Jeremy Deray Lawton v. Commonwealth of Kentucky

• Court: Court of Appeals of Kentucky
• Decided: August 27, 2020
• Docket: 2019 CA 001282
• Status: Unknown

Opinion

RENDERED: AUGUST 28, 2020; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2019-CA-001282-MR

JEREMY DEREY LAWTON APPELLANT

APPEAL FROM FAYETTE CIRCUIT COURT v. HONORABLE ERNESTO M. SCORSONE, JUDGE ACTION NO. 18-CR-00090

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION AFFIRMING

** ** ** ** **

BEFORE: GOODWINE, K. THOMPSON, AND L. THOMPSON, JUDGES.

GOODWINE, JUDGE: Jeremy Derey Lawton1 (“Lawton”) entered a conditional

guilty plea on June 27, 2019, preserving the right to appeal from the Fayette

1 The Notice of Appeal identifies appellant’s first name as “Jermey.” However, the briefs and record reflect that this is a typographical error and that his first name is actually “Jeremy.” Therefore, this Opinion identifies appellant by the correct name. Circuit Court’s denial of his motion to suppress and judgment entered August 15,

2019. After careful review, we affirm.

On November 27, 2017, officers of the Lexington Police Department

responded to a call that shots were fired on New Orleans Drive. Neighbors also

informed the officers they heard what sounded like the crying of an injured dog

and pointed officers in the direction of Lawton’s residence. Lawton was standing

outside the front of the residence when officers approached. He told officers the

shots came from the rear of the house. Lawton’s two-year-old child and fourteen-

year-old stepson were still inside the home. Lawton initially denied officers

consent to look inside the residence or look in the yard, claiming the property

belonged to the mother of his eldest daughter.

Lawton stood outside the front door of the house for approximately

thirty minutes. During that time, the two-year-old child came outside through the

front door. When Lawton let the child back inside the home, Officer Donna

Shepherd saw a trash bag on the floor near the door and a bottle of bleach on the

kitchen counter. Lawton asked Officer Shepherd if he could go back inside the

residence, and the officer asked if she could go inside with him. Lawton said “no,”

and the officer instructed him to remain outside. Lawton and Officer Shepherd

continued talking, and she asked him if there was anything “on paper” that would

-2- prohibit him from having a weapon, and Lawton admitted he was a three-time

convicted felon.

Sergeant Gary Thurman then arrived at the scene and was informed

by neighbors they heard what sounded like a dog “whelp” after shots were fired.

Officer Shepherd told Sgt. Thurman that Lawton was a convicted felon, and she

observed a trash bag and bleach bottle through the front door. Sgt. Thurman and

Officer Shepherd spoke with Lawton again, and he gave conflicting stories about

whether there were any dogs at the residence. Based on the information Sgt.

Thurman received, he decided to seek a search warrant. He informed Lawton that

he was applying for a search warrant and no one would be allowed to enter or

leave the residence until the warrant was obtained. Sgt. Thurman contacted the

Lexington Humane Society and requested they send officers to the residence.

Officer Shepherd’s body camera recorded the following exchange:

Sgt. Thurman: So what’s going to happen now is we’re going to secure the premises, okay? And we’re going to type up an affidavit for a search warrant and send it to a judge. We’re not going to search for anything, um, until the judge says it’s okay. But we are going to go in and secure it and nobody’s going to be allowed to go in or out until we talk to the judge. Okay?

Lawton: I can step back in until then?

Sgt. Thurman: What’s that?

-3- Lawton: I can step back in until then?

Both officers: We’re going to go with you.

Lawton: You all going in with me?

Ofc. Shepherd: Yes, sir.

Lawton: Okay. Come on. [opens front door].

Lawton entered the front door and allowed the officers inside. Within a minute of

entering the residence, Lawton told Sgt. Thurman he wanted to show him

something and requested Sgt. Thurman follow him to the back yard. As a matter

of officer safety, Officer Shepherd followed and stepped onto the back porch. Her

flashlight illuminated the area under the home, and she saw a mortally wounded pit

bull. The dog had been shot numerous times and was “bleeding out.” Sgt.

Thurman attempted to administer first aid, but by the time the Humane Society

officers arrived, the dog was dead. Lawton was arrested immediately. He then

voluntarily led police to the location of firearms inside the house.

