COMMONWEALTH OF KENTUCKY V. DEDRA HATCHER
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RENDERED : MAY 18, 2006
TO BE PUBLISHED
2004-SC-0242-DG
COMMONWEALTH OF KENTUCKY
APPELLANT
ON REVIEW FROM COURT OF APPEALS
2002-CA-2480-MR
McCRACKEN CIRCUIT COURT NO. 2002-CR-0072
V.
DEDRA HATCHER
APPELLEE
OPINION OF THE COURT BY JUSTICE JOHNSTONE
AFFIRMING AND REMANDING
Appellee, Dedra Hatcher, entered a conditional guilty plea in the McCracken
Circuit Court to second offense possession of drug paraphernalia following the trial
court's denial of her motion to suppress evidence seized during a warrantless search of
her residence . The Court of Appeals reversed the judgment and remanded the case to
the trial court . This Court thereafter granted the Commonwealth's motion for
discretionary review. For the reasons set forth herein, we now affirm the decision of the
Court of Appeals.
In November 2001, the Paducah Police Department received an anonymous
report of an allegedly abandoned minor . Officer Darryl Carr and two other officers
responded to the complaint . Upon arriving at the home in question, Officer Carr first
knocked on the front door. After receiving no response, Officer Carr peered in a front
window and viewed someone asleep on the couch. The officer again knocked on the
door, and Hatcher's adolescent son eventually responded .
When the front door was opened, Officer Carr observed a pipe sitting on a table
in the front room . Officer Carr described the pipe as being ceramic, having a stem two
to four inches long, with a large bowl bearing a skull on the front of it. Officer Carr
thereafter asked the minor if he could enter the residence . Officer Carr picked up the
pipe and detected an odor of marijuana emanating from it.
Hatcher returned home as officers were preparing to leave. She admitted to
owning the pipe, claiming that it was for personal use. She was thereafter arrested and
charged in the McCracken Circuit Court with possession of drug paraphernalia, second
offense .
Prior to trial, defense counsel moved to suppress the pipe on the grounds that it
had been seized in violation of Hatcher's rights under the Fourth and Fourteenth
Amendments to the United States Constitution and Section Ten of the Kentucky
Constitution . In its order denying Hatcher's motion, the trial court determined that
seizure of the pipe fit within the "plain view" exception to the prohibition against
warrantless searches . Specifically, the trial court found :
On or about November 22, 2001, Officer Darryl Carr of the Paducah
Police Department responded to a complaint of an abandoned minor at
the defendant's residence at 733 Keorner Street, Paducah, Kentucky.
Officer Carr observed the defendant's child asleep on the couch and
knocked on the door. When the child opened the door Officer Carr
observed in plain view an item which Officer Carr believed to be a device
used for smoking marijuana or other illegal substances in the living room .
Officer Carr's belief that the item was to be used for smoking marijuana
was based upon his training and experience as a Paducah Police Officer.
The child allowed Officer Carr into the residence and upon further
examination Officer Carr detected the odor of marijuana emanating from
the pipe. Officer Carr then seized the pipe.
Hatcher thereafter entered a conditional guilty plea pursuant to RCr 8.09 to one count
of second offense use/possession of drug paraphernalia .
The Court of Appeals reversed the trial court, holding that Officer Can's
testimony at the suppression hearing did not satisfy the elements of the "plain view"
exception to warrant requirement because the pipe's status as drug paraphernalia was
not immediately apparent. The court further concluded that no exigent circumstances
supported the officer's entry into the home .
The Fourth Amendment of the United States Constitution and Section Ten of the
Kentucky Constitution provide safeguards against an unwarranted and unreasonable
search and seizure by the state . As espoused by the United States Supreme Court,
"searches conducted outside the judicial process, without prior approval by judge or
magistrate, are per se unreasonable under the Fourth Amendment-subject only to a few
specifically established and well delineated exceptions ." Katz v. United States , 389
U .S . 347, 357, 88 S . Ct . 507, 514, 19 L. Ed . 2d 576 (1967). One such exception is
evidence found within "plain view." Coolidge v. New Hampshire , 403 U.S . 443, 91 S .
