RENDERED: APRIL 21, 2023; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2022-CA-0481-MR
COMMONWEALTH OF KENTUCKY APPELLANT
v. APPEAL FROM BULLITT CIRCUIT COURT HONORABLE RODNEY DARREL BURRESS, JUDGE ACTION NO. 20-CR-00280
DENNY JOE DAUGHERTY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; CETRULO AND ECKERLE, JUDGES.
CETRULO, JUDGE: The Commonwealth appeals the Bullitt Circuit Court order
which granted Appellee Denny Joe Daugherty’s (“Daugherty”) Kentucky Rule of
Civil Procedure (“CR”) 60.02 motion to reconsider his motion to suppress. In so
doing, the circuit court reversed its prior order and granted Daugherty’s motion to
suppress. Finding no error, we affirm. I. FACTUAL AND PROCEDURAL HISTORY
On July 7, 2020, Colonel Marcus Laytham (“Col. Laytham”) received
two anonymous voicemails on the Bullitt County Sheriff’s Office crime tip line.
The voicemails stated that Daugherty was selling marijuana from his residence and
that he had multiple firearms there. That day, Col. Laytham conducted
surveillance on Daugherty’s residential street, Belair Drive. Three days later, after
a series of investigative stops, the district court issued a search warrant for
Daugherty’s residence, and the Bullitt County Sheriff’s Office executed the
warrant. There, deputies seized numerous firearms, more than five pounds of
marijuana, marijuana products and paraphernalia, and a sum of cash. In August
2020, a grand jury indicted Daugherty for trafficking in marijuana, greater than
five pounds, first offense, while in possession of a firearm.
In March 2021, Daugherty filed a motion to suppress the evidence
seized from his house. He claimed the affidavit that Col. Laytham submitted with
the search warrant was not sufficient. Specifically, he argued the affidavit failed to
state a reasonable and articulable suspicion because it was based on anonymous
tips and allegedly unconstitutional traffic stops involving individuals simply seen
on Belair Drive.
At the March 2021 suppression hearing, Col. Laytham testified that
the two July 2020 voicemails occurred within a two-hour period and appeared to
-2- be from the same caller.1 After receiving the tips, Col. Laytham conducted
surveillance of Belair Drive; however, from his vantage point, he could not see
Daugherty’s residence. Col. Laytham testified that he saw a vehicle turn onto
Belair Drive, then leave six minutes later. He could not see whether the driver
visited Daugherty’s residence. Nevertheless, when the driver turned off Belair
Drive, Col. Laytham followed him and conducted an investigative stop. During
the stop, the driver explained that he had purchased two electronic-cigarette vaping
cartridges from “Denny” on Belair Drive. The driver then consented to Col.
Laytham searching his vehicle, where he found the “THC[2] cartridges and one
glass pipe with marijuana residue.” Despite the admission, Col. Laytham did not
administer a citation because the driver had been “cooperative.”
Two days later, Col. Laytham conducted similar surveillance and saw
a second vehicle turn onto Belair Drive. Again, Col. Laytham could not see
Daugherty’s residence from his vantage point; therefore, he could not confirm
whether the vehicle went to Daugherty’s residence. When this driver left Belair
Drive after a few minutes, Col. Laytham followed the driver and conducted an
investigative stop. This driver, however, did not provide any information
1 Although Col. Laytham did not check the phone numbers, he explained that the voice and information provided were nearly identical. 2 Tetrahydrocannabinol is the primary psychoactive cannabinoid extracted from marijuana.
-3- regarding Daugherty. Col. Laytham noted that he saw an electronic cigarette
vaping device “in plain view,” which was “consistent with [their] previous stop.”
However, again, Col. Laytham did not cite the driver.
