RENDERED: NOVEMBER 15, 2024; 10:00 A.M. TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2023-CA-1221-MR
COMMONWEALTH OF KENTUCKY APPELLANT
APPEAL FROM PERRY CIRCUIT COURT v. HONORABLE ALISON C. WELLS, JUDGE ACTION NO. 23-CR-00086
MALISSA CHAPMAN APPELLEE
AND
NO. 2023-CA-1448-MR
APPEAL FROM PERRY CIRCUIT COURT v. HONORABLE ALISON C. WELLS, JUDGE ACTION NO. 23-CR-00085 GARY CHAPMAN APPELLEE
OPINION REVERSING AND REMANDING
** ** ** ** **
BEFORE: CETRULO, ECKERLE, AND GOODWINE, JUDGES.
ECKERLE, JUDGE: Appellant, the Commonwealth of Kentucky (the
“Commonwealth”), seeks review of separate Perry Circuit Court orders granting
the motions of Appellees, Gary Chapman and Malissa Chapman1 (collectively the
“Chapmans”), to suppress evidence seized from a search of their residence. For
the reasons set forth herein, we reverse and remand with directions to deny the
motions to suppress and for additional proceedings as necessary.
FACTUAL AND PROCEDURAL BACKGROUND On December 3, 2022, at approximately 11:32 p.m., Hazard Police
Sergeant Jordan Childers (“Sergeant Childers”) applied for a search warrant for the
Chapmans’ residence based on suspicion of trafficking narcotics. Sergeant
Childers submitted the warrant application on AOC Form 340, along with an AOC
Form 335 affidavit. In the warrant application, Sergeant Childers attested to
obtaining information that the Chapmans were trafficking drugs. Sergeant Childers
1 The Commonwealth’s Notice of Appeal incorrectly identifies an Appellee as “Melissa” Chapman. The correct spelling of Appellee’s first name is “Malissa.”
-2- also attested to surveying the Chapman residence for several days during which he
observed activities that in his experience and training were consistent with drug
trafficking.
Upon review, a Perry District Court Judge issued the search warrant.
Approximately 90 minutes later, at or around the time of 1:00 a.m. on December 4,
2022, Sergeant Childers, along with other officers, executed the warrant and
searched the Chapmans’ residence. Sergeant Childers knocked on the door and
announced his presence several times, including the shouting of his identification.
After awaiting a response from within, and receiving none, law enforcement
forcibly entered the door to effectuate the search warrant at or around
approximately 1:15 a.m. Upon entering, law enforcement swept the area for
occupants, but located none. Sergeant Childers read the warrant aloud in the
empty home. Law enforcement then conducted the search and seized eight items.
Sergeant Childers placed the warrant in a conspicuous location prior to departing
the premises.
The fruits of the search led to the indictment of the Chapmans on
identical charges of first-degree trafficking in heroin, first-degree trafficking in
fentanyl or carfentanil, first-degree possession of methamphetamine, possession of
marijuana, and possession of drug paraphernalia. The Chapmans filed separate
motions to suppress evidence seized from the search, arguing that the warrant was
-3- executed in violation of Kentucky Revised Statute (“KRS”) 455.180. The
Commonwealth countered, inter alia, that KRS 455.180 was inapplicable because
law enforcement obtained and effectuated a “regular” warrant and provided
sufficient notice by virtue of law enforcement’s repeated knocks on the door and
announcement of police presence.
The Trial Court held separate hearings on the Chapmans’ respective
suppression motions. Sergeant Childers served as the sole witness at both
evidentiary hearings. He testified to the events preceding his application of the
subject warrant and the consequent execution thereof. The Trial Court ultimately
granted the Chapmans’ motions for suppression of evidence, ruling that the search
circumvented the requirements of KRS 455.180 due to law enforcement’s “entry
without notice.”2 As discussed more fully herein, the Trial Court assigned a legal
definition to the word “notice” as used in KRS 455.180.3 The Trial Court ruled
that law enforcement’s knocks and announcements did not qualify as “notice”
under KRS 455.180 because no one was present at the Chapman residence to
receive notice at the time the search was effectuated. Said differently, the Trial
Court relegated law enforcement’s effectuation of the warrant as a “without notice”
2 While the Trial Court’s orders contain identical rulings and parallel reasoning, the Trial Court utilized additional analysis in its order granting Gary Chapman’s motion to suppress. 3 The Trial Court specifically defined the term “notice” in the Gary Chapman order. See Gary Chapman Record (“G.C.R.”) 73-74.
