Posey v. Com.

• Decision Date: 23 February 2006
• Docket Number: No. 2004-SC-0060-DG.,2004-SC-0060-DG.
• Citation: 185 S.W.3d 170
• Parties: Ricky L. POSEY, Appellant v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

185 S.W.3d 170

Ricky L. POSEY, Appellant v. COMMONWEALTH of Kentucky, Appellee.

No. 2004-SC-0060-DG.

Supreme Court of Kentucky.

February 23, 2006.

COPYRIGHT MATERIAL OMITTED

J. David Niehaus, Daniel T. Goyette, Deputy Appellate Defender, Louisville, KY, Attorney for Appellant.

Gregory D. Stumbo, Attorney General, George G. Seelig, Assistant Attorney General, Office of Attorney General, Criminal Appellate Division, Frankfort, KY, Attorneys for Appellee.

Opinion of the Court by Justice GRAVES.

Appellant entered conditional guilty pleas to Trafficking in Marijuana (subsequent offense), Possession of a Firearm by a Convicted Felon, Misdemeanor Possession of a Controlled Substance, and Possession of Drug Paraphernalia in Jefferson Circuit Court. For these crimes, Appellant was sentenced to four years of probation with six months work release. Pursuant to his conditional pleas, Appellant took a direct appeal to the Court of Appeals. RCr 8.09. In an unpublished opinion, the Court of Appeals affirmed his convictions in all respects. Posey v. Commonwealth, 2003 WL 23008779, 02-CA-2519-MR, (rendered December 24, 2003). Appellant filed a petition for discretionary review in this Court, which we granted. CR 76.20. For the reasons set forth herein, we now affirm Appellant's convictions, but for reasons not stated in the Court of Appeals' opinion.

On January 6, 2002, two Louisville police officers attempted to serve an outstanding arrest warrant on an individual named James Powell. Powell's last known address was 1565 South Ninth Street. When the officers arrived at that address and knocked on the door, Appellant, Ricky L. Posey, appeared at the door. Appellant, who was standing immediately inside the threshold of the home, opened the door and began to talk with one of the officers. The other officer soon joined their conversation and as they were conversing with Appellant on the porch, they observed shotgun shells and individually wrapped packets of marijuana inside the home. They also smelled an odor of marijuana emanating from the home.

From these observations, the officers decided to step inside Appellant's home (through the open door) and arrest him for possession of a controlled substance. They immediately seized the marijuana and the shotgun shells in plain view and then proceeded to search the rest of the home. They found a gun lying on the floor in an adjoining room in plain view. In addition, they found a set of electronic scales and a bottle of codeine cough syrup.

Appellant was indicted for Trafficking in Marijuana (less than eight ounces) while in Possession of a Firearm (subsequent offense¹), Possession of a Firearm by a Convicted Felon, Misdemeanor Possession of a Controlled Substance, and Possession of Drug Paraphernalia. Appellant filed a pretrial motion to suppress all of the evidence seized during the search of his home. Appellant also filed a motion to dismiss the firearm possession charge, arguing that KRS 527.040 (barring convicted felons from possessing handguns) was unconstitutional. The trial court denied both of Appellant's motions. Appellant subsequently entered conditional pleas of guilty for all charges, reserving for appeal the suppression issue and the constitutionality of KRS 527.040.

The Court of Appeals affirmed the trial court's rulings, holding that the officers' entry into the home for the purposes of arresting Appellant and seizing contraband in plain view did not violate the Fourth Amendment. The Court of Appeals further ruled KRS 527.040 constitutional, relying on this Court's decision in Eary v. Commonwealth, 659 S.W.2d 198 (Ky.1983). We accepted discretionary review and now affirm on both issues.

I. Fourth Amendment Issue

Appellant first argues the officers violated his Fourth Amendment rights when they entered his home without consent and without a warrant for the purpose of seizing evidence and arresting him for a misdemeanor crime.² He contends that while the police would have been justified in arresting him and seizing the marijuana had he been located in a public place, see KRS 431.005(1)(d) (permitting warrantless arrests for misdemeanors committed in the officer's presence), the Fourth Amendment barred such an arrest and seizure in his home without a warrant or consent. Because we believe exigent circumstances justified entry into Appellant's home for the purpose of preventing the imminent destruction of evidence, we reject Appellant's argument that his Fourth Amendment rights were violated in this instance.³

Absent exigent circumstances, it is not reasonable for a law enforcement agent or officer to enter a person's home without consent or a warrant. Payton v. New York, 445 U.S. 573, 590, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980); Talbott v. Commonwealth, 968 S.W.2d 76, 81 (Ky. 1998). "The Commonwealth bears the burden to demonstrate that exigent circumstances were present justifying the warrantless entry." Commonwealth v. McManus, 107 S.W.3d 175, 177 (Ky.2003).

