Lydon v. Commonwealth, 2014–CA–001719–DG

Decision Date13 May 2016
Docket NumberNO. 2014–CA–001719–DG,2014–CA–001719–DG
Citation490 S.W.3d 699
PartiesIan J. Lydon, Appellant v. Commonwealth of Kentucky, Appellee
CourtKentucky Court of Appeals

BRIEF FOR APPELLANT: Erin Hoffman Yang, Frankfort, Kentucky

BRIEF FOR APPELLEE: Jack Conway, Attorney General, Maureen Leamy, Assistant Attorney General, Frankfort, Kentucky

BEFORE: CLAYTON, MAZE, AND THOMPSON, JUDGES.

OPINION

MAZE

, JUDGE:

Ian Lydon appeals following his conditional plea of guilty to charges of Possession of Marijuana and Possession of Drug Paraphernalia. Lydon argues that the Christian Circuit Court erred in affirming the District Court's decision overruling his motion to suppress evidence observed and photographed when police entered his home without a warrant. We conclude that officers lacked any recognized exigent circumstance justifying their warrantless entry into Lydon's home. Therefore, we reverse and remand.

Background

On March 6, 2013, officers were looking for a juvenile who was involved in an incident earlier that day. Officers received information that the juvenile was at Lydon's apartment. Officer Todd DeArmond of the Hopkinsville Police Department, along with an officer in training, conducted a knock and announce at the front door of Lydon's apartment. When Lydon answered the door, Officer DeArmond informed him that he had reliable information that a juvenile was inside the home. When Lydon denied that anyone else was inside his apartment, Officer DeArmond, who could smell burning marijuana from his position just outside the apartment's front door, replied, “so the burnt marijuana that I smell coming from the residence is yours?” Before Lydon could answer, Officer DeArmond and the officer in training entered the home.

Immediately upon entering the home, Officer DeArmond and the officer in training observed the juvenile in question on the couch in Lydon's living room. The officers handcuffed the juvenile and Lydon and performed a visual, “protective sweep” of an adjoining room in Lydon's apartment. In the course of this sweep, Officer DeArmond observed marijuana, rolling papers, and a marijuana grinder in plain view. While Lydon was still handcuffed, Officer DeArmond asked for his consent to search his apartment, explaining that Lydon could consent or he could wait for police to obtain a warrant. Lydon signed a written consent for police to search his apartment. Officers ultimately issued Lydon a citation Possession of Marijuana and Possession of Drug Paraphernalia.

Lydon moved the District Court to suppress the items observed during the search of his apartment. At a hearing on the motion, Officer DeArmond testified to the above facts. He also testified that he entered the home to “secure the residence” and for the purpose of “preservation of evidence.” Specifically, Officer DeArmond stated that he believed the burning marijuana indicated that evidence was being destroyed. Officer DeArmond stated that, prior to entering the residence, he had not seen the juvenile or any of the items for which he eventually cited Lydon.

Following the hearing, the District Court overruled Lydon's motion to suppress. Lydon subsequently entered a conditional plea of guilty, and the trial court sentenced him to ten days in jail, probated for two years. Lydon appealed the District Court's decision on his suppression motion to the Circuit Court which affirmed. The Circuit Court concluded that the odor of marijuana created sufficient exigent circumstance to justify warrantless entry into Lydon's home. The court also held that the protective sweep was justified by the officers' “vulnerable” position inside Lydon's apartment and the fact that Lydon had just lied to them concerning who was inside the apartment. Lydon sought discretionary review of the Circuit Court's decision before this Court, and we granted his request.

Standard of Review

The standard of review on a ruling concerning suppression is well-settled. First, we must determine whether the lower court's findings of fact are supported by substantial evidence. If so, those findings are conclusive. See Brumley v. Commonwealth, 413 S.W.3d 280, 283–84 (Ky.2013)

(citation omitted); Adcock v. Commonwealth, 967 S.W.2d 6, 8 (Ky.1998) ; and RCr 9.78. Second, we must perform a de novo review to determine whether the trial court's application of the law to those facts was correct. Id. at 284. See also

Garcia v. Commonwealth, 185 S.W.3d 658, 661 (Ky. App 2006) (quoting

Stewart v. Commonwealth, 44 S.W.3d 376, 380 (Ky.App.2000) ).

