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United States v. Hardy

United States District Court, E.D. Kentucky, Central Division, Lexington

August 23, 2019



          Danny C Reeves, Chief Judge

         Defendant Damon Hardy is charged with possession with intent to distribute heroin, a mixture or substance containing a detectable amount of fentanyl, a mixture or substance containing a detectable amount of tramadol, and a quantity of pills containing a detectable amount of alprazolam. [Record No. 1] He moved to suppress all evidence seized on April 2, 2019, at his Versailles home. [Record No. 15] The motion was referred to United States Magistrate Judge Matthew A. Stinnett for issuance of a Report & Recommendation (“R&R”) in accordance with 28 U.S.C. § 636(b)(1)(B) and Fed. R. Crim. P. 59. Magistrate Judge Stinnett has recommended that the Court deny Hardy's motion to suppress. [Record No. 22]

         Although this Court must make a de novo determination of those portions of the Magistrate Judge's recommendations to which objections are made, 28 U.S.C. § 636(b)(1)(C), “[i]t does not appear that Congress intended to require district court review of a magistrate's factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings.” Thomas v. Arn, 474 U.S. 140, 150 (1985). Nevertheless, the Court has carefully examined the entire record. Having made a de novo determination on all issues, including those raised in the defendant's objections to the R&R [Record No. 28], the Court agrees with the Magistrate Judge's recommendation to deny the motion.


         An anonymous source of information (“SOI”) contacted Versailles Police Department Assistant Chief Rob Young (“Young”) on April 2, 2019, notifying him that Hardy was at his Versailles home and in possession of either heroin, carfentanil, or fentanyl. [Record No. 21, p. 11] The SOI also indicated that Hardy and his mother were attempting to move the drugs from the residence. Id. Young identified the SOI by the sound of his voice over the telephone and testified that this informant had previously provided the Versailles Police Department with credible information that led to arrests and recoveries of evidence. Id. at pp. 13-14. Additionally, a different confidential informant had indicated to Young that Hardy was trafficking heroin. Id. at p. 14. Young asked Detective Matt Mitchell (“Mitchell”) to conduct a “welfare check” at Hardy's residence. Id. at p. 17.

         Mitchell, Sergeant Tim Conner (“Conner”), and Officer Jordan Lyons (“Lyons”) arrived at Hardy's residence about an hour after Young received the SOI tip. Id. at p. 27. They drove three separate vehicles, two of which were marked, and passed through an open gate onto Hardy's private gravel road. Id. at pp. 33-34, 43. Witnesses for the defense testified that the gate is ordinarily padlocked, but they agreed that the gate was unlocked and open that day. Id. at pp. 72-73, 78. None of the officers testified to seeing a “Private Property. No. Trespassing.” sign when they entered the driveway from the public Pisgah Pike, id. at pp. 35, 43, 53, but Mitchell stated that he has since seen a sign that reads “Private Property.” while passing the entrance. [Record No. 21, p. 42-43] Although the defense disputes this testimony, [id. at p. 75; Record No. 16], the Versailles policemen stated that they clearly could see the house from the entrance to the property because there were no leaves on the trees at that time of the year. [Record No. 21, pp. 35, 45, 68-69] Mitchell further testified that there was no indication that Hardy had attempted to obscure the view of the residence from the public road. Id. at p. 36.

         The officers approached the house, driving the approximately two-to-three hundred yards between the open entrance gate and the residence. Id. at pp. 36, 46, 56, 65. As they approached, the officers observed two individuals (Hardy and his mother) on the front porch and witnessed Hardy go inside the house. Id. at p. 57. They drove around the circular driveway at the end of the road and saw the defendant running out the backdoor and across the yard. Id. at pp. 36-37, 67.

         Lyons immediately gave chase in his vehicle, cutting through the yard to apprehend Hardy. Id. at pp. 57-58. He observed Hardy throw a shiny silver object during the pursuit, and he exited the vehicle to detain the defendant. Id. at pp. 57-59. After the other officers arrived in the backyard and Hardy was detained, Lyons picked up the discarded object laying twenty-to-thirty feet away on the ground. Id. at pp. 40, 57-59, 70. The defendant warned the officers that the object contained carfentanil before they opened the shiny container. Id. at pp. 40, 45, 60, 70. When opened, the contents included alprazolam pills as well as a bag of powder that tested positive for fentanyl, heroin, and tramadol. [Record No. 18, p. 2] The officers contemporaneously arrested Hardy. Id.


