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Carter v. Commonwealth

Court of Appeals of Kentucky

March 14, 2014

DUSTIN M. CARTER, APPELLANT
v.
COMMONWEALTH OF KENTUCKY, APPELLEE

APPEAL FROM MCLEAN CIRCUIT COURT. HONORABLE BRIAN WIGGINS, JUDGE. ACTION NO. 12-CR-00007.

BRIEFS FOR APPELLANT: Thomas L. Osborne, Paducah, Kentucky.

BRIEF FOR APPELLEE: Jack Conway, Attorney General of Kentucky, Julie Scott Jernigan, Assistant Attorney General, Frankfort, Kentucky.

BEFORE: ACREE, CHIEF JUDGE; JONES AND VANMETER, JUDGES. ALL CONCUR.

OPINION

Page 772

ACREE, CHIEF JUDGE:

Dustin M. Carter appeals from the June 14, 2012, judgment and sentence on conditional plea of guilty of the McLean Circuit Court. That judgment found Carter guilty of possession of a handgun by a convicted

Page 773

felon; possession of a firearm by a convicted felon; possession of a controlled substance, first-degree, while in possession of a firearm; marijuana cultivation, five or more plants, while in possession of a firearm; sale or investment of drug-related income; and trafficking in marijuana, over eight ounces but less than five pounds, while in possession of a firearm, and sentenced him to ten years. Carter appeals the trial court's denial of his motion to suppress certain evidence discovered during a warrantless search of his residence. We hold that the trial court erred when it concluded that the search of Carter's residence fell within the scope of a " protective sweep" incident to an in-home arrest, an exception to the Fourth Amendment. However, because the trial court correctly found, in the alternative, that the evidence would have been inevitably discovered, we affirm.

The facts underlying this case are not in dispute. On December 10, 2011, McLean County Deputy Sheriff Joseph Stratton received an anonymous call that Carter was growing marijuana in his home and garage located at 413 Pete Scott Road. The caller provided detailed information about the marijuana growing operation and further indicated that he knew Carter personally and had been inside his home; that Carter was in possession of multiple firearms; and that Carter had a girlfriend who was often present in the residence and often spent the night.[1] Based upon this information, Deputy Stratton contacted Kentucky State Police Detective Matthew Conley. On December 15, 2011, Deputy Stratton and Detective Conley, along with several other officers, arrived at Carter's residence to conduct a " knock and talk." The officers then encountered a neighbor who stated that he had noticed a strong chemical odor coming from Carter's property and that there were frequently people coming and going in and out of the property.

Deputy Stratton and Detective Conley approached Carter's property in order to speak with him. Appellant was on the front porch and spoke with Detective Conley while Deputy Stratton stood beside Carter's garage. The officers testified that they could hear a radio playing inside the house but observed no affirmative indication that the home was occupied by anyone other than Carter.

Detective Conley noticed three dead ducks on the porch and, knowing that Carter was a convicted felon, asked Carter how he had killed them. Carter admitted that he had used a shotgun to kill the ducks and stated that the gun was at his mother's house. Carter eventually acknowledged that the gun was inside the residence, and offered to retrieve the gun for the officers.

The officers declined Carter's offer and asked to search the residence. Carter refused permission. The officers then placed Carter under arrest for admittedly being a felon in possession of a gun. Carter was handcuffed and seated on the front porch of his home. The officers again asked to search the home, and Carter again refused permission.

The officers then discussed engaging in a protective sweep of the residence to determine whether there were other persons in the home. Detective Conley contacted the McLean County Attorney regarding obtaining a search warrant and the appropriateness of a protective sweep. The County Attorney advised Detective Conley to ...


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