CABBIL (WILLIAM) VS. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: AUGUST 22, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
WILLIAM CABBIL, JR.
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE BARRY WILLETT, JUDGE
ACTION NO. 05-CR-002446 AND 06-CR-000378
COMMONWEALTH OF KENTUCKY
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BEFORE: LAMBERT AND MOORE, JUDGES; BUCKINGHAM, SENIOR
BUCKINGHAM, SENIOR JUDGE: William Cabbil, Jr., entered a conditional
guilty plea in the Jefferson Circuit Court to trafficking in a controlled substance
(heroin) in the first degree, criminal mischief in the first degree, illegal possession
of a controlled substance (hydrocodone) in the second degree, and possession of
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 Kentucky Revised Statutes
drug paraphernalia. He also pleaded guilty to being a persistent felony offender in
the second degree. The court sentenced Cabbil to serve ten years in prison. Cabbil
reserved the right to appeal the court’s denial of his motion to suppress the
evidence. We affirm.
A Louisville police detective, Lisa Doyle, received a tip from a
confidential informant on December 20, 2004, that a black male “in his forties”
who went by the name of Junne was selling illegal drugs out of the first-floor
apartment at 961 South Preston in Louisville. That apartment was Cabbil’s
residence. The informant was known to the detective and had provided reliable
information a number of times in the past. The informant stated that he (or she)
had been inside the apartment within 24 hours prior to providing the information
and had seen illegal drugs packaged for sale.
While conducting surveillance later that day, Detective Doyle
observed a man drive in front of the apartment, enter and stay inside for a short
time, and then exit the apartment and drive away. The detective stopped that
person for reckless driving and found drug paraphernalia, a syringe, and heroin
residue. The person admitted that he was a heroin addict, that he had gone to the
apartment to buy drugs from a black male known as Junne, and that he had done so
numerous times in the past. He further indicated he had witnessed a quantity of
heroin packages for sale inside the apartment that day.
Detective Doyle filled out an affidavit for a search warrant of the
residence and listed the name of Junne Crawford as the subject of the requested
warrant. The detective testified at the suppression hearing that she knew of
another heroin dealer named Junne Crawford and that person was not Cabbil, but
she stated she had inadvertently added the last name of Crawford in the affidavit.
Neither the informant nor the person stopped following the surveillance provided
the last name of the suspect to the detective.
The warrant ordered the immediate search of Cabbil’s apartment, as
well as the search of a green, two-door, older-model Lincoln Mark-7 automobile
located at the apartment and the search of a black male in his forties known as
Junne Crawford. At the suppression hearing, Detective Doyle did not recall the
name of the judge who signed the warrant, and she was not able to identify the
judge’s signature on the warrant. She did testify, however, that she had personally
presented the affidavit to a district court judge who signed the warrant in her
presence. There were no other witnesses called to testify at the hearing.
While the detective was presenting the search warrant affidavit to the
judge, another detective was monitoring the apartment. Cabbil was observed
leaving the apartment and driving the Lincoln automobile described in the warrant.
After the warrant had been signed and after getting into position approximately
three miles from the apartment, the police executed what they described as a
swoop technique to stop Cabbil’s vehicle. In essence, a swoop technique involves
a group of police vehicles surrounding or boxing in the subject vehicle forcing it to
stop. After the officers surrounded Cabbil’s vehicle, he continued to drive it into
one of the officer’s vehicle.
Cabbil was removed from his vehicle and searched. The police found
heroin packaged for sale and prescription drugs in his possession. They then
executed a search of the apartment and found more heroin and drug paraphernalia
at that location.
Cabbil first argues that the search was unlawful because he was not
named as a subject of the search and because the listed age was incorrect. The
search warrant designated a black male in his forties named Junne Crawford, but
Cabbil was not Junne Crawford and was 57 years old.
The warrant must “reasonably identify” the person, place, or thing that
is the subject of the search. Williams v. Commonwealth, 261 S.W.2d 416, 417 (Ky.
