TIMOTHY W. HACK V. COMMONWEALTH OF KENTUCKYAnnotate this Case
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
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RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
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RENDERED : JANUARY 20, 2011
NOT TO BE PUBLISHED
,;vuVrrmr (~ourf of
TIMOTHY W. HACK
ON APPEAL FROM HARDIN CIRCUIT COURT
HONORABLE KEN HOWARD, JUDGE
NO . 09-CR-00012
COMMONWEALTH OF KENTUCKY
MEMORANDUM OPINION OF THE COURT
Appellant, Timothy Hack, entered a conditional guilty plea in Hardin
Circuit Court to Complicity to Commit Manufacturing in Methamphetamine;
Controlled Substance Endangering the Welfare of a Minor, Fourth Degree;
Complicity to Commit Tampering with Physical Evidence; Possession of Drug
Paraphernalia, Second or Subsequent Offense; and of being a Persistent Felony
Offender, Second Degree. Appellant received a sentence totaling twenty years
for the crimes . He now appeals as a matter of right. Ky. Const. § 110(2)(b) .
The instant case arose out of a home visit initiated by Jane Maeser, an
employee of the Grayson County Cabinet for Health and Family Services
(CHFS) . At the behest of her supervisor . Maeser travelled to Appellant's
residence in Hardin County to complete a follow-up visit. Appellant had an
open file with CHFS dating back to 2007, when he resided with another woman
and her children. Based on her past experiences with Appellant, Maeser
suspected Appellant's involvement in manufacturing methamphetamine and,
thus, requested a police escort for the home visit.
The next day, December . 1.0, 2008, Detective Rex Allaman of the Greater
Hardin County Drug Task Force, Deputy Robert Dover of the Hardin County
Sherriffs Office, and an "Officer Thompson," 1 accompanied Maeser to
Appellant's residence . After arriving, Deputy Dover, a uniformed officer, and
Maeser knocked on the front door, received no answer, and proceeded to the
back of the house . Appellant's wife and co-resident, Rachael Hack, answered
the back door and informed the group that clothes and a chair obstructed the
back door, and asked them to return to the front door. After a delay, Rachael
answered the front door. Deputy Dover identified himself and Maeser, and
informed Rachael that they were there to follow up on a CHFS case on her
husband . At that point, Rachael either invited in or consented to the group's
Upon entry, Allaman smelled an odor commonly associated with a "lab
situation." He also noticed what he believed to be a methamphetamine pipe
sitting on a table, in plain view . At that point, Deputy Dover advised both
Appellant and Rachael of their Miranda rights and read them a "consent to
Officer Thompson is a law enforcement officer; the record is unclear on his precise
search" form . Miranda v. Arizona, 384 U .S. 436 (1966) . Appellant and Rachael
signed this consent form, allowing the police to search the residence .
The search revealed numerous items commonly used to manufacture
methamphetamine, including: a pipe, pills, a pyrex dish, glassware, and a pill
guide, among other things. The police also removed a false wall inside the
house and found a Mountain Dew bottle with a "seized" cap, containing an
unidentified liquid, a plate with residue on it, a bottle of liquid fire, a funnel,
coffee filters, salt, protective gloves, iodine bottles, pill wash containers,
gasoline, antifreeze, ammonium nitrate, plastic tubing, a digital scale, razor
blades, stained measuring spoons, an electric burner plate, and
pseudoephedrine in a pill bottle . Several weeks later, a Hardin County Grand
Jury indicted Appellant based on the fruits of the above search, and Appellant
entered a plea of not guilty.
Appellant next filed a motion to suppress all evidence gathered on
December 10, 2008, alleging that the search was unconstitutional. At the
hearing, the only evidence presented was the testimony of Maeser, Dover, and
Allaman . The trial court then denied Appellant's motion to suppress, finding
that the purpose of the visit was to close an open CHFS case, there was no
evidence of a ruse or that the police used false pretenses to gain entry into
Appellant's house, and the consent to search was validly given.
Following denial of his motion to suppress, Appellant entered a
conditional guilty plea to: one count of Complicity to Commit Manufacturing in
Methamphetamine ; one count of Controlled Substance Endangering the
Welfare of a Minor, Fourth Degree; one count of Complicity to Commit
Tampering with Physical Evidence; one count of Possession of Drug
Paraphernalia, Second or Subsequent Offense; and one count of Persistent
Felony Offender, Second Degree. The terms of the plea agreement mandated
that Appellant serve a total of twenty years' imprisonment .
As reserved by his conditional plea agreement, Appellant now appeals the
denial of his motion to suppress to this Court. In a single argument, Appellant
contends that the police officers used a ruse to gain entry into his residence,
which merits suppression of all evidence seized that day.2
Appellant argues that the police opportunistically used Maeser's request
for a police escort to gain entry into his residence under the guise of
accompanying her to close out a CHFS case. Without citation to any pertinent
legal authority, Appellant specifically contends that this alleged ruse is
evidenced by the following facts: Maeser worked for the Grayson (not Hardin)
County Cabinet of Health and Family Services, was not a licensed social
worker, and "did not have any documents on Timothy Hack with her"
presumably at the time of the home visit.3 Accordingly, Appellant claims that it
Appellant makes no arguments regarding the "consent to search" form he and
Maeser initially testified that she identified herself as a social worker, but later said
she did not believe she ever told anyone she was a social worker . Rather she
testified that she was a social service worker with the Grayson County Cabinet for
Health and Family Services .
is clear that the officers were present to search the residence for drugs, but did
not have probable cause to obtain a warrant.
