# Opposition Brief — Kentucky v. Johnson > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0979%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1990 - **Citation:** 494 U.S. 1046 ## Text 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 oe ee oe oe Oe Oe Oe oe Oe Oe ee a! Pe eee Oe 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 , ty ao , : ce] 0 , ? 3. 0 3 0 fad ie) 7 =] ‘ 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 4 M/s , Lge r-tly lex ated ls tle tor re property Coca.ag A-d eared baw 4lia boil cL wl