Opposition Brief — Kentucky v. Johnson

EDITOR'S NOTE

THE FOLLOWING PAGES WERE POOR HARD COPY

AT THE TIME OF FILMING. IF AND WHEN A

BETTER COPY CAN BE OBTAINED, A NEW FICHE

WILL BE ISSUED,

QUESTIONS PRESENTED

I.

DOES THIS COURT HAVE JURISDICTION TO

REVIEW THE CASE WHERE THE KENTUCKY

SUPREME COURT EXPRESSLY STATED THAT

THE CASE WAS DECIDED UNDER’ THE

KENTUCKY CONSTITUTION “(W)ITHOUT

EXPRESSING ANY VIEW AS TO THE RESULT

WHICH WOULD BE REACHED IN THIS CASE

BY APPLICATION OF THE FOURTH AMEND-

MENT OF THE UNITED STATES CONSTITU-

TION AND APPLICABLE DECISIONS OF

FEDERAL COURTS”?

i a

DID THE SUPREME COURT OF KENTUCKY

CORRECTLY HOLD THAT IT IS UNCONSTI-

TUTIONAL FOR THE POLICE TO MAKE A

FORCED, WARRANTLESS ENTRY INTO A

PERSON’S MOTEL ROOM ON THE ASSERTION

THAT IT WAS FOR PERSONAL SAFETY,

PARTICULARLY WHERE THE JUDGE WHO

ISSUED A WARRANT FOR A CAR HAD

REFUSED TO ISSUE A WARRANT FOR THE

ROOM?

QUESTIONS PRESENTED.......

TABLE OF AUTHORITIES... .ceeesesescees

TABLE OF CONTENTS

REASONS WHY THE PETITION

SHOULD BE ok. EE

I. THERE IS AN ADEQUATE AND INDEPENDENT

STATE GROUND FOR THE JUDGMENT OF THE

S «REME COURT OF KENTUCKY........5.0.-

II. IF THE SUPREME COURT OF KENTUCKY HAD

RELIED UPON THE FOURTH AMENDMENT,

THE DECISION HOLDING THE SEARCH

ILLEGAL STILL WOULD HAVE BEEN

PE » 6 60668066 0:6 08.6688 6 eee ee 8 =e &

CONCLUSION.......

APPENDIX

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alia

10

TABLE OF AUTHORITIES

PAGE

Coolidge v. New Hampshire,

403 U.S. 443, 91 S.Ct. 2022,

29 L.EG.24 564 (1971) -ccccccccccccccsceccececscccecceos 8

Henry v. Mississippi,

379 U.S. 443, 85 S.Ct. 564 (1965) ccccccccccscccccceces 2

McDonald v. United States,

333 U.S. 451, 69 &.Ct. 191,

ee et AR aos ak g's 30.06 9.0 4S aes inlgalakieweles 8

Michigan v. Long,

463 U.S. 1032, 103 S.Ct. 3469,

ee cs sb ied WAG eRe Ree Re

Payton v. New York,

445 U.S. 573, 100 §.Ct. 1371,

63 L.BG.24 639 (1980) .ccccccccccscceose ous eeesennsces

Schneckloth v. Bustamonte,

412 U.S. 218, 93 S.Ct. 2041,

36 L.Ed.2G 854 (1973) ..cccccccccsscccccscvesccesseces

Segura v. United States,

468 U.S. 796, 104 S.Ct. 3380,

82 L.Ed.2d 599 es) |) PP PerrrerrerereererrerrrrirrrrryT Ts

Shanks v. Commonwealth, Ky.,

504 S.W.2d 709 CEPPOD cee eeceneeveseerstoseossioescenees

Stoner v. California,

376 U.S. 483, 84 S.Ct. 889,

sey ©. ee! yi) Pre reerererererirrre oceeeeseveces

Terry v. Ohio,

392 U.S. 1, 88 S.Ct. 1868,

20 L.Ed.2d 889 (1968)..... TETULUETCLTLT ToeRTTLeTT

United States v. Bulman,

G67 Fese 22376 (A2ER Cif: 19862) cccccccece Trereerrre cee

United States v. Chadwick,

433 U.S. 1, 97 S.Ct. 2476,

S3 Le BG.2d S38 (1977) cccccccccccccsccccccccccccces

United States v. Killebrew,

Bon Via Fee Cee Gale BOTT) can 0006 0606000856868% .

-iii-

United States v. Lyon

Ss,

706 F.2d 321 (D.C. App. 1983)

United States v. Segura,

663 F.2d 411 (2nd Cir. 1981).

United States v. Winsor,

846 F.2d 1569 (9th Cir. 1988)

Vale v. Louisiana,

399 U.S. 30, 90 S.Ct. 1969,

SG bc. BE SOS (2970)... cccees

-iv-

Pe eeeecosseeaeaeeCc@tere veers ee

NO. 89-1182

COMMONWEALTH OF KENTUCKY PETITIONER

VS.

CHARLES DAVID JOHNSON RESPONDENT

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF KENTUCKY

RESPONDENT’S BRIEF IN OPPOSITION

The respondent, Charles David Johnson, respectfully

requests that this Court deny the petition for writ of certiorari

seeking review of the opinion of the Supreme Court of Kentucky in

this case. That opinion is reported as Commonwealth v. Johnson,

-Ky., 777 S.W.2d 876 (1989).

REASONS WHY THE PETITION

SHOULD BE DENIED

zy

THERE IS AN ADEQUATE AND INDEPENDENT

STATE GROUND FOR THE JUDGMENT OF THE

SUPREME COURT OF KENTUCKY.

The petitioner seeks review of the decision of the

Supreme Court of Kentucky. The decision of the Supreme Court of

Kentucky was based exclusively on the state constitution.

Indeed, the Supreme Court of Kentucky expressly stated that it

was not expressing any view on how the case would be decided

under the United States Constitution and applicable decisions of

Federal Courts:

Without expressing any view as to

the result which would be reached by

application of the Fourth Amendment

to the Constitution of the United

States and applicable decisions of

Federal Courts, we hold that the

warrantless, forced entry by the

police into appellant’s room at the

Ramada Inn, violated Section 10 of

the Constitution of Kentucky, and

the evidence found therein must be

suppressed. On this issue, we

affirm the Court of Appeals. A 5-6.

