Com. v. Pride
| Decision Date | 21 January 2010 |
| Docket Number | No. 2008-SC-000730-DG.,2008-SC-000730-DG. |
| Citation | 302 S.W.3d 43 |
| Parties | COMMONWEALTH of Kentucky, Appellant, v. Leslie PRIDE, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Appellant, Commonwealth of Kentucky, appeals from a Court of Appeals decision reversing a July 5, 2007 order of the Union Circuit Court which denied Appellee Leslie Pride's motion to suppress evidence obtained during a search pursuant to a warrant. The Court of Appeals held that the motion to suppress should have been granted because it found there was no probable cause to support the warrant. We granted discretionary review to look at whether the Court of Appeals used the correct standard to review the existence of probable cause, whether the facts stated in the affidavit provided to the warrant-issuing judge established probable cause, and whether if the warrant was not supported by probable cause, the trial court properly denied the motion to suppress because the police acted in good faith. We also address Appellee's argument that the affidavit supporting the warrant set forth factual conclusions based upon flawed electrical usage statistics. We reverse the Court of Appeals because it applied an incorrect standard of review for searches conducted pursuant to a warrant.
On November 9, 2006, the Kentucky State Police sought a search warrant for Appellee's residence. The search warrant affidavit, given by Detective Sean McKinney, stated the following in support of the warrant:
On the 6th day of September, 2006, at approximately 11:00 a.m., affiant received information from: A Confidential Source of illegal narcotic activities in the Commonwealth of Kentucky. The Confidential Source stated that he knew a man by the name of Leslie Pride and that Pride was selling marijuana. The Source stated that Pride lived in Union County and told him that he had 240 female marijuana plants and priced the marijuana at $600.00 per quarter pound. The Source stated that he knew Pride from previous employment and that the information received was told to him by Pride last summer (2005). The Affiant states that the Confidential Source has provided information on at least 3 marijuana investigations and that that information has resulted in ongoing criminal investigations and controlled purchases (not related to Pride). The Confidential Source has proven to be a reliable source of narcotics related information to the Kentucky State Police.
Acting on the information received, affiant conducted the following independent investigation: Affiant states he and Det. Matt Conley through vehicle and driver's license checks confirmed that Leslie Pride lived in Union County, KY and resided at 681 SR 365 in the Sturgis area. Affiant states that on November 7, 2006 Det. Conley and Det. Louis Weber drove back to the residence and obtained information from it and two comparison homes in the area for a utility records subpoena. Affiant states that he went to the Union County PVA Office and obtained property cards and information on three residences for comparison. Affiant states that he chose the two comparison homes based on geographic location, same utility company service, and being similar structures in both construction and size. Affiant states that he served a subpoena on Kentucky Utilities on November 7, 2006 for the utility records on all three residences.
Affiant states that on November 8, 2006 he received faxed copies of those records from Kentucky Utilities. Affiant states that he provided those records to Det. Weber for review and graphing. Det. Weber is assigned to the Kentucky State Police Drug Enforcement/Special Investigations Section and has investigated several dozen indoor marijuana grow operations and has created a graphing system for the utility records. Affiant states that Det. Weber prepared the graphs for 2005 and 2006, and prepared a structural comparison on all three residences. Det. Weber concluded that based on the extremely high electric usage and indicative spiking of electric at 681 ST RT 365, it was his opinion that the records were consistent with an indoor marijuana grow. Det. Weber consulted with retired KSP Det. Mark Moore on November 9, 2006 regarding this investigation. Det. Moore, who is now assigned as a KSP Drug Task Force Officer, was assigned to the KSP Marijuana Operations Section from 1995 until his retirement in 2003. Det. Moore was provided copies of the graphs and structural comparison worksheet. Det. Moore also concluded that based on his experience and training, that the extremely high electrical usage was indicative of and consistent with an indoor marijuana grow....
