Petition for Writ of Certiorari — Kentucky v. Krause (No. 06-1281)

Supreme Court

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061281 Man > 9007

No. OFFICE OF THE Cicsix

ERTL A CAAA LESLIE ID A TCR NG I,

IN THE

Supreme Court of the United States

COMMONWEALTH OF KENTUCKY

Petitioner

versus

FREDERICK CARL KRAUSE, III

Respondent

On Petition for Writ of Certiorari

to the Kentucky Supreme Court

PETITION FOR WRIT OF CERTIORARI

prenmccae a D. STUMBO

Cgubcirca ) of tigi eee

Cote TOWER

Assistant Attorney General

Counsel of Record

Office of Criminal Appeals

Office of the Attorney General

1024 Capital Center Drive

Frankfort, Kentucky 40601-8204

(502) 696-5342

SE ee, pe ARES BIS SB

OE

Le

QUESTION PRESENTED

WHETHER THE FOURTH AMENDMENT OF

THE UNITED STATES CONSTITUTION

PERMITS THE POLICE TO USE A RUSE WITH

REGARD TO THEIR PURPOSE TO OBTAIN A

VOLUNTARY CONSENT TO SEARCH.

TABLE OF CONTENTS

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PARLE OF ALITIIARITIBS oc ccc divccvcvcceswess 111-Vil

Ce EE es hose bienspacdaeeswe tie 2

a errr err Er y reer > 4

CONSTITUTIONAL PROVISION INVOLVED ........ 5

SEA SEMIS CW CHE CAGE 2. ececcrevecseusoeees 5

REASONS FOR GRANTING THE WRIT ............ 1]

I. CERTIORARI SHOULD BE GRANTED IN

ORDER TO CLARIFY WHETHER THE FOURTH

AMENDMENT PERMITS THE POLICE TACTIC

OF USING A RUSE WITH REGARD TO THEIR

PURPOSE TO OBTAIN VOLUNTARY CONSENT

Wet EE horas habe Mae ea Ree 1]

CRIPVRAIND. oes ccieh vase tens enedewewersree tian 24

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TABLE OF AUTHORITIES

CASES CITED:

Brown v. Brierley,

Me EE, TED so bse b kv ced hee runes: 13

Colorado v. Spring,

ae ee a ha rao vn heed he naeeeenaoee) 12

Commonwealth v. Haynes,

395 Pa.Super. 322, 577 A.2d 564, 572 (1990).......... 20.

Frazier v. Cupp,

Pe a Bn FI bd oe e bo etennwceneeewnees 12

Illinois v. Perkins

Se a ee Es ok nee Ve be ee oe ee es 12

Krause v. Commonwealth,

po me kerr rere 2

Lewis v. United States,

ee ae EE oc ns on ee ee eena vere 10

People v. Avalos

47 Cal.App.4th 1569, 55 Cal.Rptr.2d 450 (1996) ....... 17

111

People v. Daugherty,

161 Ill. App.3d 394, 112 Ill.Dec. 762, 514 N.E.2d 228, 233

A Ore nee rae rene erry re 19

People v. Zamora,

Se re a, FPED ook os Vane debe dene esieews 17

Rakas v. Illinois,

ae SON os ia cows gt csadeweeeen 23

Rawlings v. Kentucky,

ee 25 5 8 oa. Fann 9. PAD eK Oe RS 23

Schneckloth v. Bustamonte,

ee a ie ile eee wig ee ch ea il

Sorrells v. United States,

ne Sy ORES occ eco ies ween i ee 11

State v. Catania,

427 Mich. 447, 398 N.W.2d 343 (1986) .............. 18

State v. Head,

136 Wash.2d 619, 964 P.2d 1187 (1998).............. 20

State v. Johnson,

222 WAR. 350, BIO P26 TIS IGS) once skew vwkvvce: 17

State v. Johnston,

184 Wis.2d 794, 518 N.W.2d 759 (1994) .........0... 17

State v. McArthur,

996 P.2d 55S (Utah Cu. App. 2000) ... ccc cccccceces 18

State v. McCrorey,

70 Wash.App.103, 851 P.2d 1234, 1240 (1993) ........ 19

State v. Nedergard,

ae I SUED hace on ce Ca pods Sanvabevets 18

State v. Schweich,

414 N.W.2d 227, 230 (Minn.App. 1987)...........-.. 19

United States v. Allen,

ee Or Oe POD i wn hoes nee peas whee ee 14

United States v. Andrews,

ee EF Oe, FONE ob ok bc cc ovcces die wcndass 14

United States v. Andrews,

ee UTE, BUTTE. oo oc ce sca unndosvencves 15

United States v. Baldwin,

OE Pe POE Oe GE, COED gc ecco ececcssicsi an

United States v. Briley,

ee Ee Oe Ce POG ono cc ces cvesncncdene 16

United States v. Bosse,

ee G0 Oe, COOP a vs ow ccees cacussivecones 15

United States v. Como,

of gi ae |. Er aera 13

United States v. Davis,

FOP Fe Oa, IO os bobo ev cnwckencceuesins 4

United States v. Espinosa

782 F.2d 888, 890-92 (10" Cir. 1986) ................ 21

United States v. Hurtado,

905 F.2d 74 (5" Cir. 1990) .............. oer are te 14

‘United States v. Jones,

OEE a re Wino coco can cevucdcccsweoss 16

United States v. Lopez,

777 F.2d 543, 546-48 (10" Cir. 1985) ................ 21

United States v. Lyons,

FOOT ae Be er, Ss 5 i wee wakbe whee 15

United States v. Olivier-Becermil,

861 F.2d 424, 425-26 (5* Cir. 1988) ..........5..-6-. 21

United States v. Rambo,

TORE Cer ee, BONES ok vs Sos kev ce ea 20

United States v. Ressler,

Fo Fae a Fk 8 cK wee re ohn teen 14-15

v1

United States v. Rodrig’ . “erez,

OS Fe FEE OE CE, FER) oie c ccs cv ecceseesvers: 13

United States v. Scherer,

ee SI og bak eves eves ereeeee es 15

United States v. Watson,

oi any wk Wade ce eee Ne eRe 20

United States v. Wright,

ee es iv ok. Sie nes cv ckvvs oo pwens en 16

FEDERAL STATUTES CITED:

eR ES Se OR sy |: eer ene are ree ae 3

Vil

IN THE

Supreme Court of the United States

COMMONWEALTH OF KENTUCKY

. Petitioner

versus

FREDERICK CARL KRAUSE, Ill

Respondent

On Petition for Writ of Certiorari

to the Kentucky Supreme Court

PETITION FOR WRIT OF CERTIORARI

The Attorney General of the Commonwealth of

Kentucky, as counsel for Petitioner, Commonwealth of

Kentucky, petitions this Court to issue a writ of certioran to

the Kentucky Supreme Court.

OPINION BELOW

The petitioner seeks certiorari review of the published .

opinion in Krause v. Commonwealth, 206 S.W.3d 922 (Ky.

2006) .

The procedural history leading to the Kentucky

Supreme Court opinion is as follows.

On July 28, 2003, the McCracken County Circuit

Court entered an order denying Krause’s motion to suppress

the evidence. The trial court concluded that despite Trooper

Manar’s use of strategic deception with regard to his purpose

for searching, Krause’s consent to search his home was

voluntary. On October 29, 2004, the Kentucky Court of

Appeals rendered an opinion deferring to the trial court’s

conclusion that Krause’s consent to search was voluntary and

affirmed his conviction. Krause filed a motion for

discretionary review with the Kentucky Supreme Court,

which was granted. On October 19, 2006, the Kentucky

Supreme Court rendered a published opinion reversing and

remanding this case. The Kentucky Supreme Court held that

Krause’s consent was coerced and violated the Fourth

Amendment of the United States Constitution. The Court

, reasoned that the timing of the police visit, the substance of

the ruse and the tactic of employing the ruse to obtain consent

were the factors which rendered Krause’s consent

involuntary. The Commonwealth of Kentucky filed a

petition for rehearing, which was denied on December 21,

2006.

JURISDICTION

The petitioner seeks to invoke the jurisdiction of this

Court pursuant to 28 U.S.C. Sec. 1257(a). The petitioner

seeks review of a Kentucky Supreme Court Opinion rendered

October 19, 2006, reversing and remanding this case.

The Commonwealth of Kentucky filed a timely

petition for rehearing, which was denied on December 21,

2006.

