Lovett v. Com., 2000-SC-1072-MR.

• Decision Date: 24 April 2003
• Docket Number: No. 2000-SC-1072-MR.,No. 2000-SC-1078-MR.,2000-SC-1072-MR.,2000-SC-1078-MR.
• Citation: 103 S.W.3d 72
• Parties: Todd LOVETT, Appellant v. COMMONWEALTH OF KENTUCKY, Appellee.
• Court: United States State Supreme Court — District of Kentucky

103 S.W.3d 72

Todd LOVETT, Appellant v. COMMONWEALTH OF KENTUCKY, Appellee.

No. 2000-SC-1072-MR.

No. 2000-SC-1078-MR.

Supreme Court of Kentucky.

April 24, 2003.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Richard Hoffman, Assistant Public Advocate, Department, of Public Advocacy, Frankfort, for Appellant.

A.B. Chandler, III, Attorney General, Todd D. Ferguson, Assistant Attorney General, Office of Attorney General, Criminal Appellate Division, Frankfort, for Appellee.

COOPER, Justice.

After the denial of his motions to suppress and for a protective order, Appellant Todd Lovett entered a conditional plea, RCr 8.09, pursuant to North Coroliaa v. Alford, 400 U.S. 25, 91 S.Ct. 160,27 L.Ed.2d 162 (1970), to one count of manufacturing methamphetamine, one count of possession of a controlled substance in the first degree, one count of possession of a controlled substance in the third degree, one count of possession of drug paraphernalia, one count of possession of a firearm by a convicted felon, one count of endangering the welfare of a minor, and one count of being a persistent felony offender in the first degree. He was sentenced to a total of twenty years in prison and appeals to this Court as a matter of right. Ky. Const. § 110(b). We affirm.

I. FACTS.

On the evening of February 2, 2000, Detective Troy DeFew of the Marshall County Sheriffs Department received information from a confidential informant that Appellant was manufacturing methamphetamine at his home in Marshall County. DeFew subsequently executed an affidavit for a search warrant that reads in relevant part:

A Confidential Informant stated that Todd Lovett is engaged in the manufacture of methamphetamines at the above described address. More specifically, the drugs and components are being manufactured at the residence and in a barn adjacent thereto. The drugs are then used in the barn as well as the residence itself. The components for the manufacture of said drugs and finished product are transported to and from the residence and adjacent barn by Todd Lovett in an Oldsmobile Cutlass Supreme silver in color and a black Jeep Cherokee. The lab itself consists of several 20 oz. plastic bottles used for smoking, a vacuum pump, a stove type heater, jars of seeds made up, plastic bags of ether hanging and coffee filters some of which contain finished product. These items were viewed by the informant on more than one occasion within the last two months. Also, within that period of time Lovett moved an anhydrous tank to the barn. The tank is silver in color and approximately 55 gallon capacity. These facts are consistent with information received by the Affiant anonymously and otherwise on several occasions since May of 1999. The informant also stated that on January 31, 2000 the Informant was accosted by Lovett over money owed to Lovett by the Informant and Lovett took from Informant a small Jansport duffle [sic] bag which contained 1500 ephedrine pills, sulfuric acid, approximately 12 lithium batteries, coffee filters, tubing and other items. These items were to be used by Lovett to manufacture another batch of methamphetamines.

At approximately 1:51 a.m. on February 3, 2000, DeFew transmitted the three-page affidavit and proposed two-page search warrant via facsimile ("fax") to the Marshall District Judge. The judge signed the warrant and transmitted the page containing his signature back to DeFew at 2:04 a.m. At approximately 3:00 a.m., DeFew, accompanied by other officers, including a tactical response team (TRT), arrived at Appellant's residence. Appellant was not at home; thus, the warrant was executed on Appellant's wife, Tina Lovett.

During their search, the officers recovered various items and ingredients used in the manufacture of methamphetamine, as well as other drug paraphernalia. The items recovered included one hundred used coffee filters containing a white residue, two bottles of ephedrine pills, plastic containers containing lithium, and a fifty-five gallon tank of anhydrous ammonia. Based on this evidence, Appellant was arrested on February 4, 2000.

Following his subsequent indictment and arraignment, Appellant filed a motion to suppress the evidence obtained during the search, claiming that the search violated his rights under the Fourth and Fourteenth Amendments of the United States Constitution and Section 10 of the Constitution of Kentucky. Following a suppression hearing that consisted of the testimonies of Detective DeFew, Tina Lovett,¹ and Sonny Russell, the trial judge entered an order denying the motion to suppress. A trial was scheduled for October 18, 2000.