Analysis
The Fourth Amendment to the United States Constitution and Section 10 of the Kentucky Constitution

protect citizens from unreasonable government searches and seizures. [T]he touchstone of the Fourth Amendment is reasonableness ... measured in objective terms by examining the totality of the circumstances.” Ohio v. Robinette, 519 U.S. 33, 39, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996)

. A search conducted without a warrant is per se unreasonable. Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) ; see also

Cook v. Commonwealth, 826 S.W.2d 329, 331 (Ky.1992).

Under certain exigent circumstances, including “securing a dwelling, on the basis of probable cause, to prevent the destruction or removal of evidence ...,” police can enter a residence or private area without a warrant. Commonwealth v. McManus, 107 S.W.3d 175, 177 (Ky.2003)

(quoting

Segura v. United States, 468 U.S. 796, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984). However, “exigent circumstances do not deal with mere possibilities, and the Commonwealth must show something more than a possibility that evidence is being destroyed to defeat the presumption of an unreasonable search and seizure.” King v. Commonwealth, 386 S.W.3d 119, 123 (Ky.2012). Finally, the Commonwealth bears the burden of proving that a warrantless entry fell within a recognized exception to the warrant requirement. See

Posey v. Commonwealth, 185 S.W.3d 170, 173 (Ky.2006) and McManus at 177.

Kentucky's Supreme Court has held that a “knock and talk” is “proper police procedure and may be used to investigate the resident of the property, provided that the officer goes only where he has a legal right to be.” Quintana v. Commonwealth, 276 S.W.3d 753, 755 (Ky.2008)

. Lydon contends that the officers' entry into his home, without a warrant, probable cause, or exigent circumstances, was improper and outside the scope of the knock and talk. We agree.

In King v. Commonwealth, supra,

officers announced their presence from outside an apartment door where they could smell marijuana and could hear “things being moved” inside the apartment. Based on this, officers kicked down the door, later asserting their belief that the sounds they heard were consistent with the commission of a crime and the destruction of evidence. The Kentucky...

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6 cases
  • Bembury v. Commonwealth
    • United States
    • Kentucky Court of Appeals
    • December 10, 2021
    ... ... to be free from unreasonable governmental searches and ... seizures. Lydon v. Commonwealth, 490 S.W.3d 699, ... 701-02 (Ky. App. 2016). "When an individual 'seeks ... to preserve something as private,' and his ... ...
  • Chambers v. Commonwealth
    • United States
    • Kentucky Court of Appeals
    • September 29, 2017
    ...perform a de novo review to determine whether the trial court's application of the law to those facts was correct.Lydon v. Commonwealth, 490 S.W.3d 699, 701 (Ky.App. 2016) (internal citations omitted). Chambers argues Officer Ray's observations of his movements were not sufficient to genera......
  • Quintero v. Commonwealth
    • United States
    • Kentucky Court of Appeals
    • June 8, 2018
    ...perform a de novo review to determine whether the trial court's application of the law to those facts was correct.Lydon v. Commonwealth, 490 S.W.3d 699, 701 (Ky. App. 2016) (internal citations omitted). Traffic stops constitute a seizure under the Fourth Amendment. Chavies v. Commonwealth, ......
  • Commonwealth v. Wilson
    • United States
    • Kentucky Court of Appeals
    • April 30, 2021
    ...seizures by the Fourth Amendment of the United States Constitution and Section 10 of the Kentucky Constitution. Lydon v. Commonwealth , 490 S.W.3d 699, 701-02 (Ky. App. 2016). "A search conducted without a warrant is per se unreasonable." Id. at 702 (citations omitted). "[T]he exclusionary ......
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