-4- entry, thereby implicating the confines of KRS 455.180. Consequently, as the
subject warrant did not meet the requirements of KRS 455.180, nor were there
exigencies at play, the Trial Court ruled that exclusion of the seized evidence was
proper pursuant to Kentucky Rules of Evidence 410A.
The Commonwealth subsequently filed separate appeals from both
orders granting suppression. This Court consolidates Gary Chapman’s and Malissa
Chapman’s appeals pursuant to the Kentucky Rules of Appellate Procedure 2(F)(2)
for purposes of assignment to the same panel and issuance of a single Opinion.
STANDARD OF REVIEW
In reviewing the Trial Court’s orders granting the Chapmans’ motions
to suppress, this Court follows a two-step analysis. First, we review the Trial
Court’s findings of fact for clear error. Whitlow v. Commonwealth, 575 S.W.3d
663, 668 (Ky. 2019). Second, we conduct a de novo review of the Trial Court’s
application of the law to the facts. Id. A “[d]e novo [review] affords ‘no deference
to the trial court’s application of the law to the established facts.’” Commonwealth
v. Bembury, 677 S.W.3d 385, 391 (Ky. 2023) (quoting Horn v. Commonwealth, 240
S.W.3d 665, 669 (Ky. App. 2007)). In the case before us, where the findings of
fact are supported by substantial evidence, “the question necessarily becomes,
‘whether the rule of law as applied to the established facts is or is not
-5- violated.’” Adcock v. Commonwealth, 967 S.W.2d 6, 8 (Ky. 1998) (quoting
Ornelas v. United States, 517 U.S. 690, 697 (1996)).
ANALYSIS
Neither party alleges error in the Trial Court’s factual findings, nor do
the parties contest that law enforcement obtained a valid search warrant. Rather,
the central issue of law is whether law enforcement’s execution of the warrant was
unconstitutional or in violation of KRS 455.180.
I. Constitutional Reasonableness of Law Enforcement’s Effectuation of the Search Warrant Our analysis begins with the constitutionality of the search. The
Fourth Amendment to the United States Constitution and Section 10 of the
Kentucky Constitution provide, in relevant part, that people have the right to be
secure in their persons, houses, papers, and effects against unreasonable searches
and seizures. The cornerstone of our analysis, therefore, is the reasonableness of
law enforcement’s method of execution of the search warrant. United States v.
Ramirez, 523 U.S. 65, 71 (1998). As part of the reasonableness inquiry, law
enforcement’s announcement must be considered. Wilson v. Arkansas, 514 U.S.
927, 929 (1995). To pass constitutional muster, it is well-established law that prior
to entering a dwelling forcibly pursuant to a valid warrant, absent exigent
circumstances, law enforcement must first knock on the door and announce their
identity and purpose. Adcock, 967 S.W.2d at 8 (citing Wilson, 514 U.S. at 933).
-6- This principle, commonly referred to as the “knock-and-announce rule,” requires
notice “in the form of an express announcement by the officers of their purpose for
demanding admission.” Miller v. United States, 357 U.S. 301, 309 (1958). The
rule aims to provide occupants of the premises subject to a search warrant
sufficient time to open the door voluntarily. Wilson, 514 U.S. at 931.
The knock-and-announce rule has three purposes: “(1) to protect law
enforcement officers and household occupants from potential violence; (2) to
prevent the unnecessary destruction of private property; and (3) to protect people
from unnecessary intrusion into their private activities.” Adcock, 967 S.W.2d at 8.
The rule “serves to respect the sanctity of a person’s home by affording notice to
those inside so that they may open the door peaceably and without the needless
destruction of property, as well as by avoiding the possibility of a violent
confrontation if those inside mistook the police for intruders.” United States v.
Spikes, 158 F.3d 913, 925 (6th Cir. 1998) (emphasis added).
We must note that the knock-and-announce rule has been codified in
the federal context pursuant to 18 United States Code (“U.S.C.”) § 3109.
However, Kentucky has implemented the principle through case law mirroring that
of the United States Supreme Court’s knock-and-announce framework. See
generally Adcock, 967 S.W.2d 6 (citing Richards v. Wisconsin, 520 U.S. 385
(1997)). Accordingly, absent exigency, law enforcement must knock and receive
-7- an actual refusal or wait during the time necessary to infer one. United States v.
