Coleman v. Com., 2401-SC-1024-MR.

• Decision Date: 19 December 2002
• Docket Number: No. 2401-SC-1024-MR.,2401-SC-1024-MR.
• Citation: 100 S.W.3d 745
• Parties: Ronald Earl. COLEMAN, Appellant, v. COMMONWEALTH OF KENTUCKY, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 745

100 S.W.3d 745

Ronald Earl. COLEMAN, Appellant, v. COMMONWEALTH OF KENTUCKY, Appellee.

No. 2401-SC-1024-MR.

Supreme Court of Kentucky.

December 19, 2002.

Rehearing Denied. April 24, 2003.

Elizabeth B. McMahon, Assistant District Defender, Office of the Jefferson District Public Defender, Louisville, Counsel for Appellant.

A.B. Chandler, III, Attorney General, Louis F. Mathias, Jr., Office of the Attorney General, Assistant Attorney General, Criminal Appellate Division, Frankfort, Counsel for Appellee.

KELLER, Justice.

I. INTRODUCTION

Appellant entered a conditional guilty plea under RCr 8.09 to one count each of First-Degree Trafficking in a Controlled Substance (KRS 218A.1412),Trafficking in Marijuana (KRS 218A.1421), Possession of Drug Paraphernalia (KRS 218A.500), and Possession of a Firearm (Handgun) By a Convicted Felon (KRS 527.040). In connection with his plea, Appellant agreed both that he was a Second-Degree Persistent Felony Offender (PFO) and that he was eligible for enhanced sentencing under KRS 218A.992 as to each of the KRS Chapter 218A controlled substance offenses because he was in possession of a firearm at the time he committed those offenses. The trial court entered judgment sentencing Appellant to concurrent sentences totaling twenty (20) years, and Appellant appeals to this Court as a matter-of-right.¹ After entertaining oral argument from the parties and reviewing the record on appeal, we reverse the judgment of the Jefferson Circuit Court and remand this matter to the trial court.

II. FACTUAL BACKGROUND

The Jefferson County Grand Jury returned an indictment against Appellant charging him with a series of KRS Chapter 218A and Kentucky Penal Code offenses after his Probation and Parole officer discovered contraband at his residence. Appellant moved the trial court "pursuant to the 4th and 14th Amendments to the United States Constitution, to Section 10 of the Kentucky Constitution, and to RCr 9.78 ... to suppress any and all fruits of any governmental search, seizure, arrest, investigative stop, and/or frisk or other governmental intrusion, including both tangible evidence and statements made by the defendant." The trial court conducted an evidentiary hearing on Appellant's motion.

Appellant's Kentucky Probation and Parole Officer, Tracy Goins ("Officer Goins"), testified at the evidentiary hearing that: (1) during the evening of November 6, 2000 she (accompanied by several other Probation and Parole Officers and members of the Louisville Police Department) conducted an "at-home visit" for the purpose of verifying Appellant's residency at the location that Appellant had identified as his home; (2) Appellant answered her knock on the door, and, after she informed him that she needed to check to see if he actually lived there, Appellant informed her that his girlfriend was undressed; (3) she explained to Appellant that she and Appellant's girlfriend were similarly equipped; (4) she then walked through the front door into the living room and the other officers followed her into the residence; (5) once inside, she discovered the strong smell of marijuana smoke; (6) she then asked Appellant to identify his bedroom, and Appellant did so; (7) the officers then conducted a search of Appellant's bedroom that uncovered — in addition to paperwork evidencing that the home was, in fact, Appellant's residence — a firearm, controlled substances, and indicia of drug trafficking; and (8) Appellant made statements indicating that he purchased the firearm for his own protection after an incident in which he was "jumped" and that he had been trafficking in the cocaine so that he would have money to purchase Christmas presents for his children. On cross-examination, Officer Goins testified that: (1) although four days earlier she had received drug test results showing that Appellant had tested positive for THC or marijuana, she went to the home only to verify Appellant's residence, and the positive test was not the reason for her visit; (2) she entered the home without either an arrest or search warrant or Appellant's invitation or permission; and (3) she noted the smell of marijuana only after she entered the residence.

Detective Kenton Buckner ("Detective Buckner") of the Louisville Police Department's Street Crimes Unit testified that he had accompanied Goins during the "at-home visit." During his testimony, Detective Buckner primarily addressed the circumstances surrounding Appellant's incriminating statements, and Detective Buckner gave no testimony concerning the manner in which the officers obtained entry into Appellant's home.

