APPEAL FROM FAYETTE CIRCUIT COURT HONORABLE JAMES D. ISHMAEL, JR., JUDGE ACTION NO. 11-CR-00030.
BRIEF FOR APPELLANT: Fred E. Peters Lexington, Kentucky.
BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Ken W. Riggs Assistant Attorney General Frankfort, Kentucky.
BEFORE: CLAYTON, LAMBERT, AND THOMPSON, JUDGES.
David Zax Milam appeals from a judgment and sentence resulting from his conditional plea of guilty. He reserved the opportunity in his plea to appeal the issue of whether the trial court erred when it denied his motion to suppress evidence that was seized during a warrantless search of a fraternity house. After careful review of the record, we affirm the judgment and sentence.
FACTUAL AND PROCEDURAL BACKGROUND
In fall 2010, David Zax Milam was a fraternity brother at the Delta Tau Delta Fraternity at the University of Kentucky and leased a room at the fraternity house. The building was located on the campus at the University of Kentucky but owned by the fraternity. On November 30, 2010, Detective John McBride of the Lexington Police Department received a tip that Milam was selling marijuana at the fraternity house. He and two other police detectives, Jason Beetz and David Saddler, went to the fraternity house for a "knock and talk" encounter to investigate the tip.
Ultimately, Milam was arrested, and on January 10, 2011, he was indicted by the Fayette County Grand Jury on several charges, including two counts of trafficking, possession of paraphernalia, and possession of a forged instrument, a fake I.D. The particular charge relevant to this appeal is the trafficking in a controlled substance within 1, 000 yards of a school.
Following the indictment, Milam filed a motion to suppress the evidence seized. An initial suppression hearing was held and, subsequently, two more suppression hearings were held at the request of Milam's counsel. The first suppression hearing was held on August 12, 2011.
At this hearing, the Commonwealth called one witness, Detective Jason Beetz, who was a member of the University of Kentucky police department and had participated in the arrest and search of Milam's room. Beetz testified that on the evening of November 30, 2010, after receiving the tip about Milam's activities, the officers went to the fraternity house to conduct a "knock and talk" with Milam. Upon arrival at the fraternity house, they went to the back door, mistakenly believing that the back door was the front door. Explaining this mistake, he noted that the detectives thought it was the front door since it was on Nicholasville Road,  had large Greek letters above the door, and faced the fraternity's parking area.
Continuing his testimony, he said that they knocked and rang the bell for a period of time between thirty seconds to three minutes, but no one responded. After some discussion, the detectives decided that a fraternity house was similar to an apartment and, therefore, they had the right to enter even though they did not have consent, a warrant, or exigent circumstances, which are typically necessary for warrantless entry.
Although the door had a keypad, Beetz said that the detectives were able to enter the fraternity house without using a code since the door was ajar and unlocked. Apparently, the door was slightly open although no space existed between it and the door jam. Upon entering the common area, which at the hearing the detectives referred to as the "breezeway" or "foyer, " they announced their presence and identified themselves as police officers.
Next, according to Beetz, they waited in the common area for a second or two to as long as a minute until a young man appeared from around the corner of an adjoining common area through another set of double doors that were directly opposite the outside double doors and faced the breezeway. The breezeway or foyer was where one entered after going through the outside double doors. If one went through the second set of double doors, he would be in the common area of the fraternity house.
Without asking the young man who he was or whether he was affiliated with the fraternity, the detectives, according to Beetz, identified themselves as police officers and said that they were looking for Milam. After the young man said that Milam lived there, he agreed to show them Milam's room. Thereafter, he led them up the stairwell that was in the breezeway.
Beetz explained that as the detectives followed the young man up the stairs, upon entry into the stairwell they could smell burnt marijuana. At the top of the stairwell, the young man opened a door to the second floor where the fraternity residents had their individual rooms. The smell became stronger as they got closer to Milam's room. The young man pointed out Milam's room, the detectives knocked, and Milam opened the door. As he opened the door, the smell of marijuana was overwhelming, and the detective saw a full jar of marijuana sitting on a coffee table in the room.
Then, Beetz testified that they asked Milam if they could enter the room, and he acquiesced. Six other people were in Milam's room, and the officers asked them to leave. During the officers' time in the room, Milam told them that he had thirty clients, mostly in-house fraternity brothers, and that he purchased his marijuana in Louisville, Kentucky. He also consented to a search of his room whereupon the detectives discovered marijuana, $1, 700, Adderall pills, scales, pipes, rolling papers, grinders, a fake driver's license, and zip-lock bags. Besides these items, Milam's phone was taken and later searched after the procurement of a warrant. The search of the phone revealed numerous buyer/seller communications.
