Ludwig v. Commonwealth, 2002-CA-001800-MR.

• Decision Date: 31 October 2003
• Docket Number: NO. 2002-CA-001800-MR.,2002-CA-001800-MR.
• Parties: WILLIAM DOUGLAS LUDWIG, JR., APPELLANT v. COMMONWEALTH OF KENTUCKY, APPELLEE.
• Court: Kentucky Court of Appeals

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WILLIAM DOUGLAS LUDWIG, JR., APPELLANT v. COMMONWEALTH OF KENTUCKY, APPELLEE.

NO. 2002-CA-001800-MR.

Court of Appeals of Kentucky.

Rendered October 31, 2003.

APPEAL FROM JEFFERSON CIRCUIT COURT, HONORABLE JAMES M. SHAKE, JUDGE, INDICTMENT NO. 01-CR-000908.

Elizabeth B. McMahon, Frank W. Heft, Jr., Louisville, Kentucky, BRIEF FOR APPELLANT.

Albert B. Chandler III, Attorney General, BRIEF FOR APPELLEE.

Courtney J. Hightower, Assistant Attorney General, Frankfort, Kentucky, BRIEF FOR APPELLEE.

BEFORE: BAKER and SCHRODER, Judges; HUDDLESTON, Senior Judge.¹

OPINION

AFFIRMING IN PART, REVERSING IN PART AND REMANDING

HUDDLESTON, Senior Judge:

William Douglas Ludwig was charged in an indictment with the offenses of burglary in the third degree,² receiving stolen property valued at over $300.00,³ possession of a controlled substance (cocaine) in the first degree,⁴ use or possession of drug paraphernalia,⁵ and being a first-degree persistent felony offender.⁶ These charges stemmed from Ludwig's conduct on February 7, 2001, when he allegedly participated in the burglary of a carpet store in Louisville, Kentucky, and purchased cocaine with the proceeds from the burglary.

On February 7, 2001, an anonymous person called the Louisville Police Department concerning a break-in at Huber's Linoleum and Carpet Co., located at the corner of Shelby and Caldwell Streets. The caller told the dispatcher that several men had broken out a front window and dragged a safe from the carpet store. The caller further informed the dispatcher that the dragged safe had left marks in the sidewalk. Finally, the tipster advised that the men involved in the break-in stated that they were going to return to the carpet store and take more items. Based on this information, officers from the Louisville Police Department were dispatched and arrived at the scene at 11:26 p.m.

During their investigation, the officers observed what appeared to be drag marks leading from the front of the carpet store to a residence at 728 East Caldwell Street. The officers followed these marks to the side door of the residence. After arriving at the side door, the officers heard loud banging and pounding noises coming from inside of the house. Believing that the suspects were inside the residence trying to break into the safe and destroy evidence, the officers contacted their supervisor and requested instructions. The supervisor ordered the officers to enter the house even though they had not obtained a search warrant. The officers then forced their way into the residence while Ludwig and James Horton were breaking the safe open with heavy tools. The officers secured the scene and arrested Ludwig, Horton and Carol Phillips.⁷

After he was indicted, Ludwig moved to suppress the evidence seized during the warrantless entry of his house. At a hearing on Ludwig's motion to suppress, Lieutenant Michael Brandon of the Louisville Police Department's Stolen Property Arrest and Recovery Squad⁸ testified that he arrived on the scene after the patrol officers had entered Ludwig's residence. Upon his arrival, Lt. Brandon was advised of the events that caused the patrol officers to enter the residence without a search warrant. Based upon his observations, Lt. Brandon applied for a warrant to search the remainder of Ludwig's residence. The warrant listed those items discovered during the initial entry and provided information concerning other burglaries that had recently occurred in the area. Despite the fact that the affidavit supporting the search warrant contained erroneous information about the anonymous call,⁹ a district judge signed the search warrant approximately four hours later. The police then executed the search warrant and recovered a cash register that had been stolen in a previous burglary, shoes,¹⁰ tools and various items of drug paraphernalia, mainly crack pipes, from Ludwig's residence.¹¹

After entering into a plea agreement with the Commonwealth,¹² Horton testified at the suppression hearing. He asserted that Ludwig and two black males broke the front window of the carpet store and dragged a safe outside. While Horton did not enter the carpet store, he helped Ludwig and the two black men drag the safe from the carpet store to Ludwig's house. Horton also admitted that he assisted Ludwig by using various tools to break the safe open. Using a sledgehammer, Ludwig finally broke the bottom of the safe open and found $38.00 cash inside it. Using the money obtained from the safe, Ludwig bought a "$40.00 piece" of cocaine¹³ and split it with Horton and Phillips. Horton claimed that the police kicked down the door and entered the residence while they were smoking the cocaine. Horton insisted that the police did not observe the opening of the safe because Ludwig had already broken the safe open, removed the money and obtained the cocaine prior to their arrival.