"Destruction of evidence is a recognized exigent circumstance creating an exception to the warrant requirement." Id. Where officers have probable cause to believe that a crime has occurred and that evidence from that crime is in imminent danger of being destroyed, it is reasonable for law enforcement officers to secure the place where the evidence is located in order to prevent its imminent destruction. Id. (citing Segura v. United States, 468 U.S. 796, 810, 104 S.Ct. 3380, 3388, 82 L.Ed.2d 599 (1984) (characterizing the preservation of evidence in danger of imminent destruction as a "now or never" situation)).

In this case, the marijuana was in plain view. As such, there is no dispute as to whether the officers had probable cause to believe that Appellant was in possession of a controlled substance. Moreover, since the contraband was in plain view, it was also reasonable for them to believe that the drugs were in imminent danger of being destroyed in the absence of immediate action to secure the evidence. See Ker v. California, 374 U.S. 23, 28, n. 3, 83 S.Ct. 1623, 1627, n. 3, 10 L.Ed.2d 726 (1963) (referring to the ease and speed with which drugs can be destroyed) and Illinois v. McArthur, 531 U.S. 326-327, 121 S.Ct. 946, 948, 148 L.Ed.2d 838 (2001) (police had good reason to fear that, unless restrained, defendant would destroy drugs before they could return with a warrant). Therefore, the circumstances in this case were exigent and as such, the officers acted reasonably when they entered the home without a warrant, restrained and arrested Appellant, and then secured the evidence which was in plain view (i.e. the marijuana and the shot gun shells).

Appellant argues that while the imminent destruction of evidence can present exigent circumstances in the case of felony crimes, they should not constitute exigent circumstances in the case of misdemeanor crimes (the possession of marijuana in this case was a misdemeanor crime). Appellant cites to Welsh v. Wisconsin, 466 U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984) as support for his position. In that case, the United States Supreme Court held that likely imminent destruction of evidence did not present exigent circumstances justifying warrantless entry into a home where the offense was non-jailable and civil in nature. Id. at 754, 104 S.Ct. 2091. The Welsh Court explained that the government's interest in arresting or securing evidence for a purely "minor offense" does not outweigh the presumption of unreasonableness for warrantless entries into a person's home. Id. at 752, 104 S.Ct. 2091.

However, misdemeanors in Kentucky are more than mere civil offenses; they are crimes which can subject offenders to imprisonment. In this case, simple possession of marijuana is a Class A misdemeanor, KRS 218A.1422, and those found guilty of committing that crime are subject to as much as twelve (12) months imprisonment, KRS 532.090. The fact that conviction of misdemeanor crimes may result in the loss of one's freedom for as much as one year belies the contention that such crimes are "minor." As this case is clearly distinguishable from the facts in Welsh, supra, we find no merit in Appellant's contention that the imminent destruction of misdemeanor crime evidence is not sufficient to constitute exigent circumstances under the Fourth Amendment. See Illinois v. McArthur, 531 U.S. 326, 336, 121 S.Ct. 946, 952, 148 L.Ed.2d 838 (2001) (distinguishing between "jailable" and "nonjailable" offenses when determining importance of law enforcement's need to preserve evidence of those crimes); Ingram v. City of Columbus, 185 F.3d 579, 587 (6th Cir.1999) ("Under Welsh, courts must look to the state's penalty scheme to determine the seriousness of a state law offense; if the suspect has committed an offense `for which no imprisonment is possible,' the offense is `minor.'"); United States v. Grissett, 925 F.2d 776, 778 (4th Cir.1991) (exigent circumstances existed to justify warrantless entry into motel room where police smelled burning marijuana while standing outside); Randolph v. State, 152 S.W.3d 764, 771-72 (Tex.App. 2004) ("[I]f an offense, either a misdemeanor or a felony, is punishable by confinement and there are exigent circumstances, then it is serious enough to justify the warrantless entry of a constitutionally protected area."); Cherry v. Commonwealth, 44 Va.App. 347, 605 S.E.2d 297, 305 (2004) (police officer's warrantless entry into residence based on exigent circumstances after smelling burning marijuana was reasonable, even though marijuana possession was only a misdemeanor offense); see also, KRS 431.005(1)(d) (authorizing peace officers to make warrantless arrests of persons committing misdemeanors in their presence); Atwater v. City of Lago Vista, 532 U.S. 318, 340, 121 S.Ct. 1536, 1550, 149 L.Ed.2d 549 (2001) (noting that bulk of state and federal law permits warrantless arrests of persons committing misdemeanors in their presence). But see, United...