Lamonte Drake v. Commonwealth of Kentucky ( 2020 )

RENDERED: DECEMBER 4, 2020; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-1358-MR
LAMONTE DRAKE APPELLANT
APPEAL FROM MUHLENBERG CIRCUIT COURT
v. HONORABLE BRIAN WIGGINS, JUDGE
ACTION NO. 19-CR-00173
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS, DIXON, AND TAYLOR, JUDGES.
COMBS, JUDGE: This is a criminal case in which the appellant challenges the
trial court’s denial of his motion in limine to suppress evidence. Appellant,
Lamonte Drake, appeals from an order denying his motion to suppress evidence
which he alleged was seized based upon a deficient warrant. After our review, we
affirm.
Drake was indicted by a Muhlenberg County grand jury for first-
degree trafficking in a controlled substance (methamphetamine, two or more
grams, second or subsequent offense) and possession of drug paraphernalia.
On July 18, 2019, defense counsel filed a motion to suppress evidence
seized as a result of the search warrant issued on multiple grounds: that it did not
accurately describe Drake’s residence; that statements made by sources Jeremy
Hobgood and Pamela Hobgood were contradictory; that Jeremy Hobgood had no
personal knowledge of any alleged activity; that the search warrant should have
been limited to Drake’s garage; and that the attesting officer materially
misrepresented and omitted facts. Drake also raised issues as to the reliability of
the sources and lack of corroboration.
The matter was heard on July 29, 2019. Detective Troy Gibson, the
current case officer, testified at the hearing. Detective Gibson requested a search
warrant for Drake’s residence after having spoken to an Officer Robinson about
two individuals who had been arrested in Logan County. Attached to Detective
Gibson’s affidavit (and incorporated therein) are statements from those two
individuals/informants which described an incident involving the purchase of
methamphetamine from Drake.
Exhibit “A” is a statement given by a confidential informant (CI)
which described Drake’s residence and its location and stated that on May 4, 2019,
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the CI and “another female” went to Monte Drake’s residence. The CI stated that
his “wife went inside drakes [sic] residence came back out after about 10 minutes.
CI states wife returned with about 1 oz of crystal meth for $550.” (Trial Record
(TR), p. 19.)
Exhibit “B” is the statement of Pam Hobgood, which reflected that
she and her husband went to “Monte Drake’s residence” on May 4, 2019. The
location of the residence was described. Pam Hobgood stated that she went inside
the garage and “met Mr. Drake and bought 1 ounce of crystal methamphetamine
from Mr. Drake for $550.00 cash.” The statement also reflected that Pam
Hobgood acknowledged that “she is familiar with Monte Drake and has bought
meth from him several times in the past.” (TR, p. 18.)
At the close of the hearing, the trial court explained that it had no real
concern about the issues that Drake raised as to any confusion on the part of the
magistrate who issued the warrant regarding which residence was to be searched.1
The court found that the information in the affidavit was clear as to the residence to
be searched. The court explained that, “It gets down to the issue of whether or not
the statements that are attached to and incorporated into the affidavit are sufficient
to establish probable cause. I think it’s clear that Ms. Hobgood’s statement is
1
As the Commonwealth notes in its brief, Drake has not disputed the accuracy of the description
of the residence on appeal.
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sufficient to establish probable cause.” The court pointed to Edwards v.
Commonwealth, 573 S.W.2d 640 (Ky. 1978), which holds that an affidavit in
support of a search warrant based on information furnished by a named individual
is ordinarily sufficient to support the warrant. The court determined that Ms.
Hobgood’s information was adequate to establish probable cause. The court also
noted that the statement made by Hobgood’s husband was “quite redundant.”
Based on those statements, and relying particularly on Edwards, the court denied
the motion to suppress.
On July 31, 2019, the trial court entered a written order denying the
motion to suppress, noting that it had made “separate findings of fact and
conclusions of law on the record.”
Drake subsequently entered a conditional guilty plea. The court
entered Judgment and Final Sentencing on September 4, 2019, sentencing him to
ten-years’ imprisonment and preserving his right to appeal the order entered on
July 31, 2019, denying the suppression motion.
On appeal, Drake raises four arguments captioned only as follows: A.
Uncorroborated Tip; B. Reliability; C. Totality of Circumstances; and D.
