Pate v. Com.

• Decision Date: 24 May 2007
• Docket Number: No. 2005-SC-000654-MR.,2005-SC-000654-MR.
• Citation: 243 S.W.3d 327
• Parties: Lawrence Elmer PATE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

243 S.W.3d 327

Lawrence Elmer PATE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 2005-SC-000654-MR.

Supreme Court of Kentucky.

May 24, 2007.

As Modified on Denial of Rehearing November 1, 2007.

As Corrected January 23, 2008.

Barbara Anderson, F.J. Anderson, Lexington, KY, Counsel for Appellant.

Gregory D. Stumbo, Attorney General, Ken W. Riggs, Assistant Attorney General, Frankfort, KY, Counsel for Appellee.

Opinion of the Court by Justice SCOTT.

Appellant, Lawrence Elmer Pate, was convicted of manufacturing methamphetamine (second or subsequent offense) and sentenced to twenty years' imprisonment. Appellant now appeals to this Court as a matter of right. Ky. Const. § 110(2)(b). For the reasons set forth herein, we affirm Appellant's conviction.

On September 17, 2002, Kentucky State Police Sergeant Thomas Lilly was tasked to execute an arrest warrant on Appellant. When Sergeant Lilly went to Appellant's residence, he observed a black pressure tank sitting outside Appellant's door with what appeared to be a green corroded fitting on the top and a section of pipe with a valve welded to the bottom. Sergeant Lilly testified that he had been trained to look for green corrosion on the outside of pressure tanks since it is a sign that the tank has been used to hold anhydrous ammonia (a component of methamphetamine manufacture).

When Lilly knocked on the door, Appellant's wife, Kathy Pate, answered. Sergeant Lilly told Mrs. Pate that he had a warrant for Appellant's arrest and inquired if Appellant was home. Mrs. Pate answered that Appellant was not in the apartment. Sergeant Lilly then asked Mrs. Pate if she minded if he came in and looked around to make sure Appellant was not in the apartment. Mrs. Pate consented. When Sergeant Lilly entered the apartment he observed numerous items in plain view. These items included: buckets with pressure fittings hooked to it and tubing attached, miscellaneous tubing, pipe fittings, a metal dish filled with metal fittings that was boiling on the stove, and two grey Tupperware bins that were filled with similar items. From his experience, Lilly believed that he had observed all of the equipment, utensils, and tubing necessary to manufacture methamphetamine in and around Appellant's residence. In fact, as Sergeant Lilly entered the apartment, he asked Mrs. Pate, "What is all this stuff?" She answered that Lilly knew what it was, and then stated that it was the equipment that her husband, Appellant, used to make methamphetamine. Because he was concerned with the possible health hazard located in the apartment, Sergeant Lilly immediately called for backup. The evidence was subsequently seized and used against Appellant at trial.

After securing the evidence, Sergeant Lilly eventually found Appellant. Appellant was watching the seizure from a nearby apartment. When Lilly told Appellant he had a warrant for his arrest, Appellant complained that the items seized from the apartment were his and that they were being taken illegally. He also blurted out that the officers would find no methamphetamine residue on the items.

Appellant and Mrs. Pate were indicted jointly for complicity to manufacture methamphetamine. Mrs. Pate pled guilty to facilitation and agreed to testify against Appellant at trial. Appellant was subsequently found guilty by jury of manufacturing methamphetamine. He now appeals to this Court and we affirm.

I. There were no unreasonable searches and seizures within Appellant's apartment.

Appellant claims that the seizure of the items at his apartment violated his right to be free from unreasonable searches and seizures. Citing Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968), he first claims there is not substantial evidence in the record to support the trial court's ruling that Mrs. Pate's consent to search was valid. We disagree.

"Whether consent is the result of express or implied coercion is a question of fact . . . and thus, we must defer to the trial court's finding if it is supported by substantial evidence." Krause v. Commonwealth, 206 S.W.3d 922, 924 (Ky.2006). Appellant claims that since Sergeant Lilly told Mrs. Pate that he had an arrest warrant, Mrs. Pate's consent to search was nothing more than mere "acquiescence to a claim of lawful authority." Bumper, supra, at 549, 88 S.Ct. 1788.

However, the facts supporting the holding in Bumper, supra, differ significantly from the facts supporting the trial court's ruling in this case. In Bumper, the law enforcement officer claimed "authority to search [the] home under a warrant, [and] announce[d] in effect that the occupant ha[d] no right to resist the search." Id. at 550, 88 S.Ct. 1788. Here, Sergeant Lilly did no such thing. While he did tell Mrs. Pate that he had a warrant for Appellant's arrest, he did not claim authority to search under the warrant or imply in anyway that Mrs. Pate had no right to resist a search of her home.

