Michael E. Simpson v. Commonwealth of Kentucky

RENDERED: OCTOBER 2Y, 2015
TO BE PUBLISHED
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2014-SC-000653-MR
MICHAEL E. SIMPSON APPELLANT
ON APPEAL FROM JEFFERSON CIRCUIT COURT
V. HONORABLE SUSAN SCHULTZ GIBSON, JUDGE
NO. 13-CR-000990-02 AND 13-CR-002750
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT BY JUSTICE VENTERS
AFFIRMING
Appellant, Michael Simpson, appeals from a judgment of the Jefferson
Circuit Court convicting him of the crimes of possession of a handgun by a
convicted felon and of being a second-degree persistent felony offender. As
enhanced, Appellant was sentenced to a total of twenty years in prison. He
appeals as a matter of right.
Appellant contends that the trial court misapplied the law pertaining to a
search based on a "protective sweep" when it denied his motion to suppress his
illegal arrest, seizure, search and fruit from the poisonous tree under Maryland
v. Buie, 494 U.S. 325 (1990). More specifically, he argues that the police
unlawfully located and identified him during the course of a protective sweep at
a Louisville residence where he was staying, which in turn led to his unlawful
arrest during the course of which he spontaneously uttered an incriminating
statement to police. That incriminating utterance, Appellant contends, should
have been suppressed as the fruit of an unlawful search, seizure, and arrest.
We disagree.
As demonstrated below, the initial entry of police into the residence was
consensual; under the totality of the circumstances, the scope of the protective
sweep was reasonable; the initial seizure of Appellant was lawful; and the
incriminating statement uttered upon his arrest was spontaneous and not a
product of custodial interrogation. We find no violation of Maryland v. Buie or
other applicable law. We conclude that suppression of Appellant's
spontaneous utterance was not required. Accordingly, we affirm Appellant's
conviction and sentence.
I. FACTUAL AND PROCEDURAL BACKGROUND
The chain of events leading to Appellant's incriminating statement began
when Louisville Police Officers Spaulding and King stopped a vehicle registered
to Cameron Adkins. Police had two outstanding warrants for Adkins' arrest.
The driver of the vehicle explained to the officers that he was a friend of Adkins
and he told them where she could be found. The officers went to the address
and recognized Adkins on the porch. Upon seeing the officers approaching,
Adkins quickly went inside the residence. The officers then called for
assistance in apprehending Adkins.
Officer Spaulding knocked on the front door. When an occupant of the
house, Anthony O'Neal, opened the blinds of a large window beside the door,
Spaulding saw a handgun resting on the mantle inside the residence. As
O'Neal opened the door, Spaulding saw Adkins retreat into the back part of the
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residence. O'Neal consented to the officers' request to enter the home to
apprehend Adkins on the outstanding warrants. O'Neal's authority to consent
to the officers' entry has not been challenged. Officer King and several other
officers called in as backup entered the residence and joined the search for
Adkins. O'Neal admitted to having possessed the handgun and that he was a
convicted felOn.
As they searched for Adkins, officers observed drug paraphernalia
throughout the residence. Adkins was eventually located hiding in a bedroom
with another female, Megan Bruce. Adkins and Bruce were taken into the
front room while Officer King looked about the residence for other individuals
whose presence might pose a potential threat to the officers. King found
Appellant in the basement trying to hide behind the furnace, and brought him
to the front room with the other occupants of the home.
The officers began a check to determine if any of the other individuals
present had outstanding warrants. Adkins and Bruce had outstanding
warrants and were arrested for that reason. O'Neal was arrested based upon
his verified admission that he was a convicted felon and his admission that the
handgun on the mantle belonged to him. Appellant falsely identified himself to
officers as "Ralph Simpson." When officers found no outstanding warrant for
"Ralph Simpson," they allowed Appellant to leave the residence.
Soon afterward, Officer King discovered that Appellant had
misrepresented his true identity, and that his true name is Michael Simpson.
