Com. v. Baldwin

• Decision Date: 24 February 2006
• Docket Number: No. 2004-CA-002528-MR.,2004-CA-002528-MR.
• Citation: 199 S.W.3d 765
• Parties: COMMONWEALTH of Kentucky, Appellant, v. Jason Thomas BALDWIN, Appellee.
• Court: Kentucky Court of Appeals

199 S.W.3d 765

COMMONWEALTH of Kentucky, Appellant, v. Jason Thomas BALDWIN, Appellee.

No. 2004-CA-002528-MR.

Court of Appeals of Kentucky.

February 24, 2006.

Discretionary Review Denied by Supreme Court September 13, 2006.

COPYRIGHT MATERIAL OMITTED

Gregory D. Stumbo, Attorney General of Kentucky, George G. Seelig, Assistant Attorney General, Frankfort, KY, for appellant.

Marcus S. Carey, Erlanger, KY, for appellee.

Before JOHNSON, KNOPF, and VANMETER, Judges.

OPINION

VANMETER, Judge.

The Commonwealth appeals from an order entered by the Boone Circuit Court granting the motion of appellee Jason Thomas Baldwin to suppress all evidence obtained from a search which was conducted pursuant to a search warrant. For the reasons stated hereafter, we reverse and remand for further proceedings.

During the early morning hours of October 15, 2002, Boone County Deputy Sheriff Steve Larson completed an affidavit in support of a request for a search warrant of Units 825, 826 and 828 of the Mt. Zion Storage facility in Boone County. Larson, who had been a member of the Sheriff's Department for ten years, stated in pertinent part as follows:

On the 5th day of September, 2002, at approximately 4:30 p.m. affiant received information from Brian Cochran of the Northern Ky Drug Strike Force that a reliable confidential informant had informed Cochran that a white male was cooking meth in the storage units at Mt[.] Zion Storage after dark. Affiant then went to the storage units at 10:45 p.m. Sept. 5, 2002 and saw two white males come out of a unit jumped into a truck and left upon realizing someone was outside the building.

Acting on the information received, affiant conducted the following independent investigation: Affiant ran the plates from the truck and found the truck registered to Jason Baldwin. Affiant on Sept. 6, contacted Cochran with this information & Cochran verified that Jason Baldwin was the person named by the informant. On Oct. 14, 2002, at 11:47 p.m. Affiant saw the truck earlier identified as that of Jason Baldwin parked in front of unit 826. Affiant called for assistance and while waiting for other officers and a drug sniffing dog to arrive, the door of 825 opened and two white males and a white female came out. Affiant and other officer, Pete Schierloh, asked for identification & were given drivers licenses identifying one male as Jason Baldwin who claimed ownership of Units 825, 826 and 828. Tim Adams and his dog Niko came to the scene. Niko is a certified narcotics dog. Niko indicated that there were drugs in 825 after being walked by four other units which the dog did not identify as containing drugs.

Affiant has reasonable and probable cause to believe that grounds exist for the issuance of a Search Warrant, based on the aforementioned facts, information and circumstances and prays that a Search Warrant be issued, that the property be seized, or any part thereof, and brought before any court and/or retained subject to order of said court.

Within thirty minutes after the affidavit was signed, a Boone District Judge issued a search warrant for "Units 825, 826 and 828 of Mt. Zion Storage" based on a finding of "probable and reasonable cause . . . as set out in [Larson's] affidavit attached hereto and made a part of hereof as if fully set forth herein[.]"

The search warrant immediately was executed, and drugs and numerous other items were seized from Unit 825. Baldwin was charged with possessing marijuana and drug paraphernalia, as well as with firearm-enhanced charges of attempting to manufacture methamphetamine and possessing a first-degree controlled substance.

The circuit court denied Baldwin's first suppression motion, which challenged the propriety of Larson's entrance onto the storage unit property. In this subsequent pretrial motion to suppress, Baldwin challenged the qualifications of the drug detection dog, Niko. During a hearing Niko's handler testified regarding his and Niko's training and certification, as well as Niko's estimated 95% accuracy. However, Baldwin's expert witness testified about training detection dogs and concluded, based on a paper review of Niko's training records, that Niko was unreliable. The expert indicated that although various performance standards exist within the industry, there are no Kentucky or national standards as to drug detection dog training. The circuit court granted the motion to suppress in a 39-page order which both analyzed drug detection dog standards and certification, and recommended a balancing test for analyzing future cases. The court found:

6) Considering the use of Niko, a dog who was not certified by an independent certified field test by a recognized testing organization, the fact that the handler of Niko was not a certified dog handler, the fact that Niko falsely alerted on two out of three alerts on the day in question, we find that a standardless and unconstrained discretion was left to the handler to determine the reliability and training of Niko and this fails the probable cause test.

The court concluded that although Kentucky has no certification standard, "our body of law does have requirements for the introduction of evidence which are binding, and which regulate the introduction of evidence." The court further found that Niko's use

to establish probable cause for the issuance of a search warrant was insufficient pursuant to the "totality of the circumstances test" . . . that the reliability and veracity of the informant was not proven; that the results produced by Niko failed the review conducted by this court in compliance with Daubert v. Merrell Dow Pharmaceuticals [,] 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); that the affiant to the search warrant affidavit gave materially misleading information to the issuing District Court judge who therefore had no substantial basis for finding that the affidavit established probable cause to believe that the evidence would be found at the place cited; that a standardless and unconstrained discretion was left to the handler in the use of Niko to establish probable cause for the issuance of the search warrant; that the search was therefore an unconstitutional search in violation of the Fourth Amendment.

This appeal followed.

Probable cause for a search requires something more than a bare suspicion but less than what is needed to support a conviction.¹ As stated in Illinois v. Gates,² the totality of the circumstances test should be used to establish whether probable cause exists, and the issuing magistrate's test

is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a "substantial basis for . . . conclud[ing]" that probable cause existed. Jones v. United States, supra, 362 U.S., at 271, 80 S.Ct., at 736.

Further, the expertise and experience of the law enforcement officer involved in the matter may be a relevant consideration in the determination of probable cause.³ A mere statement that an informant is reliable, without more, is insufficient in and of itself to establish the informant's credibility for purposes of issuing a search warrant.⁴ However, information from an informant may be corroborated by an independent police investigation to establish probable cause. A court's findings of probable cause relating to the issuance of a search warrant should be given great deference and should be upheld absent an arbitrary exercise of discretion.⁵ The issuance of a search warrant must be upheld so long as there was a "`substantial basis' for determining that a search would uncover evidence of wrongdoing[.]"⁶ As recently stated by this court in Baltimore v. Commonwealth,⁷

[b]oth the reasonable suspicion and probable cause objective standards are flexible concepts to be applied in a commonsense manner based on the totality of the circumstances in each case. In determining the totality of the circumstances, a reviewing court should not view the factors relied upon by the police officer(s) to create reasonable suspicion in isolation but must consider all of the officer(s) observations and give due regard to inferences and deductions drawn by them from their experience and training.

Kentucky has adopted the standard of review set out by the United States Supreme Court in Ornelas v. United States [517 U.S. 690, 116 S.Ct. 1657, ...