PAYTON (MICHAEL SHAWN) VS. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: DECEMBER 5, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
SUPREME COURT GRANTED DISCRETIONARY REVIEW:
NOVEMBER 18, 2009
(FILE NO. 2008-SC-0965-DG)
Commonwealth of Kentucky
Court of Appeals
MICHAEL SHAWN PAYTON
APPEAL FROM GRAYSON CIRCUIT COURT
HONORABLE ROBERT A. MILLER, JUDGE
ACTION NO. 05-CR-00216
COMMONWEALTH OF KENTUCKY
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BEFORE: CAPERTON, LAMBERT AND THOMPSON, JUDGES.
CAPERTON, JUDGE: Michael Shawn Payton (Shawn) appeals from a judgment
and sentence of the Grayson Circuit Court entered pursuant to a conditional guilty
plea to the charges of two counts of possession of a controlled substance in the first
degree, one count of possession of a controlled substance in the second degree, one
count of possession of drug paraphernalia, and one count of possession of
We conclude that the warrantless search of Payton’s home was valid
as it was accomplished with the voluntary consent of Sharon Payton (Sharon),
Shawn’s wife and a resident of the home. Accordingly, we affirm.
On August 25, 2005, the Cabinet for Families and Children received
an anonymous telephone call at their Hardin County office alleging
methamphetamine existed and was being produced in the Grayson County home of
Sharon and Shawn, where two children resided. The Grayson County Cabinet for
Health and Family Services received the referral from the Hardin County office
and the case was assigned to Rebecca Secora. Secora then contacted Deputy
Blanton of the Grayson County Sheriff’s Department, and requested that he
accompany her to the residence.
On August 26, 2005, at approximately 1:30 p.m., Secora, Deputy
Blanton, and another deputy went to the residence. At that time, the children were
in school. When they arrived, Secora and the officers approached the front door
and knocked. Sharon opened the door and observed Secora and the two deputies.
Secora identified herself and stated that she had received information that there
were drugs and children in the home.
The precise wording used by Deputy Blanton during his initial contact
with Sharon is disputed. Secora and Sharon testified that he asked Sharon “was it
all right if he looked around?” At another point in the suppression hearing, Secora
stated that she and the officers requested “just to come in.” Deputy Blanton
testified that he initially asked if he could look around but that he also informed her
that the police would “like to search” the residence. It is not disputed that, in
response, Sharon threw her hands in the air, opened the door, and said, “Come on
Upon entering the house, there were no illegal drugs or contraband in
plain view. Deputy Blanton then proceeded to the master bedroom where he found
Shawn and Jody Mercer, an acquaintance. Shawn immediately asked Deputy
Blanton for a search warrant and Deputy Blanton told him that Sharon consented to
the search of the residence. Shawn responded “Fine” or “Well, okay.”1
Consent given, Deputy Blanton lifted the mattress from the Payton’s
bed and found a foil containing methamphetamine and two straws with
methamphetamine residue. After finding the drugs, Deputy Blanton performed a
pat-down search for weapons. In Mercer’s sock, he found a syringe and, in his
pocket, burnt foil. Deputy Blanton then continued his search of the residence and
under a couch cushion in the living room he found a plastic box containing seven
tablets of oxycontin and two hydrocodone pills. Mercer told the officers that the
methamphetamine and pills belonged to him. Shawn, in the spirit of cooperation,
then directed the officers to his personal “stash” of marijuana. Shawn was
arrested, entered a conditional plea of guilty subsequent to a suppression hearing,
and now appeals.
It is important to note that at no point during the initial search did either Sharon or Shawn
revoke the consent to search the home. Commonwealth v. Fox, 48 S.W.3d 24 (Ky.2001).
Shawn contends that the “knock-and-talk” procedure used to gain
access to his residence, and the search conducted thereafter, violated his rights
under the Fourth Amendment to the U.S. Constitution and Section 10 of the
Kentucky Constitution to be free from an unreasonable search and seizure.
Accordingly, Shawn argues that the evidence seized must be suppressed. In
response, the Commonwealth argues that the search was conducted with consent
and, as such, was valid and an exception to the search warrant requirement.
Our standard of review applicable to a 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 so, we must then conduct a de novo
review of the trial court’s application of the law to determine whether its decision
is correct as a matter of law. Commonwealth v. Neal, 84 S.W.3d 920, 923 (Ky.
