SHELLEY WILSON v. COMMONWEALTH OF KENTUCKY
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RENDERED: FEBRUARY 22,200l
TO BE PUBLISHED
1999-SC-0069-DG u
APPELLANT
SHELLEY WILSON
v
.
ON REVIEW FROM THE COURT OF APPEALS
NO. 97-CA-0407-MR
JEFFERSON CIRCUIT COURT NO. 92-CR-3275
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY CHIEF JUSTICE LAMBERT
AFFIRMING
In June 1989, at an accident scene in Nelson County, Bardstown police
officers discovered a small spiral notebook in a wrecked truck. In the notebook, a
suspected drug trafficker had listed the first names of his buyers, their telephone
numbers, the amount of marijuana each had purchased, and the amount of money
each owed him from the purchase. This same information regarding Shelley Wilson,
Appellant herein, was included in the spiral notebook. The Bardstown police gave
information from the notebook to the Nelson County Police Department, who in turn
relayed the information to Metro (Louisville and Jefferson County) Narcotics Detective
Tim Royse in the summer of 1992, three years after discovery of the notebook. This
information was used in a widespread investigation, code named operation “Top Dog,”
of a large-scale drug trafficking syndicate.
In an effort to investigate the drug trafficker whose transaction notebook
had been found and to learn the full names and addresses of those who might be
involved in the drug syndicate, grand jury subpoenas were used to obtain the telephone
records of the numbers listed in the drug transaction notebook. From these telephone
records, Wilson’s full name and address were obtained. As the investigation continued,
there were other indications that Wilson was involved in illicit drug activity. Residents
from Wilson’s neighborhood complained that she was dealing drugs out of her house.
Moreover, Metro Narcotics received an anonymous tip from someone who claimed to
know of Wilson’s drug activities. As a result of all of this information, police began
surveillance of Wilson’s residence. During this time, officers observed vehicle traffic
patterns consistent with drug trafficking.
On the evening of November 12, 1992, between 500 and 6:00 p.m.,
Detective Royse saw Wilson take a wrong turn down a one-way alley between 1st and
2nd Streets in Louisville. Wilson’s car also had a headlight out. Having witnessed
these two traffic violations, Detective Royse pulled Wilson over and asked for her
driver’s license. While Wilson was looking for her license, Detective Royse noticed
rolling papers in Wilson’s purse. Then, Detective Royse told Wilson that she was the
subject of a drug investigation and explained to her that she was not under arrest, but
that he would like for her to go to Metro Narcotics Headquarters for questioning. Wilson
accompanied him to headquarters, where she was questioned about her marijuana
use. She admitted that she used marijuana. When asked whether she was also
dealing, Wilson replied, “Nothing you would be interested in.”
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Following this interview, Detective Royse signed an affidavit in support of
a warrant to search Wilson’s residence. The affidavit stated:
On the 15th day of June (Approx), 1992, at approximately
IO:00 a.m. affiant received information from Off. John
Turner, Bardstown P.D. who provided affiant with
information & drug records related to a large scale marijuana
operation in Jefferson and Nelson Counties. Through the
use of Grand Jury Subpoenas was obtained the names of
these drug dealers and their addresses. Also monetary
amounts were noted on these records. In addition,
numerous phone calls from toll records have shown a
pattern of calls from marijuana dealers in Nelson Co., from
1988 to present. I have also received information from
Officer Mike Newton of the Nelson County Police
Department who states he has observed this subject’s
vehicle at one of the known drug dealer’s businesses.
Acting on the information received, affiant conducted the
following independent investigation. A background check
was conducted on this subject and no arrests were found. A
driver’s license check was conducted and shows she lives at
1112 Fischer. Surveillance has been conducted on this
residence on numerous occasions and vehicles have been
observed going to the residence, stay a short while then
leave. When subject was stopped and asked for her driver’s
license, I observed what appeared to be a pack of rolling
papers. After subject was brought to office and detectives
were questioning her, she stated she used marijuana and
when asked if she was dealing, she stated nothing you
would be interested in.
