Adcock v. Com.

• Decision Date: 16 April 1998
• Docket Number: No. 97-SC-000133-DG,97-SC-000133-DG
• Citation: 967 S.W.2d 6
• Parties: Cynthia Lane ADCOCK, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 6

967 S.W.2d 6

Cynthia Lane ADCOCK, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 97-SC-000133-DG.

Supreme Court of Kentucky.

April 16, 1998.

G. Murray Turner, Paul A. Casi, II, Mulhall, Turner, Hoffman & Coombs, P.L.L.C., Louisville, for Appellant.

A.B. Chandler III, Attorney General, Ian G. Sonego, Assistant Attorney General, Frankfort, for Appellee.

OPINION

GRAVES, Justice.

Appellant, Cynthia Adcock, was convicted in the Jefferson Circuit Court for trafficking in a controlled substance and for illegal possession of drug paraphernalia. She was sentenced to five years imprisonment. In this discretionary review, we are presented with the constitutional implications of police officers using a ruse to gain entry into Appellant's residence for the purpose of executing a search warrant. After reviewing the record and hearing oral argument, we conclude that there was no violation of Appellant's constitutional right to be free from unreasonable searches and seizures. U.S. Const. amend. IV and Ky. Const., § 10.

On July 6, 1993, a judge issued a search warrant for Appellant's residence, vehicle and person to search for controlled substances (including Dilaudid), drug paraphernalia, and records or money from the sale of such substances. The affidavit in support of the search warrant was based upon information obtained from a confidential informant. The warrant stated that Appellant possessed a quantity of Dilaudid pills and that she was known to package the drugs in balloons for the purpose of sale. Based upon the informant's information and the officers' past experience in dealing with arrests involving Dilaudid, the officers took precautionary measures to prevent Appellant's disposing of the drugs by swallowing the balloons, as was a common practice for concealing drugs of this type. Specifically, the officers used a ruse in executing the search warrant to gain entry into Appellant's residence.

On the evening of July 6, 1993, five Jefferson County Metro Narcotics Officers went to Appellant's residence. An officer, disguised as a pizza delivery person, knocked on the door. Appellant opened the locked door and informed the disguised officer that she had not ordered a pizza. The officer asked Appellant if she wanted the pizza and she refused. The disguised officer then identified himself as police and entered through the opened door. Upon entering the residence, the officer sat Appellant on a couch next to the door. A second uniformed officer introduced himself and read the search warrant to Appellant. The search of Appellant's residence produced nineteen Dilaudid tablets and drug paraphernalia.

Appellant moved to suppress the evidence seized pursuant to the search warrant on the grounds that the officers violated the "knock and announce" rule in gaining entry to her residence. At the suppression hearing, the officer who posed as the pizza delivery person testified that once Appellant refused him entry, he announced "police" and immediately entered the residence. The second officer testified that he announced "police, search warrant" before entering the premises. The second officer further testified that after entering the residence, he secured Appellant, showed her the search warrant describing the items to be seized, and explained that she would receive a copy of the warrant. The officers again explained to the trial court that they employed a ruse because individuals suspected of trafficking Dilaudid frequently attempt to dispose of the pills by swallowing them in an effort to avoid seizure by police.

Appellant's description of the incident differed. She testified that as soon as she refused entry to the "pizza man", he grabbed her and threw her onto the couch. Appellant testified that she did not hear anyone yell "police" prior to the officers entering her residence. Further, she contended that it was almost two hours later when she was shown the search warrant.

The trial court denied the motion to suppress the evidence seized from Appellant's residence. The trial court stated in its memorandum opinion, "In a situation where the police have used a ruse to enter, the rationale for the [knock and announce] rule is not available since the occupant has voluntarily opened the door, and consequently, entry by 'ruse' is permissible. See e.g., United States v. Salter, 815 F.2d 1150 (7th Cir.)." In response to Appellant's motion for additional findings, the trial court issued a second memorandum opinion, specifically finding that (1) by virtue of the ruse, Appellant opened the door; (2) once she opened the door, Appellant refused entry; (3) the officers announced "police" after the door was opened, and subsequently entered; and (4) although the officers did not wait a long time before entering, the time was sufficient to fall within the parameters of the "knock and announce rule."

