RENDERED: MAY 30, 2025; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2023-CA-1449-MR
BOBBY GILLIARD APPELLANT
APPEAL FROM MADISON CIRCUIT COURT v. HONORABLE KRISTIN CLOUSE, JUDGE ACTION NOS. 20-CR-00316 AND 20-CR-00317
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: ACREE, KAREM, AND LAMBERT, JUDGES.
ACREE, JUDGE: Appellant Bobby Gilliard appeals the Madison Circuit Court’s
final judgment and order denying his motion to suppress evidence. We affirm.
BACKGROUND
On April 22, 2020, Officers Kirstein and Hess of the Richmond Police
Department and Deputy Thompson of the Madison County Sheriff’s Office were
investigating suspected drug trafficking at a Days Inn in Richmond, Kentucky.
Officer Kirstein observed a dark blue Chevrolet Tahoe parked in front of Room 116 that was believed to be associated with drug dealing. Additionally, he had
received information from a Days Inn employee that several visitors had gone in
and out of Room 116.
Based upon this information, Deputy Thompson brought his drug-
detection dog (Kash) to the Days Inn. Before making contact with the room’s
occupants, Deputy Thompson ran his dog by the door of Room 116 and Kash
alerted to the presence of narcotics.
Sergeant Kirstein knocked on the door and the room’s registered
guest, Candy Wright, opened the door to reveal Appellant Bobby Gilliard inside,
lying on a bed. Sergeant Kirstein told Wright why they were there.
Wright consented to a search of the room. In the bathroom, officers
located syringes in plain view. In the motel-room safe, 13 grams of an off-white
powder were found.1 In addition, Sergeant Kirstein found a bottle of Mannitol – a
common cutting agent – and scales with suspected narcotics residue.
Gilliard was charged with first-degree drug trafficking (three counts),
possession of drug paraphernalia, and being a first-degree persistent felony
offender. Gilliard moved to suppress the evidence, claiming the dog sniff outside
his motel room violated the Fourth Amendment. The trial court denied his motion,
1 The powder was subsequently determined to be a mixture of heroin, acetyl fentanyl, and fentanyl.
-2- finding the exterior walkway was not a constitutionally protected area and Gilliard
therefore had no reasonable expectation of privacy there.
Gilliard entered a conditional guilty plea to the three counts of first-
degree drug trafficking and possession of drug paraphernalia charge. He appeals
the trial court’s denial of his motion to suppress evidence.
ANALYSIS
I. The trial court properly denied Gilliard’s motion to suppress evidence. When reviewing a trial court’s denial of a motion to suppress, we
utilize clear error standard of review of factual findings and a de novo standard of
review for conclusions of law. Jackson v. Commonwealth, 187 S.W.3d 300, 305
(Ky. 2006) (citations omitted).
Unreasonable searches and seizures are prohibited by Fourth
Amendment of the United States Constitution, which provides as follows:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
U.S. CONST. amend. IV. The critical question in a Fourth Amendment analysis is
whether a person has a “constitutionally protected reasonable expectation of
privacy.” Katz v. United States, 389 U.S. 347, 360 (1967) (Harlan, J., concurring).
-3- To support his contention that a motel guest is entitled to a reasonable
expectation of privacy, Gilliard first directs us to Connecticut v. Correa, an opinion
from the Supreme Court of Connecticut. 264 A.3d 894 (Conn. 2021). We find
Correa inapplicable to the case at bar for two primary reasons.
First, and most importantly, Correa interprets article first, § 7, of the
Connecticut constitution – Connecticut’s version of the Fourth Amendment. While
courts in Connecticut “employ[] the same analytical framework that would be used
under the federal constitution” for claims of article first, § 7, violations, the inverse
is not necessarily mandated. Id. at 639. We specifically note slight variations in
verbiage between the two provisions. Compare U.S. CONST. amend. IV, supra,
with CONN. CONST., art. I, § 7 (“The people shall be secure in their persons, houses,
papers and possessions from unreasonable searches or seizures; and no warrant to
search any place, or to seize any person or things, shall issue without describing
them as nearly as may be, nor without probable cause supported by oath or
affirmation.”). To avoid applying a state’s interpretation of its own constitution
and hence its jurisprudence to the federal Constitution, we decline to find
persuasive value in Correa. We instead turn our focus to cases interpreting the
United States Constitution.