The search warrant was obtained, and Wilson’s residence was searched. Among the
items seized was over fifteen pounds of marijuana.
In December 1992, Wilson, along with fourteen other persons, was
indicted by a Jefferson County grand jury and charged with engaging in a criminal
syndicate for the purpose of selling marijuana, along with other related offenses. The
case proceeded many months and, through disputes about the discovery process, the
defendants learned that the police had used the grand jury subpoenas to obtain the
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telephone records, and that the grand jury neither saw nor considered the telephone
records prior to returning the indictments. Two of the twenty-two subpoenas involved
Wilson’s telephone records, Through these records, Wilson’s name, address, and
information about her phone calls were obtained. The specific information was that she
had made several long distance phone calls to the suspected drug trafficker whose
drug transaction notebook had been found in the wrecked truck in Nelson County.
Wilson and other defendants moved to suppress the telephone records,
and the trial judge granted the motion. In doing so, the trial court held that the use of
grand jury subpoenas to obtain pre-trial discovery for the police was an abuse of
process. The Commonwealth did not appeal from that ruling. Thereafter, the defense
moved to suppress other evidence which, it was claimed, had been obtained through
the improperly obtained phone records. Once again, the trial court granted the motion.
The Commonwealth filed an interlocutory appeal, and the Court of Appeals reversed
the trial court’s ruling.
In its holding, the Court of Appeals panel, being bound by the
unchallenged trial court ruling that the telephone records were illegally obtained, stated
that the evidence must be suppressed as “fruit of the poisonous tree” if the evidence
was the direct or indirect product of illegal police actions. However, it concluded that if
other information had been obtained from an independent source that was sufficient to
support probable cause for the search warrant, then the search would still be valid. In
upholding the validity of the search, the Court of Appeals listed four items of evidence
that were independent of the phone records: 1) Wilson’s admission that she used
marijuana; 2) Wilson’s possession of rolling papers; 3) Wilson’s statement, “Nothing
you would be interested in,” could be construed as an admission to dealing, but in an
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amount insufficient to interest Detective Royse; and 4)vehicle traffic patterns at Wilson’s
residence consistent with drug trafficking. Pursuant to CR 76.20, Wilson moved this
Court for discretionary review, and review was granted.
The exclusionary rule, based upon the Fourth Amendment’s prohibition
against unreasonable searches and seizures,’ provides that evidence obtained through
an illegal search is not admissible against an accused.2
The rule extends to the direct
as well as to the indirect products of official misconduct.3 Thus, evidence cannot be
admitted against an accused if the evidence is derivative of the original illegality, i.e., is
“tainted”4
or is the proverbial “fruit of the poisonous tree.‘15 However, a major exception
to the exclusionary rule exists for information obtained from independent or causally
remote sources. In describing this exception to the exclusionary rule, the United States
Supreme Court has stated,
The essence of a provision forbidding the acquisition of
evidence in a certain way is that not merely evidence so
acquired shall not be used before the Court but that it shall
not be used at all. Of course this does not mean that the
’ Olmstead v.
United States, 277 U.S. 438,457,48 S.Ct 564, 72 L.Ed.
944 (1928)(overruled on other grounds by Beraer v. New York, 388 U.S. 41, 51, 87 S.Ct
1873, 18 L.Ed.2d 1040 (1967) and on other grounds by Katz v. United States, 389 U.S.
347, 88 S.Ct. 501, 19 L.Ed.2d 576 (1967)).
2 Weeks v. United States, 232 U.S. 383, 392, 34 S.Ct. 341, 5 8 L.Ed. 652
(1914)(overruled in part on other grounds by Elkins v. United States, 364 U.S. 206, 80
S.Ct. 1437,4 L.Ed 2d 1669(1960) and in part on other grounds by Mapp v. Ohio, 367
U.S. 643, 8 1 S.Ct. 1684, 6 L.Ed.2d 1081 (1961)).
