Carter v. Commonwealth

449 S.W.3d 771, 2014 WL 988780, 2014 Ky. App. LEXIS 44
CourtCourt of Appeals of Kentucky
DecidedMarch 14, 2014
DocketNo. 2012-CA-001253-MR
StatusPublished
Cited by2 cases

This text of 449 S.W.3d 771 (Carter 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
Carter v. Commonwealth, 449 S.W.3d 771, 2014 WL 988780, 2014 Ky. App. LEXIS 44 (Ky. Ct. App. 2014).

Opinion

OPINION

ACREE, Chief Judge:

Dustin M. Carter appeals from the June 14, 2012, judgment and sentence on conditional plea of guilty of the McLean Circuit Court. That judgment found Carter guilty of possession of a handgun by a convicted [773]*773felon; possession of a firearm by a convicted felon; possession of a controlled substance, first-degree, while in possession of a firearm; marijuana cultivation, five or more plants, while in possession of a firearm; sale or investment of drug-related income; and trafficking in marijuana, over eight ounces but less than five pounds, while in possession of a firearm, and sentenced him to ten years. Carter appeals the trial court’s denial of his motion to suppress certain evidence discovered during a warrantless search of his residence. We hold that the trial court erred when it concluded that the search of Carter’s residence fell within the scope of a “protective sweep” incident to an in-home arrest, an exception to the Fourth Amendment. However, because the trial court correctly found, in the alternative, that the evidence would have been inevitably discovered, we affirm.

The facts underlying this case are not in dispute. On December 10, 2011, McLean County Deputy Sheriff Joseph Stratton received an anonymous call that Carter was growing marijuana in his home and garage located at 413 Pete Scott Road. The caller provided detailed information about the marijuana growing operation and further indicated that he knew Carter personally and had been inside his home; that Carter was in possession of multiple firearms; and that Carter had a girlfriend who was often present in the residence and often spent the night.1 Based upon this information, Deputy Stratton contacted Kentucky State Police Detective Matthew Conley. On December 15, 2011, Deputy Stratton and Detective Conley, along with several other officers, arrived at Carter’s residence to conduct a “knock and talk.” The officers then encountered a neighbor who stated that he had noticed a strong chemical odor coming from Carter’s property and that there were frequently people coming and going in and out of the property.

Deputy Stratton and Detective Conley approached Carter’s property in order to speak with him. Appellant was on the front porch and spoke with Detective Conley while Deputy Stratton stood beside Carter’s garage. The officers testified that they could hear a radio playing inside the house but observed no affirmative indication that the home was occupied by anyone other than Carter.

Detective Conley noticed three dead ducks on the porch and, knowing that Carter was a convicted felon, asked Carter how he had killed them. Carter admitted that he had used a shotgun to kill the ducks and stated that the gun was at his mother’s house. Carter eventually acknowledged that the gun was inside the residence, and offered to retrieve the gun for the officers.

The officers declined Carter’s offer and asked to search the residence. Carter refused permission. The officers then placed Carter under arrest for admittedly being a felon in possession of a gun. Carter was handcuffed and seated on the front porch of his home. The officers again asked to search the home, and Carter again refused permission.

The officers then discussed engaging in a protective sweep of the residence to determine whether there were other persons in the home. Detective Conley contacted the McLean County Attorney regarding obtaining a search warrant and the appropriateness of a protective sweep. The County Attorney advised Detective Conley to do a protective sweep of the residence to ensure that no other parties were pres[774]*774ent. Inside the residence the officers observed firearms, ammunition, and marijuana plants in plain sight. Based on what was discovered during the search, officers then obtained a search warrant that would go beyond what they discovered in plain sight. The search warrant was executed and substantial evidence was seized.

As a result of the events of December 15, 2011, Carter was charged with two firearm-related charges and six drug-related charges. Carter filed a motion to suppress the evidence discovered in his home. A suppression hearing was held, and the motion was denied. Thereafter, Carter entered a conditional guilty plea. Carter also filed a motion to reconsider the denial of his suppression motion, which was denied in an opinion and order entered on June 7, 2012. As a result of Carter’s guilty plea, he was found guilty of possession of a handgun by a convicted felon; possession of a firearm by a convicted felon; possession of a controlled substance, first-degree, while in possession of a firearm; marijuana cultivation, five or more plants, while in possession of a firearm; sale or investment of drug-related income; and trafficking in marijuana, over eight ounces but less than five pounds, while in possession of a firearm, for which he received a total sentence of ten years. Several other charges were dismissed. This appeal followed.

Our review of a trial court’s decision on a motion to suppress is twofold. First, we must determine whether the trial court’s findings of fact are supported by substantial evidence. If so, then they are conclusive. Kentucky Rules of Criminal Procedure (RCr) 9.78. Second, “we must then conduct a de novo review of the trial court’s application of the law to those facts to determine whether its decision is correct as a matter of law.” Smith v. Commonwealth, 328 S.W.3d 748, 752 (Ky.App.2009).

The trial court in this case first found the officers had acted reasonably when they entered Carter’s home to do a warrantless protective sweep. Specifically, the trial court concluded that the protective sweep was justified by circumstances which led the police officers to believe they were in danger from being shot by a third party inside the house. Carter argues that the circumstances did not support a search of the home under the protective sweep doctrine. For the following reasons, we agree with Carter.

It is well established that a warrantless search of an individual’s private residence, absent exigent circumstances, is prohibited by the Fourth Amendment to the United States Constitution. See, e.g., Commonwealth v. McManus, 107 S.W.3d 175 (Ky.2003). However, the United States Supreme Court has expanded the breadth of permissible warrantless searches to include a properly limited protective sweep in conjunction with an in-home arrest. Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990).

The holding of Buie, officially adopted by the Kentucky Supreme Court in Guzman v. Commonwealth, defined a permissible protective sweep to include all or part of an individual’s home when officers possess an objectively reasonable belief that the residence may be harboring a dangerous person. 375 S.W.3d 805, 808 (Ky.2012).

Since Guzman, our Supreme Court has further fleshed out our understanding of Buie. In Kerr v. Commonwealth, 400 S.W.3d 250 (Ky.2013), the Supreme Court recognized that Buie permits “two types of protective sweeps incident to an arrest that áre reasonable and lawful under the Fourth Amendment.” Kerr, 400 S.W.3d at

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Related

Giles v. Commonwealth
577 S.W.3d 118 (Court of Appeals of Kentucky, 2019)

Cite This Page — Counsel Stack

Bluebook (online)
449 S.W.3d 771, 2014 WL 988780, 2014 Ky. App. LEXIS 44, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carter-v-commonwealth-kyctapp-2014.