CHARLES SOUTHERS v. COMMONWEALTH OF KENTUCKY
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RENDERED:
DECEMBER 1, 2006; 2:00 P.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2005-CA-001685-MR
CHARLES SOUTHERS
v.
APPELLANT
APPEAL FROM BREATHITT CIRCUIT COURT
HONORABLE WILLIAM LARRY MILLER, JUDGE
INDICTMENT NO. 03-CR-00015-001
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
VACATING AND REMANDING
** ** ** ** ** ** ** **
BEFORE: TAYLOR, JUDGE; ROSENBLUM,1 SENIOR JUDGE; MILLER,2 SPECIAL
JUDGE.
ROSENBLUM, SENIOR JUDGE:
Charles Southers appeals from an order
of the Breathitt Circuit Court denying his October 17, 2003,
motion to suppress evidence.
Finding error, we vacate and
remand.
1
Senior Judge Paul W. Rosenblum, 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
Retired Judge John D. Miller, sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution.
As a preliminary note, the question of whether
Southers has “standing” to challenge the search has been raised.
However, the trial court made no determination of the issue;
therefore, we will not consider it.
If the Commonwealth wanted
to make standing an issue, it should have secured a ruling from
the trial court.
See e.g., Clark v. Commonwealth, 868 S.W.2d
101, 102-103 (Ky.App. 1993)(declining to reach a standing issue
where the record was not complete as to that issue).
On January 8, 2003, Southers, along with his
girlfriend, Lynnis Landrum, were staying at the motel room of a
friend, Greg Swift.
At approximately 10:26 p.m. that evening,
Southers and Landrum were together in the room, although Swift
was not present.
About that time, they were visited by an
acquaintance named Janie Turner.
After a brief visit, Turner
left the room.
A few minutes prior, Officer Barrett and Officer Brian
Haddix had been separately dispatched to the motel on a report
that one Roger Wyatt was intoxicated and disturbing the peace by
randomly knocking on the doors of other guests.
Upon arrival,
the officers split up and began searching for Wyatt.
Apparently, neither officer found Wyatt.
During his search for Wyatt, and while still separate
from Officer Haddix, Officer Barrett happened upon Turner
exiting Swift’s room (occupied at that time by Southers and
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Landrum).
room.
Officer Barrett asked Turner if Wyatt was inside the
Turner, holding the door open several inches, replied
that he was not inside and that the room belonged to Swift.
He
then asked her who was inside the room and Turner responded,
“friends,” but did not name the parties inside the room.
Turner
then opened the door further and yelled inside, “the police is
here – the police is here.”
At no time during this exchange
could Officer Barrett see inside the room, except for the inside
wall.
Officer Barrett became suspicious and edged Turner to
the side and out of the way of the door.
Without announcing
himself, Officer Barrett then further opened the door which
allowed him to observe Southers and Landrum.
Officer Barrett
testified that he was justified in opening the door to look
inside because he “wanted to make sure who was in the room, in
case they were burglarizing the apartment or doing something
against [Swift’s] will in the apartment.”
He could see Southers
and Landrum sitting on the bed in the room and a baggie
containing syringes and orange caps.
Upon seeing the officer,
Southers jumped from the bed and entered the bathroom.
Officer
Barrett followed and a struggle ensued as he tried to prevent
Southers from flushing an object down the toilet.
By this time,
Officer Haddix had also entered the room and helped subdue
Southers.
Southers had been trying to flush a pill bottle
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containing 200 milligrams of morphine.
Southers and Landrum
were arrested.
On April 25, 2003, a Breathitt Circuit Court grand
jury indicted Southers, charging him with possession of a
controlled substance, possession of drug paraphernalia, failure
to possess a controlled substance in the original container, and
resisting arrest.3
Southers represented himself at trial.
At a
hearing on October 10, 2003, Southers made an oral motion to
suppress the evidence in the case, arguing that the officers
lacked probable cause to enter the room.
The suppression
hearing was held on October 17, 2003, with Officer Barrett as
the only witness called to testify.
Following the officer’s
testimony, the court denied Southers’ motion and set a trial
date.
The trial commenced on May 10, 2005 and again Southers
acted pro se.
The Commonwealth moved to dismiss the failure to
possess a controlled substance in the original container charge.
The motion was granted and at the close of the Commonwealth’s
case, Southers moved for a directed verdict.
was denied.
Southers’ motion
Following deliberations, the jury found Southers
guilty of possession of a controlled substance only.
was sentenced to two and a half years.
3
Southers
Southers brings this
Kentucky Revised Statutes 218A.1415, 218A.500, 218A.210 and 520.090,
respectively.
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appeal arguing that the court erred in denying the motion to
suppress.
Our standard of review of the trial court’s decision
on a motion to suppress requires that we first determine whether
the trial court’s findings of fact are supported by substantial
evidence.
2002).
Commonwealth v. Neal, 84 S.W.3d 920, 923 (Ky.App.
If they are, then they are conclusive.
See RCr. 9.78.
Based on those findings, we must then conduct a de novo review
of the trial court’s application of law to those facts to
determine whether its decision is correct as a matter of law.
