Appendix — Rawlings v. Kentucky

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APPENDIX = = JAN 24 4989

Inu The Supreme Court of the United States

OCTOBER TERM, 1979

No. 79-5146

DAVID RAWLINGS, PETITIONER

COMMONWEALTH OF KENTUCKY, RESPONDENT

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF KENTUCKY

PETITION FOR CERTIORARI FILED JULY 30, 1979

CERTIORARI GRANTED DECEMBER 10, 1979

INDEX

Chronological list of relevant docket entries ...................

Transcript of record in Warren Circuit Court:

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Motion to suppress evidence derived from an illegal arrest ..

Motion to suppress evidence due to defective search warrant

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Motion to suppress illegally seized evidence ................

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Order sustaining motion to waive trial by jury .............

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Order scheduling announcement of verdict .................

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Transcript of suppression hearing held on November 29, 1976 in

Nis os he dc ks cee Ab abode REA a OEE

Testimony of Mr. Eddie Railey:

Direct examination by Mr. Caudill ....................

Cross-examination by Mr. Thompson ..................

Re-direct examination by Mr. Caudill .................

Transcript of suppression hearing held on December 1, 1976 in

I EIN ree hess nda wscs Sassueyeneewsccrsas

Testimony of Mr. David Rawlings:

Direct examination by Mr. Parry .................005

Cross-examination by Mr. Caudill .....................

Opinion of Kentucky Court of Appeals, filed February 17, 1978 ..

Order of Kentucky Court of Appeals denying petition for rehear-

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Dissenting Opinion of Judge Lester, Kentucky Court of Appeals,

I EE igus ch asi ceaea Gi S aps iseaabansasce keene

Order of Kentucky Supreme Court granting discretionary review,

ee ep aweae

Opinion of Kentucky Supreme Court, filed.May 1, 1979 .........

Mandate of Kentucky Supreme Court, issued May 22, 1979 .....

Order of the Supreme Court of the United States granting leave to

proceed in forma pauperis and granting petition for writ of

COPRSOPEET, SHIN By BO Lissa cevtacccscvncecesanece

CHRONOLOGICAL LIST OF RELEVANT

DOCKET ENTRIES

October 27, 1976-Defendant David Rawlings was indicted

in the Warren Circuit Court in Bowling Green, Kentucky

on four counts of trafficking in controlled substances clas-

sified in Schedules I, II and III (LSD, Benzphetamine,

Methamphetamine, and Methyprylon), on or about October

18, 1976.

November 1, 1976-Defendant David Rawlings was in-

dicted in the Warren Circuit Court for the offense of traf-

ficking in a controlled substance classified in Schedule II,

Pentobarbital, on or about October 18, 1976.

November 3, 1976-Defendant David Rawlings filed a pre-

trial motion to suppress all evidence seized in the case be-

cause that evidence was derived from an illegal arrest of

the defendant.

November 15, 1976-Defendant David Rawlings filed a

motion to suppress all evidence confiscated in the case due

to the defective search warrant and the illegal arrest of the

defendant.

November 18, 1976-Defendant David Rawlings filed a

motion to suppress all evidence seized in the case pursuant

to a search warrant because the warrant did not specifically

name any individual to be searched.

December 2 and 3, 1976-Defendant David Rawlings was

tried by judge alone.

February 11, 1977-Contrary to his plea, defendant David

Rawlings was convicted in the Warren Circuit Court of one

count of trafficking in a controlled substance classified in

Schedule I and four counts of possession of controlled sub-

stances classified in Schedules II and III; defendant Raw-

lings was sentenced to five years of imprisoninent and a

total fine of five thousand dollars ($5,000.00).

February 14, 1977-Defendant David Rawlings filed a mo-

tion for a new trial asserting that the searches and seizures

in his case were in violation of the United States Constitu-

tien.

March 14, 1977-Motion for new trial overruled; final

judgment was entered against defendant. Notice of appeal

filed in the Warren Circuit Court by defendant.

February 17, 1978-Court of Appeals of Kentucky ren-

dered its opinion in defendant’s case and affirmed the con-

Viction.

June 9, 1978-Court of appeals of Kentucky denied the

defendant’s petition for rehearing.

November 14, 1978-Supreme Court of Kentucky granted

_ defendant’s motion for discretionary review of the decision

of the Kentucky Court of Appeals.

May 1, 1979-Supreme Court of Kentucky rendered its

opinion in defendant’s case and affirmed the decision of the

Kentucky Court of Appeals.

May 22, 1979-Supreme Court of Kentucky issued man-

date in defendant’s case.

WARREN CIRCUIT COURT

INDICTMENT NOS. 17107, 17108,

17109, 17110 and 17137

COMMONWEALTH OF KENTUCKY, PLAINTIFF

Uv.

DAVID RAWLINGS, DEFENDANT

Transcript of Record on Appeal

Warren Circuit Court

October Term, 197 6

THE COMMONWEALTH OF KENTUCKY ~

AGAINST

___ David Rawlings Indictment

The Grand Jury of the County of Warren in the name and

by the authority of the Commonwealth of Kentucky, accuse

David Rawlings

of the crime of Trafficing in a Schedule I Controlled Substance

committed as follows, to-wit: The said pavia Rawlings

heretofore, to wit: On or about the 1s day ofctober A.D.,

19 76, and before the finding of this indictment in the County

aforesaid, did unlawfull 3 Y have in his possession for the purpose of

sale, a schedule I Controlled Substance, a quantity of LSD, Contrary to

KRS No. 218A.990 (2)

[Ind. No. 17107]

Done as aforesaid within the year last past and against the

peace and dignity of the Commonwealth of Kentucky.

Morris Lowe

Commonwealth's Attorney, Eighth Judicial District, Kentucky

Warren Circuit Court

OCTOBER Term, 19%___

THE COMMONWEALTH OF KENTUCKY

AGAINST

David Rawlings Indictment

The Grand Jury of the County of Warren in the name and

by the authority of the Commonwealth of Kentucky, accuse

David Rawlings

of the crime of Trafficing in a Schedule III Controlled Substance

committed as follows, to-wit: The said David Rawiings

heretofore, to wit: On or about theis day of october A.D.

19 76, and before the finding of this indictment in the County

aforesaid, did unlawfully, and knowingly have in his possession, for

purpose of sale, a schedule III controlled substance, a quantity of

Benzphetamine, Contrary to KRS Number 218A.990 (2)

[Ind. No. 17108]

Done as aforesaid within the year last past and against the

peace and dignity of the Commonwealth of Kentucky.

Morris Lome

Commonwealth’s Attorney, Eighth Judicial District, Kentucky

Warren Circuit Court

ocToBER. Term, 1976

THE COMMONWEALTH OF KENTUCKY ©

AGAINST

DAVID RAWLINGS Indictment

The Grand Jury of the County of Warren in the name and

by the authority of the Commonwealth of Kentucky, accuse

DAVID RAWLINGS

of the crime of tTrarriciNG IN A SCHEDULE II CONTROLLED SUBSTANCE

committed as follows, to-wit: The said pavip RAWLINGS

heretofore, to wit: On or about the 18 day of ocroser A.D.,

19 76 , and before the finding of this indictment in the County

aforesaid, did unlawfully, and knowingly have in his possession, for

purpose of sale, a schedule II controlled substance, a quantity of

Methaamphetamine, Contrary to KRS Number 218A.990 (2)

(Ind. No. 17109]

Done as aforesaid within the year last past and against the

peace and dignity of the Commonwealth of Kentucky.

Morris Lowe

Commonwealth’s Attorney, Eighth Judicial District, Kentucky

Warren Circuit Court

OCTOBER Term, 197 §

THE COMMONWEALTH OF KENTUCKY }

AGAINST

DAVID RAWLINGS Indictment

The Graud Jury of the County of Warren ic the name and

by the authority of the Commonwealth of Kentucky, accuse

DAVID RAWLINGS

of the crime of TRAFFICING IN A SCHEDULE III CONTROLLED SUBSTANCE

committed as follows, to-wit: The said DAVID RAWLINGS

heretofore, to wit: On or about the 18 day of ocTOBER AD.,

1976 , and before the finding of this indictment in the County

aforesaid, did unlawfully, and knowingly have in his possession, for

purpose of sale, a schedule III controlled substance, a quantity of

Methyprylan, Contrary to KRS Number 218A.990 (2)

[Ind. No. 17110]

Done as aforesaid within the year last past and against the

peace and dignity of the Commonwealth of Kentucky.

Morris Lowe

Commonwealth’s Attorney, Eighth Judicial District, Kentucky

Warren Circuit Court

NOVEMBER Term, 197 6

THE COMMONWEALTH OF KENTUCKY ©

AGAINST

DAVID RAWLINGS Indictment

The Grand Jury of the County of Warren in the name and

by the authority of the Commonwealth of Kentucky, accuse

DAVID RAWLINGS

of the crime of TRAFFICING IN A SCHEDULE II CONTROLLED SUBSTANCE

committed as follows, to-wit: The said DAVID RAWLINGS

heretofore, to wit: On or about the 18 day of OCTOBER A.D.,

1976 , and before the finding of this indictment in the County

aforesaid, did unlawfully, and knowingly have in his possession, for

purpose of sale, a schedule II controlled Substance, a quantity of

Pentobarbitai, Contrary to KRS Number 218A.990 (2)

[Ind. No. 17137]

Done as aforesaid within the year last past and agaiust the

peace and dignity of the Commonwealth of Kentucky.

Merris Lowe

Commonwealth’s Attorney, Eighth Judicial District, Kentucky

WARREN CIRCUIT COURT

DIVISION II

Indictment Nos. 17107-a

17107-b through 17110

COMMONWEALTH OF KENTUCKY

Plaintiff

US,

DAVID RAWLINGS |

Defendant

MOTION TO SUPPRESS

Comes the Defendant, David Rawlings, and moves the

Court to suppress all evidence seized in this action because

said evidence was derived from an illegal arrest of the De-

fendant without probable cause by the arresting officers.

WHEREFORE, the Defendant prays the Court to grant

said Motion.

Kelly Thompson, Jr.

Attorney for Defendant

CERTIFICATE:

This is to certify that a true copy of the foregoing was

this day served upon the Honorable Morris Lowe, Com-

monwealth Attorney.

Kelly Thompson, Jr.

NOTICE:

Foregoing Motion will be brought on for hearing by the

Court on November 10, 1976, at the Pretrial Conference of

this styled action.

Kelly Thompson, Jr.

wet mene

—

WARREN CIRCUIT COURT

DIVISION II

| Indictment Nos. 17107 17107-A,

17108, 17109, and 17110

COMMONWEALTH OF KENTUCKY

Plaintiff

US.

DAVID RAWLINGS

Defendant

MOTION TO SUPPRESS

es the Defendant, David Rawlings, by Counsel and

he Court to suppress the evidence confiscated in the

above attion in that the Warrant for said search was defec-

tive as rhe Defendant, David Rawlings; and also, in that

the search \of the Defendant was conducted after an illegal

arrest of the Defendant.

WHEREFORE, the Defendant prays the Court to grant

the above Motivn.

Kelly Thompson, Jr.

Attorney for Defendant

CERTIFICATE:

This is to certify a true copy of the foregoing was this day

day served upon the Hyn. Morris Lowe. This____day of

November, 1976.

Kelly Thompson, Jr.

Attorney for Defendant

NOTICE:

The foregoing Motion will be brought on for hearing be-

fore the Trial of this action on November 23, 1976, at the

hour of 9:00 A.M.

Kelly Thompson, Jr.

WARREN CIRCUIT COURT

Division II

Indictment Nos. 17107, 17108,

17109, 17110, and 17137

COMMONWEALTH OF KENTUCKY

Plaintiff

US,

DAVID RAWLINGS

Defendant

MOTION TO SUPPRESS ILLEGALLY

SEIZED EVIDENCE

Comes the Defendant, David Rawlings, by counsel, and

moves the Court to suppress all evidence seized in this ac-

tion pursuant to a Search Warrant issued by County Judge,

Basil Griffin, in that said Search Warrant does not specif-

ically name any individual to be searched.

In support of this Motion, Defendant sites the United

States of America V. Festa, 192 F. SUPP 160 (1960);

United Strates V. DiRE, 332 U.S. 581; Marron V. United

States, 275, U.S. 192; United States V. Haywood, 284 F.

SUPP 245 (1968). : ,

WHEREFORE, the Defendant prays the Court to grant

the above Motion.

Kelly Thompson, Jr.

CERTIFICATE:

This is to certify that a true copy of the foregoing was

this day served upon the Honorable Morris Lowe, Com-

monwealth Attorney.

Kelly Thompson, Jr.

NOTICE: ,

The foregoing Motion will be brought on for hearing be-

fore the Court at 3:45 P.M. on November 22, 1976.

Kelly Thompson, Jr.

WARREN CIRCUIT COURT

DIVISION II

Indictment Nos. 17107-A

17107-B, through 17110

COMMONWEALTH OF KENTUCKY

Plaintiff

US.

DAVID RAWLINGS

Defendant

MOTION TO WAIVE TRIAL BY JURY

Comes the Defendant, David Rawlings, and moves the

Court to allow the Defendant to waive his right to a trial by

Jury so as to conduct a trial of this case solely before the

Honorable Judge J. David Francis.

Wherefore, the Defendant prays the Court to grant the

above Motion. }

Kelly Thompson, Jr.

Attorney for Defendant

CERTIFICATE:

This is to certify that a true copy of the foregoing was

this day served upon the Honorable Morris Lowe, Com-

monwealth Attorney.

Kelly Thompson, Jr.

NOTICE:

The foregoing Motion will be brought on for hearing on

Monday, November 29, 1976, at the hour of 2:00 p.m.

Kelly Thompson, Jr.

WARREN CIRCUIT COURT

Division No. II

Indictment Nos. 17107, 17108

17109, 17110, 17137

COMMONWEALTH OF KENTUCKY

Plaintiff

US,

DAVID RAWLINGS

Defendant

ORDER SUSTAINING DEFENDANT, DAVID

RAWLINGS’ MOTION THAT HE BE ALLOWED TO

WAIVE A JURY TRIAL AND BE TRIED BY THE

COURT

Prior to the beginning of the above styled case, the Court

took notice of the fact that the Defendant had filed a writ-

ten Motion Waiving Jury Trial and allowing him to be tried

solely by the Court. The Court, with the Defendant Raw-

lings present, with his attorneys, first OVERRULED the

Motion as the Court felt that the Defendant may not fully

understand the matter sufficiently to intelligently make

such a waiver, and thereupon a Suppression Hearing was

held, at which time the Defendant and his counsel, the

Honorable Ron Parry and the Honorable Kelly Thompson,

were present and the Defendant’s father was also present,

and at the conclusion of this Hearing, the Defendant, with

his counsel, left. Shortly thereafter the Defendant re-

entered this Court’s chambers and announced that he

wanted to talk with the Judge. The Court looked up from

his desk and informed the Defendant that he could not talk

without his attorney being present, but then noted that his

attorneys, Parry and Thompson, were right behind him,

and that the Defendant then, in his own words, said

“Judge, I want to be tried without a Jury”.

The Court then took into consideration the case of Short

v. Commonwealth, 519 SW2d, 828, and again questioned

the Defendant carefully and determined that the Defendant

was twenty-one (21) years of age, was 4 high school

graduate, and had formerly been enrolled, but not

graduated from, Western Kentucky University, that he

was intelligent and articulate, and had the advice of two

employed attorneys who appeared knowledgeable and cap-

able in advising this Defendant, and the Defendant’s father

was also present, and that it further appeared to the Court

that this was the Defendant’s decision and that it had a

sound basis in law and fact.

NOW THEREFORE IT IS ORDERED, DIRECTED,

AND ADJUDGED, that the Defendant be, and he is

lg allowed to be tried before the Court without a

ury.

This the Ist day of December, 1976.