Second, in reaching its conclusion that a dog sniff outside a motel
room door is a search subject to the protections of article first, § 7, the Correa
-4- court relied chiefly on Connecticut v. Kono, a case involving a warrantless dog
sniff outside the door of a condominium unit inside a locked, keypad-restricted
complex. 152 A.3d 1, 5 (Conn. 2016). As we explain below, the differences
between such a restricted-access residential complex and the unrestricted, open-air
motel walkway, easily accessible by the public from the parking lot make the
Connecticut cases inapposite.
Guests in hotel rooms are entitled to constitutional protection against
unreasonable searches and seizures. Stoner v. California, 376 U.S. 483, 490
(1964). However, while “an individual’s Fourth Amendment rights do not
evaporate when he rents a motel room, the extent of the privacy he is entitled to
reasonably expect may very well diminish.” United States v. Agapito, 620 F.2d
324 (2d. Cir.), cert. denied, 449 U.S. 834 (1980). The Second Circuit explained the
difference is rooted in the “transitory nature” of motels:
Unlike an apartment or a room in a boarding house, hotels and motels are not ordinarily considered places where one lives and keeps personal effects. In addition, service personnel in hotels and motels have keys to enter and make-up the rooms, remove dishes, check air- conditioning, heating and the like. Former occupants may even have retained a key to a hotel room . . . . In short, it is the transitory nature of such places, commonly understood as such, that diminishes a person’s justifiable expectation of privacy in them.
United States v. Mankani, 738 F.2d 538, 544 (2d. Cir. 1984).
-5- Gilliard also relies on Florida v. Jardines, wherein the Supreme Court
of the United States was required to determine whether a warrantless canine sniff
on the front porch of a house violates the Fourth Amendment. 569 U.S. 1 (2013).
Free access — add to your briefcase to read the full text and ask questions with AI
RENDERED: MAY 30, 2025; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2023-CA-1449-MR
BOBBY GILLIARD APPELLANT
APPEAL FROM MADISON CIRCUIT COURT v. HONORABLE KRISTIN CLOUSE, JUDGE ACTION NOS. 20-CR-00316 AND 20-CR-00317
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: ACREE, KAREM, AND LAMBERT, JUDGES.
ACREE, JUDGE: Appellant Bobby Gilliard appeals the Madison Circuit Court’s
final judgment and order denying his motion to suppress evidence. We affirm.
BACKGROUND
On April 22, 2020, Officers Kirstein and Hess of the Richmond Police
Department and Deputy Thompson of the Madison County Sheriff’s Office were
investigating suspected drug trafficking at a Days Inn in Richmond, Kentucky.
Officer Kirstein observed a dark blue Chevrolet Tahoe parked in front of Room 116 that was believed to be associated with drug dealing. Additionally, he had
received information from a Days Inn employee that several visitors had gone in
and out of Room 116.
Based upon this information, Deputy Thompson brought his drug-
detection dog (Kash) to the Days Inn. Before making contact with the room’s
occupants, Deputy Thompson ran his dog by the door of Room 116 and Kash
alerted to the presence of narcotics.
Sergeant Kirstein knocked on the door and the room’s registered
guest, Candy Wright, opened the door to reveal Appellant Bobby Gilliard inside,
lying on a bed. Sergeant Kirstein told Wright why they were there.
Wright consented to a search of the room. In the bathroom, officers
located syringes in plain view. In the motel-room safe, 13 grams of an off-white
powder were found.1 In addition, Sergeant Kirstein found a bottle of Mannitol – a
common cutting agent – and scales with suspected narcotics residue.
Gilliard was charged with first-degree drug trafficking (three counts),
possession of drug paraphernalia, and being a first-degree persistent felony
offender. Gilliard moved to suppress the evidence, claiming the dog sniff outside
his motel room violated the Fourth Amendment. The trial court denied his motion,
1 The powder was subsequently determined to be a mixture of heroin, acetyl fentanyl, and fentanyl.
-2- finding the exterior walkway was not a constitutionally protected area and Gilliard
therefore had no reasonable expectation of privacy there.
