Brown v. Commonwealth

423 S.W.3d 765, 2014 WL 585631, 2014 Ky. App. LEXIS 26
CourtCourt of Appeals of Kentucky
DecidedFebruary 14, 2014
DocketNo. 2012-CA-001944-MR
StatusPublished
Cited by2 cases

This text of 423 S.W.3d 765 (Brown v. Commonwealth) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brown v. Commonwealth, 423 S.W.3d 765, 2014 WL 585631, 2014 Ky. App. LEXIS 26 (Ky. Ct. App. 2014).

Opinion

OPINION

■MAZE, Judge:

Appellant, Roderick Fitzpatrick Brown, appeals his conviction and sentence for disorderly conduct, possession of drug paraphernalia, and possession of marijuana. Specifically, he contends that the trial court erred in denying his motion to sup[767]*767press evidence which he claims police obtained through an illegal search of his residence. Because officers lacked the requisite suspicion of danger to justify a protective sweep of Brown’s residence, the trial court indeed erred in denying his motion to suppress the seized evidence. Therefore, we reverse and remand the ease to the trial court.

Background

The facts of this case are not in dispute. On February 15, 2012, a victim notified Lexington Police that three men had assaulted her at gunpoint. She knew all three men, and she identified Brown as the person who had assaulted her with a handgun. She reported to the operator where Brown lived and that the three men had walked toward that location after the assault. She stated to the dispatch operator, “[t]hey had guns” and that she knew Brown’s residence contained other firearms, including an AK-47 assault rifle. It took approximately eight minutes for officers to arrive at Brown’s residence.

The first officer on the scene, Officer Raker, waited around the corner from the residence until additional officers arrived. Six or seven officers eventually arrived in response to the victim’s report and, with guns drawn, officers established a perimeter around the home, using a public address system to order the occupants out of the home. Two females emerged from the home followed by three males. Officers immediately separated, patted down and questioned each occupant. The individuals reported that no one remained in the home. Nevertheless, Officer Raker, who had not spoken with any of the occupants, conducted a sweep of the home accompanied by two other officers. Officers found no one else inside the home; however, during their sweep of the home, officers observed a black handgun, an AK — 47 assault rifle, marijuana cigarettes, a glass pipe, and a bong, all in plain view.

Police charged Brown with first-degree wanton endangerment, possession of drug paraphernalia, and possession of marijuana. Brown sought suppression of the items observed in, and seized from, the home. The trial court held a hearing on the suppression matter on May 29, 2012.

At the hearing, Officer Raker testified that, prior to entering the home, officers had no reason to believe anyone else was in the home. He stated that at the time of the sweep, officers on the scene who were questioning the occupants “would have known” that the three men who exited the home were those the victim had named. However, according to Officer Raker, he and the Sergeant who ordered the protective sweep did not question the occupants personally and did not know their names when the sweep was ordered.

Following Officer Raker’s testimony and extensive argument from the parties, the trial court overruled the motion to suppress, finding that officers had conducted a legal protective sweep. The trial court, speaking from the bench, cited the fact that more people had come out of the home than the three police expected. From this the court concluded that it was reasonable for officers to believe there were more individuals inside the residence. Following entry by the trial court of a brief written order, Brown entered a conditional plea of guilty to the amended charge of disorderly conduct, as well as the original charges of possession of drug paraphernalia and possession of marijuana. The trial court accepted his plea and Brown now appeals pursuant to his conditional plea.

Standard of Review

The sole issue in this case is whether the trial court erred in denying [768]*768Brown’s motion to suppress the evidence observed and obtained during the officers’ sweep of the then-unoccupied residence. Appellate review of a trial court’s rulings on a motion to suppress is two-fold. Brumley v. Commonwealth, 413 S.W.3d 280, 283-84 (Ky.2013) (citing to Commonwealth v. Marr, 250 S.W.3d 624, 626 (Ky.2008), and Kentucky Rules of Criminal Procedure [“RCr”] 9.78). First, the factual findings of the trial court are conclusive if supported by substantial evidence. Id. Second, if the findings are supported by substantial evidence, the appellate court conducts a de novo review to determine whether the trial court’s ruling is correct as a matter of law. Id.

As we state supra, the facts in this case are not in dispute. Therefore, we elect to proceed directly to a de novo review of the trial court’s legal conclusions and, ultimately, whether the protective sweep was justified.

Analysis

I. The Reasonableness of the Protective Sweep

At the heart of this case is the fundamental and closely held right to be free from unreasonable searches and seizures. Both the United States and Kentucky Constitutions guarantee this right. See U.S. Const, amend. IV; Ky. Const. § 10. Once again, we are confronted with the question of whether a search in this case was “unreasonable” or whether it fits within one of the recognized exceptions to the requirement of a search warrant. The United States Supreme Court announced one such exception, and the sole exception at issue in this case, in Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990).

A. Buie and Relevant Progeny

In Buie, the Supreme Court extended the officers’ safety motivation behind Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), to the in-home arrest context, permitting a protective sweep of the home under certain circumstances. In doing so, the Court addressed “the immediate interest of police officers in taking steps to assure themselves ... that the house in which a suspect is being, or has just been, arrested is not harboring other persons who are dangerous and who could unexpectedly launch an attack.” Buie, 494 U.S. at 333, 110 S.Ct. at 1097-1098. The Court acknowledged, “[a]n in-home arrest puts the officer at the disadvantage of being on his adversary’s ‘turf.’ An ambush in a confined setting of unknown configuration is more to be feared than it is in open, more familiar surroundings.” Id.

With this in mind, the Court created two types of protective sweeps authorities may execute. Under the first category, “as an incident to the arrest[,] the officers could, as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be launched.” Buie, 494 U.S at 334, 110 S.Ct. at 1098. Under the second category of protective sweep, officers could conduct a more pervasive search, extending beyond the area immediately adjoining the place of arrest; however, like in Terry and unlike the first category, officers must first posses “articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger[.]” Id.

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423 S.W.3d 765, 2014 WL 585631, 2014 Ky. App. LEXIS 26, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-commonwealth-kyctapp-2014.