PRIDE (LESLIE) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: SEPTEMBER 5, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2007-CA-002033-MR
LESLIE PRIDE
v.
APPELLANT
APPEAL FROM UNION CIRCUIT COURT
HONORABLE C. RENE’ WILLIAMS, JUDGE
ACTION NO. 07-CR-00012
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE: MOORE, NICKELL, AND STUMBO, JUDGES.
STUMBO, JUDGE: Leslie Pride appeals from a conditional plea of guilty to one
count of trafficking in marijuana over 5 pounds, first offense. He contends that an
affidavit upon which a search warrant was based contained false or misleading
information and failed to establish probable cause. For the reasons stated below,
we agree that the affidavit failed to establish probable cause, and accordingly
reverse the order on appeal.
ORAL ARGUMENT PRELIMINARY DRAFT
On November 9, 2006, the Kentucky State Police obtained a warrant
authorizing the search of Pride’s residence. The warrant was based on the
statement of a confidential informant which indicated that Pride told the informant
more than one year earlier that Pride had 240 marijuana plants and priced the
marijuana at $600 per quarter pound. According to the informant, Pride did not
tell him where the plants were located.
KSP Detective McKinney confirmed Pride’s identity and the location
of his residence. McKinney checked Pride’s criminal history which revealed one
or more convictions for drug trafficking. McKinney would also later state that the
informant’s credibility had been previously established.
The affidavit stated that a detective subpoenaed 24 months of utility
records for Pride’s residence and two similar residences located in the vicinity of
Pride’s residence, and discovered that Pride’s electricity usage was substantially
greater than the similar residences. The two homes used for comparison were
chosen based on a drive-by viewing. According to the affidavit, KSP Detective
Moore concluded that - based on his experience - the excessive electrical usage
was indicative of an indoor marijuana growing operation.
The warrant was executed on November 9, 2006, and KSP officers
found 26 pounds of loose marijuana, additional marijuana packaged in 54 1-gallon
sized Ziploc bags, and various items used to cultivate marijuana. The search
resulted in Pride being indicted by the Union County grand jury on one count each
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of trafficking in marijuana over five pounds (second offense), possession of drug
paraphernalia, and second-degree persistent felony offender.
On March 20, 2007, Pride filed a motion to suppress the evidence
obtained during the search. A hearing on the motion was conducted on April 9,
2007, where Pride argued that more than one year had elapsed between Pride’s
purported statement to the informant and the KSP’s use of that information in the
affidavit. Pride also challenged the validity of the claim that his house used an
excessive amount of electricity. He noted that one of the two homes used in the
comparison was occupied by elderly individuals who did not use much electricity,
and that the other residence was not occupied for some period of time. He further
pointed out that he had 3 children living at home who used a lot of electricity, and
that his home had outdoor lighting and a hot tub which used additional electricity.
At the conclusion of the hearing, the circuit court rendered an order denying the
motion to suppress.
Thereafter, Pride entered a plea of guilty pursuant to a plea bargain.
The charge of trafficking in marijuana over 5 pounds (second offense) was reduced
to trafficking (first offense), and the PFO charge was dismissed. Pride was
sentenced to six years in prison, and this appeal followed.
Pride now argues that the circuit court erred in denying his motion to
suppress the evidence obtained during the search of his residence. He argues that
the affidavit upon which the search warrant was based did not establish probable
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cause to support the warrant. He further maintains that the so-called good faith
exception cannot remedy the deficiency. Pride’s argument centers on 1) the
confidential informant’s information being between 12 and 18 months old when
the warrant was issued; 2) the failure of that information to make any claim that
marijuana was located at Pride’s residence; 3) the allegedly flawed analysis of the
electricity usage of Pride and two other homes for comparison; and, 4) the officer’s
alleged conclusory statements set forth in the affidavit as fact. Pride maintains that
the affidavit failed to establish probable cause to support the search warrant, and
that as such, the evidence obtained as a result of the search should have been
suppressed.
Pride’s appeal is grounded on the Fourth Amendment to the United
States Constitution, which states that:
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no
warrants shall issue, but upon probable cause, supported
by oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be
seized.
Similarly, the Kentucky General Assembly provided for this protection in § 10 of
the Kentucky Constitution, which states that:
The people shall be secure in their persons, houses,
papers and possessions, from unreasonable search and
seizure; and no warrant shall issue to search any place, or
seize any person or thing, without describing them as
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nearly as may be, nor without probable cause supported
by oath or affirmation.
Probable cause is incapable of precise definition or quantification into
percentages because it deals with probabilities and depends on the totality of the
circumstances. Maryland v. Pringle, 540 U.S. 366, 124 S.Ct. 795, 157 L.Ed.2d
769 (2003). “The substance of all the definitions of probable cause is a reasonable
ground for belief of guilt,” and the belief of guilt must be particularized with
respect to the person to be searched or seized. Id.
This notion has been incorporated into Kentucky case law. The
Kentucky Supreme Court held, for example, that 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). The trial court must find probable
cause exists based solely on the allegations set forth in the affidavits, and such
allegations of fact must “compel the court’s attention.” West v. West, 664 S.W.2d
948 (Ky. App. 1984). See also Quisenberry v. Quisenberry, 785 S.W.2d 485 (Ky.
1990); Betzer v. Betzer, 749 S.W.2d 694 (Ky. App. 1988).
