Commonwealth v. Hatcher

Dissenting Opinion by

Justice GRAVES.

Respectfully, I must dissent from the majority’s opinion because I believe it is patently contrary to the standards set forth in both federal and Kentucky jurisprudence. The probable cause standard was clearly met to justify a “plain view” seizure of the pipe in this case. Accordingly, I would reverse the Court of Appeals and affirm the trial court’s ruling.

The majority concedes that once Officer Carr detected the smell of marijuana emanating from the pipe, he had probable cause to believe the pipe was drug paraphernalia. Yet, the majority refuses to consider this additional evidence since Officer Carr did not smell the marijuana until he entered the premises. According to the majority, whether or not Officer Carr was given consent to enter the premises was not “preserved for review.”

I must disagree, as I find the majority’s conclusion to be unsupported by the record. The trial court’s written findings of fact state; “The child allowed Officer Carr into the residence and upon further examination Officer Carr detected the odor of marijuana emanating from the pipe.” (Emphasis added). The trial court further concluded as a matter of law, “When Officer Carr observed the pipe he was in a place he was legally entitled to be. Therefore, the plain view exception to the prohibition against warrantless searches applies .... ” (Emphasis added). It is unmistakable from these written statements that the trial court considered and ruled on the consent issue,1 determining that Officer Carr was legally entitled to enter the house and further observe the pipe. Accordingly, the issue is properly preserved for our review. See Commonwealth v. Maricle, 15 S.W.3d 376, 380 (Ky.2000) (issues “raised and ruled on by the trial court” are proper for appellate court review).

*130Since the trial court’s determination of probable cause was premised upon the assumption that Officer Carr was in a place he was legally entitled to be when he detected the smell of marijuana emanating from the pipe, we must determine whether Officer Carr had valid consent to enter Appellant’s home. Upon proper review, both federal and Kentucky jurisprudence support the trial court’s determination that Officer Carr was given valid consent.

In Nourse v. Commonwealth, 177 S.W.3d 691 (Ky.2005), we held that “[t]he test for whether third-party consent is valid is whether a reasonable police officer faced with the prevailing facts reasonably believed that the consenting party had common authority over the premises to be searched.” Id. 696. “Common authority rests on mutual use of the property by persons generally having joint access or control for most purposes .... ” United States v. Matlock, 415 U.S. 164, 171 n. 7, 94 S.Ct. 988, 993 n. 7, 39 L.Ed.2d 242 (1974). In Nourse, supra, we stated that “in the absence of additional information to the contrary, it is generally considered reasonable for police officers to presume that persons answering knocks at the door of a residence have authority to consent to a search of that residence.” Id. at 698 (citing United States v. Jenkins, 92 F.3d 430 (6th Cir.1996)).

Two Sixth Circuit cases are directly on point and indicate unequivocally that the adolescent in this case had the common authority to allow Officer Carr into the home. In United States v. Clutter, 914 F.2d 775 (6th Cir.1990), the court held that children of twelve and fourteen years could consent to a search of the bedroom used by their mother and her male companion. Id. at 778. The Clutter court reasoned that “there is every reason to suppose that mature family members possess the authority to admit police to look about the family residence, since in common experience family members have the run of the house.” Id. at 777. In Lenz v. Winburn, 51 F.3d 1540, 1548 (11th Cir.1995), the court explained:

Four reasons support our holding that minors may give third-party consent. First, privacy is an intuitive interest, and legal sophistication is not required even for adults to give valid consent. Hence, minors need not necessarily be presumed incapable of knowing consent. Second, the list of factual considerations bearing upon the voluntariness of the consent is open-ended. The youth of the consenter, with its attendant vulnerability to coercion, is certainly among them. This individualized assessment obviates the need for a categorical rule to protect subjects of searches from subtle coercive tactics to secure a minor’s consent. Third, consent searches serve a legitimate purpose that is properly balanced against the cost of limiting a minor’s ability to consent. This balancing counsels against a bright-line rule prohibiting minor consent. Finally, the rationale behind third-party consent involves no notion of agency. Rather, the third-party consent rule recognizes that sharing space with another lessens the expectation of privacy in that space. This compromise of the expectation of privacy is no less the case for a minor co-occupant than for an adult.

Id. at 1548-49 (citations omitted).