Ct. 2022, 29 L . Ed. 2d 564 (1971). See also Horton v. California, 496 U.S . 128, 110 S.
Ct. 2301, 110 L. Ed . 2d 112 (1990). In Hazel v. Commonwealth , 833 S .W .2d 831, 833
(Ky. 1992), this Court discussed the elements that must exist before evidence seized
pursuant to the "plain view" exception may be admitted :
First, the law enforcement officer must not have violated the
Fourteenth Amendment in arriving at the place where the
evidence could be plainly viewed. Second, "not only must the
officer be lawfully located in a place from which the object can
be plainly seen, but he or she must have a lawful right of
access to the object itself." Finally, the object's "incriminating
character must also be 'immediately apparent ."' Coolidge,
403 U .S. at 466, 91 S . Ct . at 2038.]
Officer Carr was certainly authorized to knock on Hatcher's door to respond to
the report of an allegedly abandoned minor. Further, Hatcher's Fourteenth Amendment
rights were not violated when Officer Carr looked into her house through the opened
door . Nevertheless, we conclude, as did the Court of Appeals, that the search in this
case must fail under the second two elements of the "plain view" analysis .
Officer Carr did not have a warrant authorizing his entry into Hatcher's residence .
As such, his entrance must have been precipitated by some exigent circumstance,
such as threat of injury or destruction of evidence . Officer Carr's presence at Hatcher's
residence was to validate the anonymous report of an abandoned minor. Yet, Officer
Carr did not attempt to corroborate the report by asking the minor if he was okay or if he
was even, in fact, alone. Rather, upon viewing the pipe, Officer Carr simply asked the
minor if he could come in .
Justice Graves, in his dissenting opinion, erroneously states that we concede
once Officer Carr entered Hatcher's residence and smelled marijuana, "he had
probable cause to seize the pipe as it was in plain view and was likely to be destroyed
or concealed if he did not immediately take steps to secure the evidence ." (Dissenting
opinion p. 6). First, contrary to the dissent's repeated mischaracterization of the
evidence, a review of the record confirms that Officer Carr did not detect an odor of
marijuana until he physically picked up the pipe and smelled it. Further, not even
Officer Carr alleged any exigent circumstances which he believed justified his
immediate entry into the home . There was certainly no argument presented to the trial
court that the adolescent was perceived as a threat or that there was any fear he would
destroy or conceal the pipe. "Before agents of the government may invade the sanctity
of the home, the burden is on the government to demonstrate exigent circumstances
that overcome the presumption of unreasonableness that attaches to all warrantless
home entries ." Id . at 750,104 S . Ct. at 2098. See also Commonwealth v. McManus ,
107 S .W.3d 175 (Ky. 2003), cert. denied, 540 U.S. 1017, 124 S. Ct. 571, 157 L . Ed . 2d
(2003).
As Officer Carr was not authorized to enter Hatcher's residence, the incriminating
nature of the pipe must have been "immediately apparent" from his vantage point in the
doorway . The interpretation of "immediately apparent" has presented reviewing courts
with significant difficulty . In United States v. McLevain , the Sixth Circuit Court of
Appeals noted that "upon viewing the object, the officer must at that moment have
probable cause to believe the object to be contraband or evidence of illegal activity."
310 F.3d 434, 442 (6th Cir. 2002), quoting United States v. Tucker , 305 F.3d 1193,
1198 (10th Cir. 2002). The court further noted that "when an item appears suspicious
to an officer but further investigation is required to establish probable cause as to its
association with criminal activity, the item is not immediately incriminating ." Id. at 443 .
In Arizona v. Hicks, 480 U .S. 321, 107 S . Ct. 1149, 94 L. Ed . 2d 347 (1987),
police officers had entered Hick's apartment in search of a shooting suspect . While in
the apartment, one of the officers noticed several expensive stereo components.