Lawton was charged with two counts of being a felon in possession of

a handgun,2 one count of torturing a dog/cat with serious physical injury or death,3

and being a second-degree persistent felony offender.4 He filed a motion to

2 Kentucky Revised Statutes (KRS) 527.040 (Class C felony). 3 KRS 525.135(3) (Class D felony). 4 KRS 532.080(2).

-4- suppress the warrantless entry into the residence. The circuit court held a

suppression hearing on May 2, 2018. Officer Shepherd and Sgt. Thurman testified

for the Commonwealth. Officer Shepherd’s body camera video was played into

the record. Officer Shepherd testified that she was concerned about “blood and

cleanup” due to the presence of the trash bag and bleach bottle combined with

reports of shots fired and reports of a possibly injured dog. Lawton’s admission

that he was a convicted felon created further suspicion that weapons were inside

the residence.

Sgt. Thurman testified Lawton gave conflicting stories regarding the

whereabouts of two dogs. At first, Lawton said the dogs were at the residence, but

when Sgt. Thurman asked Lawton to bring the dogs to the front door, he denied the

dogs were there. Lawton told Sgt. Thurman he had dropped the dogs off at a

friend’s house. When Sgt. Thurman contacted the friend by phone, she told him

the dogs were not at her house, and they were with Lawton. Lawton then told

officers he took the dogs to her house while she was at work. Sgt. Thurman

observed a person who was “fairly large in stature” inside the residence but claims

he was unaware at the time that it was Lawton’s fourteen-year-old stepson.

According to Sgt. Thurman, he decided to seek a search warrant based on the

following: (1) the report of shots fired, (2) Officer Shepherd’s observation of the

bleach bottle and trash bag, (3) Lawton’s admission that he was a convicted felon,

-5- (4) the presence of another person inside the house, and (5) the conflicting stories

about whether there was a dog inside. However, because Lawton ultimately

allowed officers to enter the home and voluntarily led them to critical evidence, no

search warrant was ever obtained.

At the end of the suppression hearing, Lawton’s counsel asked to brief

the issue of the warrantless entry. The circuit court ruled out consent and narrowed

the scope of briefing as follows:

I don’t think we need to argue with the issue of consent because given what they told this gentleman, I don’t think it’s an issue of consent. But I think we’ve got some, obviously, some concerns here that precipitated their action, so brief the issue of the protective sweep that was done, obviously, and on the facts that were considered.

The parties argued whether the warrantless entry was a lawful protective sweep

accordingly.

The circuit court denied the motion to suppress by order entered July

11, 2018. Although the circuit court upheld the warrantless search, it avoided

determining whether the entry was a valid protective sweep. Although the circuit

court did not explain why it declined to rule on whether the entry was a protective

sweep, it arguably did so because there was no in-home arrest prior to the entry as

required by Maryland v. Buie, 494 U.S. 325, 110 S. Ct. 1093, 108 L. Ed. 2d 276

(1990) and Guzman v. Commonwealth, 375 S.W.3d 805 (Ky. 2012). Instead, the

-6- circuit court found that the emergency aid exception to the warrant requirement

applied to the dog in this instance. The circuit court also found the warrantless

search was valid to prevent the destruction of evidence.

On June 27, 2019, Lawton entered a conditional guilty plea to one

count of being a convicted felon in possession of a handgun, one count of torturing

a dog/cat with serious injury or death, being a first-degree persistent felony

offender,5 and first-degree bail jumping.6 Lawton was sentenced to a total of

eleven years of imprisonment. This appeal followed.

Lawton’s sole issue on appeal stems from the circuit court’s denial of

his motion to suppress. “When reviewing a trial court’s denial of a motion to

suppress, we utilize a clear error standard of review for factual findings and a de

novo standard of review for conclusions of law.” Jackson v. Commonwealth, 187

S.W.3d 300, 305 (Ky. 2006) (citing Welch v. Commonwealth, 149 S.W.3d 407,

409 (Ky. 2004)). Lawton argues the circuit court erred in finding the search was

lawful by: (1) extending the emergency aid exception to pets and (2) finding the

search was necessary to prevent the imminent destruction of evidence.

Although we agree with the circuit court’s denial of Lawton’s motion

to suppress, we disagree with the court’s reasoning. “Even if a lower court reaches

5 KRS 532.080(3). 6 KRS 520.070.

-7- its judgment for the wrong reason, we may affirm a correct result upon any

ground supported by the record.” Wells v. Commonwealth, 512 S.W.3d 720, 721-

22 (Ky. 2017) (citing Commonwealth v. Fields, 194 S.W.3d 255, 257 (Ky. 2006)).

Despite the circuit court’s contrary finding, for the following reason, we hold

Lawton consented to police entry to the residence and then voluntarily led officers

to the backyard. Thus, police lawfully entered the residence, and there was no

search.

Consent to entry is distinguishable from consent to search. In Piercy

v. Commonwealth, 303 S.W.3d 492 (Ky. App. 2010), officers initially searched

Piercy’s van and then asked if they could search his residence. Id. at 494. Piercy

began walking toward his house to call his attorney because officers took his

cellphone. Id. at 494-95. Piercy “left the door to his residence open and the

officers followed him inside, assuming that they had permission to search the

house. However, Detective Cooper testified that Piercy granted them permission

to enter the house by saying ‘that’s fine.’” Id. at 495. Once inside, the officers

could smell marijuana and asked Piercy to sign a consent to search form. Id.

Piercy declined to sign the form, but he did not ask the officers to leave his

residence. Id. Officers did not search the home until they obtained a search

warrant. Id.

-8- On appeal, this Court described the distinction between entering and

searching. Piercy argued “he did not consent to the search of his residence and that

any evidence obtained therein should be suppressed.” Id. at 497. This Court

pointed out that “Piercy uses the terms ‘entry’ and ‘search’ interchangeably in his

brief.” Id. There, “the activities constituting the search occurred after Detective

Coomer obtained a search warrant. Piercy does not challenge the sufficiency of

the search warrant and instead argues that he did not give the officers consent to

enter his residence, where they immediately smelled marijuana.” Id. This Court

held Piercy gave consent for the officers to enter his residence through his

nonverbal conduct and never attempted to deny or prevent their entry. Id. at 497-

98.

In an unpublished opinion, Whitworth v. Commonwealth, No. 2019-

CA-000568-MR, 2020 WL 1970599 (Ky. App. Apr. 24, 2020), this Court held the

defendant’s nonverbal conduct gave officers consent to enter the residence. Id. at

*4. An officer knocked on the door and asked permission to speak with the owner

of the residence. Id. at *5. The defendant, without hesitation, opened the door and

moved aside. Id. This Court held the officers did not coerce or deceive the

defendant to gain entry and made no show of power or force. Id.

-9- To further demonstrate the difference between giving consent to

search and consent to enter a residence, we examine Payton v. Commonwealth, 327

S.W.3d 468 (Ky. 2010). Below are the pertinent distinguishable facts of Payton:

[T]here is no dispute that Sharon threw up her arms and said “come on in” in response to Secora and the officers’ knock at the door and Secora’s explaining to Sharon her (Secora’s) purpose in being there. The only dispute concerns whether Deputy Blanton told Sharon he wanted to search the residence before Sharon said “come on in.” Despite this dispute, Deputy Blanton’s testimony that he told Sharon he would like to search is substantial evidence supporting the trial court’s factual finding that Deputy Blanton requested Sharon’s consent to search before Sharon said “come on in.”

Id. at 472. The Supreme Court of Kentucky held the consent to search was valid

based on the following reasoning:

We are satisfied that the Court of Appeals properly recognized that even though “come on in” might normally connote permission to enter without necessarily granting permission to search, stating “come on in” in response to a request to enter and search without explicitly denying or restricting consent to search could reasonably be interpreted by the officer as offering permission to search.

Id. at 473.

Here, Sgt. Thurman informed Lawton that he and other officers were

going to enter the residence to secure the premises and would apply for a warrant

before searching the residence. Lawton then asked if he could go back inside the

residence while waiting for a judge to issue a search warrant. Officers responded

-10- they would go inside with him, and he said, “Okay. Come on.” Lawton then

opened the door and allowed officers to follow him inside the residence. Once

inside, Lawton did not ask the officers to wait until a search warrant was obtained.