Emphasis added.

Since the judgment of the Supreme Court of Kentucky was

based exclusively on state law, this Court lacks jurisdiction to

review the case. See Henry v. Mississippi, 379 U.S. 443,

85 S.Ct. 564, 567 (1965) (”under the view taken in Murdock of the

statutes conferring appellate jurisdiction on this Court, we have

no power to revise judgments on questions of state law”).

"Respect for the independence of state courts, as well as

avoidance of rendering advisory opinions, have been the

cornerstones of this Court’s refusal to decide cases where there

is an adequate and independent state ground.” Michigan v. Long,

463 U.S. 1032, 103 S.Ct. 3469, 3476, 77 L.Ed.2d 1201 (1983).

II.

IF THE SUPREME COURT OF KENTUCKY HAD

RELIED UPON THE FOURTH AMENDMENT,

THE DECISION HOLDING THE SEARCH

ILLEGAL STILL WOULD HAVE BEEN

CORRECT.

As mentioned above, the Supreme Court of Kentucky did

not decide this case under the United States Constitution.

Rather, the Court expressly stated that it was deciding the case

under the Kentucky Constitution. However, even if the Court had

decided the case under the United States Constitution, the

decision holding the search illegai still would have been

correct.

At the outset, the Court should note that the police in

the case at bar had sought a warrant for respondent’s car and his

motel room at the Ramada Inn. See Affidavit in Support of Search

Warrant, A 16-17. However, the district judge specifically

determined that the police did not have probable cause to search

the room by issuing a warrant only for respondent’s car. A 18.

Having been denied permission to enter respondent’s

room by the district judge who would only issue a search warrant

for the car, the police decided they would force their way into

the room on the claim that it was necessary for their personal

safety. This forced, warrantless intrusion into respondent’s

motel room was patently illegal.

The evidence relevant to this issue includes’ the

following:

ora

Around 10:00 a.m. on September a7. Officer Ron

Wietholter was at the Ramada Inn on personal business when he

observed respondent acting suspiciously by moving objects around

in his car. TE III, 201-203. Officer Wietholter notified Chief

Weaver of this suspicious activity at 4:00 p.m. on September 17,

1985. TP Nov. 18, 3.

At 5:15 p.m. on September 17, Officer Eldridge of the

Airport Police Department brought his dog trained in drug

detection to the motel and they walked the dog = around

respondent’s car in the rear patking area of the motel. TP Nov.

18, 3. The dog reacted in a positive manner for the presence of

controlled substances. TP Nov. i8, 4.

The police then obtained a warrant to search

respondent’s car and was denied a warrant to seacch his room. TP

Nov. 18, 4, A 18.

For the purpose of executing the warrant for the car,

the police went to respondent’s room to get a key and to

determine if respondent wanted to accompany them on the search.

TP Nov. 18, 5. .

Respondent’s door was open about an inch. TP Nov. 18,

6. The police knocked on the door and identified themselves as

police officers. TP Nov. 18, 6.

When respondent saw who was outside his room, he

attempted to close the door. Ze. Rev. 26, 6. The police

prevented him from closing the door. TP Nov. 18, 6.

The police then had respondent step out into the

hallway wearing only his underclothing and a pair of boots. MTP

Nov. 18, 6-7.

At this point, the police had not seen any contraband

or controlled substances. TP Nov. 18, 7.

Respondent stepped out into the hall as instructed and

closed the door behind him. TP Nov. 18, 7.

Respondent told the police he wanted to accompany them

on the search of his car. TP Nov. 18, 7. A police officer then

got a pass key so that respondent could get back in his room and

get his clothing. TP Nov. 18, 8.

When respondent entered his room, he attempted to close

the door. TP Nov. 18, 8. The police again kept him from closing

the door “for our own personal safety.” TP Nov. 18, 9-10.

Two to three police officers then went into

respondent’s room without respondent’s permission to do so. TP

Nov. 18, 9-10. Respondent then put his clothes on. TP Nov. 18,

10.

While in the~ roon, the police observed = drug

paraphernalia and drug contraband. TP Nov. 18, 10. The police

acknowledged that they could not have gotten a search warrant for

the room without entering the room. TE II, 118.

After the police watched respondent dress, they went

with him to the car. TP Nov. 18, 11. The car was searched but

no contraband items were found in the car. TP Nov. 18, 12.

The police then obtained a search warrant’ for

respondent’s room based upon what they had seen while in the

room. TP Nov. 18, 14-15.

The police had information that respondent carried

firearms. TP Nov. 18, 15-16.

The Fourth Amendment “protects people from unreasonable

government intrusions into their legitimate expectations of

privacy.” United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476,

2481, 53 L.Ed.2ad 538 (1977). A person has a legitimate

expectation of privacy in a hotel room that he rents. In Stoner

v. California, 376 U.S. 483, 84 S.Ct. 889, 893, 11 L.Ed.2d 856

(1974), the Supreme Court made it clear that “a guest in a hotel

room is entitled to constitutional protection against

unreasonable searches and seizures.” See also United States v.

Lyons, 706 F.2d 321, 326 (D.C. App. 1983); United States v.

Killebrew, 560 F.2d 729, 733 (6th Cir. 1977); United States v.

Bulman, 667 F.2d 1374, 1383-1384 (11th Cir. 1982); Shanks v.

Commonwealth, Ky., 504 S.W.2d 709, 711 (1974).