Suspecting they were stolen, the officer moved the components in an effort to report the
serial numbers . Upon being advised that the components had been taken in an armed
robbery, the officer seized them. The Arizona trial court and court of appeals held that
suppression of the evidence was warranted on the grounds that although the initial
warrantless search of Hick's apartment was justified by the exigent circumstances of the
shooting, the additional "search" of the stereo components was unrelated to that
exigency . Both courts rejected the State's contention that the officer's actions were
justified under the "plain view" doctrine .
The U.S . Supreme Court upheld the lower courts, holding that the officer's
moving of the stereo components to obtain the serial numbers constituted an unjustified
"search" separate and apart from the search for the shooter. Further, the Court
enunciated for the first time that probable cause is required to invoke the plain view
doctrine .
Dispensing with the need for a warrant is worlds apart from
permitting a lesser standard of cause for the seizure than a
warrant would require, i.e. , the standard of probable cause. No
reason is apparent why an object should routinely be seizable
on lesser grounds, during an unrelated search and seizure, than
would have been needed to obtain a warrant for that same
object if it had been known to be on the premises.
Id . at 327, 107 S. Ct. at 1153-54 (emphasis in original) . Notably, in responding to
Justice Powell's dissenting opinion, the majority pointed out that the "distinction
between 'looking' at a suspicious object in plain view and 'moving' it even a few inches
is much more than trivial for purposes of the Fourth Amendment ." Id . at 325, 107 S . Ct.
at 1152. Apparently, the dissenting opinion herein fails to recognize this distinction as
well .
Officer Carr testified that he observed a pipe sitting on the table that, based on
his experience and training, was predominantly used to smoke marijuana . Officer Carr
conceded, however, that he did not observe any marijuana or other drug paraphernalia,
nor could he see any residue in the pipe from his vantage point. Officer Carr further
testified that the particular type of pipe was legal to purchase and could be used to
smoke tobacco. Importantly, at the time Officer Carr observed the pipe, he had not
spoken with Hatcher and was unaware of her prior conviction for possession of drug
paraphernalia . Thus, Officer Carr had no probable cause to believe the pipe was drug
paraphernalia until he picked it up and smelled the odor of marijuana . However, such is
analogous to the search condemned in Arizona v. Hicks . We find no distinction
between the manipulation of a pipe to discern the odor of marijuana and the
manipulation of stereo components to retrieve serial numbers . Although the pipe
appeared suspicious to Officer Carr, further investigation was required to establish
probable cause as to its association with criminal activity, and thus it simply was not
immediately incriminating . See McLevain , supra .
We note that the Commonwealth devotes a great deal of effort in this Court, as it
did in the Court of Appeals, in arguing that the pipe was produced as a result of a
consensual search. However, we agree with the Court of Appeals that such claim is not
preserved for review . Indeed, the Commonwealth's sole theory during the suppression
hearing was one of "plain view," and we limit our opinion herein to that context . At no
point did the Commonwealth contend that Hatcher's son voluntarily consented to the
search, and we do not undertake at this time to determine the legally validity of a
minor's consent to a search of the family residence .
In arguing that the consent issue is, in fact, preserved, the dissenting opinion
makes the bald assertion that there is "substantial evidence in the record" to support
the conclusion that the trial court considered the issue and properly ruled that the minor
consented to Officer Cares search of the premises . Yet, the "record" that the dissent
relies upon contains absolutely nothing other than Officer Cares testimony . Neither the
Commonwealth nor the defense presented any other evidence during the suppression
hearing . Thus, it is difficult to perceive how the trial court could have possibly made an
informed decision regarding the legal effect of the minor's actions without the benefit of
the minor's testimony or even accurate information as to his age .
For such reason, we conclude that the dissent's citation to federal authority is
neither "directly on point," nor indicates "unequivocally that the adolescent in this case
had the common authority to allow Officer Carr into the home ." (Dissenting opinion, p .