CONSTITUTIONAL AND STATUTORY

OVISION VOLV

U.S.C.A. Constitutional Amendment IV-Search and

Seizure:

“The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches

and seizures, shall not be violated, and no Warrants shall

issue, but upon probable cause, supported by Oath or

affirmation, and particularly describing the place to be

searched, and the persons or things to be seized.”

we

STATEMENT OF THE CASE

On March 18, 2003, Trooper Jason Manar, Kentucky

State Police, got information from a subject that Joe Yamada,

Krause’s co-defendant, was selling cocaine “ om the

residence at 523 South 19” Street in Paducah, Kentucky.

This information came from a subject on whom Trooper

Manar located cocaine. The person providing this tip was

arrested on March 17, most likely a few hours prior to

Trooper Manar going to appellant’s address. This subject also

specifically described the location of Yamada’s home on 19"

Street and also described one of the vehicles which should

have been parked out front.

Trooper Manar then went to 523 South 19" Street with

Trooper Danny Shearer to conduct a “knock and talk.”

Frederick Krause and Joe Yamada lived in the residence,

owned by Krause. The troopers arrived at the house at

approximately 3:53 a.m. and knocked on the door. Krause

6

was sitting on the couch in the living room when he heard the

knock. Trooper Manar was uncertain who answered the

door, but stated that he thought it was Joe Yamada. Trooper

Manar said that he wanted to come inside and talk. More

specifically, the trooper stated something to the effect that he

had some things he needed to talk to him about and could he

come inside. Trooper Manar didn’t say what he wanted to

talk to him about. The troopers were invited inside by one of

the residents.

The other roommate then came out from the back

bedroom. Trooper Manar told them that a young girl at

Baptist Hospital claimed that she had been assaulted and that

the assault took place in their house. Trooper Manar didn’t

specify what kind of assault took place, however, this

allegation was not true. Trooper Manar was there to conduct

a knock and talk and see if he could get consent to look

around the house. Trooper Manar then asked Yamada if the

troopers could take a look around to see if any of the

furniture, beds or bedspreads were the same. Trooper Manar

was in full uniform and did identify himself as a trooper with

the Kentucky State Police.

Yamada said the troopers could take a look around and

that nothing like that had happened. Yamada first asked if he

could go back and clean up his room. Trooper Manar asked

if he could go with him and Yamada said yes. When Trooper

Manar went back to Yamada’s room with him, he saw

Yamada pick up a spoon and put it behind his back. Trooper

Manar asked what was wrong with the spoon, was it special

and asked to see it. Yamada turned the spoon over to

Trooper Manar and later identified the substance on the

spoon as cocaine. Trooper Manar asked Yamada several

times if there was any more cocaine in the house. Finally,

Yamada pulled a bag out of his robe and said that was all the

drugs in the house. The cocaine that Yamada gave Trooper

Manar weighed approximately 3.1 grams.

Trooper Manar was sure to ask Krause if he could

search his room before conducting such search. Krause gave

his permission stating that there was nothing in it. Krause

was seated on the couch in the living room while the search

was conducted and didn’t say anything, but was trying to

comply and answer any questions. The Trooper asked if

there were any drugs in the house. Krause told the trooper no

even though he was aware there were drugs in the house.

Trooper Manar also found a bag of marijuana in a laundry

basket weighing approximately 32.6 grams and other drug

paraphernalia. Neither resident ever asked the trooper to stop

searching. Both Yamada and Krause were placed under

arrest after the search of the house was complete and both

had been patted down.

Krause filed a motion to suppress the evidence

alleging that his consent to search was involuntary under the

Fourth Amendment as it was obtained by ruse. The trial

court entered an order denying this motion, concluding that

Krause’s consent was valid under the Fourth Amendment.

Krause entered a conditional plea to one count of first degree

possession of a controlled substance, one count of possession

of drug paraphernalia, second offense and one count of

possession of marijuana.

On appeal, the Kentucky Court of Appeals deferred to

the trial court’s finding of voluntary consent. However, on

discretionary review in the Kentucky Supreme Court, the

Court held that Krause’s consent was coerced, thus

involuntary, and violated the Fourth Amendment of the

United States Constitution.

10

REASONS FOR GRANTING THE WRIT

I. CERTIORARI SHOULD BE GRANTED IN

ORDER TO CLARIFY WHETHER THE

FOURTH AMENDMENT PERMITS THE

POLICE TACTIC OF USING A RUSE

WITH REGARD TO THEIR PURPOSE TO

OBTAIN VOLUNTARY CONSENT TO

SEARCH.

A. Summary of Argument

This Honorable Court has concluded that police

may employ stratagem and deception in obtaining

evidence and voluntary confessions. This Court has not

addressed whether the police may employ deception

with regard to their purpose and obtain voluntary

consent to search. There is a wide split among the state

and federal courts regarding this issue. Kentucky’s

petition should be granted so this court can resolve the

issue, therefore aiding the lower courts and the police in

carrying out their duties in conformity with the Fourth

Amendment.

11

B. Tropper Manar’s deception as to his

purpose did not render Krause’s

consent involuntary

This Honorable Court has held that in the

detection of many types of crimes, the government is

entitled to use decoys and to conceal the identity of its

agents. Lewis v. United States, 385 U.S. 206 (1967).

In Lewis, this Court held that the Fourth Amendment

was not violated when a federal narcotics agent, by

misrepresenting his identity and stating his willingness

to purchase narcotics, was invited into the petitioner’s

home where an unlawful narcotics transaction was

consummated and evidence obtained. The Court

reasoned that the appropriate object of this permitted

activity, frequently essential to the enforcement of the

law, is to reveal the criminal design; to expose the illicit

traffic, the prohibited publication, the fraudulent use of

the mails, the illegal conspiracy, or other offenses, and

r

1?

~

thus to.disclose the would-be violators of the law. 385

U.S. at p. 209, n. 5 citing to Sorrells v. United States,

287 U.S. 435 (1932). .

To determine the meaning of voluntariness in

consent to search cases, this Court, in Schneckloth v.

Bustamonte, 412 U.S. 218 (1973) turned to the body of

case law governing voluntary confessions. In the

context of confessions, the question is whether the

confession is a product of an essentially free and

unconstrained choice by its maker. Id. 412 U.S. 225.

In Colorado v. Spring, 479 U.S. 564 (1987) this Court

specifically held that Defendant’s waiver of his Fifth

Amendment privilege against self-incrimination was

knowingly and intelligently made, even if the defendant

was not aware that he could be questioned about a

separate crime. The mere employment of a ruse, or

“strategic deception,” does not render a confession

13

involuntary so long as the ploy does not rise to the level

of compulsion or coercion. Illinois v. Perkins, 496 U.S.

292, 297 (1990). See also Frazier v. Cupp, 394 U.S.

731, 739 (1969).

Despite this Honorable Court’s conclusions that,

in furtherance of police investigations, the police may

employ strategic deception in obtaining evidence and

voluntary confessions, there is still inconsistency within

the different federal circuits as to whether the Fourth

Amendment permits the police to use a ruse with regard

to their purpose to obtain voluntary consent to search.

See United States v. Rodriguez-Perez, 625 F.2d 1021

(1* Cir. 1980) (voluntariness of consent to warrantless

search of defendant's hotel Toor was not undermined

by government's use of “trick” to lure defendant into

lobby, i.e., agent's impersonation of one of the

defendant's friends, as such involved no apparent

14

illegality or misconduct and did not affect voluntariness

of defendant's later choices as once in the lobby he was

under no compulsion to lead agents back to his room

and there was no showing that the agents, who

suggested that they talk in the room, would not have

acquiesced in defendant’s insistence that they talk in the

lobby and agents made no demand “under color of

office” that they be admitted to the room); United States

v. Como, 340 F.2d 891 (2™ Cir. 1965)(consent

involuntary unless it is free from chicanery or

compulsion); Brown v. Brierley, 438 F.2d 954 (3" Cir.

1971) (it is constitutionally permissible for police to

conduct criminal investigations without revealing their

official status and their clandestine purposes); United

States v. Allen, 683 F.2d 114 (4" Cir. 1982) (where

defendant was predisposed to change a five-dollar bill

upon his supervisor’s request for change, and readily

15

complied without seeking any assurances from

supervisor, supervisor’s failure to disclose his purpose,

to obtain marked bills, did not vitiate defendant’s

consent); United States v. Davis, 749 F.2d 292 (5" Cir.

