James Javonte Crite v. Commonwealth of Kentucky

• Court: Court of Appeals of Kentucky
• Decided: November 9, 2022
• Docket: 2021 CA 000663
• Status: Unknown

Opinion

RENDERED: NOVEMBER 10, 2022; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2021-CA-0663-MR

JAMES JAVONTE CRITE APPELLANT

APPEAL FROM DAVIESS CIRCUIT COURT v. HONORABLE JAY A. WETHINGTON, JUDGE ACTION NO. 19-CR-01077

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION AFFIRMING

** ** ** ** **

BEFORE: DIXON, LAMBERT, AND MCNEILL, JUDGES.

DIXON, JUDGE: James Javonte Crite1 appeals the Daviess Circuit Court order,

entered October 8, 2020, denying his motion to suppress evidence. After careful

review of the record, briefs, and law, we affirm.

1 Crite is also known as Jayleo Lawrence, and the record refers to him by his former and present legal names interchangeably. We will use Crite, the name listed in Appellant’s motion for belated appeal, in this Opinion. BACKGROUND FACTS AND PROCEDURAL HISTORY

Crite rented an apartment that was part of a fourplex building owned

and managed by Century Property Management (Century). On July 9, 2019,

Crite’s brother contacted Century to notify them that Crite, who was schizophrenic,

had ceased taking his medication and was being taken to the hospital. Crite’s

brother further reported that Crite’s apartment was damaged – wires had been

ripped from appliances, and the AC and electric were nonfunctional – and

requested repairs be made during Crite’s absence.

On that same day, an agent for Century inspected Crite’s apartment to

contemplate repairs and assess whether the damage constituted a fire hazard. The

agent observed that wiring had been pulled from the hot water heater and the

HVAC unit; the thermostat had been removed from the wall; the main breaker was

off, but another breaker had been pried from the fuse box; the apartment was

generally a wreck; it was hot inside due to the ambient temperature of 100 degrees;

and a handgun was present on the coffee table. The agent reported her

observations to Century’s property manager but did not alert emergency services or

other tenants of the fourplex.

The following day, after engaging the services of an electrician, the

property manager contacted the Owensboro Police Department to request that

officers meet them at Crite’s apartment. In the recorded call to dispatch, the

-2- property manager detailed the damage to the apartment and stated that she wanted

to make sure the building was safe for other tenants. She further explained that

officer assistance was requested because she did not feel safe given Crite’s

untreated schizophrenia, the uncertainty as to his present location after Crite was

not admitted to the hospital, the damage to the apartment, the presence of a

firearm, and because she had recently learned that Crite may be a felon. No efforts

were made to contact Crite.

In response, Officers Nevitt and Matthews were dispatched to Crite’s

apartment. Both officers were advised prior to their arrival that Crite had an

outstanding capias warrant. Additionally, Officer Matthews knew of Crite’s status

as a felon, though he could not remember whether he learned of it before or after

he arrived on the scene. Nevertheless, both officers denied that their presence was

in furtherance of a criminal investigation or the execution of the warrant.

After arriving at the apartment and receiving no response to their

knocks, the officers informed the property manager that they had no reason to enter

the apartment. The property manager persisted in her request that they enter to

ensure it was safe, and after she unlocked the door, the officers entered to “clear”

the apartment for threats. While “clearing” the apartment, the officers observed

the handgun, the buttstock of what they recognized as a rifle sticking out of a

couch, and ammunition on the floor. Thereafter, Crite arrived at the building

-3- parking lot where he was arrested on the outstanding warrant. Ultimately, the

officers confirmed Crite was a felon and seized the rifle and magazine. The

handgun was determined to be a pellet gun.

Following his indictment for possession of a firearm by a convicted

felon,2 Crite moved to suppress the evidence observed by the officers in his

apartment. After conducting an evidentiary hearing, the trial court determined the

officers’ presence was lawful and the rifle was in plain view and; thus, the motion

was denied. Crite then entered a conditional guilty plea pursuant to RCr3 8.09, and

this appeal followed. Additional facts will be introduced as they become relevant.

