Brumley v. Commonwealth, 2012–SC–000189–DG.

• Decision Date: 21 November 2013
• Docket Number: No. 2012–SC–000189–DG.,2012–SC–000189–DG.
• Parties: Randy BRUMLEY, Appellant v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

413 S.W.3d 280

Randy BRUMLEY, Appellant
v.
COMMONWEALTH of Kentucky, Appellee.

No. 2012–SC–000189–DG.

Supreme Court of Kentucky.

Nov. 21, 2013.

[413 S.W.3d 283]

Emily Holt Rhorer, Assistant Public Advocate, for Appellant.

Jack Conway, Attorney General, Christian Kenneth Ray Miller, for Appellee.

Opinion of the Court by Justice CUNNINGHAM.

In the spring of 2009, Clinton County Sheriff Ricky Riddle made several unsuccessful attempts to execute a felony arrest warrant on Appellant, Randy Brumley, for possession of a controlled substance. On May 29, Sheriff Riddle received a tip that Brumley was present at his mobile home located on the outskirts of Clinton County. This was not Brumley's primary residence. The record indicates that he was in the process of renovating the trailer and only stayed there occasionally because there had been some break-ins. Sometime around midnight, Sheriff Riddle, along with law enforcement officers from different state and local agencies, surrounded Brumley's mobile home to execute the felony arrest warrant. After Sheriff Riddle knocked on the door and informed Brumley of the warrant, Brumley cooperated by stepping outside. None of the officers ever asked Brumley if other individuals were inside the trailer. The trailer did not have a porch, overhang, or any other enclosure. Once Brumley cleared the threshold and descended the adjoining steps, he was totally clear of the trailer. Sheriff Riddle then began to place Brumley under arrest and search him. The search occurred near Brumley's truck which was parked several feet from the trailer. Brumley was unarmed. He did possess a pipe and aluminum foil which later tested positive for methamphetamine residue. This charge is not a part of this appeal.

Prior to the trip to Brumley's trailer, at least one officer had received information that Brumley might have guns inside the residence. While Brumley was being led away from the trailer, some of the officers heard what they described as a “rustling” or “shuffling” noise coming from inside the residence. In response, several officers entered the residence to perform a “protective sweep.” Once inside, they discovered that a dog was the source of the noise. They also observed several components used in the manufacture of methamphetamine.

As a result, Brumley was charged in the Clinton Circuit Court with manufacturing methamphetamine and possession of drug paraphernalia. Prior to trial, Brumley filed two sequential motions to suppress evidence. The first contended that the warrantless search of his mobile home was illegal. The second argued that the Commonwealth did not establish the proper chain of custody for the evidence seized from the home. Both motions were denied. The charges went to trial on July 16, 2010. The jury found Brumley guilty of manufacturing methamphetamine and possession of drug paraphernalia, and he received a sentence of ten years incarceration. The Court of Appeals affirmed and we granted discretionary review. After reviewing the record and the law, we reverse and remand this case to the trial court for further proceedings consistent with this opinion.

PROTECTIVE SWEEP

Our standard of review of the trial court's denial of a suppression motion is twofold. First, the trial court's findings of fact are conclusive if they are supported by

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substantial evidence; and second, the trial court's legal conclusions are reviewed de novo. Commonwealth v. Marr, 250 S.W.3d 624, 626 (Ky.2008); Kentucky Rules of Criminal Procedure (RCr) 9.78.

The Fourth Amendment to the U.S. Constitution, made applicable to the states through the Fourteenth Amendment and Section 10 of the Kentucky Constitution, protects citizens from unreasonable searches and seizures by the government. A basic tenet of Fourth Amendment law is that warrantless searches and seizures inside a home are presumptively unreasonable. Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). However, there are several exceptions to the warrant requirement. See, e.g., Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153 (1948); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925).

The established warrant exception at issue in this case is the “protective sweep” exception articulated in Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). This Court only recently adopted the holding in Buie. Guzman v. Commonwealth, 375 S.W.3d 805, 807 (Ky.2012). However, because other issues were dominant in that case, we did not discuss Buie at length. Our first opportunity to further develop our application of Buie presented itself most recently in Kerr v. Commonwealth, 400 S.W.3d 250 (Ky.2013).