3). Rather, in United States v. Clutter, 914 F.2d 775 (6th Cir. 1990), cert. denied , 499
U .S. 947, 111 S . Ct . 1413, 113 L. Ed . 2d 466 (1991), the Sixth Circuit Court of Appeals
noted that "mature family members" may possess the authority to admit police into the
family premises . Similarly, the Eleventh Circuit Court of Appeals in Lenz v. Winburn, 51
F .3d 1540, 1548 (11th Cir. 1995), opined that an "individualized assessment" of the
minor is crucial to determining the voluntariness of the consent. Thus, it is clear from a
cursory reading of these opinions that the age and actions of the minor must be
considered in determining whether consent was given. Here, other than Officer Cares
testimony, there was no evidence presented during the suppression hearing concerning
the age or maturity of Hatcher's son . Accordingly, it belies reason to assert that the trial
court considered and ruled on the consent issue . The record herein simply does not
support such a conclusion .
Again, the Commonwealth's sole theory at the suppression hearing was that the
seizure of the pipe fell within the "plain view" exception to the warrant requirement . The
Commonwealth had the burden to show that at the moment Officer Carr observed the
pipe, he had probable cause to believe that it was illegal contraband . Contrary to the
dissent's claim that the probable cause standard was clearly met, the trial court never
made such a finding . Rather, the trial court erroneously concluded that Officer Cares
belief that the item was used for smoking marijuana authorized his entry and seizure of
the pipe. Clearly, the trial court's findings and conclusions run afoul of Arizona v. Hicks .
For the reasons discussed herein, we affirm the decision of the Court of Appeals.
This matter is remanded to the McCracken Circuit Court for further proceedings
consistent with this opinion .
Lambert, C.J . ; Cooper, Roach, and Scott, JJ., concur. Graves, J ., dissents by
separate opinion, with Wintersheimer, J ., joining that dissent .
COUNSEL FOR APPELLANT :
Gregory D. Stumbo
Attorney General of Kentucky
James Havey
Assistant Attorney General
Criminal Appellate Division
Office of Attorney General
1024 Capital Center Drive
Frankfort, KY 40601
COUNSEL FOR APPELLEE:
Thomas M. Ransdell
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601
RENDERED : MAY 18, 2006
TO BE PUBLISHED
,Suprmur Caurf of ~rnfurkg
2004-SC-0242-DG
COMMONWEALTH OF KENTUCKY
APPELLANT
ON REVIEW FROM COURT OF APPEALS
2002-CA-2480-MR
MCCRACKEN CIRCUIT COURT NO. 2002-CR-0072
V.
DEDRA HATCHER
APPELLEE
DISSENTING OPINION BY JUSTICE GRAVES
Respectfully, I must dissent from the majority's opinion because I believe it is
patently contrary to the standards set forth in both federal and Kentucky jurisprudence .
The probable cause standard was clearly met to justify a "plain view" seizure of the pipe
in this case. Accordingly, I would reverse the Court of Appeals and affirm the trial
court's ruling .
The majority concedes that once Officer Carr detected the smell of marijuana
emanating from the pipe, he had probable cause to believe the pipe was drug
paraphernalia . Yet, the majority refuses to consider this additional evidence since
Officer Carr did not smell the marijuana until he entered the premises. According to the
majority, whether or not Officer Carr was given consent to enter the premises was not
"preserved for review."
I must disagree, as I find the majority's conclusion to be unsupported by the
record . The trial court's written findings of fact state; "The child allowed Officer Carr into
the residence and upon further examination Officer Carr detected the odor of marijuana
emanating from the pipe." (Emphasis added). The trial court further concluded as a
matter of law, "When Officer Carr observed the pipe he was in a place he was legally
entitled to be. Therefore, the plain view exception to the prohibition against warrantless
searches applies . . . ." (Emphasis added) . It is unmistakable from these written
statements that the trial court considered and ruled on the consent issue,' determining
that Officer Carr was legally entitled to enter the house and further observe the pipe .
Accordingly, the issue is properly preserved for our review. See Commonwealth v.
Maricle , 15 S.W .3d 376, 380 (Ky. 2000) (issues "raised and ruled on by the trial court"
are proper for appellate court review).
Since the trial court's determination of probable cause was premised upon the
assumption that Officer Carr was in a place he was legally entitled to be when he
detected the smell of marijuana emanating from the pipe, we must determine whether
Officer Carr had valid consent to enter Appellant's home . Upon proper review, both
federal and Kentucky jurisprudence support the trial court's determination that Officer
Carr was given valid consent .
