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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2006

## Text

Supreme Court
FL eS U.S.

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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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PE Oe CATT 6 045 ec etviccevesieneaeu i
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

il

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_2348%3A1. Public record. Not legal advice.