JUDGE, WARREN CIRCUIT

COURT DIVISION II

WARREN CIRCUIT COURT

Division II

Indictment Nos. 17107,

17108, 17109, 17110, 17137

COMMONWEALTH OF KENTUCKY

Plaintiff

US,

DAVID RAWLINGS

Defendant

TRIAL ORDER

The defendant being present and represented by attor-

ney’s Ron Perry, and Kelly Thompson. The Commonwealth

being represented by Mike Caudill, Asst. Commonwealth

Attorney. A motion having been made that this defendant

be tried by the Court without a jury, and after extension

examination of the defendant by the Judge, in the presence

of the defendant’s father, it was ordered that the Court

would try this case without the jury, as the defendant hav-

ing stated that this was his desire. The defendant waived

the reading the the indictments, but the Judge inquired of

him as to his plea in each case, to which he entered Not

Guilty to each indictment. The Commonwealth Attorney

announced that he would let the indictments stand as his

opening statement, and the defense reserved opening

statements. The Commonwealth proceeded to call their

witnesses.

The lunch hour approaching, Court recessed at 11:40

A.M. and all parties were requested to return at 2:00 P.M.

Again Commonwealth witnesses were heard continuously

except for a short recess at 3:20 P.M. until 6:00 P.M. at

which time Court adjourned until 9:30 the following morn-

ing December 3, 1976.

On Friday morning, December 3, 1976, Court resumed,

with the further testimony of Commonwealth witnesses.

The Commonwealth closed their case in chief at 10:50 A.M.

At this time the defense witness were then called. They

announced their case closed at 11:12 A.M. Rebuttal tes-

timony was started by the Commonwealth. During the tes-

timony of Eddie Raily, a question arose that the defense

had not been able to have the substances in question

analyzed. At this time Morris Lowe, Commonwealth Attor-

ney, had a motion that the case be continued so that the

defense could have the substances examined by a chemist of

their choosing, who was duly certified and qualified by the

Federal Drug Administration. The Judge took this under

advisement and adjourned until 1:00.

At 1:00 P.M. Court again resumed, the Judge announced

that he had considered the motion and would Sustain same.

Mr. Lowe then made a motion that the money held as evi-

dence in this case be returned to the defendant, said motion

Sustained. Arguments for both the Commonwealth and

defense were heard by the Judge, and he recessed until 4:00

P.M.

When Court resumed at 4:00 P.M. further arguments,

were heard and citiations were presented to the Court. The

Court then ruled, that each attorney would be allowed to

file a brief, these briefs’ were to be filed simultaneous by

Monday January 10, 1978. It is Ordered that this case be

passed until January 10, 1976.

This-————day of , 1976.

JUDGE, WARREN CIRCUIT COURT

DIV. Il. JDF

WARREN CIRCUIT COURT

Division II

Indictment Nos. 17107, 17108,

17109, 17110, and 171387

COMMONWEALTH OF KENTUCKY

Plantiff

US,

DAVID RAWLINGS

Defendant

ORDER

The Court having heard the testimony and proof in the

above-styled action, and having considered same;

IT IS HEREBY ORDERED that the Defendant, De-

fendant’s Counsel, and the Commonwealth Attorney be

present in the Warren Circuit Courtroom at 11:00 a.m. Fri-

day February 11th, 1977, at which time a decision will be

handed down in this case.

This 9th day of February, 1977.

J. David Francis, Judge

Division Two

Warren Circuit Court

WARREN CIRCUIT COURT

Division II

Indictment Nos. 17107, 17108,

17109, 17110, 17137

COMMONWEALTH OF KENTUCKY

Plaintiff

US.

DAVID RAWLINGS

Defendant

ORDER

In the above styled Indictments the Defendant, David

Rawlings, in each Indictment is charged with the offense of

knowingly having in his possession for purpose of sale the

following listed substances:

Ind. No. 17107 —_ Lysergie Acid Schedule I

Diethylamide

Ind. No. 17108 Benzphetamine Schedule III

Ind. No. 17109 Methamphetamine Schedule II

Ind. No. 17110 Methyprylon Schedule III

Ind. No. 17137 — Penobarbital Schedule II

Ind. No. 17107-A Phentabarbital Schedule II

Ind. No. 17107-B Amphetamines Schedule II

The following of the above have at some stage of the pro-

ceedings been dismissed.

Ind. No. 17107-A Phentabarbital Schedule II

Ind. No. 17107-B Amphetamines Schedule IT

The Defendant had filed a written Motion for this case to

be heard before the Court without the intervention of a

Jury and this motion was OVERRULED. On Monday,

November 29, 1976, a Suppression Hearing was held and

the Court Ordered that the items which were the subject of

the search and seizure were admissible into evidence and

ray the case would go to trial as scheduled on the following

ay.

The Motion to be heard by the Court without a Jury was

again made and the Court then entered an Order permit-

ting the Defendant to be tried by the Court without a Jury

and a written Order stating the reasons for the Court’s

ruling has heretofore been entered and the case went to

trial before the Court.

The Court gave the defense a continuing objection to all

matters related to the introduction of the controlled sub-

stances and the facts as found by the Court relative to their

introduction and the content of the Suppression Hearing is

as follows:

Officer Eddie Railey, of the Kentucky State Police, Drug

Section, and several other officers, among them Detective

Glen Wood, of the Commonwealth Attorney’s office, Detec-

tive Bevins of the Kentucky State Police, and about three

more in the process of serving bench warrants and making

numerous arrests on sealed Indictments on what might be

called a “drug roundup”, went to the residence of Marty

Marquess at 1264 Adams Street, Bowling Green, Warren

County, Kentucky, for the purpose of serving a bench war-

rant on Marquess for his arrest for the sale of Lysergic

Acid Diethylamide; the sale having been made to under-

cover agents in this house and that going through the house

they had seen a gun in Marquess’ room but without know-

ing whether or not it was loaded and without having access

to it.

On arriving there they were told that Mr. Marquess was

not present. They entered the residence to look for Mar-

quess themselves and found that those present were Dennis

Sadler, who lived at the residence; Vanessa Cox; the De-

fendant, David Rawlings; Keith Northern; and Brenda

Braden. The last two above named apparently had just ar-

rived ahead of the officers. The officers went through the

house looking for Marquess and in the process of doing so,

noted a strong smell of marijuana smoke and in Marquess’

room saw mariguana seeds lying on a mantel piece or some

kind of a ledge or shelf. The officers determined to get a

search warrant to search the house and Officer Railey and

another officer left to go to the Courthouse to get a search

warrant from the County Judge, the Honorable Basil Grif-

fin. The other officers were left in charge and the persons

above named in the residence were ordered to remain there

pending the return of Officer Railey with the search war-

rant. The witnesses gave different times for how long it

took for Officer Railey to get the search warrants, and

these times ranged from 30 minutes to an hour. It is only

about a six block drive from the site of this house to the

County Courthouse and Officer Railey testified that upon

entering the Courthouse he saw Morris Lowe, Common-

wealth’s Attorney, and told him what happened and Mr.

Lowe accompanied him to the County Judge’s office where

the County Judge saw them without delay. The search war-

rant was completed and they returned immediately to 1264

Adams Street.

The Court finds as a matter of fact and a matter of law

that restraining the five (5) persons was not unreasonable

or unlawful. The Court finds that the search warrants as

issued as a matter of fact and as a matter of law is proper

and adequate to legally authorize the officers to search the

residence.

Northern and Braden, in the absence of Officer Railey,

had voluntarily submitted to a search and had been per-

mitted to leave.

Before starting search of the house, the officers told

Vanessa Cox, Rawlings and Sadler, that they would search

them before beginning the search of the building. Vanessa

Cox was told to dump the contents of her purse on a table

and in obedience to the order, dumped out the contents of

her purse, including the items mentioned in the five indict-

ments. She told the officers that they belonged to Rawlings

and he acknowledged that they did and removed from the

contents of Vanessa Cox’s purse the things that belonged to

him, including these controlled substances. Vanessa Cox

did not object to the search then and does not object now.

The problem before the Court on the Motion to Suppress

is to determine whether or not the exigencies of the cireum-

stances as stated permitted the officers to search the par-

ties before beginning a search of the residence for which

they had a search warrant or would a search of the persons

without a search warrant for their search be in violation of

the 4th Amendment to the Constitution.

The Court finds that the officers were in a place where

they had a right to be and that they had a right and legal

authority to search the house pursuant to the search war-

rant, and that the exigencies of these circumstances in that

knowing that this residence had been used for the sale of

Lysergie Acid Diethylamide in the past and that there was

a gun in the house; that their search of the premises had to

do with the presence of contraband, the possession of which

constituted a crime and that therefore a perfunctory search

of the persons, including the contents of Mrs. Cox’s purse,

was permitted under the 4th Amendment to the Constitu-

tion and, as a matter of fact and common sense was a re-

quired procedure.

In the search of David Rawlings, the officer noticed a

bulge in an inside breast pocket of his leather jacket, patted

the outside, then reached inside the coat and pulled out a

sum of money composed on one hundred sixty-one (161)

bills bound together with rubber bonds which makes a pac-

ket approximately % inch in thickness, which sum totaled

Four Thousand Five Hundred ($4,500) Dollars.

The Court finds as a matter of fact and as a matter of law

that the search of Rawlings was permissible under the

exigencies of the situation presented and that the money

was admissible into evidence.

Among other things found on the person of Rawlings was

a knife that folded and was in a sheath fastened to his belt.

It appears from the witnesses in the trial, but not in the

Suppression Hearing, that this knife had been taken from

Rawlings when he boarded an airplane to come to Bowling

Green and that it was returned to him at the airport. One

witness testified that the knife was 5% to 6 inches in length

and, when open, was aproximately 10% inches long. How-

ever, this was not offered in evidence as apparently this

knife was taken over to the jail and, on Rawlings release

pending trial, was returned to him. The knife or its place in

evidence is not an issue in this case.

The Defendant introduced evidence at the Suppression

Hearing to show ownership of the controlled substances for

the purpose of showing standing to object to the search of

Mrs. Cox’s purse and the introduction of the contents of

same as evidence. The Court having determined that the

search of both Mrs. Cox and Mr. Rawlings was permissible

and legal, the matter of standing is of no significance in this

matter. However, the Court will address the matter of

“Standing”.

The Court finds it unbelievable that just of his own voli-

tion, David Rawlings put the contraband in the purse of

Mrs. Cox just a minute before the officers knocked on the

door. He had been carrying these things around Bowling

Green in a bank deposit sack for days, either on his person

or in his pocket, and it is unworthy of belief that just im-

mediately before the officers knocked on the door that he

put them in the purse of Vanessa Cox. It is far more plausi-

ble to believe that he saw the officers pull up out front and

then elected to “push them off’ on Vanessa Cox, believing

that search was probable, possible, and emminent. But,

even taking his word for this, items being placed in her

purse simply for his convenience and which she did not ob-

ject to the search and does not object now, this Court finds

that Rawlings is without standing, having established own-

ership to object to the search of the purse of Mrs. Cox.

The Court fully understands that the statements made by

Rawlings at the Suprression Hearing as to ownership may

not be considered by the Court sitting without a Jury in

determining the guilt or innocence of David Rawlings in

these cases.

The Court has considered the testimony of Vanessa Cox,

who testified that she had seen the bottle containing the

LSD and that Rawlings had offered to sell some to her; also

that Rawlings had placed it in her purse. The testimony of

Stallons, who testified that he had “seen the acid”; that

Rawlings had offered to sell some to him; the testimony of

Dennis Sadler, who had purchased one hundred of the tab-

lets for One Hundred Sixty-five ($165) Dollars; this sale

having taken place at the home of a man called Mark, who

lives on the Nashville Road; and the testimony of Marty

Marquess that Rawlings displayed a few of the pills to him,

not a large quantity, and offered to sell him some for One

Hundred Six-five ($165) Dollars; and after the items were

dumped on the table at the search, Rawlings admitted to

the officers that the items were his; and a witness from the

Drug Laboratory of the Kentucky State Police identified all

of the controlled substances as being, or containing, the

contraband for which the Defendant Rawlings is charged.

Under this proof, the Court finds the Defendant GUILTY

as charged for possession of Lysergic Acid Diethylamide for

the purpose of sale, and fixes his punishment at five (5)

years in the penitentiary for trafficing in Lysergie Acid

Diethylamide, and a fine of Three Thousand ($3,000) Dol-

lars. KRS 218A. 990(2)

On the other Indictments there is no evidence that he

offered to make any sales to anyone of these items and

about the only person who had seen the other items, and

she without knowing what they were, was Vanessa Cox,

when they were placed in her purse.

THEREFORE, on Indictments Nos. 17108, 17109,

17110, and 17137, the Defendant, David Rawlings, is found

GUILTY on the charge of possession of the items men-

tioned in the Indictments contrary to the Statutes pro-

vided, and his punishment is fixed as follows:

17108—Possesion of a Schedule III Controlled Substance,

to-wit: Benzphetamine, and fixes his punishment at one (1)

year in the County Jail and a fine of Five Hundred ($500)

Dollars.

KRS 218A.990(6)

17109—Possession of a Schedule II Controlled Substance,

to-wit: Methamphetamine, and fixes his punishment at one

(1) year in the County Jail and a fine of Five Hundred

($500) Dollars.

KRS 218A.990(6)

17110—-Possession of a Schedule III Controlled Sub-

stance, to-wit: Methyprylon, and fixes his punishment at

one (1) year in the County Jail and a fine of Five Hundred

($500) Dollars.

KRS 218A.990 (6)

171837—Possession of a Schedule II Controlled Substance,

to-wit: Penobarbital, and fixes his punishment at one (1)

year in the County Jail, and a fine of Five Hundred ($500)

Dollars.

KRS 218A.990 (6)

At the close of all the proof the Defendant made a Motion

to Dismiss the Indictment No. 17107 of Lysergic Acid

Diethylamide, on the charge that the Statute does not men-

tion a drug “LSD”, which is the term used in the Indict-

ment. The purpose of a pleading, including an Indictment,

is to advise the adverse party of the nature of the claim

against him, or in the case of an Indictment, the criminal

for which he is being charged.

The Term “LSD” is so familiar and its common meaning

is Lysergic Acid Diethylamide. The Defendant knows and

used this term; Defendant’s counsel knows and used this;

and certainly the Commonwealth’s Attorney knows and

used this, and the Lab man who tested the substance tes-

tified that the substance was Lysergic Acid Diethylamide.

THEREFORE, this Motion is OVERRULED.

This———-day of February, 1977.

JUDGE, WARREN CIRCUIT

COURT DIVISION II

WARREN CIRCUIT COURT

Division II

Indictment No. 17107, 17108,

17109, 17110, and 17137

COMMONWEALTH OF KENTUCKY

Plaintiff

US.

DAVID RAWLINGS

Defendant

MOTION FOR NEW TRIAL

Comes the Defendant, David Rawlings, by counsel, and

moves the Court for a new trial for the following reasons:

1) The seizure of the Defendant, David Rawlings, and of

Vanessa Cox while Eddie Railey procured a search warrant

was unreasonable and in violation of the Constitution of the

United States.

2) The search warrants issued in this case did not au-

thorize the search of Vanessa Cox or David Rawlings.

3) The search of Vanessa Cox’s purse was not pursuant

to a consent of Vanessa Cox, but by order of her captors.

FOR ALL OF THE FOREGOING REASONS, the De-

fendant respectfully prays:

1) That the Judgment should be arrested.

2) That the verdict should be set aside, and the Defend-

ant ordered acquitted.

3) That in the alternative, a new trial should be ordered.

Dated this 14th day of February, 1977.

Kelly Thompson, Jr.

Counsel for Defendant,

David Rawlings

CERTIFICATE:

This is to certify a true copy of the foregoing was this day

served upon the Honorable Morris Lowe, Commonwealth

Attorney and Honorable Ron Parry, Co-Counsel for the

Defendant.

Kelly Thompson Jr.

WARREN CIRCUIT COURT

Division II

Indictment No. 17107, 17108

17109, 17110, 17137

COMMONWEALTH OF KENTUCKY

Plaintiff

US.

DAVID RAWLINGS

Defendant

JUDGMENT

The defendant being present in open court with his attor-

ney(s), KELLY THOMPSON, JR; it appearing from the

record that a Motion and Grounds for a New Trial was

timely made and filed and is now pending, the Court having

heard argument on the Motion and Grounds, and the Court

being sufficiently advised, IT IS HEREBY ORDERED

that said motion be OVERRULED.

