MODIFIED: SEPTEMBER 28, 2017
RENDERED: MARCH 23, 201 7
TO BE PUBLISHED
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JOSEPH PACE fR\ fM 9f'f&PELLANT '
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ON REVIEW FROM COURT OF APPEALS
V. CASE NOS. 2014-CA-000501~MR AND 2014-CA-000621-MR
FAYETTE CIRCUIT COURT NO. 13-CR-00566-002
COMMONWEALTH OF KENTUCKY APPELLEE
AND 2015-SC-000400-DG
BRANDON COLLINS APPELLANT
ON REVIEW FROM COURT OF APPEALS
V. CASE NOS. 2014-CA"'.000501-MR AND 2014-CA-000621-MR
FAYETTE CIRCUIT COURT NO. 13-CR-00566-002
COMMONWEALTH OF KENTUCKY APPELLEE
· OPINION OF THE COURT BY JUSTICE CUNNINGHAM
REVERSING, VACATING, AND REMANDING
In this appeal, Joseph Pace and Brandon Collins (the "Appellants")
challenge the Court of Appeals' affirmance of the Fayette Circuit Court's denial
of their separate motions to suppress evidence.
On the evening of April 18, 2013, Sergeant Bryan Jared, of the Lexington
Police Department, was surveilling an apartment building located on Augusta
Drive in Lexingto:q, Ke,ntucky. Appellants' apartment was located within the
Augusta Drive apartment building. Sergeant Bryan was monitoring the area
I
due to a threat of retaliatory violence following a murder at a local bowling
alley.. The tip concerning the possible retaliation did not specify who would be
the subject of the reprisal, nor did it specify when or where the violence would
occur.
While observing the area, Sergeant Jared noticed a group of several
individuals loitering by the Augusta Drive apartment building. Shortly
thereafter, a black Dodge Charger pulled into a driveway adjacent to the left
side of the apartment building. Two men and·one woman exited the Charger
and walked behind the left side of the apartment building .. ~ Thereafter, the
loiterers made their way to the back right side of the apartment building.
Sergeant Jared suspected that the three individuals and the loiterers were
meeting around the back of the apartment building to brawl or conduct a drug.
transaction. Consequently, Sergeant Jared called for backup, exited his
cruiser' and approached the three individuals on the driveway side of the
apartment building. Sergeant Jared ultimately searched one of the men and
found a gun and narcotics on his. person. An erisuirtg search of the Charger
uncovered another gun. Further investigation revealed that one of the
Charger's occupants had been smoking.marijuana. This individual stated that
2·
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he had smoked marijuana in Apartment 14. This particular apartment was
Appellants' apartment.
Numerous officers responded to the scene and required the loiterers to .
move to the front of the apartment building. Officers asked the crowd who
lived in Apartment 14, to which no one responded. One of the officers, Officer
' '
Donna Shepherd, proceeded to Appellants' apartment to conduct a "knock and
talk." To no avail, Officer Shepherd entered the atrium of the apartment
building and knocked on the front door of Appellants' first floor apartment.
Officer Shepherd then exited the inside atrium and walked around the outside
of the building to Appellants' back door.. The back door was a sliding glass
door, which was ajar, unobstructed, and located within a partially enclosed
patio. The patio enclosure consisted of a brick wall standing approximately five
feet and four inches tall.
As Officer Shepherd approached the back patio area, two other officers
were already standing within the enclosure and looking through the sliding
glass door. The officers notified Officer Shepherd that they could see baggies of
marijuana sitting on an inside table. Officer Shepherd was unaple to view the
baggies of marijuapa until she was standing within.the patio enclosure.
Without a warrant or Appellants' consents, Officer Shepherd and the two
officers entered Appellants' apartment through the sliding glass door and
conducted a search. Concurrently, other officers entered the front door of the
\
apartment'andjoined the search. It is unknown which officer ordered the
entry and search. Officer Shepherd testified that she entered the apartment
3
because she was _fearful someone may have been injured inside and in need of
assistance. During the search, officers found three baggies of marijuana, eight
marijuana plants, and other drug paraphernalia. Officers did not seize the
evidence upon discovery.
