FROM JEFFERSON CIRCUIT COURT HONORABLE BARRY WILLETT, JUDGE
ACTION NO. 14-CR-002056
FOR APPELLANT: Yvette DeLaGuardia Louisville, Kentucky
FOR APPELLEE: Andy Beshear Attorney General of Kentucky
Joseph A. Newberg, II Assistant Attorney General Frankfort,
BEFORE: COMBS, NICKELL AND K. THOMPSON, JUDGES.
OPINION REVERSING AND REMANDING
Giles ("Giles") entered a conditional guilty plea
pursuant to RCr 8.09 in the Jefferson Circuit Court on
March 1, 2018, to the charges of trafficking in a controlled
substance in the first degree,  possession of drug paraphernalia,
planting, cultivating or harvesting marijuana with intent to
sell or transfer (less than five plants),  for which he
received a sentence of two years' imprisonment on each
count to run concurrently for a total sentence of two
years' imprisonment. The sentence was probated for a
period of five years. Within his guilty plea, Giles reserved
the right to appeal the trial court's denial of his
motion to suppress evidence seized at his arrest. It is from
that denial he appeals to this Court.
undisputed facts of this case were presented during a
suppression hearing convened on October 21, 2015. On February
25, 2014, Detective James Kaufling of the Louisville Metro
Police Department received a call from a confidential
informant regarding cocaine and marijuana
trafficking at an apartment on South 8th Street in
Louisville, Kentucky. The caller told Det. Kaufling a black
male using the name "P" was the trafficker, and
informed him of the make, model and license plate number of
the vehicle "P" drove. Using this information, Det.
Kaufling found the vehicle was registered to Holyparadox
Apollyon and learned he had a history of drug convictions.
Det. Kaufling subsequently initiated surveillance on the
apartment specified by the confidential informant.
evening of March 7, 2014, Det. Kaufling observed an unknown
black male exit the rear door of the apartment he was
watching and proceed to walk in a southerly direction. Det.
Kaufling, along with other officers, approached the subject
approximately one block south of the apartment and engaged
him in conversation. Upon inquiry, the subject informed
officers his name was Holyparadox Apollyon. Detecting an odor
of marijuana, Det. Kaufling asked the man if he had illicit
drugs on him, to which the man replied in the affirmative; a
bag of marijuana was retrieved from his right coat pocket.
Contemporaneously, Det. Kaufling was informed Giles had an
outstanding arrest warrant from Indiana. Giles was placed
under arrest and secured with handcuffs.
the arrest, officers escorted Giles back to his apartment.
Det. Kaufling admitted he had not observed anyone other than
Giles entering or leaving the apartment during his
surveillance. When officers arrived at the front door of the
apartment, they heard no noises and noticed no movement
inside. Nevertheless, the officers entered the apartment
using a key obtained from Giles, ostensibly to ensure no
other persons were present and secure it until a search
warrant could be procured. While inside, officers observed
crack cocaine and a small marijuana grow operation in plain
view. An affidavit for search warrant was prepared which
included reference to the illicit items seen in the apartment
during the warrantless entry.
execution of the ensuing search warrant, officers seized
multiple incriminating items and Giles was subsequently
indicted on the aforementioned charges. Giles moved to
suppress the items seized from his apartment. After the trial
court denied the motion, Giles entered a negotiated plea with
the Commonwealth, reserving the right to appeal the adverse
decision. This appeal followed.
reviewing a trial court's ruling on a motion to suppress,
this Court examines the trial court's findings of fact to
confirm 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)). Here, the trial court's factual findings
are not in dispute and appear to be sufficiently supported by
the record. Thus, we proceed to conducting a de novo
review of the trial court's legal conclusions.
Id. at 514-15.
asserts the officers unlawfully entered his apartment without
a warrant and without proof of exigent circumstances. He
further asserts the trial court failed to consider defects in
the search warrant affidavit and relied on facts unsupported
by substantial evidence. Thus, he posits the trial court
erred in denying his motion to suppress. The Commonwealth
contends officers had probable cause to enter Giles'
apartment to conduct a protective sweep based on the totality
of the circumstances, the search warrant was valid, and the
evidence was admissible under the inevitable discovery
doctrine. We agree with Giles.
We begin by noting that "the touchstone of the Fourth
Amendment is reasonableness," which "is measured in
objective terms by examining the totality of the
circumstances." Ohio v. Robinette, 519 U.S. 33,
39, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996) (internal quotation
marks and citations omitted). Under the Fourth Amendment to
the United States Constitution, in the absence of consent,
police may not conduct a warrantless search or seizure within
a private residence without both probable cause and exigent
circumstances. Kirk, 536 U.S. at 638, 122 S.Ct.
2458; Payton v. New York, 445 U.S. 573, 100 S.Ct.
1371, 63 L.Ed.2d 639 (1980). Any other search is per
se unreasonable. Id. at 586-87, 100 S.Ct. 1371.
See also Cook v. Commonwealth, 826 S.W.2d 329, 331
(Ky. 1992). The Commonwealth carries the burden to
demonstrate that the warrantless entry falls within a
recognized exception to ...