FENTRESS (JAMES STACY) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: JUNE 27, 2008; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2006-CA-002453-MR
JAMES FENTRESS
v.
APPELLANT
APPEAL FROM GRAYSON CIRCUIT COURT
HONORABLE SAM H. MONARCH, JUDGE
ACTION NO. 06-CR-00056
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
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BEFORE: CAPERTON, LAMBERT, AND THOMPSON, JUDGES.
CAPERTON, JUDGE: James Fentress (Fentress) brings this appeal from a
November 19, 2006, judgment of the Grayson Circuit Court, the Honorable Sam
H. Monarch, presiding, whereby Fentress pled guilty, conditionally, to first-degree
possession of a controlled substance (methamphetamine), possession of drug
paraphernalia second or subsequent offense, and possession of marijuana. After a
thorough review, we affirm.
On December 22, 2005, two deputies, Deputy Blanton and Deputy
Henderson, of the Grayson County Sheriff's Office were dispatched to serve an
arrest warrant upon Sharon McCloud (McCloud). While the arrest warrant from
the Hardin District Court listed McCloud’s address as 406 West Chestnut,
Leitchfield, Kentucky, one of the deputies believed McCloud had recently moved
to Claggett Road. Deputy Henderson was familiar with the location of McCloud's
residence as he had previously placed the residence under surveillance for
suspicious drug activity and later testified that this was not the first time that they
had to serve papers on McCloud. The deputies proceeded to Claggett Road and
arrested McCloud at the residence. Upon arresting McCloud she identified her
residence as 460 Claggett Road and identified the residents as herself and Fentress.
The deputies noticed a mason jar sitting beside a burn-barrel near the back of the
residence which contained a paper towel with pink residue on it, which they
believed to be pseudoephedrine, in addition to several cans of starting fluid beside
the barrel.
Deputy Blanton then checked the Wal-Mart records for
pseudoephedrine sales. Based on this record, the deputy understood that both
Fentress and McCloud had purchased two (2) boxes of forty-eight-count (48) of
pseudoephedrine. The information from the Wal-Mart records combined with
Deputy Blanton’s observations during the arrest of McCloud led to the issuance of
a search warrant for the Claggett Road residence. The affidavit for the search
warrant listed the Fentress/McCloud residence as 460 Claggett Rd. Leitchfield, KY
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42754. The description of the residence was that of a faded brown and white
single wide trailer with sheet metal under pinning; the occupants of the trailer were
listed as James Fentress and Sharon McCloud; and it was noted that there was a
silver Ford Ranger extended cab sitting in the driveway. The search warrant
likewise listed the property as 460 Claggett Road but noted that there were only
two mailboxes at the end of the road, 424 and 460,1 and that the residence was the
first trailer on the right. The search of the residence yielded evidence which
resulted in the Grayson County grand jury indicting both Fentress and McCloud.
Fentress then filed a motion to suppress the evidence, in which McCloud joined.
The suppression hearing focused on two errors contained in the
affidavit for the search warrant. First, Fentress claims that the address searched
was not the address stated in the affidavit and search warrant. At the hearing
Fentress testified that his trailer was actually located at 456 Claggett Road and that
460 Claggett Road was a different residence belonging to Phillip Troublefield.
Fentress also testified that where the driveways met Claggett Road there used to be
three mailboxes, 424, 456, and 460, but the previous resident had removed the mail
box and now Fentress received his mail at a post office box. Second, Fentress
claimed that the amount of pseudoephedrine bought by him was different than
what was contained in the affidavit for the search warrant. Instead of two (2)
boxes of forty-eight-count (48) of pseudoephedrine, the correct amount was
actually two (2) packages of twenty (20) pills each for a total of 4.8 grams.
1
This was based on the deputy’s prior observations.
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Deputy Blanton testified to the information contained in the affidavit
and that the information therein was stated to the best of his knowledge as being
complete and accurate, and that he had no intention to mislead the magistrate who
signed the search warrant. Deputy Blanton testified that he must have misread the
Wal-Mart pseudoephedrine log and that the forty-eight (48) pill count per box
mistake must have come from the total 4.8g read out.2 Deputy Blanton also
testified that Phillip Troublefield lived at a nearby residence to Fentress and had
told Blanton that both he and Fentress had the same 460 Claggett Road address.
The deputy testified that the residence identified descriptively in the search warrant
and affidavit was not Troublefield’s residence.
The trial court denied the motion to suppress noting that the residence
listed to be searched was sufficiently described and that any error in the mailing
address was immaterial. The court further noted that the address at which rural
mail is received is not precise and it is not unusual for multiple families to receive
mail at the same address. As to the wrong amount of pseudoephedrine purchased
by Fentress, the court found that this too was immaterial. First, the log from WalMart was difficult to read. Second, the magistrate probably noted that Fentress
purchased two boxes of cold capsules and that McCloud did the same within
minutes of Fentress’s purchase. Third, there was no evidence to formulate a belief
that the officer attempted to mislead the magistrate in any way, and that exclusion
2
We also note that the Wal-Mart read out is confusing.
