Anderson v. Commonwealth of Kentucky
| Decision Date | 18 September 2003 |
| Docket Number | 2000-SC-0435-MR. |
| Parties | ROBERT ANDERSON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE. |
| Court | United States State Supreme Court — District of Kentucky |
Euva Hess, Assistant Public Advocate, Department of Public Advocacy, Frankfort, KY, COUNSEL FOR APPELLANT.
A. B. Chandler, III, Attorney General of Kentucky, Gregory C. Fuchs Assistant Attorney General, Office of Attorney General, Criminal Appellate Division Frankfort, KY, COUNSEL FOR APPELLEE.
Robert Anderson was convicted of one count of manufacturing methamphetamine in violation of KRS 218A.1432 and was sentenced to twenty years in prison. Anderson raises a number of issues on appeal including the constitutionality of KRS 218A.1432. For the reasons set forth below, we affirm his conviction but reverse his sentence and remand for a new sentencing hearing.
Anderson's downfall began with the putative purchase of a van from one Richard D'Avignon. After taking possession of the van, Anderson failed to transfer the title of the van to his name. This failure so worried D'Avignon, who feared that he might be held responsible should Anderson have an accident with the van, that D'Avignon went to the County Clerk's office and "junked" the van's title. See KRS 186A.520 (). Subsequently, Anderson contacted D'Avignon regarding the title. D'Avignon informed Anderson that he would obtain a new certificate of title ("un-junk" the title), if Anderson would agree to pay him an additional $100.00. Anderson responded somewhat ambivalently that they would get it all worked out.
D'Avignon tried for some time to get the title situation straightened out to his satisfaction, but found it difficult to contact Anderson. Eventually, D'Avignon decided to take matters into his own hands and repossess the van because of Anderson's failure to correct the problems with the van's title. Upon receiving information from a friend as to the van's location in an apartment complex parking lot, D'Avignon contacted the local police and informed them of his intent to take possession of the van. Additionally, he asked the police to send an officer to meet him at the van's location.
Detective Mike Perkins arrived on the scene before D'Avignon. After locating the van, he ran a check on the van's plates and discovered that the plates were registered to a red Corvette that was titled in Anderson's name. Having learned Anderson's address from the check on the van's license plate, Detective Perkins then went to Anderson's apartment and knocked on the door. After receiving no response to his knock, Detective Perkins placed a piece of tape across the interstice between the rear door and the doorjamb, in order to determine whether the door was opened in his absence. Detective Perkins then went to a local restaurant to wait for D'Avignon.
Before D'Avignon arrived, Detective Perkins saw Anderson pull into the restaurant parking lot driving a red Corvette. According to Detective Perkins, Anderson observed the presence of police at the restaurant and sped off. Detective Perkins briefly gave chase but soon lost sight of Anderson and returned to the van. D'Avignon arrived soon after these events.
D'Avignon showed Detective Perkins the title to the van, which stated that D'Avignon was the owner. D'Avignon then asked Detective Perkins to search the van in order to verify its contents. D'Avignon feared that the van might contain contraband, and he wanted proof to disavow his ownership of any illegal items. Before searching the van, Detective Perkins called the County Attorney to seek advice as to whether D'Avignon had the authority to consent to the search. The County Attorney advised Detective Perkins that it was okay to search the van pursuant to D'Avignon's consent.
The van was moved to another location where the light was better. The search of the van uncovered items that are used in the manufacture of methamphetamine: twenty-nine cans of ether; a large quantity of ephedrine; plastic tubing; a pizza pan, the holes in which made it ideal for drying; starting fluid; and other miscellaneous items. After the search, Detective Perkins was informed by officers on the scene that Anderson had responded to a knock on his door and had consented to having his apartment searched. Detective Perkins instructed the officers not to enter the apartment and to wait for his arrival. When Detective Perkins returned to Anderson's apartment, he discovered that the tape on the door had moved. The search of Anderson's apartment revealed additional items used in the manufacture of methamphetamine: cans of Liquid Fire, more starter fluid, iodized salt, empty blister packs of sudaphedrine, and lithium batteries. Upon this evidence, Anderson was arrested, indicted, tried, and convicted of manufacturing methamphetamine in violation of KRS 218A.1432.
