Commonwealth v. McManus , 2003 Ky. LEXIS 146 ( 2003 )

OPINION

STUMBO, Justice.

On July 30, 1998, Jon Hayden, a McCracken County Deputy Sheriff, received information that McManus and Keister, the appellees herein, were cultivating marijuana at the residence they shared in Paducah, Kentucky. This information was relayed to Hayden by an officer of the Murray Police Department, who had received said information from Keis-ter’s estranged wife. The address of the residence, 938 Lorine Lane, was located via a civil summons previously served on Keister.

During the evening hours of August 6, 1998, Hayden, along with two other deputies, traveled to the McManus and Keister residence in order to investigate the information previously received. The law enforcement officers did not secure a search warrant before they went to the residence because they did not believe they had sufficient reliable information to obtain one. They knocked on the door of the residence; McManus answered and then stepped out onto the porch in order to speak with the officers. The officers informed McManus that they had received information that marijuana was being cultivated inside the home, and asked for McManus’ consent to search the premises. After McManus declined the request, the officers cautioned McManus that if there was marijuana being grown inside the residence, he should dispose of it, as the officers would likely return.

The officers left the residence. As they reached the public sidewalk, one of the officers noticed that the blinds were open on the picture window, which was located to the right of the front door. For the next several minutes, the officers observed McManus and another man running in a frenzied manner throughout the residence carrying items the officers deemed to be related to the indoor cultivation of marijuana, including pots and grow lights. Hayden contacted Chief Deputy Terry Long, who instructed Hayden to secure the residence by a warrantless entry, if Hayden believed that evidence was being destroyed. Long sought and received the same advice from the McCracken County Attorney. Hayden and the other officers then forced their way into the residence. Marijuana plants, and other incriminating evidence, were recovered as a result. Mc-Manus and the other man were taken into custody. Keister was not inside the residence at the time, but was apprehended soon thereafter.

In the McCracken Circuit Court, both McManus and Keister moved to suppress the evidence recovered at their residence. The appellees contended that the warrant-less entry conducted by the McCracken County Sheriffs Department was in violation of the Fourth Amendment to the United States Constitution and Section 10 of the Kentucky Constitution. The trial court did not agree and denied the motions.

McManus then entered a conditional guilty plea under RCr 8.09 to one count each of trafficking in marijuana (KRS 218A.1421), tampering with physical evidence (KRS 524.100), and possession of a controlled substance in the first degree (KRS 218A.1415). Keister entered a conditional guilty plea under RCr 8.09 on one count of cultivation of marijuana (KRS 218A.1423) and for being a persistent felony offender (PFO) in the second degree (KRS 532.080(2)). Both received a sentence of ten years in prison.

McManus and Keister appealed to the Court of Appeals seeking review of the trial court’s denial of their respective motions to suppress. A unanimous panel of the Court of Appeals concluded that the trial court committed error by not granting the suppression motions. The panel also held that there were no exigent circumstances sufficient to justify the war-rantless entry of the appellees’ residence. It was further held that the circumstances relied upon by the police were created by the officers’ visit to the McManus home. The Commonwealth petitioned the Court of Appeals for a rehearing, which was denied. The Commonwealth then sought discretionary review of the instant matter in this Court, which was granted.

We now consider the points of error asserted by the Commonwealth.

I.

The Commonwealth first argues that it was error for the Court of Appeals to determine that no exigent circumstances existed to justify the warrantless entry into the McManus and Keister residence.

Absent exigent circumstances, law enforcement officers may not enter an individual’s private residence in order to conduct a warrantless search. Payton v. New York, 445 U.S. 573, 590, 100 S.Ct. 1371, 1382, 63 L.Ed.2d 639, 653 (1980). The Commonwealth bears the burden to demonstrate that exigent circumstances were present justifying the warrantless entry. Vale v. Louisiana, 399 U.S. 30, 34, 90 S.Ct. 1969, 1972, 26 L.Ed.2d 409, 413 (1970). “It is fundamental that all searches without a warrant are unreasonable unless it can be shown that they come within one of the exceptions to the rule that a search must be made pursuant to a valid warrant.” Cook v. Commonwealth, Ky., 826 S.W.2d 329, 331 (1992). The Commonwealth also carries the burden to demonstrate that the warrantless entry into the McManus and Keister residence falls within a recognized exception. Gallman v. Commonwealth, Ky., 578 S.W.2d 47, 48 (1979).