In Kerr, we recognized that Buie permits “two types of protective sweeps incident to an arrest that are reasonable and lawful under the Fourth Amendment.” Id. at 266. The first type of protective sweep allows officers “as a precautionary matter and without probable cause or reasonable suspicion, [to] look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched.” Id. (citing Buie, 494 U.S. at 334, 110 S.Ct. 1093). The second type of protective sweep “allows officers to undertake a broader search of places not adjacent to the place of arrest if there are ‘articulable facts, which taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.’ ” Id. This is the well-known reasonable suspicion standard. See Terry, 392 U.S. at 1, 88 S.Ct. 1868. However, Kerr only applied the first category articulated in Buie. In contrast, the case currently before the Court requires that, for the first time, we apply the second Buie category.

First Buie Category

Before analyzing this case under the second Buie category, we must first briefly address and dispense with the Commonwealth's veiled assertion that Brumley's residence may have been within the area immediately adjacent to the area of arrest, thereby implicating the first, and less stringent, Buie category. It is uncontroverted that Brumley was outside the residence at the time of his arrest. There were no other attachments to the trailer other than a few stairs leading from the doorway. It is also undisputed that he came outside willingly, and that at no time prior to the arrest did any officers enter the residence. Therefore, it would be improper to hold that any room or space whatsoever found inside the mobile home adjoined the place of arrest, as the arrest occurred entirely outside the residence. Brumley was already safely in custody and being led away from the residence to an

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awaiting vehicle. Further, state and federal courts have consistently applied the second Buie category to outside-the-home arrests. See, e.g., United States v. Henry, 48 F.3d 1282, 1284 (D.C.Cir.1995); People v. Celis, 33 Cal.4th 667, 16 Cal.Rptr.3d 85, 93 P.3d 1027, 1035 (2004); State v. Spencer, 268 Conn. 575, 848 A.2d 1183, 1192 (2004); United States v. Archibald, 589 F.3d 289, 298 (6th Cir.2009).

Second Buie Category

In applying the second Buie standard, we must clarify our post-Guzman interpretation of the “protective sweep” exception since Buie was not the law in the Commonwealth until after the Court of Appeals rendered its decision in this case. The reasonable suspicion standard required under the second Buie category abrogates our former two-part test as it relates only to “protective sweeps.” Specifically, the trial court determined in its oral findings of fact and conclusions of law that “exigent circumstances coupled with probable cause justified the warrantless search.” Similarly, the Court of Appeals based its decision on the same legal standard requiring exigent circumstances to be accompanied by probable cause. See Southers v. Commonwealth, 210 S.W.3d 173, 176–77 (Ky.App.2006). In direct contrast, the U.S. Supreme Court has expressly stated that probable cause is “unnecessarily strict.” Buie, 494 U.S. at 336–37, 110 S.Ct. 1093 (holding that reasonable suspicion is the correct constitutional standard to be applied in protective sweep cases). To the extent Southers and similar cases conflict with the narrow “protective sweep” exception analyzed under a Buie framework, they are overruled. However, these cases still apply generally to other categories of exigency exceptions to the extent they do not otherwise conflict with Kentucky or federal law.

With these post-Guzman principles in mind, we now turn to whether the officers here harbored the requisite reasonable suspicion needed to give rise to a constitutional protective sweep. Reasonable suspicion must be determined “under the totality of the circumstances, considering ‘all of the information available to law enforcement officials at the time.’ ” Humphrey v. Mabry, 482 F.3d 840, 846 (6th Cir.2007) (quoting Feathers v. Aey, 319 F.3d 843, 849 (6th Cir.2003)). However, determinative information must relate to the purpose for which the protective sweep exception was created. The justification for a protective sweep is the safety threat posed by unseen third parties in the house. Buie, 494 U.S. at 336, 110 S.Ct. 1093.

Circumstances Surrounding the Arrest

The Commonwealth urges us to consider that the arrest occurred at night, and that the mobile home had no electricity and was located in a remote area of a rural county. While we understand that any obstruction to an arresting officer's line of sight is not ideal, it does not influence our determination. United States v. Ford, 56 F.3d 265, 269 n. 6 (D.C.Cir.1995) (noting that, “Poor lighting ... [has] nothing to do with a belief that the area harbors ‘an individual posing a...