Banks, 540 U.S. 31, 43 (2003). Where there is no answer to a knock and
announce, law enforcement may proceed with executing the search warrant by
forceable entry. See Parks v. Commonwealth, 192 S.W.3d 318, 334 (Ky. 2006)
(citing Adcock, 967 S.W.2d 6).
In the case sub judice, there is no argument, or evidence for that
matter, that law enforcement did not comply with the knock-and-announce rule
prior to entering the Chapman residence by force. As the Trial Court’s factual
findings demonstrate, law enforcement obtained a valid warrant to search the
residence and effectuated the search upon obtaining authority and a risk assessment
evaluation. Law enforcement knocked and announced their presence and waited
for a response prior to entering the front door with force. Based upon the
constitutional principles that bind this Court, we hold that law enforcement acted
reasonably in effectuating the valid search warrant.
Regarding other reasonableness factors that the Trial Court
considered, we find no authoritative support for the proposition that law
enforcement is precluded from effectuating a valid search warrant in the middle or
night or in the event that all occupants are absent from the premises. See, e.g.,
Bailey v. United States, 568 U.S. 186, 190 (2013) (search team executed search
warrant of apartment after observing occupants, who had no knowledge of the
-8- impeding search, had left the premises). In addition, the Kentucky Supreme Court
has expressly rejected the notion that law enforcement can only “go to the premises
in the daytime, knock on the door and announce who they are and the purpose of
their presence.” Commonwealth v. Gross, 758 S.W.2d 436, 437 (Ky. 1988). As the
Court stated, “[t]his is not the law in Kentucky, and never should be.” Id.
Furthermore, and as is clearly apparent from its plain language discussed below,
KRS 455.180 does not prohibit effectuating a search a warrant past 10:00 p.m. and
before 6:00 a.m. On the contrary, KRS 455.180(5) explicitly authorizes entry
without notice between the hours of 10:00 p.m. and 6:00 a.m. if the reviewing
court finds the statutory criteria are met.
Again, we find that law enforcement effectuated the search warrant
within applicable constitutional parameters.
II. Application and Interpretation of KRS 455.180 Having determined that execution of the subject search warrant was
constitutionally permissible, we now focus on the Trial Court’s application of KRS
455.180. In 2021, in the wake of national outrage following the death of Breonna
Taylor, the Kentucky General Assembly enacted KRS 455.180, 455.190, and
455.200 to address “no-knock warrants.” For purposes of our review, we must
focus on the language of KRS 455.180, which states the following:
Arrest or search warrant authorizing entry without notice; requirements for issuance
-9- No arrest warrant or search warrant shall be issued authorizing entry without notice unless:
(1) The court finds by clear and convincing evidence that:
(a) The crime alleged is a crime that would qualify a person, if convicted, as a violent offender . . . [or crime of terrorism or the use of a weapon of mass destruction]; and
(b) As established by facts specific to the case, giving notice prior to entry will endanger the life or safety of any person, or result in the loss or destruction of evidence sought that may give rise to a charge of a crime that would qualify a person, if convicted, as a violent offender . . . ;
(2) The law enforcement officer seeking the warrant has obtained the approval of his or her supervising officer, or has the approval of the highest ranking officer in his or her law enforcement agency;
(3) The law enforcement officer seeking the warrant has consulted with the Commonwealth’s attorney or county attorney for the jurisdiction for which the warrant is sought, or with an assistant Commonwealth’s attorney or assistant county attorney for the jurisdiction for which the warrant is sought;
(4) The law enforcement officer seeking the warrant discloses to the judge, as part of the application, any other attempt to obtain a warrant authorizing entry without notice for the same premises, or for the arrest of the same individual;
-10- (5) The warrant authorizes that the entry without notice occur only between the hours of 6 a.m. and 10 p.m., except in exigent circumstances where the court makes the findings set forth in subsection (1) of this section and the court further finds by clear and convincing evidence that there are substantial and imminent risks to the health and safety of the persons executing the warrant, the occupants of the premises, or the public that justify the entry without notice occur during other hours designated by the court; and
(6) If the warrant is not issued electronically pursuant to KRS 455.170, the warrant includes the legibly printed name and signature of the judge.