Id.; Adcock v. Commonwealth, 967 S.W.2d 6, 8 (Ky. 1998);
Commonwealth v. Opell, 3 S.W.3d 747, 751 (Ky.App. 1999).
Here, the trial court’s findings of fact are supported
by substantial evidence gathered from the testimony of Officer
Barrett.
We therefore consider the trial court’s findings of
fact conclusive.
However, with regard to the trial court’s
conclusion that probable cause existed for the officer to enter
the motel room, we find that the application of the law to those
facts was erroneous as a matter of law.
We therefore vacate and
remand.
Southers contends that the court erred when it denied
his suppression motion and found that probable cause existed for
Officer Barrett to enter the motel room.
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We agree.
Whether probable cause exists is determined by
examining the totality of the circumstances.
Hammond, 351 F.3d 765 (6th Cir. 2003).
United States v.
Furthermore, the test
for probable cause is whether there is a fair probability that
contraband or evidence of a crime will be found in a particular
place.
See United States v. Miller, 314 F.3d 265 (6th Cir.
2002), reh'g and suggestion for reh'g denied, cert. denied, 539
U.S. 908, 123 S.Ct. 2261, 156 L.Ed.2d 121.
Here, Officer Barrett testified at the suppression
hearing that he wanted to look in the room in case it was being
burglarized or in case someone inside was doing something
against Swift’s will.
However, Officers Barrett and Haddix
initially went to the motel upon the report that an intoxicated
individual was randomly knocking on guest doors.
Nothing in
that report suggested to the officers that a burglary was in
progress at the motel.
Further, although Turner’s answers to
Officer Barrett were evasive, her conduct was not.
Turner was
not attempting to close the door on Officer Barrett to prevent
him from seeing inside.
Indeed, she kept the door at least
partially open the entire time Officer Barrett questioned her.
Officer Barrett observed Turner say only that “the police is
here.”
Officer Barrett did not testify that there was evidence
of forced entry.
Additionally, Officer Barrett’s conduct did
not indicate that he thought Turner was engaged in criminal
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activity because he made no attempt to detain her or perform a
“pat-down” search for his own safety.
Moreover, Officer
Barrett’s testimony did nothing other than establish that he had
a vague suspicion that a burglary, or some other crime, may have
been in progress.
Under the totality of the circumstances those
facts are insufficient to establish probable cause to believe
that criminal activity was afoot.
Thus, we are of the opinion
that the trial court erred in denying Southers’ motion to
suppress.
Contrary to Southers’ position, the Commonwealth
argues that exigent circumstances existed to justify Officer
Barrett’s entry into the motel room.
We disagree.
Absent
probable cause and exigent circumstances, law enforcement
officers may not enter an individual’s private residence4 in
order to conduct a warrantless search.
Commonwealth v. McManus,
107 S.W.3d 175 (Ky. 2003)(emphasis ours).
See also Commonwealth
v. Hatcher, 199 S.W.3d 124 (Ky. 2006); United States v. Brown,
449 F.3d 741 (6th Cir. 2006).
Consequently, warrantless
searches, like the one conducted by Officer Barrett, require
both probable cause and exigent circumstances.
Even if an
exigent circumstance existed, it does not excuse the burden on
4
Kentucky courts, adopting the rule in Stoner v. California, 376 U.S. 483, 84
S.Ct. 889, 11 L.Ed.2d 856 (1964), have held that occupants of hotel and motel
rooms are entitled to the same protections against unreasonable searches and
seizures. See Commonwealth v. Johnson, 777 S.W.2d 876 (Ky. 1989).
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the Commonwealth to show that probable cause justifying the
search was present.
Because it would be unreasonable for an
officer in Barrett’s shoes to believe a burglary was in progress
(or any other crime), exigent circumstances did not exist that
justified the warrantless entry.
Thus, the trial court erred in
denying Southers’ motion to suppress.
The Commonwealth also contends that Officer Barrett
had probable cause to enter the motel room because the drug
paraphernalia on the bed was in plain view from the doorway.
We
are cognizant of the statutory authorization for an officer to
make an arrest without a warrant when certain crimes are
committed in his presence.5
However, in this case, Officer
Barrett was able to see the drug paraphernalia in plain view
only after opening the door to the motel room in violation of
the warrant requirement.
Because Officer Barrett had no
justifiable reason to enter the room without first obtaining a
warrant, the fruits (i.e., the drugs and paraphernalia) of the
illegal entry should have been suppressed.
Finally, Southers argues that the trial court erred
when it denied his motion for directed verdict of acquittal
following presentation of the Commonwealth’s case in chief.
Because we vacate and remand on other grounds, we need not
address this issue.
5
See KRS 431.005(1)(c) and (d).
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For the foregoing reasons, the judgment of the
Breathitt Circuit Court is vacated and remanded for further
proceedings consistent with this opinion.
MILLER, SPECIAL JUDGE, CONCURS.
TAYLOR, JUDGE, DISSENTS WITHOUT SEPARATE OPINION.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Angela Johnson
Frankfort, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
Louis F. Mathias, Jr.
Assistant Attorney General
Frankfort, Kentucky
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