Krause v. Commonwealth

206 S.W.3d 922, 2006 Ky. LEXIS 259, 2006 WL 2986470
CourtKentucky Supreme Court
DecidedOctober 19, 2006
Docket2004-SC-1009-DG
StatusPublished
Cited by22 cases

This text of 206 S.W.3d 922 (Krause v. Commonwealth) is published on Counsel Stack Legal Research, covering Kentucky Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Krause v. Commonwealth, 206 S.W.3d 922, 2006 Ky. LEXIS 259, 2006 WL 2986470 (Ky. 2006).

Opinions

Opinion of the Court by

Justice GRAVES.

Appellant, Frederick Carl Krause, III, entered conditional guilty pleas in McCracken Circuit Court to First Degree Possession of a Controlled Substance, Cocaine; Use/Possession of Drug Paraphernalia, Second Offense; and Possession of Marijuana. For these crimes, Appellant was sentenced to three days’ imprisonment and two and one-half (2½) years of probation. Pursuant to his conditional pleas, Appellant took a direct appeal to the Court of Appeals. RCr 8.09. In an unpublished opinion, the Court of Appeals affirmed his convictions in all respects. Krause v. Commonwealth, 03-CA-002092-MR (rendered October 29, 2004). Appellant filed a petition for discretionary review in this Court, which we granted. CR 76.20. For the reasons set forth herein, we reverse the Court of Appeals’ opinion, vacate Appellant’s convictions and sentence, and remand for further proceedings.

The trial court’s findings of fact in this case, while sparse, are unmistakably clear. The trial court found that Trooper Manar of the Kentucky State Police had arrested a subject for possession of cocaine. The subject told Trooper Manar that he obtained the cocaine from a house at which Appellant and his roommate, Joe Yamada, resided. Trooper Manar desired to go to the residence and search it but did not believe he had probable cause to obtain a search warrant. Because he knew that the [924]*924residents would not “consent to a search for drugs,” Trooper Manar “fabricated a false story that he believed would more likely result in the residents’ consent to search.”

Accompanied by one or two other law enforcement officers, Trooper Manar knocked on Appellant’s and Yamada’s door around 4:00 a.m. When one of the residents, most likely Appellant, opened the door, Trooper Manar stated that a young girl had just reported being raped by Ya-mada in the residence. He asked if he could look around in order to determine whether her description of the residence and its furnishings was accurate. The trial court found that Trooper Manar “knew there would be no such evidence because he knew there was no assault. His intention was to gain consent to search for drugs.”

Despite finding that “the ruse employed [by Trooper Manar] raises serious Constitutional rights questions and is not an appropriate police practice,” the trial court ultimately concluded “that Defendants voluntarily consented to a search for evidence of an assault.” The trial court speculated that “[permission to search for evidence of an assault may well be a much narrower search than for drugs” because “[djrugs may be secreted in places that evidence of an assault would not likely be found.” However, because the drugs in this case were found in plain view during this otherwise voluntary search for evidence of a sexual assault, the trial court concluded that the evidence was constitutionally obtained. The Court of Appeals affirmed,1 holding simply that “the trial court was correct in denying Krause’s request to suppress the evidence against him as the product of a warrantless search.”

On appeal to this Court, the sole issue for our consideration is whether the consent given by Appellant and his roommate was constitutionally valid. In Cook v. Commonwealth, 826 S.W.2d 329 (Ky.1992), this Court stated that “consent is one of the exceptions to the requirement for a warrant.” Id. at 331 (citing United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976)). We further indicated that the “test for determining if consent is constitutional is set out in Schneckloth v. Bustamante, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).” Id.

In Schneckloth, supra, the Supreme Court held that “the Fourth and Fourteenth Amendments require that a consent not be coerced, by explicit or implicit means ... [f]or, no matter how subtly the coercion was applied, the resulting ‘consent’ would be no more than a pretext for the unjustified police intrusion against which the Fourth Amendment is directed.” Id. at 228, 93 S.Ct. at 2048. Whether consent is the result of express or implied coercion is a question of fact, id. at 227, 93 S.Ct. at 2048, and thus, we must defer to the trial court’s finding if it is supported by substantial evidence. RCr 9.78.

In this case, the trial court specifically found that Appellant and his roommate did not and would not give consent to search for drugs. Thus, Trooper Manar needed to procure consent to search for something else if he was to achieve his main objective. When he concocted a story regarding the rape of a young girl and his need to look around the house for the purpose of determining whether the young girl’s description of their house was accurate, Appellant and his roommate ultimately agreed to allow a search for this specific purpose. Because Appellant’s consent to this limited type of search was voluntary, the trial [925]*925court reasoned that any plain view seizures of collateral criminality made during the search was a necessary product of this initial voluntary consent.

The premise of the trial court’s ruling, of course, is the plain view doctrine. Under the plain view doctrine, a warrant-less seizure of illegal substances or objects is constitutionally valid so long as the officer has not violated the Fourth Amendment “in arriving at the place where the evidence could be plainly viewed.” Hazel v. Commonwealth, 833 S.W.2d 831, 833 (Ky.1992). In order to validate a “plain view” seizure, the Hazel Court explained that “not only must the officer be lawfully located in a place from which the object can be plainly seen, but he or she must have a lawful right of access to the object itself.” Id. (emphasis added).

Pursuant to these standards, the trial court’s ruling falters in the fact that Trooper Manar was only able to reach a location from which he could spy illegal drugs and related paraphernalia through machination. We addressed the use of ruses by police in Adcock v. Commonwealth, 967 S.W.2d 6 (Ky.1998). In Ad-cock, an officer disguised himself as a pizza delivery person in order to coax a resident into opening the door for the purpose of executing a valid search warrant. Id. at 7. We held that “[t]he guiding factor in determining whether a ruse entry, to execute a search warrant, constitutes a ‘breaking’ under the Fourth Amendment should be whether the tactic frustrates the purposes of the ‘knock and announce’ rule.” Id. at 10.2

The ruse in this instance was employed for the purpose of gaining consent (1) to make a warrantless entry into a home; and (2) to conduct a plain view warrantless search of the residence. Thus, the underlying purpose and policies in this case differ from the purpose and policies in the Adcock case. The guiding factor here is to determine whether this particular ruse frustrated the purpose of the constitutional requirement that consent to make a war-rantless entry into and search of a home must be voluntary, and thus, free of implied or express coercion.

In Schneckloth, supra, the U.S. Supreme Court explained the purpose of the voluntariness requirement as follows:

“[V]oluntariness” has reflected an accommodation of the complex values implicated in police questioning of a suspect.

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Krause v. Commonwealth
206 S.W.3d 922 (Kentucky Supreme Court, 2006)

Cite This Page — Counsel Stack

Bluebook (online)
206 S.W.3d 922, 2006 Ky. LEXIS 259, 2006 WL 2986470, Counsel Stack Legal Research, https://law.counselstack.com/opinion/krause-v-commonwealth-ky-2006.