The next day, a different detective in Col. Laytham’s office, Floyd
Cook (“Detective Cook”), surveilled the area from a similar location. However,
Col. Laytham testified that, to the best of his knowledge, Detective Cook had a
different vantage point and could see Daugherty’s driveway. Therefore, the
affidavit for the search warrant – drafted by Col. Laytham – stated that, Detective
Cook “saw the [vehicle] enter the driveway [at Daugherty’s residence,]” although
the investigative report from that encounter did not state that Detective Cook could
see Daugherty’s driveway. Nevertheless, Detective Cook followed the vehicle
when it pulled off Belair Drive six minutes later and called Col. Laytham to share
the information.
Col. Laytham drove to the location of the third vehicle with another
detective (“Detective Pressley”), and by that time, the third driver had made it
home and parked near his driveway. Col. Laytham did not recall turning on his
lights or officially “pulling over” the driver. Upon reaching the vehicle, Col.
Laytham noticed an “extremely strong” odor of marijuana in the passenger
compartment of the vehicle. After a conversation, the driver surrendered a large
bag of marijuana and stated he had gotten it from someone named “Pappy” who
-4- lived “off Hwy 61.” Col. Laytham testified that after additional questioning, the
driver confirmed “Pappy” was Daugherty; however, the affidavit for the search
warrant did not state that the driver confirmed as much. The affidavit simply
stated that the driver allowed Col. Laytham to look at his phone, where Col.
Laytham saw a contact for “Denny” with the correct phone number listed. Again,
Col. Laytham did not cite or charge the driver for the items he seized.
After those stops, Col. Laytham drafted the search warrant. The
affidavit he submitted in support stated that he had received two tips; however,
Col. Laytham did not reveal that he believed both tips were from the same caller.
The affidavit then explained the events of the first and third investigative stops –
leaving out the second stop. Further, the affidavit did not indicate that any of the
three drivers had committed an infraction to justify the investigative stops, but that
Col. Laytham conducted them because they drove onto Belair Drive, then left after
a short period of time.
Daugherty argued that the circuit court should grant his motion to
suppress because the affidavit was misleading as to how many people had called in
tips and misleading as to the number of traffic stops. Daugherty argued the stops
had been conducted without probable cause, and Col. Laytham’s reliance on those
stops for the search warrant was improper. Moreover, he did not believe that Col.
Laytham gave the warrant-issuing judge complete information. Daugherty argued
-5- that if the second stop, which had not resulted in any information, had been
disclosed, that could have affected the decision to issue the warrant.
In August 2021, the circuit court denied Daugherty’s motion to
suppress. The order detailed the events of the investigation and concluded that
there was no evidence the two investigative stops were “illegal.” Further,
Daugherty had not presented evidence of an unlawful detention or coercion in
either traffic stop. Additionally, the circuit court took issue with Daugherty’s
standing to contest the legality of those traffic stops and confirmed Col. Laytham
had used the stops to corroborate the anonymous tips. As such, the circuit court
found the information “was properly submitted as part of the ‘totality’ of the
circumstances on which the District Judge based her decision to grant the search
warrant,” citing Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527
(1983).
The next month, however, Daugherty filed a CR 60.02 motion asking
the court below to reconsider its August 2021 order. The motion to reconsider
asserted that despite the circuit court’s initial finding that there had been no
evidence of illegality or coercion, there was new evidence of record indicating
some level of coercion based on Col. Laytham’s prior statements. Specifically,
Daugherty cited Col. Laytham’s testimony stating (1) he did not charge the first
driver because “he was very cooperative”; and (2) he “emphatically said” there
-6- were no other stops related to the investigation (only the three he had discussed).
At the suppression hearing, Daugherty’s attorney had asked Col. Laytham outright,
“were there any other stops that you all made of vehicles?” and Daugherty quickly
answered “no, that was it.” Daugherty’s attorney pressed again, “there wasn’t a
fourth stop? Somebody wasn’t charged with anything? You’re certain of that?”
and Col. Laytham said, “Not by my – I did not stop anybody else.”
At a subsequent Franks3 hearing, Daugherty argued he had learned
additional information regarding a fourth investigative stop since the suppression
hearing. Daugherty claimed that at a fourth stop “law enforcement repeatedly
asked [the driver] about [Daugherty] and apparently[,]” when not given the
answers they sought, charged the occupants of the fourth vehicle. Daugherty noted
he did not have the opportunity to cross-examine Detective Pressley, who had
made the fourth stop, because Col. Laytham did not confirm that stop.
