ESTILL PERKINS, JR. v. COMMONWEALTH OF KENTUCKY
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RENDERED: OCTOBER 5, 2007; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2006-CA-000934-MR
ESTILL PERKINS, JR.
v.
APPELLANT
APPEAL FROM KNOTT CIRCUIT COURT
HONORABLE JOSEPH F. BAMBERGER, SPECIAL JUDGE
ACTION NO. 05-CR-00118
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS, CHIEF JUDGE; ACREE, JUDGE; HENRY,1 SENIOR JUDGE.
COMBS, CHIEF JUDGE: Following a trial in the Knott Circuit Court, a jury found
Estill Perkins, Jr., guilty of a number of drug-related offenses. The court sentenced him
to five years’ imprisonment. He appeals that judgment. After our review, we affirm.
On February 16, 2004, at approximately 7:34 p.m., the Kentucky State
Police (KSP) received an anonymous call from a woman who alleged that Perkins had
stashed a large amount of cocaine, marijuana, and pills under his bed in the back
1
Senior Judge Michael L. Henry sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
bedroom of his house. She also indicated that she had been to Perkins’s residence and
had seen him cutting a block of cocaine on a coffee table in the living room. The KSP
had previously received other complaints regarding Perkins.
At approximately 8:30 p.m, KSP officers Richard Miller, Jody Sims, and
David Banks went to Perkins’s house to conduct a “knock and talk” visit. The officers
knocked on the door and were greeted by Perkins’s son, Malcolm, who appeared to be
fifteen or sixteen years of age. Malcolm was in the living room/kitchen area playing with
a remote-controlled car. When Miller asked Malcolm where his father was, Malcolm
replied that he was in his bedroom. Miller then asked Malcolm if he minded if they
talked to his father. Not only did Malcolm not object, but he invited the officers to enter
and then directed them towards Perkins’s bedroom. The door to the bedroom was open,
and the officers found Perkins sitting on his bed eating a sandwich. Perkins told the
officers to “come on in, boys.”
Miller said hello to Perkins, introduced himself, and told Perkins that they
had received a complaint regarding drug activity at his house. Perkins told them that he
had stopped selling drugs. Baker saw a baggie lying near the bed, which he suspected to
contain marijuana residue. Miller asked Perkins to give them any drugs that he
possessed. Miller stated that if Perkins would be honest with them, he would not be
arrested immediately and instead would be indicted later. Perkins agreed that he would
give them what he had. He reached into his pocket and pulled out a baggie that appeared
to contain cocaine. He said that the baggie’s contents were for his personal use only.
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Miller then asked Perkins for permission to search his house, and Perkins
consented. Miller noticed a safe in the bedroom; Perkins said that it contained money
and documents. Perkins produced a key and opened the safe, which contained
$9,000.00, another baggie containing cocaine, some pills, and a set of scales. Because
Perkins was cooperative, the officers refrained from searching the rest of the house and
did not arrest him as they had promised.
More than six months later, on September 3, 2004, the Knott County Grand
Jury indicted Perkins on one count of first-degree possession of a controlled substance, a
Class D felony pursuant to Kentucky Revised Statutes (KRS) 218A.1415; one count of
possession of drug paraphernalia, first offense, a Class A misdemeanor pursuant to KRS
218A.500(2); one count of third-degree possession of a controlled substance, a Class A
misdemeanor pursuant to KRS 218A.1417; and one count of possession of marijuana, a
Class A misdemeanor pursuant to KRS 218A.1422. On October 28, 2004, Perkins
appeared in court with counsel and entered a plea of not guilty to the charges set forth in
the indictment. On September 6, 2005, the grand jury issued a superseding indictment
charging Perkins on one count of first-degree trafficking in a controlled substance, a
Class C felony pursuant to KRS 218A.1412, and another count of third-degree possession
of a controlled substance. The first-degree and third-degree possession charges in the
original indictment were dismissed later by agreement, and the remaining counts were
consolidated.
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Following a jury trial held on January 10 and 11, 2006, Perkins was found
guilty of first-degree possession of a controlled substance (a lesser-included offense of
the trafficking count), third-degree possession of a controlled substance, possession of
drug paraphernalia, and possession of marijuana. On March 15, 2006, the trial court
entered a judgment consistent with the jury’s verdict and sentenced Perkins to a prison
sentence totalling five years. Perkins’s post-trial motions were denied. This appeal
followed.