1985) (mere failure of officers to give an encyclopedic

catalogue of everything they might be interested in does

not alone render the consent to search involuntary);

United States v. Andrews, 746 F.2d 247 (5" Cir. 1984),

overruled on other grounds, United States v. Hurtado,

905 F.2d 74 (5" Cir. 1990), (the mere failure of a

federal agent to state one of his purposes in requesting

to inspect the defendant’s guns did not render the

defendant’s consent to inspection involuntary); United

States v. Ressler, 536 F.2d 208 (7" Cir. 1976) (use of

ruse to obtain entry into their home was permissible

under the Fourth Amendment); United States v.

Scherer, 673 F.2d 176 (7" Cir. 1982) (government agent

16

was lawfully on the suspect’s property after obtaining

an invitation by misrepresenting his identity and, while

acting within the bounds of the invitation, discovered

incriminating evidence in plain view); United States v

Andrews, 618 F.2d 646 (10" Cir. 1977) (acknowledging

that the protections of the Fourth Amendment can be

violated by guile, but artifice and stratagem may be

employed to catch those engaged in criminal

ehatuienihs tikes States v. Bosse, 898 F.2d 113 (9"

Cir. 1989) (a ruse entry when the suspect is not

informed of the purpose for which the agent seeks entry

cannot be justified by consent); United States v. Lyons,

706 F.2d 321 (C.A.D.C. 1983) (fact that detectives

gained admission to the defendant’s hotel room upon

false pretenses did not impair the validity of the

defendant's consent to their entrance).

17

In fact, there are two circuits which have

inconsistencies in the case law within the circuit. See

United States v. Jones, 641 F.2d 425 (6" Cir. 1981)

(recognizing that the burden of proving a valid consent

required clear and positive proof that the consent was

uncontaminated by duress, coercion, or trickery) and

United States v. Baldwin, 621 F.2d 251 (6" Cir. 1980)

(an agent may legitimately gain entrance into a house by

misrepresenting his identity). See also Unites States v.

Wright, 641 F.2d 602 (8" Cir. 1981) (officers’ failure to

reveal identity and purpose in approaching appellant not

inconsistent with Fourth Amendment) and United

States v. Briley, 726 F.2d 1301 (8" Cir. 1984)

(misrepresentations may invalidate consent to entry if

consent was given in reliance on officer’s deceit).

There is also inconsistency among the individual —

states as to whether the police obtain voluntary consent

18

when they employ strategic deception with regard to

their purpose for searching. See State v. Johnson, 253

Kan. 356, 856 P.2d 134 (1993) (based upon the totality

of the circumstances the consent to search was

voluntary, despite the officers’ deception as to his

purpose in searching); People v. Zamora, 940 P.2d 939

(Colo. 1997) (consent to search may be voluntary even

when the person giving consent is not aware of or is

misinformed as to the search’s purpose); People v.

Avalos, 47 Cal.App.4th 1569, 55 Cal.Rptr.2d 450

(1996) (The court found that based upon the totality of

the circumstances, the defendant’s consent was

voluntary even though suspect was misinformed

regarding the purpose of the search). State v. Johnston,

184 Wis.2d 794, 518 N.W.2d 759 (1994) (entry of

undercover officers not unlawful where officers

obtained consent through deceit by concealing their

19

identities); State v. Catania, 427 Mich. 447, 398

N.W.2d 343 (1986) (entry by undercover agent not

unlawful where agent obtained entry by misrepresenting

identity and purpose and did not exceed scope of

invitation); State v. Nedergard, 51 Wash.App. 304

(1988) (undercover police officers' ruse entry of

suspect's residence, by posing as interested buyers

responding to “For Sale” sign, was permissible means

of establishing probable cause for search warrant;

proper limitation on ruse entry focuses not on ostensibly

criminal or noncriminal purpose for which entry is

gained, but on whether actions following entry fall

within scope of consent, and suspect admitted that he

placed no limitation on his consent to let officers “look

around.”); State v. McArthur, 996 P.2d 555 (Utah

Ct.App. 2000) (Fourth Amendment not offended when

the defendant’s statements gleaned during covert

20

investigations conducted by those believed to be loyal

friends were used by the police to pursue a criminal

prosecution). But, also see People v. Daugherty, 161

Iil.App.3d 394, 112 Ill.Dec. 762, 514 N.E.2d 228, 233

(1987) (Where, iaw enforcement officer uses his official

position of authority and falsely claims that he has

legitimate police business to conduct in order to gain

consent to enter the premises, when his real reason is to

search inside for evidence of a crime, this deception is

so unfair as to be coercive and renders the consent

involuntary); State v. Schweich 414 N.W.2d 227, 230

(Minn.App.1987) (tacit misrepresentation of the

purpose of a search can rise to such a level of deception

to invalidate the consent); State v. McCrorey, 70

Wash.App.103, 851 P.2d 1234, 1240 (1993)

(distinguishing between undercover police activity and

police acting in official capacity actively misstating

21

their purpose for gaining consent), abrogated on other

grounds by State v. Head, 136 Wash.2d 619, 964 P.2d

1187 (1998); Commonwealth v. Haynes, 395 Pa.Super.

| 322, 577 A.2d 564, 572 (1990) (defendant’s consent to

be transported to the station house was invalid because

police deceived the defendant as to the true purpose of

the trip).

In looking to the totality of the circumstances of

a case and determining whether a defendant’s consent

was voluntary, courts have taken into account the age of

the accused, Bustamonte, 412 U.S. at 226; intelligence

level, United States v. Watson, 423 U.S. 411 (1976);

whether the suspect was intoxicated or under the

influence of drugs when consenting, United States v.

Rambo, 789 F.2d 1289 (8" Cir. 1986); the lack of any

advice to the accused of his constitutional rights,

Watson, 423 U.S. at 424-25; whether the suspect was

22

aware of the protections afforded to suspected criminals

by the legal system, Watson, 423 U.S. at 424-25. In

examining the environment in which consent was

given, courts should ask whether the person who

consented was detained and questioned for a long or

short time, Bustamonte, 412 U.S. at 226; was

threatened, physically intimidated or punished by the

police, Watson 423 U.S. at 424; relied upon promises or

misrepresentations made by the police, Watson, 423

U.S. at 424; was in custody, Watson, 423 U.S. at 424;

was in a public place, Id.; either objected to the search

or stood by silently while the search occurred, United

States v. Olivier-Becerril, 861 F.2d 424, 425-26 (5" Cir.

1988); United States v. Espinosa, 782 F.2d 888, 890-92

(10" Cir. 1986); United States v. Lopez, 777 F.2d 543,

546-48 (10" Cir. 1985).

23

In this case, the only factor present which would

have rendered Krause’s consent involuntary was

Trooper Manar’s strategic deception regarding the

crime he was investigating. Krause was an adult with a

college education. Krause was not under the influence

of any drugs. Although Krause was not informed

that he could refuse consent, he testified at the

suppression hearing that he knew that he could say

no to the police officer’s request to enter. Krause

also testified that he knew the police needed a

warrant to search. Krause knew this because he had

been involved in the legal system prior to his arrest in

this case. Krause was not detained long, was not

physically threatened or intimidated in any manner.

Krause was allowed to sit on the couch in the living

room while the search took place. Finally, Krause

didn’t stop the police from searching and tried to

24

cooperate with Trooper Manar in answering any

questions. Statements or conduct by a defendant

inconsistent with an expectation of privacy in a given

space will operate to neutralize his protected interest

therein. See Rawlings v. Kentucky, 448 U.S. 98

| (1980); Rakas v. Illinois, 439 U.S. 128 (1979).

Each case regarding the voluntariness of consent

to search is decided based upon the totality of the

circumstances of that individual case. However, this

Honorable Court needs to guide the lower courts and

the police officers investigating crimes as ‘0 when, if

ever, deception and stratagem may be used in the

furtherance of a specific investigation. Deception as to

purpose alone did not vitiate voluntary consent in this

case. The Commonwealth of Kentucky respectfully

requests this Honorable Court grant its petition for writ

of certiorari.

25

CONCLUSION

WHEREFORE, certiorari review should be granted.