3 Wona Sun v. United States, 3 7 1 U.S. 471,484, 83 S.Ct. 401,416, 9
L.Ed.2d 441 (1963).
4 Seaura v. United States, 468 U.S. 796, 804, 104 S.Ct 3380, 8 2 L.Ed. 2 d
599 (1984).
5 Id. (quoting Nardone v. United States, 308 U.S. 338, 341, 6 0 SCt. 266,
268, 8 4 L.Ed. 307 (1939)).
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facts thus obtained become sacred and inaccessible. If
knowledge of them is gained from an independent source
they may be proved like any others.’
Evidence need not be excluded if the connection between the illegal conduct and the
discovery and seizure of the evidence is highly attenuated,7 or when evidence has been
obtained by means “sufficiently distinguishable” from the initial illegality so that the
evidence is “purged of the primary taint.‘18
Wilson contends that the exclusionary rule requires suppression of the
evidence seized during the search of her residence because the affidavit supporting the
request for the warrant was directly dependent on the telephone records, which the trial
court found were improperly obtained.g The police, she further argues, would have
known neither her name nor her address without these telephone records.
We disagree. The connection between the police conduct in obtaining the
telephone records and the evidence seized during the search of Wilson’s residence is
so attenuated that the primary “taint” of the police conduct has been dissipated.
Although the records provided Wilson’s name and address, surveillance of her
6 Seaura v.
United States, 468 U.S. 796, 805, 104 S.Ct 3380, 82 L.Ed.2d
599, 608-609 (1984)(quoting Silverthorne Lumber Co. v. United States, 251 U.S. 385,
392, 40 S.Ct. 182, 64 L-Ed. 319 (1920).
’ Seaura v. United States, 468 U.S. 796, 805, 104 S.Ct 338, 82 L.Ed.2d
599, 608 (1984)(citing Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 268,
84 L.Ed. 307 (1939).
8 Wona Sun v. United States, 3 7 1 U.S. 471,488, 83 S.Ct. 407, 9 L.Ed.2d
441 (1963).
’ It should be emphasized that we do not hold and the Commonwealth
does not concede that suppression of the telephone records was required. However,
the Commonwealth sought no review of the trial court’s ruling thereon, and therefore
the Commonwealth acknowledges that the issue is not before this Court. The Court of
Appeals accepted the view that the trial court’s decision to suppress the telephone
records was resjudicafa and not available for appellate review.
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residence was based not only upon this information, but upon complaints from her
neighbors and an anonymous tip. Thereafter, police noticed traffic patterns at her
residence that were consistent with drug dealing, i.e., vehicles would stop there for a
short time and then leave. Also, Wilson’s vehicle was seen at the residence of the
suspected drug trafficker. Finally, when Detective Royse conducted a valid traffic stop
of Wilson, he saw drug paraphernalia in her purse. At police headquarters, Wilson
admitted to drug use and made an implicitly incriminating comment about her
involvement in drug dealing.”
It should be noted with regard to the traffic stop, that an officer who has
probable cause to believe a civil traffic violation has occurred may stop a vehicle
regardless of his or her subjective motivation in doing so.” Although Detective Royse
appears to have stopped Wilson to further a drug investigation, his subjective
motivation does not invalidate the stop as it was made validly and conducted within the
bounds of official propriety.
Wilson further contends that the Court of Appeals judgment should be
reversed because it relied upon illegally obtained information in the affidavit in
lo It should also be noted that the addresses and names associated with
telephone numbers, at least those that are listed, are in the public domain. For
example, at an Internet site called “phonebook.com” (which promises “Find out
anything about anyone!“) there is a heading entitled “Reverse Phone Directory.” If one
types in 502-637-8604 (one of the numbers listed in the drug transaction notebook
found in the wrecked truck at the accident scene in Nelson County), the following listing
comes up: Shelly K. Wilson, 1112 Fischer Ave., etc.
The suppression of the telephone records, at least the one revealing
Wilson’s full name and address (but not the records detailing information about long
distance calls), would appear improper in light of the fact that this information is freely
available, through the web site mentioned above as well as from other sources.