Before we evaluate Appellant's claim, we pause to briefly note that we
review the trial court's factual findings in connection with the denial of a
motion to suppress evidence under a clearly erroneous standard .
Commonwealth v. Banks, 68 S .W.3d 347 (Ky. 2001) . In the present case, the
trial court found no credible evidence indicating that the police employed a
ruse . We agree .
Although we note that the use of ruses is not necessarily
unconstitutional, 4 there is no evidence here suggesting that the police
employed a ruse to gain admission to Appellant's residence. As stated above,
the only evidence is the testimony of two law enforcement officers and an
employee of the Cabinet of Health and Family Services. Thus a review of the
record reveals the following uncontroverted testimony: Maeser was employed
by the Grayson County Cabinet of Health and Family Services; a supervisor
instructed Maeser to close out Appellant's open case ; Hack's Hardin County
residence was very close to the Grayson County line; Maeser went to the Hack
residence with a police escort due to suspicion of prior drug use and
manufacturing; Dover, a uniformed officer, explained to Racheal Hack that he
was there with Maeser so that she could close an open case on Appellant; and
See Krause v. Commonwealth, 206 S .W.3d 922, 926-27 (Ky. 2006) (listing numerous
ruses that passed constitutional muster) .
Rachael invited in or consented to the entrance of Dover, Maeser, Allaman, and
Thompson into the Hack residence.5
Based on the above uncontroverted testimony given at the suppression
hearing, we find the trial court's conclusion--that there was no credible
evidence of a ruse---was not clearly erroneous. Appellant's argument regarding
Maeser's failure to bring documents to the home visit or suggestion that
Maeser was outside her jurisdiction is without basis . No evidence was
presented that CHFS workers are required to bring paperwork on follow-up
visits or that they may only operate in one county. Arguments based on
conjecture are unpersuasive; as we have previously stated, "[w]e will not engage
in gratuitous speculation . . . based upon a silent record." Commonwealth v.
Thompson, 697 S.W .2d 143, 145 (Ky. 1985) . Consequently, we affirm the trial
court's factual findings that the law enforcement officers did not employ a ruse
to gain admission, but were consensually present in the Hack residence .
In an alternative form of the above argument, Appellant contends that
"consent was not voluntarily obtained because Ms . Hack was effectively coerced
by Deputy Dover's statement" regarding the purpose of Maeser's visit.
Appellant argues that Dover's misrepresentations placed the officers inside the
residence, at which point they saw the methamphetamine pipe and smelled the
chemical odor. In support of this argument, Appellant cites to Krause v.
Commonwealth, wherein we cautioned that the use of a ruse cannot frustrate
While Allaman's testimony was sloppily worded at some points, he consistently
repeated that Rachael Hack consented to his request to enter .
the constitutional requirements that a warrantless entry into and search of a
home must be free of coercion. 206 S.W. 3d 922 (Ky. 2006) . However,
Appellant concedes that Krause is "not directly on point."
In Krause, a police officer concocted a false story regarding the rape of a
young girl inside the appellant's residence in order to secure permission to
search appellant's residence. Krause, 206 S.W .3d at 924. However, the
officer's true intention was to search the residence for drugs, since the officer
knew no such assault actually occurred. Id. In a narrow holding, we
concluded that the deception employed by the police officer was unfair and
unconscionable, rendering the appellant's consent to search the house
unconstitutionally invalid . Id. at 927-28 .
The holding in Krause is inapposite to the present case, as Appellant's
argument relates to the officers' consent to enter. Moreover, Appellant does not
submit any argument relating to the "consent to search" form he signed .
Rather, the consent to search was given after the police were already inside the
house and observed a methamphetamine pipe in plain sight. As we have
previously held, in order to constitutionally .seize objects in plain view, a law
enforcement officer must lawfully "arriv[e] at the place where the evidence
could be plainly viewed." Hazel v. Commonwealth, 833 S .W.2d 831, 833 (Ky.
1992) (internal citations omitted) . As the trial court found--a conclusion we
hold was not clearly erroneous----the law enforcement officers were inside the
Hack residence pursuant to Rachael Hack's invitation or consent.
Consequently, Appellant's reliance on Krause is misguided and, thus, his
coercion argument is also unavailing .
For the reasons above, we affirm the trial court's denial of Appellant's
motion to suppress, and therefore affirm its judgment and sentence.
All sitting. All concur .
COUNSEL FOR APPELLANT:
Karen Shuff Maurer
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601
COUNSEL FOR APPELLEE:
Attorney General of Kentucky
Michael John Marsch
Assistant Attorney General
Office of Criminal Appeals
Attorney General's Office
1024 Capital Center Drive
Frankfort, KY 40601