Respectfully submitted,

GREGORY D. STUMBO

yar General of Kentucky

COURTNE Courines IGHTOWER

Assistant Attorney General

Counsel of Record

Office of Criminal Appeals

Office of the Attorney General

1024 Capital Center Drive

Frankfort, Kentucky 40601-8204

(502) 696-5342

IN THE

Supreme Court of the United States

COMMONWEALTH OF KENTUCKY

Petitioner

versus

FREDERICK CARL KRAUSE, III

Respondent

On Petition for Writ of Certiorari

to the Kentucky Supreme Court

APPENDIX TO CERTIORARI PETITION

GREGORY D. STUMBO

Attorney General of Kentucky

COURTNEY J. HIGHTOWER

Assistant Attorney Gencral

Counsel of Record

Office of Cnminal Appeals

Office of the Attorney General

1024 Capital Center Drive

Frankfort, Kentucky 40601-8204

(502) 696-5342

APPENDIX

Item Page

Opinion, Supreme Court of Kentucky,

Ee ee eer rT ee Pree 1-18

Order Denying Petition for Rehearing ................ 19

Opinion, Kentucky Court of Appeals

ee NR 99k bee oee Me eee ee ene 20 - 27

Order Denying Motion to Suppress Evidence ...... 28 - 34

Final Judgment/Sentence of Probation ........... 35 - 39

SUPREME COURT OF KENTUCKY

2004-SC-1009-DG

FREDERICK CARL KRAUSE II APPELLANT

V. APPEAL FROM COURT OF APPEALS

03-CA-2092-MR

MCCRACKEN CIRCUIT NO. 03-CR-00162-002

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION OF THE COURT BY JUSTICE GRAVES

Reversing and Remanding

Appellant, Frederick Carl Krause, III, entered

conditional guilty pleas in McCracken Circuit Court to First

Degree Possession of a Controlled Substance, Cocaine;

Use/Possession of Drug Paraphernalia, Second Offense; and

Possession of Marijuana. For these crimes, Appellant was

sentenced to three days’ imprisonment and two and one-half

(2 1/2) years of probation. Pursuant to his conditional pleas,

Appellant took a direct appeal to the Court of Appeals. RCr

8.09. In an unpublished opinion, the Court of Appeals

affirmed his convictions in all respects. Krause vy.

Commonwealth, 03-CA-002092-MR (rendered October 29,

2004). Appellant filed a petition for discretionary review in

this Court, which we granted. CR 76.20. For the reasons set

forth herein, we reverse the Court of Appeals' opinion, vacate

Appellant's convictions and sentence, and remand for further

proceedings.

The trial court's findings of fact in this case, while

sparse, are unmistakably clear. The trial court found that

Trooper Manar of the Kentucky State Police had arrested a

subject for possession of cocaine. The subject told Trooper

Manar that he obtained the cocaine from a house at which

Appellant and his roommate, Joe Yamada, resided. Trooper

Manar desired to go to the residence and search it but did not

believe he had probable cause to obtain a search warrant.

Because he knew that the residents would not “consent to a

search for drugs,” Trooper Manar “fabricated a false story

that he believed would more likely result in the residents’

consent to search.”

Accompanied by one or two other law enforcement

officers, Trooper Manar knocked on Appellant's and

Yamada's door around 4:00 a.m. When one of the residents,

most likely Appellant, opened the door, Trooper Manar stated

that a young girl had just reported being raped by Yamada in

the residence. He asked if he could look around in order to

determine whether her description of the residence and its

furnishings was accurate. The trial court found that Trooper

Manar “knew there would be no such evidence because he

knew there was no assault. His intention was to gain consent

to search for drugs.”

Despite finding that “the ruse employed [by Trooper

Manar] raises serious Constitutional rights questions and is

not an appropriate police practice,” the trial court ultimately

concluded “that Defendants voluntarily consented to a search

for evidence of an assault.” The trial court speculated that

“{pjermission to search for evidence of an assault may well

be a much narrower search than for drugs” because “[d]}rugs

2

may be secreted in places that evidence of an assault would

not likely be found.” However, because the drugs in this case

were found in plain view during this otherwise voluntary

search for evidence of a sexual assault; the trial court

concluded that the evidence was constitutionally obtained.

The Court of Appeals affirmed,' holding simply that “the trial

court was correct in denying Krause's request to suppress the

evidence against him as the product of a warrantless search.”

On appeal to this Court, the sole issue for our

consideration is whether the consent given by Appellant and

his roommate was constitutionally valid. In Cook v.

Commonwealth, 826 S.W.2d 329 (Ky.1992), this Court

stated that “consent is one of the exceptions to the

requirement for a warrant.” /d. at 331 (citing United States v.

Watson, 123 U.S. 111, 96 S.Ct. 820, 16 L.Ed.2d 598 (1976)).

We further indicated that the “test for determining if consent

is constitutional is set out in Schneckloth v. Bustamonte, 412

U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).” Id.

In Schneckloth, supra, the Supreme Court held that

“the Fourth and Fourteenth Amendments require that a

consent not be coerced, by explicit or implicit means ... [f]or,

no matter how subtly the coercion was applied, the resulting

‘consent’ would be no more than a pretext for the unjustified

police intrusion against which the Fourth Amendment is

directed.” Id. at 228, 93 S.Ct. at 2048. Whether consent is the

result of express or implied coercion is a question of fact, id.

at 227, 93 S.Ct. at 2048, and thus, we must defer to the trial

court's finding if it is supported by substantial evidence. RCr 9.78.

'Chief Judge Combs dissented from this opinion.

3

In this case, the trial court specifically found that

Appellant and his roommate did not and would not give

consent to search for drugs. Thus, Trooper Manar needed to

procure consent to search for something else if he was to

achieve his main objective. When he concocted a story

regarding the rape of a young girl and his need to look around

the house for the purpose of determining whether the young

girl's description of their house was accurate, Appellant and

his roommate ultimately agreed to allow a search for this

specific purpose. Because Appellant's consent to this limited

type of search was voluntary, the trial court reasoned that any

plain view seizures of collateral criminality made during the

search was a necessary product of this initial voluntary

consent,

The premise of the trial court's ruling, of course, is the

plain view doctrine. Under the plain view doctrine, a

warrantless seizure of illegal substances or objects is

constitutionally valid so long as the officer has not violated

the Fourth Amendment “in arriving at the place where the

evidence could be plainly viewed.” Hazel v. Commonwealth,

833 S.W.2d 831, 833 (Ky.1992). In order to validate a “plain

view” seizure, the Hazel Court explained that “not only must

the officer be lawfully located in a place from which the

object can be plainly seen, but he or she must have a lawful

right of access to the object itself.” Id. (emphasis added).

Pursuant to these standards, the trial court's ruling

falters in the fact that Trooper Manar was only able to reach a

location from which he could spy illegal drugs and related

paraphernalia through machination. We addressed the use of

ruses by police in Adcock v. Commonwealth, 967 S.W.2d 6

(Ky.1998). In Adcock, an officer disguised himself as a pizza

delivery person in order to coax a resident into opening the

door for the purpose of executing a valid search warrant. Id.

at 7. We held that “[t]he guiding factor in determining

whether a ruse entry, to execute a search warrant, constitutes

a ‘breaking’ under the Fourth Amendment should be whether

the tactic frustrates the purposes of the ‘knock and announce’

rule.” Id. at 10.”

The ruse in this instance was employed for the

purpose of gaining consent (1) to make a warrantless entry

into a home; and (2) to conduct a plain view warrantless

search of the residence. Thus, the underlying purpose and

policies in this case differ from the purpose and policies in

the Adcock case. The guiding factor here is to determine

whether this particular ruse frustrated the purpose of the

constitutional requirement that consent to make a warrantless

entry into and search of a home must be voluntary, and thus,

free of implied or express coercion.

In Schneckloth, supra, the U.S. Supreme Court

explained the purpose of the voluntariness requirement as follows:

“[V]oluntariness” has reflected an accommodation of

the complex values implicated in police questioning

of a suspect. At one end of the spectrum is the

acknowledged need for police questioning as a tool

for the effective enforcement of criminal laws.

Without such investigation, those who were innocent

might be falsely accused, those who were guilty might

*Ultimately, we found that the tactic did not undermine the

basic purpose of the rule. Id.

wholly escape prosecution, and many crimes would

go unsolved. In short, the security of all would be

diminished. At the other end of the spectrum is the set

of values reflecting society's deeply felt belief that the

criminal law cannot be used as an instrument of

unfairness, and that the possibility of unfair and even

brutal police tactics poses a real and serious threat to

civilized notions of justice.

Id. at 225, 93 S.Ct. at 2046 (internal citations omitted). The

Schneckloth Court further emphasized that “[i]t is no part of

the policy underlying the Fourth and Fourteenth Amendments

to discourage citizens from aiding to the utmost of their

ability in the apprehension of criminals.” Id. at 243, 93 S.Ct.

at 2056 (internal quotation omitted).