Appellants were notified of the initial search and consented to a second
search of their apartment. During this second search, officers seized the
incriminating evidence, in addition to a newly discovered bag of cocaine in the
amount of 4.3 grams. Appellants were immediately arrested and charged with
one count each of cultivation of marijuana five or more plants, trafficking in a
controlled substance within 1,000 feet of a school, possession of a controlled
substance in the first degree, and possession of drug paraphernalia.
Appellants filed separate motions to suppress all evidence seized under the
Fourth Amendment to the United States Constitution and Section 10 of the
Kentucky Constitution. In support of their motions, Appellants claimed that
the officers violated the curtilage of their apartment when they entered the
back patio enclosure, thereby having no legal au_thority to view the marijuana.
baggies. Appellants further argued that officers lacked any exigencies to enter
the apartment and conduct the search. Due to these illegalities, the seizure ·Of
e.vidence was made unlawfully.
After a hearing at which Officer Shepherd and Sergeant Jared testified,
the trial court made verbal findings of fact· and conclusions of law and denied
·Appellants' motions_ to suppress. The trial court ruled that officers were
entitled to be ori the back patio as it was not within the apartment's curtilage ..
,. l
The trial court further found that, although the precise justificatiof?. for the
officers' entrance was unknown, officers were permitted to conduct a search of
the apartment pursuant to the plain view exception to the warrant
requirement. Moreover, the.trial court believed officers were permitted to enter
the apartment and conduct a protective sweep of the area and check for
injured individuals.
On March 24, 2015, Appellants entered conditional guilty pleas in the
Fayette Circuit Court. Collins pled gu~lty to one count each of criminal·
facilitation-cultivation of marijuana five or more plants, possession of
marijuana, and possession of drug paraphernalia. Pace pled guilty to one
count, of criminal facilitation-cultivation of marijuana five or more plants and
one count of possession of marijuana. Appellants both received a sentence of
twelve months' imprisonment, probated for a period of two ye.ars. Appellants'
guilty pleas provided that they reserved the right to appeal the Fayette Circuit
Court's denial of their motions to suppress. It is from that denial that
Appellants appealed to the Court of Appeals.
The Court of Appeals affirmed the trial court's denial, but on different
grounds. First, the Court of Appeals disagreed that a protective sweep was
necessary since the search was not made incident to an arrest and there were
.no perceived threats fo the officers. .The Court of Appeals also explained that
\
the "emergency aid" exception to the warrant requirement, not the protective
sweep exception, was applicable to the officers' search. However, the.Court of
Appeals concluded that the emergency aid exception could not excuse the
5
warrantless ~earch because officers did not have an objectively reasonable
basis for believing the apartment's occupants required emergency aid. In
regards to the plain view doctrine, the Court of Appeals opined that officers did
not invade the curtilage of the apartment when viewing the marijuana baggies
from the back porch. Even so, the Court of Appeals did not believe the plain
view exception applied to the initial entry and search of the apartment~because
officers did not actually seize any incriminating evidence at that time.
Ultimately, the Court of Appeals affirmed the trial court's order on the grounds
that the seizure of evidence occurred during the second search which was
conducted pursuant to Appellants' valid consents. Appellants appealed to this
Court and we· granted discretionary review.
Generally, when reviewing a trial court's ruling on a motion to suppress,
this Court will examine the trial court's findings of fact to ensure they are
supported by substantial evidence. Peyton v. Commonwealth, 253 S.W.3d 504,
514 (Ky. 2008) (citing Adcock v. Commonwealth, 967 S.W.2d 6, 8 (Ky. 1998));
RCr 9.78. However, the trial court's factual findings are not in dispute and
appear to be sufficiently supported by the record. For that reason, the Court
will proceed in conducting a 4e novo review of the trial court's legal conclusions.
Peyton, 253 S.W.2d at 514-15.
Before conducting our review, we note that the trial court did not render
a written order of its findings of fact and conclusions of law. As this Court
explained in Coleman v. Commonwealth, "written findings greatly facilitate
appellate review." 100 S.W.3,d 745, 749 (Ky. 2002). It is important to ·
6
.•
underscore that this Court's analysis would have been significantly aided by a
submission of written findings. Fortunately, we can satisfactorily determine
the basis for the trial court's ruling from the suppre.ssion hearing record. Id.