STANDARD OF REVIEW

“The Fourth Amendment to the U.S. Constitution and Section 10 of

the Kentucky Constitution[4] protect citizens from unreasonable searches and

seizures by the government.” Milam v. Commonwealth, 483 S.W.3d 347, 349 (Ky.

2015) (citing Payton v. New York, 445 U.S. 573, 586, 100 S. Ct. 1371, 63 L. E. 2d

639 (1980)). “It is fundamental that all searches without a warrant are

unreasonable unless it can be shown that they come within one of the exceptions to

2 Kentucky Revised Statutes (KRS) 527.040, a class D felony. 3 Kentucky Rules of Criminal Procedure. 4 Kentucky courts have consistently interpreted Section 10 of the Kentucky Constitution to be consistent in both rights and remedies with the federal Fourth Amendment. Parker v. Commonwealth, 440 S.W.3d 381, 387 (Ky. 2014) (citing Dunn v. Commonwealth, 360 S.W.3d 751, 758 (Ky. 2012); Williams v. Commonwealth, 364 S.W.3d 65, 68 (Ky. 2011)).

-4- the rule[.]” Cook v. Commonwealth, 826 S.W.2d 329, 331 (Ky. 1992). The

Commonwealth bears the burden of demonstrating the applicability of a

recognized exception. Gallman v. Commonwealth, 578 S.W.2d 47, 48 (Ky. 1979).

Evidence seized as a result of an unreasonable search is subject to suppression.

See Warick v. Commonwealth, 592 S.W.3d 276, 280-81 (Ky. 2019).

Our review of a pretrial motion to suppress is twofold. “First, we

review the trial court’s findings of fact under a clearly erroneous standard. Under

this standard, the trial court’s findings of fact will be conclusive if they are

supported by substantial evidence.” Whitlow v. Commonwealth, 575 S.W.3d 663,

668 (Ky. 2019) (quoting Simpson v. Commonwealth, 474 S.W.3d 544, 547 (Ky.

2015) (internal quotation marks omitted)). Second, we review de novo “the trial

court’s application of the law to the facts to determine whether its decision is

correct as a matter of law.” Id. (citation omitted). Substantial evidence is

“evidence of substance and relevant consequence having the fitness to induce

conviction in the minds of reasonable men.” Owens-Corning Fiberglas Corp. v.

Golightly, 976 S.W.2d 409, 414 (Ky. 1998). In assessing the evidence, we give

due regard to the trial court’s judgments on the credibility of the testifying officer

and the reasonableness of their inferences. Commonwealth v. Whitmore, 92

S.W.3d 76, 79 (Ky. 2002).

-5- ANALYSIS

Plain view is an exception to the Fourth Amendment’s warrant

requirement, and it “applies when the object seized is plainly visible, the officer is

lawfully in a position to view the object, and the incriminating nature of the object

is immediately apparent.” Kerr v. Commonwealth, 400 S.W.3d 250, 266 (Ky.

2013) (citing Horton v. California, 496 U.S. 128, 136-37, 110 S. Ct. 2301, 110 L.

Ed. 2d 112 (1990)). Pertaining to the second requirement, Crite asserts the court

erred in determining that the landlord had the authority to both enter the apartment

herself and permit entry by police.

Our review begins with the trial court’s determination that the

landlord’s entry without notice or consent was authorized by the emergency arising

from the damage to the apartment’s electrical system. Pursuant to KRS 383.615(2)

and the lease agreement, the landlord is authorized to enter Crite’s apartment

without his prior consent in the case of an emergency. As noted by the parties, the

term “emergency” is not defined by either the statute or the lease; however, it is a

basic tenet of both statutory interpretation and contract law that undefined terms

should be accorded their plain meaning. Commonwealth v. McBride, 281 S.W.3d

799, 806 (Ky. 2009); Larkins v. Miller, 239 S.W.3d 112, 113 (Ky. App. 2007).