Gilliard entered a conditional guilty plea to the three counts of first-
degree drug trafficking and possession of drug paraphernalia charge. He appeals
the trial court’s denial of his motion to suppress evidence.
ANALYSIS
I. The trial court properly denied Gilliard’s motion to suppress evidence. When reviewing a trial court’s denial of a motion to suppress, we
utilize clear error standard of review of factual findings and a de novo standard of
review for conclusions of law. Jackson v. Commonwealth, 187 S.W.3d 300, 305
(Ky. 2006) (citations omitted).
Unreasonable searches and seizures are prohibited by Fourth
Amendment of the United States Constitution, which provides as follows:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
U.S. CONST. amend. IV. The critical question in a Fourth Amendment analysis is
whether a person has a “constitutionally protected reasonable expectation of
privacy.” Katz v. United States, 389 U.S. 347, 360 (1967) (Harlan, J., concurring).
-3- To support his contention that a motel guest is entitled to a reasonable
expectation of privacy, Gilliard first directs us to Connecticut v. Correa, an opinion
from the Supreme Court of Connecticut. 264 A.3d 894 (Conn. 2021). We find
Correa inapplicable to the case at bar for two primary reasons.
First, and most importantly, Correa interprets article first, § 7, of the
Connecticut constitution – Connecticut’s version of the Fourth Amendment. While
courts in Connecticut “employ[] the same analytical framework that would be used
under the federal constitution” for claims of article first, § 7, violations, the inverse
is not necessarily mandated. Id. at 639. We specifically note slight variations in
verbiage between the two provisions. Compare U.S. CONST. amend. IV, supra,
with CONN. CONST., art. I, § 7 (“The people shall be secure in their persons, houses,
papers and possessions from unreasonable searches or seizures; and no warrant to
search any place, or to seize any person or things, shall issue without describing
them as nearly as may be, nor without probable cause supported by oath or
affirmation.”). To avoid applying a state’s interpretation of its own constitution
and hence its jurisprudence to the federal Constitution, we decline to find
persuasive value in Correa. We instead turn our focus to cases interpreting the
United States Constitution.
Second, in reaching its conclusion that a dog sniff outside a motel
room door is a search subject to the protections of article first, § 7, the Correa
-4- court relied chiefly on Connecticut v. Kono, a case involving a warrantless dog
sniff outside the door of a condominium unit inside a locked, keypad-restricted
complex. 152 A.3d 1, 5 (Conn. 2016). As we explain below, the differences
between such a restricted-access residential complex and the unrestricted, open-air
motel walkway, easily accessible by the public from the parking lot make the
Connecticut cases inapposite.
Guests in hotel rooms are entitled to constitutional protection against
unreasonable searches and seizures. Stoner v. California, 376 U.S. 483, 490
(1964). However, while “an individual’s Fourth Amendment rights do not
evaporate when he rents a motel room, the extent of the privacy he is entitled to
reasonably expect may very well diminish.” United States v. Agapito, 620 F.2d
324 (2d. Cir.), cert. denied, 449 U.S. 834 (1980). The Second Circuit explained the
difference is rooted in the “transitory nature” of motels:
Unlike an apartment or a room in a boarding house, hotels and motels are not ordinarily considered places where one lives and keeps personal effects. In addition, service personnel in hotels and motels have keys to enter and make-up the rooms, remove dishes, check air- conditioning, heating and the like. Former occupants may even have retained a key to a hotel room . . . . In short, it is the transitory nature of such places, commonly understood as such, that diminishes a person’s justifiable expectation of privacy in them.
United States v. Mankani, 738 F.2d 538, 544 (2d. Cir. 1984).
-5- Gilliard also relies on Florida v. Jardines, wherein the Supreme Court
of the United States was required to determine whether a warrantless canine sniff
on the front porch of a house violates the Fourth Amendment. 569 U.S. 1 (2013).
Finding a front porch to be the “classic exemplar” of a home’s curtilage entitled to
protection as part of the home itself, the Court deemed a canine sniff under such
circumstances to be an illegal search. Id. at 6-7.