A plain reading of the statute clearly establishes that search warrants
authorizing entry “without notice” require greater justification for the
governmental intrusion. Based on the factual findings of the Trial Court, we agree
that law enforcement did not meet the heightened criteria of KRS 455.180.
However, we find that KRS 455.180 was inapplicable for two reasons. First,
Sergeant Childers applied for, and obtained, the subject warrant using AOC Form
340, which did not authorize entry without notice. Compare AOC Form 340 with
AOC Form 340.1, Search Warrant Authorizing Entry Without Notice. Second, and
as discussed in detail below, we find that law enforcement effectuated the search
warrant with notice, thereby rendering KRS 455.180 inapposite in evaluating the
lawfulness of the subject search.
-11- The crux of the Trial Court’s application of KRS 455.180 centers on
its interpretation of what constitutes “entry without notice.” The Trial Court made
the dispositive legal conclusions that KRS 455.180 required law enforcement to
provide the Chapmans – or perhaps any occupant of the residence – actual or
constructive notice of the search warrant prior to entry. The Trial Court utilized the
definition of “notice” as found in BLACK’S LAW DICTIONARY, stating that “notice
of a fact or condition [occurs] if that person (1) has actual knowledge of it; (2) has
received information about it; (3) has reason to know about it; (4) knows about a
related fact; or (5) is considered as having been able to ascertain it by checking an
official filing or record.” G.C.R. 74.
As applied to the facts, the Trial Court reasoned that law
enforcement’s knock and announcements were insufficient since there was no
person inside the dwelling to receive actual notice of the search warrant.
Consequently, the Trial Court concluded law enforcement’s forced entry was an
“entry without notice” subject to the confines of KRS 455.180. We disagree with
the Trial Court’s interpretation of the phrase “entry without notice.”
An Appellate Court’s foremost duty when interpreting the meaning of
a statute “is to determine and effectuate legislative intent . . . .” Kindred
Healthcare v. Harper, 642 S.W.3d 672, 680 (Ky. 2022) (quoting Sweasy v. Wal-
Mart Stores, Inc., 295 S.W.3d 835, 838 (Ky. 2009)). In addition, we are bound by
-12- subsection (1) of KRS 446.080, which directs that “[a]ll statutes of this state shall
be liberally construed with a view to promote their objects and carry out the intent
of the legislature[.]” Further, the words in a statute are to be interpreted “according
to the common and approved usage of language,” except for technical words,
which are interpreted according to their “peculiar and appropriate meaning in the
law[.]” KRS 446.080(4).
Unfortunately, the terms “notice” and “without notice” are not defined
in KRS Chapter 455, despite the terms’ various technical meanings depending
upon the legal context in which they are used. See, e.g., Federal Land Bank of
Louisville v. Hardin-Mapes Coal Corp., 817 S.W.2d 225 (Ky. 1991) (discussing
notice as it relates to a holder in due course). We find no reason to assign a
technical meaning to the term “notice” as used in KRS 455.180; rather, the
common and ordinary meaning as found in the standard dictionary must be utilized
pursuant to KRS 446.080(4). The ordinary definition of “notice” means to give
“warning or intimation of something.” Notice, MERRIAM-WEBSTER.COM
DICTIONARY, https://www.merriam-webster.com/dictionary/notice (last visited Oct.
8, 2024). Thus, we find that “entry without notice” simply means entry without
warning. With this meaning in mind, and in considering KRS Chapter 455 as a
whole, entry without warning is clearly the equivalent of a common law, “no-
knock” warrant. See Lewis v. Jackson Energy Co-op. Corp., 189 S.W.3d 87, 92
-13- (Ky. 2005) (stating that in reviewing legislative enactments, courts must look to the
statutory scheme as a whole); see also Richards, 520 U.S. at 394-95 (explaining
that a no-knock warrant is a judicial process authorizing a police officer to enter a
premises without prior announcement for reasons including officer and public
safety). In other words, we find the plain language of KRS 455.180 applies where
law enforcement does not intend to and does not warn of the search warrant via,
among other methods, a sufficient knock and announce.
