Dallis Abney v. Commonwealth of Kentucky ( 2016 )

RENDERED: MARCH 17, 2016
TO BE PUBLISHED
$uprrittr (Court of
2014-SC-000445-DG
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113A7_61-1-tG, VA.04.QTroc);
DALLIS ABNEY APPELLANT
ON REVIEW FROM COURT OF APPEALS
V. CASE NO. 2013-CA-000026-MR
ESTILL CIRCUIT COURT NO. 11-CR-00074
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT BY JUSTICE NOBLE
AFFIRMING
This case involves the validity of a search warrant that was issued based
on an affidavit recounting observations made by Cody Abney, Appellant Dallis
Abney's son, of drug-trafficking activity by Appellant. The affidavit did not
state the time and date when the drug-trafficking activity was observed. In a
1961 opinion, this Court's predecessor held that a search-warrant "affidavit is
defective unless it discloses the time at which the observation was made ... if
the affidavit shows on its face that it is based on information or belief." Henson
v. Commonwealth, 347 S.W.2d 546, 546 (Ky. 1961). Appellant claims this rule
applies and requires suppression of the evidence obtained pursuant to the
search warrant.
The issue before this Court is whether Henson still presents a viable rule,
or whether it has been replaced by the totality-of-the-circumstances test of
Illinois v. Gates, 462 U.S. 213 (1983), and Beemer v. Commonwealth, 665
S.W.2d 912 (Ky. 1984). Both the trial court and Court of Appeals found that
the affidavit was sufficient to support issuance of a warrant under the totality
of the circumstances test. This Court agrees that the validity of a search-
warrant affidavit and resulting warrant is determined under the totality of the
circumstances, and is not controlled by Henson's bright-line rule.
I. Background
On August 29, 2011, Powell County Deputy Sheriff Matt Reed was
notified by the Powell County Sheriff that he was following a vehicle that
appeared to be driven by someone under the influence. Deputy Reed caught up
to the sheriff and took up following the vehicle. After seeing the vehicle cross
the center line several times, he initiated a traffic stop. The driver of the vehicle
was Cody Abney, who did not have a driver's license. Also in the vehicle were
the Appellant and a female, Kim Gould. Cody is the Appellant's son.
Deputy Reed had the parties exit the vehicle, and asked for permission to
search the car, which was given. The deputy claimed that the car smelled of
marijuana, and he found narcotics not in their original container in Ms.
Gould's purse. When Appellant was asked to produce his driver's license, he
pulled the driver's license, approximately $6,000 in cash, and some other cards
out of his pocket. He also pulled out several small, crushed green leaves that
the deputy believed to be marijuana. Although this substance was collected as
evidence, it was never analyzed.
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Appellant was arrested and charged with trafficking in marijuana. Gould
was arrested on the narcotics charge. Cody, however was not arrested,
although he agreed to go to the police station to talk to officers. At the police
station, father and son were separated, and Cody was kept at the station for
several hours.
Because he had previous reports that Appellant was trafficking in drugs
from his home, Deputy Reed asked Cody if there was drug trafficking or other
illegal activity going on at Appellant's residence. Deputy Reed testified at the
suppression hearing that Cody admitted seeing the Appellant weighing
marijuana on scales, and seeing money and marijuana in a safe. He also
testified that Cody gave a detailed description about how to find approximately
20 pounds of marijuana in the Appellant's garage. Cody denied making most of
this statement when he testified at the suppression hearing.
Although he had been arrested in Powell County, the Appellant's
residence was in Estill County. Consequently, the Kentucky State Police were
asked to obtain a warrant and search the residence. After hearing Deputy
Reed's version of what Cody had said, Trooper Joshua Brewer asked Deputy
Reed to get Cody on the phone to verify the information. At the suppression
hearing, the trooper testified that the person answering the phone identified
himself as Cody Abney, and gave the Appellant's address as his residence. This
person told the trooper that there were approximately 15 pounds of marijuana
in his house and garage at the time, and that his father hid marijuana all over
the house. Trooper Brewer then completed the Affidavit for Search Warrant
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form AOC-336 based on this information and presented it to an Estill County
district judge who issued the search warrant.
In the search of the Appellant's home, a large quantity of marijuana and
prescription pills was found, leading to the Appellant being charged with
trafficking in marijuana in an amount greater than five pounds; trafficking in a
controlled substance, second degree, first offense; possession of a controlled
substance, first degree, first offense; possession of drug paraphernalia;
prescription controlled substance not in proper container, first offense; and two
counts of possession of a controlled substance, third degree.
Appellant moved to suppress this evidence, claiming that the search
warrant was invalid because the affidavit on which it was based was fatally
flawed. As noted above, Appellant claimed that the affidavit violated Henson v.
Commonwealth because it did not state when Cody had observed his father's
illegal activity. The trial court declined to apply Henson's seemingly bright-line
rule and instead evaluated the affidavit and warrant under the totality of the
circumstances. The court concluded that the affidavit showed sufficient
probable cause to support issuance of the warrant and, as a result, denied the
motion to suppress.