The parties' attorneys then argued the merits of Appellant's motion to suppress. Counsel for both Appellant and the Commonwealth agreed that a person under parole supervision in Kentucky may be searched without a warrant when his or her parole officer has a reasonable basis for the search.² After the trial court informed the attorneys of its preliminary conclusion that "[o]nce she's [Officer Goins] got access, she's got reason to believe that there is criminal trickery afoot," the arguments focused on the legality of Officer Goins's initial entry into the residence:

Court: Once she goes to the door and he meets her, then isn't that a verification that he is where he said he was going to be?

Comm.: No, your Honor. I think that what you would find quite often in the terms of parole is that they have — or probation — is that they live all over the place, that just because he shows up at the place he has listed on his parole application or terms and conditions with her as his most current address is not necessarily the place that he is residing. I believe that any prudent officer would want to have independent verification based on mail coming to the house, paying bills, other papers, clothes, independent verification of that nature to actually determine "Yes, this is where this person is residing, he is telling me the truth." And I believe that that was the intent of Officer Goins when she went into the house — was to actually physically verify that he was residing there and that she wasn't getting a line.

Court: Anything else you want to add, Mr. Thompson? [Appellant's trial counsel]

Appellant: Simply that I have not seen any condition that he signed saying that she can enter the house for that purpose and that it would otherwise get around the Fourth Amendment rights for protection from unreasonable search and seizure. As far as him agreeing that she can search the house simply to find out if he does in fact live there.

Court: I do believe that that is part of the parole officer's job and function to do a thorough investigation to ascertain whether an individual lives in a particular place, and I agree with the prosecutor's theory — his argument, anyway — that the intent of this parole officer was to make sure that this is in actual fact where he lived. The question that I had that I am not really certain about is "Was his refusal at the door sufficient to prevent the parole officer from gaining entrance?" The prosecutor argues the totality of the circumstances. I believe the parole officer has the right to make an entry into the individual's residence. Upon, in this particular case, upon the entry she did smell marijuana which gives rise certainly to the necessary reason to conduct a search and therefore the search — I am not going to suppress the evidence that resulted from this search. I am not sure whether there was any factor involved in the fact that he had tested positive for some sort of drug several — was it marijuana, I can't remember, THC — several days before certainly alerts her to the possibility of the defendant possibly being involved in using an illegal drug or substance — certainly was enough to revoke him at that time, so your motion to suppress is denied....

Appellant: So, just to clarify, your Honor. You are concluding that the Fourth Amendment, that this was a reasonable search for contraband — or for other purposes besides contraband?

Court: The question was whether the entrance was gained or not. And I am holding that the entrance was sufficient. It was not a violation of your client's Fourth Amendment rights.

...

Appellant: And, Judge, I don't know what the court has found on this previously, but your honor has made some specific factual arguments to support its conclusion but we would ask the court to put that in writing in its order denying this motion. And I think we brought this up previously and I think —

Court: I don't think I am going to have time to do it before the trial.

Appellant: Well, he is in prison doing another sentence, so if —

Court: I am just telling you I don't think I will have time to do it before the trial date. But I will certainly get done assuming there is an appeal.

The day following the evidentiary hearing — and a little over a month prior to the scheduled trial date — the trial court entered a brief order denying Appellant's motion to suppress, but did not set out the findings of fact and conclusions of law that formed the basis for its ruling:

This matter came before the Court on July 25, 2001, for hearing on motion of defendant to suppress evidence. The defendant was/was not present in person, and with counsel, Patrick Thompson. The Commonwealth was present by counsel, Alex Dathorne. The proceedings were reported by videotape. 30-13-01-VCR-049-A-1.

Having considered the pending motion, record, testimony offered, arguments of counsel and being otherwise sufficiently advised,

IT IS ORDERED that the motion of defendant is DENIED.

With the trial court's permission, Appellant entered a conditional guilty plea and reserved his right to appeal the trial court's ruling as to his motion to suppress. The trial court sentenced Appellant to a twenty (20) year term of imprisonment, and this appeal follows.

III. ANALYSIS

A. TRIAL COURT'S FINDINGS AND APPELLATE REVIEW

Appellant argues that the...