Dallis Abney v. Commonwealth of Kentucky , 483 S.W.3d 364 ( 2016 )


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  •                                                    RENDERED: MARCH 17, 2016
    TO BE PUBLISHED
    $uprrittr (Court of
    2014-SC-000445-DG
    Prig
    IJ Li
    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    or whether it has been replaced by the totality-of-the-circumstances test of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
    5
    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
    8
    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.
    9
    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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