The decisions of this Court make it clear that only in

“a few specially established and well-delineated” situations may

a warrantless search of a dwelling withstand constitutional

scrutiny. Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 1972,

26 L.Ed.2d 409 (1970). More recently, in Payton v. New York, 445

U.S. 573, 100 S.Ct. 1371, 1374-1375, 63 L.Ed.2d 639 (1980), the

Court held that the Fourth Amendment prohibits the police from

making a warrantless and nonconsensual entry into a suspect’s

home in order to make a routine felony arrest and observed:

In terms that apply equally to

seizures of property and to seizures

of persons, the Fourth Amendment has

drawn a firm line at the entrance to

the house. Absent exigent circun-

stances, that threshold may not

reasonably be crossed without a war-

rant. Id., 100 S.Ct. at 1382.

In the case at bar, the police literally forced their

way into respondent's motel roon. TP Nov. 18, 8, 9-10. The

police did not have a warrant that authorized their entry into

this room. On the contrary, the district judge had specifically

determined the police did not have probable cause to search the

room by issuing a search warrant for only Mr. Johnson's car even

though the police asserted in their initial affidavit that they

believed drugs were in both the room and car. See A 16; A 18.

The forced, warrantless entry into respondent's room

clearly constituted a search and seizure within the meaning of

the Fourth Amendment. See Segura v. United States, 468 U.S. 796,

104 S.Ct. 3380, 3382, 3389, 82 L.Ed.2d 599 (1984). See also

dissenting opinion at 104 S.Ct. 3394-3396.

In United States v. Winsor, 846 F.2d 1569, 1572-1573

(9th Cir. 1988), the Court addressed the question of "whether the

police conducted a search within the purview of the Fourth

Amendment when they looked into Winsor'’s room through the open

door while standing in the corridor” after they had demanded that

the door be opened. The Court held that "the police did effect a

‘search’ when they gained visual entry into the room through the

door that was opened at their command.” Id., p. 1573.

ap § 2 is fundamental that warrantless searches and

seizures are unreasonable within the meaning of the Fourth

Amendment unless they fall within one of the few, well-delineated

exceptions to the warrant requirement.” United States v. Segura,

663 F.2d 411, 414 (2nd Cir. 1981), citing Schneckloth v.

Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854

(1973) and Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct.

2022, 2031-2032, 29 L.Ed.2d 564 (1971). The state has the burden

of justifying the warrantless, forcible entry into respondent's

motel room. United States v. Killebrew, supra; McDonald v.

United States, 333 U.S. 451, 69 S.Ct. 191, 193, 93 L.Ed. 153

(1948). The fact is, however, there is no recognized exception

to the warrant requirement that would justify the forced entry

into respondent's motel roon. "There is no suggestion that

anyone consented to the search...The officers were not responding

to an emergency...They were not in hot pursuit of a fleeing

felon...The goods ultimately seized were not in the process of

destruction... Nor were they about to be removed from the

jurisdiction..." Vale v. Louisiana, supra, 90 S.Ct. at 1972.

The only justification that the police in the case at

bar offered to their act of forcing their way into respondent's

room and watching him dress was the assertion that it was done

for their personal safety. TP Nov. 18, 8, 9-10. However, this

Court has never given approval to police action of forcing their

way into a person's home in this manner. Respondent certainly

was no danger to the police while he was in his room and they

—_— ee

were on the outside. If respondent had come out of his room

after dressing to accompany the police on the search of the car,

the police could have protected themselves at that point by

making the pat-down search for weapons authorized by Terry v.

Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). It was

completely unnecessary and completely unreasonable for the police

to force their way into respondent’s room under the guise of

protecting themselves.

In holding the search illegal, the Supreme Court of

Kentucky aptly stated:

[Wje have examined the authorities

and are not persuaded that the

police are authorized, in anticipa-

tion of executing a search warrant

upon a person’s property in another

location, to constantly observe him

at a time when he is not under

arrest. If such an intrusion were

permitted upon the basis of

generalized police safety considera-

tions, the police would be

authorized to engage in forced, war-

rantless searches in a multitude of

otherwise prohibited circumstances.

Cf. Shanks v. Commonwealth, Ky.,

504 S.W.2d 709 (1974). A warrant-

less search upon the basis of a pre-

textual arrest is invalid. Amador-

Gonzalez v. United States, 391 F.2d

308 (CA 5 1968). It follows with

greater logical force that a mere

apprehension for personal safety,

and the opportunity such provides

for pretext, is insufficient to

create an .exception to the warrant

requirement. A 7-8.

Underscoring the previously mentioned fact that this case was

decided under the Kentucky Constitution, the Supreme Court of

Kentucky stated, “We are not willing, however, to recognize

exceptions [to the warrant requirement] so broad as to render

meaningless the right secured by the Constitution of Kentucky.”

A 8.

The Supreme Court of Kentucky was certainly correct.

The constitutional prohibition against unreasonable searches and

seizures would be rendered meaningless if the police were

authorized to force their way into people’s homes without a

warrant merely on the assertion that it was necessary for their

personal safety. This case provides a glaring example of the

dangers of allowing such police conduct. The police were told by

a judge that they did not have cause to enter respondent’s roon.

But the police did so anyway asserting that it was for their

personal safety. There will be no check at all on the police if

they are given a free hand to engage in such conduct.

CONCLUSION

For these reasons, the petition for writ of certiorari

should be denied.

Respectfully submitted,

WeRecued

RODN McCDANIEL

ASSISTANT PUBLIC ADVOCATE

1264 LOUISVILLE ROAD

PERIMETER PARK WEST

FRANKFORT, KENTUCKY 40601

(502) 564-8006

COUNSEL FOR RESPONDENT

-10-

NO. 89-1182

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1989

COMMONWEALTH OF KENTUCKY, PETITIONER

Ve

CHARLES DAVID JOHNSON, RESPONDENT

CERTIFICATE OF SERVICE

I, Rodney McDaniel, a member of the Bar of this Court,

hereby certify that on this 14th day of February, 1990, the

attached Brief in Opposition to Petition for Writ of Certiorari,

Motion For Leave To Proceed in Forma Pauperis, Affidavit of

Indigency, Notice of Appearance, Affidavit of Mailing and

Appendix were mailed, first class postage prepaid, to Hon.

