Riley v. Com.
| Decision Date | 22 May 2003 |
| Docket Number | No. 2001-SC-0753-MR.,2001-SC-0753-MR. |
| Citation | 120 S.W.3d 622 |
| Parties | Freeland RILEY, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Appellant Freeland Thomas Riley was convicted by a McCracken Circuit Court jury of one count of possession of marijuana and one count of possession of drug paraphernalia, both Class A misdemeanors. KRS 218A.1422(2); KRS 218A.500(5). Each offense was enhanced to a Class D felony by the jury's additional finding that Appellant was in possession of a firearm at the time the offenses were committed. KRS 218A.992(1)(b). The marijuana charge was further enhanced by the jury's finding that he was a persistent felony offender in the first degree ("PFO first-degree").1 KRS 532.080(3). Appellant was sentenced to a total of twenty years in prison and appeals to this Court as a matter of right. Ky. Const. § 110(b).
Appellant had been previously convicted on December 17, 1987, in the Ballard Circuit Court of burglary in the third degree and felony theft for which he was sentenced to three years in prison. He was subsequently convicted on July 25, 1994, in the McCracken Circuit Court of one count of trafficking in a controlled substance in the first degree, three counts of trafficking in marijuana (less than eight ounces), and two counts of trafficking in marijuana (eight ounces or more, less than five pounds) for which he was sentenced to thirteen years in prison, subject to 380 days credit for time already served. He was released on parole on July 24, 1997, and moved into a mobile home behind his father's residence. As conditions of his parole, Appellant agreed, inter alia, that (1) he would not "purchase, own or have in [his] possession or control" a firearm, ammunition, or other dangerous instrument; (2) he would not use or possess any alcoholic beverages, narcotics, or controlled substances; (3) he would allow his parole officer to visit his residence at any time; and (4) the officer could conduct a search of his person or residence if the officer had reason to believe that he may have "illegal drugs, alcohol, volatile substance, or other contraband" on his person or property.
Around nine p.m. on November 16, 1999, Steve Campbell, a McCracken County probation and parole officer, accompanied by a deputy sheriff and another assistant, made a visit to Appellant's residence. The visit was in accordance with "Operation Night Vision," a cooperative agreement between the McCracken County probation and parole office and local police authorities by which parole officers would make home visits to parolees' residences at night under police protection. If any contraband was confiscated during the visit, the police authorities would process and retain custody of it for possible use in any subsequent legal proceedings. Officer Campbell initiated the visit by knocking on Appellant's door. When Appellant opened the door, Campbell advised that he was performing a "routine visit" as part of "Operation Night Vision" and that the additional officers were there for his (Campbell's) protection. Appellant allowed the officers to enter, then sat down on a chair near the front door. Immediately upon entry, Campbell observed a 30.06 rifle and a Remington twelve gauge shotgun laying on a bassinet within six to eight feet of where Appellant was sitting. Appellant claimed that the guns belonged to his father, who was living with him at the time, and volunteered that there were additional weapons located in his father's bedroom. Appellant then requested that the officers allow his sister-in-law to come to the residence and remove the weapons.
Suspecting that Appellant might be in possession and control of additional weapons, Campbell opened the drawer of an end table next to the chair on which Appellant was sitting and discovered a decorative tin can. Upon shaking the can and contemporaneously observing Appellant's change of demeanor as he did so, Campbell suspected that the can contained contraband. Upon opening the can, Campbell discovered seven bags containing approximately 46.5 grams of marijuana, rolling papers, a razor blade, and a set of "finger" measuring scales. Appellant then told Campbell that the "rest of the marijuana" was in a potato bin in his kitchen. Campbell proceeded to the bin and discovered two ziplock bags containing approximately 114.5 grams of marijuana. After Campbell had placed Appellant under arrest for parole violation, KRS 439.430(1), the officers conducted an extended search of the mobile home and recovered twelve additional firearms.
