MICHAEL BEENE v. COMMONWEALTH OF KENTUCKY (2010)

NOT TO BE PUBLISHED

AFFIRMING

Michael Beene appeals from a judgment of the Graves Circuit Court following his conditional guilty plea to possession of a firearm by a convicted felon and trafficking in over five pounds of marijuana, first offense.   For the reasons stated herein, we affirm.

On August 9, 2007, the Mayfield Police Department received a telephone call from the local post office regarding a suspicious package.   Officer Shannon Keller responded to the call and, upon arrival, was granted permission by a postal inspector to use his police canine to sniff the package.   The canine sniffed the exterior of the package and gave a positive alert for the presence of narcotics.

After observing that the package was addressed to “Mitchell Bean” at 820 West Water Street, Officer Keller obtained a search warrant for the address permitting the search of the residence for the package and for any other article consistent with the use or sale of controlled substances.   When a postal employee effected a “controlled delivery” of the package, a man signed for the package as “Michael Beene,” and then returned into his residence.   Police then executed the search warrant and discovered the unopened package containing twelve pounds of marijuana and found Beene with a .22-caliber handgun.   A .22-caliber rifle and various gun ammunition were also discovered inside Beene's residence.

On October 5, 2007, Beene was indicted by a Graves County grand jury for possession of a handgun by a convicted felon and trafficking in over five pounds of marijuana, first offense.   On March 11, 2008, Beene filed a motion to suppress the evidence against him contending that the search warrant was not supported by probable cause.   Beene contended that the police's conduct, not his, served to manufacture probable cause to support the issuance of the search warrant.

Following a suppression hearing, the trial court denied Beene's motion, finding that the mail was addressed to Beene's residence and “probable cause existed for the issuance of a warrant due to the free air search by the dog.”   After his motion was denied, Beene entered a conditional guilty plea to the amended charge of possession of a firearm by a convicted felon and to trafficking in marijuana over five pounds, first offense.   He received a one-year sentence for possession of the firearm and a five-year sentence for trafficking to be served consecutively for a six-year sentence.   This appeal followed.

Beene contends that the trial court erred by failing to suppress the evidence obtained against him in violation of his rights under the Fourth Amendment of the United States Constitution and Section Ten of the Kentucky Constitution.   Specifically, he contends that there could be no reasonable belief that contraband would be found in his residence at the time the warrant was issued because there was no evidence that he was selling or using narcotics.   Beene further contends that even the delivered package was immaterial because it was not addressed to him but to “Mitchell Bean.” We disagree.

Our standard of review of a trial court's ruling on a motion to suppress requires that we first decide if the trial court's findings of fact are supported by substantial evidence.  Commonwealth v. Neal, 84 S.W.3d 920, 923 (Ky.App.2002).   If supported by substantial evidence, the trial court's factual findings are conclusive and will not be disturbed by an appellate court.  Roberson v. Commonwealth, 185 S.W.3d 634, 637 (Ky.2006).   A de novo review of the trial court's application of the law is then conducted to determine whether it correctly applied the law.  Adcock v. Commonwealth, 967 S.W.2d 6, 8 (Ky.1998).

Both the Fourth Amendment to the United States Constitution and Section Ten of the Kentucky Constitution guarantee the right to be free from unreasonable searches and seizures, which is effectuated by the general rule prohibiting searches not authorized by a valid search warrant.  Commonwealth v. Wood, 14 S.W.3d 557, 558 (Ky.App.1999).   When reviewing the constitutional validity of a search warrant, we observe that a search warrant may only be issued upon a finding of probable cause.  Fentress v. Commonwealth, 279 S.W.3d 168, 171 (Ky.App.2008).  “Probable cause exists for the issuance of a search warrant if there is a fair probability that contraband or evidence of criminal activity will be found in the place to be searched.”  Id.

Officer Keller obtained a search warrant based on his belief that evidence of criminal activity would soon be found at 820 West Water Street.   Thus, Officer Keller sought an “anticipatory warrant,” which is based “ ‘upon an affidavit showing probable cause that at some future time (but not presently) certain evidence of crime will be located at a specified place.’ ”  U.S. v. Grubbs, 547 U.S. 90, 94, 126 S.Ct. 1494, 1498, 164 L.Ed.2d 195 (2006) (internal citation omitted).   In other words, “[c]ontraband does not have to be presently located at the place described in the warrant if there is probable cause to believe that it will be there when the search warrant is executed.”  U.S. v. Lowe, 575 F.2d 1193, 1194 (6th Cir.1978).

The U.S. Supreme Court permits the use of anticipatory search warrants partly because “all warrants are, in a sense, ‘anticipatory.’ ”  Grubbs, 547 U.S. at 95.   Basically, the decision regarding probable cause to issue a search warrant is simply a prediction “that the item will still be there when the warrant is executed.”  Id. Therefore, anticipatory warrants may be issued just as ordinary warrants if the following three conditions are satisfied:  “(1) that it is now probable that (2) contraband, evidence of a crime, or a fugitive will be on the described premises (3) when the warrant is executed.”   Id. at 96.

Here, Officer Keller's search warrant affidavit stated that his drug-sniffing canine made a positive indication to the “presence of illegal narcotics on a U.S. Postal package that was addressed to Mitchell Bean at the address 820 West Water.”   Based on these facts, the district court issued a search warrant permitting the search for a U.S. Postal Express Mail Package with tracking number EB 98284591US at 820 West Water Street.   The following day, police observed the delivery of the package and then executed the search warrant.

Applying our legal standard, we conclude that the trial court did not err by denying Beene's motion to suppress.   The search warrant affidavit provided sufficient evidence to support the trial court's finding of probable cause that contraband would be found at 820 West Water Street when the search warrant was executed.   In this case, Officer Keller's canine's positive alert for narcotics on the postal package provided probable cause that contraband was inside the package.  Meghoo v. Commonwealth, 245 S.W.3d 752, 756 (Ky.2008).   Because the mail package was going to be delivered to Beene's residence, there was probable cause to believe that contraband would be in the residence if the package was carried inside.  Lowe, 575 F.2d at 1194.   After observing Beene receive the package and return to his residence, police executed the search warrant which was clearly supported by facts permitting a finding of probable cause.

While Beene contends that there was no evidence that he was consuming or trafficking drugs and that he was not the package's addressee, his arguments are misplaced because “the test for probable cause is whether there is a fair probability that contraband or evidence of a crime will be found in a particular place.”  Moore v. Commonwealth, 159 S.W.3d 325, 329 (Ky.2005).   Accordingly, regardless of the police's lack of knowledge regarding Beene's activities, we conclude that there was sufficient evidence to support a probable cause finding that evidence of a crime would be found at 820 West Water Street.  Id.

Beene further contends that the police impermissibly manufactured the probable cause by delivering the package to his address on West Water Street.   Citing several federal cases, Beene contends that the police's unreasonable actions require the application of the exclusionary rule to suppress the evidence obtained from their search.   However, this is not a case where law enforcement created the chain of events leading to the delivery of illegal drugs.   Police were notified of a suspicious package and observed the delivery of the package to its intended address.   Police did not engage in any conduct that thrust crime upon Beene.  Morrow v. Commonwealth, 286 S.W.3d 206, 209 (Ky.2009).   Rather, to the extent that Beene was an innocent party in this case, we believe that this was a matter for the jury to determine, which right Beene waived by entering his guilty plea.

For the foregoing reasons, the judgment of conviction of the Graves Circuit Court is affirmed.

ALL CONCUR.

THOMPSON, JUDGE: