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Commonwealth v. Robertson

Court of Appeals of Kentucky

June 21, 2019



          BRIEF FOR APPELLANT: Andy Beshear Attorney General Thomas A. Van De Rostyne Assistant Attorney General Frankfort, Kentucky

          BRIEF FOR APPELLEE: James L. Avritt, Jr. Lebanon, Kentucky



          JONES, JUDGE.

         The Commonwealth of Kentucky brings this appeal challenging the Marion Circuit Court's order granting William Barry Robertson's motion to suppress evidence. A review of the record shows that the notice of appeal was not timely filed, and the appeal must be dismissed.

         II. Factual & Procedural Background

         On January 4, 2018, Robertson was indicted on six charges, brought in two separate indictments, by a Marion County Grand Jury. The first indictment included the charges of: (1) trafficking in a controlled substance, first degree while in possession of a firearm; (2) possessing drug paraphernalia; (3) possessing marijuana; and (4) being a persistent felony offender, first degree. The second indictment included: (1) possessing a firearm by a convicted felon; and (2) being a persistent felony offended, second degree.

         The charges were levied against Robertson after police pulled over a vehicle driven by Katherine Michelle Smith on October 12, 2017. The vehicle was stopped after someone alerted police to a "specious" four-door gray vehicle with two female occupants parked at 683 Knob Road in Lebanon, Kentucky. Deputy Sam Knopp was dispatched to the area and ascertained that the females did not live at the residence. He then observed the vehicle leaving the area; the vehicle's rear driver side tail light was out so Deputy Knopp decided to initiate a stop. Deputy Knopp smelled alcohol and saw an open container when he approached the vehicle. He asked Ms. Smith for consent to search the vehicle which she provided.

         The search produced several items of drug paraphernalia and a small quantity of what appeared to be crystal methamphetamine. Ms. Smith told Deputy Knopp that she purchased the methamphetamine from Robertson earlier that day and that she had purchased methamphetamine from him several times in the past. Ms. Smith provided Deputy Knopp with Robertson's address. Based on this information, Deputy Knopp secured a warrant to search the residence, Robertson's person, and any other persons located at the residence and to seize any weapons, drugs or other evidence of illegal activity found during the search. The warrant was executed on October 13, 2017, and police seized drug paraphernalia, marijuana, methamphetamine, and firearms. Robertson was placed under arrest, charged, and indicted.

         Robertson entered a plea of not guilty. On January 20, 2018, Robertson's counsel filed a motion to suppress all evidence seized by the Commonwealth during its October 13 search. Robertson argued that probable cause did not exist for the search warrant issued by the Marion District Court. Robertson pointed out that Deputy Knopp failed to indicate in the affidavit why he believed Ms. Smith's information was reliable. Robertson also noted that the affidavit was devoid of any assertions that would show Deputy Knopp conducted a proper independent investigation. The affidavit mentioned only that Deputy Knopp talked with a fellow officer, who indicated that some six weeks prior he had spoken with a Bobby Robertson at the address provided by Smith, and that both officers had frequently seen Bobby Robertson residing or staying at the address in question. Bobby Robertson is the brother of the defendant/appellee, Barry Robertson, the person from whom Ms. Smith said she purchased the methamphetamine.

         On March 13, 2018, the circuit court entered a seven-page order granting Robertson's motion. Even though Ms. Smith was identified by name in the affidavit, the circuit court relied on case law concerning confidential informants. Based on that case law, the circuit court concluded that "[w]ithin the four corners of the affidavit, the only information that would purport to be a substantial basis for concluding probable cause existed is the uncorroborated statement of an 'informant' which the Supreme Court of the United States has held standing alone is not sufficient." (R. at 6).

         On March 20, 2018, the Commonwealth filed a "motion to reconsider order to suppress" with the circuit court. In its motion, the Commonwealth asked the circuit court to "alter, amend or vacate its order entered on March 13, 2018." The Commonwealth cited case law from the United States Supreme Court as well as the Supreme Court of Kentucky which holds that specific statements of veracity or reliability are not required when the informant is named; those requirements apply only to confidential informants. The Commonwealth also noted that the discrepancy between Barry and Bobby Robertson was not material because search warrants are directed at places not individuals, and Ms. Smith told Deputy Knopp she purchased the methamphetamine at the address of the residence police searched.

         The Commonwealth's motion came before the circuit court at a hearing on March 29, 2018. When asked by the circuit court, the Commonwealth stated that the purpose of its motion was to ask the court to review the suppression issue under a "different standard" because the informant in this case was known. Robertson's counsel argued that the circuit court should summarily deny the Commonwealth motion because CR 59.05 does not apply to interlocutory suppression orders. The Commonwealth disagreed; it argued that the ...

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