Our analysis begins with the Fourth Amendment to the United States
Constitution, made applicable to the states through the Fourteenth
Amendment and Section 10 of the Kentucky Constitution. The Amendment
protects "[t]he right of the people to be secure in their persons, houses, papers,
)
and effects, against unreasonable searches and seizures." A basic tenet of this
}
area of the law is that warrantless searches are "per se unreasonable upder the
Fourth Amendment-subject only to a few specifically established and well-
delineated exceptions." Katz v. United States, 389 U.S. 347, 357 (1967). In the
absence of :exigent circumstances, it is unreasonable for a law enforcement
of~cer to enter a person's home withqut consent or a warrant. Payton v. New
York, 445 U.S. 573, 590 (1980). Therefore, in order to analyze the legality of
the officers' seizures in the case before us, the Court must first focus on the
lawfulness of the initial search of Appellants' apartment.
I
Exigencies
Due to both the trial court and Court of Appeals' holdings, the three
following well-established exceptions to the warrant requirement are at issue:
(1) the protective sweep exception fashioned in Maryland v. Buie, 494 U.S. 325
(1990); (.2) the emergency aid exception articulated iri Brigham City v. Stuart,
547 U.S. 398 (2006); and (3) the plain view exception delineated in Coolidge v.
New Hampshire; 403 u:s. 443 (1971). These three exceptions provide that the
7
UJ:?.reasonabl~ness of a warrantless search can be overcome by "'the exigencies
of the situation' [which may] make the needs of law enforcement so compelling
that the warrantless search is objectively reasonable." Mincey v. Arizona, 437
U.S. 385, 393-394 (1978). We will address each exception in tum.
Protective Sweep
According to our highest court, law enforcement officers are permitted to
perform a protective sweep of a residence under two limited circumstances,
both of which are preceded by an in-home arrest. Buie, 494 U.S. at 333-35;
see Guzman v. Commonwealth, 375 S.W.3d 805, 808 (Ky. 2012). The first type
of pr~tective sweep provides that officers· may "as a precautionary matter and
without probable cause or reasonable suspicion, look in closets and other
spaces immediately adjoining the place of arrest from which an attack could be
immediately launched." Kerr v. Commonwe.alth, 400 S.W.3d 250, 266 (Ky.
2013) (quoting Buie, 494 U.S. at 334). The second type of protective sweep
allows officers to perform a broader search of the premises if the officer has
reasonable suspicion "that the area to be swept harbors an individual posing a
danger to those on the arrest scene." Id. The exigency in these situations is the
safety of the officers. Guzman, 375 S.W.3d at 807. "
The trial court ruled that this exception permitted officers to enter
Appellants' apartment in order to conduct a protective sweep of the premises.
The trial court stated that "the officers had the potential to be in imminent
danger," and were, therefore, entitled to conduct a "protective· sweep" of the
apartment. The Court of Appeals quickly disposed of this argument since there
8
.;.
were no arrests ma.de, thereby negating the need for a protective sweep of the
apartment.
Based on the factual context predicating the. officers' entry into
Appellants' apartment, we can find no identifiable basis for the performance of
a protective sweep. The only arrests made prior to the officers' search of
Appellants' apartment occurred outside the front of the apartment building.
Moreover, those individuals were safely detained away from the apartment
'
building when officers decided to enter Appellants' apartment. There were no
other factors present which placed the safety of the officers or those on the
arrest scene in danger. The protective sweep exception to· the warrant
requirement simply did not arise in this situation.
Emergency Aid
Like the Court of Appeals, this Court also believes the more appropriate
legal framework in which to analyze the reasonablen~ss of the officers' search
is under the emergency aid exception. This exception acknowledges the
exigency created when an occupant of a residence is in need of emergency help.