Additionally, Daugherty emphasized that the August 2021 order stated the
detectives gathered information in the affidavit from individuals seen leaving
Daugherty’s home, but as discussed, the police record did not indicate that any
detective could see Daugherty’s residence during surveillance. Again, Daugherty
3 Franks v. Delaware, 438 U.S.154, 155-56, 98 S. Ct. 2674, 2676, 57 L. Ed. 2d 667 (1978), which held that a defendant is entitled to an evidentiary hearing when he or she makes a “substantial preliminary showing” that the affiant made a false statement in the affidavit.
-7- argued the district judge likely would not have signed the search warrant if the
“totality of the circumstances” had been made available.
In January 2022, the circuit court conducted a second suppression
hearing to address the motion for reconsideration. Col. Laytham testified that
when Detective Pressley made the fourth stop, Col. Laytham had been at the office
drafting the search warrant affidavit. He further testified that Detective Pressley
had called him while making the stop and informed him that they had found some
marijuana in the vehicle but that “they didn’t have anything to tie it back to the
location [i.e., Belair Drive].”
Detective Pressley testified that he had conducted the fourth stop,
which involved a vehicle occupied by Brent and Lacy Meyer (together, the
“Meyers”). Detective Pressley explained that a detective who had been surveilling
Belair Drive called him and informed him a vehicle was “leaving the area.”
Detective Pressley then located the Meyers’ vehicle and conducted an investigative
stop – citing a broken taillight. During the stop, the Meyers notified Detective
Pressley that they had marijuana; however, the Meyers told him they were not
going to tell him where they got the marijuana. Therefore, Detective Pressley
arrested the Meyers. He testified that if they had told him where they got the
marijuana, he probably would not have arrested them.
-8- Lacy then testified that Daugherty was a family friend of her and her
husband, and they periodically stayed overnight on Daugherty’s property. She
testified that on the day they were arrested, they had been staying on Daugherty’s
property but had not seen or spoken with him that day. When they left the property
and turned off Belair Drive, a detective followed them until Detective Pressley
pulled them over a few roads away.
Lacy testified Brent had told Detective Pressley he had some
marijuana in the car, and Detective Pressley had them step out of the car and
interrogated them, continually asking from whom they bought the marijuana.
Brent told Detective Pressley it was from someone with whom he worked, but
Detective Pressley insisted that he already knew who it was from and just needed
them to confirm it. Lacy testified that Detective Pressley did not state that they
were looking for the name “Daugherty” explicitly, but they did suggest that they
knew it came from Belair Drive and they were looking for an answer associated
with that area. Further, Detective Pressley told the Meyers that if they did not give
him a name, he was going to arrest them. They did not provide Daughtery’s name,
and then Detective Pressley arrested them.
Following this second hearing, in March 2022, the circuit court
entered an order setting aside its prior order, now granting Daugherty’s renewed
motion to suppress. The March 2022 order explained the second suppression
-9- hearing produced testimony that the first and third drivers were permitted to leave
the scene, uncharged, while the fourth driver was “arrested after they refused to
implicate [Daugherty].” The circuit court found that this “selective enforcement”
violated equal protection and justified suppression. Further, it concluded Col.
Laytham’s failure to notify the warrant-issuing judge of “deals” made with
individuals he stopped was grounds for suppression. In support, the circuit court
noted that Lacy’s testimony documented “the arbitrary nature of enforcing the law
in this investigation[]” because the detectives arrested the Meyers for possession
although they declined to arrest or cite drivers one or three for possessing the same
controlled substance.
The circuit court identified the appropriate standard to issue a
warrant – probable cause – and determined Lacy’s testimony had shed “a new light
on the nature of law enforcement[’]s information which was presented to the
[warrant-issuing] judge in her evaluation of probable cause.” The detectives
arresting only those who did not divulge a name was “strong motivation for an
individual to be less than truthful in their statement to law enforcement.”
