THOMAS MCPHERSON 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NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE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: AUGUST 25, 2011
NOT TO BE PUBLISHED
,i5uprrittr (Court of 71- rtifuritv
ON APPEAL FROM UNION CIRCUIT COURT
HONORABLE C. RENE WILLIAMS, JUDGE
COMMONWEALTH OF KENTUCKY
MEMORANDUM OPINION OF THE COURT
Appellant, Thomas McPherson, entered a conditional guilty plea in the
Union Circuit Court to the charges of manufacturing methamphetamine,
second offense; possession of a controlled substance, first degree, second
offense; and unlawful possession of methamphetamine precursor. For these
crimes, Appellant received a total sentence of twenty years' imprisonment. As a
condition to his guilty plea, Appellant reserved the right to appeal from the
circuit court's order denying his motion to suppress. Appellant now appeals as
a matter of right. Ky. Const. § 110.
The sole issue reserved by Appellant is whether the police officer that
searched Appellant's car and seized the evidence found therein had probable
cause. For the reasons set forth below, we affirm Appellant's conviction.
Following indictment for the offenses stated above, Appellant moved the
trial court to suppress evidence seized by police during a warrantless search of
his automobile. The trial court conducted an evidentiary hearing and made
written findings of fact, concluded that the officer conducting the search had
probable cause to do so, and denied the motion to suppress.
When an appellate court reviews an order on a motion to suppress
evidence, RCr 9.78 mandates that the trial court's findings of fact are
conclusive so long as they are supported by substantial evidence. The
appellate court then reviews de novo the trial court's application of the law to
those facts to determine whether its decision is correct as a matter of law.
Owens v. Commonwealth, 291 S.W.3d 704, 707 (Ky. 2009).
FACTS AND BACKGROUND INFORMATION
The following facts are taken from the trial court's order denying
Appellant's motion to suppress and the parties' briefs. Kentucky State. Police
officers, looking for evidence relating to manufacturing methamphetamine,
executed a search warrant at a residence owned by Shawn Powell. They found
several components of a laboratory for making methamphetamine, including
dangerous chemicals, but they did not find the large quantity of
methamphetamine they suspected was there. They also failed to find Shawn
Powell. While the search was under way, Appellant arrived upon the scene in
his vehicle. A state police trooper informed Appellant of the search, and
advised him to leave. He complied.
A few hours later, at approximately 2:00 a.m., Union County Deputy
Sheriff Jason Thomas saw a car drive onto Powell's property, circle the
driveway, and leave. Thomas followed the vehicle, and when it pulled over to
the side of the road, he pulled in behind it.
Thomas approached the driver of the vehicle and asked him several
questions. At that point, Thomas learned that the driver was Appellant, the
same person who had driven onto the property during the search and had been
warned to leave. Appellant told Thomas that he was on the Powell property to
find the truck wheels that had been left for him the're. 1 Appellant also
'admitted in response to Thomas's inquiry that he had previously been
convicted for manufacturing methamphetamine.
Thomas then asked Appellant if he could search the vehicle. Although
Thomas testified that Appellant consented to a search, Appellant denied giving
consent. The trial court did not resolve that factual dispute, and accordingly,
there is no claim before this Court that the search was justified by consent.
Thomas proceeded to search the vehicle and found several items relevant to the
charges upon which Appellant's conditional guilty plea entered.
Our review of the record persuades us that the foregoing findings of fact
are supported by substantial evidence.
Thomas acknowledged that he had seen a set of truck wheels lying on Powell's
property, but also stated that they were readily visible to anyone who drove onto the
property. Appellant never retrieved the truck wheels.
APPLICATION OF THE FACTS TO THE LAW
Having determined that the operative facts are supported by substantial
evidence, we now review de novo the application of the law to the facts. The
test for probable cause is whether, based upon the totality of the
circumstances, there is a fair probability that contraband or evidence of a
crime will be found in a particular place. Moore v. Commonwealth, 159 S.W.3d
325, 329 (Ky. 2005); Sampson v. Commonwealth, 609 S.W.2d 355, 358-359
(Ky. 1980); see also Morton v. Commonwealth, 232 S.W.3d 566, 569 (Ky. App.
2007)( holding that the automobile exception to the warrant requirement
permits an officer to search a legitimately stopped vehicle where probable cause
exists that contraband or evidence of a crime may be in the vehicle).
The trial court concluded that the officer's knowledge of the following
facts established a fair probability that he would find contraband or other
evidence of a crime in Appellant's vehicle:
1. The police found the makings of a meth lab on Powell's property but
did not find Powell or the "large quantity of methamphetamine" they
thought would be there;
2. Appellant entered the Powell property, and was warned by police of
the meth lab, and warned that he should leave;
3. A few hours later, at 2:00 a.m., Appellant returned to the Powell
4. Appellant was acquainted with Powell;
5. Appellant was previously convicted for manufacturing
Although our de novo review affords no deference to the trial court's
application of the law to the established facts, Cinelli v. Ward, 997 S.W.2d 474,
476 (Ky. App. 1998), upon consideration of the totality of the circumstances we
agree with the trial court's conclusion. Appellant's persistence, despite police
warnings, to be on Powell's property known for its meth connection, the
unusual hour of the morning when he drove onto the property, Appellant's
acquaintance with Powell, and Appellant's own past association with the
manufacturing of methamphetamine would lead a reasonable person with
ordinary common sense to believe with fair probability that Appellant was
involved with the illegal activity on Powell's property and that evidence of that
involvement could be found in his car. We therefore conclude that there
existed probable cause to conduct a search of Appellant's vehicle.
For the reasons set forth above, we affirm the order of the Union Circuit
Court denying Appellant's motion to suppress evidence.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Albert William Barber, III
225 St. Ann Street
Owensboro, Kentucky 42303
COUNSEL FOR APPELLEE:
Michael John Marsch
Assistant Attorney General
Office of Criminal Appeals
Attorney General's Office
1024 Capital Center Drive
Frankfort, Kentucky 40601