In the matter at bar, the affidavit first sets forth the statement of the
confidential informant alleging that Pride told the informant more than one year
earlier that Pride possessed 240 marijuana plants. The informant did not state
whether Pride allegedly still possessed the plants at the time of the affidavit, nor
where the plants allegedly were located. At best, the informant’s statement
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indicated that Pride made an incriminating statement to the informant the prior
year. The Commonwealth acknowledges in its appellate brief that this statement,
taken alone, was insufficient to create probable cause. Similarly, in ruling on
Pride’s motion to suppress, Judge Rene’ Williams also concluded that the
informant’s statement - taken alone - failed to establish probable cause.
The question then is whether the analysis of the electrical usage of
Pride’s residence, when compared to the two homes selected during the drive-by,
bolsters the affidavit sufficiently to establish probable cause to believe that Pride
was growing marijuana in his residence. We must conclude that it does not. The
record indicates that at the time the two homes were chosen for comparison to
Pride’s residence, Detective Weber was unaware that one of the homes was not
occupied for a period of time during the 24-month period in question. Similarly,
he did not know that the other residence - unlike Pride’s residence housing two
adults and three children - was occupied by two individuals over the age of 80.
While the Commonwealth reasonably argued at the hearing that the detectives did
not attempt to ascertain the number or ages of the residents at the two other
locations for fear of revealing the nature of their investigation, the fact remains that
a temporarily unoccupied residence and one occupied by two elderly individuals
would necessarily use less electricity than one occupied by a family of five.
Detectives Weber and Moore’s testimony at the hearing that there is
no magic formula or guideline for choosing comparable homes is well taken.
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ORAL ARGUMENT PRELIMINARY DRAFT
Nevertheless, the detectives did not speak with anyone at Kentucky Utilities to
determine if the electrical usage of Pride’s home fell within KU’s “high/low”
expected usage for the residence. Had they done so, they would have determined
that the electrical usage of Pride’s home fell within the range that KU would
reasonably anticipate for the residence.
Pride also introduced at the hearing the report and testimony of energy
analyst John Williams. Williams went through every room of Pride’s residence
recording each electrical appliance for the purpose of estimating the amount of
electricity the home might reasonably use. Williams’ report was based in part on
more than two hours of conversation with Pride’s wife regarding the family’s
lifestyle, and it acknowledged the number and ages of the home’s occupants.
Williams opined that Pride’s residence was a “high usage home” based on the
number of appliances present, including outdoor lighting and a hot tub. He stated
that the electrical usage of Pride’s home during the preceding 24-month period was
understandable based on the number of high energy consuming appliances.
The circuit court properly noted that the KSP cannot be held to the
same standard of detail evidenced by analyst Williams, because the detectives
obviously could not examine the interior of Pride’s home in advance of seeking
and executing a search warrant. Similarly, Williams’ analysis also evidences socalled 20/20 hindsight, to which the KSP detectives were not availed.
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Nevertheless, Williams’ analysis is compelling evidence the electrical usage of
Pride’s home was not so excessive as to induce suspicion.
The standard of review when ruling on an order arising from a motion
to suppress is two-fold. First, we must determine whether the circuit court’s
findings of fact are supported by substantial evidence. If so, its findings are
conclusive. RCr 9.78; Adcock v. Commonwealth, 967 S.W.2d 6 (Ky. 1998).
Second, we must perform a de novo review of those factual findings to determine
whether the decision is correct as a matter of law. Ornelas v. United States, 517
U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); Commonwealth v. Banks, 68
S.W.3d 347, 349 (Ky. 2001); Stewart v. Commonwealth, 44 S.W.3d 376, 380 (Ky.
App. 2000); Garcia v. Commonwealth, 185 S.W.3d 658, 661 (Ky. App. 2006).
When examining the totality of the circumstances as presented to the trial court, we
must conclude that the court erred in finding the existence of probable cause.
Though provided by a known informant, the information was 1.5 years old when
set out in the affidavit and did not allege that Pride’s residence was implicated.
Both the Commonwealth and the Union Circuit Court acknowledge that the
informant’s statement, taken alone, failed to establish probable cause.
We must also conclude that the comparison of Pride’s electrical usage
with that of the other two homes was not so compelling as to establish probable
cause. While this is clearly a subjective determination, there is no evidence in the
record that Pride’s electrical usage is above that amount reasonably anticipated for
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a household of five individuals. Comparing the electrical usage of Pride’s home
with the usage of a home that was sometimes unoccupied and another that was
occupied by two elderly people - even though done in good faith - failed to create a
fair probability that evidence of criminal activity would be found. Moore, supra.
In sum, because the informant’s tip was 1.5 years old and failed to implicate
Pride’s residence, and since no evidence was adduced that Pride’s electrical usage
exceeded the amount reasonably anticipated for a household of his size, we must
conclude that no probable cause existed to support the issuance of the search
warrant. Accordingly, the evidence obtained during the search should have been
suppressed.
For the foregoing reasons, we reverse the July 7, 2007, order of the
Union Circuit Court denying Pride’s motion to suppress the evidence obtained
during the search of his residence and remand for further proceedings.
ALL CONCUR.
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BRIEFS AND ORAL ARGUMENT
BRIEF FOR APPELLEE:
FOR APPELLANT:
Jack Conway
H. Randall Redding
Attorney General of Kentucky
Henderson, Kentucky
David W. Barr
Assistant Attorney General
Frankfort, Kentucky
ORAL ARGUMENT FOR
APPELLEE:
David W. Barr
Assistant Attorney General
Frankfort, Kentucky
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