Valerie L. Salven, Assistant Attorney General of Commonwealth of

Kentucky, Capitol Building, Frankfort, Kentucky 40601, counsel

for respondent. I further certify that all parties required to

be served have been served.

Fodaon MS

RODNEY McDANIEL

ASSISTANT PUBLIC ADVOCATE

DEPARTMENT OF PUBLIC ADVOCACY

1264 LOUISVILLE ROAD

PERIMETER PARK WEST

FRANKFORT, KENTUCKY 40601

COUNSEL OF RECORD

NO. 89-1182

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1989

COMMONWEALTH OF KENTUCKY, PETITIONER

Ve

CHARLES DAVID JOHNSON, RESPONDENT

MOTION FOR LEAVE TO

PROCEED IN FORMA PAUPERIS

The Respondent, Charles David Johnson, asks leave to

file the attached Brief In Opposition to Petition For a Writ of

Certiorari to the Supreme Court of Kentucky without prepayment of

costs and to proceed in forma pauperis pursuant to Rule 39.

The Respondent was permitted to proceed as an indigent

by the Supreme Court of Kentucky. The Respondent's affidavit in

support of this motion is attached.

Respectfully submitted,

fodran 0 Me ce)

RODNEY“McDANIEL

ASSISTANT PUBLIC ADVOCATE

DEPARTMENT OF PUBLIC ADVOCACY

1264 LOUISVILLE ROAD

PERIMETER PARK WEST

FRANKFORT, KENTUCKY 40601

(502) 564-8006

COUNSEL FOR RESPONDENT

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1989

COMMONWEALTH OF KENTUCKY PETITIONER,

Vs. AFFIDAVIT IN SUPPORT OF MOTION

TO PROCEED IN FORMA PAUPERIS

CHARLES DAVID JOHNSON RESPONDENT.

I, Charles David Johnson, being first duly sworn, depose

and say that I am the Respondent in the above-entitled case, and

in support of my Motion to proceed without being required to pre-

pay fees, costs, or giving security therefor, I state that because

of my poverty I am unable to pay the costs of said proceeding or

to give security therefor; that I believe I am entitled to

redress.

I further swear that the responses which I have made to

the questions and instructions below relating to my ability to pay

the costs of prosecuting this proceeding are true.

1. Are you presently employed? ve

a r)

aq 5 IHTE {x = Fonm ra) Tid, = a ) ¢ Miz v

a. If the answer is yes, state the amount of your

salary or wages per month and give the name and

address of your employer.

b. If the answer is no, state the date of your last

employment and the amount of the salary and

wages per month which you received. /714 /

POU. Cf ye M/H

2. Have you received within the past 12 months any

income from a business, profession, or other form of self-

employment, o~ in the form of rent payments, interests, dividends,

or other source? (fV C

3. Do you own any cash or checking or savings accounts?

{VV &

4. Do you own any real estate, stocks, bonds, notes,

automobiles or other valuable property (excluding ordinary

household furnishings and clothing)? ij’ ¢

5. List the persons who are dependent upon you for

support and state your relationship to those persons.

JQepvidQ AVMIREw che Hn’ Ser

}

I understand that a false statement or answer to any

questions in this Affidavit will subject me to penalties for

perjury.

- a ~ * \

ee 1267 C add ly Fd 0.7. 3-3

CHARLES DAVID JOHNSON

SUBSCRIBED AND SWORN to before me by Charles David

4

Johnson on this a day of February, 1990.

J 7

Vas Le _phali

NOTARY PUBLIC, STATE AT LARGE

My Commission expires: ¢- 2+- 4/

APPEARANCE FORM

SUPREME COURT OF THE UNITED STATES

No. 89-1182

vs.

Commonwealth of Kentucky Charles David Johnson

(Petitioner or Appellant) (Respondent or Appellee)

The Clerk will enter my appearance as Counsel of Record for _Charles David Johnson

(Please list names of al] parties represented)

C2) Petitioner(s) &) Respondent(s)

©) Appellant(s) C2 Appellee(s)

who IN THIS COURT is (© Amicus Curiae

I certify that I am a member of the Bar of the Supreme Court of the United States:

Signature fodue, M* AS

~ ,

(Type or print) Name Rodney McDaniel

& Mr. OMs. OMrs. OC Miss

Firm _Department of Public Advocacy

Address _1264 Louisville Road, Perimeter Park West

City & State Frankfort, Kentucky Zip 40601

Phone (502) 364-8006

ONLY COUNSEL OF RECORD SHALL ENTER AN

APPEARANCE. THAT ATTORNEY WILL BE

THE ONLY ONE NOTIFIED OF THE COURT'S

ACTION IN THIS CASE. OTHER ATTORNEYS

WHO DESIRE NOTIFICATION SHOULD MAKE

APPROPRIATE ARRANGEMENTS WITH COUNSEL

OF RECORD.

ONLY ATTORNEYS WHO ARE MEMBERS OF THE

BAR OF THE SUPREME COURT OF THE UNITED

STATES MAY FILE AN APPEARANCE FORM.

IT IS IMPORTANT THAT ALL REQUESTED

INFORMATION BE PROVIDED.

CO-73A

EE _.._ eee il

“i.

NO. 89-1182

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER. TERM, 1989

COMMONWEALTH OF KENTUCKY, PETITIONER

vs

CHARLES DAVID JOHNSON, RESPONDENT

AFFIDAVIT PURSUANT TO

SUPREME COURT RULE 29.2

I Rodney McDaniel, being first duly sworn according to

law, depose and say:

1. I am a member of the Bar of the Supreme Court of the

United States.

2. I am counsel of record for respondent in the above-

styled action.

Be The attached Brief In Opposition to Petition for

Writ of Certiorari, Motion For Leave To Proceed In Forma Pauperis,

Affidavit of Indigency, Notice of Appearance, Certificate of

Service and Appendix were deposited in a United States Post Office

on High Street, Frankfort, Kentucky 40601.

4. The aforementioned documents were deposited in the

United States Post Office, with first-class postage prepaid, and

properly addressed to Mr. Joseph F. Spaniol, Jr., Office of the

Clerk of the United States Supreme Court, 1 First Street, N.E.,

Washington, D.C. 20543.