” United States v. Akram, 165 F.3d 452, 455 (6th Cir. 1999)(citing Whren
v. United States-517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996).
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I
upholding the validity of the search. In support of this contention, Wilson argues that
none of the four factors relied upon by the Court of Appeals would have come into play
without the telephone records. To reiterate, these four factors were 1) Wilson’s
admitted drug use, 2) the rolling papers, 3) Wilson’s statement, “Nothing you would be
interested in,” and 4)the traffic patterns. As stated above, the first three of these items
occurred after the valid traffic stop and thus came about by means sufficiently
distinguishable from the telephone records. The traffic patterns were observed once
Wilson’s home was put under surveillance as a result of information about her being on
the drug clientele list in the spiral notebook as well as the anonymous tip and the
neighbors’ complaints. Thus, although the observance of the traffic patterns was an
indirect result in part of the telephone records, it also resulted from other information,
rendering the police activity causally remote from the resultant search of Wilson’s
residence.
For the foregoing reasons, the judgment of the Court of Appeals is
affirmed.
Cooper, Graves, Keller and Wintersheimer, JJ., concur. Stumbo, J., files
a separate dissenting opinion in which Johnstone, J., joins.
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COUNSEL FOR APPELLANT:
Michael C. Lemke
455 South Fourth Avenue
Suite 876 - The Starks Building
Louisville, KY 40202
COUNSEL FOR APPELLEE:
Albert B. Chandler III
Attorney General of Kentucky
Laura L. New
Special Assistant Attorney General
514 West Liberty Street
Louisville, KY 40202
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RENDERED: FEBRUARY 22,200l
TO BE PUBLISHED
99-SC-0069-DG
APPELLANT
SHELLY WILSON
ON REVIEW FROM THE COURT OF APPEALS
NO. 97-CA-0407-MR
JEFFERSON CIRCUIT COURT NO. 92-CR-3275
DIVISION NO. ELEVEN,
HONORABLE JUDITH MCDONALD-BURKMAN, JUDGE PRESIDING
APPELLEE
COMMONWEALTH OF KENTUCKY
DISSENTING OPINION BY JUSTICE STUMBO
Respectfully, I must dissent.
I would reverse the decision of the Court of
Appeals in regard to the suppression of the telephone records and would reinstate the
holding of the trial court on that issue. The trial court held, and I agree, that the
improper use of the Grand Jury subpoena power to obtain the telephone records
renders the evidence found because of them “the fruit of the poisonous tree.” The
Commonwealth did not appeal the holding that the telephone records were improperly
obtained and should be suppressed, but does contest the trial court’s finding that the
other evidence is tainted by the illicit nature of the phone record’s source. The
argument which succeeded in the Court of Appeals, and is again successful here, is
that there was other sufficient evidence from an independent source to support
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probable cause for the search warrant and therefore the evidence seized need not be
suppressed.
In regard to Appellant, the other evidence emphasized by the majority consisted
of observation that “vehicles would stop [at Appellants residence] for a short time and
then leave,” that she was in possession of rolling papers when stopped, that she
admitted to marijuana use when questioned, and when asked if she dealt in drugs, said
it was “nothing you would be interested in.” While this evidence might support a finding
of probable cause, what is not recounted or emphasized by the majority is that the only
way the investigation focused upon Appellant was through the illegally obtained
telephone records. Had there been no phone records, Appellant’s name and address
would not have come to the attention of the police, her house would not have been
placed under surveillance, and she would not have been stopped by the police and
questioned in the first place. Nowhere in the affidavit supporting the issuance of the
search warrant is there any evidence, or other information, that would explain why the
Appellant became the object of law enforcement attention in the first place, if not for the
telephone records. The doctrine of the fruit of the poisonous tree has steadily
weakened over the past two decades. Wtth the issuance of this opinion, it nears
extinction in the Commonwealth.
Johnstone, J., joins this dissent.
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