Furthermore, it was discovered that a warrant for Appellant's arrest was
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outstanding. Appellant was quickly located and arrested on the warrant and
for giving the police a false name. While being processed into jail, Appellant
spontaneously acknowledged to Officer King that he owned the handgun found
at the residence. At that point, Appellant was charged with the additional
offense of possession of a handgun by a convicted felon.
Appellant was tried for possession of a handgun by a convicted felon and
for being a persistent felony offender. Appellant moved to suppress the
evidence gathered by police as a result of the search of O'Neal's residence.
Appellant asserted that the statement he allegedly made to Officer King
admitting ownership of the handgun found on the mantle should be
suppressed because the police had neither reasonable suspicion nor probable
cause to enter the basement of the residence and seize him, and that any
evidence obtained as a result of the illegal seizure of his person must be
suppressed as fruit of the poisonous tree. See Wong Sun v. United States, 371
U.S. 471 (1963). Finding that the officers engaged in a proper protective sweep
which resulted in finding Appellant in the basement, the trial court denied the
motion and the case proceeded to trial. Appellant was found guilty of being a
felon in possession of a handgun. Appellant was additionally found to be a
second-degree persistent felony offender and was sentenced to a total of twenty
years' imprisonment. This appeal followed.
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II. ANALYSIS
A. Standard of Review — the transition from RCr 9.78 to RCr 8.27
At the time of Appellant's trial, RCr 9.78 was in effect and governed
pretrial motions to suppress evidence.' RCr 9.78 provided that lig supported
by substantial evidence, the factual findings of the trial court shall be
conclusive." Under RCr 9.78 we apply the two-step process adopted in Adcock
v. Commonwealth, 967 S.W.2d 6 (Ky. 1998). First, we review the trial court's
findings of fact under a clearly erroneous standard. Welch v. Commonwealth,
149 S.W.3d 407, 409 (Ky. 2004). Under this standard, the trial court's findings
of fact will be conclusive if they are supported by substantial evidence. See CR
52.01; Canler v. Commonwealth, 870 S.W.2d 219, 221 (Ky. 1994) (citations
omitted). We then "conduct a de novo review of the trial court's application of
the law to the facts to determine whether its decision is correct as a matter of
law." Payton v. Commonwealth, 327 S.W.3d 468, 471-72 (Ky. 2010) (quoting
Commonwealth v. Neal, 84 S.W.3d 920, 923 (Ky. App. 2002)).
Effective January 1, 2015, RCr 9.78 was superseded by RCr 8.27.
Unlike its predecessor, RCr 8.27 does not specifically address an appellate
standard of review. However, CR 52.01 2 provides that findings of fact shall not
be set aside unless clearly erroneous. "A finding supported by substantial
RCr 9.78 was deleted effective January 1, 2015.
2 RCr 13.04 provides that "[t]he Rules of Civil Procedure shall be applicable to
criminal proceedings to the extent not superseded by or inconsistent with these Rules
of Criminal Procedure. Given the rule change, RCr 13.04 makes CR 52.01 applicable.
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evidence is not clearly erroneous." 3 Hunter v. Mena, 302 S.W.3d 93, 97 (Ky.
App. 2010) (citation omitted). Consequently, the application of CR 52.01 leads
us to the identical standard applied under RCr 9.78. Accordingly, while RCr
9.78 has been superseded, the standard of review for a pretrial motion to
suppress as stated in Adcock, Welch, Canler, Payton, and Neal, all of which
were buttressed by RCr 9.78, remains substantively unaffected.
B. The Trial Court's Factual Findings
Following the suppression hearing the trial court entered the following
findings:
The testimony of record is that police detective Spaulding received
information that a subject for whom there was an outstanding
arrest warrant, Cameron Adkins, might be at 1176 Wilson Avenue.
When the detective arrived at that addres -s, he saw Ms. Adkins on
the porch. She immediately went inside. Spaulding called for
backup and was joined by Detective King. They approached the
house and knocked on the door. While standing on the doorstep,
Spaulding observed a person later identified as Defendant O'Neal
open the blinds of a large window beside the front door, then
retreat. Through the window, Spaulding observed a handgun
setting on the mantle in the unfurnished room. Several moments
later, O'Neal opened the door. Spaulding saw other individuals in
the home. O'Neal was informed of the purpose of the officers' visit,
and O'Neal allegedly allowed the detectives to enter the home. In
response to a question about the ownership of the gun, O'Neal
allegedly stated that the gun was his. King testified that he
searched the home and located two females, one being Ms. Adkins.