The exception allows law enforcement officers to "enter a home without a
warrant to render emergency assistance to an injured occupant or to protect an
occupant from imminent injury." Brigham City, 547 U.S. at 403 (citing Mincey,
437 U.S. at 392). In determining if this exception applies, we do not rely on the
subjective intent of the officers, rather we must ask "whether there was 'an
objectively reasonable basis for believing' that medical assistance was needed,
9
or persons were in danger." Goben v. Commonwealth, 503 S.W.3d 890, 913
·(Ky. 2016) (quoting Michigan v. Fi.sher, 558 U.S. 45, 47 (2009)).
· This Court just recently illustr~ted the permissive use of the emergency
aid exception in Goben, 503 S.W.3d 890. In that case, officers responded to an
~-- alleged stabbing. Id. at 8_26. Once they arrived on the scene, officers found a
man suffering from a stab wound in an apartment complex parking lot and a
trail of blood leading up to the apartment complex's stairs. Id. At those stairs,
a "debris trail" led to an open door of an apartment. Id. at 896-97. The officers
entered the apartment believing that a previous struggle likely occurred and
that someone may be injured inside. Id. In upholding the warrantless search,
the ·Court found that a reasonably prudent officer would have concluded that
someone was possibly injured inside the apartment and needed medical help.
Id. at 897..
·Unlike in Goben, officers who entered Appellants' apartment were not
responding
.
to any violence. Although
.
there was loitering at the apartment
building, and there was an individuru who possessed a gun, there was no
evidence of an altercation. See Brigham City, 547 U.S. at 401 (officers
witnessed a physical fight through the window of the residence). Neither was
there any indication that someone was injured within the apartment. See
Fi.sher, 558 U.S. 46 (officers noticed blood on the hood of a truck parked
outside the residence and the door to the residence). In fact, there were no
noises or smells which would have led officers to believ~ that anyone was even.
present. See Hughes v. Commonwealth, 87 S.W.3d 850, 852-53 (Ky. 2002).
10
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Officer Shepherd cited. the retaliation threat and the individual who was
arrested for harboring a gun as support for her belief that an injured person
was present in the ap~tment. We do not believe a reasonably prudent officer
would have invoked .the emergency aid exception when faced with this minimal
amount of evidence of an injury. -Therefore, the officers' warrantless entry and
search of Appellants' apartment cannot be justified by the emergency aid
·exception.
Plain View
-The plain view exception to the warrant requirement is justified by the
exigent need to preserve· evidence that may otherwise be moved or destroyed.
See Coolidge, 403 U.S. at 446. The plain view exception applies "when the
object seized is plainly visible, the officer is lawfully in a position to view the
object, and the incriminating nature of the object is immediately apparent."
t Kerr, 400 S.W.3d at 266 (citing Horlon v. California, 496 U.S. 128, 136-37
_(1990)) (emphasis added). Unlike the exigencies outlined in the protective
sweep and emergency aid exceptions, which are justified when conducting a
warrantless search, the plain view doctrine only applies to the warrantless
seizure of evidence. Horlon, 496 U.S. at 135. This exception cannot justify an
otherwise .unlawful intrusion just becau~e it may bring the officers within plain
view of evidence. Id. Since this exception only excuses the seizure of evidence,
not warrantless searches, we agree with the Court of Appeals that the trial
_court erred in finding that the plain view doctrine permitted.the officers'
warrantless entry and search of Appellants' apartment.
11
Open Fields
Having concluded that the officers' initial warrantless search of
Appellants' apartment was illegal, we must still determine the lawfulness of the
officers' viewfrig of the marijuana baggies prior to the search. If officers viewed
the marijuana baggies while conducting a search of the open fields
surrounding the apartment, then officers were entitled to exploit that,
information in order to secure Appellants' cons_ent to conduct the second
search and ultimate seizure of evidence.
In order to determine if officers viewed the marijuana baggies from a
lawful vantage point, we must first determine if Appellants' apartment patio is
within the curtilage of 'the home. The curtilage of~ ho~e is an area outside the
indoor parameters of a residence in which there is a reasonable expectation of ,
privacy. United States v. Dunn, 480 U.S. 294, 300 (1987). The curtilage is
basically an extension of the home and as such enjoys Fourth A_m.endment
protection. Id.