Attorney(s) for the defendant having then made a Motion

for Probation, and the Court being sufficiently advised;

IT IS HEREBY ORDERED that said Motion for Proba-

tion is OVERRULED.

The defendant having been then asked if he has legal

cause to show why judgment should not be pronounced

against him and upon advice of counsel, none being shown,

IT IS ADJUDGED that the defendant be taken by the

Sheriff of Warren County to the Jail of Warren County and

from there by the Sheriff of said county transferred to the

Department of Corrections and to remain in custody for a

period of 5 years and $3,000 fine on #17107, 1 year in

county jail and $500 fine on #17108. 1 year in county jail

and $500 fine on #17109, ! year and $500 fine on #17110,

and 1 year in county jail and $500 fine on #17137 (The 4

year total in county jail is to run concurrently with the 5

year penitentiary sentence.), and the Sheriff of said County

shall transfer the defendant to the custody of the Depart-

ment of Corrections at such location as the Department

shall designate.

The defendant having then moved the Court to set a bond

for appeal;

( ) ITIS ORDERED that appeal bond be set at $5,000

Cash bond.

( ) IT IS ORDERED that said Motion be OVER-

RULED.

Entered this 11 day of MARCH, 1977.

JUDGE, WARREN CIRCUIT

COURT DIVISION II

The defendant is to be credited with 32 days jail time.

WARREN CIRCUIT COURT

Division II

Indictment Nos. 17107, 17108,

17109, 17110, and 17137

COMMONWEALTH OF KENTUCKY

Plaintiff

US.

DAVID RAWLINGS

Defendant

NOTICE OF APPEAL

Comes the Defendant, David Rawlings, by Counsel, and

gives notice that appeals from the verdict rendered by the

Warren Circuit Court, Division No. IJ, on February 11,

1977, and from the Order overruling the Defendant’s Mo-

tion for a New Trial entered by the Warren Circuit Court

on March 11, 1977.

Kelly Thompson, Jr.

Attorney for Defendant

WARREN CIRCUIT COURT

Indictment Nos. 17107, 17108,

17109, 17110 and 17137

COMMONWEALTH OF KENTUCKY,

Plantiff

US.

DAVID RAWLINGS,

Defendant

Suppression Hearing

Transcript date: November 29, 1976

WARREN CIRCUIT COURT

Division II

COMMONWEALTH OF KENTUCKY

Plaintiff

US.

DAVID RAWLINGS

Defendant

SUPPRESSION HEARING

On Friday, November 29, 1976, a hearing was held be-

fore the Honorable J. David Francis, Judge, Warren Cir-

cuit Court Division II, in the above-styled case at 2:00 P.M.

Appearing on behalf of the Commonwealth was the As-

sistant Commonwealth Attorney, Hon. Michael Caudill.

Appearing on behalf of the Defendant was Hon. Kelly

Thompson, Jr., 410 East 11th St., Bowling Green, Ken-

tucky.

THE PROCEEDINGS WERE AS FOLLOWS:

MR. THOMPSON: Your Honor, it’s our contention that

the search warrant which was used to search the person of

the defendant and of another person—I believe Officer

Railey’s here to testify, but I think we might be able to

reach a stipulation.

THE COURT: You're questioning the search warrant?

MR. THOMPSON: Yes sir.

THE COURT: Now, this has to do with five indictments.

MR. THOMPSON: Your Honor, in this case, this search

warrant was procured for the premises of—

THE COURT: Let me just read it. This has to do with

Lawrence Marquess. He lived in the house?

MR. THOMPSON: Yes Judge.

THE COURT: And the warrant is to search the premises

at 1264 Adams Street. All right, now, make your argument.

MR. THOMPSON: Your Honor, it’s the contention of the

defense that a search warrant authorizing the officer to

search a certain premise—

THE COURT: House

MR. THOMPSON: House, is not an authorized search of

the people present in that house such as if you gave me a

warrant to search—

THE COURT: Give me a case.

MR. THOMPSON: Right here, Your Honor. This goes

back, Your Honor, to the Constitution where it says that a

search warrant particularly describes the persons and

places to be searched, and there’s two more old cases. It

goes back—those are the old ones. I’ll show them to you for

general knowledge. Those are the two cases cited continu-

ally on this issue.

THE COURT: Did you see this?

MR. CAUDILL: Yes sir.

THE COURT: All right, gentlemen.

MR. CAUDILL: Your Honor, I would like to put Mr.

Railey under oath so I may qualify this thing.

EDDIE RAILEY, having been first duly sworn on oath,

testified as follows:

DIRECT EXAMINATION BY: MR. CAUDILL

Q1 State your name and occupation.

A Eddie Railey, Narcotics Agent, Kentucky State

Police.

Q2 All right, Officer Railey, on October the 18th, 1976,

did you have in your possession an arrest warrant for one

Lawrence Marquess?

A Yes sir, I did.

THE COURT: Arrest warrant?

MR. CAUDILL: Arrest warrant, yes sir.

Q3 And for what offense was Lawrence Marquess

charged with on that date?

A Trafficing in LSD.

Q4 All right, and what—would you tell the Court about

the offense that Lawrence Marquess was charged with?

A Well, I wasn’t a witness to the offense, but he sold a

quantity of LSD to an undercover agent, State Police Offi-

cer, by the name of John Bruce at a date before this time at

this house on 1264 Adams Street in Bowling Green.

Q5 And this is the same house that you went to at a date

with the arrest warrant; is that correct?

A Yes sir.

Q6 Now, who was the—with you when you went to exe-

cute the arrest warrant?

A Detective John Bruce, Detective Terry Barnes, Vin-

cent Noble, Don Bivens, and—

Q7 Just to the best of your memory.

A All right. There was two or three others that came in.

Q8 Who entered the house first when you were armed

with the arrest warrant?

A I did.

Q9 And upon entering the house, what did you observe?

A As soon as I entered the house, I entered into like a

foyer, and I smelled marijuana in the house, and I could see

people off to the right. I went in the direction of the people

and asked if Mr. Marquess was present, and they said, ‘no,

he wasn’t.’

Q10 And what did you do upon them telling you that he

was not present?

A I continued to go ahead and look through the house,

walked back to the kitchen in a circle, and came back

through all the rooms of the house looking for Mr. Mar-

quess to make sure he wasn’t hiding in the house.

Q11 How many people were in the house when you ar-

rived excluding the officers that were involved in the ar-

rest?

A Five.

Q12 And who were these people?

A One was Dennis Sadler, the other Vanessa Cox, David

Rawlings, and the other two; I don’t have their names writ-

ten down.

Q13 I believe Keith Northern and Linda Braden.

A That’s correct.

Q14 All right. Where in the house did you smell mari-

juana smoke?

A When I first entered the house I smelled it and

smelled it on into the living room, and Mr. Sadler’s bed-

room was kind of between the living room and the entrance,

and I could smell it all in that area.

Q15 Did you see any marijuana or seeds in the house?

A As I came back through one of the bedrooms, I noticed

what looked like some seeds laying on a mantle in one of the

bedrooms.

Q16 Now, Detective Railey, at this point, what did you

do when you smelled the marijuana and saw the seeds?

A I advised some of the other officers that were there to

stay there while I came to the courthouse and obtained a

search warrant.

Q17 And what did you obtain a search warrant for?

THE COURT: Wait a minute. Is the search warrant I

have just looked at and examined, is that the search war-

rant you obtained?

MR. RAILEY: Yes sir.

MR. CAUDILL:

Q18 Now, after you got the search warrant and returned

to the house, how much time are we talking about from the

time you left the house until the time you got back?

A Approximately 30 minutes.

Q19 When you got back at the house, what is the first

thing you did?

A As soon as I walked into the living room area where

most of the people were at, I think maybe Mr. Sadler had

stepped into a bedroom, I asked that everyone come into

the living room.

Q20 What was your purpose for doing that?

A To have the people in one place, and I wouldn’t have to

repeat it twice. I read the warrant, search warrant, to all

the people that were there. Another female was in the

house that wasn’t there whenever we first went in. She was

there at that time, and—

Q21 Now, I'll ask you this. After you read the search

warrant, where was Vanessa Cox sitting in that room?

A She was sitting on the couch next to David Rawlings.

Q22 And where was the purse that these drugs were

found in? Where was it located?

A On the couch.

Q23 Now, did you search any of the house before you

patted down any of the people that were in the house?

A No sir, I did not.

Q24 Did you conduct a pat-down search of the persons

that were in the house?

A Yes sir, I did.

Q25 Did you believe that your safety or the safety of

anybody else in the house might have been endangered at

that point?

A Well, I felt like after I advised these people that we

had a search warrant and advised them of their rights that

some of them might have fear of being arrested, and I felt

like I might need to search those persons.

Q26 Why did you think that you might be endangered at

this point?

A Well, I always search everyone that I arrest or prior

to their arrest if I think they might be dangerous to myself

or other officers.

Q27 Was this purse within reach of both Vanessa Cox

and the Rawlings defendant?

A Yes sir, it was.

Bs All right, and was the search for weapons prior to

this?

THE COURT: Excuse me, would you ask the officer to

describe the purse a little better?

MR. RAILEY:

A It was just a leather purse.

MR. CAUDILL:

Q29 How big was the purse?

THE COURT: Just a regular ladies purse?

A Yes sir, a ladies purse, leather purse. Oh, it’s probably

no bigger than—it’s not quite as big as this notebook tablet.

THE COURT: Let the record show that he’s demon-

strating a regular ten by twelve looseleaf notebook.

MR. RAILEY: It was probably smaller than that.

MR. CAUDILL:

Q30 Was it large enough to where a small caliber pistol

could have been hidden?

A Yes sir, it was.

Q31 Did you reasonably believe that there could have

been a pistol in this purse or on any of the subjects in the

house?

A Well, I didn’t know whether it was or wasn’t. I patted

these people down to make sure there wasn’t any.

Q32 Was that your specific purpose for patting them

down?

A Yes sir.

Q33 Now, if you would, tell us what was found in the

purse?

A In the purse was a large quantity of LSD, benzphet-

amine, hashish, methaz mphetamine, and phentabarbital, I

believe it was.

Q34 How much LSD was in the purse?

MR. THOMPSON: We'll stipulate there was drugs in the

purse.

MR. CAUDILL:

Q35 How much LSD was in the purse?

A Approximately 1800 tablets.

Q36 In your experience as an officer, is this an unusually

large amount of LSD?

MR. THOMPSON: Does this have to do with suppres-

sion?

MR. RAILEY:

A This is the largest amount of LSD that I’ve ever seen

at one place at any given time.

Q37 Did it give you cause for alarm to protect such

amount of drugs?

A Yes sir, it did. This would be worth several thousand

dollars.

Q38 Approximately how many thousand?

A Six or eight thousand on the street.

Q39 All right, sir, now what—how did Vanessa Cox

react when you first found this in her purse? What did she

do?

A She acted startled, of course, and we asked her if

these things belonged to her, and she looked at Mr. Raw-

lings as if she didn’t know what to szy to us.

Q40 Did she look at anybody else in the room?

A She looked at me.

Q41 And Mr. Rawlings?

A Right. ;

Q42 At this time did you conduct a pat down search of

Mr. Rawlings?

A Yes sir.

Q43 And what was your purpose for searching him?

A For weapons or anything else that he might have that

would be illegal.

Q44 Now, Officer Railey, when you patted down Mr.

Rawlings, what is the first thing you came upon?

A Well, the very first thing I noticed, I reached up here

to pat his chest, and I felt a large bulk in his coat, and I

reached under his coat, and as soon as I got ahold of what

this was, I could, you know, I thought it was money, and I

pulled it out, and it was $4,500 in cash in his coat pocket,

and that was the only, you know—there wasn’t any

weapons or drugs on Mr. Rawlings.

Q45 Now, these searches of Vanessa Cox’s purse and

Rawlings person, they were searched for the purpose of

finding out if there were weapons upon them.

A Yes sir.

Q46 You had previously been to this house before when

you went in with the arrest warrant?

A Yes sir.

Q47 Why at that time did you not search for weapons?

A Well, I didn’t think that anybody there had any alarm

to cause us any danger. I didn’t think they were alarmed,

they weren’t fearful of being arrested at that particular

time.

Q48 But as you stood there with a search warrant, did

you believe this gave them cause to be alarmed?

A I most certainly did.

Q49 And is this why you made this protective search?

A Yes sir. Every person in the house was searched.

Q50 Were they all searched before you searched the

house?

A Yes sir.

Q51 Tell the Court what else was found in the house.

A Well, I don’t have everything written down here in

front of me exactly.

MR. THOMPSON: That’s not the subject of this hearing.

MR. RAILEY:

A Cocaine, some other quantities of LSD in the rooms.

We found methaprylan, amphetamines, marijuana scales, I

found some marijuana on one of the persons that was ar-

rested in the house; Mr. Sadler. I found a marijuana pipe

and marijuana in his rear pocket and several other items.

Q52 Now, Detective Railey, before you conducted the

pat down search and the search of the house, did you advise

everybody in the house of their rights?

A Yes sir. Everybody was advised of their rights.

Q53 After finding the drugs in the purse and the money

on Mr. Rawlings, were any statements made by either

Vanessa Cox or Mr. Rawlings?

A Yes sir. I asked—after I saw this money and all the

drugs in her purse, it hit me that, you know, she was indi-

cating that these drugs belonged to Mr. Rawlings, and with

him having this large sum of money, it appeared to me that

possibly what she was saying was true that he had put

these things in her purse. And she gave us a written state-

ment in the house that Mr. Rawlings had put these things

in her purse prior to us arriving there. And Mr. Rawlings

stated to me two or three times that he did put it in there,

but he didn’t want to give any written statements. And

then I think about the last time I asked him if he would give

me a written statement as to putting this stuff in her purse,

he said, ‘would it help her? Would it keep her from getting

in trouble?’ And I said, ‘I don’t know.’

THE COURT: Is she indicted?

MR. CAUDILL: No, sir, she’s indicted under sealed in-

dictments, but she’ll not be tried at this time.

MR. RAILEY:

A And he indicated to me two or three times that—

THE COURT: Is she going to testify?

MR. CAUDILL: Yes sir.

MR. RAILEY:

A He indicated that these drugs belonged to him but he

wouldn’t give me any written statements or anything until

he saw his attorney.

MR. CAUDILL. On the basis of Detective Railey’s tes-

timony, I would argue to the Court that Mr. Thompson’s

cases are not applicable to the case of the bar.

THE COURT: He might like to cross examine.

CROSS EXAMINATION BY: MR. THOMPSON

Q1 Mr. Railey, you remember a preliminary hearing in

the County Court in this case?

A Yes sir.

Q2 Do you remember me asking you if you were in fear

of your life at that time?

THE COURT: Excuse me, was there a preliminary

hearing held in whose Court?

MR. THOMPSON: Judge Griffin’s Court, Your Honor.

Q3 Do you remember me asking you if you were eversin

fear of your life?

A I don’t remember whether you asked me that or not.

Q4 And do you remember your answer?

A Evidently I don’t because I don’t remember.

Q5 Mr. Caudill was present fortunately for us. Mr.

Railey, how come none of this was mentioned?

A I wasn’t in fear of my life. If I had been, I would’ve

had my guns drawn, but I had a certain amount of caution.

MR. CAUDILL: He said he was concerned for his safety.

MR. RAILEY:

A I wasn’t thinking I was going to be killed right at that

instant, but I was concerned with my safety.

MR. THOMPSON:

Q6 Could you explain why none of this justification was

brought up at that preliminary hearing?

A lI answered the questions that I was specifically asked.

Q7 Let’s get this straight. You came into the residence

and found the people.

A Correct.

Q8 And you told them to wait there until you got back

with a warrant; is that correct?

A I didn’t tell them anything.

Q9 Did they try to leave?

A No, they didn’t. I told the officers that were there to

stay while Det. Bruce and I came to the courthouse and

obtained a search warrant. Apparently, if they were asked,

apparently the other officers told them they had to stay

until we got back.

Q10 Two individuals got to leave; is that right?

A They weren’t there when I got back.

Q11 Is it your understanding that if every individual

would consent to a search of their person, they would be

aloud to leave, and if not, they would have to wait for you

to return?