Necessary Findings. (Original uppercase emphasis deleted.) Drake contends: that
without additional corroborating evidence, the warrant was defective; that there
was no evidence of reliability in the CI’s or Pam Hobgood’s statement; that the
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trial court applied the wrong standard; and that it failed to consider or to make any
findings regarding the totality of the circumstances. Since these sub-categories
essentially all relate to the same issue of suppression, we shall address them
together.
When faced with a motion to suppress evidence obtained pursuant to a
search warrant, a trial judge should apply “the Gates[2] standard and determine
whether under the ‘totality of the circumstances’ presented within the four corners
of the affidavit, a warrant-issuing judge had a substantial basis for concluding that
probable cause existed.” Commonwealth v. Pride, 302 S.W.3d 43, 49 (Ky. 2010).
The standard of appellate review of a ruling on a motion to suppress
evidence obtained pursuant to a search warrant is as follows: first we must
determine if substantial evidence supports the trial court’s factual findings; then we
must consider if the trial court correctly determined that the judge issuing the
warrant had “a ‘substantial basis for . . . conclud[ing]’ that probable cause existed.”
Id. (quoting Gates, 462 U.S. at 236, 103 S. Ct. 2317). Reviewing courts must
afford great deference to the decision of the warrant-issuing judge. Id.
2
Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983).
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An unpublished decision3 of our Supreme Court, Sapp v.
Commonwealth, Nos. 2010-SC-000444-MR and 2010-SC-000445-MR, 2011 WL
4430884 (Ky. Sept. 22, 2011), involved a highly similar factual scenario. We find
its reasoning persuasive. In Sapp, Officer Coomes arrested Carlisle for reasons
that were unclear in the record. While questioning him, Officer Coomes learned
that Carlisle was on his way to Appellant Sapp’s residence to buy
methamphetamine. Officer Coomes called the county sheriff and relayed the
information. Aware of Sapp’s reputation as a drug dealer, the sheriff submitted an
affidavit for a search warrant of Sapp’s home, including the information that
Officer Coomes related about what Carlisle had told him.
The trial court found that probable cause existed for issuance of the
warrant and was further persuaded by the fact Carlisle was a known and named
informant who had established the basis for his knowledge. On appeal, our
Supreme Court explained as follows:
Appellants erroneously devalue the fact that
Carlisle is a named informant, “The general rule has long
been that an affidavit for a search warrant based on
information furnished by a named individual is ordinarily
sufficient to support the warrant.” Embry v.
Commonwealth, 492 S.W.2d 929, 931 (Ky. 1973). When
the informant is identified, there is no need for a specific
3
We cite this unpublished Opinion pursuant to the standard set forth in Kentucky Rule of Civil
Procedure (CR) 76.28(4)(c).
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showing of his or her reliability. Embry, 492 S.W.2d at
931.
Even so, Carlisle indicated that his basis of
knowledge was his own personal experience and
observations. As explained in the affidavit, Carlisle
identified Roger Sapp’s exact street address. Carlisle
stated that he had previously bought meth from Roger
Sapp and that he was on his way to Sapp’s residence for
that specific purpose. “When a witness has seen
evidence in a specific location in the immediate past, and
is willing to be named in the affidavit, the totality of the
circumstances presents a substantial basis for conducting
a search for that evidence.” U.S. v. Pelham, 801 F.2d
875, 878 (6th Cir. 1986) (internal quotations omitted)….
Further, Carlisle provided information against his
own penal interest. He admitted to previously purchasing
methamphetamine from Roger Sapp and to selling it
himself. “Admissions of crime . . . carry their own
indicia of credibility—sufficient at least to support a
finding of probable cause to search.” Lovett v.
Commonwealth, 103 S.W.3d 72, 78-79 (Ky. 2003).
Id. at *3.
In the case before us, Pam Hobgood was a named informant. As the
trial court correctly determined, that fact is sufficient to support the warrant.
Moreover, Hobgood established the basis for her own knowledge and observations.
She also provided information against her own penal interest. Therefore,
information presented in the affidavit incorporating her statement was sufficient to
establish probable cause to issue the search warrant. The trial court did not err in
denying Drake’s motion to suppress.
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Accordingly, we AFFIRM.
DIXON, JUDGE, CONCURS.
TAYLOR, JUDGE, CONCURS IN RESULT ONLY.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Daniel Joseph Sherman, Jr. Daniel Cameron
Greenville, Kentucky Attorney General of Kentucky
Christopher Henry
Assistant Attorney General
Frankfort, Kentucky
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