Rather, Lawton invited Sgt. Thurman to the backyard where officers observed the

dying dog.

The officers did not enter to secure the residence. Instead, they

entered the residence because Lawton requested to go inside the residence and he

consented to them accompanying him. The officers truthfully informed Lawton of

their intent to secure the premises and obtain a warrant. Officers did not attempt to

coerce or deceive Lawton to obtain his consent to search the residence. Krause v.

Commonwealth, 206 S.W.3d 922, 924 (Ky. 2006). Lawton had the option to

remain outside with officers until they secured a warrant to search the residence.

We need not determine whether entry into the home to secure the premises would

have been lawful because such an entry never occurred. Instead, Lawton

consented to the officers’ entry, so he could go back inside. Following entry,

Lawton invited Sgt. Thurman to the backyard where officers found the injured dog

in plain view. Because Lawton voluntarily extended the invitation for Sgt.

Thurman to enter the backyard, with no provocation from the officers, there was no

-11- Upon observation of the injured dog, officers arrested Lawton, and he

voluntarily led officers to where he stored his firearms in the residence. The record

does not indicate that officers requested to search for the weapons at that point.

Once placed under physical arrest, an arrestee cannot voluntarily consent to a

search. Johns v. Commonwealth, 394 S.W.2d 890, 892 (Ky. 1965). However,

because the record does not indicate the officers requested to search for the

firearms and Lawton volunteered their location, there was no search. Thus, we

affirm the judgment of the circuit court because Lawton consented to officers’

entry into the residence and then voluntarily showed officers the location of the

dog and firearms.

Although the emergency aid exception does not apply under the

circumstances, we commend the circuit court for extending that exception to the

warrant requirement to the dog in this case. “The central purpose of the aptly

named ‘emergency aid’ exception is to allow police officers to ‘assist persons who

are seriously injured or threatened with such injury.’” Mundy v. Commonwealth,

342 S.W.3d 878, 882-83 (Ky. App. 2011) (quoting Brigham City, Utah v.

Stuart, 547 U.S. 398, 403, 126 S. Ct. 1943, 1947, 164 L. Ed. 2d 650 (2006)). In

determining whether a warrantless search under the emergency aid exception is

lawful, we examine “whether the police officer’s entry into the [residence] was

based on an objectively reasonable belief, given the information available at the

-12- time of entry, that a person within the [residence] was in need of immediate aid.”

Id. at 884 (footnote omitted).

Here, the record does not indicate that officers had a reasonable belief

that the dog needed immediate aid. Based on review of Officer Shepherd’s body

camera video, the officers seemed to believe Lawton had “put down” the dog and

was “cleaning up.” They did not know there was a dog in need of aid until they

observed her lying under the house. Under different circumstances, we would be

inclined to extend the emergency aid exception to animals. Courts in other

jurisdictions have extended this exception to render aid to animals in true

emergency situations and further promote the public policy of the humane

treatment of animals. See Recchia v. City of Los Angeles Department of Animal

Services, 889 F.3d 553, 559 (9th Cir. 2018); Commonwealth v. Duncan, 7 N.E.3d

469 (Mass. 2014); State v. Fessenden, 310 P.3d 1163, 1167 (Or. Ct. App.

2013), aff’d, 333 P.3d 278 (Or. 2014); People v. Chung, 731, 110 Cal. Rptr. 3d

253, 260 (Cal. Ct. App. 2010); see also State v. Glowney, Nos. 27896 and 27897,

2019 WL 3986353 (Ohio Ct. App. Aug. 23, 2019). As Kentucky imposes criminal

liability for torturing and abusing animals, we agree with the circuit court that

extending the emergency aid exception to animals under the correct circumstances

would further promote this Commonwealth’s public policy against cruelty to

animals. We find, however, that those circumstances were not present here.

-13- For reasons other than those found by the circuit court, we affirm the

judgment of the Fayette Circuit Court.

THOMPSON, L., JUDGE, CONCURS.

THOMPSON, K., JUDGE, DISSENTS WITHOUT OPINION.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

Robert C. Yang Daniel Cameron Frankfort, Kentucky Attorney General of Kentucky

Mark D. Barry Assistant Attorney General Frankfort, Kentucky

-14-