MARIO RESHAWN JOHNSON APPELLANT v. APPELLEE (2010)

NOT TO BE PUBLISHED

OPINIONAFFIRMING

Mario Reshawn Johnson appeals from the denial of his motions to suppress evidence.   For the reasons set forth herein, we affirm the holding of the Fayette Circuit Court.

On November 12, 2008, a Fayette Grand Jury indicted Johnson on one count of burglary in the second degree, four counts of receiving stolen property over $300, one count of attempted burglary in the second degree, and being a persistent felony offender in the second degree.   Johnson filed two motions to suppress on August 5, 2009.   He alleged in the first motion to suppress that the evidence seized from his residence was the result of an unconstitutional “knock and talk” procedure by the police.   In the second motion, Johnson requested the trial court to suppress evidence of identification because it was procured from an allegedly improper photo lineup.

On August 10, 2009, the trial court held a suppression hearing.   The court overruled both motions to suppress from the bench.   Later, the trial judge entered two written orders denying each motion to suppress.   Johnson has appealed the denial of both motions to suppress.   We now review the evidence entered at the suppression hearing.

The evidence at the hearing was as follows.   Lexington police officer, Zachary King, testified that on October 1, 2008, he received a call about a burglary wherein the homeowner said that a person had kicked in her back door.   The homeowner described the suspect as a black male, approximately six feet two inches tall, wearing an unwrinkled white crew cut tee shirt and dark jeans.   The suspect's vehicle was described as a silver Chevrolet Malibu or Impala with tinted windows.   When the officer checked the neighborhood, he was unable to find anyone or a car matching those descriptions.

The officer further explained that, including the aforementioned burglary attempt, there had been a rash of burglaries in the area.   In all the reports of burglaries, the description of the suspect was the same.   But in previous accounts, he had been riding a bicycle.   The method used in the break-ins was similar, too.   Someone would ring the front door and when no one answered, this person would go to the back door and force his way into the home.

Later that same day in the early afternoon, Officer King drove through the Garden Springs area looking for the above-described car.   He thought that because the offender had been seen on a bicycle in several of the reported incidents, perhaps he lived nearby.   And he did see a car which matched the earlier description on Garden Springs Drive.   Officer King ran the tag and found that the car belonged to a woman who lived at 969 Pine Bloom Court.   This address is near Garden Springs Drive.   He followed the car to a shopping center but was unable to see the driver.

Officer King then went to 969 Pine Bloom Court where he observed a black male, over six feet tall, wearing a white crew cut tee shirt, and standing on the back porch of the house at that address.   In fact, Officer King was able to see the back door from the street as he drove by.   After making eye contact with the officer, the man went into the house.   The officer considered this suspicious behavior.

Officer King then called for assistance.   Based on the fact that the car and the described suspect both were at the house, Officer King wanted to do a “knock and talk” procedure.   Two police officers arrived.   Officer King had some concerns about safety because guns had been reported stolen in at least two of the burglaries.   Therefore, he dispatched the two officers so that one went to the left back corner of the house near the back porch and the other to the right back corner of the house.

Officer King then knocked on the front door;  however, no one answered.   When no one answered, the officer near the back porch went and knocked on the back door.   The officers were aware that this door was the one that the suspect had entered the house.   Officer King stated that in order for the other officer to get to the back door, the officer had to walk through a gate, which Officer King believed was open.   Officer King also detailed that there was no sidewalk beside the house that led to the front door but a driveway led up to the previously mentioned gate.   After a couple of minutes, Johnson answered the back door.

Officer King told Johnson that he had information that Johnson may have been involved in burglaries in the area and requested Johnson's consent to search the house.   Johnson orally consented.   He also informed the officers that he lived in the basement of the home with his girlfriend, their two children, and the girlfriend's mother.   After a search of the basement, an officer found bags of merchandise that matched the items stolen in the burglaries.   Johnson was charged with burglary and receiving stolen property.   Officer King added that if Johnson had not opened the door, the officer planned to watch the house, wait for the owner, and obtain a search warrant.   Thereafter, the owner of the home arrived and gave consent to search the remainder of the house.   During the search of the upstairs, more stolen items were found.   Following this testimony and arguments of counsel, the court overruled the motion to suppress the evidence seized as a result of the “knock and talk.”

Following this ruling, the trial court conducted the suppression hearing regarding the photo lineup.   Officer Jeff May testified at the suppression hearing about the photo lineup.   He was one of the officers who had been with Officer King at 969 Bloom Court during the “knock and talk” procedure.   He said that after the arrest at the home, he put together a photo display that included a picture of Johnson.   Using pictures from the Corrections' web site, the officers put together a photo selection that included Johnson and five others who had physical characteristics similar to Johnson.   In creating the photo lineup, the officers used a computer program that selects information based on race, gender, age, weight, and height to generate photographs for the officers to use in a lineup.