Perkins first argues that the trial court erred by denying his motion to
suppress all evidence resulting from the KSP’s knock and talk and from the subsequent
warrantless search at his residence.
An appellate court's 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. If they are, then they are
conclusive. Based on those findings of fact, we must then
conduct a de novo review of the trial court's application of the
law to those facts to determine whether its decision is correct
as a matter of law.
Commonwealth v. Neal, 84 S.W.3d 920, 923 (Ky.App. 2002). In conducting our review,
our proper role is to review findings of fact only for clear error while giving due
deference to the inferences drawn from those facts by the trial judge. Commonwealth v.
Whitmore, 92 S.W.3d 76, 79 (Ky. 2002), quoting Ornelas v. United States, 517 U.S. 690,
699, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996). After reviewing the record, we
conclude that the trial court’s findings of fact were indeed supported by substantial
evidence. Accordingly, our attention is focused solely upon “whether the rule of law as
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applied to the established facts is or is not violated.” Adcock v. Commonwealth, 967
S.W.2d 6, 8 (Ky. 1998), quoting Ornelas, 517 U.S. at 697, 116 S.Ct. at 1662.
Following a suppression hearing conducted on May 12, 2005, the trial court
entered findings of fact and conclusions of law denying Perkins’s motion to suppress the
evidence taken from his house. The court found that the consent of his son, Malcolm, to
enter the house was made voluntarily and that it was reasonable for the officers to believe
that Malcolm had the apparent authority to consent to their entry into the residence. The
court also found that Perkins voluntarily admitted to the officers that he possessed illegal
substances and that he then voluntarily consented to a search of his person and of his
bedroom.
The Fourth Amendment of the United States Constitution generally
prohibits warrantless entry into a person’s home. However, an exception to the warrant
requirement exists if valid consent has been obtained from a third party, generally one
who shares common authority over the premises to be searched.
[D]etermination of consent to enter must “be judged against
an objective standard: would the facts available to the officer
at the moment . . . ‘warrant a man of reasonable caution in the
belief’” that the consenting party had authority over the
premises?
Illinois v. Rodriguez, 497 U.S. 177, 188, 110 S.Ct. 2793, 2801, 111 L.Ed.2d 148 (1990),
quoting Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968).
In analyzing the validity of a third-party consent, we must determine whether a police
officer could reasonably believe from the context involved that the consenting party had
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common authority over the premises. Commonwealth v. Nourse, 177 S.W.3d 691, 696
(Ky. 2005). Good faith on the part of the officers may serve as a hedge against honest
mistake as to appearances.
The Constitution is no more violated when officers enter
without a warrant because they reasonably (though
erroneously) believe that the person who has consented to
their entry is a resident of the premises, than it is violated
when they enter without a warrant because they reasonably
(though erroneously) believe they are in pursuit of a violent
felon who is about to escape.
Rodriguez, 497 U.S. at 186, 110 S.Ct. at 2800.
Many courts – including our own federal Sixth Circuit – have recognized
the legitimacy of knock-and-talk encounters at the home of a suspect or another person
who is believed to possess information about an investigation. United States v. Thomas,
430 F.3d 274, 277 (6th Cir. 2005). The presumption of propriety in knock-and-search
visits was well summarized by the Ninth Circuit Court of Appeals in Davis v. United
States, 327 F.2d 301 (9th Cir. 1964):
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 the honest intent
of asking questions of the occupant thereof - whether the
questioner be a pollster, a salesman, or an officer of the law.
Id. at 303. We agree that there is nothing inherently unconstitutional or even
inappropriate about the use of the knock-and-talk technique as an investigatory tool.