There are four non-exclusive factors the Court may utilize in determining
the parameters of a residence's cl,lrtilage. Dunn, 480 U.S. at 301. The four
factors include "[1] the p~oximity of the area claimed to be curtilage to the
\,
home, [2] wl1.ether the area is included within an enclosure surrounding the
home, [3] the nature of the uses to which the area is put, and [4] steps taken
by the resident to protect the area from observation by people passing by." Id.
As applied to the trial court's factual :t:J.ndings,. the Dunn factors
demonstra~e that Appellants' back patio was within the protected curtilage of
12
the home. In regards to the first factor, the patio was attached and
immediately adjacent to the apartment. In fact, a sliding gfa.~s door was the
only object separating the inside of the home to the patio .. This Court has
explained that areas this clqse in proximity, like a back yard, "may not always
enjoy the protection of the curtilage, [but] it is a rare one that does not."
1
Quintana v. Commonwealth, 276 S.W.3d 753, 760 (Ky. 2008) (citing
Daughenbaugh v. City of Tiffin, 150 F.3d 594, 601 (6th Cir.1998)). As for the
second factor, the patio was partially enclosed by a five foot, four inch tall brick
wall. This wall provJded Appellants' with privacy as illustrated by Officer
Shepherd's testimony that the marijuana baggies were not viewable unless she.
was standing within the patio enclosure. This Court has previously found that
individuals maintain an expectation of privacy in areas with far less enclosures
or even none at all. See, e.g., Quintana, 276 S.W.3d at 760; see also
Commonwealth v. Ousley, 393 S.W.3d 15 (Ky. 2013). With respect to the third
factor, the nature of Appellants' patio use was not revealed during the
suppression hearing. Even so, it is common knowledge that a back yard,
porch, or patio is an area where private domestic activities extend. Quintana,
276 S.W.3d at 760.
Lastly, the fourth Dunn factor requires an inquiry into the steps
Appellants have taken to protect the patio from public observation. The Court
of Appeals and the trial court's analysis hinged on this factor. The lower courts
concluded that the patio was not part of the apartment's curtilage because it
was accessible via a public walkway and was not totally enclosed by a fence or
13
gate. We disagree. Nothing within our jurisprudence requires a homeowner to
totally enclose an area in order to ensure curtilage protection. See Oustey, 393
S.W.3d at 27. As the Court reasoned in Ousley, to require full enclosures in
order to extend ones curtilage is unreasonable since "[f]ew people, other than
the very wealthy, barricade their front yard so completely that a person seeking
to enter must request the unlocking of a solid gate that is higher than eye
level." Id. (quoting U.S. v. Redmon, 138 F.3d\1109, 1130 (7th Cir. 1998)
(Posner, J., dissenting)).
In light of the above-discussed Dunn factors, the Court concludes that
Appellants' back patio enjoys curtilage protection. Thusly, officers could not
have maintained ·a lawful vantage point when viewing the marijuana baggies
unless done so by virtue of a warrant, an exception to the warrant requirement,
or due to an extraneously valid reason. Coolidge, 403 U.S. at 467. As already
discussed, the office_!s' presence on Appellants' patio was not in further~ce of
a warrant, nor was it excused by any exigent circumstances. However, further
analysis is required to determine if officers were lawfully on the property due to
an extraneously valid re~son, such as a "knock and talk".
Knock and Talk
The trial court's factual findings demonstrate that Officer Shepherd
approached the back patio in an attempt to conduct a second "knock and talk"
')
14
after the prevfous front door knock was unsuccessful.I A "knock and talk" is
an investigatory procedure whereby officers knock on the door 'of a structure in
order to talk with an occupant. Quintana, 276 S.W.3d at 756 (stating that the
procedure may be utilized "for the purpose of obtaining information about a
crime that has been committed, a pending investigation, or matters of public
welfare.").