A That’s what I was told.

Q12 During this 45 minutes that all these individuals

were there, nobody was in fear of their life?

A I think it was maybe 30—

Q13 You testified 45 in the preliminary hearing.

A Well—

Q14 During this time you were gone, all these individuals

sat around with the officers waiting?

A Apparently these people weren’t—we didn’t suspect

that they were fearful of being arrested or anything like

that.

Q15 So suddenly after 30 minutes of being detained by

officers, you are suddenly in fear of your life enough to

search them?

A When we obtained a search warrant, we search them.

Q16 Did you search them because you had a search war-

rant that you thought would allow you to?

A No.

Q17 Why did you search?

A Because we had a search warrant, and if we found any

narcotics in the house, the person would be arrested and

advised of their rights, and I felt at that time that they

were or could be a danger.

Q18 Are you changing your testimony now from the pre-

liminary hearing and saying that you were not searching—

A No sir, I’m not. I might say that I was searching for

weapons, and, of course, I found marijuana on Mr. Sadler,

and I charged him with trafficing in marijuana. I was con-

fiscating money off Mr. Rawlings, and that wasn’t weapons.

These things were incident to the search.

Q19 Why did you make this search again?

A I made the search because I was in fear, you know, I

thought these people might have weapons or contraband,

you know.

Q20 After 45 minutes, did you then suddenly—

A I wasn’t there those 45 minutes or 30. I was only there

for a very short time; long enough to walk through the

house, and then I left.

Q21 When you returned, you were in fear of your life?

A I was going to be there for some time, yes.

MR. THOMPSON: I have no further questions.

MR. CAUDILL: I have some more questions.

RE-DIRECT EXAMINATION BY: MR. CAUDILL

Q1 You have explained that the reason you were scared

when you came back was because at that time the people

knew that they could be searched, and, obviously, there

were very many drugs in the house, have you noticed in

your experience as a law enforcement officer that people

who deal in drugs usually are armed?

A Yes sir, many times they are.

Q2 As a matter of fact, in the large marijuana case that

was a week or two ago, they were armed with a 357 mag-

num in an automobile?

A Yes sir, I’d say the majority of cases we go on, we find

some type of weapons.

MR. THOMPSON:

Q1 Were there any weapons found?

A Well, Mr. Rawlings had a knife strapped on his side.

MR. CAUDILL:

Q Mr. Rawlings had a knife strapped on his side?

A Yes sir, he did. He had a scalpel like with a knife on

his side. I had forgotten all about that.

Q He did have a knife on him?

A Yes sir, he had one in a leather thing on the side, you

know. That’s the first thing I took off if him was a knife. I

had forgotten all about that.

Q Because he had this knife on him, did this give you any

reason to believe that there might be ay other weapons

available?

A You know, I was a police officer also looking for

weapons or contraband or whatever that’s illegal.

MR. THOMPSON:

Q This is awful strange. You were using the search war-

rant to justify the search until I found the cases that throw

that out.

er CAUDILL: No, Mr. Thompson, I resent you saying

that.

MR. RAILEY: I had completely forgotten that he had a

knife on him.

MR. CAUDILL: Now, Judge, based on this testimoney,

I would argue that these officers could reasonable or were

reasonably in fear of their safety when they found a large

amount of LSD on Vanessa Cox. I believe that officers

should be allowed some latitute when they go into a house

full of people who they never seen before and have evidence

that there are drugs there and have evidence that there

was an LSD buy made out of that very house. One of the

defendants was armed at this time.

I believe on the basis of Terry vs. Ohio, and on the basis

of Phillips vs. Commonwealth, it’s quoted, Judge, in here,

——--— »

this opinion is based on it. I do not have it. I do have Bayes

us. Commonwealth, which is a 1972 case, and I think they

make mention to the fact that officers are allowed reason-

able latitude when they reasonably believe that they are—

that their safety is jeopardized or safety of others.

In the alternative, I would argue that if the Court finds

this was an illegal search that MR. Rawlings has no stand-

ing to object to this search, he was not in possession of the

purse, nor was this purse under his custody or in his con-

trol. I would also cite to the Court and give to the Court

numerous Kentucky cases.

THE COURT: When the contraband was found, it was in

the purse owned by Vanessa Cox; is that right?

MR. CAUDILL: Yes sir.

MR. THOMPSON: Let’s get a ruling on whether Judge

believes that the search was justified by a fear on the offi-

cer’s part.

THE COURT: All right, gentlemen, now you've got a

case here; Bayes vs. Commonwealth. I know you have got

two points there. Let me ask the officer now, just looking

at the practicalities here of your carrying on your search.

The first time you went in the house, you determined

who was there?

MR. RAILEY:

A That’s right.

Q Did you have their names when you came down to the

County Judge?

A No sir, I did not. I just walked through the house. I

wasn’t in the house probably a minute or minute and a half.

I smelled the marijuana, and I wanted to get a search war-

rant and get back as soon as possible. And I didn’t get their

names and so forth, and I left them where they couldn’t

escape without getting their names or something.

Q What I was getting at was the reason for not getting a

search warrant for these people just at the same time.

A I didn’t know that it didn’t say persons on there. I

thought it did. Probably a mistake on my part.

Q Who made out that search warrant?

A Morris Lowe and Judge Griffin witnessed it.

THE COURT: Gentlemen, I’m going to take this under

advisement this afternoon, but I’ll give you an opinion on it

early in the morning.

**HEARING ADJOURNED**

WARREN CIRCUIT COURT

Indictment Nos. 17107, 17108,

17109, 17110 and 17137

COMMONWEALTH OF KENTUCKY,

Plaintiff

Us,

DAVID RAWLINGS,

Defendant

Suppression Hearing

Transcript date: December 1, 1976

WARREN CIRCUIT COURT

Division II

COMMONWEALTH OF KENTUCKY

Plaintiff

Us.

DAVID RALINGS

Defendant

SUPPRESSION HEARING

On December 1, 1976, at 4:45 P.M., a Hearing was held

in the above-styled manner before the Hon. J. David Fran-

cis, Judge, Division II of the Warren Circuit Court.

Appearing on behalf of the Plaintiff was the Hon. Michael

Caudill, Assistant Commonwealth Attorney.

Appearing on behalf of the Defendant was the Hon. Kelly

Thompson, Jr., 410 E. 11th Street, Bowling Green, KY,

and the Hon. Ron Parry, Suite 200, Laywery Bldg., New-

port, KY.

THE PROCEEDINGS WERE AS FOLLOWS:

MR. THOMPSON: All we seek to do at this time, Your

Honor, is introduce the testimony of the defendant.

THE COURT: Because the fact that we feel it’s neces-

sary for us to establish a possessory interest in the items

that were seized in order for us to have standing to chal-

lenge the seizure of these things. These were seized from

another person other than the defendant.

MR. CAUDILL: Judge, he doesn’t have a possessory

interest in the lady’s pocketbook. ‘That was the thing

searched.

MR. PARRY: Your Honor—

THE COURT: Mr. Thompson, you’re going back into the

same thing I’ve ruled on, and I remind you gentlemen you

have rights of appeal, but just to keep arguing the same

thing before the same Court, it’s going to come to an end.

MR. PARRY: Your Honor, I believe that the law is that

he doesn’t have to have a possessory interest in her pock-

etbook, but the items seized, and that’s all we seek to do is

introduce—

THE COURT: Well, I believe I’ll hear you on that, but I

think you’re wrong about it.

MR. CAUDILL: Judge, when his client takes the stand,

he’s fair game for all cross examination. And may we keep

one agent here with us; Officer Railey?

THE COURT: Yes sir.

MR. PARRY: Your Honor, this has raised another ques-

tion. It’s my understanding of the law that the Common-

wealth attorney would only be permitted to cross examine

the defendant on matters pertaining to the things raised in

the suppression hearing, not as to other matters.

MR. CAUDILL: Judge, I point out that if he’s going to

claim ownership of these drugs, I’ve got a right to explore

that. Where he got them, how he came about them to de-

velop his ownership.

THE COURT: But what I’m getting at, I want to be sure

that I clearly understand and you clearly understand that

that doesn’t mean that this defendant necessarily has to

take the stand in his own defense.

Now, do you gentlemen have any objection to Mr. Ral-

ings, the boy’s father, being here?

MR. CAUDILL: No sir.

DAVID RALINGS, having been first duly sworn on oath

to tell the truth, testified as follows:

DIRECT EXAMINATION BY: MR. PARRY

Q1 State you name.

A David Ralings.

Q2 Your home addresss, Mr. Ralings.

A 107 North Ft. Thomas Avenue, Ft. Thomas, KY.

Q3 How old are you, David?

A Twenty-one.

Q4 On the 18th day of October, 1976, were you arrested

in Bowling Green, Kentucky?

A Yes sir, I was.

Q5 And previous to the time that you were arrested,

were you searched? Was your body searched?

A Before I was arrested?

Q Yes sir.

A No sir.

Q5 Was it after you were arrested that you were

searched?

A Yes sir.

Q7 And at the time, where were you at when you were

arrested?

A I was in—when I was arrested, I was sitting on the

couch in the living room.

Q8 Is that in Bowling Green, Kentucky?

A Yes sir.

Q9 Is that 1264 Adams Street?

A Yes sir.

Q10 Was a young lady by the name of Vanessa Cox in or

near you at that time?

A Yes sir.

Q11 In the residence?

A Yes sir.

Q12 At that time, did she have in her possession a quan-

tity of controlled substances?

A Yes sir, she did.

Q13 Did you own any of these controlled substances?

A Yes sir.

Q14 Which of these con.rolled substances did you own?

A The LSD, the—I don’t know the names for them.

Q15 Tell the Court what they look like.

A The LSD, the yellow and orange pills, I believe they

refer to them as methaamphetamine, and there was two

yellow capsules.

Q16 And other than the LSD, you don’t know the chemi-

cal names or chemical compositions of these items that you

claim you own?

A No sir.

Q17 How did they come to be in the possession of another

person?

A I was—when we were getting ready to go pick up

Vanessa Cox’s car which was getting worked on, and on our

way out the back door, I asked her if she would carry this

for me, and she said, ‘yes,’ and they were placed into her

purse, and then right then at that time some people came in

the back door, and I went to the restroom, and then the

knock came on the front door.

Q18 My question was how did these get to be in her pos-

session? Is it your testimony that you gave these to her?

A Yes sir.

Q19 You are charged with trafficing in methaamphet-

amines. Do you claim you own the methaamphetamines?

THE COURT: Excuse me, refer to those by indictment

number, please.

MR. PARRY: Indictment no. 17109, you were charged

with trafficing in methaamphetamines at the time you were

arrested and immediately prior thereto, did you own the

methamphetamines?

A Yes sir.

Q20 And Indictment no. 17107, you were charged with

trafficing in amphatamines. Did you own them at that time?

A I don’t know which pills they are referring to as am-

phetamines.

MR. CAUDILL: That indictment has been dismissed.

MR. PARRY:

Q21 Okay. And indictment no. 17108, you are charged

with benzphetamine. Do you know what that is?

A I don’t believe I know what that is.

Q22 Did you own a substance commonly known as dia-

drex?

A No sir, I didn’t.

Q23 And indictment no. 17107A, you are charged with

trafficing in phentabarbital. Did you own the phentabarbi-

tal at that time?

MR. CAUDILL: 17107 is LSD.

MR. PARRY: 17107A. Did you own that?

A Your Honor, is there any way I can see these? I don’t

recognize the name.

MR. CAUDILL: Judge, I'll just spread these drugs out

here, sir. I think we’re going to need our chemist in here to

identify this stuff.

MR. THOMPSON: It’s very simple. He allegedly pos-

sesses all the drugs except the ten pink ones marked ‘Up-

john, and—

MR. PARRY: Mr. Caudill, can we stipulate what is said

on the first page of the Bill of Particulars as to the items

seized from the purse?

MR. CAUDILL: Id rather not stipulate anything at this

time until we go through this stuff and take a good look at

it.

MR. PARRY: Are you indicating that what you’ve pro-

vided for us on the Bill of Particulars may not be correct?

MR. CAUDILL: There’s a possibility of that, yes sir.

THE COURT: Go ahead, gentlemen.

MR. PARRY:

Q24 Now, Mr. Ralings, on this Bill of Particulars on the

first page, it indicates that Vanessa Cox, who was present,

was searched and was found with the following controlled

substances. Number one is 1800 LDS tablets in a bottle,

eight other LSD tablets is another container. And 100 other

tablets of LSD in another container. Now, do you allege

that you owned on October 18, 1976, all the items described

under No. 1 in the Bill of Particulrs?

A Yes sir.

Q25 Number two is 200 tablets methaamphetamine. Do

you allege that on that date you owned those?

A Yes sir.

Q26 Number three is ten tablets benzphetamine. Do you

allege that on that date you owned those?

A No sir.

Q27 You did not?

A Nosir.

Q28 Do you know who those belonged to?

A I believe Vanessa Cox has a prescription for them.

Q29 Okay, number four is three capsules phentabarbital.

A Yes sir.

Q30 You owned them?

A Yes sir.

Q31 Number five, two capsules methyprylan. Do you al-

lege that you owned those the date and time I mentioned?

A Yes sir.

Q32 Mr. Ralings, on that date, the time the police ar-

rived there, and after that, up until the time that you were

placed in a jail, did you ever do anything to indicate that

you had any intention of harming anyone?

A No sir.

Q33 Would you tell us how you were detained and what

actions you went through on that day the police arrived?

A I was in the restroom at the time of the knock on the

door, and I answered the knock on the door. I said, ‘who is

it?? And someone said, ‘the State Police.’ And 1] pulled the

curtain back to look, and I believe officer Railey or one of

the other arresting officers showed me an identification, the

badge. And I went to open the door, and I couldn’t get it

open, and I said, ‘I don’t know how to open this door, I

don’t live here.’ And I said to Dennis who was in the other

room—

Q34 Dennis who?

A Saddler. I said, ‘The state police are at the door.’ And

he came over and he said that he couldn’t open the door and

asked them to use the back door. And then one of the offi-

cers outside said, ‘Open it up or we're going to kick it

down.’ So I just stepped back, and the next thing I knew

the police were inside. And I was in the hallway, and they

asked if I was Marty Marquess. I said ‘no,’ and they asked

me who I was. I told them. They asked everybody in the

house if Marquess was around, where he was, and we all

said we didn’t know where he was. We assumed he was still

at class. And they went through the house, looked for him,

and they realized that he wasn’t at home.

Then they placed us in the living room, and I asked why I

was being held, and one of the officers said he smelled pot,

he was going to go get a search warrant. And I kept asking

why I was being held; I wasn’t doing anything wrong. And

they said, ‘Just sit down.’ You know, they sat us down in

the living room and went and got a search warrant.

Q35 Were you at any time advised that you were under

arrest?

A Nosir, I wasn’t.

Q36 Other than the officers using force to come into the

premises, was there any other show of force either by the

officers or by any other persons present?

A No sir, there wasn’t.

Q37 Was there ever any threats of violence toward any

of the officers?

A No sir, there wasn’t.

Q38 Did any of the officers ever have to draw a weapon?

A No sir.

Q39 Did any of the officers ever have to use physical

force to restrict the movement of the persons there?

A No sir.

Q40 Did you simply all just sit on the couch as you were

told to do?

A I believe I was on the leftnand side of the couch, Van-

essa Cox was to my right, Dennis Saddler was in one of the

chairs, and there—Keith Northern, I believe his name is,

was standing in front of the fireplace, and Linda Braden, I

believe is her name, was sitting over on the righthand side

of the room to me.

Q41 And how long did you sit there on the couch?

A I'd say a good 30 minutes.

Q42 What happened then?

A I asked if I could leave. I asked why I was being held

there. They said they were going to get a search warrant,

and then after I asked why I was being held there about

thee times, two police officers came back into the room and

said, ‘if you all will consent to a bodily search, you can

leave.’

Q43 Was this before or after the search warrant?

A Before.

Q44 And did you do that? Did you consent to a bodily

search?

A No sir, I did not.

Q45 Did anyone else there consent to a bodily search?

A Yes sir.

Q46 And were they searched?

A Yes sir.