Thereafter, Appellant entered a conditional guilty plea to trafficking in a controlled substance in the first degree and to illegal possession of drug paraphernalia. On appeal, the Court of Appeals affirmed her conviction, holding,

[W]hen police officers execute a search warrant on a personal residence by conducting a successful ruse that results in the occupant voluntarily opening the door which is followed by the officers announcing their identity and purpose prior to entering the home, these actions are reasonable within the requirements of the Fourth Amendment.

This Court granted discretionary review. Additional facts will be set forth as necessary in the course of the opinion.

As noted by the Court of Appeals, RCr 9.78 provides the procedure for conducting hearings on suppression motions, as well as the standard for appellate review of the trial court's determination. "If supported by substantial evidence the factual findings of the trial court shall be conclusive." RCr 9.78. When the findings of fact are supported by substantial evidence, as we conclude they are herein, the question necessarily becomes, "whether the rule of law as applied to the established facts is or is not violated." Ornelas v. United States, 517 U.S. 690, 697, 116 S.Ct. 1657, 1662, 134 L.Ed.2d 911 (1996) (citing Pullman-Standard v. Swint, 456 U.S. 273, 289, n. 19, 102 S.Ct. 1781, 1791, n. 19, 72 L.Ed.2d 66 (1982).

Both the Fourth Amendment to the United States Constitution and Section 10 of the Kentucky Constitution protect the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures. In Wilson v. Arkansas, 514 U.S. 927, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995), the United States Supreme Court held that the Fourth Amendment incorporates the common law requirement that police officers entering a dwelling must knock on the door and announce their identity and purpose before attempting forcible entry. Id. at 933, 115 S.Ct. at 1918. 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. Id.

However, "[t]hat is not to say, of course, that every entry must be preceded by an announcement. The Fourth Amendment's flexible requirement of reasonableness should not be read to mandate a rigid rule of announcement that ignores countervailing law enforcement interests." Id. at 934, 115 S.Ct. at 1918. The Wilson court left "to the lower courts the task of determining the circumstances under which an unannounced entry is reasonable under the Fourth Amendment." Id. at 936, 115 S.Ct. at 1919.

The Court has recognized that the knock and announce requirements could yield when exigent circumstances are present. "In order to justify a no-knock entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence." Richards v. Wisconsin, 520 U.S. 385, ---- - ----, 117 S.Ct. 1416, 1421-1422, 137 L.Ed.2d 615 (1997). The Court in Richards did note, however, that there is no blanket exception to the knock and announce rule in felony drug investigations, but rather "it is the duty of a court confronted with the question to determine whether the facts and circumstances of the particular entry justified dispensing with the knock and announce requirement." Id.

Appellant argues that a ruse, like a no-knock entry, may be employed only in the presence of exigent circumstances. Appellant concludes that since none existed in this case, police were bound by the knock and announce requirements. Thus, the issues before this Court are whether a ruse may be used in the absence of exigent circumstances, and whether the ruse employed by the police in this case, and the announcement and entry that followed, was unreasonable under the Fourth Amendment because it frustrated the purposes of the knock and announce rule. Inasmuch as this jurisdiction has not addressed the knock and announce rule, we look to the federal court and other jurisdictions for guidance.

A ruse is constitutionally distinguishable from a no-knock entry. State v. Moss, 172 Wis.2d 110, 492 N.W.2d 627 (1992), cert. denied, 507 U.S. 977, 113 S.Ct. 1428, 122 L.Ed.2d 796 (1993), overruled on other grounds by State v. Stevens, 181 Wis.2d 410, 511 N.W.2d 591 (1994). In Moss, officers employed a pizza delivery ruse virtually identical to this case. When the defendant opened the door, officers announced "police, search warrant." As the defendant attempted to close the door, one officer placed his foot in the doorway to prevent the door from closing, and pushed his way in. In upholding the use of ruse to gain entry, the Wisconsin Supreme Court found that the police action did not constitute a no-knock entry because the...