         Hardy claims that the officers' entrance onto his property, approach of the house, and pursuit through the yard violated his Fourth Amendment rights. [Record No. 16, 18] But as Magistrate Judge Stinnett properly concluded, these claims lack merit. [Record No. 22] The Versailles Police Department entered the property to conduct a valid “knock and talk” welfare check, and they lawfully chased the fleeing defendant to the approximate spot where they obtained the drug container and made the arrest.

         Police officers, like private citizens, have an implied license to approach a home, knock on the door, ask questions of present residents, and attempt to obtain permission to enter without first obtaining a warrant. Florida v. Jardines, 569 U.S. 1, 8 (2013). The fact that such an approach requires an officer to go through a home's constitutionally protected curtilage does not make the approach unlawful if custom dictates that a private citizen could similarly enter the curtilage to solicit those inside the home. Id. The Sixth Circuit has recognized “knock and talk” police activity, determining that the conduct is lawful if no “overbearing tactics [] essentially force the individual out of the home.” United States v. Thomas, 430 F.3d 274, 277 (6th Cir. 2005). Further, a “No Trespassing” sign does not change this analysis where the residence is visible from the sign location, the area alleged to be curtilage is not an enclosure immediately surrounding the residence, the area alleged to be curtilage has no special uses, and the resident has taken no steps to prevent passersby from observing the area. United States v. Hopper, 58 Fed.Appx. 619, 623 (6th Cir. 2003) (applying the factors outlined in United States v. Dunn, 480 U.S. 294, 300 (1987) to determine that an area marked by two “No Trespassing” signs did not receive Fourth Amendment protection).

         The officers' entrance onto the property and approach of the residence on the gravel road did not violate Hardy's Fourth Amendment rights. Mitchell, Conner, and Lyons were acting on the SOI information that Hardy had possession of extremely harmful substances, and, upon Young's request, visited the property to inquire into the welfare of the defendant (and potentially his mother). Any private citizen could have similarly entered the property through the open gate, driven up the gravel road, and knocked on the door. The defendant objects to the R&R, arguing that the public was not allowed onto the property, the gate was usually locked, and visitors ordinarily had to call Hardy before paying him a visit. [Record No. 28] These assertions may be true, but they do not change the fact that the gate was unlocked and open on April 2, 2019. Any citizen could have solicited the defendant at his residence on the day in question without legal recourse. Further, Hardy himself previously argued in his memorandum supporting the motion to suppress [Record No. 16] that, “a majority of the time, ” visitors called him before coming onto his property. This suggests that some visitors or solicitors had previously arrived at Hardy's door unannounced, an unremarkable and legal occurrence. See Jardines, 569 U.S. at 8.

         The officers maintain that they did not see the sign posted at the entrance to the property, but even if they had not testified to this point, the sign has no talismanic power to wrap the entire property in impenetrable Fourth Amendment protections. The police claimed that they could see the house from the entrance. The distance between the open gate and the house is two-to-three hundred yards, and the gravel road ingress is not an enclosure in the immediate vicinity of the residence. The private road is merely a means to access the residence. Finally, there were no efforts to conceal the house or the gravel road from passersby. Therefore, the area marked by the sign, the gravel road, was not part of the house's curtilage. The sign did not destroy the implied license to follow the gravel road over several hundred yards, knock on the house's front door, and inquire into the wellbeing of the resident.

         Of course, the Versailles police did not have the opportunity to “talk” to Hardy, let alone “knock” on his front door. The defendant contends that the ensuing chase crossed over his constitutionally-protected yard to arrive at the location of the drugs, approximately twenty- to-thirty feet away from where he was apprehended. [Record No. 16, 28] Whether the open yard is actually curtilage-protected under the Fourth Amendment is debatable, but ...

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