Sergeant Lilly simply asked whether Mrs. Pate minded if he looked around the apartment to confirm that. Appellant was not there. The trial court specifically found "no threats, no force, no assertion of custody over, or a deception practiced upon Mrs. Pate or any other circumstances which would vitiate the voluntariness of her consent." Merely stating that one has a warrant for another's arrest, without any further implication that the government actor is asserting lawful authority to search pursuant to that warrant, does not amount to coercion pursuant to the holding in Bumper, supra. There is substantial evidence in the record to support the trial court's ruling that Mrs. Pate's consent was voluntary and not coerced.

Once inside the apartment, Appellant next alleges that Sergeant Lilly had no right to seize the items without a search warrant. He contends the plain view exception to the warrant requirement is inapplicable since the incriminating character of the items was not "immediately apparent." See Hazel v. Commonwealth, 833 S.W.2d 831, 833 (Ky.1992)(citing Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971)). We find such a contention to be without merit.

Sergeant Lilly testified that from his experience, he recognized the equipment in and around Appellant's residence as the type which is commonly used during the manufacture of methamphetamine. Moreover, when Lilly asked Mrs. Pate what all of it was, she admitted that it was equipment used to make methamphetamine. Under these circumstances, there is no doubt that probable cause existed to believe that the items were associated with criminal activity and thus, subject to immediate seizure. See Texas v. Brown, 460 U.S. 730, 741-742, 103 S.Ct. 1535, 1543, 75 L.Ed.2d 502 (1983) ("[t]he seizure of property in plain view involves no invasion of privacy and is presumptively reasonable, assuming that there is probable cause to associate the property with criminal activity").

Finally, Appellant alleges that even if the items in plain view were immediately incriminating, items contained in two grey Tupperware bins were not in plain view, and therefore, the plain view exception to the warrant requirement could not have applied to those items. Citing United States v. McLevain, 310 F.3d 434 (6th Cir.2002), he additionally argues that the plain view exception to the warrant requirement cannot be utilized to justify a warrantless seizure in the absence of exigent circumstances. Id. at 443 ("this requirement of a lawful right of access means generally an officer should get a warrant if possible before he seizes an item in plain view").

Without addressing whether Appellant's interpretation of McLevain, supra, is correct, it is enough for us to simply state that exigent circumstances did exist to justify the warrantless seizure of the equipment in Appellant's apartment. Another exception to the warrant requirement arises when, considering the totality of the circumstances, an officer reasonably believes that an immediate search or seizure is necessary in order to avoid a "risk of danger to police or others." United States v. Atchley, 474 F.3d 840, 850 (6th Cir.2007) (citing United States v. Plavcak, 411 F.3d 655, 661 (6th Cir.2005)), see also, United States v. Bishop, 338 F.3d 623, 628-629 (6th Cir.2003)(police may seize objects of inherently dangerous nature if there are articulable facts demonstrating that it poses a danger to police or others).

In this case, Sergeant Lilly walked into what he believed to be a methamphetamine lab. There was equipment everywhere, a pot containing metal fixtures actively boiling on the stove, and a resident who confirmed that the equipment was used to manufacture methamphetamine. In light of these circumstances, it was objectively reasonable for Sergeant Lilly to believe that immediate seizure of any and all items associated with the illegal activity, including the items in the Tupperware bins, was necessary in order to avoid a "risk of danger to police or others." Atchley, 474 F.3d at 850 ("cases involving methamphetamine labs where other people are in the vicinity . [pose] dangers associated with the cooking of methamphetamine and the storage of chemicals used to make methamphetamine"); see also United States v. Layne, 324 F.3d 464, 470-71 (6th Cir.2003)(noting the "inherent dangers of methamphetamine manufacturing"); United States v. Rhiger, 315 F.3d 1283, 1290-1291 (10th Cir.2003) ("reasonable grounds existed for the agents to believe there was an immediate need to protect the public by entering the home and discontinuing the lab's production"); United States v. Spinelli, 848 F.2d 26, 30 (2d Cir.1988) (due to flammable and explosive nature of chemicals used to manufacture methamphetamine, officers were justified in violating knock and announce rule to enter residence alleged to contain methamphetamine lab).

It is irrelevant that no toxic chemicals or methamphetamine residue were ultimately found in the apartment or on the...