LOGAN (MICHAEL EUGENE) VS. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: AUGUST 8, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
MICHAEL EUGENE LOGAN
APPEAL FROM BOYD CIRCUIT COURT
HONORABLE MARC I. ROSEN, JUDGE
ACTION NO. 06-CR-00223
COMMONWEALTH OF KENTUCKY
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BEFORE: NICKELL AND THOMPSON, JUDGES; ROSENBLUM,1 SPECIAL
ROSENBLUM, SPECIAL JUDGE: Michael Eugene Logan appeals the judgment
and sentence on guilty plea entered March 19, 2007, in Boyd Circuit Court. That
judgment found Logan guilty of possession of controlled substances, first degree,
Retired Judge Paul W. Rosenblum sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution.
subsequent offense and possession of controlled substance, third degree,
subsequent offense and sentenced him to two concurrent sentences totaling 5 years
in the Kentucky State Penitentiary. We affirm.
Sometime in June of 2006,2 Officers Rob Danta and Rick Francis
visited the home of Logan. The officers were investigating a burglary and had
received information that some of the stolen property had been taken to Logan’s
residence. The officers asked Logan and his roommate Paul Perry if they could
search the apartment and consent was given. The parties disagree as to the scope
of the consent for the search. Logan contends that his permission was limited to a
search for a DVD/VCR combination. The officers state that they had made it clear
to Logan that they were also searching for jewelry. During the search, Logan
made several comments to the officers that they would not find a DVD/VCR
combination in certain objects. Logan would later argue that these comments
constituted a request to cease the search. The officers discovered two bottles in the
cushions of the couch containing medication. Logan had prescriptions for some of
the medication, but not for others.
Logan was subsequently charged with possession of controlled
substance, first degree, subsequent offense; possession of controlled substance,
third degree, subsequent offense; and second degree persistent felony offender.
Logan moved to suppress the evidence discovered in his apartment. On January
24, 2007, a suppression hearing was held and the trial court denied Logan’s
In their briefs, the parties disagree as to the exact date.
motion. Logan subsequently entered a conditional guilty plea to the charges of
possession of controlled substances, first degree, subsequent offense and
possession of controlled substance, third degree, subsequent offense.3 The trial
court entered its findings of fact, conclusions of law and judgment on February 6,
2007. On March 19, 2007, the trial court entered its judgment and sentence on
guilty plea, sentencing Logan to 5 years on each charge, to run concurrently. This
On appeal, Logan argues that the trial court erred by failing to
suppress the evidence seized from his residence and by failing to enter written
findings of fact following the suppression hearing. The Commonwealth argues
that Logan’s claims are unpreserved due to his failure to comply with RCr 8.09.4
We believe that the Commonwealth’s argument regarding preservation is without
merit. RCr 8.09 states:
With the approval of the court a defendant may enter a
conditional plea of guilty, reserving in writing the right,
on appeal from the judgment, to review of the adverse
determination of any specified trial or pretrial motion.
A defendant shall be allowed to withdraw such plea upon
prevailing on appeal.
The Commonwealth’s offer on a plea of guilty indicates “[Logan] reserves the
right to appeal suppression issues.” Furthermore, Logan’s motion to enter guilty
plea grants specifically “[t]he right to appeal my case to a higher court” and the
Logan’s guilty plea was contingent upon his ability to appeal the suppression issue.
Although the Commonwealth cited to RCr 8.10 in its brief, we are under the impression that
this was a typographical error and should have in fact been RCr 8.09.
judgment and sentence on guilty plea adjudges “[Logan] has reserved the right to
appeal on the suppression issue.”
When reviewing a trial court’s admission or suppression of evidence,
the Court utilizes a two part evaluation. “We will apply a clear error standard of
review for factual findings and a de novo standard of review for conclusions of
law.” Bishop v. Commonwealth, 237 S.W.3d 567, 568-9 (Ky.App. 2007) (internal
quotations omitted). See also RCr5 9.78.
All searches without a valid search warrant are
unreasonable unless shown to be within one of the
exceptions to the rule that a search must rest upon a valid
warrant. The burden is on the prosecution to show the
search comes within an exception.