Q47 Were any weapons found?

A Nosir.

Q48 Any large sticks?

A Nosir.

Q49 Were they permitted to leave?

A Yes sir.

Q50 And what happened next?

A We sat around got a little bit longer, than officer

Railey came back with a search warrant, read us our rights,

read the search warrant, and then I was searched.

THE COURT: Excuse me, let me ask a question here.

Ali these things we are talking about, none of them were

found on this man’s person? They were all founc in the

purse of Vanessa Cox?

MR. CAUDILL: Yes sir.

MR. THOMPSON: Money was found on his person. We

have a motion to suppress the money also.

MR. PARRY:

Q51 Now, you were not searched prior to the time the

search warrant arrived; were you?

A No sir

Q52 And did they exhibit to you the search warrant prior

to the time they searched you?

A Officer Railey, I believe, was the only one that read it.

Q53 And after reading that to you he proceeded to

search your person; is that correct?

A Yes sir.

Q54 And what did he find?

A Well, he patted me down, and found a quantity of

money inside my coat pocket. He took it out and asked me

what I was doing with it, and I told him, and then he placed

it back into my jacket and continued to search the other

people and then on to the premises.

Q55 And at that time did he arrest you?

A I had been arrested.

Q56 After he searched you, were you under arrest at

that time immediately after he searched you?

A Well, he read the search warrant, and then he read

the rights and then the search warrant, and then he

searched me.

Q57 Okay, now, immediately following the time that he

searched you, did he arrest you?

A Did he say I was—no sir.

Q58 Did he take anything at all from you.

A He took the money at first and put it back into my

pocket.

Q59 Did he search Venessa Cox?

THE COURT: How was this money arranged? Was it in

anything, just loose, or how?

THE WITNESS: There was a rubber b. id around it.

MR. PARRY:

Q60 David, did you have the same jacket on that day

that you have on now?

A Yes sir, I did.

Q61 And that’s a short length leather coat.

A Yes sir.

Q62 Now did any of the persons there have a weapon?

A No sir.

Q63 Did you have a knife?

A Yes sir, I did.

Q64 Where was that knife located?

A It was located on—I had it in a leather pouch on the

outside. It was hanging from my belt on the outside of my

coat.

Q65 Was that visible? Did any of the officers make any

comment to you about what is in the pouch prior to the

search?

A No sir.

Q66 And after the search, was the knife taken by the of-

ficers?

A Yes sir.

Q67 Was it at all visible from the pouch?

A Nosir.

Q68 Is the pouch made for carrying a knife?

A yes sir, it is a leather pouch with a flip top on it that

buttons down.

Q69 Is the knife completely enclosed in there?

A Yes sir.

Q70 And you didn’t attempt to pull that knife or get in

that pouch; did you?

A No sir.

Q71 Do you expect that Vanessa Cox’s purse would be

free from intrusion by these officers as you sat there?

MR. CAUDILL: He’s calling for a legal conclusion.

THE COURT: He can answer it, but you are right about

that. What he thought or didn’t think or what he now says

he thinks doesn’t have anything to do with it.

MR. PARRY:

Q72 Did you feel that Vannessa Cox’s purse would be

free from the intrusion of the officers as you sat there?

When you put the pills in her purse, did you feel that they

would be free from governmental intrusion?

A No sir.

THE COURT: You know what, I believe this boy tells

the truth. You all wanted to bring him in here and try him

before the Court, and he said, ‘no, I want a jury.’ He said

‘no, I don’t understand that.’ And I don’t blame him for not

understanding that. That’s the first time I’ve ever seen

such a thing brought on before this Court, and I’ve been

here for quite a few years as an attorney, of course.

Now, no question but what the boy fully understood what

was meant by that. None at all in the Court’s mind. If you

want to go ahead, you can do so.

MR. PARRY: Just a few more questions.

Q73 As you sat there with Venessa Cox next to you,

where was the purse located?

A Between her and I.

Q74 And when officer Railey came with the search war-

rant and asked to search you or exhibited the warrant to

you, did you stand up?

A No sir.

Q75Were you searched while sitting down?

ANo sir, while he read it, I was seated, and then he said

to stand up; he wanted to search me.

Q76And how about Vanessa Cox; did she stand up to be

searched?

A yes sir.

Q77 Did she pick up the purse or did the officer pick it

up?

A I believe she picked it up.

MR. PARRY: No further questions.

MR. THOMPSON: Ask him if he expected the purse to

be private.

THE WITNESS: Private? Yeah.

CROSS EXAMINATION BY: MR. CAUDILL

Q1 Did you consider that purse to be private for your

personal possessions, Mr. Ralings?

A Well, I didn’t expect her to go telling everybody.

Q2 You didn’t expect her purse—First of all, you—did

you own the purse, help to buy it or anything?

A Nosir.

Q3 Did you make a habit of keeping things in her purse?

A No sir.

Q4 Had you ever kept things in her purse before?

A Nosir.

Q5 Did you come to Adams Street with her on that day?

A Yes.

Q6 You came in the same car?

A Yes sir.

Q7 And whose car was that?

A Bob Stiles, I believe.

Q8 And what time did you arrive there?

A Approximately nine or ten in the morning.

Q9 And were you with her until this arrest?

A No sir, I wasn’t.

Q10 When did you all split up?

A I waited there for her while she was at class—when

she came back from after class.

Q11 So she left and went to class. Did she take her purse

with her?

A I really don’t know.

Q12 Did you put anything in her purse before she went

to class?

A No sir.

Q13 When she came back, did she have her purse with

her?

A I believe so.

Q14 What was her purpose for putting all these in her

purse?

A I didn’t want them to be seen.

Q15 Why not?

A Why not?

Q Yeah.

A It’s not something you want people to see.

Q16 You know they are illegal then?

A Yes sir.

Q17 I show you approximately 2000 different tablets of

LSD. First, I ask you where you got that LSD?

A Newport, Kentucky.

Q18 And when did it come into your possession?

A I don’t recall.

Q19 Who did you get it from?

A Donald Booker.

Q20 And what was your purpose in obtaining that LSD?

A To give it to people that wanted it?

Q21 To give it to people that wanted it?

A Yes.

Q22 How much did you pay for it when you got it from

Donald Booker0

A $110 for 100.

Q23 And was it your intent at that time to give it away

to people who want it?

A To sell it to people that wanted it.

Q24 I show you approximately 200 methaamphetamine

tablets and ask you where you got those.

A Same man.

Q25 Did you pay for those?

A Yes sir.

Q26 How much did you pay for them?

A $45 for 100.

Q27 What was your purpose in obtaining them?

A I took those

Q28 Now, I show you a bottle which has within it a little

purple pill found to be LSD and also a capsule of pentobar-

bital and a capsule of methyprylan and ask you where you

got thos substances.

A Everything but the pink and white ones, the same

man. The pink and white one was given to me when I was

down her in Bowling Green.

Q29 You disclaim ownership of the benzphetamine, and |

hand you ten tablets of benzphetamine.

A Yes sir, I have never seen those before.

Q30 I show you several black balls and ask you if you can

tell us what they are.

A I don’t have any idea, but I can tell you where they

came from.

Q31 Where?

A Vanessa Cox’s purse.

Q32 Where does this man live that you got these things

from?

A Newport, Kentucky.

Q33 What is his address?

A Seventh and Overton.

Q34 What does he do besides the obvious?

MR. PARRY: Your Honor, we are getting far beyond—

MR. CAUDILL: He has to prove ownership of these

things.

THE COURT: I want to point out this is not before the

jury. If you’re going to recognize that the Court will treat it

as a matter of law and not a matter of fact.

MR. CAUDILL:

Q35 What does this man do?

A I don’t know. I only knew the man for approximately

three weeks.

Q36 When did you first decide to come to Bowling Green

with these sbustances?

A The—

MR, PARRY: Objection, Your Honor.

THE COURT: Overruled. This is a law question, I re-

mind you.

THE WITNESS:

A The Monday before the arrest.

Q37 And how did you get to Bowling Green?

A I flew down.

Q38 And were they on your person when you flew down?

A On my person?

Q39 Yes.

A They were in the suitcase.

Q40 Were there any other drugs in the suitcase besides

those?

MR PARRY: Continuing objection because I think what

we're talking about is a search of the premesis a certain

location of a certain date and time.

THE COURT: Stay as near the facts as you can, but If

you’ve got some relevancy, I’m not going to limit you.

MR. CAUDILL:

Q41 How long was it before the officers got there that

you put this in Vanessa Cox’s purse?

A On our way out the back door apprximately three, five

minutes before.

Q42 Who else was present when you placed it in her

purse?

A I knew of three people present in the house before the

knock on the door. When the knock came on the door, or

before the knock came on the front door, we were on our

way out the back door, and two people came in. I was in the

restroom when they came in, and I didn’t know who it was

that was in the house because I was in the restroom when

the knock came on the door.

I answered the door, and once the policemen were inside,

I was back in the living room where they put me, and I saw

everthing that went on in the house.

Q43 What was your purpose for going to that house that

day?

A To wait for Vanessa Cox to get out of class.

Q44 Why were you waiting for her?

MR. PARRY: Objection, Your Honor.

THE COURT: That’s where it ended up. Go ahead.

MR. CAUDILL:

Q45 Were you waiting for Vanessa Cox—why?

A We were going to pick up her car. Dennis Saddler was

going to ride her and I to pick up her car.

Q46 And you were going to go with her?

A Yes sir.

Q47 Have you been dating her?

A I don’t know if you would consider it dating her.

Q48 Explain to the Court exactly what the relationship

is.

A I met her on a Wednesday night, the Wednesday prior

to the arrest, and we talked, and we became friends, and I

talked with her, and she talked with me.

Q49 So you're talking about a friendship type thing?

A Yes sir.

Q50 How did you know when you came to Bowling Green

to come to this specific address on Adams Street?

A IThad gone to school down here last semester.

Q51 Who did you know that lived in this house on Adams

Street?

A I knew Dennis Saddler, and 1 knew Marty Marquess.

Q52 And were you staying in this house at this time?

A No sir.

Q53 Where were you staying?

A At Vanessa Cox’s house on the couch.

Q54 Did you quote the price of this LSD to Mr. Saddler?

MR. PARRY: Objection, Your Honor.

A I don’t recall.

THE COURT: How do you make that relevant?

MR. CAUDILL: He says it was his and in his posses-

sion, and the purpose he had was to sell it, why didn’t he

offer it for sale?

THE COURT: Overrule the objection.

MR. CAUDILL:

Q55 Did you offer it for sale to Mr. Saddler?

A I believe I did.

Q56 And what price did you quote Mr. Saddler?

A I don’t recall the price.

Q57 How much did Mr. Saddler buy?

A I don’t recall, three, five hundred.

Q58 Did you ever sell any to Vanessa Cox?

A Nosir.

Q59 Did you ever sell any to Lawrence Marquess?

A Yes sir. Or no sir, no sir.

Q60 Did you ever sell it to anybody else after you got

here in Bowling Green?

MR. PARRY: Objection.

The COURT: Overruled.

MR. CAUDILL:

Q61 Is there anyone else beside those people who you

can tell us that you sold the LSD that you had in your pos-

session?.

MR. PARRY: Objection.

THE COURT: Well, this is what all the argument’s

about. Overruled.

MR. CAUDILL:

Q62 Can you tell this Court anybody else that you sold

this to or quoted a price to that can tell this Court you had

that in your possession at any time?

A I believe there was one other person.

Q63 Who was that?

A I don’t know his first name. He’s referred to as Doc

Harris.

Q64 Do you know where he lives?

A I don’t know the name of the street. It’s—okay,

Scottsville Road comes in and goes around the sharp bend

after you pass over the intersection.

MR. PARRY: 12th Street.

MR. CAUDILL:

Q66 What is the address?

A I don’t know.

Q67 Describe this person.

A Tall, skinny, dark hair.

Q68 Where did you sell it to him, and where were you

when you sold it to him?

MR. PARRY: Objection.

THE COURT: Overruled.

Q69 When did you sell it to him, and where were you

when you sold it to him?

A I went to his house. I didn’t sell it to him. It was to

some other people that he knew.

Q70 Who did you sell it to?

A I don’t know the people’s names.

Q71 He was present when the sale was made?

A Yes sir.

Q72 Describe the house.

A It’s right next to a florist type of a store.

Q73 On 12th Street?

A Yes sir.

Q74 And?

A And it’s an apartment house. It’s a wooden frame out

front, and I believe, I’m not sure. It’s maybe brick added on

in the back, an extension.

Q57 And you did not have a car when you were here,

how did you get there?

A Dennis Saddler loaned me his car one time.

Q76 All right. Now, you've testified that you had a knife

on the day of the arrest; is that correct?

A Yes sir.

Q77 And you had a waist length coat on, and you were

wearing the knife on your waist; is that correct?

A Yes sir.

Q78 And it was in a knife pouch?

A Yes sir.

Q79 All right. Do you know that these officers could not

see that knife pouch?

A I didn’t know.

MR. CAUDILL: That’s all.

MR. PARRY: No more questions.

MR. PARRY: Your Honor, I think—I don’t know how

many cases Mr. Thompson sited to you, but—

THE COURT: He gave me a stack, and I read over

every one of them.

_ MR. PARRY: —Brown vs. U.S., Jones vs. U.S., Butler

vs. Commonwealth; all these cases hold—

THE COURT: I’ve returned them to you.

MR. PARRY: —that if you own something regardless of

who happens to hold it for you, that you have standing

challenges.

THE COURT: This is an awful gray area.

MR. PARRY: Now, everybody started jumping up down

about him not having expectation of privacy, but that’s an

additional ground because that was enunciated in the case

where a Union officer had union records seized from the

Union office. He didn’t own the building, and he didn’t own

the records, and it wasn’t even a private office. And the

Court said that he didn’t have the standing to challenge it

on the basis that—Dave does have ownership of the prop-

erty, and he didn’t have the standing to challenge it on the

basis that it was his private office as some other case was

set, but we are going to make a new rule here if you have a

reasonable expectation of privacy there, then you can chal-

lenge it, but that’s not a necessary showing in every case.

The possession is all he needs to show, and in fact, I don’t

know even if it’s necessary to come in here since the offense

itself requires possession as a necessary owner.

Many cases I’m sure that Mr. Thompson said that—

THE COURT: I want to point out that it’s your idea. I

felt like I have had a pretty full day before we started.

MR. PARRY: I understand.

MR. CAUDILL: Your Honor, I’d like to point out that

there’s also a case called Walters vs. U.S., and in that case

it says, ‘where you have a factual situation where a co-

defendant deposits drugs in another co-defendant’s purse,

that that defendant does not have standing to challenge the

search because he does not have a reasonable expectation of

privacy,’ and this defendant himself has told the Court that

he did not himself feel that he had a reasonable expectation

of privacy in her purse.

THE COURT: Gentlemen, the Courts have decided this

question both ways as you all well know, and several of

them Mr. Caudill gave me, and I think you had given me a

citation on one that I have a set of Kentucky Decisions at

home that I read. This is a kind of gray area. { think you

have made your record good, and I’m going to overrule

your motion to suppress. We’ll start trial Thursday morn-

ing at 10:00.

MR. THOMPSON: Your Honor, the issue of standing

would not in any way effect the money that was on his per-

son. He definitely has standing for the money?

THE COURT: Ya’ll haven’t argued that but very little.

And the only thing I have passed on at this time is these

pills.

MR. CAUDILL: Judge, I'd like to point out when we

had this other hearing, this was justified on a search for

weapons; pat down search.

MR. THOMPSON: He stated he knew it was money, and

he saw it was money.

THE COURT: I recall he said it was a wad in the breast

pocket or inside breast pocket, and that he reached in and

pulled out the money, and he saw the money, and returned

it.

MR. CAUDILL: Of course, I would like that record to

be made part of the record.

MR. PARRY: Your Honor, it was my understanding

that the searches of the person although they were not

valid under the warrant, they were valid because the offi-

cers had some fear for their lives or something?

THE COURT: I have said that the search would be valid

for weapons, but you gave it a preface that I didn’t give it.