He also observed suspected controlled substances and
paraphernalia in the interior rooms. He found Defendant Simpson
in the basement of the home. All the occupants were then led to
the front from that the detectives first entered. O'Neal and the two
females were arrested, and Simpson was cited for drug
3 "Substantial evidence is that which, when taken alone or in light of all the
evidence, has sufficient probative value to induce conviction in the mind of a
reasonable person." Hunter v. Mena, 302 S.W.3d 93, 97 (Ky. App. 2010) (internal
quotes and citation omitted).
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paraphernalia. However, the detectives confirmed shortly
thereafter that Simpson had given a false name and had an
outstanding warrant, he was arrested as he walked down the
street.
Appellant disputes minor details of the trial court's factual findings 4
which are not relevant to our disposition of the case. The trial court's material
findings, as set forth above, are entirely supported by the testimony given at
the suppression hearing and are therefore binding upon our review. CR 52.01;
Canler, 870 S.W.2d at 221. As to the trial court's recitation that "O'Neal
allegedly allowed the detectives to enter the home," based upon the trial court's
disposition of the case, we construe as a finding that O'Neal did in fact allow
the officers to enter the home for the purpose of finding and arresting Adkins
on the outstanding warrants.
C. De Novo Application of the Law to the Trial Court's Findings
The Fourth Amendment to the United States Constitution and Section 10
of the Kentucky Constitution protect citizens from unreasonable searches and
seizures by the government. Warrantless searches and seizures inside a home
are presumptively unreasonable. Payton v. New York, 445 U.S. 573, 586
(1980). However, warrantless searches of a residence based upon the consent
of a person with the authority to give such permission is a well-established
exception to the warrant requirement. Bratcher v. Commonwealth, 424 S.W.3d
411, 413 (Ky. 2014). Furthermore, "for Fourth Amendment purposes, an arrest
warrant founded on probable cause implicitly carries with it the limited
4 For example, Appellant questions the trial court's findings regarding the
precise sequence of when those present were gathered together in the living room of
the residence.
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authority to enter a dwelling in which the suspect lives when there is reason to
believe the suspect is within." Payton, 445 U.S. at 603.
As noted above, O'Neal gave the police permission to enter the residence
for the purpose of locating Adkins and there is no allegation that O'Neal lacked
the authority to consent to the entry. Given that O'Neal had consented, the
trial court properly determined that the officers' initial warrantless entry into
the home was lawful. Bratcher, 424 S.W.3d at 413. Moreover, the officers had
a valid warrant for Adkins' arrest and having just seen her enter the residence,
they had reason to believe she was inside. Under Payton, they were authorized
to enter the residence to execute the warrant even without O'Neal's consent.
Since the initial police entry into the residence was proper, the question
is then reduced to whether the officers properly extended their search into the
basement where Appellant was found after their purpose, arresting Adkins,
had been accomplished. As recognized by the trial court and the parties, the
established warrant exception at issue at this point in this case is the so called
"protective sweep" exception as articulated in Maryland v. Buie, 494 U.S. 325
(1990). We recognized this exception and adopted the Buie holding in Guzman
v. Commonwealth, 375 S.W.3d 805, 807 (Ky. 2012), 5 and we further explained
its principles in Kerr v. Commonwealth, 400 S.W.3d 250 (Ky. 2013), and
Brumley v. Commonwealth, 413 S.W.3d 280 (Ky. 2013).
5 It is important to note that Guzman is distinguishable from this case because
in Guzman the original consent to enter the residence was limited to consent to enter
the front room, whereas here the consent was to enter the home, generally, to arrest
Atkins. The consent authority here was far broader than in Guzman.
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Buie permits officers to conduct protective sweeps in two situations.