While the "knock and talk" procedure is a legitimate investigatory tool, it ·
is not without limits. Officers are still bound by the curtilage rule espoused in
Dunn, 480 U.S. 294. Nevertheless, a "knock and talk'' conducted at "the main
entrance to a home" does not violate the resident's otherwise protected
c~rtilage because it "can be assumed that the resident consented" to the
curtilage .encroachment. buintana, 276 S.W.3d at 758. In other words, law·
enforcement, like any other member of the public, have an implied license to
knock on the front door of a residence in order to speak with its occup~ts. Id.
For that reason, the main entrance of a residence, including driveways and
/'
walkways thereto, is properly "invadable" curtilage, since it is an area that is
open to the public. Id. ("[T]he basic rule is that police with legitimate business
may enter the areas of the curtilage which are impliedly open to use by the
public.").
1The record is devoid of evidence or testimony which would explain the reasons·
the other two officers were already present on Appellants' patio when Officer Shepherd
made her way to the back of the apartment.
15
.]!, 1
In light of our case ·1aw, the .Court concludes that Appellants' back sliding
glass door is not located on "invadable" curtilage. This Court has previously
explained that "[t]he back door of a home is not ordinarily understood to be
publicly accessible ... ."·Id. at 759. As a result, "knock and talk" procedures ·
are commonly violated when conducted at a back door that is not the main
entryway. See Milam v. Commonwealth, 483 S.W.3d 347, 352 (Ky. 2015).
Indeed, we doubt that a member of the public, whether it be "Girl Scouts,
pollsters, mail carriers, [or] door-to-door salesmen," would assume it ·
appropriate to enter Appellants' back patio enclosure and knock on the sliding
·glass door. Ousley, 393 S.W.3d at 30. Accordingly, we cannot surmise that·
Officer Shepherd conducting a valid "knock and talk" when she encroached
upon Appellants' back patio . Therefore, we find that officers were unlawfully
located on Appellants' patio when they viewed the marijuana baggies .
Exclusion
In light of our holdings that officers breached the curtilage of Appellants'
apartment when viewing the marijuana baggies, in addition to conducting an
illegal search of Appellants' apartment, we are now faced with whether the
evidence seized should be excluded as fruit of the poisonous tree. The
exclusionary rule declares that evidence obtained directly or indirectly through
an illegal sear:ch is not admissible against an accused. .Wilson •v.
Commonwealth, 37 S.W.3d 745, 748 (Ky. 2001.) ("[E]vidence cannot be admitt~d
against an accused if the evidence is derivative of the original illegality . . . .").
16
l.' ,, ...
The Commonwealth urges the Court to find that the taint of the officers'
illegal search was purged by Appellants' subsequent consents to search. See
Hedgepath v. Commonwealth, 441 S.W.3d 119, 125 (Ky. 2014). Although.the
trial court did not issue factual and legal findings regarding consent, and the
Commonwealth. did not preserve this. issue at the trial court, this Court has
held that the judgment ·Of a lower court can be affirmed for any reason
supported by the record. See Ky. Farm Bureau Mut. Ins. Co. v. Shelter Mut.- Ins.
Co., 326 S.W.3d 803, 805 n. 3 (Ky. 2010) (noting that a court may affirm for
any reason appearing in the record). Here, the Court of Appeals addressed the
issue of consent; therefore, we cannot say procedurally that the issue was
unpreserved and will address it accordingly.
"Even if a consent later followed, when an individual consents to a
search after an illegal entry is made, consent is not valid and suppression is_
required of any items seized -during the .search ... , unless the taint of the initial
entry has been dissipated before the consents to search were given."· U.S. v.
Hardin, 539 F.3d 404, 424 (6th Cir. 2008) (internal quotations and citations
}
omitted). "The Commonwealth b~ars the burden of demonstrating that consent
was freely obtained." Milam v. Commonwealth, 483 S.W.3d 347, 352 (Ky.
2015) ..
As the Court of Appeals stated in Stevens v. Commonwealth, 354 S.W.3d
586, 591 (Ky. App. 2011), and as we later acknowledged in Milam, 483_S.W.3d
at 352,
r'
17
I
a subsequent consent to search .may dissipate \
the taint of a prior illegality.... The admissibility of
the challenged evidence involves a two-part test: (1)
whether the consent was voluntary and (2) whether
the consent was an independent act of free will.