In determining whether this particular ruse frustrated

the purposes set forth above, we must make “a careful

scrutiny of all the swrrounding circumstances in a specific

case.” Cook, supra at 331. The Schneckloth Court advised

that “account must be taken of subtly coercive police

questions, as well as the possible vulnerable subjective state

of the person who consents.” Id. at 229, 93 S.Ct. at 2049. The

Court further explained that no decision should turn “on the

presence or absence of a single controlling criterion.” Id. at

226, 93 S.Ct. at 2047.

In this case, Trooper Manar confronted Appellant and

his roommate at an alarming hour (4:00 a.m.) with unnerving

news-a young girl had just been raped and he needed to look

around the house in order to determine if it was the place that

she had described to police. Stunned and sure that they were

not the perpetrators of this heinous crime (since in fact, it

never occurred), Appellant and his roommate made a split

second decision to allow Trooper Manar into the residence in

order to assist the trooper in his investigation. The trooper

testified, and the trial court found that Appellant and his

roommate would have never consented to the search if they

knew the trooper's true purpose. Furthermore, Trooper Manar

had no legal right, independent of receiving some kind of

valid consent, to enter or search the home. Under these

unique circumstances, we believe that the ruse utilized by

Trooper Manar absolutely undermined the purposes inherent

in requiring consent to be voluntarily obtained without any

implied or express coercion.

; i,

Our belief that Appellant's consent to search was

coerced is based on several factors. First, ‘given the time and

nature of the trooper’s ruse, we believe that Appellant and his

roommate were in a particularly vulnerable state. A knock on

the door at 4:00 a.m. by uniformed police officers is a

frightening event in and of itself. Couple this knock with a

heinous and shameful accusation, such as the rape of a young

girl, and nearly any person would feel overwhelmed and stunned.

Second, Trooper Manar’s tactics were unnecessary in

this instance and not based on any pressing or imminent

tactical considerations. In contrast, the ruse utilized by the

police in Adcock was primarily employed for safety reasons

and to avoid the destruction of evidence that commonly takes

place when entry into a home for the purposes of executing a

search warrant 1s delayed or hindered.

Finally, we believe that if the type of ruse utilized by

Trooper Manar was sanctioned by this Court, citizens would

. 2 discouraged from “aiding to the utmost of their ability in

the apprehension of criminals” since they would have no way

of knowing whether their assistance was being called upon

for the public good or for the purpose of incriminating them.

Schneckloth, supra, at 243, 93 S.Ct. at 2056 (internal

quotation omitted). Moreover, widespread use of this type of

tactic could quickly undermine “the set of values reflecting

society's deeply felt belief that the criminal law cannot be

used as an instrument of unfairness.” Id. at 225, 93 S.Ct. at

2046.

We are careful to note that our holding is limited and

narrow. We do not hold that the use of ruses, in general, is

unconstitutional. The United States Supreme Court has long

held that “{aJrtifice and stratagem may be employed to catch

those engaged in criminal enterprises.” Sorrells v. United

States, 287 U.S. 435, 441-42, 53 S.Ct. 210, 212, 77 L.Ed.

413, 416-17 (1932). Indeed, in Hoffa v. United States, 385

U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966) and Lewis v.

United States, 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312

(1966), the Supreme Court held that the Fourth Amendment

is not violated when police obtain incriminating information

through the use of undercover agents who misrepresent their

identity for the purpose of enticing defendants to confide or

disclose wrongdoing. The use of undercover agents and

stratagems in police investigations has long been sanctioned,

and we do not question such a practice in this opinion. See,

e.g, United States y. Baldwin, 621 F.2d 251, 252-253 (6th

Cir.1980) (“[A]n [undercover] agent may legitimately gain

entrance into a house by misrepresenting his identity.”);

Adcock, supra at 10 (entry into home for purposes of

executing a search warrant by agent posing as pizza delivery

person was constitutional); People v. LaGuerre, 29 A.D.3d

820, 815 N.Y.S.2d 211, 214 (N.Y.App.Div.2006) (no due

process violation when defendant voluntarily discarded

chewing gum from which DNA sample was taken in the

course of a police contrived “Pepsi Taste Test”); State v.

Nedergard, 51 Wash.App. 304, 753 P.2d 526 (1988) (entry

into home by undercover agents posing as interested buyers

responding to “For Sale” sign was permissible means of

establishing probable cause for a search warrant).

What distinguishes this case most, perhaps, from the

bulk of other ruse cases is the fact that Trooper Manar

exploited a citizen's civic desire to assist police in their

official duties for the express purpose of incriminating that

citizen. The use of this particular ruse simply crossed the line

of civilized notions of justice and cannot be sanctioned

without vitiating the long established trust and accord our

society has placed with law enforcement. See United States v.

Bosse, 898 F.2d 113 (9th Cir.1990) (“A ruse entry when the

suspect 1s informed that the person seeking entry is a

government agent but is misinformed as to the purpose for

which the agent seeks entry cannot be justified by consent.”);

United States v. Turpin, 707 F.2d 332, 334 (8th Cir.1983)

(“Misrepresentations about the nature of an investigation may

be evidence of coercion.”); SEC v. ESM Government

Secunties, Inc., 645 F.2d 310, 316 (Sth Cir.1981) (“We think

it clearly improper for a government agent to gain access to

records which would otherwise be unavailable to him by

invoking the private individual's trust in his government, only

to betray that trust.”); People v. Daugherty, 161 Ill.App.3d

394, 112 Ill.Dec. 762, 514 N.E.2d 228, 233 (1987) (“Where,

as here, the law enforcement officer without a warrant uses

his official position of authority and falsely claims that he has

legitimate police business to conduct in order to gain consent

to enter the premises when, in fact, his real reason is to search

inside for evidence of a crime, we find that this deception

under the circumstances is so unfair as to be coercive and

renders the consent invalid.”); State v. Schweich, 414

N.W.2d 227, 230 (Minn.App. 1987) (“Tacit misrepresentation

of the purpose of a search can rise to such a level of

deception to invalidate the consent.”); State v. McCrorey, 70

Wash.App. 103, 851 P.2d 1234, 1240 (1993) (distinguishing

between undercover police activity and police acting in their

official capacity actively misstating their purpose for gaining

consent), abrogated on other grounds by State v. Head, 136

Wash.2d 619, 964 P.2d 1187 (1998); Commonwealth v.

Haynes, 395 Pa.Super. 322, 577 A.2d 564, 572 (1990)

(defendant's consent to be transported to the stationhouse was

invalid because police deceived the defendant as to the true

purpose of the trip); United States v. Giraldo, 743 F.Supp.

152, 154 (E.D.N.Y.1990) (defendant's consent was invalid

where officer gained entry to home by claiming to be

checking for a possible gas leak). Accordingly, we find that

the deception employed by Trooper Manar in this case was so

unfair and unconscionable as to be coercive and thus,

Appellant's consent to a search of his residence was

constitutionally invalid.

Because the record lacks sufficient evidence to

support a finding of voluntary consent, the decision of the

Court of Appeals is reversed, and Appellant's sentence and

convictions are vacated. This matter is remanded to allow

Appellant to withdraw his guilty pleas pursuant to RCr 8.09

and for further proceedings consistent with this opinion.

10

Lambert, C.J., Graves, Mcanulty, Minton, and Scott,

J.J., Concur.

Wintersheimer, J., dissents in a separate opinion in

which Roach, J., joins.

ATTORNEY FOR APPELLANT

Jeremy [an Smith

115 North Fourth Street

P.O. Box 7751

Paducah, KY 42002-7751

ATTORNEYS FOR APPELLEE

Greyory D. Stumbo

Attorney General

Courtney J. Hightower

Todd D. Ferguson

Assistant Attorney General

Office of attorney General

Criminal Appellate Division

1024 Capital Center Drive

Frankfort, KY 40601

1 |

SUPREME COURT OF KENTUCKY

2004-SC-1009-DG

FREDERICK CARL KRAUSE III APPELLANT

V. APPEAL FROM COURT OF APPEALS

03-CA-2092-MR

MCCRACKEN CIRCUIT NO. 03-CR-00162-002

COMMONWEALTH OF KENTUCKY APPELLEE

DISSENTING OPINION BY JUSTICE

WINTERSHEIMER

I must respectfully dissent from the majority opinion

because it misinterprets the clear statement of the circuit

judge which found that the police were given consent to

search. The order denying the motion to suppress evidence

entered on July 25, 2003 clearly states that the defendants

gave consent for the police to search for evidence of an

assault.

The fact that the police intent was to search for drugs

did not render the consent constitutionally invalid. The police

ruse did not coerce them into consenting to a search. The

defendants could have refused consent for a search of

whatever nature but chose not to.