Specifically, the circuit court explained that the affidavit failed to
disclose that drivers one and three had been “promised that they would not be
charged if they disclosed that [Daugherty] had sold them the illegal substances.”
That information, the court noted, was clearly known to Col. Laytham, who had
-10- submitted the affidavit. The court stated that the information clearly related to the
veracity of the first and third drivers and was omitted from the affidavit. The
circuit court recognized its duty to analyze such omissions in light of the affidavit
and determine if probable cause still existed. In analyzing the affidavit, the court
noted that it simply referenced two anonymous calls – failing to suggest that they
were made by the same person – which were substantiated solely by the statements
of drivers one and three. Importantly, the circuit court noted, the veracity of the
statements from drivers one and three was “clearly in question and those facts were
omitted and not disclosed to the magistrate evaluating the [affidavit].” As such,
the circuit court concluded there was insufficient information to support a finding
of probable cause and suppressed the evidence seized from Daugherty’s residence.
The Commonwealth appealed.
II. STANDARD OF REVIEW
The decision to grant or deny a motion under CR 60.02 . . . rests within the trial judge’s sound discretion. Accordingly, we apply an abuse of discretion standard of review to a [circuit] court’s rulings on . . . CR 60.02 motions. The test for abuse of discretion is “whether the trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.”
Copas v. Copas, 359 S.W.3d 471, 475 (Ky. App. 2012) (citations omitted).
-11- To review suppression hearing rulings regarding a search warrant, we
determine whether the trial court’s findings of fact were supported by substantial
evidence. Commonwealth v. Pride, 302 S.W.3d 43, 49 (Ky. 2010) (citation
omitted). “‘[S]ubstantial evidence’ is ‘[e]vidence that a reasonable mind would
accept as adequate to support a conclusion’ and evidence that, when ‘taken alone
or in the light of all the evidence, . . . has sufficient probative value to induce
conviction in the minds of reasonable men.’” Moore v. Asente, 110 S.W.3d 336,
354 (Ky. 2003) (citations omitted).
Then, we determine whether the circuit judge, considering the totality
of the circumstances, “correctly determined that the issuing judge did or did not
have a ‘substantial basis for . . . concluding’ that probable cause existed.” Pride,
302 S.W.3d at 49 (quoting Gates, 462 U.S. at 2364). “In doing so, all reviewing
courts must give great deference to the warrant-issuing judge’s decision.” Id.
(citing Gates, 462 U.S. at 236.)
III. ANALYSIS
The Commonwealth argues that the circuit court’s findings of fact
were not supported by substantial evidence, that it applied the wrong legal
standard, and that it erroneously concluded that the search warrant was not
4 The Kentucky Supreme Court adopted the Gates “totality of the circumstances” test in Beemer v. Commonwealth, 665 S.W.2d 912, 915 (Ky. 1984). Pride, 302 S.W.3d at 48.
-12- supported by probable cause. Additionally, the Commonwealth appears to also
argue that Daugherty failed to meet the “higher bar” required to obtain a Franks
hearing regarding Col. Laytham’s alleged omissions in the affidavit. See United
States v. Fowler, 535 F. 3d 408, 415 (6th Cir. 2008). However, the
Commonwealth failed to object to the suppression hearings or to the proposed
testimony before the circuit court; therefore, those issues are not properly before
this Court. See Brooks v. Byrd, 487 S.W.3d 913, 919 (Ky. App. 2016).
A. Findings of Fact
First, the Commonwealth argues that the circuit court did not provide
substantial evidence to support its findings that (1) drivers one and three “had been
promised that they would not be charged if they disclosed that [Daugherty] had
sold them the illegal substances”; and (2) that the Meyers were charged because
they failed to implicate Daugherty.