In Nourse v. Commonwealth , 177 S .W.3d 691 (Ky. 2005), we held that "[t]he test
for whether third-party consent is valid is whether a reasonable police officer faced with
the prevailing facts reasonably believed that the consenting party had common authority
over the premises to be searched ." Id . 696 . "Common authority rests on mutual use of
' The majority reasons that since "the trial court could [not] have possibly made an
informed decision regarding the legal effect of the minor's actions without the benefit of
the minor's testimony," then "it belies reason to assert that the trial court considered and
ruled on the consent issue ." Ante, at
(slip op. pg . 8). Whether or not the majority
believes that the trial court's decision was "informed" or not, the fact remains that the
consent issue was considered and ruled on by the trial court (as there are specific
findings regarding it), and thus, we are obligated to consider it.
2
the property by persons generally having joint access or control for most purposes . . . ...
United States v. Matlock, 415 U.S . 164,171 n . 7, 94 S .Ct. 988, 993 n . 7, 39 L.Ed.2d 242
(1974). In Nourse , supra, we stated that "in the absence of additional information to the
contrary, it is generally considered reasonable for police officers to presume that
persons answering knocks at the door of a residence have authority to consent to a
search of that residence ." Id . at 698 (citing United States v. Jenkins, 92 F.3d 430 (6th
Cir .1996)).
Two Sixth Circuit cases are directly on point and indicate unequivocally that the
adolescent in this case had the common authority to allow Officer Carr into the home .
In United States v. Clutter, 914 F .2d 775 (6th Cir. 1990), the court held that children of
twelve and fourteen years could consent to a search of the bedroom used by their
mother and her male companion . Id . at 778 . The Clutter court reasoned that "there is
every reason to suppose that mature family members possess the authority to admit
police to look about the family residence, since in common experience family members
have the run of the house ." Id . at 777. In Lenz v. Winburn , 51 F.3d. 1540, 1548 (11th
Cir. 1995), the court explained :
Four reasons support our holding that minors may give third-party
consent. First, privacy is an intuitive interest, and legal sophistication is not
required even for adults to give valid consent. Hence, minors need not
necessarily be presumed incapable of knowing consent . Second, the list
of factual considerations bearing upon the voluntariness of the consent is
open-ended . The youth of the consenter, with its attendant vulnerability to
coercion, is certainly among them . This individualized assessment
obviates the need for a categorical rule to protect subjects of searches
from subtle coercive tactics to secure a minor's consent. Third, consent
searches serve a legitimate purpose that is properly balanced against the
cost of limiting a minor's ability to consent. This balancing counsels
against a bright-line rule prohibiting minor consent. Finally, the rationale
behind third-party consent involves no notion of agency. Rather, the thirdparty consent rule recognizes that sharing space with another lessens the
expectation of privacy in that space. This compromise of the expectation
of privacy is no less the case for a minor co-occupant than for an adult .
3
Id . at 1548-49 (citations omitted) .
The adolescent in this case was Appellant's son who was estimated to be about
twelve years old . Contrary to the majority's assertions, the Commonwealth was not
required to prove the adolescent's exact age or receive testimony from the adolescent
in order to establish the reasonableness of Officer Carr's actions . It is axiomatic that
police officers are entitled to make reasonable presumptions based on facts which are
reasonably available to the officer at the moment of their actions. See , e.g ., Nourse ,
supra, at 696 ; Farmer v. Commonwealth , 169 S.W.3d 50, 52 (Ky. App . 2005); see also,
United States v. Jenkins , 92 F.3d 430, 436 (6th Cir. 1996)("consent is valid if 'the facts
available to the officer at the moment . . . warrant a man of reasonable caution in the
belief that the consenting party had authority over the premises"') (quoting Illinois v.
Rodriguez, 497 U .S . 177, 188, 110 S .Ct. 2793, 2801, 111 L .Ed.2d 148 (1990)) . Officer
Carr had every reason to believe that this adolescent was of a mature age and had full
run of the house . Thus, the minor was capable of giving third-party consent to enter the
premises. See also United States v. Guitierrez-Hermosillo , 142 F.3d 1225, 1231 (10th
Cir. 1998).