First, with or without probable cause or reasonable suspicion, officers may
conduct a protective sweep "as a precautionary matter," looking into spaces
immediately adjoining the place of arrest from which an attack could be
immediately launched." Brumley, 413 S.W.3d at 284. Because the protective
sweep here extended well beyond the immediate vicinity from which an
immediate attack could be launched, this prong of Buie is not implicated.
Second, a protective sweep may extend beyond the area immediately
surrounding the place of arrest into places that, to a reasonably prudent officer
relying upon rational inferences drawn from articulable facts, may harbor a
person that poses a threat to those on the scene of the arrest. Id. Justification
for this type of sweep implicates the well-known reasonable suspicion standard
as stated in Terry v. Ohio, 392 U.S. 1 (1968). Buie, 494 U.S. at 334; See
Brumley, 413 S.W.3d at 284. This second type of Buie protective sweep is
implicated here.
"Reasonable suspicion must be determined under the totality of the
circumstances, considering all of the information available to law enforcement
officials at the time." Brumley, 413 S.W.3d at 285 (internal quotes omitted)
(citing Humphrey v. Mabry, 482 F.3d 840, 846 (6th Cir. 2007) (quoting Feathers
v. Aey, 319 F.3d 843, 849 (6th Cir. 2003)). "However, determinative
information must relate to the purpose for which the protective sweep
exception was created." Id. "The justification for a protective sweep is the
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safety threat posed by unseen third parties in the house." Id. (citing Buie, 494
U.S. at 336).
The trial court succinctly summed up the factors supporting reasonable
suspicion in its suppression order:
In this case, before Detectives Spaulding and King ever entered the
home, they knew at least two people were in the home, and that
there was at least one weapon in the home. Upon the opening of
the door, the officers observed a third person in the home, going
from room to room. Because of the multiple persons present, as
well as the presence of the weapon, the Court finds that the
detectives had articulable facts from which they could reasonably
infer that there were other people in the home who could pose a
threat to officer safety. The protective sweep of the house was
therefore proper.
Our analysis also takes into account another factor that confronted the
officers. In addition to being aware of the gun and drug paraphernalia in the
home, the officers also were aware that the house was without workable sinks
or toilets, giving the residence some indicia of being a drug house. Drug
houses, and their occupants, inherently pose dangers to police officers. Under
the totality of the circumstances, this more expansive protective sweep was
justified because of the reasonable concern that unseen additional persons
may be on the premises posing a threat to the officers.
In summary, we are persuaded that the trial court properly determined
that the officers (1) lawfully entered the residence to arrest a fugitive, and (2)
conducted a lawful protective sweep justified by articulable facts from which a
reasonably prudent officer would believe that other individuals posing a danger
to the police may be present. Then, after learning that Appellant had falsely
identified himself and that he, too, had an outstanding warrant against him,
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the police lawfully arrested Appellant. And finally, Appellant's incriminating
expression was spontaneous and not a product of custodial interrogation.
Consequently, the statement was lawfully used against him at trial. Campbell
v. Commonwealth, 732 S.W.2d 878, 881 (Ky. 1987) ("Volunteered statements of
any kind are not barred by the Fifth Amendment and their admissibility is not
affected.") (citation omitted).
In summary, the trial court properly denied Appellant's motion to
suppress the evidence obtained against him as a result of the initial entry into
the home and the ensuing protective sweep.
III. CONCLUSION
For the foregoing reasons, the judgment of the Jefferson Circuit Court is
affirmed.
All sitting. All concur.
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COUNSEL FOR APPELLANT:
Daniel T. Goyette
Louisville Metro Public Defender of Counsel
Office of the Louisville Metro Public Defender
Cicely Jaracz Lambert
Assistant Appellate Defender
Office of the Louisville Metro Public Defender
Sean Thomas Pharr
Louisville Metro Public Defender
COUNSEL FOR APPELLEE:
Jack Conway
Attorney General of Kentucky
Taylor Allen Payne
Assistant Attorney General
Office of Criminal Appeals
Office of the Attorney General
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