As to the first finding, the Commonwealth argues that there was no
testimony that the detectives made a promise to those drivers. During the first
suppression hearing, Col. Laytham testified that he conducted an investigative stop
on drivers one and three for the primary purpose of determining why the drivers
had been on Belair Drive and to see if it corresponded to the information from the
anonymous tips regarding Daugherty. At the second suppression hearing, Col.
Laytham explained that for drivers one and three, even though both surrendered
-13- illegal substances and implicated Daugherty, he simply thanked them for their time
and “sent them on their way.”
At the second suppression hearing, Detective Pressley testified that he
participated in the third and fourth stops. Detective Pressley testified that he
initiated his stops because he believed the drivers were leaving Daugherty’s
residence. Further, Detective Pressley testified that if the Meyers had implicated
Daugherty, he probably would have let them go. Following the testimony, the
circuit court stated it was concerned that the detectives were pulling people over
and telling them, “if you squeal on somebody, I’m going to let you go, if you
don’t, I’m going to lock you up, and that’s the testimony I’ve got here today.” The
circuit court’s March 2022 order acknowledged that testimony, noting that the first
and third drivers could “leave the scene upon surrender of the drugs upon their
advising the officer that the drugs were obtained from [Daugherty].” In contrast,
the circuit court noted, the Meyers “were arrested after they refused to implicate
[Daugherty].” The circuit court emphasized that Lacy Meyers’ testimony at the
second suppression hearing shed “a new light on the nature of law enforcement[’]s
information.”
For the circuit court’s second finding of fact, the Commonwealth
argues Detective Pressley’s testimony established the Meyers were arrested
because they “weren’t going to say” where they got the marijuana (not because
-14- they were not going to say Daugherty sold them the marijuana). However, Lacy
testified that Brent had told the detective where he got the marijuana – a friend
with whom he worked – it simply had not been the name the detectives wanted. It
is true, Detective Pressley did not specifically tell the Meyers that they needed to
give him the name “Daugherty”; however, Lacy did testify that Detective Pressley
told her they were looking for a name associated with Belair Drive and that they
“knew the marijuana came from that area.” Importantly, Col. Laytham and
Detective Pressley testified that they specifically focused on “that area” to surveil
Daugherty.
Additionally, Detective Pressley acknowledged that the Meyers had
cooperated and told him about the marijuana when he asked if there was anything
he needed to know about in the car. Based on his testimony, the only difference
between driver three (who was allowed to leave after surrendering marijuana) and
driver four (who was arrested after surrendering marijuana) was that the former
implicated Daugherty. Detective Pressley even testified that if the Meyers had
given him Daugherty’s name, he probably would have let them go.
As discussed, findings are sufficiently supported when there is
adequate evidence to support a conclusion, “taken alone or in the light of all the
evidence[.]” Moore, 110 S.W.3d at 354 (citation omitted). The testimony here
provided substantial evidence to support the trial court’s findings of fact. It is not
-15- our role to substitute our opinion as to the trial court’s findings of fact where, as
here, there was substantial evidence to support those.
B. Conclusions of Law
However, the Commonwealth also argues that the circuit court failed
to determine whether the warrant-issuing judge “had a substantial basis to issue the
warrant” and “failed to give the required deference” to the determination of the
warrant-issuing judge. Again, we must disagree with the Commonwealth; the
circuit court applied the appropriate legal standards.
The Commonwealth argues that “[a] judicial officer’s inquiry into the
existence of probable cause must be confined to those circumstances stated in the
affidavit.” Rawls v. Commonwealth, 434 S.W.3d 48, 58 (Ky. 2014) (citation
omitted). That is true. However, as the circuit court’s March 2022 order stated,
“[w]hen information is omitted from an affidavit in support of a warrant[,] the
court must then analyze the affidavit [including the omitted portions] and
determine if probable cause still exists.” See United States v. West, 520 F. 3d 604,
611 (6th Cir. 2008). In those cases, the four corners of the affidavit do not suffice.
