2d 389 (1991).6
In this case, the encounter between the officers and
the Bottoms was consensual, that is, Brian and Melissa responded
to the knock on the door absent any police coercion and engaged
in conversation with the officers.
Since there was nothing
outside Brian’s home to suggest that visitors were not free to
approach it and since the encounter with Brian and Melissa was
non-coercive, the officers did not need a reasonable and
articulable suspicion to conduct the “knock and talk”.
Although the circuit court denied Brian’s and
Melissa’s suppression motion for the wrong reason, it came to
the correct conclusion.
It is well settled that a lower court’s
decision will be upheld if it reached the correct conclusion,
even if for the wrong reason.7
Since Russell Circuit Court came
6
Id. at 1108-1109.
7
Jarvis v. Commonwealth, 960 S.W.2d 466, 469 (Ky. 1998).
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to the correct conclusion, we affirm its denial of Brian and
Melissa’s motion to suppress and we affirm the judgments.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Jeffrey H. Hoover
HOOVER LAW OFFICE
Jamestown, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
Michael L. Harned
Assistant Attorney General
Frankfort, Kentucky
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