After Beetz's testimony, Milam's defense counsel called two witnesses. The first witness was Detective McBride. His testimony was substantially the same as Beetz's testimony. Then, Milam testified in a limited manner. He said that the fraternity house, including the breezeway, was not open to the public and that signs outside it identified it as private property. Further, Milam said that the door in which the detectives came through was locked and required a numeric keypad for entry. And, he observed that his individual room had a private lock.
After this hearing, at the request of Milam, a second hearing was held on August 15, 2011. Milam called one witness, Nicholas Stewart, who was the president of Delta Tau Delta at the time Milam was arrested. Stewart testified that the bylaws of the fraternity required that the doors of the house remained locked and access was only allowed to members and their guests. The reason for the doors being locked was that earlier in the year the fraternity had an "open door" policy, which allowed entry to anyone. But when the fraternity was implicated in alcohol violations and almost kicked off campus, the fraternity members began locking the doors to meet the University of Kentucky's rules.
Stewart explained that the national fraternity organization owns the house and the residents must sign a lease agreement in order to reside in the fraternity house. The lease provides the resident a room and use of the common areas. Further, the lease prohibits the selling of marijuana. Stewart maintained that no one was certain as to the identity of the person who led the police officers to Milam's room. He conceded, however, that the fraternity member who took the detectives to Milam's room did nothing wrong and violated no fraternity bylaws.
Stewart stated that there were signs in the parking area denoting that the area was for private parking. The purpose of the signs was to prevent tailgating. Besides the signs about parking, Stewart thought there might have been temporary private property signs, but he could not recall with certainty whether such signs were in the back-door area. (In fact, the photographs entered into evidence did not show any signs stating that the property was private. Some photographs, introduced into evidence, however, did have signs stating that the parking lot was for private parking.)
At the conclusion of the second hearing, the parties made their arguments to the trial court. Milam contended that the fraternity house was like a private residence and, hence, the entry to the breezeway was improper. In response, the Commonwealth claimed that the fraternity house was like an apartment or hotel and not subject to the same privacy interests as a private home. After considering the arguments, the trial court made oral findings of fact and conclusions of law, which will be delineated below, and denied the motion to suppress.
Then, at the request of Milam, a third suppression hearing was held on December 21, 2011. At this hearing, Matthew Neagli testified. He was identified as the fraternity brother who had met the detectives on the night of the incident and led them to Milam's room. Neagli contradicted the detective's testimony and stated that they had gone beyond the breezeway and entered beyond a second set of double doors into a private area of the fraternity house. He testified that there were four or five officers although, in fact, there were three officers. And, he claimed none wore uniforms although he did recall seeing a vest identifying them as police.
Actually, Beetz was in uniform and the other two officers were wearing police vests.
Further, Neagli said that he did not agree to take them upstairs to Milam's room but that they just "followed" him. Finally, he claimed that when they reached the second floor, the detectives just pushed past him and shouted out for Milam. Notwithstanding this testimony, Neagli admitted that the smell of marijuana was present as he opened the stairwell door on the second floor. And, significantly, he testified that the keypad lock on the door, which the detectives had entered, was not functional nor was the door locked at the time of the incident.
Then, Milam recalled Stewart to the stand. Stewart provided no new information but confirmed, contrary to his statements at the second hearing, that the keypad lock on the back door of the fraternity house did not work at the time of the incident. The trial court judge observed that in his previous testimony, Stewart had misrepresented the functionality of the keypad lock and misstated that the back door was always locked. After the trial court judge highlighted the discrepancy in Stewart's earlier testimony, Stewart confirmed that at the time of Milam's arrest anyone could walk into the house through the door. Further, Stewart acknowledged that he was not at the fraternity house on the evening of Milam's arrest so he could give no specific information about the door on that evening.
At this time, the trial court orally reiterated the early findings of fact and conclusions of law and made additional findings and conclusions. Once again, it denied the motion to suppress.
On January 6, 2012, Milam entered a conditional guilty plea conditioned on the appeal of the denial of his suppression motion. He was formally sentenced to one (1) year, probated for three (3) years by a judgment entered on March 21, 2012. Milam now appeals from this judgment.
STANDARD OF REVIEW
Our standard of review of a trial court's denial of a motion to suppress is twofold as set out in Ornelas v. U.S., 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996), and adopted by Kentucky in Adcock v. Commonwealth, 967 S.W.2d 6 (Ky. 1998). First, appellate review of a trial court's denial of a motion to suppress evidence must determine whether the trial court's findings of fact are supported by substantial evidence. Id. If supported by substantial evidence, the findings of fact are conclusive. Kentucky Rules of Criminal Procedure (RCr) 9.78; Drake v. Commonwealth, 222 S.W.3d 254 (Ky. App. 2007). Substantial evidence has been defined as evidence possessing sufficient probative value to induce conviction in the minds of reasonable men. Moore v. Asente, ...