Com. v. Smith

• Decision Date: 17 February 1995
• Docket Number: No. 93-CA-002827-MR,93-CA-002827-MR
• Citation: 898 S.W.2d 496
• Parties: COMMONWEALTH of Kentucky, Appellant, v. Eugene SMITH and Richard A. Roberts, Appellee.
• Court: Kentucky Court of Appeals

Page 496

898 S.W.2d 496

COMMONWEALTH of Kentucky, Appellant, v. Eugene SMITH and Richard A. Roberts, Appellee.

No. 93-CA-002827-MR.

Court of Appeals of Kentucky.

Feb. 17, 1995.

As Modified May 12, 1995.

Chris Gorman, Atty. Gen., C. Lloyd Vest, II, Mary Jo Wicker, Sp. Asst. Attys. Gen., Frankfort, for appellant.

Frank W. Heft, Jr., Daniel T. Goyette, Louisville, for appellee Roberts.

Scott Wilson, Louisville, for appellee Smith.

Before HOWERTON, HUDDLESTON and JOHNSON, Judges.

JOHNSON, Judge:

This is an interlocutory appeal by the Commonwealth of Kentucky from an order of the Jefferson Circuit Court suppressing evidence seized during the search of the multiple-occupant dwelling in which the defendants resided. We vacate the order of suppression and remand.

This appeal requires the resolution of two separate issues which, while distinct, are interrelated due to the particular facts of this case. We are asked to determine whether the search warrant authorizing the search is invalid as a blanket search warrant thus requiring suppression of any evidence found pursuant to its execution. Additionally, we are asked to determine whether the evidence must be suppressed as discovered under a warrant obtained on an inaccurate affidavit.

The case arose as follows. On June 21, 1993, Detective D'Shawn Johnson presented an affidavit to Jefferson District Judge Steve Ryan in application for a search warrant. The substance of this affidavit was that a confidential informant had advised Detective Johnson of illegal drug trafficking activity at 2709 West Chestnut Street by appellee Eugene Smith and that Smith was in possession of a large quantity of cocaine. The affidavit also stated that Detective Johnson had observed several individuals make short visits to 2709 West Chestnut Street, which was further indicative of drug activity. Judge Ryan issued the search warrant which was executed the same day. The search revealed a small baggie of rock cocaine between the wall and nightstand in Smith's room and some marijuana was found in a cigarette pack in a room belonging to appellee Richard Roberts who it was discovered also lived at the address along with other occupants not previously known to the police.

On June 30, 1993, Detective Johnson presented a second affidavit to a different Jefferson District Judge ¹ seeking another search warrant for 2709 West Chestnut Street. This affidavit indicated that a reliable confidential informant had told Detective Johnson that Eugene Smith had received a large shipment of cocaine within the preceding 24 hours and that Smith was selling drugs to people in the area and that "Mr. Smith keeps money and drugs in different locations throughout his house." The affidavit contained no information as to the existence of any other people residing at that address, nor did Detective Johnson relate this fact to the judge who issued the second warrant. A warrant was issued which read in pertinent part as follows:

* * * [Y]ou are commanded to make immediate search of the premises known and numbered as

2709 West Chestnut St.

Louisville, Jefferson County, Ky.

and more particularly described as follows: A red three story dwelling faceing (sic) south onto chestnut (sic). The dwelling has two doors in front, both doors are covered by a glass screen door. The numbers 2709 are in black letters located to the east of the door frame.

The above is located in Louisville, Jefferson county (sic) Ky.

and/or on the person or persons of: Eugene Smith, B/M d.o.b. 5-19-44 * * *, and/or person(s) present who may conceal or destroy evidence.

the following described personal property: Cocaine and/or any other controlled substance. Any device used to cut, measure or package controlled substance. Any monies derived from the sale of illegal drugs.

The search pursuant to this second warrant was conducted on June 30, 1993. A sizeable quantity of rock and powder cocaine was found in a stair post along with an Acculab scale in the kitchen cabinet and marijuana "roaches" in Smith's bedroom. Found in the bedroom belonging to Roberts were two bags of marijuana, a bag of cocaine, hemostats, and hand scales. Smith and Roberts were indicted by a Jefferson Circuit Court grand jury for various offenses arising from the two searches. Roberts moved the trial court to suppress the evidence seized during the second search on the basis that the search warrant was a "blanket" search warrant in that it was directed against a multiple-unit dwelling without sufficient definiteness as to exclude the search of an unintended subunit. Smith moved the trial court to suppress the evidence garnered from both searches as neither warrant sufficiently specified the portions of 2709 West Chestnut that were to be searched.