Appellant entered a conditional guilty plea to trafficking in marijuana
greater than five pounds, possession of a controlled substance, second degree;
and possession of a controlled substance, first degree. The other counts were
dismissed. The court sentenced Appellant to concurrent sentences totaling five
years in prison and a $1,000 fine, but allowed him to remain free on bond
pending appeal.
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Appellant appealed, and the lower court was affirmed by the Court of
Appeals. This Court took discretionary review to address the viability of Henson
and to clearly state the appropriate standard of review as to the sufficiency of
affidavits presented in support of warrant requests.
H. Analysis
Henson v. Commonwealth has never been expressly overruled by this
Court, and it is consequently the basis of Appellant's argument today. In that
case, written in 1961, the Court of Appeals, then the highest appellate court,
held in an opinion by Judge John Palmore that the rule that a search-warrant
"affidavit is defective unless it discloses the time at which the observation was
made definitely applies in Kentucky if the affidavit shows on its face that it is
based on information and belief." Henson, 347 S.W.2d at 546. The affidavit in
that case had stated that the defendant "now has in possession" the
contraband (liquor) and that the knowledge of the possession was gained by
lolbservation, in person." Id. Despite the strength of that statement, the Court
found that when the possession occurred had to be specifically stated in order
for probable cause to issue a warrant to exist. The Court stated:
The necessity for a simple statement of how and when an allegedly
existing fact was observed could be unreasonable or burdensome
only to one who actually does not have enough reliable information
to justify the warrant. The onus of being specific is little enough
price for the suspension of so valuable a right.
Id. at 548.
This extremely strong statement of what is necessary for probable cause
to issue a search warrant remained the law of the Commonwealth for many
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years. It expresses a concern over the staleness of the information used to
obtain the warrant, which is, no doubt, a valid consideration.
But technical requirements for warrants and their supporting affidavits
have largely been done away with. Indeed, the U.S. Supreme Court has noted
that the "Nechnical requirements of elaborate specificity once exacted under
common law pleading have no proper place in this area." Illinois v. Gates, 462
U.S. 213, 235 (1983) (quoting United States v. Ventresca, 380 U.S. 102, 108
(1965)). In their place, the Court has evaluated search-warrant affidavits (and
whether they establish probable cause) under a totality-of-the-circumstances
analysis. Id. at 238. As stated in Gates:
The task of the [warrant] issuing magistrate is simply to make a
practical, common-sense decision whether, given all the
circumstances set forth in the affidavit before him, including the
"veracity" and "basis of knowledge" of persons supplying hearsay
information, there is a fair probability that contraband or evidence
of a crime will be found in a particular place. And the duty of a
reviewing court is simply to ensure that the magistrate had a
"substantial basis for ... conclud[ing]" that probable cause existed.
Id. at 238-39 (second alteration in original). This Court adopted Gates' totality-
of-the-circumstances approach in Beemer v. Commonwealth, 665 S.W.2d 912,
915 (Ky. 1984).
Gates was specifically about information from anonymous informants.
Prior to Gates, the United States Supreme Court analyzed the sufficiency of
search-warrant affidavits based on such information under a stringent two-
prong test requiring that the basis of the informant's knowledge be known and,
when the informant was anonymous, that his reliability must be established,
as set out in Aguilar v. Texas, 378 U.S. 108 (1964) and Spinelli v. United States,
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393 U.S. 410 (1969). But as the Court expressed in Gates, there are sound
reasons why such strict specificity is not practical.
Affidavits are frequently drafted by non-lawyers, who cannot be expected
to keep abreast of "each judicial refinement" relating to probable cause. Gates,
462 U.S. at 235. Affidavits are often done in haste. Id. And most warrants are
issued "on the basis of nontechnical, common-sense judgments of laymen
applying a standard less demanding than those used in more formal legal
proceedings." Id. at 235-36. And, at any rate, how do the technical refinements
actually assist a judge in determining probable cause?
According to the Court in Gates, such hypertechnical requirements
disincentivize police officers from obtaining warrants, even though the
Constitution states a clear preference for searches conducted under a warrant.
Instead, the Court speculated, officers "might well resort to warrantless
searches, with the hope of relying on consent or some other exception to the
warrant clause that might develop at the time of the search." Id. at 236. Also,
allowing warrants on a reasonable rather than a hypertechnical basis, thus
resulting in more warrants, "reduces the perception of unlawful or intrusive
police conduct," id., because the warrant gives the assurance that there is a
need to search, that the search is limited, and that it is being done under
lawful authority.
