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Warick v. Commonwealth

Supreme Court of Kentucky

August 29, 2019



          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.



         Appellant 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.


         Warick 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.

         Officer 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.

         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.

         Bertram was fidgety in the car, and at some point, he was removed from the vehicle.[2] A search of Bertam's person revealed a marijuana cigarette and a hypodermic needle.[3]

         Tussey 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 oxycodone pills.

         The 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 arrested.

         Emit 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.

         Warick moved to have the evidence against him suppressed, alleging the items were discovered because the police unduly prolonged the DUI stop.[4] 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.[5] As noted, his appeals from the separate Floyd and Johnson Circuit Court judgments were consolidated.

         Before 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.[6] 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.

         This 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.

         We 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.


         I. Warick Properly Asserted that the Officers' Actions Infringed upon His Fourth Amendment Rights.

         A. The Right to Invoke Fourth Amendment Protection.

         The 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).

         "Despite 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)).

         B. Fourth Amendment "Standing" Subsumed under Substantive Fourth Amendment Doctrine.

         A criminal defendant "may only claim the benefits of the exclusionary rule [or the 'fruit of the poisonous tree doctrine[7], 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.


         In Rawlings v. Commonwealth, 581 S.W.2d 348 (Ky. 1979), [8] 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.

         Without 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);[9] 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.").[10] 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.

         The 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).

         Byrd 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 ...

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