Clearly this Court has chosen to substitute its version

of the facts for that of the original trier of the facts. I believe

such a substitution is impermissible.

The entry by the trooper and the subsequent search of

the residence was proper because of the voluntary consent

and the use of a ruse or deception was justified under all the

circumstances.

The question of voluntary consent turns on the careful

scrutiny of all the surrounding circumstances of any particular

case. Cook v. Commonwealth, 826 S.W.2d 329 (Ky.1992). In

Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36

L.Ed.2d 854 (1973), the United States Supreme Court held

that the validity of a purported consent to search was to be

determined by a voluntariness test similar to that which has

been used by the court in coerced confession cases. It is a

question of fact to be determined from all of the

circumstances. See also 3 LaFave, Wayne R., Search and

Seizure: A Treatise on the Fourth Amendment § 8.2 (3d

Version, 1996).

Although deception by employment of a ruse is not

condoned by the courts, the limited use of such a device is

supported by many cases not only in Kentucky, but also

through the nation. Adcock v. Commonwealth, 967 S.W.2d 6

(Ky.1998) held that a ruse used by police to gain entry for the

purpose of executing a search warrant, so long as it is

accomplished without the use of force, promotes the

underlying purpose of the Knock and Announce Rule, and is

thus constitutional and reasonable under the Fourth

Amendment.

The majority. opinion seeks refuge in the Schneckloth

reference to “possible vulnerable subjective state of the

person who consents.” Such vulnerability is clearly

misplaced. Krause, then 29-years-of-age, was a person of

13

above average intelligence who was a director at a local

television station. He is a college graduate. He surely knew

he had the right to allow the officer to search without a

warrant. The entire incident was triggered by a tip from a

subject arrested by the trooper earlier which directed the

officer's attention to the home on 19th Street.

Persuasive authority can be found in Commonwealth

v. Morrison, 275 Pa.Super. 454, 418 A.2d 1378 (1980), in

which the consent to search was voluntary even though

procured by police who misrepresented both identity and

purpose. State v. Hastings, 119 Wash.2d 229, 830 P.2d 658

(1992), allowed warrantless entry made after consent was

given as valid despite the use of a ruse; State v. Nedergard,

51 Wash.App. 304, 753 P.2d 526 (1988), held that an

undercover officer's use of a ruse to enter the residence of a

suspect by posing as an interested buyer responding to a for

sale sign was permissible as a means of establishing probable

cause for a search warrant. People v. Manieri, 83 Misc.2d

798, 373 N.Y.S.2d 504 (1975), stated that consent of a

hospital patient in a private room for entry was not vitiated as

to police acting in an undercover capacity as a porter. Other

cases following the same general line of the use of deception

as Reese are: Lewis v. United States, 385 U.S. 206, 87 S.Ct.

424, 17 L.Ed.2d 312 (1966); United States v. Caceres, 440

U.S. 741, 99 S.Ct. 1465, 59 L.Ed.2d 733 (1979); United

States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453

(1971), and United States v. Baldwin, 621 F.2d 251 (6th

Cir.1980); Commonwealth v. Ginter, 289 Pa.Super. 9, 432

A.2d 1024 (1981). As noted earlier, the voluntariness test for

analyzing consent was adopted from the cases involving

coerced confessions. The mere use of a ruse or a strategic

deception does not render a confession involuntary so long as

14

the deception does not rise to the level of coercion. See

Springer v. Commonwealth, 998 S.W.2d 439 (Ky.1999)

citing Illinois v. Perkins, 496 U.S. 292, 110 S.Ct. 2394, 110

L.Ed.2d 243 (1990).

When the police deception as to the purpose of the

search is used in obtaining the consent to search, each case

must be analyzed with regard to the surrounding

circumstances. United States v. Watson, 423 U.S. 411, 96

S.Ct. 820, 46 L.Ed.2d 598 (1976).

Several jurisdictions have specifically approved the

use of deception by police to gain consent to search. In State

v. Johnson, 253 Kan. 356, 856 P.2d 134 (1993), the police

used deception to obtain consent to search the home of the

defendant. The officers misrepresented to the defendant that

they were looking for a parole violator when they were

actually seeking evidence regarding the murder of the victim.

In People v. Zamora, 940 P.2d 939 (Colo.App.1996), the

officers used a ruse stating that they just wanted a quick look

at the apartment of the defendant in regard to a domestic

dispute in an adjacent apartment. The officers were actually

trying to investigate whether the apartment matched the

sexual assault victim's description of the apartment to which

she had been taken. The Colorado court determined that

consent to search may be voluntary even when the person

giving consent is not aware of or is misinformed as to the

purpose of the search. The consent by the defendant was a

product of his own free will and intelligently made and the

defendant knew he had a right to refuse entry. The Court

concluded that the deception alone does not invalidate

consent but is one factor to be considered in the totality of

circumstances.

15

In People v. Avalos, 47 Cal.App.4th 1569, 55

Cal.Rptr.2d 450 (1996), police stopped the defendant and told

him that he had been stopped as part of a burglary

investigation. The officer stated that he wanted to search the

truck of the defendant for stolen property in addition to some

other contraband. Actually the investigation was in regard to

narcotics. The Court determined that police properly

identified themselves and permitted the search based on the

total circumstances and concluded that the consent was

voluntary.

Here, the officer told Yamada and Krause that he was

looking for evidence of an assault. In attempting to gain entry

to search, the officer stated that he wanted to look under the

bed, bedspread and furniture around the house to see if it was

consistent with the description given by the alleged assault

victim. Yamada should have clearly realized that he had

incriminating evidence in his room because he wanted to go

back to the room and clean it up before the search. When the

officer, with the consent of Yamada, accompanied him to his

room, Yamada quickly tried to hide the incriminating

evidence behind his back. One of the items was a spoon and

Yamada told the officer that the substance on the spoon was

cocaine. Upon additional questioning, Yamada handed over a

bag of cocaine from his robe and stated that was all the drugs

in the home.

The officer also asked if he could search Krause’s

room, and the trial judge found that the evidence indicated

that Krause consented to the search of his room. This was a

separate and distinct consent which was found to be

voluntary. Under any circumstances, the subsequent search

16

and seizure of the contraband from the room occupied by

Krause was valid.

The circumstances of this matter indicated that the

officer had a tip that a person unknown to him had purchased

cocaine from Yamada at the residence several hours before

the search. The officer identified himself as a police officer,

was in uniform and never tried to conceal his identity. His

conduct was never threatening or coercive. He never feigned

an emergency or exceeded the scope of the consent.

Krause testified at the suppression hearing that he

answered the door and he knew that the officer needed a

warrant and that he could say no when they asked to come

into the house. The evidence indicates that neither resident

was uncoopcrative in giving any consent. The trial judge

found that the evidence indicated that Krause consented to

the search of his room.

The surrounding circumstances were essentially that

the officer had a tip that a person unknown to him had

purchased cocaine from Yamada at the residence several

hours before the search. The officer was in full uniform and

identified himself as a police officer. His behavior was not

threatening or coercive.

Krause had prior contact with law enforcement

because he had been convicted of possession of marijuana

and drug paraphemalia. He was in his late-20s with a college

education and worked as a television producer at a local

station. Clearly, he was above average intelligence and had

experience in the area. Krause also stated that he was not

doing drugs that evening. Several of the cases cited in support

17

of the majority opinion's position are based on mere

conjecture or speculation. Here, the officer had probable

cause to believe that the person he was attempting to arrest

was in the apartment and he could legitimately enter the

premises by means of a deception. Cf. United States v.

Phillips, 497 F.2d 1131 (9th Cir. 1974).

Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct.

1788, 20 L.Ed.2d 797 (1968), held that a search cannot be

justified when the consent has been given only after the

official conducting the search has asserted that he possessed a

warrant. Justice Stewart held that when a law enforcement

officer claims authority to search a home under a warrant, he

announces in effect that the occupant has no right to resist the

search. Where there is coercion, there cannot be consent. That

is not the situation presented in this case. This case involved

rape and two charges of felonious assault and whether a rifle

was introduced into evidence as a result of improper search.

The Bumper ruse was indeed a coercive technique. That

individual believing that the officer had a warrant, believed

that he did not have the ability to refuse. Krause was not in

that position. He or his drug dealer roommate could easily

have told the officer to leave. It is almost beyond belief that

any drug dealer with illegal drugs in an apartment would not

resist to the utmost anything other than a search warrant

before letting law enforcement in the premises.