Looking at the second inquiry, [f]actors relevant
to whether consent was an independent act of free will
include: (1) the temporal proximity of the illegal
conduct and the consent; (2) the presence of
intervening circumstances; and (3) the purpose and
)
flagrancy of the initial misconduct.
Stevens, 354S.W.3d at 591 (internal quotations and citations omitted) (holding
that a defendant's wife's consent to search was voluntary and attenuated
enough to _remove the taint of the officers' improper search of a Kawasaki on
the defendant's property).
Applying 'these factors to the instant case, Appellants arrived home to
find that the police officers had already searched their apartment and found
l
contraband, at which point the officers then asked for written consent. Unlike
in Stevens, ~nly mere minutes passed between the officers' initial illegal search
and Appellants' consent. A "substantial period of time supports attenuation
mor.e than consent obtained in close proximity to the initial violation." Id.
(citing U.S. v. Simpson, 439 F.3d 490, 495, n. 3 (8th Cir. 2006) (noting that a
closer time period between the initial illegality ~d the defendant's consent
makes it more likely that the consent was the product of police misconduct)).
Second,·no intervening circumstances occurred between the· illegal search and
the officers' use of the contraband, although unseized, as leverage to obtain
consent. We can.not assume that Appellants would have given consent if the
18
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officers had not informed them of the initial search. Third, the officers' entry·
into and search of the apartment was flagrantly inappropriate.
Thus, Appellants' consen~ was not an act of free will sufficient to
dissipate the taint of the initial illegal search. "The evidence discovered as a
result of the detectives' unlawful entry must be suppressed." Milam, 483
S.W.3d at 352·(citing Wong Sun v. U.S., 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d
441 (1963)). Since the first search was improper, and the consent was not
attenuated enough in time or pr~xi~ity to cure the illegality, the evidence
)
seized during the second search must be excluded as fruit of the poisonous
tree.
Conclusion
For the aforementioned reasons, we reverse the opinion of the Court of
Appeals, vacate the Fayette Circuit Court's order denying Appellants' motion
for suppression, and remand this case back to the trial court for further
proceedings consistent with this opinion.
All sitting. All concur.
COUNSEL FOR APPELLANT,
,- . "' JOSEPH PACE:
. ·
Steven Jared Buck
Assistant Public Advocate
COUNSEL
. I
FOR APPELLANT, BRANDON
,
COLLINS:
Linda Roberts Horsman
Assistant Public Advocate
' J
19
.J" QI ~
COUNSEL FOR APPELLEE:
Andy Beshear
Attorney General of Kentucky
James Daryl Havey
Assistant Attomey General
20
'upr~ttt~ filnurf nf ~~nfurku
2015-SC~000399-DG
I
JOSEPH.PACE APPELLANT
ON APPEAL FROM FAYETTE CIRCUIT COURT
V. HONORABLE JAMES D. ISHMAEL, JUDGE
NO. 13-CR-00566-002 -
COMMONWEALTH OF KENTUCKY APPELLEE
AND 2015-SC-000400,,DG
BRANDON COLLINS APPELLANT
I
ON APPEAL FROM FAYETTE CIRCUIT COURT
v. HONORABLE JAMES D. ISHMAEL, JUDGE
NO. 13-CR-00566-002
COMMONWEALTH OF KENTUCKY APPELLEE
ORDER DENYING PETITION FOR REHEARING
AND GRANTING MODIFICATION
This.matter is before the Court on the Commonwealth's Petition for
I "
Rehearing on the Opinion ·of the Cour~ by Justice Cunningham, rendered
March 23, 2017. The Court having reviewed the record and being otherwise
fully and sufficiently advised; ORDERS:
1) The Commonwealth's Petition for Rehearing on the Opinion of the
Court rendered March 23, 2017 is DENIED; and
-2) On the Court's own Motion, the Opinion is MODIFIED on its face
' '
,
by substitution of the attached opinion in lieu of the original opinion rendered
.
,,,
"
March 23, 20 i 7. Said modification occurs on pages 17 -19 and does not affect
the holding:
All sitting. All concur.
ENTERED: September 28, 2017:
\
CH
(