Whitworth v. Commonwealth

RANDALL F. WHITWORTH APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

NO. 2019-CA-000568-MR

Commonwealth of Kentucky Court of Appeals

APRIL 24, 2020

NOT TO BE PUBLISHED

APPEAL FROM CALDWELL CIRCUIT COURT

HONORABLE C.A. WOODALL, III, JUDGE

ACTION NO. 17-CR-00199

OPINION

AFFIRMING

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BEFORE: CLAYTON, CHIEF JUDGE; DIXON AND MAZE, JUDGES.

DIXON, JUDGE: Randall Whitworth appeals his judgment and sentence entered on April 3, 2019, by the Caldwell Circuit Court. Following review of the record, briefs, and law, we affirm.

FACTS AND PROCEDURAL BACKGROUND

On October 16, 2017, Detective Mike Lantrip and other officers with the Pennyrile Narcotics Task Force followed a confidential informant ("CI") to Whitworth's residence. The CI gave Shane Parker a one-hundred-dollar bill provided to him and documented by the task force. Parker entered Whitworth's residence and returned to the CI with marijuana and methamphetamine. Det. Lantrip and other officers met with the CI while Det. Trent Fox continued surveillance of the residence.

When Det. Lantrip and two other detectives from the task force returned, Det. Fox informed them that over the course of approximately two hours, he had observed numerous vehicles arrive and individuals enter and exit the residence from its back door. The detectives decided to perform a "knock and talk" and approached Whitworth's back door which, based on Det. Fox's observations, appeared to be the main entrance of the house. None of the detectives were in uniform or had badges or guns displayed as they approached the residence.

Det. Lantrip knocked on the door, and David Oliver—a convicted felon who had previously worked with Det. Lantrip and Det. Fox—opened the door wide and stepped aside, saying nothing. The detectives stepped inside and smelled marijuana. They then moved to the kitchen area near the back door and saw digital scales, a marijuana pipe, and plastic bags containing marijuana.Whitworth identified himself as the homeowner and was advised of his Miranda¹ rights by Det. Lantrip.

Det. Lantrip asked Whitworth for permission to search the residence. Whitworth consented, stating something to the effect of, "Why not, you've already got it." The detectives searched the remainder of the residence and discovered additional contraband. When the detectives searched Whitworth's person, they found the money from the controlled buy. Whitworth was arrested and charged with trafficking in a controlled substance, first offense;² trafficking in marijuana, more than eight ounces but less than five pounds, first offense;³ and possession of drug paraphernalia.⁴

On January 24, 2018, Whitworth moved the trial court to suppress "any and all evidence seized as a result of the unlawful search made of his residence." The Commonwealth responded, and a suppression hearing was held. On June 1, 2018, the trial court entered its findings of fact, conclusions of law, and order denying Whitworth's suppression motion.

On February 26, 2019, the morning of trial, Whitworth's counsel orally moved the trial court to permit him to withdraw as Whitworth's counsel due to a potential conflict of interest as a result of his previous representation of Parker. The trial court heard arguments of counsel but verbally denied counsel's motion, finding no actual conflict existed.

Whitworth did not testify at trial, but Det. Lantrip, Det. Fox, and Oliver did. The jury found Whitworth guilty of all charges and recommended a total sentence of fifteen years' imprisonment. On April 3, 2019, the trial court entered the judgment and sentence, consistent with the jury's recommendations, and this appeal followed.

SUPPRESSION OF EVIDENCE

Whitworth's first assignment of error concerns the trial court's denial of his suppression motion. The standard of review of denial of a motion to suppress is two-fold: "[f]irst, the trial court's findings of fact are conclusive if they are supported by substantial evidence; and second, the trial court's legal conclusions are reviewed de novo." Milam v. Commonwealth, 483 S.W.3d 347, 349 (Ky. 2015) (citing Commonwealth v. Marr, 250 S.W.3d 624, 626 (Ky. 2008); RCr⁵ 9.78⁶). "At a suppression hearing, the ability to assess the credibility ofwitnesses and to draw reasonable inferences from the testimony is vested in the discretion of the trial court." Pitcock v. Commonwealth, 295 S.W.3d 130, 132 (Ky. App. 2009) (citing Commonwealth v. Whitmore, 92 S.W.3d 76, 79 (Ky. 2002)). "In conducting our review, our proper role is to review findings of fact only for clear error while giving due deference to the inferences drawn from those facts by the trial judge." Perkins v. Commonwealth, 237 S.W.3d 215, 218 (Ky. App. 2007) (citing Whitmore, 92 S.W.3d at 79). Herein, Whitworth does not take issue with the trial court's factual findings. Therefore, all factual findings are conclusive, and we review the legal conclusions de novo.