5. The mailing of the aforementioned documents took

place on February 14, 1990, at approximately Yiowd p.m., which

is within the permitted time set by Rule 15.2.

NS

RODNEY DANIEL

ASSISTANT PUBLIC ADVOCATE

DEPARTMENT OF PUBLIC ADVOCACY

1264 LOUISVILLE ROAD

PERIMETER PARK WEST

FRANKFORT, KENTUCKY 40601

(502) 564-8006

COUNSEL OF RECORD

Subscribed and sworn to before me by Rodney McDaniel on

this 14th day of February, 1990.

) P - “4 ak

Mei é feo F,. (one

NOTARY PUBLIC, STATE AT LARGE

My Commission Expires: (j“»~~-2 3/, /992

4

NO. 89-1182

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1989

COMMONWEALTH OF KENTUCKY, PETITIONER

Vv.

CHARLES DAVID JOHNSON, RESPONDENT

APPENDIX

CONTENTS

Opinion, Supreme Court of Kentucky

Commonwealth v. Johnson, Ky.,

777 S.W.2da 876 (1989)..... Pe iaceheanekeseoe rere Te

Affidavit in Support of Search Warrant..ccccccccccccces

Search Warrant oeeeeeeeeeeeeeee eeeeeeeeeeeeeeeeeeeeeeneeee

16-17

18

4U BO FUDLIONLY

Supreme Court of Kentucky

No. 88-SC-184-DG & 88-SC-425-DG

COMMONWEALTH OF KENTUCKY APPELLANT

v. ON APPEAL FROM THE COURT OF APPEALS

CHARLES DAVID JOHNSON APPELLEE

AND

CHARLES DAVID JOHNSON CROSS-APPELLANT

Vv. ON CROSS APPEAL FROM THE COURT OF APPEALS

COMMONWEALTH OF KENTUCKY CROSS-APPELLEE

OPINION OF THE COURT BY JUSTICE LAMBERT

AFFIRMING IN PART AND REVERSING IN PART ON APPEAL

AFFIRMING ON CROSS APPEAL

The primary issue in this case is whether certain

evidence used against appellant was lawfully obtained. .On «two

separate occasions, three days apart, appellant was found to -be

in possession of illegal drugs, drug paraphernalia, and in the

first instance, a handgun. The trial court overruled both of

appellant's motions to suppress the evidence, but the Court of

Appeals reversed holding that the police officer's act of shining

a flashlight into a darkened hotel room, and their act of forcing

their way into another hotel room, violated Section 10 of the

Kentucky Constitution and the Fourth Amendment to the

Constitution of the United States. We granted the Commonwealth's

motion for d‘scretionary review to consider the issues it

presentec. We likewise granted appellant's cross-motion for

discretionary review to consider his claims of trial error.

I. Evidence Obtained at the Penny Pincher Motel

At approximately 6:00 a.m. on September 14, 1985, the

Erlanger police were summoned to the motel in response to a

complaint from a guest of a disturbance. The guest had reported

that someone was beating on his door with a baseball bat. Upon

icers’ arrival, appellant was found standing in an outside

rooms. One of the police officers knew

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‘ be a drug user and perceived him to be under the

influence of ¢rugs at that time. During questioning, the police

learne*t thet appellant's room was number 165 and observed that

the door wee elightly ajar. While one officer talked with the

appeliles* and asked for his identification, the other shined a

flashlight through the partially open door into the darkened

room. Just inside the door on a table top, the officer observed

Grug paraphernalia and a white powder substance. After this

Giscovery, the officer noticed an opening in the window curtain.

As he had done before and without entering the room, he shined

his flashlight through the window and observed a handgun under

the bed. Appellant was arrested, the police obtained a search

Warrant, and upon their search, cocaine, drug paraphernalia, and

a handgun were found. Subsequently, appellant was convicted of

various drug possession offenses and possession of a handgun by a

convicted felon.

Oo)

Prior to trial, appellant moved the court to Suppres

the evidence. His motion was denied. On appeal, however, the

Court of Appeals reversed. It held that the act of shining a

flashlight beam into a darkened room amounted to a warrantless

search in violation of appellant's constitutional rights.

At the outset we must determine whether th act

complained cf constitutes a search within contemplation of the

Fourth Amendment and Section 10 of the Constitution cf Kentucry.

From the facts presented the police were entirely within their

rights to go upon the motel premises and to the locaticrn where

appellant was encountered. A Gisturbance had been reported <s

them anc their assistance had been requested by the manasemen: of

the motel. Upon seeing appellant in the hallway az

or near the location of the reported disturbance an2d tufon

Giscerning that he appeared to be under the influence of drugs,

their attention was naturally drawn to him, and by virtue of his

whereabouts, to his room.

By design, rooms in modern motels are easily accessible

and in close proximity to places of public passage. Many such

rooms have picture windows with only a curtain to prevent public

view. Without diminishing an individual's right to be protected

from an unreasonable search of his motel room, Stoner vv.

California, 376 U.S.483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964), we

note that when one takes lodging in a motel it is with ¢

certain knowledge that substantial numbers of persons unknown to

him will be nearby and in a position to invade his privacy unless

=3<

caution is exercised to prevent it. As such, what would be

sufficient vigilance to preserve one's privacy in a home,

apartment or office may be insufficient in a motel room. This

view was recognized in People v. Berutko, Ca., 453 P.2d 721

(1969), as follows:

Essential to the determination of

reasonableness in cases wherein officers

obtain probable cause for arrest through

their own observation is a consideration of

the degree of privacy which a defendant may

reasonably expect in a given _ enclosure

accepted by him, whether or not that

enclosure be his residence. (Emphasis

acded.)

In those instances when the police have a legitimate

reason for their presence on the motel premises, we are without

reluctance in holding that one who asserts that his rights have

been viclatec by an unreasonable search accomplished by looking

through a motel room window or .door must show that he took

precautions sufficient to create an objectively reasonable

expectation of privacy. Otherwise, that which was seen was in

plain view. Harris v. U.S., 390 .U.S.234, 88 S.Ct. 992, 19

L.Ed.24 1067 (1968).