Affiant further states that he has checked Leslie Pride's criminal history and determined that he was charged and convicted in Union County in 1995 for Trafficking in a Controlled Substance 1st Degree and sentence to 10 years. Affiant further states that Pride was charged and convicted in Union County in 1995 for 2-counts of Trafficking Controlled Substance 1st degree and possession of a handgun by a convicted felon. Pride was sentenced to another 10 years to run concurrent with the previous indictment. ...
Based on the above affidavit, a search warrant was issued and Appellee's residence was searched. Among the items seized during the search were fifty-four one-gallon plastic storage bags of marijuana, an Army duffle bag containing marijuana, twenty-six pounds, ten ounces of loose, unpackaged marijuana, and various items used to cultivate and process marijuana. Based on the evidence obtained, the Union County Grand Jury indicted Appellee for trafficking in marijuana (over five pounds), second or greater offense, use/possession of drug paraphernalia, first offense, and being a second-degree persistent felony offender.
Appellee filed a motion to suppress the evidence obtained during the search. A suppression hearing was held on April 9, 2007. Appellee argued that the affidavit failed to present probable cause to issue a search warrant because: 1) the affidavit did not indicate there was marijuana located at Appellee's house; 2) the information provided by the confidential informant was stale because it referred to alleged crimes which occurred over one year prior; 3) the affidavit did not reflect that the confidential informant's reliability had been established by the time the warrant was requested; 4) his prior criminal history did not establish that there was current illegal activity; and 5) the electricity usage comparison used by the police was unreasonable and conducted without any objective standards.
In support of his argument against the electricity usage comparison, Appellee presented testimony from a Kentucky Utilities energy analyst who testified that electricity usage at Appellee's house was within normal limits. The energy expert made this determination by interviewing Appellee's wife regarding the family's energy usage. Appellee also presented testimony from Kentucky State Police Detective Moore, who testified that had he known about the number of appliances at Appellee's house, he would have changed his initial belief that the house was the site of a marijuana growing operation. Appellee further argued that the electricity comparison was flawed because the two comparison houses had markedly different inhabitants than Appellee's house. Five family members of varying ages lived at Appellee's house, while one of the comparison houses had two elderly residents and the other was vacant for several months during the period of review. Based on this, Appellee argued that not only was there no objective standard of review used by police in reviewing the electricity usage, but that the final report was misleading.
Using the standard provided in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the circuit judge denied Appellee's motion in a fifteen-page order. The circuit judge found that each element contained in the affidavit was individually inadequate to issue the warrant, but that collectively, the "totality of the circumstances" provided the warrant-issuing judge a "substantial basis for ... conclud[ing]" that probable cause existed. The circuit judge concluded that the informant's credibility was adequately established in the month prior to the issuance of the search warrant by other tips he provided and by the police officer's knowledge of Appellee's criminal background. Finally, the circuit judge concluded that the methods the police used for the electricity comparison, despite the imperfections revealed by the hindsight of subsequent analysis, were reasonable and objective, were not misleading, and appeared to be indicative of a marijuana growing operation.
After the suppression hearing, Appellee entered a conditional guilty plea to one count of trafficking in marijuana over five pounds, first offense, and one count of use/possession of drug paraphernalia, first offense pursuant to a plea agreement with the Commonwealth, reserving the right to appeal the denial of his suppression motion. Appellee received a sentence of six-years' imprisonment.
The Court of Appeals reversed the circuit judge's order denying Appellee's suppression motion using a two-step test to review the suppression hearing: 1) whether the circuit court's findings of fact are supported by substantial evidence; and 2) a de novo review of those factual findings to determine whether probable cause existed as a matter of law. The standard of review used by the Court of Appeals was provided by Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); Commonwealth v. Banks, 68 S.W.3d 347, 349 (Ky.2001); Garcia v. Commonwealth, 185 S.W.3d 658, 661 (Ky.App. 2006)...
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