Parks v. Com., No. 2003-SC-0305-MR.

• Citation: 192 S.W.3d 318
• Decision Date: 18 May 2006
• Docket Number: No. 2003-SC-0305-MR.
• Parties: Johnathan PARKS, Appellant v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court (Kentucky)

192 S.W.3d 318

Johnathan PARKS, Appellant v. COMMONWEALTH of Kentucky, Appellee.

No. 2003-SC-0305-MR.

Supreme Court of Kentucky.

May 18, 2006.

John T. McCall, Christopher F. Polk, Louisville, Counsel for Appellant.

Gregory D. Stumbo, Attorney General, State Capitol, Dennis W. Shepherd, Office of Attorney General, Frankfort, Counsel for Appellee.

Opinion of the Court by Justice COOPER.

At 8:00 p.m. on February 26, 2002, Appellant, Johnathan Parks, while operating a vehicle owned by his wife, was stopped and arrested at the intersection of Highways 88 and 226 in the town of Peonia, Grayson County, Kentucky. Also arrested were his two passengers, Matthew Morris, who was seated in the right front passenger seat, and Douglas Blakeman, who was seated in the right rear passenger seat. A search of the vehicle conducted after the arrests revealed, inter alia, (1) a black plastic trash bag on the floorboard behind the driver's seat that contained a modified propane gas tank filled with anhydrous ammonia; (2) another plastic bag on the back seat that contained a flashlight equipped with two lithium batteries and an opened package containing two identical lithium batteries; and (3) two unopened cans of starting fluid in the glove compartment.

Prior to trial, Blakeman and Morris pled guilty to reduced charges of criminal facilitation to manufacturing methamphetamine for which each was sentenced to three years in prison (plus an additional one year each for having escaped from custody after being transported to Blakeman's residence for the purpose of executing a search warrant for the premises). Both testified as witnesses for the Commonwealth. Morris testified that Blakeman had placed the black plastic bag containing the tank filled with anhydrous ammonia inside the vehicle and that the flashlight and batteries belonged to Blakeman. Appellant admitted that he owned the starting fluid but claimed he kept it in the vehicle in case the car failed to start because of cold weather. The Commonwealth's expert, Detective Billy Edwards, testified that anhydrous ammonia, lithium, and ether (contained in starting fluid) are chemicals used in the manufacture of methamphetamine, but that methamphetamine cannot be manufactured by use of those chemicals alone. On the night of the arrest, Detective Edwards was called to the scene and destroyed the anhydrous ammonia by shooting a shotgun shell into the propane tank, thereby causing the anhydrous ammonia to escape and disperse.¹ The starting fluid, the flashlight, and the two additional batteries were retained as evidence and introduced at trial.

Appellant was convicted of one count of manufacturing methamphetamine, KRS 218A.1432(1)(b), and one count of possession of anhydrous ammonia in an unapproved container with intent to manufacture methamphetamine, KRS 250.489(1); KRS 250.991(2), both Class B felonies. Though the jury instructions permitted his convictions as either principal or accomplice, the verdict forms returned by the jury did not specify under which theory guilt was found. The jury also found Appellant to be a persistent felony offender in the second degree, KRS 532.080(2), and fixed his enhanced sentences at twenty years in prison for each offense to be served consecutively for a total of forty years. The trial court entered judgment and sentenced Appellant in accordance with the verdicts of the jury. He appeals to this Court as a matter of right. Ky. Const. § 110(2)(b).

We now vacate both of Appellant's convictions and his sentences because (1) the Commonwealth's own evidence specifically disproved the essential element that Appellant possessed the anhydrous ammonia with the intent to manufacture methamphetamine — either as principal or accomplice; and (2) even if possession of the starting fluid and flashlight batteries would suffice to convict of manufacturing methamphetamine under KRS 218A.1432(1)(b), that evidence should have been suppressed because it was obtained as a result of an unlawful detention.

FACTS.

