GARY D. WARICK APPELLANT
COMMONWEALTH OF KENTUCKY APPELLEE
REVIEW FROM COURT OF APPEALS CASE NOS. 2016-CA-001825-MR AND
2017-CA-000177-MR FLOYD CIRCUIT COURT CASE NO. 14-CR-00102
JOHNSON CIRCUIT COURT CASE NO. 14-CR-00225
COUNSEL FOR APPELLANT: Karen Shuff Maurer Assistant Public
Advocate Department of Public Advocacy.
COUNSEL FOR APPELLEE: Andy Beshear Attorney General of
Kentucky Todd Dryden Ferguson Assistant Attorney General
Office of Criminal Appeals.
Gary D. Warick entered a conditional Alford plea to
one count of possession of a controlled substance, third
degree, in Johnson County, and a conditional Alford
plea to one count of possession of marijuana in Floyd County.
In each case, he reserved his right to appeal the denial of
his motion to suppress evidence which was obtained as a
result of a traffic stop. In the consolidated appeal of the
two cases, the Court of Appeals upheld the denial of the
motions to suppress based on Warick's lack of Fourth
Amendment "standing." This Court granted
discretionary review. Because the Court of Appeals
erroneously analyzed Warick's claim that the searches and
seizures were illegal under the Fourth Amendment to the
United States Constitution and Section 10 of the Kentucky
Constitution, we vacate its decision. However, because we
also conclude that the Floyd Circuit Court's suppression
order is factually insufficient for an appellate court's
review of Warick's claim that his detention was unlawful
and that the evidence obtained against him must be excluded
as fruit of the poisonous tree, we remand the case to the
Floyd Circuit Court for entry of sufficient findings of fact.
FACTS AND PROCEDURAL
and two passengers, Brian K. Bertram (Bertram) and Jessica C.
Bertram, ordered at the drive-thru window at Dairy Queen in
Prestonsburg, Floyd County, Kentucky, on June 5, 2014, at
approximately 12:50 p.m. When Warick pulled to the side to
wait for the order to be prepared, he backed into a parking
space with the rear of his vehicle near a grassy area.
Meanwhile, a Dairy Queen employee called the Prestonsburg
police to report a possible DUI based on having seen an open
container of beer in Warick's car.
Tussey arrived on the scene within a couple of minutes of
being dispatched, and Lieutenant Clark and Assistant Chief
Hall arrived shortly afterward. Sergeant Dixon arrived next,
approximately ten to fifteen minutes after Tussey.
approached Warick's driver's side and observed an
open container of beer in the car's console. In response
to Tussey's questioning, Warick twice denied drinking.
Warick exited the vehicle at Tussey's request and field
sobriety tests were performed. Warick passed the tests which
included a preliminary breath test that registered 0.00.
Tussey's pat-down search of Warick revealed he was
carrying approximately $3, 000 cash in his pockets.
was fidgety in the car, and at some point, he was removed
from the vehicle. A search of Bertam's person revealed a
marijuana cigarette and a hypodermic needle.
called for a K-9 unit. When the K-9 unit arrived and was
being led to the car to do a sniff search, the dog alerted to
the grassy area behind Warick's car. The officers
discovered a baggie of marijuana and a pill bottle about
10-15 feet away from the vehicle. The pill bottle, labeled as
containing an antibiotic for Warick, actually contained seven
officers then obtained and executed a search warrant for the
car. The search revealed three cell phones and a napkin which
the officers said appeared to be a drug ledger. Dixon
testified that one of the cell phones showed incoming texts
which appeared to discuss obtaining drugs. Warick was
Thompson, of the Attorney General's Office and a Drug
Enforcement Administration Task Force Officer, was also
present during the search and seizure. As a result of the
Floyd County case, Thompson obtained a search warrant for
Warick's home in Johnson County. Upon execution of the
warrant on June 6, officers discovered drug paraphernalia,
marijuana, marijuana seeds, and marijuana plants.