MR. PARRY: Okay, I'd like to cite to the Court the case

of Terry vs. Ohio, and it’s a stop and frisk case, the first

one that enunciated the fact that a police officer can stop

someone with less than probable cause, and that case says

that the officer must be able to articulate some facts not

just a mere hunch, but some fact to show the Court why he

was afraid for his life. I don’t know what the officers tes-

tified to, but it’s my udnerstanding that he said he feared

for his safety, and I suggest to the Court that the physical

facts are exactly contrary to that because the people had

done nothing but sat there for over a half an hour and

waited.

THE COURT: Let me point out how much what you say

is a contradiction. You say on one hand that Mr. Railey had

no right to fear for his life when he’s over here in a house on

Adams Street, and yet at the same time when there were a

few scattered people sitting back in the courtroom who

were not interested in this case but were the parents of a

girl in the preceding case and started to have this hearing

up in front of the bench, and the Court—and the suggestion

was that we retire to chambers here for fear of your client’s

life. So I don’t know. I’m not going to say that— or I’m not

going to rule that as a matter of law that an officer making

a search of numerous people who one of them was carrying

a, and the word is ‘sheath’ if you fellows will get your ter-

minology straight, you carry a knife in a sheath, not a

pouch, and I don’t know where it is. I’d like to see it, and I

don’t know why you fellows didn’t bring it today because

you know it’s somewhat in issue here, and I’ve got a little

knife I carry here that’s a relic of the Southern Railroad

that they let me board airplanes with.

From the way you describe it, I don’t think they’d let Mr.

Rawlings board an airplane w.th his knife in the sheath.

Now, I don’t know why the officers didn’t arrest him for

carrying a consealed deadly weapon or I’m just guessing

what it is. But in any event, here is this fellow carrying a

heck of a bunch of drugs with him. And I know that this

other fellow is indicted. He hasn’t been tried yet and I don’t

know, but there’s a quantity insofar as the market’s con-

cerned. So I’m not going to hold as a matter of law that

these officers didn’t have a right to search for the weapons

under the circumstances at all.

MR. THOMPSON: May I point out that you can’t justify

the search by hindsight.

THE COURT: This is what you want to do because they

didn’t find any weapons, they weren’t entitled to search.

MR. THOMPSON: I’m talking about the situation they

had to reasonable ground to believe there were weapons

there.

THE COURT: Well, I'll let you fellows argue that to

another Court.

MR. THOMPSON: One more point. The money that was

on him, I’ve made a written motion to suppress the money

because he does have standing in that area. And the war-

rant does not authorize the search of his body so we once

again move for the suppression of the money which was

found on his person.

THE COURT: Overrule.

Okay, the defendant has come back in front of the Court

together with his lawyers, Mr. Parry and Mr. Thompson

and his father, Melvin Rawlings. And they advised the

Court that they want to renew their motino to have this

case tried solely before the Court.

MR. PARRY: That’s correct.

THE COURT: I might point out that when they walked

in the room, Mr. Rawlings said that he wanted to see the

Court, and the Court advised him that he ordinarily talked

to the Court—or persons indicted or parties to Court ac-

tions through the attorneys, but then I saw that they were

here so I had what he had to say. And at that time he him-

self advised me that he wished to be tried only by the

Court.

What do you have in mind here, gentlemen?

MR. PARRY: We've discussed this at some length, and

this is maybe the reason for Mr. Rawlings confusion before

because we had talked about trying it before the Court and

then trying it before the jury, and I think our final decision,

mind and Mr. Thompson and the advice that we have given

to Mr. Rawlings is that the case be tried to the Court

rather than to the jury. I think he understands that, and I

think the reason he gave you an ambiguous answer before

was that we had talked about it so much one as opposed to

the other, and he wasn’t clear that we had made a decision.

And I think he’s clear now that our advice to him is to try it

to the Court without a jury. :

Now, have I misstated anything, Mr. Rawlings?

THE DEFENDANT: No sir.

MR. PARRY: Is this your intention—you know that you

have a right to a jury, and not Mr. Thompson, myself, or

anyone else here can take that away from you?

THE DEFENDANT: Yes sir.

THE COURT: Let me question him. Let me tell you a

little about history. You know a long time ago, really, when

our forefathers established this country and set up our form

of government which guarantees some freedoms that people

in some countries don’t have, one of the main things that

they established was that the state, and to an extent I rep-

resent the state in Bowling Green. This Judge of this Court

can’t just try somebody nor could the state if the Common-

wealth’s attorney in Bowling Green— they can’t just prose-

cute someone without a jury. That’s the accused person’s

peers making the decision themselves about whether or not

a person is guilty. That’s a very very precious freedom and

a guarantee of freedom that we have in this country that

more than half of the people in the words do not have.

Now, I appreciate your— you might feel like you’re a

rock in the hard place or whatever you want to say, but it’s

not a choice of one good and one bad but here; one bad and

the lesser of two evils, and whatever that is. But you sure

that you fully understand what you’re doing? Now, you

realize that in this suppression hearing you have told me

already that you are really guilty of these charges except

for the lgal entanglements of whether or not the matters,

the pills and so forth can be exhibited to the jury at all. In

other words, you’ve said to me that you owned these pills

and that you sold some to, I believe somebody named Den-

nis Saddler and somebody out on Broadway or 12th Street

or whatever, and the jury doesn’t know that, and I just

don’t really know about that.

I’ll be glad to hear— I’ll only do this with the consent of

the Commonwealth.

MR. CAUDILL: Your Honor, it’s all right with us. This

is just a compliment to you that they would even want to

entrust it to your discretion, and we’ll entrust it to your

discretion also.

MR. PARRY: I think you realize that if there’s a com-

plete lack of evidence presented by the Commonwealth, and

we don’t anticipate that, but if there is that you cannot con-

sider the evidence given in the suppression hearing.

THE COURT: I realize that.

MR. PARRY: But to the best of your ability as a human

being to separate the two.

THE COURT: You realize that the old story about you

can’t unring a bell, and you can’t come in here and tell me I

owned these and had these and tommorrow say I didn’t

know about them,

MR. PARRY: So what we anticipate or what we have

told Dave is that it’s a very close question to inner sense of

guilt and the fact that you are a human being and heard him

in this suppresion hearing may tilt you over the other way

toward guilt rather than innocence. On the other hand, we

have told him if there’s a complete lack of evidence, you

know, you will puc the evidence out of your mind, and that

is our advice to him. ;

THE COURT: I want to hear from you Mr. Rawlings.

You understand that you already in effect told me that

were it not for the legal barriers for the introduction of the

evidence, that you are guilty of these charges. Now, the

jury doesn’t know that. And I’ve ruled, you understand,

that they are entitled to introduce these pills and this

mondy into evidence. Now, if you want to take your chance

with the Court rather than the jury—I realize that you’re

an intelligent young, man, and you're very ably repre-

sented by two competent lawyers, and your father being

present as well, and the conversation I had with you before,

you said you were 22?

THE DEFENDANT: Twenty-one.

THE COURT: Twenty-one years old, and I’m going to

sustain your motion and let you be tried before the Court.

Now, this is a decision; right?

THE DEFENDANT: Yes sir.

MR. PARRY: Clarify if he admitted possession of the

LSD for sale, speed for use, and he didn’t know about the

two of them.

THE COURT: I’ve got the one of them.

MR. PARRY: Did you know about the nodulars?

THE DEFENDANT: No.

**HEARING ADJOURNED**

OPINION RENDERED: February 17, 1978

NOT TO BE PUBLISHED

COURT OF APPEALS OF KENTUCKY

NO. CA-1185-MR

COMMONWEALTH OF KENTUCKY

Appellee

DAVID RAWLINGS

Appellant

APPEAL FROM WARREN CIRCUIT COURT

HONORABLE J. DAVID FRANCIS, JUDGE

ACTION NOS. 17107, 17108, 17109, 17110 & 17137

AFFIRMING

* * * * * *%

BEFORE: HOWERTON, REYNOLDS and LESTER,

Judges.

REYNOLDS, JUDGE. Appellant was found guilty upon

trial in Warren Circuit Court and convicted of the posses-

sion of drugs for the purpose of sale. He maintains that the

court failed to suppress evidence which resulted in violation

of his constitutional rights.

On October 18, 1976 police officers, with an arrest war-

rant for Lawrence Marquees, entered his residence at 1264

Adams Street in Bowling Green. Upon entering the prem-

ises the officers found the appellant David Rawlings, Van-

essa Cox, Linda Braden, Keith Northern and Dennis Sad-

ler. The officers smelled marijuana smoke in the residence

and observed marijuana seeds in plain view while searching

for Marquees. Marquees, who was under indictment for

trafficking in Schedule I controlled substances, was not

found. The individuals found on the premises were re-

quested to sit in the living room while some of the officers

went to the nearby courthouse to obtain a search warrant.

Two of the five individuals were permitted to leave after

submitting to a search. Some 30-45 minutes thereafter the

departed officers returned with a search warrant for the

premises. The warrant did not authorize a search of indi-

viduals on the premises. A purse, lying on the couch be-

tween Ms. Cox and appellant, was ordered to be emptied,

anc a large amount of controlled substances was emptied

onto the table. Ms. Cox informed the officers that the drugs

belonged to the appellant and told him to take what was

his. Appellant admitted ownership of the drugs. Upon

standing up he was, observed to have a sheath containing a

knife attached to his belt and a bulge was observed under

his clothing. A pat down search revealed $4,500 under his

clothing. He was placed under arrest. Prior to trial appel-

lant moved for a suppression of the evidence and the motion

was denied.

Essentially, he contends that he had standing to complain

about the search of Ms. Cox’s purse; that the search of Ms.

Cox’s purse was not authorized by the warrant, based on

probable cause, or justified by the exigencies of the circum-

stances involved; that the search warrant for the premises

did not authorize the search of all persons on the premises;

and that their detention was not based upon probable cause

and was, in effect, unreasonable restriction of their free-

dom.

We hold that the appellant, to utilize the exclusionary

rule, must have standing to challenge the constitutional

violation which serves as the basis of the law’s application.

Before Jones v. United States, 362 U.S. 257 (1960), the

Constitution was interpreted in such a manner that the 4th

Amendment protected only places and things. If there was

no proprietary interest, there was no standing granted to

claim a violation of constitutional rights. Jones, id.,

established automatic standing for one charged with a pos-

sessory crime. Anyone who was legitimately on premises

where a search occurs may challenge its legality by a mo-

tion to suppress where the evidence is going to be used

against him. There was no allegation in this case that ap-

pellant was not legitimately on the premises. Simmons v.

United States, 390 U.S. 377 (1968), filled a void remaining

after the Jones, supra, decision. Simmons, supra, pro-

vides that when a defendant has given incriminating evi-

dence at a suppression hearing, the evidence is not allowed

to come into evidence at the trial. We are not persuaded by

appellee’s argument that extending the reasoning in Brown

v. United States, 411 U.S. 223 (1973) would cause the ap-

pellant to lose standing in this case. Appellant’s standing is

not based on a reasonable expectation of privacy to the con-

tents of Ms. Cox’s,purse. The expectation of privacy goes to

the issue of whether the evidence should be suppressed

after standing is determined. Appellant did have standing

to protest the search of Ms. Cox’s purse.

Both appellant and appellee have placed reliance upon the

phrase, “reasonable expectation of privacy,” which was

first used in the case of Katz v. United States, 389 U.S. 347

(1967). Whenever a reasonable expectation of privacy

exists, the government, before proceeding, must either

produce a warrant or there must be exigent circumstances

to justify proceeding without a warrant. Although the ap-

pellant said at the second suppression hearing that he did

not feel that the drugs he had placed in Ms. Cox’s purse

were free from governmental intrusion, we co not base our

opinion thereon.

The Katz, id., decision has its greatest impact on con-

stitutional law before the zone of privacy is pierced. Here

the police entered the rooming house pursuant to a valid

arrest warrant. They smelled marijuana and saw seeds on a

mantel. The police have pierced the zone of privacy law-

fully, and there is no argument that can be properly

founded on Katz, supra. The officers had a legal right to be

in the rooming house; their discovery was inadvertent in

that they did not have probable cause to believe they would

see and smell marijuana upon their entry; the fact that

marijuana was present was immediately apparent to the of-

ficers; there were exigent circumstances that would have

authorized an immediate arrest of those sitting in the room

since a misdemeanor was committed in the officers’ pres-

ence (although this was not done). Appellant’s reliance upon

the reference in Henry v. United States, 361 U.S. 98 (1959)

to Johnson v. United States, 333 U.S. 10 (1948) is not per-

suasive in that the arrest and search warrant in the case at

bar were not based merely on the smell of marijuana com-

ing from a closed room (emphasis added). Appellant’s re-

liance upon Johnson v. Commonwealth, Ky. 443 S.W.2d 20

(1968) and K.R.S. 431.005 is not well founded factually.

Since the officers smelled marijuana immediately after

entry, a misdemeanor was committed in their presence

since such smell would be probable cause to warrant a pru-

dent man to believe that an offense had been committed.

The smell of contraband is a sufficient basis for a police offi-

cer to believe that a crime is being committed in his pres-

ence. See United States v. Bowman, 487 F.2d 1229 (10th

Cir. 1973); United States v. McCormick, 468 F.2d 68 (10th

Cir. 1972); United States v. Compos, 471 F.2d 296 (9th Cir.

1972); People v. Chestnut, 351 N.Y.S.2d 26 (1974); People

v. Loe, 306 N.E.2d 368 (Ill. 1974); State v. Elliott, 499 P.2d

342 (Or. 1972). Also, in Johnson v. United States, supra,

The Supreme Court at least implicitly recognized that the

detection of the odor of contraband, coupled with other cir-

cumstances noted here, could provide adequate grounds for

either the issuance of a warrant or immediate arrest.

In any event, detention of those within the rooming

house was proper. If a formal arrest is not made until after

a search, the search will be upheld so long as there is prob-

able cause for an arrest before the search is begun. See

Bailey v. United States, 389 F.2d 305 (D.C. Cir. 1972);

United States v. Gorman, 355 F.2d 151 (2nd Cir. 1965); and

United States v. Brown, 463 F.2d 949 (D.C. Cir. 1972).

We are in agreement with appellant’s general proposition

that a search warrant for premises does not authorize the

search of all persons located on the premises. Normally a

warrant to search premises provides no basis for the search

of people who just happen to be there are are not connected

in any way with the premises being searched. See United

States v. Di Re, 332 U.S. 581 (1948). State v. Bradbury, 243

A.2d 302 (N.H. 1960), relying upon dictum in Di Re, supra,

held that a search warrant for narcotics in the dormitory

room of a female university student did not provide a basis

for the search of a male who was seated in her room. These

cases, however, are distinguishable from the case at bar.

First, the officers in the case at bar were in a place where

they had a right to be and inadvertently smelled marijuana

smoke and saw marijuana seeds in plain view. Second, the

purse that was searched was not worn by Ms. Cox and did

not constitute a search of her person.

United States v. Johnson, 475 F.2d 977 (D.C. Cir. 1972)

involved similar issues to the case at bar. There police had

obtained a warrant authorizing a search for narcotics of the

entire apartment of one James L. Stewart. After entry was

obtained, some officers went to the living room where Ms.

Johnson was found sitting on the couch. A purse, which was

on the coffee table in front of the couch, was immediately

searched and narcotics were found. Ms. Johnson was a vis-

itor on the premises. In holding that this evidence should

not have been suppressed, the Court said at page 978-9:

The prohibition of the Fourth Amendment is against

“unreasonable” searches and seizures. In determining

whether under the circumstances of this case the

search of appellee’s purse violated that standard, the

protection of individual privacy embodied in the Fourth

Amendment must be weighed against the public inter-

est in effective law enforcement with respect to nar-

cotics violations. The specific question for resolution is

. whether the scope of the search warrant embraced an

object in the apparent possession of a person not an

occupant of the premises searched. Although the Dis-

trict Court did not expressly consider this issue, its

suppression of the evidence contained the implicit

holding that appellee’s purse fell without the warrant.

Turning first to the privacy element of the question,

we note that the search was of a purse resting sepa-

rately from the person of its owner. As such, it was not

being “worn” by appellee and thus did not constitute an

extension of her person so as to make the search one of

her person. United States v. Teller, 397 F.2d 494 (7th

Cir. 1968); United States v. Riccitelli, 259 F. Supp. 665

(D. Conn. 1966).