On August 30, 2000, the Commonwealth moved for permission to depose the confidential informant, via satellite transmission, pursuant to RCr 7.10. In support of the motion, the Commonwealth claimed that the witness was "unavailable" because he was participating in a "Teen Challenge" drug rehabilitation program in South Dakota and could not receive a "pass" to leave the facility until February 2001. Appellant responded with a motion for a protective order to prohibit the Commonwealth from taking the deposition or using such evidence at trial, arguing that such would violate his Confrontation and Due Process rights under the United States and Kentucky Constitutions. U.S. Const., amends. V, VI; Ky. Const. § 11.

On September 29, 2000, the trial judge entered an order denying the Commonwealth's motion for a satellite deposition but finding the witness to be "unavailable" and permitting the Commonwealth to take the witness's deposition by videotape in South Dakota in the presence of both Appellant and his counsel. Following the denial of his motions to suppress and for a protective order, Appellant entered an Alford plea, specifically reserving his right to appeal the suppression and deposition issues.

On appeal, Appellant asserts that (1) the trial court erred by denying the motion to suppress because the search warrant was constitutionally defective and the good faith exception to the exclusionary rule did not apply under these facts; (2) the trial court's order granting the prosecution's motion to depose the confidential informant in South Dakota violated Appellant's constitutional right to confront the witnesses against him; and (3) KRS 218A.1432, the statute criminalizing the manufacture of methamphetamine, is unconstitutionally vague.

II. SEARCH AND SEIZURE.

A. Probable Cause:

Appellant first argues that the search warrant was invalid because it was not supported by probable cause, specifically that the affidavit upon which the finding of probable cause was based did not describe the informant's reliability, veracity, and basis of knowledge, and that Detective De-Few failed to establish the informant's reliability by further corroboration of the information provided. We disagree.

In Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the United States Supreme Court abandoned the rigid two-pronged test established by its previous holdings in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), and adopted a "totality of the circumstances" approach for determining whether an informant's tip provided probable cause for the issuance of a search warrant. 462 U.S. at 230-31, 103 S.Ct. at 2328. Under this test, the issuing magistrate need only "make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him ... there is a fair probability that contraband or evidence of a crime will be found in a particular place." Id. at 238, 103 S.Ct. at 2332. While an informant's veracity, reliability, and basis of knowledge are all "relevant considerations in the totality of the circumstances analysis," they are not conclusive and "a deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability." Id. at 233, 103 S.Ct. at 2329. Thus, the mere fact that DeFew's affidavit did not contain recitations as to the informant's veracity, reliability, and basis of knowledge is not conclusive that the warrant was issued without probable cause.

Gates also explained that a magistrate's determination of probable cause is entitled to "great deference" and should be upheld so long as the magistrate, considering the totality of the circumstances, had a "substantial basis for concluding that a search would uncover evidence of wrongdoing." Id. at 236, 103 S.Ct. at 2331 (internal quotation omitted); Beemer v. Commonwealth, Ky., 665 S.W.2d 912, 914 (1984); see also Massachusetts v. Upton, 466 U.S. 727, 732-33, 104 S.Ct. 2085, 2087, 80 L.Ed.2d 721 (1984) (reemphasizing Gates). It is within this rubric that we evaluate the decision of the trial court.

Typically, a bare and uncorroborated tip received from a confidential informant, without more, would be insufficient to establish probable cause for a search warrant. E.g., Florida v. J.L., 529 U.S. 266, 270, 120 S.Ct. 1375, 1378, 146 L.Ed.2d 254 (2000). This is not such a case. As stated supra, the totality of the circumstances test requires a balancing of the relative indicia of reliability accompanying an informant's tip. Gates, supra, at 234, 103 S.Ct. at 2330. Thus, while a court may question an informant's motives, an "explicit and detailed description of alleged wrongdoing, along with a statement that the event was observed first-hand, entitles [the informant's] tip to greater weight than might otherwise be the case." Id.; United States v. Sonagere, 30 F.3d 51, 53 (6th Cir.1994).

Here, the confidential informant provided DeFew with detailed descriptions of Appellant's methamphetamine manufacturing operation and the contents of his methamphetamine laboratory. The informant also gave a detailed description of the anhydrous ammonia tank that Appellant moved into...