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Nonetheless, knock-and-talk encounters inevitably imply constitutional ramifications. As
the Michigan Court of Appeals aptly stated:
Anytime the police initiate a procedure, whether by search
warrant or otherwise, the particular circumstances are subject
to judicial review to ensure compliance with general
constitutional protections. Accordingly, what happens within
the context of a knock and talk contact and any resulting
search is certainly subject to judicial review. For example, a
person's Fourth Amendment right to be free of unreasonable
searches and seizures may be implicated where a person,
under particular circumstances, does not feel free to leave or
where consent to search is coerced. Thus, whenever the
procedure is utilized, ordinary rules that govern police
conduct must be applied to the circumstances of the particular
case. Consequently, we review the circumstances of this case
against general protections guaranteed by the constitution.
(Emphasis added.)
People v. Frohriep, 637 N.W.2d 562, 566-67 (Mich.Ct. App. 2001). The validity of the
third-party consent is critical to a determination of the constitutionality of the entry by the
police.
Perkins contends that the officers improperly entered his home based upon
the permission of his minor son, who appeared to the officers as being fifteen or sixteen
years of age. However, numerous courts have held that a high-school-aged child may be
presumed to have at least some authority to allow entry into a home. See, e.g., Doyle v.
State, 633 P.2d 306, 309 (Alaska Ct.App. 1981); People v. Hoxter, 89 Cal.Rptr.2d 259,
264-65, 75 Cal.App.4th 406, 412-13 (Cal.Ct.App. 1999).
The facts of this case are highly similar to those involved in State v. Ayala,
873 P.2d 656 (Ariz.Ct.App. 1993). In Ayala, police received an anonymous tip that the
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defendant and another person were responsible for a breakin at a local business. Officers
appeared at the defendant’s house the following morning without a warrant.
They were
met at the door by the defendant’s fifteen-year-old brother. The boy readily opened the
door and motioned to the officers to come in. They followed the boy into the house and
down the hall to the bedroom. It was unclear whether or not the boy had motioned to
them to come with him to the bedroom. However, the boy did open the bedroom door,
awoke the defendant, and told him that someone was looking for him. At that point, the
officers told the defendant that they wanted to question him about the breakin. The
defendant subsequently confessed and then showed the officers where some stolen
merchandise was hidden in the house.
The Arizona Court of Appeals concluded that the consent to enter given by
the defendant’s fifteen-year-old brother was valid. Consequently, the confession and the
evidence obtained from the defendant did not warrant suppression. The Arizona court
placed heavy emphasis on the purpose of the police officers’ visit and the totality of the
circumstances surrounding the visit:
[T]he purpose of the officers' visit was not to search the
premises, but rather to talk to the defendant. Additionally,
there was no superior demonstration of power or authority to
support a finding that the entry was coerced, rather than the
natural response of an appropriately mature and responsible
youth.
. . . The officers' purpose was to speak with appellee, not to
search the premises. They first asked to speak with a parent,
and then asked to speak with appellee. They did not request
permission to enter; rather, a teenage boy admitted them into
the house in direct response to their inquiry as to appellee's
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whereabouts. Considering the circumstances as a whole, the
officers could reasonably have concluded that this adolescent
had the authority to consent to their entry into the house.
Id. at 657.
In the case before us, the testimony reflected that the officers similarly
made no effort to coerce or to deceive Malcolm into granting them entry. There was no
demonstration of power or show of force. Instead, they simply asked permission to speak
with Perkins, which Malcolm immediately granted without hesitation or question before
inviting them into the house. From this evidence, the trial court was justified in
concluding that Malcolm’s consent for the officers to enter was not coerced or
unauthorized. Perkins made no effort to object to the officers’ presence in his home. He
did not admonish his son for having admitted the officers nor did he attempt to revoke the
consent given by his son. We conclude that the officers acted reasonably in believing
that Malcolm had sufficient control and apparent authority over the premises to give valid
consent to their entry.
Perkins next argues that after the officers were allowed into his house, they
improperly proceeded to walk to his bedroom instead of remaining in the living room
area. He argues that they could not have reasonably expected that Malcolm’s consent to
their initial entry should have been construed as stretching farther into the house to a
bedroom not visible from the entrance. Consequently, he contends that the officers
should be considered to have exceeded the scope of the consent and that the evidence
taken from his bedroom should, therefore, be suppressed.
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During the suppression hearing, Banks testified that the officers followed
Malcolm through the kitchen and took a right turn down a hallway. Malcolm pointed to a
room on the left and stated, “He’s in there.” The door to the bedroom was open. Banks
also recalled that Malcolm had said, “Follow me” as he led the officers to the bedroom.