Once the photo lineup was completed, Officer May used it to show to the witnesses of the burglaries.   First, he took a copy of the lineup to Longview Drive where a neighbor of a burglarized home had given a description of the suspect.   This neighbor looked at the lineup but did not choose any photos as the burglar.   Then, Officer May took the photos to Lily Drive where two neighbors had provided information regarding a burglary on that street.   Officer May spoke with the two neighbors separately.   One witness viewed the lineup and selected a picture of Johnson as the burglar.   This witness had actually spoken to the burglar as he left the scene.   The other witness narrowed the selection down to two people, one of which was Johnson, but did not make an identification of the person she saw on Lily Drive.   Officer May told the court that the protocol was for the officer to read the directions for the lineup to the witnesses, have the witnesses read the directions themselves, have the witnesses sign that they had read the directions and, after doing so, view the lineup.

After counsels' arguments, the trial court overruled the motion to suppress the identification.   Johnson indicated he wanted to enter a plea and subsequently entered a conditional guilty plea to the offenses.   As part of the plea agreement, he reserved the right to appeal the denial of his motions to suppress.   On September 10, 2009, the court entered a final judgment which found Johnson guilty of the charged offenses and gave him a fifteen-year sentence.   He now appeals.

Johnson maintains that the trial court erred in denying both his motions to suppress.   He requests that his conviction and sentence be reversed or that the case be reversed and remanded for a new trial in Fayette Circuit Court.   Regarding the first motion to suppress the evidence seized after a “knock and talk” procedure, Johnson argues that the “knock and talk” procedure failed when Johnson chose not to answer his front door.   Therefore, the police officers violated his constitutional rights against unreasonable searches and seizures by crossing the fence, entering the back yard, and knocking on the back door.   Additionally, he argues that the identification evidence from the photo lineup should also be suppressed because the photo lineup was impermissibly suggestive and unreliable.   The Commonwealth counters both arguments by contending that the “knock and talk” procedure was not an unreasonable search and seizure and the photo lineup in which Johnson was identified was proper.

It is well settled in this Commonwealth that after a hearing on a defendant's suppression motion, the trial court's findings are deemed to be conclusive if supported by substantial evidence.   See Talbott v. Com., 968 S.W.2d 76 (Ky.1998);  Canler v. Com., 870 S.W.2d 219 (Ky.1994), citing Harper v. Com., 694 S.W.2d 665 (Ky.1985).   Moreover, the trial judge's findings of fact will only be overturned if clearly erroneous.   See Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972);  Roark v. Com., 90 S.W.3d 24, 28 (Ky.2002).   Finally, we are required to conduct a de novo review of the trial court's application of the law to those facts to determine whether its decision is correct as a matter of law.   See Com. v. Neal, 84 S.W.3d 920, 923 (Ky.App.2002).

We begin our analysis by addressing the “knock and talk” procedure that was used prior to the police officers' search of Johnson's residence.   In our Commonwealth, “knock and talk procedure is a proper police procedure and may be used to investigate the resident of the property, provided the officer goes only where he has a legal right to be.”  Quintana v. Com., 276 S.W.3d 753, 755 (Ky.2008).  “The knock and talk procedure involves law enforcement officers approaching a home for the purpose of obtaining information about a crime that has been committed, a pending investigation, or matters of public welfare.”   Id. at 756.   Its purposes are described in Quintana:

The knock and talk procedure is a helpful and commonly used police tool, often applied in situations as mundane as looking for a lost pet or to ask if the homeowner has seen a suspicious person in the neighborhood.   In general, an officer knocking on the door to ask for citizen assistance is appreciated and the citizens are cooperative.  (Internal footnote omitted).

Id. at 757.   The procedure, however, can be problematic when officers are not looking for assistance from the resident, but rather are using the procedure to look for evidence of wrongdoing by the resident and approach the home, as is the case here, to ask for consent to search.

The concept of curtilage began in common law.   It extends the same protection that a person has to the inside of the home to the area immediately surrounding the home.  U.S. v. Dunn, 480 U.S. 294, 107 S.Ct. 1134, 94 L.Ed.2d 326, 55 USLW 4251 (1987).   Because police officers must walk onto the property and up to the house itself to reach the door to knock, as opposed to looking from the street or a public sidewalk, the part that is considered the residence's curtilage becomes relevant.   The United States Supreme Court recognized earlier that the Fourth Amendment protects the curtilage of a house, and the curtilage extends to the area that an individual would reasonably expect to be treated as the home itself.  Oliver v. U.S., 466 U.S. 170, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984).

In Quintana, the Kentucky Supreme Court observed that Dunn established four analytical, non-exclusive factors which should be applied to solve curtilage questions.   These factors are the proximity of the area to the home, whether the area is included in an enclosure with the home, how the area is used, and the steps the resident has taken to prevent observation from the people passing by.   The Supreme Court then commented that “[b]ecause there is no expectation of privacy for anything that can be observed from outside the curtilage, either by sight or other senses, the focus of a knock and talk analysis must be on the right of access to private property within the curtilage.”  Quintana, 276 S.W.3d at 757.   Given these parameters, we examine these factors as they relate to Johnson's residence.