The adolescent in this case was Appellant’s son who was estimated to be about twelve years old. Contrary to the majority’s assertions, the Commonwealth was not required to prove the adolescent’s exact age or receive testimony from the adolescent in order to establish the reasonable*131ness of Officer Carr’s actions.2 It is axiomatic that police officers are entitled to make reasonable presumptions based on facts which are reasonably available to the officer at the moment of their actions. See, e.g., Nourse, supra, at 696; Farmer v. Commonwealth, 169 S.W.3d 50, 52 (Ky.App.2005); see also, United States v. Jenkins, 92 F.3d 430, 436 (6th Cir.1996)(“con-sent is valid if ‘the facts available to the officer at the moment ... warrant a man of reasonable caution in the belief that the consenting party had authority over the premises’ ”) (quoting Illinois v. Rodriguez, 497 U.S. 177, 188, 110 S.Ct. 2793, 2801, 111 L.Ed.2d 148 (1990)). Officer Carr had every reason to believe that this adolescent was of a mature age and had full run of the house. Thus, the minor was capable of giving third-party consent to enter the premises. See also United States v. Gutierrez-Hermosillo, 142 F.3d 1225, 1231 (10th Cir.1998).

The record also supports the trial court’s conclusion that the adolescent’s consent was voluntarily given in this case. After Officer Carr spotted the suspicious looking pipe, he asked the adolescent if he could come inside. In response, the minor stepped back out of the doorway and allowed the Officer to enter the premises.

“Whether consent was free and voluntary so as to waive the warrant requirement of the Fourth Amendment is a question of fact to be determined from the totality of all the circumstances.” United States v. Carter, 378 F.3d 584, 587 (6th Cir.2004) (en banc); see also Diehl v. Commonwealth, 673 S.W.2d 711, 712 (Ky.1984). In Carter, supra, the Sixth Circuit held that consent was voluntarily given where the defendant stepped back and let plainly identified police officers into the residence upon their request. Id. at 588. The court reasoned that “[a]ny ordinary caller, under like circumstances, would understand assent to have been given, and the police are not held to a higher standard in this regard than an ordinary person.” Id. As there is nothing in the record to indicate that this adolescent was somehow intimidated, coerced, or tricked, there is clearly substantial evidence in the record to support the trial court’s conclusion that the adolescent voluntarily gave consent to Officer Carr to enter his home.

Once Officer Carr was legitimately inside the premises, he was able to get a closer look at the pipe in plain sight and detect the smell of marijuana emanating from it. The majority makes a point of noting that since Officer Carr actually picked up the pipe, instead of simply observing it, this case is akin to the facts in Arizona v. Hicks, 480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987). In Hicks, it was not possible for the officers to easily observe the stereo’s serial numbers without moving the stereo. Id. at 323, 107 S.Ct. at 1152. Moreover, the officers were required to report the serial numbers by telephone to the police station before they could determine whether there was probable cause to believe the equipment was stolen. Id. This case is easily distinguished, as manipulation of the pipe was not necessary to determine its criminal nature. Officer Carr could have detected any smells emanating from the pipe by simply bending down and did not have to engage in any outside investigation in or*132der to determine the pipe’s criminal nature. Thus, the fact that Officer Carr picked up this pipe is of no consequence whatsoever other than to draw distinctions that have no purpose. The majority’s holding in this case simply encourages officers to be more acute to arbitrary lines drawn by this court.

Once Officer Carr detected the smell of marijuana emanating from the pipe, he had probable cause to seize the pipe as it was in plain view and was likely to be destroyed or concealed if he did not immediately take steps to secure the evidence.3 Posey v. Commonwealth, 185 S.W.3d 170, 173 (Ky.2006) (“Where officers have probable cause to believe that a crime has occurred and that evidence from that crime is in imminent danger of being destroyed, it is reasonable for law enforcement officers to secure the place where the evidence is located in order to prevent its imminent destruction.”).

I would, accordingly, reverse the Court of Appeals and affirm the trial court’s ruling.

WINTERSHEIMER, J., joins this dissenting opinion.

. The majority reasons that since "the trial court could [not] have possibly made an informed decision regarding the legal effect of the minor’s actions without the benefit of the minor’s testimony,” then "it belies reason to assert that the trial court considered and ruled on the consent issue.” Ante, at 129. Whether or not the majority believes that the trial court’s decision was "informed” or not, the fact remains that the consent issue was considered and ruled on by the trial court (as there are specific findings regarding it), and thus, we are obligated to consider it.

. When the court in Clutter, supra, used the term "mature family members,” it was presuming that in the absence of circumstances indicating otherwise, adolescents between the ages of twelve and fourteen are generally mature enough to possess common authority over a family residence. See id. at 777. At no point, did the court in Clutter analyze the maturity of the particular adolescents involved in that case, as such an analysis would not only be absurd, but impractical.

. Once again, the majority’s assertion that there must be evidence or testimony regarding whether the officer perceived that the occupant of the home was likely to remove or conceal the illegal contraband is incorrect. The pipe was in plain view and easily concealable. It was perfectly reasonable to presume that such a small item was in imminent danger of being concealed or removed had Officer Carr left the residence without securing the contraband. See Posey v. Commonwealth, 185 S.W.3d 170, 173 (Ky.2006) ("Moreover, since the contraband was in plain view, it was also reasonable for them to believe that the drugs were in imminent danger of being destroyed in the absence of immediate action to secure the evidence.”).