Appellant resided with his wife and three-year-old daughter in an apartment in Leitchfield, the county seat of Grayson County. Morris and Blakeman resided in separate residences in Clarkson, approximately five miles east of Leitchfield via U.S. Highway 62, and approximately five miles north of Peonia via Kentucky Highway 88. Blakeman lived in a mobile home located directly behind his father's residence at 408 Peonia Road (Highway 88). At 3:00 p.m. on February 26, 2002, Detective Tony Willen of the Grayson County Sheriff's Department received a tip from a confidential informant that Blakeman and Morris had manufactured some methamphetamine and would be selling it at 408 Peonia Road. Willen prepared an affidavit for a search warrant that provided, inter alia:

On this date the affiant received information from a confidential informant that Doug Blakeman and Matt Morris would be at 408 Peonia Rd. selling the methamphetamine that the two manufactured earlier this date. The confidential informant has provided information in the past, on at least three separate occasions and this information was reliable and accurate each time. Previous information has resulted in convictions. Acting on the information received, the affiant conducted the following independent investigation:

The affiant has received information in the past from the public and from other police agencies that Mr. Blakeman and Matt Morris were involved in the manufacturing of controlled substances. Criminal records show that Doug Blakeman lives at 408 Peonia Rd. Detective Willen also has personal knowledge as to the location of the residence of Mr. Blakeman.

(Emphasis added.)

Based on this affidavit, a Grayson District Court Judge issued a search warrant that provided, inter alia:

[Y]ou are commanded to make immediate search of the premises known and numbered as the Doug Blakeman residence, at:

408 Peonia Rd.

Clarkson, Ky. 42726

And more particularly described as follows:

... The residence is a Trailer located on the east side of Peonia Rd. and the front of the residence faces west. The property has several outbuildings located on the property and also several vehicles. The numbers 408 are located on the mailbox that is directly in front of the house and is clearly visible from the roadway. The Trailer sets [sic] behind a white house owned by Blakeman's father.

And/or in a vehicle or vehicles described as:

Any vehicle registered to Doug Blakeman, Matt Morris or any vehicle on the property at the time this search warrant is executed.

And/or the person or persons of:

Doug Blakeman, Matt Morris or any person present at the time this search warrant is executed.

And the following described personal property: to search for evidence related to the offenses of manufacturing, trafficking and possession of Controlled Substances, To Wit: Methamphetamine. To search for the items used to manufacture methamphetamine to include but not limited to Lithium batteries, table salt, Anhydrous Ammonia, Ether, Ephedrine or Pseudoephedrine tablets, liquid fire, coffee filters, rubber gloves, gas masks and glassware. To search for items or material that is frequently used to package controlled substances to include but not limited to plastic sandwich bags, zip lock bags, small plastic envelopes and twist ties. To search for devices used to weigh controlled substances, either manual or electronic.

To search for records, written or electronic to include pagers, cellular phones, call identification devices, computers and disk/tapes for computers that shows [sic] the identity of those persons involved in the cultivation/distribution and purchasing of controlled substances. To search for moneys obtained from the sale of controlled substances, records written and electronic that shows [sic] where moneys are obtained and how moneys are expended and secreted. To search for items or devices used to introduce controlled substances into the human body to include but not limited to pipes, rolling papers, bongs and stems.

(Emphasis added.)

Appellant testified that when he arrived home from work on February 26, 2002, there was a note on his door to contact Morris. According to Appellant, he proceeded with his wife and child to Morris's residence in Clarkson, arriving at approximately 7:30 p.m. Both Morris and Blakeman were present. Blakeman did not own a motor vehicle and Morris's vehicle was temporarily disabled. Blakeman told Appellant that he had "fallen out" with his father and asked if Appellant would help him move some clothing and personal belongings from his mobile home in Peonia to a residence in Annetta, another small community in Grayson County. The most direct route from Clarkson to Annetta is through Peonia. Appellant, Blakeman, and Morris proceeded to 408 Peonia Road, leaving Appellant's wife and child at Morris's residence. After arriving at Blakeman's residence, Appellant engaged in a conversation with Blakeman's brother while Blakeman and Morris loaded various plastic bags and a black shoulder satchel into the vehicle.

Appellant admitted that he saw Blakeman load the black plastic bag subsequently found to contain the propane tank filled with anhydrous ammonia into the back seat, but claimed he believed it contained only Blakeman's clothing or other personal belongings. Detective Willen admitted at trial that the plastic bag was large enough to completely enclose the propane tank, but stated that the top of the tank was sticking out of the bag at the time he found it on the floorboard behind the driver's seat of the vehicle. Both Morris and Blakeman testified as witnesses for the Commonwealth, without objection, that "everyone in the vehicle knew" that the black plastic bag contained a propane tank filled with anhydrous ammonia. Morris further testified for the Commonwealth that he had made arrangements to "trade" the anhydrous ammonia to Joey Barnes for an unspecified amount of methamphetamine and that the...