The Johnson, supra, opinion stated that the police could

reasonably have believed that items sought and described

in the warrant had been concealed in the purse and not-

withstanding appellee’s status as a visitor, they could have

searched the purse in pursuit of items for which the war-

rant was issued. The reasoning in Johnson, supra, has

been followed in Commonwealth v. Show, 298 N.E.2d 804

(Mass. 1973) State v. White, 588 P.2d 860 (Wash. 1975); and

People v. Colombo, 244 N.W.2d 3 (Mich. 1976).

There is an exception in drug cases to the general princi-

ples in Di Re, supra, and Bradbury, supra. When drugs

are involved, all people present can be searched because

drugs can be passed easily, allowing easy concealment of

evidence. “The execution of search warrants in narcotics

eases is a risky business at best, and unless the police

search all persons present on the premises they endanger

both themselves and the search they are making.” People

v. Pugh, 217 N.E.2d 557 (Ill. 1966). We note in passing that

under the rationale in Pugh, id., those who come in during

a search should only be subjected to a pat down. See also

United States v. Branch, 545 F.2d 177 (D.C. Cir. 1976).

Appellant further contends that the $4,500 found on his

person should have been suppressed. At the time appellant

was subjected to a pat down, a gun with live shells had

been observed, 1,800 tablets of LSD and 215 tablets of

other drugs had been found in the purse that was beside

him, and a knife in a sheath had been noticed at his side.

Terry v. Ohio, 392 U.S. 1 (1960) set forth the basic law as to

when it is proper to stop and frisk. The 4th Amendment

applies to a stop and frisk situation because there is an in-

vasion of privacy. But only the “reasonableness” language

of the 4th Amendment is looked to when a stop and frisk is

conducted. The need to stop and frisk is balanced against

the invasion of privacy that the frisk entails. Here the offi-

cers, given the facts known to them at that time, had a

“reasonable” suspicion that appellant was armed. Before

appellant’s pat down there had been an inquiry period and

the frisk that was conducted was limited in scope. The ap-

peliant was carrying 161 different bills which were ap-

proximately % of an inch thick and were wrapped up with a

rubber band. This bulge gave the police probable cause to

go into appellant’s pocket. This money, along with the

drugs that were found and Ms. Cox’s statement to appellant

(that he should take what was his) certainly gave probable

cause to arrest appellant.

“We conclude that there may be some constitutional er-

rors which in the setting of a particular case are so unim-

portant and insignificant that they may, consistent with the

federal constitution, be deemed harmless, not requiring the

automatic reversal of the conviction.” Chapman v. Califor-

nia, 386 U.S. 18 (1967). Here appellant’s conviction rested

upon a quantum of untainted evidence even if the money

had been suppressed. Therefore, any error was harmless

beyond a reasonable doubt since possession of over 2,000

tablets of various controlled substances diminishes the sup-

position that the drugs were intended for personal use only

and would sustain this conviction. Harrington v. California

395 U.S. 250 (1969) and Milton v. Wainwright, 407 U.S.

371 (1972).

The judgment of conviction is affirmed.

ALL CONCUR.

ATTORNEYS FOR APPELLANT:

Kelly Thompson

P. O. Box 1927

Bowling Green, Ky 42101

Ron Parry

Suite 404, Lawyers’ Bldg.

Newport, Ky 41071

ATTORNEYS FOR APPELLEE:

Robert F. Stephens

Attorney General

Capitol Bldg

Frankfort, Ky 40601

Victor Fox

Assistant Attorney General

Capitol Building

Frankfort, Ky 40601

COMMONWEALTH OF KENTUCKY

COURT OF APPEALS

NO. CA-1185-MR

COMMONWEALTH OF KENTUCKY

Appellee

DAVID RAWLINGS

Appellant

vU.

APPEAL FROM WARREN CIRCUIT COURT

HONORABLE J. DAVID FRANCIS, JUDGE

ACTION NOS. 17107, 17108, 17109, 17110 & 17137

ORDER DENYING PETITION FOR REHEARING

BEFORE: HOWERTON, LESTER and REYNOLDS,

Judges.

The Court having considered the Petition for Rehearing

and being sufficiently advised, it is ORDERED that the

same is hereby DENIED. The Dissent of Lester, J., as at-

tached, is hereby appended to the opinion of this Court

rendered February 17, 1978.

JUDGE, COURT OF APPEA

ENTERED: June 9, 1978 faites

COMMONWEALTH OF KENTUCKY

COURT OF APPEALS

NO. CA-1185-MR

COMMONWEALTH OF KENTUCKY

Appellee

uv.

DAVID RAWLINGS

Appellant

APPEAL FROM WARREN CIRCUIT COURT

HONORABLE J. DAVID FRANCIS, JUDGE

ACTION NOS. 17107, 17108, 17109, 17110 & 17137

DISSENTING OPINION

BEFORE: HOWERTON, REYNOLDS, and LESTER,

Judges.

LESTER, JUDGE, DISSENTING. Even though my col-

leagues have reviewed the facts, I believe it necessary to

repeat some of those in order to support my reasons for

dissenting.

In the middle of the afternoon of October 18, 1976, some

six police officers, members of both the Kentucky State

Police and a local law enforcement agency, armed with a

warrant of arrest, went to a home in Bowling Green, Ken-

tucky, for the purposes of taking into custody a resident of

that building, namely, Lawrence Marquees. Upon arrival at

the home, the officers found it necessary to enter the

premises forcefully and upon gaining entrance, they found

five individuals situated therein, including the appellant,

and one of the residents of the house, but not Marquees.

The police claimed they detected the odor of marijuana.

Their discovery of this alleged pungency is described by a

Commonwealth witness in the following language:

And then one of them said, ‘I think I smell pot; don’t

you?’ And the other one said, ‘Yeah, I believe I do.

Let’s get a warrant.’

And then?

And so then we were all detained there until they got

back with the search warrant.

Upon their arrival, the efficers found no marijuana, no

residue thereof, no attendant paraphernalia and saw no one

in possession or using the drug. As a matter of fact, the

evidence for the Commonwealth is uncontradicted that on

the day in question, there was no use of marijuana on the

premises.

The officers proceeded to walk through the several rooms

and in a bedroom, across a hallway from the living room,

they saw a shotgun and marijuana seeds. At this juncture,

the five people who were present were corralled into the

living room and the officer in charge of the group concluded

that it would be necessary for him to travel to the court-

house to obtain a search warrant for the premises. Upon

leaving and going to a point of approximately two blocks

from the house, Detective Railey observed Marquees and

effected an arrest before reaching the Commonwealth’s at-

torney’s office.

With the departure of the officer seeking the warrant,

one of the remaining five or six enforcement agents told the

peonle present in the living room that they could not leave

the premises unless they subjected themselves to a search.

This restraint was so absolute that when one of the de-

tainees requested to go to an adjoining room to get a drink

of water, he was not allowed to do so. Although the Com-

monwealth maintains that no one was arrested until after

Detective Railey returned with the search warrant for the

premises, the law is to the effect that at such time as the

police told those present that they could not leave the house

until they permitted a search of their persons, they were,

in fact, under arrest. Our opinion in this appeal completely

overlooks the language of Terry v. Ohio, 392 U.S. 1, 20 L.

Ed. 2d 889, 903, 88 S. Ct. 1868 (1968) to the effect:

Our first task is to establish at what point in this en-

counter the Fourth Amendment becomes relevant.

That is, we must decide whether and when Officer

McFadden “seized” Terry and whether and when he

conducted a “search.” There is some suggestion in the

use of such terms as “stop” and “frisk” that such police

conduct is outside the purview of the Fourth Amend-

ment because neither action rises to the level of a

“search” or “seizure” within the meaning of the Con-

stitution. We emphatically reject this notion. It is quite

plain that the Fourth Amendment governs “seizures”

of the person which do not eventuate in a trip to the

station house and prosecution for crime—‘“arrests” in

traditional terminology. It must be recognized that

whenever a police officer accosts an individual and re-

strains his freedom to walk away, he has “seized” that

person.

See also Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d

694 1707 86 S. Ct. 1602 (1966) where the Court employed

the phrase “or otherwise deprived of his freedom of action

in any significant way.”

It is clear to me, under the foregoing authority, that

when appellant was advised that he could leave the prem-

ises only after being subjected to a search that he was sig-

nificantly deprived of his freedom of action and thus under

arrest.

Having concluded that Rawlings was in custody, I now

turn to the question of whether there was probable cause

. for the officers to seize his person.

It requires no citation of authority to note that an officer

may arrest an individual when that person commits a mis-

demeanor in the policeman’s presence. The law enforcement

agent must observe the offense but more importantly, he

must also observe the actor so engaged in the illegal activ-

ity. In the case before us, absolutely no one was seen doing

anything and no one witness so testified. Without so con-

cluding, if the odor of marijuana were sufficient to say

someone was in possession thereof, then, on October 18,

1976, who had it? The answer is that at the time of the

arrest, no one did and the police so admit.

The blatant omission in the Commonwealth’s case is that

if they considered a misdemeanor being committed in their

presence, then who was committing the misdemeanor? This

remains unanswered. It can hardly be said that there is an

offense in this jurisdiction of possession of an odor and if

possession of an odor is an offense, then who was in posses-

sion thereof? We believe that even though not a member of

the legal profession, Officer Railey, who led this raid, most

succinctly put it in the following questions and answers:

Q If you smelt (sic) marijuana in the air, would you ex-

pect that to be evidence of a misdemeanor or felony?

A It appeared to be a misdemeanor at that time.

MR. CAUDILL: Judge, he wouldn’t know that.

A I wouldn’t know that because that smoke in the air is

not a violation at all. I’d have to refer where it came from

or something.

My brothers reject the piineipies announced in Johnson

v. United States, 333 U.S. 10, 92 L. Ed. 436, 68 S. Ct. 367

(1948) stating that the opinion “is not persuasive in that ar-

rest and search warrant in the case were not based merely

on the smell of marijuana coming from a closed room.” I

find the implied comparison between a closed room and an

open one to be a distinction without a difference. As I view

it, Johnson, supra, stands for the proposition that the

smell of contraband, standing alone, will be insufficient for

a warrantless search but will form a basis for presentation

to a magistrate upon application for a search warrant. If an

odor is improper cause for a warrantiess search, then, a

fortiori, it cannot serve as a foundation for arrest of a per-

son. The observation of several needs in a nearby bedroom

of the occupant of a house is not an exigent circumstance to

add to smell to authorize this violation of appellant’s Fourth

Amendment rights. Since there is no limitation upon the

rule announced in our opinion in this case, then it would be

possible to place everyone in Rupp Arena under arrest in

the event some few of them were smoking the drug and

officers observed seeds lying about. On the other hand, it

would be virtually impossible to promulgate guidelines to

limit our opinion for shall we say an open room or a closed

room, one person or a hundred people, one type of drug

odor and not another?

Johnson, supra, as well as many other opinions, stand for

the rule that the search may not justify the arrest while

Henry v. United States, 361 U.S. 98, 4 L. Ed. 2d 134, 80S.

Ct. 168 (1959) dictates that before police can restrict one’s

liberty—which is an arrest—there must be probable cause

for so arresting. If there are reasonable grounds to believe

that the detainee has committed a felony, the seizure of his

person is proper as is the arrest of one who commits a mis-

demeanor in the. presence of an officer. In the case at bar,

the Commonwealth contends that a misdemeanor had been

committed in the presence of Railey and his compatriots but

for reasons hereinabove set forth, I disagree with that

premise. The majority would circumvent the mandates of

Johnson and Heniy because in addition to the smell, they

observed a few seeds in the householder’s (who was not

present) bedroom which was separate and apart from the

room where appellant was situated. The second circum-

stance which my brothers rely up to distinguish this cause

from the cited cases, is that drugs were later found in one

of the arrestee’s purse but those were the fruits of an illegal

arrest and thus an illegal search.

The opinion herein seeks to avoid United States v. Di Re,

3382 U.S. 581, 92 L. Ed. 210, 68 S. Ct. 222 (1947) (which

stands for the proposition that a search warrant for prem-

ises does not authorize the search of all persons located

thereon) for the same reasons applied to Johnson and

Henry in spite of the fact that the majority agree with Di

Re. I see no valid distinguishing factors between the case at

bar and Di Re.

It cannot be argued that the police had probable cause to

arrest Rawlings and his friends upon the grounds of pre-

serving evidence for at the time, they were unaware of any

evidence that had to be preserved. Prior to entering the

quarters, not one police official had ever known of or had

seen any of the parties they seized and it can hardly be said

that they had any reason to believe that they were in pos-

session of drugs. The most that the detainees could be said

to be in possession of is some vapors which the evidence

revealed they did not create.

Even though I do not believe that this case goes any fur-

ther than the illegal arrest which was effected soon after

the officers entered the dwelling, I believe some brief

comment should be made concerning the search of the

woman’s purse and the person of appellant.

After all witnesses for both sides of this litigation agreed

to the congenial atmosphere existing during the forty-five

minute interval while Railey apprehended Marquees and

obtained the search warrant, there is an almost unbelieva-

ble change at such time as the detective returned. The un-

convincing testimony of the police is to the effect that once

the search warrant was read that they all experienced fear

for their safety eminating from what is now three detainees

(as compared to five or six armed men) to such an extent

that it became necessary to go beyond the “pat down”

search as described in Tey, supra, (but not authorized by

that case in circumstances such as this) and conduct the in

depth or inside the outer clothing search. This was done in

spite of the fact that the officer examining appellant tes-

tified that after the pat down, he knew Rawlings had no

gun where a bulge appeared to be under his arm. It is in-

credulous that the policeman experienced the sudden fear

they claimed they did after joining with Rawlings and his

friends for better than a half hour in listening to phono- .

graph records.

Insofar as the opinion authorized the search of a woman’s

purse laying on a couch immediately next to her person

pursuant to a search warrant for the premises, I can only

add that I arn unwilling to extend to this jurisidiction the

rule as enunciated by the Court of Appeals for the District

of Columbia, Massachusetts, Michigan and Washington. In

the first place, Kentucky is not bound by those decisions

and in the second place, under our opinion in this appeal, it

would be necessary for every woman to clutch to her person

that very integral part of her apparel in order to avoid a

search of it when illegally detained.

The opinion in this cause concludes that some constitu-

tional errors are so unimportant and unsignificant as to be

deemed harmless citing Chapman v. California, 386 U.S.

17, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967). I should first

point out that the Court reversed the conviction of Chap-

man for violation of her constitutional rights. I, for one, am

unwilling to participate in the denial of a litigant’s Fourth

Amendment rights such as are delineated in Terry, supra,

and was so done in this case on the grounds that the error

was insignificant and unimportant. I would rather subscribe

to the principle of Henry, supra, in that

It is better, so the Fourth Amendment teaches, that

the guilty sometimes go free than the citizens be sub-

ject to easy arrest.

For the reasons stated herein, I dissent.

ATTORNEYS FOR APPELLANT:

Kelly Thompson

P.O. Box 1927

Bowling Green, Kentucky 42101

Ron Parry

Suite 404, Lawyers’ Building

Newport, Kentucky 41071

ATTORNEYS FOR APPELLEE:

Robert F. Stephens

Attorney General

Victor Fox

Assistant Attorney General

Capitol Building

Frankfort, Kentucky 40601

Coded

(09

SUPREME COURT OF KENTUCKY

78-SC-324-D

(CA-1185-MR)

COMMONWEALTH OF KENTUCKY

Respondent

DAVID RAWLINGS

Movant

WARREN CIRCUIT COURT

17137

ORDER GRANTING DISCRETIONARY REVIEW

The motion of David Rawlings for a review of the deci-

sion of the Court of Appeals is granted.

The clerk of the Court of Appeals is directed to transfer

to the clerk of the Supreme Court the entire record in this

proceeding, File No. CA-1185-MR.

Entered November 14, 1978.