Gallman v. Commonwealth, 578 S.W.2d 47, 48 (Ky. 1979) (citing City of Danville
v. Dawson, 528 S.W.2d 687 (Ky. 1975)). “Consent to search is an exception to the
warrant requirement.” Farmer v. Commonwealth, 169 S.W.3d 50, 52 (Ky.App.
2005) (citation omitted). “The Commonwealth has the burden of showing by a
preponderance of the evidence, through clear and positive testimony, that valid
consent to search was obtained.” Id. (citation omitted).
Logan argues that the officers were limited by the consent to
searching only for a DVD/VCR combination and thus exceeded the scope of the
consent that was given. The officers contend that they had made Logan aware that
they were also looking for stolen jewelry, and that they had been given general
consent to search the apartment.
Kentucky Rules of Criminal Procedure.
“The standard for determining whether consent has been given ‘is one
of objective reasonableness.’” Hallum v. Commonwealth, 219 S.W.3d 216, 221
(Ky.App. 2007) (citing Commonwealth v. Fox, 48 S.W.3d 24, 28 (Ky. 2001)). “To
determine whether consent to search is constitutional in a particular case, we
review ‘all the surrounding circumstances.’” Id. (citing Cook v. Commonwealth,
826 S.W.2d 329, 331 (Ky. 1992)). The objective reasonableness standard is also
applied when measuring the scope of a consensual search. This is done by
discerning what a reasonable person would have understood by the exchange
between the party giving consent and the party receiving it. Commonwealth v.
Fox, 48 S.W.3d 24, 27 (Ky. 2001).
After the suppression hearing, the trial court found that the evidence
and the testimony indicated that, although Logan had made comments regarding
the likelihood of finding a DVD/VCR combination in certain locations, the search
was continued without objection. The judge noted that Logan had several very
specific opportunities to object to the search and did not.6 The trial court stated:
[t]here doesn’t appear to be any evidence in the record
that either Mr. Logan or Mr. Perry, either by word or
action, made any attempt to terminate the search.
The trial court then concluded that a “valid consensual search” had taken place.
The court explained that Logan’s failure to discontinue the search after the officers
began searching small spaces negated the testimony that he was unaware the
officers were searching for something other than a DVD player. After some
The judge specifically cited Logan’s failure to object when the officers asked him if they could
search the couch he was sitting on, asked him to stand up and asked him to remove the cushions.
discussion between the trial court and the prosecutor, the trial court stated “the
officers’ testimony is consistent with what happened.”
“At a suppression hearing, the ability to assess the credibility of
witnesses and to draw reasonable inferences from the testimony is vested in the
discretion of the trial court.” Sowell v. Commonwealth, 168 S.W.3d 429, 431
(Ky.App.2005) (internal citation omitted). Those decisions are conclusive
provided they are supported by substantial evidence. Stewart v. Commonwealth,
44 S.W.3d 376, 380 (Ky.App.2000). The trial court accepted the officers’
interpretation of the events over that of Logan which necessarily includes a finding
that consent had not been withdrawn. This is well within the court’s discretion.
We do not find clear error in this conclusion and therefore we hold that the trial
court did not err in finding that the search was permissible and that the evidence
should not be suppressed.
Logan next argues that the trial court erred by failing to enter written
findings of fact following the suppression hearing. Logan concedes that the issue
is unpreserved and therefore we must review this matter under the palpable error
rule of RCr 10.26.
A palpable error which affects the substantial rights of a
party may be considered by the court on motion for a
new trial or by an appellate court on appeal, even though
insufficiently raised or preserved for review, and
appropriate relief may be granted upon a determination
that manifest injustice has resulted from the error.
After a suppression hearing, the trial court is required to make
findings “resolving the essential issues of fact raised by the motion or objection
and necessary to support the ruling.” RCr 9.78. Here, the trial court entered its
findings orally from the bench. Although written findings are preferred, they are
not mandatory. See, e.g., Coleman v. Commonwealth, 100 S.W.3d 745, 749 (Ky.
2002). Therefore, we hold that the trial court’s failure to enter written findings
does not rise to the level of palpable error.
For the foregoing reasons, the March 19, 2007, judgment and sentence
on guilty plea of the Boyd Circuit Court is affirmed.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
J. Brandon Pigg
Assistant Public Advocate
Department of Public Advocacy
Attorney General of Kentucky
Heather M. Fryman
Assistant Attorney General