Johnson v. Commonwealth

1

ERNEST JOHNSON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

No. 2022-CA-1429-MR

Court of Appeals of Kentucky

November 3, 2023

NOT TO BE PUBLISHED

APPEAL FROM BARREN CIRCUIT COURT HONORABLE JOHN T. ALEXANDER, JUDGE ACTION NO. 22-CR-00130

BRIEFS FOR APPELLANT: Emily Holt Rhorer, Frankfort, Kentucky.

BRIEF FOR APPELLEE: Daniel Cameron, Attorney General of Kentucky Courtney J. Hightower, Assistant Attorney General, Frankfort Kentucky.

BEFORE: COMBS, JONES, AND MCNEILL, JUDGES.

OPINION

COMBS JUDGE.

In this criminal case, the Appellant, Ernest Johnson (Johnson), appeals from the denial of his motion to suppress. After our review, we affirm.

On March 16, 2022, a Barren County Grand Jury indicted Johnson, charging him as follows: Count 1 -- Trafficking in a Controlled Substance, 1st Degree (Methamphetamine), 2 Grams or More, 1st Offense; Count 2 -- Possession of a Controlled Substance, 1st Degree (Hydrocodone), 1st Offense; Count 3 -- Possession of a Controlled Substance, 2nd Degree (Suboxone); Count 4 -- Drug Paraphernalia-Buy/Possess; Count 5 -- Possession of Marijuana; Count 6 - Persistent Felony Offender, 1st Degree.

On July 11, 2022, Johnson filed a motion to suppress any evidence allegedly obtained illegally during the search of a vehicle. The motion was heard on July 27, 2022, and the parties submitted post-hearing briefs. By Order entered on September 22, 2022, the trial court denied Johnson's motion as follows:

This case involves a warrantless search. On January 20, 2022, Officer Andrew Moore with the Glasgow Police Department went to a residence . . . in Glasgow. He knew that [Johnson] who had four active bench warrants, dated a woman who had family at that location. Through monitored telephone conversations, [Officer] Moore had information that Johnson might be at the residence. The homeowner, Jerry Spathe, acknowledged that Johnson frequented the home but did not confirm that he was there at the time. He [Spathe] did, however, give consent to search anywhere on the property. In fact, he gave Officer Moore the keys to an outbuilding or detached garage behind the home so he could enter it to search.

Ultimately, officers found and arrested Johnson. In the garage, they also located a gray Scion automobile, which was registered to Johnson's ex-wife. When officers asked for consent to search the vehicle, Johnson declined, stating that he did not own it so they would have to ask someone else. The officers searched the vehicle and found various illegal drugs and . . . paraphernalia. That they lacked a warrant authorizing a search of the car is uncontroverted.

The trial court explained that as a general rule, warrantless searches are per se unreasonable, but it noted that there is an exception that applies in the probation context:

When an officer has reasonable suspicion that a probationer subject to a search condition is engaged in criminal activity, there is enough likelihood that criminal conduct is occurring that an intrusion on the probationer's significantly diminished privacy interests is reasonable.

United States v. Knights, 534 U.S. 112, 121, 122 S.Ct. 587, 593, 151 L.Ed.2d 497 (2001).

The trial court took judicial notice of the fact that at the time of the incident, Johnson was on active probation in two Barren Circuit Court cases and that the final judgments in each included the following language: "the Defendant shall consent to the search of his/her person, home, automobile and/or property upon the request of any peace officer[.]"

The trial court disagreed with Johnson's argument that he did not consent to the search and explained that:

[T]he United States Supreme Court has specifically stated that "[t]he same circumstances that lead us to conclude that reasonable suspicion is constitutionally sufficient also render a warrant requirement unnecessary." [ Knights, 534 U.S. at 121.] Stated more simply, when a person is required, as a condition of probation, to consent to a search upon reasonable suspicion, no search warrant is required. Under those circumstances, there is no constitutional right to object to a search.

There was more than enough suspicion to justify invocation of this rule. Johnson had multiple arrest warrants, including warrants for probation violations. At least one of the officers was familiar with Johnson and had previously arrested him on drug charges. Further, officer had listened to telephonic discussions involving references to illegal drugs and implicating Johnson. He was hiding from officers as they attempted to locate him. As noted by the Commonwealth, Johnson refused permission to search even though he was on supervised probation. This information, considered together, provided reasonable suspicion that Johnson was involved in illegal activity.

Suppression of evidence pursuant to the exclusionary rule applies only to searches that were carried out in violation of an individual's constitutional rights. Without a constitutional right, underpinning his motion to suppress, an accused has no basis to seek application of the exclusionary rule. Because Johnson had consented to the search, by virtue of his request for probation and his acceptance of the terms as set out in the Final Judgments, there was no violation of a constitutional right.

(Footnotes omitted.)

The trial court also noted the Commonwealth's argument that Johnson lacked standing to claim a violation of his Fourth Amendment rights since he acknowledged that he did not own the vehicle. However, the trial court explained that it was not necessary to address that argument in light of its "determination that Johnson had waived his right to refuse consent upon reasonable suspicion of illegality."^[1]

On October 31, 2022, Johnson entered a conditional plea of guilty to Counts 1 through 5 of the indictment, reserving his right to appeal the denial of his motion to suppress. The Commonwealth moved to dismiss Count 6. On November 1, 2022 the trial court entered judgment on a guilty plea and sentenced Johnson to a total of five-years'...