Defining an emergency as “[a] sudden and serious event or an

unforeseen change in circumstances that calls for immediate action to avert,

-6- control, or remedy harm[,]” Crite contends the evidence belies the court’s finding.

Emergency, BLACK’S LAW DICTIONARY 712 (7th ed. 1999). In support, Crite notes

it was established that Century knew from its assessment the day prior that the

main breaker was off, there were no flames or smoke, and the fuse box panel was

cool to the touch. Additionally, Crite states that Century’s decision not to alert the

fire department, 911, or other tenants of any risk, and its approximate 24-hour

delay in retaining an electrician, demonstrates that Century did not consider the

matter emergent. Consequently, Crite insists that Century was required to give

him two days’ notice, pursuant to KRS 383.615(3), and Century’s failure to do so

rendered its entry unauthorized.

Conversely, the Commonwealth argues that substantial evidence

supports the court’s finding that the lease authorized Century’s entry, and we

agree.5 Accepting Crite’s proposed definition, there is no credible claim that the

destruction of the apartment’s electrical system was not an unforeseeable event.

Further we are convinced that, despite the fact the damage had not presently

resulted in a fire, given the apparent risk of harm to both property and life arising

from pulled wires and a damaged fuse box, Century’s immediate access to assess

and ameliorate the risk was justified. Finally, we cannot agree that the possible 24-

5 The Commonwealth disputes the applicability of KRS 383.615, but since the lease contains a substantively similar provision, we do not reach this issue.

-7- hour delay in retaining an electrician, which is less than the notice period Crite

maintains should apply, is of such duration as to preclude the court’s finding.

Thus, we find no error.

Next, Crite challenges Century’s authority to permit police to enter

and search his apartment.

We begin, as the parties and the trial court did, by acknowledging that

it has long been held that a landlord is not authorized to consent to a warrantless

search of a tenant’s residence. Chapman v. United States, 365 U.S. 610, 81 S. Ct.

776, 5 L. Ed. 2d 828 (1961) (concluding that tenant’s Fourth Amendment rights

were violated, the Supreme Court rejected the claim that police entered leased

premises in furtherance of landlord’s common law right to view waste where

evidence demonstrated the landlord reported suspected criminal activity and

consented to search for the purposes of seeking proof); Hall v. Commonwealth,

438 S.W.3d 387 (Ky. App. 2014) (evidence suppressed after landlord unlocked

tenant’s door for police who were investigating possible drug trafficking).

However, this matter is distinguishable where the trial court found that the officers’

actions were not in pursuit of a criminal investigation. As Kentucky law has not

addressed this issue, Crite renews his argument that this Court should follow the

analysis of United States v. Williams, 354 F.3d 497 (6th Cir. 2003).

-8- In Williams, the landlord became concerned that one of her four rental

properties had a water leak after receiving the combined utility bill. Id. at 500.

She and a niece entered the residence at issue 15 days later and noted the lights did

not work, there were sparse furnishings, leaves were all over the floor, and there

was an odd smell, but they did not find a leak in their limited search of the kitchen.

Id. The niece reported their observations and their suspicion of drug activity to the

Drug Enforcement Agency (DEA), and that afternoon two DEA agents met them at

the residence. Id. at 500. The agents initially declined the landlord’s request to

inspect the property for the possible water leak, but despite having no reason to

believe anyone was in the residence, an agent eventually accompanied her inside

and inspected the residence since she was afraid to proceed alone. Id. at 500-01.

The agent then discovered marijuana plants. Id. at 501. On appeal, the Sixth

Circuit Court held that the agent’s entry was not justified by any exception to the

Fourth Amendment’s warrant requirement. Id. at 510.

Herein, the trial court concluded that Williams was inapposite given

the credible emergency at issue. In reaching this conclusion, the trial court

contrasted the Williams landlord’s two-week delay with Century’s prompt action,

the speculative water leak with the certain electrical damage, the report of

suspected drug activity with a request for protection while undertaking necessary

repairs, and the minimal risk of merely exacerbated property damage with the

-9- possibility of loss of property and life. Additionally, the trial court found

compelling the officers’ testimony that their sole purpose was to alleviate

Century’s cited safety concerns, their acknowledgement that they had no

independent basis to enter, and their claim that they did so only after Century

insisted. We are mindful that credibility determinations are solely within the

province of the trial court. Lewis v. Bledsoe Surface Mining Co., 798 S.W.2d 459

(Ky. 1990) (citations omitted).