Having concluded that «appellant's act of leaving his

motel room door and window partially.open to public view deprived

him of a reasonable expectation of privacy, of what significance

then is the police officer's use of a flashlight to look inside?

In Texas v. Brown, 460 U.S.739, 103 S.Ct. 1535 75 L.Ed.2d 502

(1983), the Supreme Court broadly declared that "...the use of

artificial means to illuminate a darkened area simply does not

constitute a search, and thus triggers no Fourth Amendment

protection.” Likewise, in U.S. v. Richardson, 388 F.2d 842 (CA6

1968), the court held that use of ultra-violet light to determine

if the defendant had touched a bank bag dusted with fluorescein

powder was not a search within the fourth amendment. This court

reached a similar result in Rudolph v. Commonwealth, Ky., 474

S.W.2d 376 (1971), but our holding was premised on the officer's

legitimate concern for his safety as a reason for his use of a

flashlight. We are now of the opinion that a determination of

whether or not contraband is in plain view should not depend on

existing lighting conditions or the time of day. One seeking to

maintain his privacy should reasonably expect that persons

Gisposec to look inside a motel room will not hesitate to enhance

their visibility by use of a widely available device such as a

flashlight. In Texas v. Brown, supra, in commenting upon the

fact that the officer "bent down at an-angle so [he] could see

what was inside,” the court said:

The general public could peer into the

interior of Brown's automobile <from any

number of angles; there is no reason Maples

should be precluded from observing as an

officer what would be entirely visible to him

as a private citizen.

In Coolidge v. New Hampshire, 403 U.S.443, 91 S.Ct.

2022, 29 L.Ed.2d 564 (1971), in its plurality opinion sthe scourt

set forth three requirements for a valid plain view seizure.

These requirements are: prior justification for the ~wfficer's

presence, inadvertence of discovery, and immediate apparentness

that evidence has been found. Observation of these limitations

provides sufficient protection for the public as guaranteed by

Section 10 of the Constitution of Kentucky and the Fourth

Amendment to the Constitution of the United States. On this

issue we reverse the Court of Appeals.

II. Evidence Obtained at The Ramada Inn

On September 17, 1985, three days after appellant's

arrest at the Penny Pincher Motel and following his release on

bond, an off duty police officer observed appellant in the

parking lot of the Ramada Inn. Upon probable cause, the

sufficiency of which is not at issue here, the police obtained a

warrant to search appellant's automobile.* Prior to

commencement of the search, the officer went to appellant's motel

room to inform him of the warrant and give him an opportunity to

accompany them to the car and provide the keys.

Upon arrival at appellant's motel room, and consistent

with what ppears to be his normal practice, the police

Giscovered the door standing slightly open. The officer knocked

on the door and appellant, wearing only undershorts and a pair of

boots, stepped out into the hallway. When informed of the search

warrant for his car, appellant indicated he would provide a key

and that he wanted to accompany the officers to observe the

search. Attempting to re-enter his room to dress and obtain his

keys, appellant discovered that he had locked himself

*In addition to appellant's automobile, the police

sought a warrant to search his motel room. The district judge to

whom the affidavit was presented determined that probable cause

was not shown for a search of the room and declined to issue the

Warrant.

=-6-

out. As his attire was unsuitable for public activity and he did

not have his keys on his person, one of the police officers

offered to obtain a key from the motel office. Upon the

officer's return with the passkey, appellant entered his room and

attempted to slam the door behind him. One of the officers

prevented the door from closing and the officers then forcibly

entered the room. Once inside, the police discovered drugs and

drug paraphernalia.

The Commonwealth argues that the police were entitled

to force their way into the motel room to protect their personal

safety. _We are reminded that just three days earlier appellant

had been found in possession of a handgun and the Commonwealth

reiterates that appellant had stated he wished to accompany the

police during the automobile search. On the theory that

appellant would enter his room and return with a gun or other

weapon, the Commonwealth argues that Terry v. Ohio, 392 U.S. li,

88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) and Michigan v. Long, 463

U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), authorized the

police to maintain observation of appellant while he was inside

his room. As such observation could only be accomplished by

entering the motel room, the Commonwealth argues, the police were

within their rights to force their way inside.

We need not burden this opinion with a review of the

verious exceptions to the warrant requirement of the United

States and Kentucky Constitutions. It is sufficient to say that

we have examined the authorities and are not persuaded that the

police are authorized, in anticipation of executing a search

Warrant upon a person's property in another location, to

Po

constantly observe him at a time at which he is not under arrest.

If such an intrusion were permitted upon the basis of generalized

police safety considerations, the police would be authorized to

engage in forced, warrantless searches in a multitude of

otherwise prohibited circumstances. Cf. Shanks v. Commonwealth,

Ky., 504 S.W.2d 709 (1974). A warrantless search upon the basis

of a pretextual arrest is invalid. Amador-Gonzalez v. United

States, 391 F.2d 308 (CAS 1968). It follows with greater logical

force that a mere apprehension for personal safety, and the

opportunity such provides for pretext, is insufficient to create

an exception to the warrant requirement.

By the views expressed in this opinion, we do not

denigrate the legitimacy of police officers’ concern for their

personal safety. We recognize, however, that preservation of

constitutional rights frequently conflicts with an officer's

perception of his need to protect himself. This court and other

courts have willingly ‘found exceptions to various constitutional

provisions to better insure the safety of police officers. Terry

v. Ohio, 392 U.S. 1, 88 S.Ct. 407, 9 L.Ed.2d 889 (1968);

Pennsylvania v. Mimms, 434 US 106, 98 S.Ct. 330, 54 L.Ed.2d 331

(1977); Adams _v. Williams, 407 US 143, 92 S.Ct. 1921, 32

L.Ed.2d 612 (1972); Phillips v. Commonwealth, Ky., 473 S.W.2d 135

(1971); Rudolph v. Commonwealth, Ky., 474 S.W.2d 376 (1971). We

are not willing, however, to recognize exceptions so broad as to

render meaningless the right secured dy the Constitution of

Kentucky.