The record also supports the trial court's conclusion that the adolescent's
consent was voluntarily given in this case. After Officer Carr spotted the suspicious
looking pipe, he asked the adolescent if he could come inside . In response, the minor
stepped back out of the doorway and allowed the Officer to enter the premises .
2 When the court in Clutter, supra, used the term "mature family members," it was
presuming that in the absence of circumstances indicating otherwise, adolescents
between the ages of twelve and fourteen are generally mature enough to possess
common authority over a family residence . See _id . at 777 . At no point, did the court in
Clutter analyze the maturity of the particular adolescents involved in that case, as such
an analysis would not only be absurd, but impractical .
4
"Whether consent was free and voluntary so as to waive the warrant requirement
of the Fourth Amendment is a question of fact to be determined from the totality of all
the circumstances ." United States v. Carter , 378 F.3d 584, 587 (6th Cir. 2004)(en
banc); see also Diehl v. Commonwealth , 673 S .W .2d 711, 712 (Ky. 1984). In Carter,
supra, the Sixth Circuit held that consent was voluntarily given where the defendant
stepped back and let plainly identified police officers into the residence upon their
request . Id . at 588. The court reasoned that "[a]ny ordinary caller, under like
circumstances, would understand assent to have been given, and the police are not
held to a higher standard in this regard than an ordinary person." Id. As there is
nothing in the record to indicate that this adolescent was somehow intimidated, coerced,
or tricked, there is clearly substantial evidence in the record to support the trial court's
conclusion that the adolescent voluntarily gave consent to Officer Carr to enter his
home .
Once Officer Carr was legitimately inside the premises, he was able to get a
closer look at the pipe in plain sight and detect the smell of marijuana emanating from it.
The majority makes a point of noting that since Officer Carr actually picked up the pipe,
instead of simply observing it, this case is akin to the facts in Arizona v. Hicks , 480 U.S .
321, 107 S. Ct. 1149, 94 L.Ed .2d 347 (1987). In Hicks, it was not possible for the
officers to easily observe the stereo's serial numbers without moving the stereo . Id . at
323, 107 S. Ct. at 1152. Moreover, the officers were required to report the serial
numbers by telephone to the police station before they could determine whether there
was probable cause to believe the equipment was stolen. Id. This case is easily
distinguished, as manipulation of the pipe was not necessary to determine its criminal
nature . Officer Carr could have detected any smells emanating from the pipe by simply
bending down and did not have to engage in any outside investigation in order to
determine the pipe's criminal nature . Thus, the fact that Officer Carr picked up this pipe
is of no consequence whatsoever other than to draw distinctions that have no purpose.
The majority's holding in this case simply encourages officers to be more acute to
arbitrary lines drawn by this court.
Once Officer Carr detected the smell of marijuana emanating from the pipe, he
had probable cause to seize the pipe as it was in plain view and was likely to be
destroyed or concealed if he did not immediately take steps to secure the evidence .
Posey v. Commonwealth , 185 S .W .3d 170,173 (Ky. 2006) ("Where officers have
probable cause to believe that a crime has occurred and that evidence from that crime
is in imminent danger of being destroyed, it is reasonable for law enforcement officers to
secure the place where the evidence is located in order to prevent its imminent
destruction .").
I would, accordingly, reverse the Court of Appeals and affirm the trial court's
ruling .
Wintersheimer, J ., joins this dissenting opinion .
3 Once again, the majority's assertion that there must be evidence or testimony
regarding whether the officer perceived that the occupant of the home was likely to
remove or conceal the illegal contraband is incorrect. The pipe was in plain view and
easily concealable . It was perfectly reasonable to presume that such a small item was
in imminent danger of being concealed or removed had Officer Carr left the residence
without securing the contraband . See Posey v. Commonwealth , 185 S.W.3d 170, 173
(Ky. 2006) ("Moreover, since the contraband was in plain view, it was also reasonable
for them to believe that the drugs were in imminent danger of being destroyed in the
absence of immediate action to secure the evidence .") .
6
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