1953). Cabbil resided in the apartment and was a black male. He was not in his
forties; rather, he was 57 years old. While Cabbil was not the same person as
Junne Crawford, there was no evidence to rebut the information the officers had
that Cabbil sold drugs under the name of Junne. Further, the court found that
Detective Doyle simply made a mistake by adding the name Crawford in her
affidavit when, in fact, she had no intent to do so. Under these circumstances, we
conclude that the warrant was not defective in regard to the search of Cabbil’s
person even though its description of Cabbil was not entirely accurate.
Cabbil next relies on Parks v. Commonwealth, 192 S.W.3d 318 (Ky.
2006), for the proposition that a warrant to search a particular premises does not
authorize the search and seizure of an individual who is a distance away from that
location. This argument was not raised before the circuit court and thus was not
preserved for appellate review. We review it only for palpable error. See
Kentucky Rule of Criminal Procedure (RCr) 10.26.
In Parks, the appellant, who was driving a vehicle not listed in the
search warrant, was seen leaving the residence for which a search warrant was to
be issued with the two persons who were the subject of the investigation. The
officer conducting the surveillance of the residence followed the appellant’s
vehicle until being advised by radio that the search warrant had been obtained.
The officer then stopped the vehicle and searched it, even though the vehicle had
not been listed in the search warrant and even though the appellant, as driver, was
not named in the warrant and had not committed a traffic offense. Id. at 329.
Under these circumstances, the Kentucky Supreme Court reversed the trial court
and held the search invalid and the evidence seized inadmissible. Id. at 334.
This case differs from Parks in that the warrant in his case also
commanded the immediate search of the vehicle Cabbil was driving. We agree
that pursuant to Parks the search of Cabbil and his vehicle would have been
improper if the warrant had only specified the apartment and Cabbil was stopped
and searched three miles away. See id. at 331. Further, we agree that pursuant to
Parks the search of Cabbil and his vehicle would have been improper if the
warrant had only specified the apartment and any vehicles located on the premises
to be searched. Id. Here, however, the warrant specifically included the vehicle
Cabbil was driving. Thus, as the facts here are distinguishable from those in
Parks, we conclude that the stopping of the vehicle for the purpose of searching it
was a lawful detention.
Once the officers stopped the vehicle so as to search it, Cabbil, who
was in the car, was removed from the car and searched. Because the search warrant
authorized the search of the car and of Cabbil himself, and because Cabbil was in
the car when the officers stopped it so as to search it, we find no error in the
officers’ search of Cabbil’s person in conjunction with their search of the car. See
Parks at 332, discussing Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69
L.Ed.2d 340 (1981).
Cabbil next argues that because the detective could not recall the
name of the judge or decipher the signature on the warrant, the warrant is invalid.
The law requires that a search warrant be approved and signed by a neutral and
detached magistrate. Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369,
92 L.Ed.2d 436 (1948). Cabbil contends that there was no proof to establish this
requirement. However, he did not raise this argument before the circuit court,
either. We will review it only for palpable error. See RCr 10.06.
The suppression hearing took place over a year and a half after the
issuance of the search warrant. Detective Doyle testified at the suppression
hearing that she took the affidavit and warrant to a district court judge and watched
the judge sign it. Cabbil offered no evidence to dispute the detective’s testimony;
rather, he relied on the detective’s lack of detailed memory in his effort to
invalidate the warrant. Again, this allegation of error was not preserved for our
review. We find no palpable error.
Finally, Cabbil argues that the police should not be allowed to rely on
the good-faith exception to the exclusionary rule created in United States v. Leon,
468 U.S. 897, 922, 104 S.Ct. 3405, 3420, 82 L.Ed.2d 677 (1984). Here, however,
the warrant was valid and the manner in which it was executed was not improper.
Thus, the good-faith exception argument is moot.
The judgment of the Jefferson Circuit Court is affirmed.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Michael L. Goodwin
Gregory D. Stumbo
Attorney General of Kentucky
James C. Maxson
Assistant Attorney General