ON REVIEW FROM COURT OF APPEALS CASE NO. 2012-CA-000739-MR FAYETTE CIRCUIT COURT NO. 1 l-CR-00030
COUNSEL FOR APPELLANT: Fred E. Peters Fred Peters Law Office Rhey Denniston Mills Fred Peters Law Office
COUNSEL FOR APPELLEE: Jack Conway Attorney General of Kentucky Kenneth Wayne Riggs Assistant Attorney General Thomas Allen Van De Rostyne Assistant Attorney General
In the fall of 2010, Appellant, David Zax Milam, was a member of the Delta Tau Delta fraternity at the University of Kentucky. He leased a room at the fraternity house that was located near the University campus. The house was owned by the fraternity. On November 30, 2010, University of Kentucky Police Detective John McBride received a tip that Milam was selling marijuana at the fraternity house. McBride and two other University police detectives, Jason Beetz and David Saddler, went to the house to perform a "knock and talk" investigation. The detectives did not have a warrant to search the house.
Upon arriving, the officers went to the back door. They mistakenly believed that the back door was the front door because it had large Greek letters above it, and it faced a major road and the fraternity's parking area. Detective Beetz testified at the first suppression hearing that the detectives knocked and rang the bell several times but no one responded. After a parley among themselves about their next step, they adduced that the fraternity house was more akin to an apartment complex than a private residence. Therefore, the detectives opened the door and entered. Although the back door had a keypad locking device, the door was unlocked and slightly "ajar."
The detectives entered across the threshold and into the foyer. They remained there for a brief period and announced their presence. Soon thereafter, a young man later identified as Delta Tau Delta member Matthew Neagli, entered the foyer area from an adjoining room. Without asking him who he was or whether he was affiliated with the fraternity, the detectives identified themselves as police officers and said that they were looking for Appellant.
It is unclear from the evidence what conversation ensued at that point, and whether Neagli agreed to take them to Appellant's room. However, it is undisputed that the detectives followed Neagli up the stairs to the second floor where the fraternity residents had their individual rooms. In its oral findings on this issue, the trial court determined that, at the very least, this constituted implied consent by a third party.
Upon entry into the stairwell, the detectives could smell burnt marijuana. At the top of the stairwell, Neagli opened the door to the second floor. After Neagli identified Appellant's room by pointing, the detectives knocked on the door. Appellant opened the door, revealing the strong smell of marijuana. A full jar of marijuana was located on the coffee table inside the room, in plain view of the detectives. Appellant then provided consent for the detectives to search his bedroom. During the search, they discovered marijuana, $1, 700, Adderall pills, drug paraphernalia, and a fake driver's license.
Appellant was charged with one count of trafficking in a controlled substance within 1, 000 yards of a school, third-degree possession of a controlled substance, possession of drug paraphernalia, and second-degree criminal possession of a forged instrument. Appellant argued before the trial court that the detectives unlawfully entered and searched the house in violation of the Fourth Amendment. Several suppression hearings were held resulting in conflicting testimony. Ultimately, the trial court denied Appellant's motion to suppress the evidence discovered in his bedroom.
Thereafter, Appellant entered a conditional guilty plea conditioned on the appeal of the denial of his suppression motion. Pursuant to that agreement, Appellant pled guilty to the trafficking charge and was sentenced to one year imprisonment, probated for three years. The other charges were dismissed. The Court of Appeals affirmed the trial court's denial of Appellant's motion to suppress. After reviewing the record and the law, we reverse the decision of the Court of Appeals.
Standard of Review
Our standard of review of the trial court's denial of a suppression motion is twofold. First, the trial court's findings of fact are conclusive if they are supported by substantial evidence; and second, the trial court's legal conclusions are reviewed de novo. Commonwealth v. Marr, 250 S.W.3d 624, 626 (Ky. 2009); RCr 9.78.
The Fourth Amendment to the U.S. Constitution and Section 10 of the 'Kentucky Constitution protect citizens from unreasonable searches and seizures by the government. A basic tenet of Fourth Amendment law is that warrantless searches and seizures inside a home are ...