It is the most basic premise of our constitutional law and one wellknown to our citizens that an officer’s warrantless entry and search of a person’s
home is generally prohibited. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct.
2022, 29 L.Ed.2d 564 (1971). However, exceptions to the warrant requirement
have evolved, including that voluntary consent by a person with authority over the
residence vitiates the need for a warrant. United States v. Watson, 423 U.S. 411,
96 S.Ct. 820, 46 L.Ed.2d 598 (1976).
In the matter sub judice, the trial court found that Sharon voluntarily
consented to the officer’s search of the residence by her statement “Come on in,”
and that the search did not exceed the scope of that consent. It further found that
Sharon’s consent was valid as to Shawn.
The test for determining whether the consent given was voluntary is
set forth in Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d
854 (1973). The Fourth and Fourteenth Amendments to the U.S. Constitution
require “consent not be coerced, by explicit or implicit means, by implied threat or
covert force. For, no matter how subtly the coercion was applied, the resulting
‘consent’ would be no more than a pretext for the unjustified police intrusion
against which the Fourth Amendment is directed.” Id. at 228, 93 S.Ct. at 2048.
The burden rests with the Commonwealth to prove by a
preponderance of the evidence that the consent was voluntarily given under the
circumstances. “Whether consent is the result of express or implied coercion is a
question of fact . . . and thus, we must defer to the trial court’s finding if it is
supported by substantial evidence.” Krause v. Commonwealth, 206 S.W.3d 922,
924 (Ky. 2006).
The knock-and-talk procedure employed by law enforcement officers
is becoming increasingly prevalent and has been approved as constitutionally
permissible by the courts. Quoting Davis v.United States, 327 F.2d 301 (9th Cir.
1964), the Court in Perkins v. Commonwealth, 237 S.W.3d 215, 218, 219 (Ky.App.
2007), summarized the rule as follows:
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.
When an occupant is confronted with police officers at the doorstep
and is informed that the officers are investigating suspected criminal activity, the
occupant is left with the unenviable decisions of whether to allow the officer’s
entry into the residence and whether to allow a search. When a knock-and-talk
culminates into a warrantless search of the residence, the officer’s conduct is
subject to Fourth Amendment scrutiny. Id. at 220.
Although the inherent potential for intimidation will not negate
consent, the Commonwealth cannot meet its burden by showing mere
“acquiescence to a claim of lawful authority.” Pate v. Commonwealth, 243 S.W.3d
327, 330 (Ky. 2007), citing Bumper v. North Carolina, 391 U.S. 543, 549, 88 S.Ct.
1788, 20 L.Ed.2d 797 (1968). In determining whether consent is voluntary, the
court must make a careful scrutiny of the entire circumstances of a specific case.
Cook v. Commonwealth, 826 S.W.2d 329, 331 (Ky. 1992).
The circuit court conducted a suppression hearing concerning the
search of Shawn and Sharon’s home. At the hearing, the testimony was that
Secona and the officers presented themselves at the door to the Payton’s home and
knocked on the door. When Sharon answered the door, Secora explained the
nature of the complaint and their purpose for coming to the home. Deputy
Blanton’s testimony, though controverted, was that he requested to look around
and search the residence. Sharon’s undisputed response to Secora and the officers
was “Come on in,” accompanied by the gesture of throwing her hands in the air.
The circuit court found that Sharon’s verbal response of “Come on in”
and the opening of the door were sufficient to justify not only the officer’s entry
but also the search of the residence. While we agree that, as commonly used, the
phrase “come on in” is understood as an invitation to enter the residence and not as
permission for the invitee to have access to the entire residence. In the case sub
judice, Deputy Blanton testified that Sharon made the statement in response to his
statement that he would “like to search the residence” and her statement was
accompanied by the simultaneous act of opening the door to accommodate the
entry. The trial court so found and we must defer to the findings of the trial court
if supported by substantial evidence. Talbott v. Commonwealth, 968 S.W.2d 76,
82 (Ky. 1998). Our review of the record reveals that the findings of the trial court
were supported by substantial evidence. Thus, our legal analysis will be based on
the factual findings of the trial court.
Preliminarily and without contest, Sharon’s consent to search the
premises was valid absent Shawn’s contemporaneous objection. Illinois v.
Rodriguez, 497 U.S. 177, 186, 110 S.Ct. 2793, 2800, 111 L.Ed.2d 148 (1990);
United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974).
