JAMES A. CRUM V. COMMONWEALTH OF KENTUCKY
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AS MODIFIED : MAY 25, 2007
RENDERED : MAY 24, 2007
TO BE PUBLISHED
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2005-SC-000395-DG
JAMES A. CRUM
ON REVIEW FROM COURT OF APPEAL
2004-CA-000180
PIKE CIRCUIT COURT NO. 03-CR-0022
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE NOBLE
REVERSING AND REMANDING
James A. Crum, Appellant, was indicted by the Pike County Grand Jury for
charges of second-degree trafficking in a controlled substance, trafficking in marijuana
over eight ounces, possession of drug paraphernalia, and first-degree possession of a
controlled substance . After his motion to suppress based on a deficient warrant was
denied, he entered
a conditional guilty plea .
Judgment of two years total time was
entered, and this appeal followed .
I . Background
Kentucky State Trooper Bradley Cure was approached during a call to a scene
by a bystander, Dora Crum . For no stated reason, Ms. Crum decided to inform Trooper
Cure that her estranged husband, the Appellant, had two to three pounds of marijuana
at his house . Pike County Sheriff Butch McCoy, who was also at the scene, told
Trooper Cure that he had heard rumors that Appellant had been dealing in marijuana,
and that he had received information from Ms . Crum in the past when he was working
undercover.
Based on this information, Trooper Cure prepared an affidavit for a warrant to
search Appellant's house, and presented it to the trial commissioner who issued the
search warrant. When the trooper searched Appellant's home pursuant to the warrant,
he found approximately two pounds of marijuana and drug paraphernalia . Appellant
filed a motion to suppress the evidence arguing that the affidavit used to obtain the
search warrant was insufficient to support issuance of the warrant . Specifically he
claimed that the affidavit did not state with specificity what the alleged contraband was,
listed the wrong name of the property owner on the second page, and contained no
information to establish the reliability of the informant, who was not identified . Holding
that the testimony offered by Officer Cure at the motion hearing "satisfied the
Leon/Cra on standards" for the good faith exception to the warrant requirement, the
trial court overruled the motion to suppress, which forms the basis of this appeal .
11. Analysis
In United States v. Leon, 468 U.S. 897,104 S.Ct. 3405, 82 L.Ed .2d 677 (1984),
the United States Supreme Court articulated the competing goals at play when officers
reasonably rely on a search warrant issued by a detached and neutral magistrate that is
ultimately found to be unsupported by probable cause:
To resolve this question, we must consider once again the tension
between the sometimes competing goals of, on the one hand, deterring
official misconduct and removing inducements to unreasonable invasions
of privacy and, on the other, establishing procedures under which criminal
defendants are "acquitted or convicted on the basis of all the evidence
which exposes the truth ."
Id . at 900-01, 104 S.Ct. at 3409 (quoting Alderman v. United States, 394 U .S. 165, 175,
89 S.Ct. 961, 967, 22 L.Ed .2d 176 (1969)) .
Based on a balancing approach toward the benefits of the exclusionary rule and
the detriment of suppressing "inherently trustworthy tangible evidence obtained in
2
reliance on a search warrant issued by a detached and neutral magistrate that
ultimately is found to be defective," id . at 907, 104 S .Ct. at 3412, the Court reached the
conclusion "that such evidence should be admissible in the prosecution's case in chief."
Id. at 912, 104 S.Ct. at 3415 .
This Court followed Leon in Crayton v. Commonwealth , 846 S.W .2d 684 (Ky.
1992), in concluding that the officers in that case had acted in good faith and that the
judicial officer had responsibility to determine whether the instrument was sufficient on
its face to establish probable cause. The Court then viewed Leon in light of Section 10
of the Kentucky Constitution, concluding that there was "little textual difference"
between the Fourth Amendment to the Constitution of the United States and our Section
10. Finally, it held that since it was the judicial officer who had mistakenly determined
that probable cause was sufficient to issue the warrant, suppressing the evidence would
have little deterrent effect upon police conduct . Of particular import, the probable cause
deficiency was due to the failure of the officers to state in the warrant sufficient
"evidence and facts" in reliance on advice from the County Attorney . The Court,
however, did state,
There is a popular but erroneous belief that the Leon Court
eviscerated the exclusionary rule when the evidence is obtained pursuant
to a search warrant . In fact, the Court held that the officer must have an
objectively reasonable belief in the sufficiency of the warrant and the
probable cause determination . If the affidavit contains false or misleading
information, the officer's reliance cannot be reasonable . Likewise, the
Court retained the exclusionary rule and applied no presumption of validity
in cases of abandonment by the judge of a detached and neutral role, and
in cases where the officer's belief in the existence of probable cause is
entirely unreasonable . Finally, suppression was retained as a remedy
where the warrant is facially deficient by failing to describe the place to be
searched or the thing to be seized .