Without expressing any view as to the result which

would be reached in this case by application of the Fourth

~s

Amendment to the Constitution of the United States and applicable

decisions of Federal Courts, we hold that the warrantless, forced

entry by the police into appellant's room at the Ramada Inn,

violated Section 10 of the Constitution of Kentucky, and the

evidence found therein must be suppressed. On this issue we

affirm the Court of Appeals.

III. Issues on Cross-Appeal

Appellant first contends that the trial court erred to

his prejudice by permitting a police officer to testify that when

appellant's room was searched, the police wore rubber gloves

because they had heard he "...might have AIDS or some other

disease." In Wiggins v. Maryland, Md.Ct.App. 57 USLW 2539

(March 7, 1989)(No. 94-1988), the court noted that "...a climate

of fear still surrounds the disease,” and held

it is not far-fetched that the jury,

observing the (rubber) gloves, thought it

better in any event, that the .defendant be

withdrawn from public circulation and

confined in an institution with others of his

, 5. e

We agree with the Maryland Court that raising the specter of

AIDS, without substantial relevance in <bringing -<this ‘to the

attention of the jury, may result in unfair -prejudice. In :-this

case, however, the trial court's error in the admission of this

evidence was harmless. RCr 9.24 Appellant was convicted of

possession of cocaine, possession of drug paraphernalia, and

possession of a handgun by a convicted felon. The evidence of

his guilt was overwhelming and his substantial rights were not

affected.

Finally, appellant's claim that he was prejudiced by

evidence that his home had been searched by the police on an

earlier occasion is without merit for two reasons. First, the

absence of any carpentry tools at appellant's place of dwelling

was relevant to rebut his testimony that he worked as a

Carpenter. Second, defense counsel raised an issue concerning

police surveillance of appellant. The Commonwealth was thus

entitled to explain that their surveillance resulted in the

issuance of a search warrant. Moreover, the fact that no

evidence of criminal activity was found at appellant's residence

may have been to his advantage. Certainly, we are unprepared to

say that he was prejudiced by this testimony.

Conclusion

For the foregoing reasons and as set forth herein, upon

the Commonwealth's appeal, we affirm in part and reverse in part;

upon the cross appeal by appellant, we affirm. This cause is

remanded to the trial court for further proceedings in conformity

herewith.

As to Section I, all concur except Combs, J., not

sitting. As to Section II, Lambert, Leibson and Vance, JJ.,

concur; Wintersheimer, J., dissents by separate opinion in which

Stephens, C. J., and Gant, J., join; Combs, J., not sitting. On

this issue the Court of Appeals is affirmed by an equally divided

Court. As to Section III, all concur except Combs, J., not

sitting.

-10-

ee

ATTORNEYS FOR THE APPELLANT/CROSS-APPELLEE:

Frederic J. Cowan

Attorney General

Elizabeth P. Marshall

Assistant Attorney General

Valerie L. Salven

Assistant Attorney General

State Capitol Building

Frankfort, KY 40601

ATTORNEYS FOR THE APPELLEE/CROSS-APPELLANT:

‘Rodney McDaniel

Assistant Public Advocate

Department of Public Advocacy

1264 Louisville Road

Perimeter Park West

Frankfort, KY 40601 -

Anna H. Isaacs

Route #2

Box 297

Sadieville, KY 40370

site

RENDERED: June 8, 1989

TO BE PUBLISHED

Supreme Court of Kentucky

88-SC-184-DG & 88-SC-425-DC

COMMONWEALTH OF KENTUCKY APPELLANT

ON REVIEW FROM COURT OF APPEALS

Vv. 86-CA-748-MR

(Kenton Circuit Court #85-CR-195)

CHARLES DAVID JOHNSON APPELLEE

AND

CHARLES DAVID JOHNSON CROSS-APPELLANT

ON REVIEW FROM COURT OF APPEALS

Vv. 86-CA-1305-MR

(Kenton Circuit Court #85-CR-195)

COMMONWEALTH OF KENTUCKY CROSS-APPELLEE

DISSENTING OPINION BY JUSTICE WINTERSHEIMER

I respectfully dissent from that part of the majority

opinion which affirms the decision of the Court of Appeals in

regard to the suppression of evidence obtained from a search

of the Ramada Inn hotel room. The trial judge correctly overruled

the defendant's motion to suppress evidence obtained in the search.

I specificelly and strongly reject any implication

from the majority opinion that this search was a pretext. The

determination of whether a search is reasonable under the circumstances

is predominantly factual and should stay in the hands of the

trial judge. A reviewing court should not substitute its findings

for those of the trial judge. The trial judge is in the best

position to ascertain the facts. Cf. CR 52.01.

When a reasonably prudent police officer believes that

his safety or that of others is in danger, he may make reasonable

search for weapons of a person believed by him to be armed and

dangerous regardless of whether he has probabie cause to arrest

that individual. This is true even though the officer is not

absolutely certain that the individual is armed, although he

must secure a warrant when practical before making search or

arrest. Phillips v. Commonwealth, Ky., 473 S.W.2d 135 (1971).

When such a search of a person that an officer believes is armed

is confined to what is minimally necessary to determine whether

the party is armed for the purposes of protecting the officer,

the search is reasonable. Phillips, ‘supra; Terry v. Ohio, 392

U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The real dangers

with which police officers are confronted in their work on a

daily basis cannot be ignored. Here the officers knew that a

gun had been found in Johnson's motel toom only three days earlier

at the Pennypincher in Erlanger. The Fourth«Amerdment to the

United States Constitution does not require a police officer

who lacks the precise level of information necessary for probable

cause to simply allow a crime to occur or a criminal to escape.

Terry, supra, recognizes that an intermediate response may be

appropriate and that a brief stop of a suspicious individual

in order to maintain the status quo momentarily while obtaining

more information may be reasonable in the light of the facts

known to the officers at the time. Adams v. Williams, 406 U.S.