moved to have the evidence against him suppressed, alleging
the items were discovered because the police unduly prolonged
the DUI stop. The trial court denied the motion finding
that the searches and seizures by the Prestonsburg Police
Department resulted from a natural progression of events
related to the traffic stop. Warick entered a conditional
Alford plea in the Floyd County case to one count of
possession of marijuana and was sentenced to forty-five (45)
days in jail. He also entered a conditional Alford
plea in the Johnson County case to one count of possession of
a controlled substance, third degree, and was sentenced to
thirty (30) days in jail. As noted, his appeals from the separate
Floyd and Johnson Circuit Court judgments were consolidated.
the Court of Appeals, Warick argued that the trial court
erred in its application of the law because the dog sniff
search and the subsequent searches of his vehicle and his
home were illegal, the searches having occurred after Tussey
had accomplished the purpose of the traffic stop. The
Commonwealth countered that the trial courts' judgments
should be upheld because Warick did not have standing 1) to
challenge the discovery of the marijuana and pill bottle
containing oxycodone in the grassy area at the Dairy Queen,
or 2) to raise a constitutional challenge concerning the
police actions towards Bertram. The Court of Appeals agreed with
the Commonwealth that Warick lacked standing to challenge the
dog sniff search and affirmed both lower courts'
judgments. In a 2-1 decision, the Court of Appeals concluded
that despite having the burden, Warick did not attempt to
establish a "reasonable expectation of privacy" in
the grassy area adjacent to the Dairy Queen parking lot.
Court granted discretionary review to consider whether
Warick's appeals were properly denied due to a lack of
Fourth Amendment "standing" to challenge the dog
sniff search and the resulting evidence against him. Although
we agree with Warick that the Court of Appeals has mistaken
the law to be applied to the facts of this case, and conclude
he has the right to challenge the search and seizure, we also
recognize that the trial court's findings of fact
regarding Warick's search and seizure are not sufficient
for an appellate court to determine whether the trial court
correctly applied the law to the facts. Accordingly, because
the issue of whether Warick's Fourth Amendment rights
were violated cannot be properly reviewed, we remand the case
to the Floyd Circuit Court for further findings of fact
sufficient to address Warick's Fourth Amendment claim.
begin with a summary of law pertinent to the invoking of
Fourth Amendment protection, and we remind the bench and bar
that a "standing" analysis is improper under Fourth
Amendment substantive law.
Warick Properly Asserted that the Officers' Actions
Infringed upon His Fourth Amendment Rights.
The Right to Invoke Fourth Amendment Protection.
Fourth Amendment protects "[t]he right of the people to
be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures." This
provision means that "each person has the right
to be secure against unreasonable searches and seizures in
his own person, house, papers, and effects."
Minnesota v. Carter, 525 U.S. 83, 92 (1998) (Scalia,
J, concur ring, joined by Thomas, J.). The exclusionary rule,
the rule that "evidence obtained in violation of the
Fourth Amendment cannot be used in a criminal proceeding
against the victim of the illegal search and seizure,"
was judicially created to safeguard that right. United
States v. Calandra, 414 U.S. 338, 347-48 (1974)
(citations omitted); see also Alderman v. United
States, 394 U.S. 165, 171 (1969) (citing Weeks v.
United States, 232 U.S. 383 (1914), and Mapp v.
Ohio, 367 U.S. 643 (1961)). The rule excludes both the
"primary evidence obtained as a direct result of an
illegal search or seizure" and "evidence later
discovered and found to be derivative of an illegality,"
commonly referred to as the "fruit of the poisonous
tree." Segura v. United States, 468 U.S. 796,
804 (1984) (citations omitted).
its broad deterrent purpose [against police misconduct], the
exclusionary rule has never been interpreted to proscribe the
use of illegally seized evidence in all proceedings or
against all persons." Calandra, 414 U.S. at 348. Three
exceptions to the rule "involve the causal relationship
between the unconstitutional act and the discovery of
evidence." Utah v. Strieff, 136 S.Ct. 2056,
2061 (2016). These exceptions are the independent source
doctrine, the inevitable discovery doctrine, and the
attenuation doctrine. Id. at 2061. The independent
source doctrine "allows trial courts to admit evidence
obtained in an unlawful search if officers independently
acquired it from a separate, independent source."
