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Pace v. Commonwealth

Supreme Court of Kentucky

September 28, 2017

JOSEPH PACE APPELLANT
v.
COMMONWEALTH OF KENTUCKY APPELLEE AND BRANDON COLLINS APPELLANT
v.
COMMONWEALTH OF KENTUCKY APPELLEE

          RENDERED: MARCH 23, 2017

         ON REVIEW FROM COURT OF APPEALS CASE NOS. 2014-CA-000501-MR AND 2014-CA-000621-MR FAYETTE CIRCUIT COURT NO. 13-CR-00566-002

          COUNSEL FOR APPELLANT, JOSEPH PACE: Steven Jared Buck Assistant Public Advocate

          COUNSEL FOR APPELLANT, BRANDON COLLINS: i - Linda Roberts Horsman Assistant Public Advocate

          COUNSEL FOR APPELLEE: Andy Beshear Attorney General of Kentucky James Daryl Havey Assistant Attorney General

          OPINION

          CUNNINGHAM, JUSTICE

         In this appeal, Joseph Pace and Brandon Collins (the "Appellants") challenge the Court of Appeals' affirmance of the Fayette Circuit Court's denial of their separate motions to suppress evidence.

         On the evening of April 18, 2013, Sergeant Bryan Jared, of the Lexington Police Department, was surveilling an apartment building located on Augusta Drive in Lexington, Kentucky. Appellants' apartment was located within the Augusta Drive apartment building. Sergeant Bryan was monitoring the area due to a threat of retaliatory violence following a murder at a local bowling alley. The tip concerning the possible retaliation did not specify who would be the subject of the reprisal, nor did it specify when or where the violence would occur.

         While observing the area, Sergeant Jared noticed a group of several individuals loitering by the Augusta Drive apartment building. Shortly thereafter, a black Dodge Charger pulled into a driveway adjacent to the left side of the apartment building. Two men and one woman exited the Charger and walked behind the left side of the apartment building. Thereafter, the loiterers made their way to the back right side of the apartment building. Sergeant Jared suspected that the three individuals and the loiterers were meeting around the back of the apartment building to brawl or conduct a drug transaction. Consequently, Sergeant Jared called for backup, exited his cruiser, and approached the three individuals on the driveway side of the apartment building. Sergeant Jared ultimately searched one of the men and found a gun and narcotics on his person. An ensuing search of the Charger uncovered another gun. Further investigation revealed that one of the Charger's occupants had been smoking, marijuana. This individual stated that he had smoked marijuana in Apartment 14. This particular apartment was Appellants' apartment.

         Numerous officers responded to the scene and required the loiterers to move to the front of the apartment building. Officers asked the crowd who lived in Apartment 14, to which no one responded'. One of the officers, Officer Donna Shepherd, proceeded to Appellants' apartment to conduct a "knock and talk." To no avail, Officer Shepherd entered the atrium of the apartment building and knocked on the front door of Appellants' first floor apartment. Officer Shepherd then exited the inside atrium and walked around the outside of the building to Appellants' back door. The back door was a sliding glass door, which was ajar, unobstructed, and located within a partially enclosed patio. The patio enclosure consisted of a brick wall standing approximately five feet and four inches tall.

         As Officer Shepherd approached the back patio area, two other officers were already standing within the enclosure and looking through the sliding glass door. The officers notified Officer Shepherd that they could see baggies of marijuana sitting on an inside table. Officer Shepherd was unable to view the baggies of marijuana until she was standing within the patio enclosure.

         Without a warrant or Appellants' consents, Officer Shepherd and the two officers entered Appellants' apartment through the sliding glass door and conducted a search. Concurrently, other officers entered the front door of the apartment and joined the search. It is unknown which officer ordered the entry and search. Officer Shepherd testified that she entered the apartment because she was fearful someone may have been injured inside and in need of assistance. During the search, officers found three baggies of marijuana, eight marijuana plants, and other drug paraphernalia. Officers did not seize the evidence upon discovery.