On December 30, 1999, a McCracken County grand jury issued a five-count indictment charging Appellant with (1) trafficking in marijuana less than eight ounces, second offense, while in possession of a firearm; (2) possession of a handgun by a convicted felon; (3) possession of a firearm by a convicted felon; (4) possession of drug paraphernalia while in possession of a firearm; and (5) PFO first-degree. (Counts 2 and 3 were severed for purposes of trial and count 3 was ultimately dismissed).
After an evidentiary hearing, the trial court overruled Appellant's motion to suppress the evidence seized from his residence. A petit jury ultimately acquitted Appellant of trafficking in marijuana under count 1 of the indictment but convicted him of the lesser-included offense of possession of marijuana, and also convicted him under count 4 of possession of drug paraphernalia. The jury further found that Appellant was in possession of a firearm at the time both offenses were committed and that he was a persistent felony offender in the first-degree. He was sentenced to twenty years imprisonment.
On appeal, Appellant asserts (1) the evidence obtained during the search of his residence should have been suppressed as the fruits of an illegal search; (2) there was insufficient evidence to support the firearm enhancement of the underlying offenses (thus, his convictions were for misdemeanors, which could not trigger PFO enhancement); (3) the jury should not have been instructed on PFO first-degree because the indictment charged him only with being a PFO in the second degree, and one of the prior convictions upon which the PFO enhancement was premised was invalid because he was never indicted for that offense; and (4) a twenty-year sentence for a misdemeanor offense (possession of marijuana) constitutes cruel and unusual punishment. For reasons hereinafter explained, we affirm.
Appellant claims that the search of his residence violated the Fourth Amendment to the United States Constitution and Section 10 of the Kentucky Constitution. He asserts that although his possession of the two firearms violated the express conditions of his parole agreement, the officers could not search the remainder of his residence without a warrant because they did not have a "reasonable suspicion" that a search of the residence would uncover "illegal drugs, alcohol, volatile substance, or other contraband." Alternatively, he asserts that the search was illegal because Officer Campbell's visit on the night in question was not "routine" but, rather, Campbell was acting as a "stalking horse" for the sheriff's department, i.e., the probation and parole officers were merely "puppets" in a coordinated police investigation meant to circumvent the strictures of the Fourth Amendment. Both arguments are meritless.
We note initially that Appellant only challenges the seizure of those items that were not in "plain view." Coolidge v. New Hampshire, 403 U.S. 443, 465, 91 S.Ct. 2022, 2037, 29 L.Ed.2d 564 (1971); Hazel v. Commonwealth, Ky., 833 S.W.2d 831, 833 (1992). He concedes in his brief that he "opened the door and let in" the officers, a concession consistent with the testimony at trial and at the suppression hearing; thus, the officers were lawfully inside the residence when they observed the two shotguns laying on the bassinet in Appellant's living room. The only issue is whether the search, conducted after the officers discovered the guns in plain view and after Appellant volunteered that there were other firearms in the mobile home, was valid.
Although a parolee's home, like any other, "is protected by the Fourth Amendment's requirement that searches be `reasonable'," Griffin v. Wisconsin, 483 U.S. 868, 873, 107 S.Ct. 3164, 3168, 97 L.Ed.2d 709 (1987), Appellant's status as a parolee diminished his expectation of privacy. Id. at 874, 107 S.Ct. at 3169; see Wilson v. Commonwealth, Ky., 998 S.W.2d 473, 474 (1999) (). Thus, because of the "special needs" presented by law enforcement, a state may issue regulations allowing a probation or parole officer to search a probationer's or parolee's property without a warrant. Griffin, supra, at 873-74, 107 S.Ct. at 3168-69; Wilson, supra, at 474 n. 1. However, such regulations and the searches conducted pursuant thereto are still subject to the Fourth Amendment's general requirement of reasonableness. Griffin, supra, at 873-74, 107 S.Ct. at 3168-69.
In United States v. Knights, 534 U.S. 112, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001), the Court further elaborated upon what is "reasonable" in the context of a search of a probationer's or parolee's residence. The Court held in Knights that a warrantless search of a probationer's residence is reasonable under the Fourth Amendment when the search is supported by a reasonable suspicion that the probationer is engaged in criminal activity and such a search is authorized by a condition...
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