Id . at 687-88 .
Subsequently, in Commonwealth v. Opell, 3 S .W .3d 747 (Ky. App . 1999), the
Court of Appeals stated that failing to describe "the thing to be seized" remained a basis
to suppress evidence obtained from a defective warrant regardless of the officer's good
faith in executing a warrant issued by a judge, but also cautioned that suppression of
evidence obtained pursuant to a warrant should be ordered only on a case-by-case
basis when doing so will further the purpose of deterring inappropriate policing .
The affidavit presented to the Commissioner in this case was drafted on a form
provided by the Administrative Office of the Courts and reiterates at two places that the
affiant has reasonable and probable grounds or cause to believe the statements made
in the affidavit. The description of the property to be searched describes with adequate
particularity where it is located . However, this is where the particularity stops. As
Appellant complains, the thing to be seized is described only as "illegal contraband," the
informant is not named, and the officer's reason for believing the informant to be reliable
is not stated . The affidavit states that the officer's independent investigation consists of
"information" that was received from a deputy sheriff without stating the nature of that
information . On the whole, it is impossible to tell the basis of the officer's knowledge or
exactly what he is looking for. The affidavit is thus so lacking in indicia of probable
cause that any warrant issued on it must likewise be lacking . As Court of Appeals
Judge Henry aptly put in his dissenting opinion below,
All that Commissioner Hatfield could properly consider in deciding whether
to issue this warrant was that some unnamed person had told Trooper
Cure that James Crum, who lived at 110 Crum Hill Road in Pike County,
Kentucky had "a quantity of illegal contraband" and that the trooper
received some unspecified information from Deputy Gary McCoy. The
Commissioner did not have a substantial basis for concluding that the
affidavit established probable cause .
Testimony before the trial court indicated that the officer did know more, and
could have put more information in the warrant. Nonetheless, the warrant is facially
deficient because it does not adequately describe the thing to be seized . "Illegal
contraband" can be any number of things . In fact, this term is so broad that Trooper
Cure actually checked every box on the affidavit form, including one which indicated he
was looking for stolen property. Subsequent to a search under such a warrant, an
officer could testify that whatever was found was indeed what he meant by "illegal
contraband." Such an affidavit is so lacking in indicia of reliability that the officer's good
faith reliance cannot be deemed reasonable . Failing to describe with particularity the
thing to be seized invites a finding that the other reasons why evidence may still be
excluded under Leon and Cra on also apply. Additionally, it differs from simply
omitting evidence and facts about how the officer obtained information or what may
have been observed as a basis for requesting the warrant.
Failing to state what the object of the search is amounts to requesting permission
to go on a fishing expedition . While the requesting officer may indeed be acting in good
faith, no one's home should be searched without a specific object of the search being
stated . For this reason, failing to name the thing to be seized is not covered by the
"good faith" justification for a search on a warrant issued by a judicial officer that lacks
probable cause. The other deficiencies alleged by the Appellant do not rise to the level
of failing to state the object of the search, and standing alone could not overcome the
good faith justification .
Consequently, this being the sole issue on appeal, the decision of the Court of
Appeals affirming the trial court is reversed, and this case is remanded to the trial court
for proceedings consistent with this Opinion .
All sitting . All concur .
COUNSEL FOR APPELLANT:
W. Sidney Trivette
PO Box 2744
Pikeville, Kentucky 41502
COUNSEL FOR APPELLEE :
Gregory D. Stumbo
Attorney General
Michael Harried
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, Kentucky 40601-8204
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2005-SC-000395-DG
JAMES A. CRUM
V.
APPELLANT
ON REVIEW FROM COURT OF APPEALS
2004-CA-000180
PIKE CIRCUIT COURT NO. 03-CR-00221
COMMONWEALTH OF KENTUCKY
APPELLEE
ORDER
On the Court's own motion, the Opinion of the Court by Justice Noble rendered
May 24, 2007 shall be modified on page 4, line 19, by changing the word "Miller" to
"Henry" and to correct spacing between paragraphs. Due to pagination, pages 4, 5 and
6 shall be substituted, as attached hereto, in lieu of pages 4, 5 and 6 of the Opinion as
originally rendered . Said modification does not affect the holding .
Entered : May 25, 2007.
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