Under all the circumstances, I believe that consent

was given and that this judgment of conviction should be

affirmed in all respects.

Roach, J., joins this dissent.

18

SUPREME COURT OF KENTUCKY

2004-SC-1009-DG

FREDERICK CARL KRAUSE, Ili APPELLANT

A ON REVIEW FROM THE COURT OF APPEALS

2003-CA-2092-MR

MCCRACKEN CIRCUIT COURT NO. 03-CR-000162

COMMONWEALTH OF KENTUCKY APPELLEE

ORDER DENYING PETITION FOR REHEARING

The petition for rehearing is denied.

All concur, except Wintersheimer, J., who would

grant rehearing.

ENTERED: December 21, 2006

s/

CHIEF JUSTICE

19

COMMONWEALTH OF KENTUCKY

COURT OF APPEALS

No. 2003-CA-002092-MR

FREDERICK “FRITZ” CARL KRAUSE, Hl APPELLANT

V. APPEAL FROM MCCRACKEN CIRCUIT

COURT

HONORABLE CRAIG Z. CLYMER, JUDGE

ACTION NO. 03-CR-00162

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION

AFFIRMING

BEFORE: COMBS, CHIEF JUDGE; BUCKINGHAM AND

TACKETT, JUDGES. TACKETT, JUDGE Fredrick Krause

HII appeals from an order of the McCracken Circuit Court

denying his motion to suppress evidence seized from his

residence without a search warrant. At issue is whether an

officer who uses a ruse can obtain valid consent to search,

thus negating the requirement of a search warrant. We find

that the search did not violate Krause's rights to be free from

unreasonable search and seizure because the officer's

deception as to the intent of the search did not coerce Krause

or his roommate, Joe Yamada, into giving consent to search.

Krause was indicted on charges of first-degree possession of

a controlled substance (cocaine), possession of drug

paraphernalia second offense, and possession of marijuana.

The evidence which led to charges against Krause was

20

eee AT Eee

gathered during a warrantless search of the home he owned

and shared with Yamada. Krause moved the trial court to

suppress the evidence, arguing that the officers did not have

valid consent to search the house. At the suppression hearing,

Krause testified that he answered the door on March 18,

2003, and found three uniformed police officers on his

doorstep. Kentucky State Police Trooper Jason Manar

informed Krause that a young girl had accused Yamada of

sexually assaulting her that evening inside the residence.

Krause told the officers that he was not Yamada, but that he

would go and get Yamada from inside the house. He testified

that, even though he shut the door behind him, the officers

followed him into the house where they encountered

Yamada. After hearing the fabricated assault accusation,

Yamada gave police permission to search the house, and they

found a controlled substance and drug paraphernalia in

Yamada's bedroom. Additional drug paraphernalia were

iocated in the living room. Krause testified that police

searched his bedroom without his consent and found a

controlled substance. Police then arrested both Krause and

Yamada.

Manar also testified at the suppression hearing. According to

the trooper, he arrested an unknown person earlier in the day

who was found to be in possession of a quantity of cocaine.

The arrestee stated that he had purchased the cocaine from

Yamada and gave the trooper the address of the residence

where the transaction occurred and a description of the

vehicle in front of the house. Instead of obtaining a search

warrant, Manar went to the residence in the middle of the

night accompanied by another trooper and a McCracken

County Sheriff's Deputy. Manar testified that he thought it

unlikely that Yamada would consent to a warrantless search

21

for drugs so he invented an alleged sexual assault and asked

whether he could look at the furniture and bedding to

determine whether it matched the description given by his

fictitious victim.

Although Manar was uncertain, he testified that he thought

Yamada himself answered the door. He testified that Yamada

and Krause consented to the officers entering the house.

Manar stated that he obtained consent to actually search by

telling the occupants the fabricated assault story. According

to Manar, after drugs were found in Yamada's bedroom,

Krause gave consent for a search of his own room. He

admitted that he did not tell Yamada and Krause that he was

searching for drugs until after he had actually carried out the search.

The trial court found that, although Manar unquestionably

lied in obtaining it, Yamada and Krause gave voluntary

consent to the search of their residence. After the trial court

denied his motion to suppress the evidence seized from the

warrantless search of his house, Krause entered a conditional

guilty plea to the charges against him subject to his right to

appeal the trial court's ruling on the suppression issue. Krause

was sentenced to five years on each of the felony charges and

twelve months on the misdemeanor with the felonies to run

consecutively for a total of ten years probated for two and

one-half years. This appeal followed.

Although he phrases it as several different issues, Krause's

basic argument is that Manar did not obtain valid consent to

search the home he shared with Yamada because the trooper

lied about the type of evidence he was seeking. Kentucky

Rule of Criminal Procedure 9.78 addresses the procedure for

suppressing evidence as follows:

22

If at any time before trial a defendant moves to

suppress, or during trial makes timely objection to the

admission of evidence consisting of (a) a confession

or other incriminating statements alleged to have been

made by the defendant to police authorities or (b) the

fruits of a search, the trial court shall conduct an

evideniary hearing outside the presence of the jury

and at the conclusion thereof shall enter into the

record findings resolving the essential issues of fact

raised by the motion or objection and necessary to

support the ruling. If supported by substantial

evidence the factual findings of the trial court shall be

conclusive.

In addition, the question of whether consent to search

is voluntary must be determined by a careful

examination of the all of the facts in a specific case.

Cook v. Commonwealth, Ky., 826 S.W.2d 239

(1992). The trial court's order denying Krause's

suppression motion contained the following findings

of fact and conclusions:

... Trooper Manar arrested a person for possession of

cocaine. The person, who was not identified at the

hearing, was unknown to Trooper Manar. The person

stated to Trooper Manar that he purchased the cocaine

from Defendant Yamada at his residence at 523 South

19th St. in Paducah. Trooper Manar believed that he

did not have probable cause for a search warrant and

decided to go to the residence to see if the occupant(s)

would consent to a search. [Trooper] Manar did not

believe they would consent to a search for drugs.

23

Trooper Manar proceeded to the residence several

hours later, in the very early morning hours. He was

accompanied by one or two other policemen. One of

the defendants, most likely Krause, answered the

Trooper's knock at the door. Believing that the

residents would not consent to a search for drugs, the

trooper fabricated a false story that he believed would

more likely result in the residents' consent to search.

Trooper Manar stated that a young female had

reported being assaulted by Yamada and asked if they

could search the residence for evidence of the assault.

Contrary to Defendants’ positions, the Court finds that

the police were given consent to search. Pursuant to

the consent, cocaine, marijuana, and paraphernalia

were found and the Defendants arrested.

Defendants argue that if consent was given it was not

valid consent because of the ruse which the police

used to gain entry.... The Court finds that the ruse

employed raises serious Constitutional rights

questions and is not an appropriate police practice.

After much thought and perusal of the relevant cases,

however, the Court finds that, given these facts, the

ruse did not improperly coerce or otherwise result in

other than a constitutionally valid consent to search.

A primary concern is whether the police action here

used might be used to randomly search a person's

home with nothing more than curiosity or

unsupported suspicion. Trooper Manar's suspicion

that criminal activity was afoot in the residence was

supported by more than mere conjecture. Hours

earlier, he had arrested a person in possession of

24

cocaine. The person related that he had purchased the

cocaine from the Defendants’ residence. There was,

therefore, reasonable suspicion that illicit drugs would

be found in the residence.

A second concern is whether Defendants' consent to

search was ... voluntary so as to be an exception to the

Constitutional requirement of a search warrant.... The

issue is: When the police falsely tell a resident that

they wish to search for evidence which they know

does not exist, in order to search for evidence they

have a reasonable suspicion does exist, is the

resident's consent based upon the subterfuge a ...

voluntary consent?

The Court finds that Defendants voluntarily consented

to a search for evidence of an assault. The fact that the

actual police intent was to search for drugs did not

render the consent Constitutionally invalid.

One search was no more intrusive than the other. It

was the stated purpose that was the difference. Police

deception did not coerce them into consenting to a

search. Defendants could have refused consent for a

search of whatever nature, but chose not to.

We agree with the trial court's factual finding that Manar did

obtain consent io search the residence shared by Yamada and

Krause. Moreover, since that consent was obtained without

any threat or express or implied coercion, it was valid. Cook

At 331. Thus, the trial court was correct in denying Krause's

request to suppress the evidence against him as the product of

a warrantless search.

25

/

For the foregoing reasons, the decision of the

McCracken Circuit Court is affirmed.

BUCKINGHAM, Judge, Concurs.

