Guzman v. Commonwealth , 2012 Ky. LEXIS 84 ( 2012 )

OPINION OF THE COURT

Just after 1:00 a.m., on the morning of September 10, 2008, two Lexington city police officers responded to a call from a neighbor of Appellant, Crystal Lynn Guzman, in the Meadowthorpe area. The neighbor lived downstairs from Guzman, whose apartment was a flight of steps above hers. Guzman’s boyfriend had rented the apartment, but was in jail. The neighbor reported that Guzman was dealing in drugs and engaging in prostitution. She also stated that she had observed Guzman going into her apartment with a white man and a black man that night. She had exchanged some unfriendly conversation with the black man.

As the officers were visiting with the neighbor, a black man, Paul Demerit, was observed heading down the stairs of the apartment complex. He was identified by the neighbor as the same black man she had seen with Guzman earlier that evening. The officers stopped and talked to Demerit and learned that he was on probation for trafficking in drugs. After a search of Demerit’s person and vehicle failed to produce any contraband or illegal substances, he was released.

The officers then proceeded to Guzman’s apartment to conduct a “knock and talk.” It was past one o’clock in the morning when the officers knocked on Guzman’s door. After some delay, the door was answered by Guzman’s friend, Teddy Hen-dren. He explained that he was slow in answering the door because he and Guzman were having sex on a mattress on the living room floor when the officers had arrived. Guzman consented to the officers entering the apartment. Upon entering, she was lying on the mattress, under a cover and partially clothed. Guzman put on a pair of pants underneath the covers.

Once the officers were in the apartment, they observed a cardboard box next to the mattress with a lamp on it. When the lamp was turned on, they noticed a blanket tacked up over a wide doorway. The officers asked Guzman if anyone else was in the apartment and she responded in the negative. Nevertheless, one of the officers proceeded to conduct a “protective sweep” of the apartment and entered into a bedroom and kitchen area. While doing the walk through, the officer saw a spoon in the kitchen sink that appeared to be burned on the bottom. The officer picked up the spoon and examined it and found that it had white residue on it.

When questioned, both Guzman and Hendren denied any knowledge about the spoon. When the officer asked Guzman for permission to search the apartment, she asked what would happen if she refused. The officer then advised Guzman that one officer would remain in the apartment while the other went and applied for a search warrant. It was at this time that she consented.

Cocaine and drug paraphernalia were found in the apartment. At trial, a motion to suppress this evidence was denied, after which Guzman entered a conditional plea reserving the right to appeal the search issue. She was sentenced to one year for first-degree possession of a controlled substance and twelve months for possession of drug paraphernalia, which were probated for three years. Her conditional plea of guilty was affirmed by the Court of Appeals. In this discretionary review, Guzman complains that the Court of Appeals’ analysis finding a reasonable suspicion to justify the protective sweep of her apartment was flawed.

In reviewing a trial court’s decision on a motion to suppress, we are to examine the trial court’s findings of fact for clear error, upholding findings supported by substantial evidence. Peyton v. Commonwealth, 258 S.W.3d 504 (Ky.2008); RCr 9.78. Thereafter, we must conduct a de novo review of the trial court’s application of the laws to those facts. Since the facts in this case are uncontested, we move to a de novo review of the determination made by the trial court as a matter of law.

It has long been established law that police may search, incident to a lawful arrest, the area that is considered to be in the immediate control and possession of the person being arrested. United States v. Rabinowitz, 389 U.S. 56, 60, 70 S.Ct. 430, 94 L.Ed. 653 (1950). The view of the U.S. Supreme Court in 1969 stated there is no justification for “routinely searching any room other than that in which an arrest occurs.... ” Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). That limitation has been modified substantially, however, by our nation’s highest court, holding that law enforcement officers may conduct a protective sweep for their own safety. Objects found and seized therein are admissible at trial as an exception to the warrant requirement. Maryland v. Buie, 494 U.S. 325, 334, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990).

Today, for the first time, this Court follows and adopts the holding in Buie. We note, in passing, that four years before Buie our own Court of Appeals recognized that a “protective sweep” or “safety check” is an exception to the warrant requirement in Kentucky law. Commonwealth v. Elliott, 714 S.W.2d 494, 496 (Ky.App.1986). Guzman points out that the Buie case is distinguishable from the facts of this case in that the “protective sweep” there was performed incident to an in-home arrest on a warrant and was for the purpose of protecting the safety of the police. We agree that Buie is clearly distinguishable. Unlike this case, the holdings in both Buie and Elliott dealt with a limited sweep in conjunction with an in-home arrest.