A suppression hearing was conducted on these motions. Evidence was presented that while 2709 West Chestnut appeared to be a single-family dwelling, it consisted of three floors housing individuals most of whom were unrelated. The first floor consisted of a living room, a bathroom, a kitchen, and the bedroom of Smith's elderly mother, Estelle Dixon, and stairs to the second floor. The second floor consisted of four rooms and a doorway leading to the third floor attic. Conflicting testimony was heard as to whether there were numbers on each of the doors on the second floor and the types of numbers that these may have been. The trial court declined to make a finding of fact on this issue.

Richard Roberts testified he had lived at 2709 West Chestnut for some time and had an arrangement with Eugene Smith's mother, whom he paid fifteen dollars a month in rent and helped with day-to-day activities. Roberts, who apparently lived on the third floor, testified that Eugene Smith lived in one of the second-floor rooms and that Smith had given Roberts a lock for the door to his room, but kept a key to the lock. Roberts stated that he was the only occupant of his room but that three other people besides Smith lived on the second floor. He said that each of those people had a separate room with a separate padlock on his door and each paid rent to Smith's mother. Smith, however, was said to have keys to all the rooms and to have "run" the house. Roberts described his living quarters as "just a room" and that everyone used the kitchen, much of the downstairs, and the bathrooms in common.

Louise Washington, a friend of both Smith and Roberts, testified that she was familiar with 2709 West Chestnut Street. She said that each person who lived in the house had his own room with a number on the door. She said there were four bedrooms on the second floor, one bedroom on the first floor for Smith's mother, and Roberts' room was upstairs.

Regina Williams, Smith's fiancee, testified that there were five numbered apartments in the house and that all of the rooms on the second floor had numbers on the doors. These numbers were removed during remodeling in April of 1993 but were replaced when the work was completed and were there at the time of the searches. She stated that the number on Roberts' door was knocked off in one of the searches.

Dona Cook testified that she was outside the premises when the police arrested Smith after the June 21 search and that she went into the house to check on Mrs. Dixon. Louise Washington was with her and they went through the whole house and observed damage done by the police. She said the front door and interior doors had been kicked in. She said the lock to Roberts' room had been broken. Cook knew that several people lived in the house and paid rent to Mrs. Dixon. She said there were numbers on the doors of the various rooms along with padlocks.

Detective Johnson testified that he prepared both affidavits and was present during both searches of the building. He stated that during the first search, he became aware that the house was occupied by Smith, his mother, and Richard Roberts. The detective said that following the first search Smith had told him that he ran the house and had keys to the different places in the house. He said he could not recall seeing any numbers on the doors.

The trial court declined to suppress the evidence seized during the first search, but found that after the police executed the first warrant, regardless of whether the rooms were separately numbered, they knew there were people living in the house besides Smith. Because the warrant described a single-family dwelling, the trial court concluded that it was not sufficiently particular and therefore void. The trial court also found the case could be analyzed as a warrant obtained on an inaccurate affidavit, saying that "the judge reviewing the affidavit might well have reacted differently if he had been informed that the building contained other roomers." The items seized in the second search were ordered suppressed and this appeal followed.

The first issue we must determine is whether the warrant sufficiently describes the place to be searched. Under the Fourth Amendment of the Federal Constitution, a search warrant is sufficient if the officer charged with making the search is able with reasonable effort to identify and ascertain the place intended to be searched with certainty. Steele v. United States, 267 U.S. 498, 503, 45 S.Ct. 414, 416, 69 L.Ed. 757, 760 (1925); United States v. Burke, 784 F.2d 1090, 1092 (11th Cir.1986). Section Ten of the Kentucky Constitution is satisfied by a description of such certainty as to reasonably identify the premises to be searched. Commonwealth v. Appleby, Ky.App., 586 S.W.2d 266, 269 (1978). The purpose behind these minimum requirements of specificity is to avoid cloaking the police with selective discretion in determining what may be searched as such discretion would allow intrusions upon the property of strangers to the process. Accordingly, the general rule is that a search warrant directed against a multiple-occupancy structure will usually be held invalid if it fails to describe the particular...