After considering the evidence introduced during the suppression hearing, the circuit court found that the police entered Ludwig's home without securing a search warrant based upon a reasonable belief that evidence from the carpet store burglary was being destroyed. Further, the court found that even if the police had obtained a warrant prior to entering Ludwig's home, they would have inevitably discovered the seized evidence. Accordingly, the court denied Ludwig's motion to suppress the evidence seized by the police because of the warrantless entry of his residence.

On July 17, 2002, a petit jury, based upon testimony by Lt. Brandon, Horton and Phillips,¹⁴ found Ludwig guilty of burglary in the third degree, receiving stolen property, possession of a controlled substance (cocaine) in the first degree and use of drug paraphernalia. The jury also found Ludwig to be a persistent felony offender in the first degree. The jury recommended that Ludwig receive a total sentence of fifteen years' imprisonment. This appeal followed.

Ludwig contends on appeal that the circuit court erred when it refused to suppress the evidence seized following the warrantless entry and search of his residence. Ludwig submits that the warrantless entry of his residence by the police was not justified by probable cause or by any exception to the warrantless search rules. Accordingly, Ludwig believes that the seizure of the evidence following this warrantless entry violated the Fourth Amendment to the United States Constitution, as well as Section 10 of the Kentucky Constitution.

In reviewing a cicuit court's decision on a motion to suppress, this Court is required to first determine whether the court's findings of fact are supported by substantial evidence.¹⁵ If those findings are supported by substantial evidence, then they are conclusive.¹⁶ "Based on those findings of fact, we must then conduct a de novo review of the court's application of the law to those facts to determine whether its decision is correct as a matter of law."¹⁷

The Fourth Amendment to the United States Constitution provides that:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

"The Fourteenth Amendment incorporates the Fourth Amendment, prohibiting unreasonable searches and seizures by the states."¹⁸ The Kentucky Constitution accords the same rights.¹⁹

A warrant is ordinarily required to enter a person's home. The United States Supreme Court has held that "the Fourth Amendment has drawn a firm line at the entrance to the house," adding that "[a]bsent exigent circumstances, that threshold may not reasonably be crossed without a warrant."²⁰ "It is a basic principle of Fourth Amendment law that searches and seizures inside a home without a warrant are presumptively unreasonable."²¹ Furthermore, the "physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed."²² Nevertheless, there are exceptions to this warrant requirement, including "hot pursuit of a fleeing felon, or imminent destruction of evidence, . . . or the need to prevent a suspect's escape, or the risk of danger to the police or to the other persons inside or outside the dwelling."²³

In the case before us, Lt. Brandon testified at the suppression hearing that, from hearing loud banging and pounding noises coming from inside the house where the drag marks stopped, the patrol officers believed that exigent circumstances existed for entering the house due to the possible destruction of the safe and the removal of its contents. Ludwig argues that exigent circumstances did not exist, and that the warrantless entry into and subsequent search of his apartment was not justified.

As a general rule, exigent circumstances are said to exist when police officers face circumstances requiring them to act not only for their own protection, but also for the protection of the lives and property or others.²⁴ The U.S. Supreme Court further defined this rule by proclaiming that "[w]here there are exigent circumstances in which police action literally must be `now or never' to preserve the evidence of the crime, it is reasonable to permit action without prior judicial evaluation."<sup>25</sup> Finally, this Court has recognized "that a warrantless search is permissible where `evidence may be destroyed.'"²⁶

Here, the record reveals that the police were dispatched to the carpet store after being alerted by an anonymous caller that a burglary was in progress. The caller informed the police that several men had removed a safe from the store and were dragging it down the street. The caller also overheard the perpetrators declare their intention to return to the carpet store to obtain more items. Upon being dispatched to the scene, the patrol officers observed a broken window in the front of the...