Even when a search is authorized by consent, the scope of the search is limited by the terms of its authorization. Shamaeizadeh v. Cunigan, 338 F.3d 535, 547 (6th Cir.2003). “The standard for measuring the scope of a suspect’s consent under the Fourth Amendment is that of ‘objective’ reasonableness — what would the typical reasonable person have understood by the exchange between the officer and the suspect?” Florida v. Jimeno, 500 U.S. 248, 251, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991) (internal quotations omitted). Also, it has been held that a coercive ruse to obtain consent to enter a residence in the course of a “knock and talk” undermines the consent and violates the defendant’s Fourth Amendment rights. Krause v. Commonwealth, 206 S.W.3d 922 (Ky.2006).

A close study of the sequence of events in the search at issue in this case is important. First of all, the officers were in the living room of Guzman’s apartment following a “knock and talk” with her consent and without either probable cause or exigent circumstances. Their presence in her home was only the result of a complaint by a neighbor. They were also in Guzman’s living room after having made full accountability of the three persons— one black male, one white male, and Guzman — who had been observed by the neighbor going in and out of the apartment. No evidence of criminal wrongdoing was observed in the living room. The officers were told by Guzman that no one else was in the apartment. Had they asked for consent to conduct the sweep and had permission been given, the outcome of this case may have been entirely different. However, the officers did not ask for such permission and conducted the sweep without a search warrant in hand or both probable cause and exigent circumstances. In absence of consent, the police may not conduct a warrantless search or seizure without both probable cause and exigent circumstances. Kirk v. Louisiana, 536 U.S. 635, 638, 122 S.Ct. 2458, 153 L.Ed.2d 599 (2002). Once the officers were in a non-consent area of the apartment, they discovered the evidence on the spoon in the kitchen sink which, in effect, became “fruit of the poisonous tree.”

This is not a case of a “Terry stop,” whereby officers have restrained a person’s movement upon “articulable suspicion” of a crime being committed and are allowed to frisk for weapons. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Nor is it the same as a roadside stop and a search of the inside of a vehicle as allowed in Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983). We do not address today whether the officers would have been allowed to conduct a sweep of the room into which they were invited, pursuant to the reasoning of these cases. Suffice it to say that, here, they went beyond that limited area into other parts of the apartment where consent had not been given. And they did so without either a warrant or probable cause and exigent circumstances. This action takes it out of the holding in Buie. Certainly, under the “objective reasonableness” standard, a reasonable person inviting the police into his or her living room would not have understood the invitation to extend to the entire house.

Much is made by the Commonwealth of the blanket over the door to an interior room of the apartment as being some ominous sign of danger lurking within. For constitutional purposes, the covering is simply a barrier to an entranceway that is less attractive and substantial perhaps than a door, but still signaling an expectation of privacy. It may speak as much to poverty or want as it does to concealment. Our ancient Fourth Amendment to the U.S. Constitution and Section 10 of our Kentucky Constitution do not discern between rich or poor. This apartment, its occupants, and their unseemly activities may not have measured up to an acceptable standard of decency. However, the stirring words of William Pitt, eloquently spoken more than two centuries ago, capture the soul of our Fourth Amendment protections. “It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter; all his forces dare not cross the threshold of the ruined tenement!”

We are not insensitive to the safety and protection of law enforcement officers conducting investigations in strange places during the wee hours of the morning. Here, however, a simple request for consent may have allowed them to search the apartment; or the officers could have invited Guzman to step outside for the interview. Well-trained and astute law enforcement officers are going to tread cautiously in these situations when invited into suspicious places. Here, while still in the investigatory stage and with no basis for a warrant or arrest, the potential for resistance or evasion was minimized.

In essence, the law, as we state it in this case, is that consent by the owner for the police to enter his home does not extend to the entire house, even for a protective sweep. The motion to suppress should have been granted because the protective sweep was illegal and the contraband discovered was the result of this unlawful invasion as fruit of the poisonous tree.

Accordingly, the Court of Appeals’ opinion is reversed and the matter remanded to the trial court for further proceedings consistent with this opinion.

CUNNINGHAM, NOBLE, SCHRODER, SCOTT, and VENTERS, JJ., concur. MINTON, C.J., and ABRAMSON, J., concur in result only. CUNNINGHAM, J., also concurs by separate opinion in which SCHRODER and VENTERS, JJ., join.