Anderson argues that the trial court erred in denying his motion to suppress the evidence obtained during the search of the van on grounds that the search violated his Fourth Amendment rights. We disagree.
The "threshold question in every suppression case is the existence of a reasonable expectation of privacy in the area searched." United States v. Bellina, 665 F.2d 1335, 1339 (4th Cir. 1981) (internal quotation marks omitted). The defendant bears the burden of showing that he or she had a reasonable expectation of privacy. Rawlings v. Kentucky, 448 U.S. 98, 104, 100 S. Ct. 2556, 2561, 65 L. Ed. 2d 633, 641 (1980). Unless the defendant meets this burden, he or she has no standing to challenge the introduction of evidence obtained pursuant to the search in question. Id. at 106, 100 S. Ct. at 2562, 65 L. Ed. 2d at 642. Further, the search itself must have been performed under the color of law, because "a wrongful search or seizure conducted by a private party does not violate the Fourth Amendment and... such private wrongdoing does not deprive the government of the right to use evidence that it has acquired lawfully." Walter v. United States, 447 U.S. 649, 656, 100 S. Ct. 2395, 2401, 65 L. Ed. 2d 410, 417 (1980). Thus, the first question we must answer is whether Anderson had standing to challenge the admissibility of the evidence obtained as a result of a search of the van. Under the facts of this case, we believe that Anderson did have standing.
First, we conclude that the search was the result of state action. A number of cases hold that a search of a vehicle done by a private party in conjunction with a repossession is not state action. See, e.g., United States v. Coleman, 628 F.2d 961 (6th Cir. 1980); State v. Lee, 628 A.2d 1318 (Conn. App. 1993), cert. denied, 510 U.S. 1202, 114 S. Ct. 1319, 127 L. Ed. 2d 668 (1994). Under these cases, the mere presence of police officers during the repossession or inventory of the items of the car does not transform the search into state action. Coleman, 628 F.2d at 964. But in this case, the police at the scene actually conducted the search of the van at D'Avignon's request. We believe that this official involvement precludes the conclusion that the search of the van was a private search. See Arkansas v. Sanders, 442 U.S. 753, 757, 99 S. Ct. 2586, 2589, 61 L. Ed. 2d 235, 240 (1979) (). We now turn to the question of Anderson's expectation of privacy.
Whether a person has a constitutionally protected reasonable expectation of privacy involves the two inquiries of whether the individual manifested a subjective expectation of privacy in the object of the challenged search, and whether society is willing to recognize that expectation as reasonable. California v. Ciraolo, 476 U.S. 207, 211, 106 S. Ct. 1809, 1811, 90 L. Ed. 2d 210, 215 (1986). We assume that Anderson had a subjective expectation of privacy in the van in light of his use of the van, his claim of ownership, and the fact that he kept the van's doors locked. The reasonableness of that expectation, however, turns in large part on D'Avignon's right to repossess the van.
If D'Avignon had the lawful right to repossess the van, Anderson would have no legitimate expectation of privacy in the vehicle. United States v. Weiss, 11 M.J. 651, 652 (AFCMR,1981); cf. United States v. Allen, 106 F.3d 695, 699 (6th Cir. 1997), cert. denied, 520 U.S. 1281, 117 S. Ct. 2467, 138 L. Ed. 2d 223 (1997) (). On the other hand, if D'Avignon did not have the right to repossess the van, then Anderson retained at least some expectation of privacy in the van and its contents. See United States v. Knoll, 16 F.3d 1313, 1320 (2nd Cir. 1994), cert. denied sub nom, Gleave v. United States, 513 U.S. 1015, 115 S. Ct. 574, 130 L. Ed. 2d 490 (1994).
At issue in Knoll was whether the trial court should have suppressed the contents of files and audiotapes that were stolen from an attorney's office. Knoll, 16 F.3d at 1319. The trial court concluded that there could be no Fourth Amendment violation because the search via the burglary was purely private and not the result of state action. Id. On appeal, the Knoll Court agreed that the initial search was private and, therefore, the appellant had no standing to challenge the admissibility of any evidence uncovered through private action. Id. But it concluded that this did not dispose of the question of whether the documents in closed containers and the contents of the audiotapes taken during the burglary were procured pursuant to state action. Id. at 1320.
As the Knoll Court saw it,
the critical issue is the point in time when the object of the search has...
To continue reading
Request your trial