The Gates Court recalled that the traditional standard for review of an
issuing magistrate's probable-cause determination was whether there was a
substantial basis to believe that evidence of wrongdoing would be uncovered by
the search, and that this had previously satisfied Fourth Amendment
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requirements. Id. (citing Jones v. United States, 362 U.S. 257 (1960)). The
Court thus concluded: "We think reaffirmation of this standard better serves
the purpose of encouraging recourse to the warrant procedure and is more
consistent with our traditional deference to the probable cause determinations
of magistrates than is the two-pronged test."' Id. at 237.
Although Gates was specifically about the two-pronged Aguilar-Spinelli
test, its totality-of-the-circumstances approach has been applied more broadly.
See, e.g., Florida v. Harris, 133 S. Ct. 1050, 1055 (2013) (applying Gates to dog-
sniff cases). Now, all determinations of probable cause, which is necessary for
issuance of a search warrant, "depend[] on the totality of the circumstances,"
Maryland v. Pringle, 540 U.S. 366, 371 (2003), rather than narrower, specific
rules. And thus, since this Court adopted the Gates standard, this Court has
applied it repeatedly to all manner of probable-cause determinations. See, e.g.
Commonwealth v. Eckerle, 470 S.W.3d 712, 723 (Ky. 2015) (self-defense claims)
Rawls v. Commonwealth, 434 S.W.3d 48, 58 (Ky. 2014) (warrant based on
confidential informant's tip); Commonwealth v. Walker, 729 S.W.2d 440, 441
(Ky. 1987) (warrant based on officer's observations and controlled buy).
The law is clear: "the Fourth Amendment's requirement of probable
cause for the issuance of a search warrant is to be applied, not according to a
fixed and rigid formula, but rather in light of the 'totality of the circumstances'
made known to the magistrate." Massachusetts v. Upton, 466 U.S. 727, 728
(1984). That is the only standard for reviewing the issuance of a search
warrant. See Commonwealth v. Pride, 302 S.W.3d 43, 47 (Ky. 2010) (stating
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that "the standard for reviewing the issuance of a search warrant is provided
by Illinois v. Gates").
Thus, to the extent that Henson applies more specific requirements to a
search-warrant affidavit and, in effect, requires a more rigorous review, it is
overruled. A search-warrant affidavit is not rendered invalid simply because it
does not include the time and date of any observations on which it relies,
provided the totality of the circumstances indicates with reasonable reliability
that the evidence sought is located in the place to be searched. That said, it is
always the better practice to include such information, as it forecloses any
complaint about the staleness of the information.
As to this case, we must hold that the trial court applied the correct
standard. We further hold that the trial court did not err in overruling
Appellant's motion to suppress because the search warrant was adequately
supported by probable cause.
The pertinent part of the affidavit supporting the warrant request states:
The affiant was contacted by Deputy Matt Reed of the Powell
County Sheriff's Department. Deputy Reed indicated that during a
traffic stop in Powell County he observed a strong smell of
marijuana in a vehicle owned by Dallis Abney. He observed
marijuana mixed in with money that Dallis Abney had pulled from
his pant's [sic] pocket. Upon interviewing Cody Abney Deputy Reed
learned that there was a significant amount of marijuana stored at
the above residence.
The Affiant conducted an interview with Cody Abney. Based
on the interview the Affiant learned that Cody Abney lived at the
above described residence with his father, Da11's [sic] Abney. Cody
Abney indicated that Dallis Abney keeps approximately 10 to 20
pounds of marijuana in the safe at the home along with proceeds
from the sale of marijuana. He indicates Dallis Abney sells the
marijuana out of the house and that he keeps the marijuana in a
safe that is weighed out on scales as he sells it.
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Although Cody later disputed the affidavit's claims, it nonetheless clearly
contains sufficient facts to support a finding of probable cause. At the
suppression hearing, both Deputy Reed and Trooper Brewer testified that Cody
gave his address as Appellant's residence. Both testified that Cody had not only
said that his father had a large quantity of marijuana in the home, but that he
also told them where it,could be found. Trooper Brewer further testified that
Cody told him there was probably 15 pounds of marijuana in his house and
garage at the time. The warrant was obtained and executed immediately
thereafter. And although Cody disputed this at the suppression hearing, the
trial court gave a logical rationale—Cody's fear for the depth of trouble his
father was in—as to why he believed the officers instead of Cody. Given the
close relationship between the informant and Appellant, the opportunity the
informant had to see the contraband in the home, and the immediacy of
proceeding to obtain the warrant, there is an evident "substantial basis" under
the totality of the circumstances to believe that the search would produce
"evidence of wrongdoing."
III. Conclusion
For the foregoing reasons, the Court of Appeals is affirmed.
All sitting. All concur.
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COUNSEL FOR APPELLANT:
Tucker Richardson III
Baldani, Rowland 86 Richardson
300 West Short Street
Lexington, Kentucky 40507
COUNSEL FOR APPELLEE:
Andy Beshear
Attorney General
James Hays Lawson
Assistant Attorney General
Office of Criminal Appeals
Office of the Attorney General
1024 Capital Center Drive
Frankfort, Kentucky 40601
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