TIMOTHY E. MACKEY, JR. APPELLANT
COMMONWEALTH OF KENTUCKY APPELLEE
ON APPEAL FROM MUHLENBERG CIRCUIT COURT HONORABLE BRIAN WIGGINS, JUDGE NO. 12-CR-00019
COUNSEL FOR APPELLANT: Roy Alyette Durham, II Assistant Public Advocate.
COUNSEL FOR APPELLEE: Jack Conway Attorney General James Hays Lawson Assistant Attorney General.
In the early part of 2012, Troy Gibson, a Muhlenberg County Deputy Sheriff, received complaints indicating that methamphetamine was being manufactured at a house located at 939 Gishton Road in Muhlenberg County, Kentucky. Officer Gibson believed that the Mackey family either presently owned or had previously owned this particular piece of property. Accordingly, Officer Gibson contacted a member of the Mackey family. The record does not reveal the family member's specific kinship to Appellant, Timothy E. Mackey, Jr. The relative explained to Officer Gibson that he no longer lived on the property, but nevertheless consented to a search of the house. Notably, the record does not reveal who actually held title to the property. When Officer Gibson arrived at the home, he noticed that the house was in an unlivable condition and concluded that the property was likely abandoned.
On February 5, 2012, Officer Gibson received a tip from an informant by the name of Michael Lambert. Appellant and Lambert were acquaintances. Lambert stated that Appellant was planning to manufacture methamphetamine at the 939 Gishton Road property later that night. Lambert explained that Appellant was in need of batteries and pseudoephedrine, two of the necessary ingredients needed to manufacture methamphetamine. Lambert told Officer Gibson that he would provide Appellant with crushed acetaminophen under the guise of pseudoephedrine. Officer Gibson set up a surveillance of the property. As anticipated, Appellant and Lambert arrived at the property carrying methamphetamine precursors. As Appellant approached the garage entrance to the house, he was taken into custody. A search of Appellant's person incident to his arrest revealed eight lithium batteries, tubing, and a baggie of crushed pseudoephedrine. A subsequent search of the house uncovered other precursors, including anhydrous ammonia, coffee filters, starter fluid, and a bottle of liquid fire.
Appellant was subsequently indicted for one count of manufacturing methamphetamine, one count of possession of anhydrous ammonia in an unapproved container with the intent to use or manufacture methamphetamine, and being a first-degree persistent felony offender.
During the trial, Appellant testified on his own behalf. Appellant claimed that, on the night in question, it was Lambert who proposed that the two "cook" methamphetamine and split the finished product. Lambert allegedly had all the necessary ingredients to produce methamphetamine with the exception of anhydrous ammonia and batteries. According to Appellant, Lambert supplied him with money and transportation to purchase the needed batteries. Appellant further stated that he and Lambert found the anhydrous ammonia on the side of the road. After obtaining the required ingredients, they arrived at the 939 Gishton Road property to begin manufacturing the methamphetamine. Appellant claims that he was merely serving as a lookout for Lambert.
A Muhlenberg Circuit Court jury convicted Appellant of manufacturing methamphetamine, possession of anhydrous ammonia in an unapproved container with the intent to use or manufacture methamphetamine, and being a first-degree persistent felony offender. Appellant was sentenced to thirty years imprisonment. Appellant now appeals his conviction and sentence as a matter of right pursuant to Ky. Const. § 110(2)(b).
Motion to Suppress
Appellant first argues that the trial court erred in denying his motion to suppress evidence obtained by the warrantless search of the house located at 939 Gishton Road. Appellant did not contest the lawfulness of his arrest or the search of his person incident to his arrest. A suppression hearing was held on the matter during which Officer Gibson was the only witness who testified. Gibson stated that he assumed the property was abandoned and, therefore, believed it was unnecessary to obtain a search warrant. Appellant did not testify at the suppression hearing. Appellant's counsel nevertheless argued that the property was not abandoned, that Appellant had an ownership interest in the property, and that Appellant had previously lived in the house as evidenced by the address listed on his driver's license. Appellant, however, did not introduce any evidence to prove his ownership or possessory interest in the property. The trial court found that since Appellant was living in another residence in Central City, Kentucky at the time of his arrest, he had abandoned any ownership interest in the property and had no standing to object to the warrantless search of the house.
In reviewing a trial court's denial of a motion to suppress, we first determine whether the trial court's findings are supported by substantial evidence. Adcock v. Commonwealth, 967 S.W.2d 6, 8 (Ky. 1998) (citing Ornelas v. United States, 517 U.S. 690, 697 (1996)). If the trial court's factual findings are not clearly erroneous, then we conduct a de novo review of the trial court's applicability of the law to the facts. Id.
Section 10 of the Kentucky Constitution and the Fourth Amendment to the U.S. Constitution protect against unreasonable searches and seizures. In order to invoke this protection, one must have standing—a reasonable expectation of privacy in the area searched or the property seized. Katz v. United States, 389 U.S. 347 (1967). It is unreasonable for an individual to maintain an expectation of privacy in property that he or she has abandoned. Watkins v. Commonwealth, 307 S.W.3d 628, 630 (Ky. 2010) (citing California v. Greenwood, 486 U.S. 35 (1988)). "What constitutes abandoned property has to be determined on a case-by-case basis." Watkins, 307 S.W.3d at 630.
There is limited authority discussing the abandonment of one's residence within the context of the Fourth Amendment. See Commonwealth v. Ousley, 393 S.W.3d 15 (Ky. 2013) (trash); Blades v. Commonwealth, 339 S.W.3d 450 (Ky. 2011) (hotel room); Watkins, 307 S.W.3d at 628 (automobile). Notwithstanding the lack of case law discussing this issue, we are certain that the law does not deem property abandoned simply because the owner is residing in another location. Such a holding would, in practical effect, open the door for law enforcement ...