# Appendix — Rawlings v. Kentucky > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2070%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1980 - **Citation:** 448 U.S. 98 ## Text tree APPENDIX = = JAN 24 4989 Inu The Supreme Court of the United States OCTOBER TERM, 1979 No. 79-5146 DAVID RAWLINGS, PETITIONER v. 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: NN SRN, SU ee Ce oh Chie Cake bd owthcdcudvseeass ED EC dc sata above «vhiies Ov eads cveoges IE Sav xancS's vee dws wh boa nha bee boxes bebe a ie ich sake tahaG nse ned obese oes as deck speaks oud ccsanbisxkeeasaa be Motion to suppress evidence derived from an illegal arrest .. Motion to suppress evidence due to defective search warrant oii cn eich besaicbAcaen hop and aban Motion to suppress illegally seized evidence ................ ee ee I I cscs dee vcscwneadsnadsceens Order sustaining motion to waive trial by jury ............. ROS SAOR Dek sas Dic cone eRe nee hae beet Order scheduling announcement of verdict ................. ST Oe SOU I As dvs ewe bocknsuebea¥ewes thee nn ahs Se TEN IE Wat Soka sta eonndeed kecanssnwaincnlen PIOUS 54iy 555'ostn's's cad s ane Seewhue nd 4] 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? 42 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 ee 43 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. 44 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 45 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. 46 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? 47 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. 48 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? 49 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. 50 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? 52 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? 53 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. 54 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. 55 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. 56 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 57 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? 58 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. 59 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. 60 THE COURT: I’ve got the one of them. MR. PARRY: Did you know about the nodulars? THE DEFENDANT: No. **HEARING ADJOURNED** 61 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 62 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 63 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 64 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 65 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 66 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 67 ATTORNEYS FOR APPELLEE: Robert F. Stephens Attorney General Capitol Bldg Frankfort, Ky 40601 Victor Fox Assistant Attorney General Capitol Building Frankfort, Ky 40601 68 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 69 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. 70 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 71 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 72 (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, 73 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 74 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 V. 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 76 SUPREME COURT CF KENTUCKY 78-SC-324-DG COMMONWEALTH OF KENTUCKY Respondent V. 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. 77 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 78 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 79 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 80 SUPREME COURT OF KENTUCKY COMMONWEALTH OF KENTUCKY Respondent v. 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, I 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). 81 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. 82 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). IT 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). 83 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. 84 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 85 In The Supreme Court of the United States No. 79-5146 DAVID RAWLINGS, Petitioner, v. 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2070%3A2. Public record. Not legal advice.