143, 92 $.Ct. 1922, 32 L.E6.26 G16 (3972).

Johnson was not a less dangerous suspect by the mere

fact that he was not under arrest when the officers asked him

for the keys to his car. Other state courts have found it reason-

able to permit police officers to protect themselves while they

are still investigating a possible crime. See Commonwealth v.

Daniels, 280 Pa. 278, 421 A.2d 721 (1980); State v. Mayfield,

10 Kans.App. 2d 175, 694 P.2d 915 (1985). The reasoning of the

Pennsylvania and Kansas courts was sensible and correct and properly

persuasive when applied to the actions of the police in this

case.

The United States Courts of Appeals have recently indicated

that a protective search can be appropriate in certain circum-

stances. See United States v. Johnson, 637 F.2d 532 (8th cir.

1980); United States v. McClinnhan, 660 F.2d 500 (D.C. cir. 1982).

The United States Supreme Court has recognized that

suspects may injure police and others by virtue of their access

to weapons even though they may not be armed. Michigan v. Long,

463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983). The U.S.

Supreme Court determined that an interpretation of Terry, supra, ,

need not restrict the preventative search to the person of the

detained subject. If a suspect is dangerous, he is no less danger-

ous simply because he is not arrested.

The United States Supreme Court has applied a common

sense approach to this dangerous and delicate area of constitu-

tional interpretation. A proper interpretation of Section 10

of the Kentucky Constitution and the Fourth Amendment to the -

Federal Constitution both provide reasonable protection for police

in exercising a protective search. The police entry into Johnson's

Ramada Inn room was perfectly reasonable to assure that he did

not emerge with gun in hand.

I would reverse the decision of the Court of Appeals

and reinstate the judgment of the circuit court.

Stephens, C.J., and Gant, J., join in this dissent.

: 6, ,

COMONVEALTH OF KENTUAY Je Myo AND AFFIDAVIT

AS

COUNTY OF KENTON

Comes the Affiant, and states thatgthe-information contained herein

was received and made in his capacity as a Peace Officer. Affiant'’s nave ts

Voy Chis Gert Weer FL Oeislt Plier Dppt and Affiant believes there is

¥ (on or in the premises rambered) (in the vehicle) (on the ‘person of)

PmMs

: Clasles wahasov _Aad A 1925 Cadillac Eldeads

LO. &. @-/7-3° Obin Lickecp 43/- Ka

\ Poor 2ad kRamads all A Seal # oc Via w@

tt Loloin bd, —— {GGELS7ZOFF II

ae Dore particularly described as

—_ 4A Blaze bottom crith 0 1h: car ayl Top CaS Mlag brap-as phn fot

Licssse Membre Ard “UT Monbee goese-tiy /ocated in the Lies

cuv fagk nc Lot Said Loom ig (echtes ca “the Leaasde svn. FH tits»

Lesbo. Couuly - Etatuck/. -

the following property

rary aod lpg —faagilac alia Ei a8 shit an Cased

biwdse ££ £5, 2184 Siva

which property affiant believes to be:

(etcten) (things used as the means of somtaninn ” “ne (things in the

possession of a person wo has intention to use as means of committing

@ crime or in the possession of another to whom any person may heve del-

ivered it for prpose of concealing ‘it or-preventing its being discovered)

(things which consist of evidence which tends-to show that a crime has

been carmitted or that a particular person has committed a crime) (contraband).

Affiant further states that on the date ard at the time of

dent. pH, 1925 £4 Yeo | “ GE: affiant received information from/oberved :

Ths £ES% f te F Fe Ub. “

Cou ‘ Pliz Loch, kt ASSiact Lets pS op aetd,

' Sloan’ OFS; kow Wei tholree ” , ohaoximabsell Lf: 304"

toda dat + ob<F2ytd Clae 7 the i a7. » 5 rh “ oe Jus,

[

tated fe the AS u-4 laf

Chart. These " Ws .

Whaso, thew beS? tte lobby pe

+ fowk

( , : Fis 4hF

ie hate L042, Drhasee b4S fpr 7 r ‘ id

Cot ¢ ( ts 9-/¥-$$ fo p. ~ £ . “as Tod. -

Ce Oly Aas LA M —T ‘AS Th ¢ 2 4 aa «lactad

OSs. Ons. J2¢ ~ 4 SEA att: Latessst ces! Aczye ‘oli

Ort iA Cade that Osage ne s te . - “3 Pesere , | ‘ra 5 7 aad

Su batances lomats J

o< ek ?S B2ighA wa

Affiant believes his inforrent to be reliable and truthful] beamuse

DEFENDA! AN cv putt

ne compen oF £ VK oe"

70 Mer POLL CEMAN, SHERIFF, CONSTABLE, 46

COMONKEALIN OF KENTUCKY: “

Application, by affidavit, for a Search Warrand been made this

date, amd it appearing that probable cause has been stated by the affiant,

Chirs Cruz rate #4 Oc.it £D_, you are therefore commanded to search

(or-or—st-the—pr bes _macbered) (in the vehicle) (or-the—persconol)

A _/99S Cadillac £Eldseads

Chip Lipsee - 4.3/- GA

S241 © 22 VYrws (Goes T8OFE6G377u

wore particularly describe as

4 Alar bottom ~o,th whifp Vinr/ Top Cad. (lag beeen. fhe

> 4 M/s , Lge r-tly lex ated ls tle

tor re property

Coca.ag A-d eared baw 4lia boil cL wl <b Art Cie fealled

Gy {FZ K 2S Digs jo."

and to sately hold any thereof you may find wil firthe orce of a Cort

of Cometent Jurisdiction, said property constituting eviderce of an

offense against the peace ard dignity of the OMONEALIH OF KENTUCKY.

Witmess my hand this / 7 day of Lor ' i9 A(T

chs ear cb manu hy

s o

Io, at < Weaton wiveo™ Cort

a.m./p.m.

A=-18