ALLEN (RUSSELL) VS. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: AUGUST 8, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE KATHLEEN VOOR MONTANO, JUDGE
ACTION NO. 04-CR-001988
COMMONWEALTH OF KENTUCKY
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BEFORE: CAPERTON AND STUMBO, JUDGES; BUCKINGHAM,1 SENIOR
BUCKINGHAM, SENIOR JUDGE: Russell Allen was charged in the Jefferson
Circuit Court with several drug offenses as a result of an incident that occurred at a
residence. He moved the court to suppress the statements he made to the officers
at the scene on the ground that he had not been given a Miranda warning. See
Senior Judge David C. Buckingham sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The
court conducted a suppression hearing and denied the motion. Allen then entered a
conditional guilty plea to the offenses as amended by plea agreement, and this
appeal followed. We affirm.
The facts set forth below are those found by the trial court in its order
denying Allen’s suppression motion. On February 26, 2004, Officer Larry Smith
and a fellow officer of the Louisville Metro Police Department responded to a call
regarding a landlord-tenant dispute. When the officers approached the door of the
residence, they smelled marijuana. The main door of the residence was open, but
the screen door was closed. The officers knocked and were admitted by a man
inside the residence.
Once inside, the officers observed from 8 to 10 people in the house
and saw marijuana on the kitchen table. The officers asked the people to identify
themselves. Officer Smith testified that he did not remember if Allen produced an
identification card or simply gave his name. According to Allen, he refused to
give his name to the police, and they only discovered it by searching a bag he was
holding that contained a prescription bottle with his name on it.
After learning Allen’s name, the officers discovered that there was an
out-of-state warrant for his arrest. Allen was handcuffed and seated on the couch
while the officers searched the bag he had been holding. Varying amounts of
narcotics were found inside the bag. Another person at the residence told Officer
Smith that Allen also had a gun. After a further search, a gun was found under the
cushion of the couch where Allen had been sitting. It is undisputed that Allen had
not been read his Miranda rights at this time.
A conversation then ensued between the officers regarding which of
the individuals in the house would be taken to jail. Officer Smith told the female
tenant of the residence and an individual named Thomas Henderson that they
would be going to jail. He told the female tenant that she was going because there
were drugs in the house and she was the tenant. Purportedly in an attempt to
protect the woman, Allen told officers that the drugs in the residence were his and
that only he should go to jail.
Allen was indicted for trafficking in a controlled substance in the first
degree while in possession of a firearm, possession of a firearm by a convicted
felon, trafficking in marijuana, carrying a concealed deadly weapon, and for being
a persistent felony offender in the second degree. After the court denied his
motion to suppress the statements, Allen entered a plea of guilty conditional on the
outcome of this appeal of the court’s ruling.
Appellate review of a motion to suppress is governed by
the standard expressed by the Supreme Court of the
United States in Ornelas v. United States and adopted by
this Court in Adcock v. Commonwealth. The approach
established by the Supreme Court of the United States is
a two-step process that first reviews the factual findings
of the trial court under a clearly erroneous standard. The
second step reviews de novo the applicability of the law
to the facts found.
Welch v. Commonwealth, 149 S.W.3d 407, 409 (Ky. 2004).
Allen argues that the incriminating statements he made to police
should be suppressed because they were elicited from him without a prior Miranda
warning. “A Miranda warning is not required when a suspect is merely taken into
custody, but rather when a suspect in custody is subject to interrogation.” Watkins
v. Commonwealth, 105 S.W.3d 449, 451 (Ky. 2003). Allen contends that the
comments of the police to the female tenant threatening to take her to jail were in
effect a form of interrogation because he may have felt pressured to claim the
drugs were his in an attempt to assist the tenant who was protesting her innocence.
Interrogation has been defined to include “any words or
actions on the part of police (other than those normally
attendant to arrest and custody) that the police should
know are reasonably likely to elicit an incriminating
response from the suspect . . . focus[ing] primarily upon
the perceptions of the suspect, rather than the intent of
the police.” Rhode Island v. Innis, 446 U.S. 291, 301,
100 S.Ct. 1682, 1689, 64 L.Ed.2d 297 (1980).
Wells v. Commonwealth, 892 S.W.2d 299, 302 (Ky. 1995).
The pertinent facts of the case are not in dispute. In applying the law
to the facts, the trial court found that Allen’s incriminating statements were made
voluntarily and not as the result of any interrogation by the police officers. We
agree. There is no indication that the officers should have known that their
remarks to the female tenant were reasonably likely to elicit such an altruistic
response from Allen, nor is there any indication that they should have been
perceived as such by Allen.
The order denying Allen’s motion to suppress is therefore affirmed.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
J. Brandon Pigg
Assistant Public Advocate
Michael L. Harned
Assistant Attorney General