Id. (citing Murray v. United States, 487
U.S. 533, 537 (1988)). The inevitable discovery doctrine
"allows for the admission of evidence that would have
been discovered even without the unconstitutional
source." Id. (citing Nix v. Williams,
467 U.S. 431, 443-44 (1984)). And the attenuation doctrine
allows evidence to be admitted "when the connection
between unconstitutional police conduct and the evidence is
remote or has been interrupted by some intervening
circumstance, so that 'the interest protected by the
constitutional guarantee that has been violated would not be
served by suppression of the evidence obtained.m
Id. (citing Hudson v. Michigan, 547 U.S.
586, 593 (2006)).
Fourth Amendment "Standing" Subsumed under
Substantive Fourth Amendment Doctrine.
criminal defendant "may only claim the benefits of the
exclusionary rule [or the 'fruit of the poisonous tree
doctrine, if [his] own Fourth Amendment rights have
in fact been violated." United States v.
Salvucci, 448 U.S. 83, 85 (1980). Although the
aforementioned principle is often referred to as Fourth
Amendment "standing," the United States Supreme
Court held in Rakas v. Illinois that whether a
defendant can show a violation of his own Fourth Amendment
rights "is more properly placed within the purview of
substantive Fourth Amendment law than within that of
standing," 439 U.S. 128, 140 (1978) (citations omitted),
and provided this guidance:
Analyzed in these terms, the question is whether the
challenged search or seizure violated the Fourth Amendment
rights of a criminal defendant who seeks to exclude the
evidence obtained during it. That inquiry in turn requires a
determination of whether the disputed search and seizure has
infringed an interest of the defendant which the Fourth
Amendment was designed to protect.
Rawlings v. Commonwealth, 581 S.W.2d 348 (Ky. 1979),
this Court addressed a Fourth Amendment "standing"
issue soon after Rakas was decided. Considering Rakas,
Rawlings acknowledged a "preference] to speak in terms
of substantive right under the Fourth Amendment" because
the "concept of 'standing' is theoretically
separate from a defendant's rights under the Fourth
Amendment." Id. at 349. Rawlings nevertheless
continued to use the "standing" terminology in its
substantive analysis. See id. at 349-50.
performing an extensive review, it is safe to say that use of
the "standing" concept and terminology continues in
Kentucky's Fourth Amendment jurisprudence. For example,
the Commonwealth cites Ordway v. Commonwealth, 352
S.W.3d 584, 592 (Ky. 2011), in the instant case for the
premise that a defendant bears the burden of establishing his
standing to challenge a search under the Fourth Amendment.
Another example is Meece v. Commonwealth, also
decided in 2011, which summarized the elements necessary to
enforce the exclusionary rule as including a "defendant
must show that: (1) he or she has standing to challenge the
original violation . . . ." 348 S.W.3d 627, 659 (Ky.
2011) (citation omitted); see also Staton v.
Commonwealth, 2016-CA-001382-MR, 2018 WL 296971 (Ky.
App. Jan. 5, 2018), quoting Meece. Nevertheless, in a recent
unpublished opinion, Schmuck v. Commonwealth, this
Court again recognized Rakas's authority when considering
the Commonwealth's suppression motion argument that the
defendant lacked standing to assert an expectation of
privacy. 2015-SC- 000511-MR, 2016 WL 5247755, at *4 (Ky.
Sept. 22, 2016) ("Nearly forty years ago, the Supreme
Court of the United States rejected using the standing
doctrine to analyze whether a defendant had a legitimate
expectation of privacy."). Consequently, we
identified a three-step analysis for the trial court to
conduct on remand to determine whether to suppress the
evidence at issue, the first step being to determine whether
the defendant had a reasonable expectation of privacy. Id.
continued use of "standing" to describe the right
to invoke the Fourth Amendment exclusionary rule is not an
anomaly confined to Kentucky. For example, Byrd v. United
States, recently described the "standing"
question as a common one.
It is worth noting that most courts analyzing the question
presented in this case, including the Court of Appeals here,
have described it as one of Fourth Amendment
"standing," a concept the Court has explained is
not distinct from the merits and "is more properly
subsumed under substantive Fourth Amendment doctrine."
138 S.Ct. 1518, 1530 (2018) (citation omitted).
also recognized one reason why the Fourth Amendment
"standing" terminology remains in use, cautioned
against its confusion with the U.S. Constitution's
Article III standing, and provided explicit ...