United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION AND ORDER
C Reeves, Chief Judge
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]
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.
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.
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.
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.
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.
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.
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).
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.
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.
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 ...