Our interpretation of the phrase “without notice” is also consistent
with the United States Supreme Court’s usage of the term. In Wilson, for example,
the Court discussed the knock-and-announce requirement in the context of the
Fourth Amendment. 514 U.S. 927. The Court stated that “in some circumstances
an officer’s unannounced entry into a home might be unreasonable under the
Fourth Amendment.” Id. at 934 (emphasis added). Likewise, in Hudson v.
Michigan, the Court, in holding that the exclusionary rule was inapplicable to a
knock-and-announce violation, discussed the interests protected by the knock-and-
announce requirement. 547 U.S. 586, 593 (2006). The Court stated that “[o]ne of
those interests is the protection of human life and limb, because an unannounced
entry may provoke violence in supposed self-defense by the surprised resident.”
Id. at 594 (emphasis added). In Miller v. United States, the high Court found that
an officer failing to announce his presence and purpose prior to an entry by force
-14- violated the “requirement of prior notice . . . a tradition embedded in Anglo-
American law.” 357 U.S. 301, 313 (1958) (emphasis added); see also 18 U.S.C. §
3109 (“The officer may break open any outer or inner door or window of a house,
or any part of a house, or anything therein, to execute a search warrant, if, after
notice of his authority and purpose, he is refused admittance or when necessary to
liberate himself or a person aiding him in the execution of the warrant.”) (emphasis
added).
Finally, we would be remiss to conclude our analysis without
discussing the “presum[ption] [that] the General Assembly intended neither an
absurd nor an unconstitutional statute.” A.H. v. Louisville Metro Government, 612
S.W.3d 902, 908 (Ky. 2020); Lewis, 189 S.W.3d at 93 (citing Combs v. Hubb Coal
Corp., 934 S.W.2d 250 (Ky. 1996)) (“In construing legislative enactments, courts
should look to the letter and spirit of the statute, viewing it as a whole.”). If we
interpret KRS 455.180 as the Trial Court here does, we question the ability of law
enforcement to effectuate search warrants lawfully in the Commonwealth.
Specifically, this Court can envision scenarios in which an occupant evades law
enforcement’s attempts to search a dwelling subject to a valid search warrant. In
such a situation, law enforcement would be left with limited, if any, recourse, as
entry following a constitutionally sufficient knock and announce would be in
contravention of KRS 455.180, according to the Trial Court’s reasoning. The
-15- absurdity of allowing only those who do not evade law enforcement to be searched
is buttressed in circumstances, such as here, where the subject offense or
perpetrator does not fall within the categories enumerated in KRS 455.180.
Indeed, as with most drug related offenses, the alleged crime is not one of
terrorism or the use of a weapon of mass destruction; nor will the crime qualify the
perpetrator as a violent offender. See KRS 455.180(1)(a). To posit that law
enforcement can only effectuate a search warrant by providing actual or
constructive notice to individuals who have present possession or control of a
dwelling is incongruous with the well-settled, knock-and-announce jurisprudence
discussed herein. After all, “[s]earch warrants are not directed at persons; they
authorize the search of ‘place[s]’ and the seizure of ‘things,’ and as a constitutional
matter they need not even name the person from whom the things will be seized.”
Zurcher v. Stanford Daily, 436 U.S. 547, 555 (1978) (citing United States v. Kahn,
415 U.S. 143, 155 n.15 (1974)). In sum, the Trial Court’s interpretation and
application of KRS 455.180 was erroneous and necessitates reversal.
CONCLUSION
We hold that law enforcement reasonably effectuated the subject
search warrant consistent with governing, constitutional requirements. We further
hold that KRS 455.180 did not apply to the search of the Chapman residence, as
law enforcement made forceful entry into the Chapman residence after providing
-16- notice through the use of the constitutionally permissible knock-and-announce
procedure.4 For these reasons, we reverse the Trial Court’s orders granting the
Chapmans’ respective motions to suppress evidence and remand the case back to
the Trial Court for further proceedings.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE MALISSA CHAPMAN: Russell M. Coleman Attorney General of Kentucky Adam Meyer Frankfort, Kentucky Courtney J. Hightower Assistant Attorney General BRIEF FOR APPELLEE GARY Frankfort, Kentucky CHAPMAN:
Sarah D. Dailey Frankfort, Kentucky
4 The Commonwealth preserved several additional arguments concerning the proper remedy for a violation of KRS 455.180 and whether the good faith exception applies. We do not reach the merits of the Commonwealth’s additional arguments as we hold that KRS 455.180 is inapplicable to the facts before us. -17-