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Brown v. Commonwealth

Court of Appeals of Kentucky

February 14, 2014

RODERICK FITZPATRICK BROWN, APPELLANT
v.
COMMONWEALTH OF KENTUCKY, APPELLEE

APPEAL FROM FAYETTE CIRCUIT COURT. HONORABLE KIMBERLY N. BUNNELL, JUDGE. ACTION NO. 12-CR-00469.

BRIEF FOR APPELLANT: Steven J. Buck, Frankfort, Kentucky.

BRIEF FOR APPELLEE: Tami Allen Stetler, Frankfort, Kentucky.

BEFORE: ACREE, CHIEF JUDGE; MAZE AND STUMBO, JUDGES. ALL CONCUR.

OPINION

Page 766

MAZE, JUDGE:

Appellant, Roderick Fitzpatrick Brown, appeals his conviction and sentence for disorderly conduct, possession of drug paraphernalia, and possession of marijuana. Specifically, he contends that the trial court erred in denying his motion to suppress

Page 767

evidence which he claims police obtained through an illegal search of his residence. Because officers lacked the requisite suspicion of danger to justify a protective sweep of Brown's residence, the trial court indeed erred in denying his motion to suppress the seized evidence. Therefore, we reverse and remand the case to the trial court.

Background

The facts of this case are not in dispute. On February 15, 2012, a victim notified Lexington Police that three men had assaulted her at gunpoint. She knew all three men, and she identified Brown as the person who had assaulted her with a handgun. She reported to the operator where Brown lived and that the three men had walked toward that location after the assault. She stated to the dispatch operator, " [t]hey had guns" and that she knew Brown's residence contained other firearms, including an AK-47 assault rifle. It took approximately eight minutes for officers to arrive at Brown's residence.

The first officer on the scene, Officer Raker, waited around the corner from the residence until additional officers arrived. Six or seven officers eventually arrived in response to the victim's report and, with guns drawn, officers established a perimeter around the home, using a public address system to order the occupants out of the home. Two females emerged from the home followed by three males. Officers immediately separated, patted down and questioned each occupant. The individuals reported that no one remained in the home. Nevertheless, Officer Raker, who had not spoken with any of the occupants, conducted a sweep of the home accompanied by two other officers. Officers found no one else inside the home; however, during their sweep of the home, officers observed a black handgun, an AK-47 assault rifle, marijuana cigarettes, a glass pipe, and a bong, all in plain view.

Police charged Brown with first-degree wanton endangerment, possession of drug paraphernalia, and possession of marijuana. Brown sought suppression of the items observed in, and seized from, the home. The trial court held a hearing on the suppression matter on May 29, 2012.

At the hearing, Officer Raker testified that, prior to entering the home, officers had no reason to believe anyone else was in the home. He stated that at the time of the sweep, officers on the scene who were questioning the occupants " would have known" that the three men who exited the home were those the victim had named. However, according to Officer Raker, he and the Sergeant who ordered the protective sweep did not question the occupants personally and did not know their names when the sweep was ordered.

Following Officer Raker's testimony and extensive argument from the parties, the trial court overruled the motion to suppress, finding that officers had conducted a legal protective sweep. The trial court, speaking from the bench, cited the fact that more people had come out of the home than the three police expected. From this the court concluded that it was reasonable for officers to believe there were more individuals inside the residence. Following entry by the trial court of a brief written order, Brown entered a conditional plea of guilty to the amended charge of disorderly conduct, as well as the original ...


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