We must again note the critical distinction between an open-air motel
and one’s own residence. Unlike the homeowner in Jardines, Gilliard was merely
an overnight guest of a motel’s registered occupant or lessee of one of the motel
owner’s rooms. Neither Gilliard nor Wright possessed any constitutional right to
exclude persons from the walkway area where Kash alerted. Jardines is a case
decided under the “property-based approach” governing whether officer conduct
amounts to a search rather than the “privacy-based approach[.]” United States v.
Lewis, 38 F.4th 527, 533 (7th Cir. 2022).
“Under the property-based approach, a search occurs when an officer
enters a constitutionally protected area, such as the home, for the purpose of
gathering evidence against the property owner.” Id. Because neither the human
nor the canine officer entered a constitutionally protected area, there was no search
and, therefore, no illegal search. Id. (citing Jardines, 569 U.S. at 6). By analogy,
“a plain view observation made by a police officer from a position where the
-6- officer is entitled to be is not a ‘search’ within the meaning of the Fourth
Amendment. Consequently, the restrictions of the Fourth Amendment are not
applicable.” United States v. Johnson, 506 F.2d 674, 675 (8th Cir. 1974) (citing
Harris v. United States, 390 U.S. 234, 236 (1968)).
The same result emerges under a privacy-based approach. In United
States v. Lewis, supra, a K-9 handler walked a drug detection dog up the exterior
staircase of a Red Roof Inn, along the second-floor exterior hallway, and to a room
believed to be occupied by the defendant. The dog alerted outside the door to the
room. The defendant sought to suppress the contraband found inside the motel
room, but, based on these facts, strikingly similar to those before us, the Seventh
Circuit determined that a warrantless dog sniff in an exterior motel hallway was
not an unreasonable search. Id. Under the privacy-based approach, the Lewis
court concluded that since a motel guest “undoubtedly gives implied or express
permission to such persons as maids, janitors or repairmen to enter his room in the
performance of their duties[,] . . . it is hard to see how guests at the Red Roof Inn
could reasonably expect to be free of dog sniffs in the exterior hallway.” Id. at 536
(internal quotation marks omitted).
Relying on these principles, we conclude Gilliard, as an overnight
motel guest, did not have a reasonable expectation of privacy from a warrantless
-7- dog sniff in the public hallway outside the motel room door. We accordingly
affirm the trial court’s denial of his motion to suppress.
II. The trial court properly levied court costs.
Gilliard claims the trial court erred in levying court costs to be paid
within six months of release from custody. He concedes this issue is unpreserved.
As such, we review for palpable error under RCr2 10.26: “A palpable error which
affects the substantial rights of a party may be considered by . . . an appellate court
on appeal, even though insufficiently raised or preserved for review, and
appropriate relief may be granted upon a determination that manifest injustice has
resulted from the error.”
If a person is adjudged to be “poor,” the court cannot assess court
costs in a judgment fixing sentencing. Spicer v. Commonwealth, 442 S.W.3d 26,
36 (Ky. 2014). However, “[i]f a trial judge was not asked at sentencing to
determine the defendant’s poverty status and did not otherwise presume the
defendant to be an indigent or poor person before imposing court costs, then there
is no error to correct on appeal.” Id. at 35.
Gilliard did not ask for court costs to be waived. Nor did he request
the court to make a finding that he was a poor person. Other than being
represented by a public defender and the record reflecting he was permitted to
2 Kentucky Rules of Criminal Procedure.
-8- proceed on appeal in forma pauperis, there was no determination of Gilliard’s
financial status. And, as Spicer instructs, “[a] defendant who qualifies as ‘needy’
under KRS[3] 31.110 [addressing inability to provide for the payment of an
attorney] because he cannot afford the services of an attorney is not necessarily
‘poor’ under KRS 23A.205 [exempting a person who is unable to pay court
costs].” Id. (citation omitted). As in Spicer, the fact Gilliard was represented by a
public defender is insufficient basis for concluding he was entitled to an exemption
from court costs, particularly where no request was made at sentencing. We find no
error and affirm the imposition of court costs.
CONCLUSION
For the aforementioned reasons, we affirm the Madison Circuit
Court’s final judgment and order denying suppression.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Robert C. Yang Russell Coleman Frankfort, Kentucky Attorney General of Kentucky
Courtney J. Hightower Assistant Attorney General Frankfort, Kentucky
3 Kentucky Revised Statutes.
-9-