Testimony and the Commonwealth's Exhibits One, Two, and Three, which were photographs of the yard surrounding Johnson's residence, showed that the property was located on a corner lot.   Its location on the corner left the structure and its yard more exposed and accessible to the public.   In fact, the back yard, back porch, and back door are in full view from the street and the sidewalk by the house.   Although a lattice fence is found next to the side of the house by the back porch, the open design does not block a visual inspection of the back yard, back porch, or back door.   The driveway on the side of the home leads up to the gate, back porch, and back door.   In terms of the front door, the photographs depict no sidewalk and no worn path to the front door.   Indeed, the closest path to the house when someone parks in the driveway is the back door.   Finally, Officer King testified that at the time he used a “knock and talk” procedure, the back gate was open.

Applying the four factors in Dunn, we observe that the back door was not enclosed, was used for access into the residence, was readily observable from the street and sidewalk because it was on a corner lot, and was not obscured by the lattice fence.   So, given the U.S. Supreme Court's comment, cited above, we do not find that parties living in that residence, including Johnson, could have any expectation of privacy because the back door in question was easily viewed and accessible from a public area.   Therefore, the officers involved in the “knock and talk” procedure correctly interpreted the location of the back door as one in which they had the right of access to private property within the curtilage.   See Quintana, 276 S.W.3d at 757.

Thus, we believe that the trial judge correctly applied the law to the facts of this case and had substantial evidence to support the findings and the decision.   From the bench at the suppression hearing, the trial judge noted on the record that the layout of the house on the corner lot had an impact on the decision because an appearance of two accesses to the home are readily available to not only the public but also the homeowner.   Since Officer King, upon making contact, received permission from Johnson to search the home's basement and later received permission from the homeowner to search the remainder of the home, the trial court properly denied the motion to suppress the evidence.

Johnson's second contention is that the trial court erred in denying his motion to suppress the allegedly improper photo lineup.   The facts concerning the photo lineup are stated above.   In essence, the police officers used a computer program and pictures from the Corrections' web site to put together six photos, one of which was Johnson.   The officers then showed the photo lineup to three witnesses following standard protocol.   The lineup was shown to each witness individually.   The first witness was unable to identify Johnson from the lineup, the second witness identified him from the lineup, and the third witness narrowed the photos to two, one of which was Johnson, but made no further identification.

In King v. Com., 142 S.W.3d 645, 649 (Ky.2004), the Kentucky Supreme court noted that

[t]he determination of whether identification testimony violates a defendant's due process rights involves a two-step process.  Dillingham v. Com., 995 S.W.2d 377, 383 (Ky.1999) quoting Thigpen v. Cory, 804 F.2d 893, 895 (6th Cir.1986), cert. denied sub nom.  Foltz v. Thigpen, 482 U.S. 918, 107 S.Ct. 3196, 96 L.Ed.2d 683 (1987);  and Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968).  “First, the court examines the pre-identification encounters to determine whether they were unduly suggestive.”  Id. If not, the analysis ends and the identification testimony is allowed.  “If so, ‘the identification may still be admissible if under the totality of the circumstances the identification was reliable even though the [identification] procedure was suggestive.’ ”   Id. quoting Stewart v. Duckworth, 93 F.3d 262, 265 (7th Cir.1996) and Neil, [409 U.S. 188 at 199].

To determine whether, under the totality of the circumstances, the identification was reliable requires consideration of five factors enumerated by the United States Supreme Court in Neil. The five factors are:  1) the opportunity of the witness to view the criminal at the time of the crime;  2) the witness' degree of attention;  3) the accuracy of his prior description of the criminal;  4) the level of certainty demonstrated at the confrontation;  and 5) the time between the crime and confrontation.  Neil, 409 U.S. at 199-200.   The Kentucky Supreme Court previously adopted these factors in Savage v. Com. 920 S.W.2d 512 (Ky.1995).

Here, Johnson does not attack the photos used or provide any evidence of police misconduct that would show that they acted impermissibly to suggest his identification.   The fact that one witness could identify him from the photos as opposed to the other two witnesses does not make the photo lineup improper.

With regard to the five factors necessary to review the totality of the circumstances, we note that the witness who identified him from the photo lineup saw the suspect on his bicycle, at the front door of the burglarized home, and actually spoke with him as he rode the bicycle away.   Therefore, she had plenty of opportunity to view Johnson, she paid attention, as attested by her description of the events, her description at the time of the incident was accurate, she did not doubt her identification, and she did not have an extended period of time between the incident and the identification.   Finally, Johnson suggests that the only reason that Officer May was able to create the lineup was because the police violated his rights in the “knock and talk” procedure.   Clearly, we have determined that the “knock and talk” procedure was legally executed as well as the following search of the residence.   Johnson himself consented to the initial search.

Hence, based upon the record and lack of evidence showing improper or suggestible behavior by the police officers, we do not find that the trial court erred in denying Johnson's motion to suppress the photo identification.   In sum, no evidence was presented that demonstrated that the lineup was improper or caused a substantial likelihood that Johnson would be misidentified.   Therefore, we concur with the trial court and the motions to suppress were properly denied.

Accordingly, we affirm the judgment of the Fayette Circuit Court.

ALL CONCUR.

CLAYTON, JUDGE: