Howard v. Commonwealth

362 S.W.3d 333, 2011 WL 1811688, 2011 Ky. App. LEXIS 86
CourtCourt of Appeals of Kentucky
DecidedMay 13, 2011
DocketNo. 2009-CA-002399-MR
StatusPublished

This text of 362 S.W.3d 333 (Howard 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
Howard v. Commonwealth, 362 S.W.3d 333, 2011 WL 1811688, 2011 Ky. App. LEXIS 86 (Ky. Ct. App. 2011).

Opinion

OPINION

CLAYTON, Judge.

This is an appeal of the denial of a motion to suppress. We affirm the decision of the trial court.

BACKGROUND INFORMATION

On May 14, 2009, Detective Albert Dixon of the Lexington Police Department searched the home of the Appellant, Vincent Todd Howard, pursuant to a search warrant that had been issued on May 12, 2009. Howard was arrested after 2.2 pounds of marijuana, hydrocodone pills and drug paraphernalia were seized from his residence. Howard was charged with trafficking in marijuana, possession of a controlled substance II, and use/possession of drug paraphernalia.

Howard filed a motion to suppress with the trial court, arguing that the search warrant Detective Dixon used was not supported by probable cause. After a suppression hearing, the trial court overruled his motion to suppress and Howard entered a conditional guilty plea to one count of trafficking in marijuana, eight ounces to less than five pounds. He was sentenced to one year in prison, to be served concurrently with a federal term he is serving.

Howard filed this appeal, arguing that the Fourth and Fourteenth Amendments to the U.S. Constitution and Section 10 of the Kentucky Constitution require suppression of all evidence obtained as a result of the execution of the search warrant because the affidavit for the search warrant contained insufficient facts to establish probable cause and that the “good faith exception” was inapplicable.

STANDARD OF REVIEW

When reviewing the denial of a motion to suppress, we must uphold the trial court’s findings if they are supported by substantial evidence. See Talbott v. Com., 968 S.W.2d 76 (Ky.1998); Canler v. Com., 870 S.W.2d 219, 221 (Ky.1994), (citing Harper v. Com., 694 S.W.2d 665 (Ky.1985)). Substantial evidence is “evidence of substance and relevant consequence, having the fitness to induce conviction in the minds of reasonable men.” Kentucky State Racing Comm’n v. Fuller, 481 S.W.2d 298, 308 (Ky.1972) (quoting O’Nan v. Ecklar Moore Express, Inc., 339 S.W.2d 466, 468 (Ky.1960)). A trial court’s findings of fact must be upheld unless they are clearly erroneous. See Neil v. Biggers, 409 U.S. 188, 193, 93 S.Ct. 375, 379, 34 L.Ed.2d 401 (1972); Roark v. Com., 90 S.W.3d 24, 37 (Ky.2002). We review de novo the trial court’s application of law to the facts. See Com. v. Neal, 84 S.W.3d 920, 923 (Ky.App.2002). With these standards in mind, we review the trial court’s decision.

[335]*335DISCUSSION

The trial court found that the following supported the probable cause aspect of the warrant:

Detective Dixon testified consistently with the information contained in the affidavit. He stated that on December 18, 2008, he received information from his supervisor that a confidential source reported that the Defendant was selling cocaine. The detective searched the narcotics computer data base and found that previously, on February 2, 2008, and August 29, 2008, the narcotics unit received information from confidential sources who reported that the Defendant was selling cocaine.
On April 2, 2009, Detective Dixon received information from a confidential source that the Defendant was keeping unusual work hours. The detective verified the Defendant’s address and searched for his prior criminal history. Based upon all of the information that Detective Dixon had gathered, he decided to do a trash pull. On May 5, 2009, Detective Dixon and Detective Lewis went to the Defendant’s residence and located trash set out at the end of the driveway. They removed one bag from the large green container and three bags on the ground. Upon examining the contents, they discovered suspected marijuana and mail matter with the name of the defendant and Latrice Campbell.
They performed another trash pull on May 11, 2009. Once again they located trash set out at the end of the driveway. They removed four bags from the large green container. Upon examining the contents, they discovered suspected whole marijuana leaves and mail matter with the name of the Defendant and Latrice Campbell.
Detective Dixon included all of this information in an affidavit and presented it to Judge Joe Bouvier who issued a search warrant on May 12, 2009.
The Defendant argues that there was no probable cause for the warrant to be issued. He correctly points out that mere allegations that the Defendant was dealing drugs are insufficient to establish probable cause. The Defendant is also correct in the reliability of the “tips” was questionable since the police were using information from an undisclosed confidential source. If Detective Dixon had stopped his investigation at this point, there clearly would not have been probable cause for a search warrant to be issued. However, Detective Dixon attempted to corroborate this information by conducting two trash pulls.
On two different occasions Detective Dixon located what he believed to be suspected marijuana. The Defendant argues that the officer’s failure to test the substances prior to presenting the information in the affidavit is fatal to the search warrant. While the Defendant presented a line of federal cases which addressed the concern of testing suspected drug evidence, this Court does not find them to be controlling nor directly on point.
There is no requirement in Kentucky that officers test suspected drug evidence prior to obtaining a search warrant. This would seem to especially hold true for marijuana since it can not be field tested. If officers were required to wait for weeks for those test results, then there could be an argument that the information was stale. There would also be concern that the drugs had been moved during such a delay.
There was no evidence to support that Detective Dixon lacked the training and experience to have an educated opinion [336]*336about whether the substances he located were in fact marijuana. While this court was not presented the evidence to observe, the court acknowledged that Detective Dixon was much better suited to form the opinion of whether the substance was marijuana instead of the court making that determination.

Order dated October 22, 2009.

Howard argues on appeal that the search warrant affidavit that was submitted by the police to obtain the warrant did not set forth facts giving rise to probable cause. While Howard argues that Epps v. Com., 295 S.W.3d 807, 809 (Ky.2009), sets forth the applicable standard of review, the Commonwealth contends that Epps applies to warrantless searches rather than those pursuant to a warrant. We agree.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Neil v. Biggers
409 U.S. 188 (Supreme Court, 1972)
Illinois v. Gates
462 U.S. 213 (Supreme Court, 1983)
Maryland v. Garrison
480 U.S. 79 (Supreme Court, 1987)
Roark v. Commonwealth
90 S.W.3d 24 (Kentucky Supreme Court, 2002)
Canler v. Commonwealth
870 S.W.2d 219 (Kentucky Supreme Court, 1994)
Harper v. Commonwealth
694 S.W.2d 665 (Kentucky Supreme Court, 1985)
Commonwealth v. Neal
84 S.W.3d 920 (Court of Appeals of Kentucky, 2002)
Talbott v. Commonwealth
968 S.W.2d 76 (Kentucky Supreme Court, 1998)
Kentucky State Racing Commission v. Fuller
481 S.W.2d 298 (Court of Appeals of Kentucky (pre-1976), 1972)
Commonwealth v. Pride
302 S.W.3d 43 (Kentucky Supreme Court, 2010)
Epps v. Commonwealth
295 S.W.3d 807 (Kentucky Supreme Court, 2009)
O'NAN v. Ecklar Moore Express, Inc.
339 S.W.2d 466 (Court of Appeals of Kentucky (pre-1976), 1960)

Cite This Page — Counsel Stack

Bluebook (online)
362 S.W.3d 333, 2011 WL 1811688, 2011 Ky. App. LEXIS 86, Counsel Stack Legal Research, https://law.counselstack.com/opinion/howard-v-commonwealth-kyctapp-2011.