Chief Justice

SUPREME COURT CF KENTUCKY

78-SC-324-DG

COMMONWEALTH OF KENTUCKY

Respondent

DAVID RAWLINGS

Movant

ON REVIEW FROM COURT OF APPEALS

CA-1185-MR

(Warrent Circuit Court No. 17134)

OPINION OF THE COURT BY

JUSTICE STEPHENSON

Affirming

David Rawlings was convicted of the pussession of con-

trolled substances for the purpose of sale, KRS 218A.990,

and sentenced to a term of five years’ impriso: ment in the

penitentiary. The Court of Appeals affirmed. We granted

discretionary review and affirm.

Police officers with a warrant for the arrest of a Law-

rence Marquess forcibly entered his residence. Five indi-

viduals, including the movant David Rawlings, were found

in the living room of the residence. During the course of the

search of the residence for Marquess, the officers noted the

odor of marijuana and in another room observed marijuana

seeds ona mantel. The officers then determined that a

search warrant was indicated, and one or two of the officers

left to procure a search warrant. During the period of

forty-five minutes wait for the two officers to obtain the

search warrant, the five individuals, including Rawlings,

were detained in the living room and were informed by the

officers that they could not leave the room unless they con-

sented to a search of their person; two of the individuals

were permitted to leave after submitting to a search. After

the indicated lapes of time, the officers returned with a

search warrant, authorizing a search of the premises. There

was no authority for the search of individuals on the prem-

ises.

One of the individuals remaining in the living room, a

Vanessa Cox, was seated on a couch with her purse lying on

the couch between her and Rawlings. The officers ordered

Vanessa Cox to stand and empty her purse on the table.

The purse was emptied of a large amount of controlled sub-

stanees, and Vanessa Cox informed the officers that the

drugs belonged to Rawlings. Rawlings admitted to the offi-

cers that he was the owner of the drugs. Rawlings, prior to

the arrival of the police officers, had placed the drugs in the

purse belonging to Vanessa Cox.

From our review of the record, when the officers re-

turned with the search warrant for the premises, they de-

cided to search all the individuals. While the purse belong-

ing to Vanessa Cox was being emptied, Rawlings was asked

to stand. Then came the admission as to being the owner of

the drugs. Thereupon Rawlings’ person was searched. The

search yielded a wad of bills, in the amount of $4,500, and a

knife in a sheath. Rawlings was then placed under arrest.

The exact sequence of events here is not clear from the rec-

ord.

At a pretrial suppression hearing, the trial court ruled

that the drugs and money were admissible into evidence.

During the course of the trial, both the drugs and the

money were the subject of testimony and both were intro-

duced as exhibits.

The concept of “standing,” to raise a Fourth Amendment

violation argument with respect to the drugs in the purse,

occupies a great deal of the argument by both Rawlings and

the Commonwealth. The trial court determined that Raw-

lings did not have “standing.” The Court of Appeals, after a

lengthy analysis of case law, determined that Rawlings did

have “standing” but decided that the search of the purse

was not invalid and affirmed the judgment of the trial

court.

The central issue in this case is the warrantless search of

Vanessa Cox’s purse. In resolving this issue, we are con-

fronted with the proposition of “standing” on the part of

Rawlings to raise the Fourth Amendment issue and the

ulimate issue—the merits of the Fourth Amendment argu-

ment. “Standing” is a largely theoretical concept. Learned

texts on the subject abound. The United States Supreme

Court has written many times and at length on the subject.

It is almost impossible to separate the concept of “standing”

and the principles of law on the merits. The concept of

“standing” is theoretically separate from a defendant’s

rights under the Fourth Amendment but is so interwoven

that discussion of one overlaps the other. All in all we con-

fess that we find the concept of “standing” totally incom-

prehensible and, to the extent of overlap with Fourth

Amendment rights, equally incapable of understanding. So

in approaching the central issue in this case, we prefer to

speak in terms of substantive right under the Fourth

Amendment. We have considered Rakas v, Illinois,

U.S. , 99 S.Ct. 421, 58 L.Ed2d 387 (1978); Simmons v.

United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed2d 1247

(1968); Jones v. United States, 362 U.S. 257, 80S. Ct. 7285,

4 L.Ed2d 697 (1960); U.S. v. Johnson, 475 F .2d 977 (DC

Cir. 1972); and Sumrall v. United States, 382 F .2d 651

(10th Cir. 1967). We are of the opinion the evidence ob-

tained by the search of Vanessa Cox’s purse was properly

admitted at trial. We feel that Rawlings probably does not

have standing to raise the issue here. Jones apparently

would confer standing on the theory that possession of the

drugs both convicts and confers standing since the offense

here is possession, admitting ownership is admitting guilt.

Here the defendant did not find himself in that dilemma, he

admitted ownership of the drugs when they appeared from

the purse and Vanessa Cox stated the drugs belonged to

him. Further, Simmons established that evidence to show

standing is not admissible, over objection, on the issue of

guilt. We are not sure of the effect of Rakas although it

seems to reject the theory of Jones on “standing.” We are

of the opinion that the search of Vanessa Cox’s purse did

not violate Rawlings’ legitimate or reasonable expectation

of freedom from governmental intrusion.

For what it is worth, Rawlings testified at the suppres-

sion hearing that when he placed the drugs in Vanessa

Cox’s purse, he did not expect or feel that the purse would

be free from the intrusion of the officers. There is the factor

of the risk that Vanessa Cox might consent to a search of

her purse together with the always present possibility of

inadvertent exposure of the drugs. Considering the totality

of the circumstances, we are of the opinion the search did

not violate Rawlings’ legitimate or reasonable expectations

of freedom from governmental intrusion into the purse and

that Rawlings has not made a sufficient showing that his

legitimate or reasonable expectations of privacy were vio-

lated.

The money found on Rawlings’ person was admitted into

evidence at trial, the knife was not. This search was not

explored in detail at the suppression hearing, other than a

denial of the motion to suppress. This issue does not involve

such complicated principles as the search of the purse, and

we prefer to validate this search on the theory of a search

incident to a valid arrest. In arriving at this conclusion, we

disregard as irrelevant the detention during the period in

which the officers were procuring a search warrant. As we

have said, the sequence of the search of the purse and

Rawlings’ admission of ownership of the drugs is not clearly

established in the record. Clearly, after Rawlings admitted

ownership of the drugs, the officers were entitled to arrest

and search the person, or search and then arrest. Cupp v.

Murphy, 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed2d 900 (1973).

The opinion of the Court of Appeals is affirmed.

All concur except Lukowsky, J., who dissents.

ATTORNEYS FOR MOVANT:

Ronald R. Parry

Harry P. Hellings

Jolly, Johnson, Blau & Parry

30 W. Fourth Street

P.O. Box 368

Newport, Kentucky 41072

ATTORNEYS FOR RESPONDENT:

Robert F. Stephens

Attorney General

Victor Fox

Assistant Attorney General

New State Capitol

Frankfort, Kentucky 40601

Kelly Thompson, Jr.

410 East 11th Street

P.O. Box 275

Bowling Green, Kentucky 42101

SUPREME COURT OF KENTUCKY

COMMONWEALTH OF KENTUCKY

Respondent

DAVID RAWLINGS

Movant

ON REVIEW FROM COURT OF APPEALS

CA-1185-MR

(Warren Circuit Court No. 17134)

DISSENTING OPINION BY JUSTICE LUKOWSKY

The majority opinion holds that the search of Cox’s purse

did not violate “Rawlings’ legimiate or reasonable expecta-

tion of freedom from governmental intrustion” under the

Fourth Amendment even though the items seized belonged

to Rawlings and had been placed in Cox’s purse with her

consent for safekeeping.! I am compelled to dissent for two

reasons,

The searches and seizures which occurred were the fruits

of unlawful arrests and should be suppressed. Wong Sun v.

United States, 371 U.S. 481, 83 S. Ct. 407, 9 L. Ed. 2d 441

(1963). After lawfully entering the premises to arrest Mar-

quees the police officers decided that they had probable

cause to obtain a warrant to search the premises for mari-

juana. While some of the police officers went to obtain the

search warrant, the remaining police officers would not

allow those present to leave the room or the premises un-

less they would submit to a search. This constituted an ar-

1 Although not articulated in the majority opinion it must be

assumed from its tenor that if Cox had been challenging the

validity of the search instead of Rawlings the court would have

held the search to the unreasonable under the Fourth Amend-

ment and ordered the evidence suppressed. United States v.

Micheli, C.A. 1st, 487 F. 2d 429 (1973); United States v.

Hooper, E.D. Tenn., 320 F. Supp. 507 (1969); Parker v. State,

177 Tenn. 380, 150 S.W. 2d.725 (1941).

rest because it significantly deprived those individuals of

their freedom of action. Terry v. Ohio, 392 U.S. 1, 88S. Ct.

1868, 20 L. Ed. 2d 889 (1968). It was not an investigatory

stop but an arrest because the detention here went well

beyond the bounds of permissible investigatory stops. See,

e.g., United States v. McCaleb, 6th C.A., 552 F .2d 717,

720 (1977); Manning v. Jarrigan, 6th C.A., 501 F .2d 408,

410-411 (1974). 7

The arrest of Rawlings and the other people present at

1264 Adams Street was unlawful because no misdemeanor

had been committed in the presence of the police officers.”

KRS 431.005. The facts that the police officers smelled the

odor of burnt marijuana and inadvertently discovered a few

marijuana seeds in “plain view” in Marquess’ room created

probable cause for the police officers to obtain a search

warrant for the premises, but did not establish that a mis-

demeanor was being committed in their presence by any of

the individuals on the premises.* See, e.g., Marsh v. Com-

monwealth, 255 Ky. 484, 74 S.W. 2d 943 (1934). The odor of

burnt marijuana is merely evidence that marijuana has

been smoked on the premises at sometime in the past.‘ It

does not establish that marijuana is present on the prem-

ises at the time the odor is detected. Only the odor of either

unburned marijuana or burning marijuana would indicate

the actual presence of marijuana on the premises. The

presence of the seeds in Marquess’ room did not create

probable cause to believe that any of the individuals in the

living room possessed marijuana even with the presence of

the odor of burnt marij’ ana. See, e.g., People v. Hilker,

403 Mich. 312, 269 N.W. 2d 159 (1978); State v. Schoendal-

ler, Mont., 578 P. 2d 730, (1978). The possession of the odor

of burnt marijuana is not an offense in this Commonwealth

hence no misdemeanor was committed in the presence of

the police officers.

2The first offense of possession of marijuana for sale is a mis-

demeanor. KRS 218A.990 (4). There is nothing in the record to

indicate that any of the individuals present had been previously

convicted of this offense so as to provide the police officers with

reasonable grounds to believe a felony had been committed by

anyone.

3The possesion of marijuana for personal use is a mis-

demeanor. KRS 218A. 990(7).

4The Commonwealth’s evidence established that it had been

at least twenty-four hours since marijuana had been smoked on

the premises.

But for the unlawful detention of Rawlings and the others

present in the house, the police would not have discovered

any evidence against Rawlings. All evidence discovered

was a result of this unlawful detention and should be sup-

pressed as “fruit of the poisonous tree.” Wong Sun v.

United States, supra; Brown v. Illinois, 422 U.S. 590, 95 S.

Ct. 2254, 45 L. Ed. 2d 416 (1975).

Even if Rawlings and the others present had not been

arrested by the police when they detained them for forty-

five minutes, the search of Cox’s purse was unlawful be-

cause the search was beyond the perimeter of the search

warrant and consequently unreasonable under the Fourth

Amendment.® The real issue here is whether Rawlings

should be permitted to raise the clear violation of Cox’s

Fourth Amendment rights as a violation of his own on the

basis that he owned the property seized and the offense

charged is the possession of that property.®

The majority opinion concludes “that Rawlings probably

does not have standing to raise the issue . . .” of the ille-

gality of the search of Cox’s purse. (Emphasis added). This

conclusion is apparently based on Rakas v. Illinois

__U.S.___, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978).

Rakas is substantially different from the instant case. It

involved a non-possessory offense and the articles seized

were not owned by or in the possession of the defendants.

Id. __U.S. at__n.1, 99 S. Ct. at 423 n.1, 58 L. Ed. 2d at

393 n.1. Rakas reformulated the test for standing to contest

the legality of a search. It held that standing and the sub-

stantive Fourth Amendment question of whether a reason-

able expectation of privacy exists are the same. That is to

say, if there is standing there is a legitimate expectation of

privacy and vice versa. However, it left undisturbed the

automatic standing rule articulated in Jones v. United

= *

5Supra note 1.

‘Because of the limitations imposed on federal review of

Fourth Amendment issues by Stone v. Powell, 428 U.S. 465, 96

S. Ct. 3037, 49 L. Ed. 2d 1067 (1976), I am disturbed that my ,

colleagues are willing to affirm a conviction which rests upon

allegedly illegally obtained evidence when they confess in the

majority opinion that they find the concepts of law involved to

be “totally incomprehensible.” Collins v. Commonwealth, Ky.,

574 S.W. 2d 296, 298 n.1 (1978) Lukowsky, J., dissenting).

States, 362 U.S, 257, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960),

for possessory offenses. I do not read Simmons v. United

States, 390 U.S. 377, 88 S. Ct. 967, 19 L. Ed. 2d 1247

(1968), as undermining this rule but as a reaffirmation of

it.7 Rakas v. Illinois, _._U.S.___, n.6, 99 S. Ct. 421, 489

n.6, 58 L. Ed. 2d 387, 412 n.6 (1978) (White, J., dissenting);

See Brown v. United States, 411 U.S. 228, 98 S. Ct. 1565,

36 L. Ed. 2d 208 (1973).

Rawlings is charged with a possessory offense and the

Commonwealth should not be heard to say that his posses-

soin of these drugs is sufficient to support his conviction but

insufficient to support a reasonable expectation of privacy

when they are concealed in the purse of a companion. He

was entitled to expect that governmental officials would in-

trude into the purse only with consent or by complying with

the Fourth Amendment. Rakas v. Illinois, .U.S.___,___,

99 S. Ct. 421, 441, 58 L. Ed, 2d 387, 414 (1978) (White, J.,

dissenting). Jones v. United States, supra, recognizes his

standing to raise the illegality of the search and seizure of

the evidence from Cox’s purse. Rakas v. II-

linois, _U.S.__,___n.4, 99 S. Ct. 421, 426 n.4, 58 L. Ed.

2d 387, 396 n.4 (1978). Because the search of Cox’s purse

was an unreasonable search and seizure it should be sup-

pressed. Mapp v. Ohio, 367 U.S, 648, 81 S. Ct. 1684, 6 L.

Ed. 2d 1081 (1961).

Further, the search of Rawlings’ person was unlawful be-

cause it was not incident to a valid arrest. The “second”

arrest upon which the search was based was itself unlawful

because it was based upon the fruits of the illegal search for

and seizure of the drugs in Cox’s purse.

I would reverse the judgment and remand the case to the

circuit court for a new trial with directions to suppress the

evidence discovered by the unlawful searches.

7Simmons v. United States holds that when possession of the

seized evidence is in itself an essential element of the offense

with which the defendant is charged the prosecution is pre-

cluded from denying that the defendant has the requisite pos-

sessory interest to challenge the admission of the evidence.

SUPREME COURT OF KENTUCKY

78-SC-324-DG

May 1, 1979

COMMONWEATH OF KENTUCKY

US.

DAVID RAWLINGS

WARREN CIRCUIT COURT

17137

The Court being sufficiently advised, and this Court’s

opinion having been rendered May 1, 1979, it is therefore

considered that the decision of the Court of Appeals is af-

firmed, which is ordered to be certified to said court.

MARTHA LAYNE COLLINS, CLERK

Issued May 22, 1979

In The Supreme Court of the United States

No. 79-5146

DAVID RAWLINGS,

Petitioner,

Kentucky

ON PETITION FOR WRIT OF CERTIORARI TO the

Supreme Court of the Commenwealth of Kentucky.

ON CONSIDERATION of the motion for leave to pro- °

ceed herein in forma pauperis and of the petition for writ

of certiorari, it is ordered by this Court that the motion to

proceed in fo.ma pauperis be, and the same is hereby,

granted; and that the petition for writ of certiorari be, and

the same is hereby, granted. The case is set for oral argu-

ment in tandem with No. 79-244, United States v. Sal-

vucci.

December 10, 1979

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.