Consent given, we now proceed to analyze the legal scope of the consent given
premised on the fact that Deputy Blanton stated that he would “like to search the
When a search is consensual, “the standard for measuring the scope of
a suspect’s consent under the Fourth Amendment is that of ‘objective’
reasonableness - what would the typical reasonable person have understood by the
exchange between the officer and the suspect?” Florida v. Jimeno, 500 U.S. 248,
251, 111 S.Ct. 1801, 1803-1804, 114 L.Ed.2d 297 (1991). We now focus our
analysis on the objective reasonableness of what consent was granted.
The facts of this case support the legal conclusion that Sharon’s
statement “Come on in,” in response to the purpose of the visit as stated by Secora
and the officers, and the simultaneous act of opening the door to accommodate the
entry are sufficient to support the trial court’s finding that Sharon consented to
both the officer’s entry and search of the residence. This is akin to a typical knockand-talk situation where officers approach the residence, knock, and inform the
occupants that they are investigating criminal activity. In fact, according to
Secora’s testimony, while the presence of the officers was the result of Cabinet
policy, the stated purpose of the visit was to investigate the referral of possible
child neglect, a noncriminal matter, and drugs, certainly a matter having criminal
In Hallum v. Commonwealth, 219 S.W.3d 216 (Ky.App. 2007), this
Court addressed a scenario in the context of a Fourth Amendment challenge
wherein we emphasized the noncriminal nature of a knock-and-talk procedure.
The social worker was accompanied by two law enforcement officers to a home
that was referred for possible child neglect and drug use in the residence. Upon
their arrival, the social worker sought permission for herself and the deputies to
enter the house. After receiving permission, the three entered and, in a bedroom,
in plain view, the officer observed various items indicating possible illegal drug
activity. Prior to seizing the evidence, the deputies secured a warrant.
This Court reasoned that the entry into the room by the officer did not
require consent because:
[W]hen Ms. Finnerty [the social worker] entered the
closed bedroom to investigate the referral she had
received, it was not unreasonable for the detective to
enter the room because the visit was not criminal in
nature. Thus, the detective did not need to receive
Appellant's consent to enter the bedroom. Moreover,
once Ms. Finnerty told Appellant that she was required to
look in the bedroom, Appellant told her to go ahead and
do so. He did not tell the detective that he could not go
into the room with her.
Id. at 222. The officer in Hallum did not perform an extensive search of the
residence or seize any evidence until after a warrant was obtained. At that point,
the investigation was clearly no longer being performed by the Cabinet but had
evolved into a criminal investigation and one with Fourth Amendment
However, the case before our Court presents additional facts and,
thereby, broadens the scope of the initial knock-and-talk into a criminal
investigation at first contact with the Paytons. Secora stated the purpose of the
visit concerned child neglect and drugs and Deputy Blanton requested to look
around and search the residence. When Sharon responded with “Come on in,” and
threw up her hands, thereby giving consent to search, the requirement for a search
warrant was obviated. Thus, while the courts in this Commonwealth deem that a
knock-and-talk, instigated by the Cabinet, is not a criminal investigation, a separate
request by officers accompanying the Cabinet can broaden the character of the visit
to include a criminal investigation. Here, this broadening occurred at first contact
with the Paytons. Therefore, we conclude that the search of the residence did not
exceed the scope of the consent given by Sharon.
In that we have concluded consent was given to search the residence
and the ensuing search was within the scope given by the consent, we must now
address whether voluntary consent given by a co-occupant of a residence who
shared common authority over the property is sufficient to authorize a search when
the defendant is present. Georgia v. Randolph, 547 U.S. 103, 126 S.Ct. 1515, 164
L.Ed.2d 208 (2006). Particularly, we must consider whether Shawn’s verbal
exchange with the officers revoked the consent to search as to him.
Shawn argues that he should have been advised that he could have
revoked the consent given by Sharon. However, under Kentucky law, there is no
requirement that an occupant be advised of his Miranda rights or that he had the
right to refuse the search. Cook, 826 S.W.2d at 331. Thus, Deputy Blanton’s
explanation in response to Shawn’s question, “do you have a warrant,” need not
have gone beyond the explanation given by Deputy Blanton, i.e., Sharon gave us
consent to search.
