JEFFREY N. JONES v. COMMONWEALTH OF KENTUCKY
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RENDERED: May 5, 2006; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-000922-MR
JEFFREY N. JONES
v.
APPELLANT
APPEAL FROM BRECKINRIDGE CIRCUIT COURT
HONORABLE SAM H. MONARCH, JUDGE
ACTION NO. 04-CR-00090
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM,1 DYCHE, AND GUIDUGLI, JUDGES.
GUIDUGLI, JUDGE:
Jeffrey N. Jones appeals from a judgment and
sentence on a guilty plea entered in Breckinridge Circuit Court.
Jones argues that his conviction for manufacturing
methamphetamine and possession of a controlled substance should
be reversed because the trial court improperly denied his motion
to suppress evidence obtained during a search.
For the reasons
stated below, we affirm the judgment on appeal.
1
Judge David C. Buckingham concurred in this opinion prior to his retirement
effective May 1, 2006.
On June 10, 2004, Kentucky State Police Trooper Seth
Payne observed Jones purchasing several items at a BP gas
station in Breckinridge County, Kentucky, which Payne recognized
as items commonly used to manufacture methamphetamine.
The
items included a bottle of Red Devil lye, a box of cold
medication containing pseudoephedrine, and two bottles of liquid
Heat.
Payne approached Jones and questioned him about the
purchase.
Jones provided reasons for the purchases not related
to the production of methamphetamine.
Payne would later state
that Jones appeared to be nervous and kept reaching for his
pocket.
Payne directed Jones to place his hands on the hood of
Payne’s vehicle while Payne ran a check on Jones’s license and
vehicle registration.
As Payne was conducting the check, which
revealed that the license and registration each were expired,
Payne again saw Jones reaching for his pocket.
Payne then placed Jones in handcuffs and patted him
down.
Jones was found to be in possession of a film canister
containing a powdery brown substance, which Jones stated was
methamphetamine.
After the film canister was found, and
subsequent to Jones admitting that it contained methamphetamine,
he was advised of his Miranda2 rights.
2
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
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Having found Jones to be in possession of
methamphetamine, Payne sought and obtained a search warrant for
Jones’s residence.
A search was conducted and evidence was
found indicating that Jones was engaged in the manufacturing of
methamphetamine.
The items found included iodine crystals,
lighter fluid, mason jars, a gallon container of iodine, and
suspected manufacturing residue.
On September 10, 2004, Jones was indicted by the
Breckinridge County grand jury on one count each of
manufacturing methamphetamine, first degree possession of a
controlled substance, and possession of drug paraphernalia.
On
January 7, 2005, defense counsel advised the court that he
intended to seek the suppression of the evidence obtained during
the June 10, 2004 search.
While no such motion was actually
filed, the circuit court considered the issue because of the
approaching trial date and entered an order on March 10, 2005
denying Jones’s request to suppress the evidence.
As a basis
for the order, the court found that at the time of the search,
Jones was on probation. One of the terms of the probation was
Jones’s waiver of his protection against warrantless searches
during the probationary period.
The court also found that the
search of Jones’s person was proper because it was a search
incident to his arrest, and because Jones stated that he had a
-3-
knife in his pocket thus availing Payne of the right to search
Jones to insure their mutual safety.
On March 30, 2005, Jones entered a conditional guilty
plea, subject to the reservation of his right to appeal the
suppression issue.
Under the terms of the agreement, Jones
pleaded guilty to the manufacturing count, and the possession
and paraphernalia charges were dismissed.
Jones was sentenced
to 10 years in prison, and this appeal followed.
The sole issue for our consideration is Jones’s
contention that the trial court erred when it denied his motion
to suppress the evidence obtained during the search of his
person on June 10, 2004.
Jones argues that his probationary
status was not placed in the record in a timely manner and could
not form a basis for the court’s denial of his motion to
suppress.
He goes on to claim that even if he was subject to a
consent search as part of his probationary status, Payne was not
aware of Jones’s probationary status at the time of the search
and could not have relied on it as a basis for the search.
And
lastly, Jones maintains that his detention and search were not
valid under Terry v. Ohio.3
In sum, he maintains that the search
was unlawful and that the exclusionary rule should have been
applied to suppress the introduction of the seized evidence at
3
392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
-4-
trial.
He seeks an order reversing the order denying his motion
to suppress.
We have closely examined the record, the written
arguments and the law, and find no basis for reversing the order
denying Jones’s motion to suppress.
The order was proper for at
least two reasons, each of which was well-articulated by the
circuit court in the order on appeal.
First, it is
uncontroverted that Jones was on probation on June 10, 2004, and
that the terms of that probation included a waiver of his right
against warrantless searches during the probationary period.
This fact, taken alone, forms a sufficient basis for affirming
the order on appeal.
In addressing a probationer’s waiver of rights against
warrantless searches, the Kentucky Supreme Court has held that
“[w]hile the reasonable search requirement of the Fourth
Amendment still applies, the requirement for a search warrant
supported by probable cause does not.”4
The record supports the
conclusion that the search of Jones’s person was reasonable, in
that Payne testified that Jones was nervous and shaking, kept
reaching toward the pocket where the methamphetamine was found,
did not keep his hands on the hood of the vehicle as directed,
was found to be operating a vehicle with expired registration
4
Wilson v. Commonwealth, 998 S.W.2d 473, 474 (Ky. 1999).
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and license, and stated that he was in possession of a
pocketknife.
Jones notes that Payne was not aware of his
probationary status at the time of the search, and argues that
this fact operates to remove his probationary status and waiver
as a basis for the search.
This argument is not persuasive.
The cases relied upon by Jones in support of this argument are
distinguishable from the facts at bar, and Jones has not
overcome the strong presumption that the circuit court’s ruling
on this issue was proper.5
As a probationer, Jones’s waiver of
rights was effective irrespective of when Payne learned of it.
The second basis for denying Jones’s motion to
suppress was the circuit court’s finding that an arrest occurred
at the moment Jones was placed in handcuffs.
After the arrest,
Payne conducted a pat down search whereupon Payne found the film
canister containing the powder.
Such a search is wholly proper
as a search incident to arrest,6 and the circuit court properly
so found.
Thus, even if Jones’s waiver of rights as a
probationer was invalid or otherwise ineffective under the facts
at bar, the search was still proper after Jones was taken into
custody.
5
City of Louisville v. Allen, 385 S.W.2d 179 (1964).
6
Davis v. Commonwealth, 120 S.W.3d 185 (Ky.App. 2003), citing United States
v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973).
-6-
Lastly, it is worth noting that circuit court
expressly found that any statements made by Jones after being
detained, but before being advised of his Miranda rights,
including Jones’s admission that the canister contained
methamphetamine, would be excluded from admission into evidence
if the matter proceeded to trial.
This conclusion of law was
proper, and has no bearing on Jones’s claim that the search was
unlawful.
For the foregoing reasons, we affirm the order of the
Breckinridge Circuit Court holding that evidence obtained during
the search of Jones’s person and residence was admissible.
BUCKINGHAM, JUDGE, CONCURS.
DYCHE, JUDGE, CONCURS IN RESULT ONLY.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Alec G. Stone
Brandenburg, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
William Robert Long, Jr.
Assistant Attorney General
Frankfort, Kentucky
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