The Commonwealth contends that the officers believed that McManus and another man were destroying evidence related to the offense of marijuana cultivation. Destruction of evidence is a recognized exigent circumstance creating an exception to the warrant requirement. Cormney v. Commonwealth, Ky.App., 943 S.W.2d 629, 633 (1996) (citing Taylor v. Commonwealth, Ky.App., 577 S.W.2d 46 (1979)). The Commonwealth relies on Segura v. United States, 468 U.S. 796, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984), where the United States Supreme Court held “that securing a dwelling, on the basis of probable cause, to prevent the destruction or removal of evidence while a search warrant is being sought is not itself an unreasonable seizure of either the dwelling or its contents.” Id. at 810, 104 S.Ct. 3380.

The Commonwealth’s reliance on Segura is misplaced. Unlike the law enforcement officers in Segura, the officers here did not have probable cause to enter the appellees’ residence. In Segura, the officers “had abundant probable cause in advance of their entry to believe that there was a criminal drug operation being carried on in petitioners’ apartment.” Id. Specifically, the officers “had maintained surveillance over petitioners for weeks, and had observed petitioners leave the apartment to make sales of cocaine.” Id. at 810-811, 104 S.Ct. at 3388. Here the officers had not conducted a surveillance operation of the appellees’ residence. Furthermore, Deputy Hayden admitted that he and the other officers did not have probable cause to obtain a search warrant based solely on information originating from Keister’s estranged wife.

However, the Commonwealth asserts that the information from Keister’s estranged wife, coupled with the officers’ own observations at the residence, reasonably gave the officers probable cause to believe that marijuana was being cultivated in the residence. Since the officers were concerned that evidence was being destroyed, exigent circumstances were present authorizing the warrantless entry of the appellees’ residence. We are not persuaded by this contention.

The Segura Court reaffirmed the rule that a warrantless search, absent exigent circumstances, is not legal. Id. at 810, 104 S.Ct. at 3388. “Where there are exigent circumstances in which police action literally must be ‘now or never’ to preserve the evidence of the crime, it is reasonable to permit action without prior judicial evaluation.” Roaden v. Kentucky, 413 U.S. 496, 505, 93 S.Ct. 2796, 2802, 37 L.Ed.2d 757, 765 (1973). While the officers observed items that could be related to marijuana cultivation, they did not observe marijuana or any other illegal substance, only flower pots and grow lights. As stated above, the officers were aware they did not have probable cause to receive a search warrant before they went to the appellees’ residence. Further, the Commonwealth failed to establish that the observed grow lights, pots and planting trays could be destroyed before a warrant could be obtained.

Under the circumstances, we do not think it was reasonable for the officers to enter the appellees’ residence without pri- or judicial evaluation. “Before agents of the government may invade the sanctity of the home, the burden is on the government to demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries.” Welsh v. Wisconsin, 466 U.S. 740, 750, 104 S.Ct. 2091, 2098, 80 L.Ed.2d 732, 743 (1984). The Commonwealth has not adequately demonstrated that exigent circumstances existed to overcome this presumption. Therefore, we find no error in the Court of Appeals’ decision. The trial court should have granted both motions to suppress. Because we have held that there were no exigent circumstances, we need not address the Commonwealth’s second issue.

II.

The Court of Appeals, applying Johantgen v. Commonwealth, Ky.App., 571 S.W.2d 110 (1978), reversed the trial court outright because “a conviction [was] impossible absent the evidence obtained by the unconstitutional entry and seizure.” The Commonwealth asserts the Court of Appeals exceeded the scope of its authority when it essentially directed an acquittal in favor of McManus and Keister by “ruling on evidence admissibility as opposed to evidence sufficiency.” We agree.

We have held that it is not the province of this Court to determine if “the Commonwealth can produce sufficient competent evidence to avoid a directed verdict of acquittal upon retrial.” Osborne v. Commonwealth, Ky., 43 S.W.3d 234, 245 (2001). Likewise, it was not within the Court of Appeals’ authority to essentially direct a verdict in favor of the appellees. The Commonwealth is free to continue its prosecution of the appellees. However, any such prosecution will be without the benefit of evidence- gathered as a result of the unlawful warrantless entry.

For the reasons aforesaid, we affirm the Court of Appeals on Point I, reverse on Point II, and hereby remand this matter to the McCracken Circuit Court for further proceedings in accordance with this opinion.

COOPER, JOHNSTONE and KELLER, JJ., concur. GRAVES, J., dissents by separate opinion, with LAMBERT, C.J., and WINTERSHEIMER, J„ joining that dissent.