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of the incorrect information still provided enough information to establish probable
cause in the mind of most magistrates.
Fentress then entered a conditional plea of guilty. This appeal based
on the denial of the suppression motion followed.3
Fentress argues that striking the two materially false statements, i.e.,
the address and the quantity of pseudoephedrine purchased, in the affidavit for the
search warrant prevents a finding of probable cause. Fentress then argues that the
lack of probable cause requires exclusion of the evidence seized pursuant to the
search warrant. We disagree.
Our standard when reviewing a trial court's decision on a motion to
suppress evidence is two pronged. First, we initially look to whether the trial
court's findings of fact are supported by substantial evidence. If the findings of
fact are supported by substantial evidence, such findings are conclusive. See RCr
9.78 and Adcock v. Commonwealth, 967 S.W.2d 6, 8 (Ky. 1998). Second, we 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 (Ky.App. 2002); see also Nichols v. Commonwealth, 186
S.W.3d 761 (Ky.App. 2005).
McCloud likewise entered a conditional plea of guilty and appealed to this Court. This Court
affirmed the denial of the suppression motion in McCloud v. Commonwealth of Kentucky, No.
2006-CA-002498-MR, Oct. 5, 2007. McCloud’s motion for discretionary review is presently
pending before the Supreme Court of Kentucky in 2007-SC-000804-D.
3
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It is fundamental that a search warrant may only be issued upon a
finding of probable cause. See Dixon v. Commonwealth, 890 S.W.2d 629
(Ky.App. 1994). Probable cause exists for the issuance of a search warrant if there
is a fair probability that contraband or evidence of criminal activity will be found
in the place to be searched. Moore v. Commonwealth, 159 S.W.3d 325 (Ky. 2005).
To successfully attack a facially sufficient affidavit, the defendant must
demonstrate: (1) that the affidavit contains intentionally or recklessly false
statements; and (2) the affidavit, purged of its falsities, would not be sufficient to
support a finding of probable cause. Commonwealth v. Smith, 898 S.W.2d 496,
503 (Ky.App. 1995).
In the case sub judice, the trial court addressed the statements made
by Deputy Blanton in the affidavit for the search warrant and whether the affidavit,
purged of falsities, would be sufficient to support a finding of probable cause. The
trial court found that Deputy Blanton did not intend to mislead the magistrate in
the issuance of the search warrant. The trial court also found that Deputy Blanton's
affidavit, purged of the inaccurate information would still be sufficient to support a
finding of probable cause. We have reviewed the record; the trial court’s findings
are supported by substantial evidence in the record and, therefore, are conclusive.
RCr 9.78.
The Fourth Amendment of the U.S. Constitution and Section 10 of the
Kentucky Constitution mandate that a search warrant must describe with
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particularity the place to be searched.4 This particularity requirement is satisfied if
the description in the search warrant enables the officer executing the warrant to
identify the place to be searched with reasonable effort.5 Duff v. Commonwealth,
464 S.W.2d 264 (Ky. 1971); Commonwealth v. Smith, 898 S.W.2d 496 (Ky.App.
1995).
The trial court addressed the inaccuracy of the address in the affidavit
for search warrant and the search warrant itself. In so addressing, the trial court
found that both Phillip Troublefield and McCloud indicated that the
Fentress/McCloud trailer’s address was 460 Claggett Road; the same address used
by Troublefield. Further, we note that there is no evidence in the record, nor was it
argued, that the incorrect address led to confusion in serving the search warrant.
Thus, the trailer to be searched must have been sufficiently described to
differentiate it from the surrounding residences. There was no evidence in the
record that the individual residences were numbered as were the mailboxes. If the
individual residences had been numbered and such numbering thereon not been
consistent with the description given, then confusion may have arisen as to which
residence was to be searched; this was not the case. Therefore, the particularized
description of the trailer sufficiently described the residence to be searched and the
The Kentucky Supreme Court has recognized that the protection afforded by Section 10 of the
Kentucky Constitution against unreasonable search and seizure is coextensive with the protection
afforded by the Fourth Amendment of the U.S. Constitution. LaFollette v. Commonwealth, 915
S.W.2d 747 (Ky. 1996).
4
In Commonwealth v. Martin, 280 S.W.2d 501 (Ky. 1955) the Court held that in rural
communities it is “often sufficient if the owner or the occupant of a house or farm is named and
the premises described by reference to another farm or a stream or even a nearby town.” Id. at
502.
5
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inaccuracy of the address, in this case, was immaterial. We agree with the trial
court that the physical description of the property satisfies the particularity
requirement.
Based on our review, we find that the trial court’s findings of fact
were based on substantial evidence and that the trial court properly applied the law
to those facts. Therefore, we affirm the judgment of the Grayson Circuit Court, the
Hon. Sam H. Monarch, Judge, presiding.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Samuel N. Potter
Frankfort, Kentucky
Gregory D. Stumbo
Attorney General
Samuel Floyd, Jr.
Assistant Attorney General
Frankfort, Kentucky
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