COMBS, Chief Judge, Dissents.

COMBS, Chief Judge, Dissenting. There was no

legitimate reason ( i.e., no exigent circumstances or any other

exception to the warrant requirement) to justify the decision

of the officers not to have obtained a search warrant prior to

this middle-of-the night search. The police received an

uncorroborated tip at night. There was no likelihood that the

evidence was in any jeopardy of being destroyed before they

could have obtained a search warrant.

The fact that the police concocted a ruse involving a

false accusation of sexual assault in order to obtain consent

severely vitiates the requisite voluntariness of the consent

under the extreme circumstances of this case. Therefore, I

would hold that the consent was not valid and that a warrant

should have been sought. -

The trial court struggled with the disturbing

“constitutional rights questions” in this case. I cannot resolve

those concerns merely because criminal activity was found

after the fact of the search. The deceptive inducement to

coerce consent in this case is a disturbing and precedentially

dangerous threat to the essence and integrity of the Fourth

Amendment. It is the very kind of intrusion for which the

Fourth Amendment requires a warrant.

BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:

Jeremy lan Smith Gregory D. Stumbo

Paducah, Kentucky Attorney General of Kentucky

Courtney J. Hightower

Assistant Attorney General

Frankfort, Kentucky

COMMONWEALTH OF KENTUCKY

McCRACKEN CIRCUIT COURT

DIVISION NO. I

INDICTMENT NO. 03-CR-00162-001

and

INDICTMENT NO. 03-CR-00162-002

COMMONWEALTH OF KENTUCKY PLAINTIFF

VS. ORDER DENYING MOTION TO

SUPPRESS EVIDENCE

JOE YAMADA DEFENDANTS

and FREDERICK CARL KRAUSE, III

This matter is before the court of the Defendants’

motions, through Counsel, to suppress evidence discovered

by police in a warrantless search of their residence. Because

the search was pursuant to a valid consent to search the

search was not in violation of the Defendants’ Constitutional

rights.

A suppression hearing was held in which Trooper

Manar of the KSP and Defendant Krause testified. The Court

finds the following based upon the credible evidence

28

presented. Trooper Manar arrested a person for possession of

cocaine. The person, who was not identified at the hearing,

was unknown to Trooper Manar. The person stated to

Trooper Manar that he purchased the cocaine from Defendant

Yamada at his residence at 523 South 19" St. in Paducah.

Trooper Manar believed he did not have probable cause for a

search warrant and decided to go to the residence to see if the

occupant(s) would consent to a search. Tr Manar did not

believe they would consent to a search for drugs.

Trooper Manar proceeded to the residence several

hours later, in the very early morning hours. He was

accompanied by one or two other policemen. One of the

defendants, most likely Krause, answered the Trooper’s

knock at the door. Believing that the residents would not

consent to a search for drugs, the trooper fabricated a false

story that he believed would more likely result in the

residents’ consent to search. Trooper Manar stated that a

29

young female had reported being assaulted by Yamada and

asked if they could search the residence for evidence of the

assault. Contrary to Defendants’ position, the Court finds

that the police were given consent to search. Pursuant to the

consent, cocaine, marijuana, and paraphernalia were found

and the Defendants arrested.

Defendants argued that if consent was given it was

not valid consent because of the ruse which the police used to

gain entry. The Commonwealth filed a brief in opposition to

the motion to suppress citing cases supporting its position.

The Defendants, through Counsel provided arguments and

supporting cases for their position. The Court finds that the

ruse employed raises serious Constitutional nights questions

and is not an appropriate police practice. After much thought

and perusal of the relevant cases, however, the Court finds

that, given these facts, the ruse did not improperly coerce or

otherwise result in other than a Constitutionally valid consent

30

to search.

A primary concern is whether the police action used

| here might be used to randomly search a pefson’s home with ~

nothing more than cunosity or unsupported suspicion.

Trooper Manar’s suspicion that criminal activity was afoot in

the residence was supported by more than mere conjecture.

Hours earlier he had arrested a person in possession of

cocaine. The person related that he had purchased the

cocaine from the Defendants’ residence. There was,

therefore, reasonable suspicion that illicit drugs would be

found in the residence.

A second concern is whether Defendants’ consent to

search was knowing and voluntary so as to be an exception to

the Constitutional requirement of a search warrant. Trooper

Manar told the Defendants he wished to search for evidence

of an assault. He knew there would be no such evidence

because he knew there was no assault. His intention was to

31

CLERK’S CERTIFICATE

The foregoing Order was entered on this 28" day of

July, 2003, and copies mailed to:

Commonwealth Attomey

Hon. Delbert K. Pruitt

Hon. Ian Jeremy Smith

MIKE LAWRENCE, CLERK

McCRACKEN CIRCUIT COURT

BY: s/

34

COMMONWEALTH OF KENTUCKY

MCCRACKEN CIRCUIT COURT

DIVISION NO. I

INDICTMENT NO. 03-CR-00162-002

COMMONWEALTH OF KENTUCKY PLAINTIFF

VS. FINAL JUDGMENT/SENTENCE OF

PROBATION

FREDERICK “FRITZ” CARL KARUSE, III DEFENDANT

The Defendant having been found guilty by the Court

of the crimes of Count 1 - First Degree Possession of a

Controlled Substance - Cocaine; Count 2 - Use/Possession of

Drug Paraphernalia, Second Offense; and Count 3 -

Possession of Marijuana; and the Court noted of record no

recommendation had been made by the Commonwealth as to

sentence.

On the 25" day of September, 2003, the Defendant

appeared in open court with his attorney, Hon. Jeremy Smith,

and the Court inquired of the Defendant and counsel whether

they had any legal cause why judgment should not be

35

pronounced and afforded the Defendant an opportunity to

make any statements in the Defendant’s behalf and to present

any information in mitigation of punishment, and the Court

having given due consideration to the written report of the

presentence investigation prepared by the Division of

Probation and Parole, and the Defendant and counsel having

examined said report and having made objections and/or

corrections thereto, which were duly noted by the Court, and

having further reviewed the recommendations of the

Commonwealth.

IT IS HEREBY ORDERED AND ADJUDGED

that the Defendant is found guilty of the crime of Count 1 -

First Degree Possession of a Controlled Substance - Cocaine;

Count 2 - Use/Possession of Drug Paraphernalia, Second

Offense; and Count 3 - Possession of Marijuana; and it is

further ORDERED and ADJUDGED that the Defendant is

sentenced to Count | - five (5) years, Count 2 - five (5) years,

36

and Count 3 - twelve (12) months, with Counts 1 and 2 to run

consecutive to each other and to run concurrent with sentence

on Count 3, for a total of ten (10) years, with the Defendant

being ORDERED to serve three (3) days and the remainder

to be probated for a period of two and one-half (2-1/2) years

under the conditions specified below.

1. Continued good behavior.

2. Refrain from violating the law in any respect.

3. Report in person at least once each month to the

probation officer;

4. Comply with the regulations of the Division of

Probation and Parole and the directions of the probation

officer;

5. Pay $30.00 monthly supervision fee; and

6. Undergo drug and alcohol assessment, including a

follow through with any necessary counseling and/or

treatment.

37

No sufficient cause having been shown why judgment

should not be pronounced, sentence was imposed by the

Court upon the Defendant.

IT IS ORDERED that upon completion of the

aforesaid probationary period, the Defendant shall be finally

discharged, provided the Defendant has complied with the

above conditions and provided further that no warrant issued

with the Court is pending against the Defendant, and

Defendant’s probation had not been revoked. Upon

revocation, the Defendant will be required to serve ten (10)

years in incarceration, less three (3) days pre-sentence

confinement credit.

The Court finds that the Defendant has received

effective assistance of counsel.

IT IS HEREBY ORDERED that the Defendant shall

be given credit for pre-sentence confinement time of three (3)

days. It is noted that the Defendant's date of birth is the 7"

38

day of September, 1973. Court costs and fees in the amount

of $125.00 shall be paid immediately.

FURTHER, any bond posted may be released upon

entry of this Order.

ENTERED from the Bench September 25, 2003, and

DATED this 29 day of September, 2003.

s/

CRAIG Z CLYMER, JUDGE

McCracken Circuit Court

Division No. Il

CLERK’S CERTIFICATE

The foregoing Judgment was entered the 29" day of

September, 2003, and copies were mailed to:

Commonwealth Attorney

Hon. Jeremy Smith

Probation & Parole

MiKE LAWRENCE, CLERK

McCRACKEN CIRCUIT COURT

BY: s/

39