Miller, too, testified that Malcolm walked them back to Perkins’s bedroom. These facts
support the proposition that the officers never exceeded the scope of valid consent in
following Malcolm to his father’s bedroom. While this testimony was not presented until
trial, it constitutes more than substantial evidence in support of the trial court’s ruling to
deny the motion to suppress.
Perkins contends that the police should have obtained a search warrant
because they wholly expected to discover contraband which they would seize. He
acknowledges that the police had received numerous complaints about him – including
the call from the anonymous informant advising them that he possessed cocaine. He also
observed that Trooper Banks contacted two other units, including a K-9 unit, and met at a
shopping center to discuss strategy prior to proceeding to the Perkins residence. Thus,
Perkins argues that because the police had probable cause for a search, they should have
obtained a warrant instead of conducting a knock-and-talk visit.
In support of his argument, Perkins replies primarily upon United States v.
Chambers, 395 F.3d 563 (6th Cir. 2005), in which the Sixth Circuit Court of Appeals
granted a defendant’s motion to suppress evidence taken from his home during a
warrantless search because there had been probable cause for a warrant and that,
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therefore, a warrant should have been obtained. In Chambers, police had received
information about the defendant’s methamphetamine operation from a known and
reliable informant; as a result, they conducted extensive surveillance for three days on the
defendant’s home – including helicopter flybys. Id. at 566-67. Their surveillance:
. . . uncovered frequent nighttime visits to this remote
location by numerous people in cars, some with out-of-county
license plates - visits that Officer Freeman believed were
consistent with customers purchasing drugs from the meth lab
that the informant had described. In addition, at the trailer
home in this remote farming area, the officers observed that
Chambers was using surveillance cameras and several high
intensity spotlights to keep watch over the area - all of which
fully corroborated the confidential informant's report to the
police. There was now strong, indeed overwhelming,
evidence of multiple drug sales at the premises on a daily
basis, evidence supporting the informant's statements that a
meth lab was in frequent operation at the Chambers home.
Id. at 567. Three months after this surveillance, police received a call from an
anonymous person advising them that Chambers was cooking methamphetamine at his
home as the call was being placed.
Nonetheless, the police did not seek a search warrant. Instead, they visited
Chambers’s home to conduct a knock-and-talk visit. Meanwhile, they had contacted a
federal DEA task force agent and advised him to be ready for a search at the residence.
Three cars of armed deputies drove to the house. They knocked on a glass entry door of
the trailer home. A woman approached the glass door to answer the knock, but she
retreated when she saw that the police were at the door, calling out audibly that police
were there. The police heard footsteps inside the trailer as the woman went into another
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room. They then characterized the knock and the occupant's subsequent refusal to talk as
“exigent circumstances” that justified entry. They immediately went through the door
with guns drawn to begin their search. Id. at 567-68.
The Chambers court held that evidence taken from Chambers’s premises
should be suppressed. Although the government claimed that it lacked probable cause for
a search warrant, the court disagreed, noting that the officers had information from a
confidential informant, bolstered by their own extensive surveillance and evidence from
the anonymous caller. They had advised the DEA in advance of the impending search,
highlighting their intention aforethought to conduct a search. The court also noted the
fact that the police arrived in three cars and entered the home with their guns drawn.
“Knock and talk” was wholly pretextual under circumstances that clearly required a
warrant.
The facts in Chambers are highly distinguishable from the facts at issue in
this case. The only information that police had received about Perkins’s activities was an
anonymous tip from an unknown party. When he was questioned about whether he
expected to find contraband at Perkins's residence that evening, Banks responded that he
did not have a feeling one way or another – a sentiment that was seconded by Miller.
Under the facts of this case, probable cause was not so clearly established as to preclude
the reasonableness of a knock-and-search visit.
Perkins next argues that the trial court erred in denying his motion to
suppress evidence of the cocaine taken from his bedroom because it had been materially
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altered. He contends that the evidence was unreliable because two baggies of the
suspected cocaine were in the possession of the KSP crime lab on two separate occasions
– with different weights ascribed to the baggies on each occasion. Therefore, he claims
that the Commonwealth could not establish the proper chain of custody of the cocaine.