Further, the circuit court correctly identified the standard for
determining whether probable cause5 existed in such situations: totality of the
5 Probable cause is a “practical, common-sense decision whether, given all the circumstances set forth in the affidavit[] there is a fair probability that contraband or evidence of a crime will be
-16- circumstances.6 The circuit court specifically noted that its duty was to ensure the
issuing judge had a “‘substantial basis for . . . concluding’ that probable cause
existed,” citing Gates, 462 U.S. at 238-39. As such, we find that the circuit court
applied the appropriate standards in its decision to reconsider its prior ruling and
grant the motion to suppress. Next, we must determine whether the circuit court’s
determination following that analysis was without error.
The Commonwealth argues that the circuit court erred when it
determined that the affidavit did not establish probable cause, claiming probable
cause did exist because there was an anonymous tip identifying Daugherty, his
residence, and the kinds of contraband in his residence. The Commonwealth
argues that the first and third drivers’ admission to possession of narcotics
increased the veracity of their statements implicating Daugherty and provided
probable cause.
First, as the circuit court noted, the issuing judge was not advised in
the affidavit that the anonymous tips were believed to be from the same person.
Further, the circuit court found that the detectives had influenced those drivers’
“admissions”; therefore, the veracity for truthfulness was diminished. Daugherty
found in a particular place.” Minks v. Commonwealth, 427 S.W.3d 802, 810 (Ky. 2014) (quoting Gates, 462 U.S. at 238). 6 At one point, the circuit court called this “totality of the evidence,” but we find such terminology to be synonymous because the circuit court cited to references of “totality of the circumstances” multiple times and clearly understood the standard.
-17- presented evidence at the suppression hearings that the detectives let people leave
the scene – uncharged – when they implicated Daugherty and arrested those who
committed the same offense but did not implicate Daugherty.
The circuit court, quoting West, 520 F. 3d at 611-12, concluded that
the affidavit, when “viewed as a whole, taking in the totality of the circumstances
and the omitted information, it is not probable cause that is depicted, but rather it is
a picture of unreliable and uncorroborated hearsay statements of a [witness] hoping
to garner favor with the government[.]” In West, the Sixth Circuit concluded the
affidavit indicated a “clear reckless disregard for the truth” because the officer “did
not accurately reflect the facts known to him at the time the affidavit was sworn[.]”
Id. at 611. In such situations, the Court explained, “we are required to analyze the
affidavit ‘including the omitted portions and determine whether probable cause
still exists.’” Id. (quoting United States v. Atkin, 107 F. 3d 1213, 1217 (6th Cir.
1997)).
Here, like in West, the circuit court analyzed the affidavit in light of
the omissions, and found that the witnesses who implicated Daugherty and were
not arrested had “garnered favor with the government because of their
statements[.]” See id. at 612. In West, the Court explained that “[t]he fact that the
affidavit prepared by [the officer] did not accurately reflect the facts known to him
at the time the affidavit was sworn evinces a reckless disregard for the truth.”
-18- Similarly, here, the circuit court found the anonymous tips – from a
single caller – and the corroborating hearsay from individuals who detectives
declined to charge for implicating Daugherty created similar issues of reliability.
Col. Laytham had testified that he knew most of those facts at the time he drafted
the affidavit but failed to include them. As such, the circuit court relied upon
sound legal principles and a thorough examination of the testimony presented and
found the affidavit, in light of the omitted information, did not support a finding of
probable cause. Without that omitted information, the court ruled, there was not a
substantial basis for the warrant-issuing judge to issue the warrant. The circuit
court did not abuse its discretion in making such determinations.
IV. CONCLUSION
The Bullitt Circuit Court exercised its discretion and found that, in
light of the omissions, Col. Laytham’s search warrant affidavit had not provided a
substantial basis for the district court to conclude there was probable cause to
search Daugherty’s residence. As such, we AFFIRM the circuit court’s March
2022 order granting Daugherty’s motion to suppress and setting aside its August
2021 order.
ALL CONCUR.
-19- BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Daniel Cameron John A. Cook Attorney General of Kentucky Shepherdsville, Kentucky
Melissa A. Pile Assistant Attorney General Frankfort, Kentucky
-20-