Ultimately, the trial court’s determination turns on its finding that,

unlike the arguably pretextual safety claim advanced by the landlord in Williams,

the facts at issue were more akin to those in People v. Plane, 274 Cal.App.2d 1

(Cal. App. 1969). Therein, Plane, a tenant in an eight-unit building, was arrested

directly outside his apartment, and despite the option to return inside, he closed the

door leaving the lights on and his pet unattended. Id. at 2-3. There had previously

been a fire in the building, and knowing that the lights were on in Plane’s

apartment, the landlord suspected that his gas stove might also be lit. Id. at 3.

Fearful for the safety of the building and its tenants, the landlord decided to

investigate and, due to his constrained relationship with Plane, requested an officer

act as a witness. Id. An officer responded to Plane’s apartment the next day where

the landlord opened the door and requested the officer follow him inside. Id.

Inside, the officer observed marijuana plants in plain sight. Id.

-10- Like the case at bar, Plane sought to suppress the evidence arguing

that the landlord was without authority to enter the apartment himself or to invite

the officer inside. Id. The Plane court disagreed, finding the landlord had a

credible safety concern for the building and its tenants, it was reasonable the

landlord would want an officer present given the difficult relationship with Plane,

and the landlord was not acting as an agent of the officer. Id. at 3-4. Having

determined the officer’s presence was lawful, the Plane court held he did not have

to blind himself to what was in plain sight simply because it was disconnected

from the purpose of his presence. Id. at 4. Accordingly, based on the totality of

the circumstances, the court concluded the officer’s actions were reasonable under

the Fourth Amendment. Id. at 4-5.

Applying Plane, the trial court found it was reasonable for the officers

to accompany Century in its legitimate entry of the apartment given Crite’s

untreated schizophrenia, the significant damage to the apartment, the presence of a

firearm, and because Crite’s location was unknown. While Crite disagrees, citing

the lack of evidence that he had ever been violent or a credible basis to believe that

he was even in the apartment, the trial court’s findings are supported by the

evidence.

As Crite notes, “the very core of [the Fourth Amendment] is the right

of a man to retreat into his own home and there be free from unreasonable

-11- governmental intrusion.” Caniglia v. Strom, __ U.S. __, 141 S. Ct. 1596, 1599,

209 L. Ed. 2d 604 (2021) (quoting Florida v. Jardines, 569 U.S. 1, 6, 133 S. Ct.

1409, 185 L. Ed. 2d 495 (2013) (internal quotation marks and citations omitted)).

The protections of the Fourth Amendment do not prohibit all unwelcome

intrusions, merely the unreasonable ones. Id. Because we agree that the officers,

like the electrician, were merely facilitating Century’s legitimate interest in

entering Crite’s apartment, we conclude that the trial court did not err in

determining, under the totality of the circumstances, their entry into the apartment

was reasonable under the Fourth Amendment.

We turn now to Crite’s second claim, that the court erred by implicitly

creating a community caretaker exception, which he asserts is in contravention of

the Supreme Court’s holding that the exception does not extend to permit

warrantless entry into the home. Caniglia, 141 S. Ct. at 1600. The

Commonwealth denies that the court applied this exception and further argues that

Caniglia is not applicable since it was decided after Crite was sentenced. Because

we agree with the Commonwealth that the court did not apply a blanket

community caretaker exception, we do not reach the merits of either party’s

argument.

-12- CONCLUSION

Therefore, and for the foregoing reasons, the order of the Daviess

Circuit Court is AFFIRMED.

ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

Kathleen K. Schmidt Daniel Cameron Frankfort, Kentucky Attorney General of Kentucky

Christina L. Romano Assistant Attorney General Frankfort, Kentucky

-13-