Whitworth contends the trial court erred in its conclusions of law because the detectives impermissibly entered the curtilage of his house, and subsequently his house, making any evidence seized fruit of the poisonous tree. See Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963). The trial court made the following conclusions of law regarding whether the detectives impermissibly entered the curtilage of his residence:

1. It was axiomatic that warrantless searches of persons and houses are "per se" unreasonable, absent specifically established and well-delineated exceptions. [Pace v. Commonwealth, 529 S.W.3d 747, 753 (Ky. 2017), as modified (Sept. 28, 2017).] A "knock and talk" procedure is an appropriate police tool, subject to there being no violation of the curtilage of a person's house where an individual may reasonably expect to be treated as private as the home itself. [Quintana v. Commonwealth,] 276 S.W.3d 753 (Ky. 2008).

2. The Commonwealth has the burden of proving the exception to the requirement for a warrant. [See Commonwealth v. Johnson, 777 S.W.2d 876 (Ky. 1989).]

3. Generally speaking, the main entrance to a home has no expectation of privacy by the resident. A police officer who approaches the main entrance has the right to be there just as any member of the public might have.

4. While the [Pace] case dealt with and held that the back patio enjoyed the curtilage protection as did the back door, it was found not to be the main entrance, unlike the Whitworth residence. As stated in [Quintana] at page 759:

[h]owever, it is also true that customary use of a door, such as side or back door, as primary access which is known by the officer, could make that door 'publicly accessible' in a given case.

5. The Whitworth back door on the day in question did not have curtilage protection and Mr. Whitworth had no reasonable expectation of privacy at the back door, with visitors using it as the main entrance, so the knock and talk at that location did not violate Mr. Whitworth's constitutional rights.

Concerning the right to privacy an individual possesses in their curtilage:

The concept of curtilage began in common law, extending the same protection afforded the inside of one's home to the area immediately surrounding the dwelling. United States v. Dunn, 480 U.S. 294, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987). In Oliver v. United States, 466 U.S. 170, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984), the United States Supreme Court recognized that the Fourth Amendment protects the curtilage of a house, and thearea covered extends to that which an individual may reasonably expect to be treated as the home itself. In Dunn, the Supreme Court established four analytical, non-exclusive factors which should be applied to solve curtilage questions: the proximity of the area to the home, whether the area is included in an enclosure with the home, how the area is used, and the steps the resident has taken to prevent observation from the people passing by. Because there is no expectation of privacy for anything that can be observed from outside the curtilage, either by sight or other senses, the focus of a knock and talk analysis must be on the right of access to private property within the curtilage.

. . . .

Whether an officer is where he has a right to be when he does the knock and talk is defined by his limited purpose in going to the residence and the nature of the area he has invaded. There has been no finding of probable cause sufficient to grant a warrant, so the knock and talk is limited to only the areas which the public can reasonably expect to access. While there is a right of access for a legitimate purpose when the way is not barred, or when no reasonable person would believe that he or she could not enter, this right of access is limited. The resident's expectation of privacy continues to shield the curtilage where an outsider has no valid reason to go. Thus any part of the curtilage may be protected, including driveways, depending on the circumstances of each case. United States v. Smith, 783 F.2d 648 (6th Cir.1986). The back door of a home is not ordinarily understood to be publicly accessible, and thus could be subject to the curtilage rules where the front door would not be. However, it is also true that customary use of a door, such as a side or back door, as primary access which is known by the officer, could make that door "publicly accessible" in a given case. This highlights the importance of applying this analysis to the facts of each case.

Quintana, 276 S.W.3d at 757, 759 (emphasis added).

We have carefully reviewed the record and the law relevant to the present challenge and discern no error. Contrary to Whitworth's assertions, the detectives did not violate his reasonable expectation of privacy nor improperly invade the curtilage of his residence. Det. Fox observed numerous individuals access Whitworth's residence over the span of two hours solely through the back door. Thus, the trial court's finding that the back door was the primary access to Whitworth's residence was...