Lastly, Shawn argues that he revoked the consent given by Sharon and
that he objected to the search of the residence. Whether Shawn’s initial
questioning of the officers as to whether they had a search warrant prior to
continuing their search was tantamount to him refusing consent to the search is not
the factual situation before our Court. We cannot take Shawn’s initial actions out
of context. When the officers entered the room occupied by Shawn, the right of
the officer’s presence was challenged by Shawn’s questioning the officers as to a
search warrant. The response of Deputy Blanton explained their presence, i.e., that
Sharon had given them consent to search the residence. Of paramount importance
was Shawn’s response of “Fine,” or “Well, okay” to Deputy Blanton’s explanation.
Such response is certainly consistent with both Shawn’s acknowledgement and
approval of the consent given by Sharon as well as satisfying his initial inquiry into
the officer’s presence in the residence. While Shawn’s response may rise to the
level of actual consent, it is enough that we decide that Shawn’s actions did not
rise to the level of an objection. See Randolph. Thus, Shawn neither revoked the
consent given by Sharon nor objected to the search of the residence. Therefore,
under the facts found by the trial court, we agree that the search of the residence
passes constitutional scrutiny.
Based on the foregoing, we hold that the trial court did not err when it
denied Shawn’s motion to suppress the evidence seized from his residence. The
judgment of conviction is affirmed.
LAMBERT, JUDGE, CONCURS.
THOMPSON, JUDGE, DISSENTS AND FILES SEPARATE
THOMPSON, JUDGE, DISSENTING: I respectfully dissent.
Although the majority is correct when it deferred to the trial court’s finding that
Sharon consented to the entry into the residence, it commits grievous error when it
then concludes that consent to enter the residence justified the extensive search.
The majority’s reasoning strains both the law and my conscience. It is
well embedded in our search and seizure law that the “consent given to enter the
house does not extend to consent to search the premises.” Commonwealth v. Neal,
84 S.W.3d 920, 925 (Ky.App. 2002). The majority, however, concludes that the
invitation of entry into the residence is sufficient to support a warrantless search of
virtually everything within the residence.
In this case, the desecration of the resident’s constitutional rights is
even more disturbing. This was not, as the majority suggests, a typical knock-andtalk situation where the officers approach the residence, knock, and inform the
occupants that they are investigating criminal activity. The presence of the police
officer was the result of Cabinet policy and the purpose of the visit was to
investigate possible child neglect, a noncriminal matter. Using the majority’s
logic, a school teacher accompanied by the school safety officer, a paramedic
accompanied by a patrol officer, or an agricultural extension officer accompanied
by a constable, who are invited into a residence on the premise that their presence
is to investigate a noncriminal matter, are free to search every crevice of the
residence and its contents. The attic, the basement, the medicine cabinet, drawers,
mattresses, and other places generally not anticipated to be accessible or visible to
a mere visitor, are the subject of a government search for unlimited evidence. I
cannot be convinced that it is objectively reasonable to conclude that any
reasonable person intends that socially customary phrase “come on in” is a waiver
of the sacred constitutional right to be free from warrantless searches.
This case also presents what appears to be an issue yet to be addressed
in Kentucky and one that the majority has failed to take the opportunity to provide
guidance. In 2006, the United States Supreme Court rendered Georgia v.
Randolph, 547 U.S. 103, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006), where it held
that the voluntary consent of a co-tenant does not extend to a co-tenant who is
present at the time the request to search is made and objects to the search.
Therefore, even if Sharon’s consent was voluntary, the impact of Randolph on
Kentucky search and seizure law should be addressed. Shawn, who was present in
the home at the time of the search, requested that the officers produce a warrant
which, I believe, is consistent with a refusal of consent. Therefore, I believe the
majority was required to address the application of Randolph and could not
premise its result solely on its finding that Sharon’s consent was voluntary.
I do not believe that the majority has properly applied the protections
afforded by the U.S. and Kentucky Constitutions. Its opinion broadens the
authority of the government to intrude into the sanctity of the home under the guise
of a noncriminal investigation and without explanation to the occupant of the time
and extent of the search to be conducted.
I conclude with the observation that the entire debate regarding verbal
consent would be easily silenced if the law enforcement agencies utilized the
available “consent to search form” that explicitly states the subject and scope of the
search. According to the majority, the consent forms are not necessary because the
mere opening of a door and permission to enter the residence is the equivalent of a
consent to search the residence and its contents. Common sense dictates that law
enforcement be required to use the written form when relying on consent to search
an occupied residence and cease reliance on “an after the search analysis” to
validate the consent.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Susan Jackson Balliet
Assistant Public Advocate
Office of Public Advocacy
Gregory D. Stumbo
Attorney General of Kentucky
Joshua D. Farley
Assistant Attorney General