         Appellants were notified of the initial search and consented to a second search of their apartment. During this second search, officers seized the incriminating evidence, in addition to a newly discovered bag of cocaine in the amount of 4.3 grams. Appellants were immediately arrested and charged with one count each of cultivation of marijuana five or more plants, trafficking in a controlled substance within 1, 000 feet of a school, possession of a controlled substance in the first degree, and possession of drug paraphernalia. Appellants filed separate motions to suppress all evidence seized under the Fourth Amendment to the United States Constitution and Section 10 of the Kentucky Constitution. In support of their motions, Appellants claimed that the officers violated the curtilage of their apartment when they entered the back patio enclosure, thereby having no legal authority to view the marijuana baggies. Appellants further argued that officers lacked any exigencies to enter the apartment and conduct the search. Due to these illegalities, the seizure of evidence was made unlawfully.

         After a hearing at which Officer Shepherd and Sergeant Jared testified, the trial court made verbal findings of fact and conclusions of law and denied Appellants' motions to suppress. The trial court ruled that officers were entitled to be on the back patio as it was not within the apartment's curtilage. The trial court further found that, although the precise justification for the officers' entrance was unknown, officers were permitted to conduct a search of the apartment pursuant to the plain view exception to the warrant requirement. Moreover, the trial court believed officers were permitted to enter the apartment and conduct a protective sweep of the area and check for injured individuals.

         On March 24, 2015, Appellants entered conditional guilty pleas in the Fayette Circuit Court. Collins pled guilty to one count each of criminal facilitation-cultivation of marijuana five or more plants, possession of marijuana, and possession of drug paraphernalia. Pace pled guilty to one count of criminal facilitation-cultivation of marijuana five or more plants and one count of possession of marijuana. Appellants both received a sentence of twelve months' imprisonment, probated for a period of two years. Appellants' guilty pleas provided that they reserved the right to appeal the Fayette Circuit Court's denial of their motions to suppress. It is from that denial that Appellants appealed to the Court of Appeals.

         The Court of Appeals affirmed the trial court's denial, but on different grounds. First, the Court of Appeals disagreed that a protective sweep was necessary since the search was not made incident to an arrest and there were no perceived threats to the officers. The Court of Appeals also explained that the "emergency aid" exception to the warrant requirement, not the protective sweep exception, was applicable to the officers' search. However, the Court of Appeals concluded that the emergency aid exception could not excuse the warrantless search because officers did not have an objectively reasonable basis for believing the apartment's occupants required emergency aid. In regards to the plain view doctrine, the Court of Appeals opined that officers did not invade the curtilage of the apartment when viewing the marijuana baggies from the back porch. Even so, the Court of Appeals did not believe the plain view exception applied to the initial entry and search of the apartment because officers did not actually seize any incriminating evidence at that time. Ultimately, the Court of Appeals affirmed the trial court's order on the grounds that the seizure of evidence occurred during the second search which was conducted pursuant to Appellants' valid consents. Appellants appealed to this Court and we granted discretionary review.

         Generally, when reviewing a trial court's ruling on a motion to suppress, this Court will examine the trial court's findings of fact to ensure they are supported by substantial evidence. Peyton v. Commonwealth, 253 S.W.3d 504, 514 (Ky. 2008) (citing Adcock v. Commonwealth, 967 S.W.2d 6, 8 (Ky. 1998)); RCr 9.78. However, the trial court's factual findings are not in dispute and appear to be sufficiently supported by the record. For that reason, the Court will proceed in conducting a de novo review of the trial court's legal conclusions. Peyton, 253 S.W.2d at 514-15.

         Before conducting our review, we note that the trial court did not render a written order of its findings of fact and conclusions of law. As this Court explained in Coleman v. Commonwealth, "written findings greatly facilitate appellate review." 100 S.W.3d 745, 749 (Ky. 2002). It is important to underscore that this Court's analysis would have been significantly aided by a submission of written findings. Fortunately, we can satisfactorily determine the basis for the trial court's ruling from the suppression hearing record. Id.

         Our analysis begins with the Fourth Amendment to the United States Constitution, made applicable to the states through the Fourteenth Amendment and Section 10 of the Kentucky Constitution. The Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." A basic tenet of this area of the law is that warrantless searches are "per se unreasonable under the Fourth Amendment-subject only to a few specifically established and well-delineated exceptions." Katz v. United States,389 U.S. 347, 357 (1967). In the absence of exigent circumstances, it is unreasonable for a law enforcement officer to enter a person's home without consent or a warrant. Payton v. New York, 445 U.S. 573, 590 (1980). ...


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