Perkins also argues that the evidence was unreliable because the crime lab reports
reflected that the nature of the contents of the baggies changed from one occasion to the
next. The first report indicated that the baggies contained cocaine; the second indicated
that they contained cocaine hydrochloride. In response, the Commonwealth claims that
this issue is not preserved for our review.
Perkins filed this motion to suppress on the morning of the first day of trial.
Declining to rule on the motion at that juncture, the trial court advised that it would rule
on the admissibility of the evidence as to chain of custody when it was presented at trial.
During trial, the cocaine was introduced into evidence. Perkins made no objection or
request for a ruling. The trial court accordingly made no formal ruling on the
admissibility of the cocaine. Our case law is well established that a failure to press a trial
court for a ruling or an admonition on an objection or on a motion for relief operates as a
waiver of that issue for purposes of appellate review. Hayes v. Commonwealth, 175
S.W.3d 574, 596 (Ky. 2005); Commonwealth v. Pace, 82 S.W.3d 894, 895 (Ky. 2002);
Dillard v. Commonwealth, 995 S.W.2d 366, 371 (Ky. 1999); Bell v. Commonwealth, 473
S.W.2d 820, 821 (Ky. 1971). Accordingly, as the trial court did not rule on Perkins’s
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motion to suppress, and as Perkins failed to demand such a ruling, Perkins is deemed to
have waived the issue.
Perkins last contends that the trial court erred by tendering a possession
instruction to the jury as a lesser-included offense of the pending trafficking charge. As
we observed earlier, the original indictment against Perkins included a count of firstdegree possession of a controlled substance. A second indictment was later returned
charging Perkins with first-degree trafficking in a controlled substance. On October 12,
2005, the Commonwealth filed a motion to consolidate the two indictments. In that
motion, the Commonwealth noted that the trafficking charge was actually “a superseding
indictment involving the same incident as it relates to the possession charge in the first
indictment.” The indictments were consolidated in a later order referencing an
agreement of the parties that the trafficking charge survived and the possession charge
was dismissed.
At trial, Perkins did not submit a possession instruction to the court as a
lesser-included offense of trafficking, nor did he request that such a possession
instruction be given. Nonetheless, the trial court gave a possession instruction as the
evidence presented warranted such an instruction. Perkins now argues that the trial court
erred in instructing the jury on possession because he did not request such an instruction
and because the original possession charge against him had been dismissed. The
Commonwealth argues that this argument is not properly preserved as required by
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Kentucky Rule of Criminal Procedure (RCr) 9.54(2). We have elected to address this
issue regardless of the arguably tentative nature of its preservation.
Our courts have long held that “[i]n a criminal case, it is the duty of the
court to prepare and give instructions on the whole law.” Lee v. Commonwealth, 329
S.W.2d 57, 60 (Ky. 1959). (Emphasis added.) This rule extends to any lesser-included
offenses that are supported or encompassed by the evidence. Houston v. Commonwealth,
975 S.W.2d 925, 929 (Ky. 1998). Therefore:
[i]t follows that the giving of an instruction on lesser-included
offenses when the evidence would permit a jury to rationally
find a defendant guilty of the lesser-included offense and
acquit him of the greater offense is not erroneous, even if
given over the defendant's objection.
Smith v. Commonwealth, 737 S.W.2d 683, 688 (Ky. 1987) (Emphasis added).
Our review of the record reflects that a jury reasonably might have found
Perkins guilty of possession of a controlled substance instead of trafficking in a
controlled substance. Perkins has cited no authority in support of his position that the
voluntary dismissal of the possession charge against him precluded the trial court from
subsequently tendering a possession instruction to the jury – especially since possession
is a lesser-included offense of trafficking and the evidence supported such an instruction.
While the trial court may not have had an obligation to tender a possession instruction to
the jury in the face of an objection by Perkins, its decision to do so was not erroneous. It
retained the discretion to so instruct. Id.
The judgment of the Knott Circuit Court is affirmed.
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ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Jeremy R. Morgan
Hazard, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
Matthew R. Krygiel
Assistant Attorney General
Frankfort, Kentucky
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