RODNEY LEE BECKHAM v. COMMONWEALTH OF KENTUCKY (2011)

NOT TO BE PUBLISHED

REVERSING AND REMANDING

Rodney L. Beckham appeals from a Boone Circuit Court judgment entered upon a conditional guilty plea convicting him of complicity to trafficking in marijuana, and complicity to possession of drug paraphernalia.   The issue on appeal is whether his fourth amendment rights were violated when he was detained about one mile from his home by police who had a valid search warrant for his residence.

On August 11, 2008, Agent Michael Kappes of the Boone County Sheriff's Department and the Northern Kentucky Drug Strike Force obtained a search warrant for Beckham's mobile home.   The warrant also authorized the search of a white Cadillac registered to Beckham, as well as a search of Beckham's person and that of his associate, Kevin Reynolds.

After obtaining the warrant, Kappes went to Beckham's residence where he observed two men working at the rear of the mobile home.   He consulted with other agents about how to execute the warrant.   They decided that Kappes and a fellow agent would park down the street and approach the two men at the back of the trailer.   Meanwhile, other agents in a vehicle would move in to secure the residence from the front.

As Kappes approached the back of the mobile home, one of the two men cut the corner and went around to the front of the residence.   When Kappes asked the other man if Rodney was there, he replied, “He just left.”   Kappes observed a pickup truck leaving the scene.   The pickup truck was not listed on the search warrant.   He tried unsuccessfully to contact the other agents in the nearby vehicle.   Detective Derrick Boyd, who was in the agents' vehicle, also saw the truck pulling away and recognized Beckham as he drove past them.   Another agent immediately radioed a nearby deputy sheriff in a marked cruiser to make a stop.   Beckham was stopped by the deputy sheriff about a mile or less from the residence and Kappes immediately went to the location.

When Kappes arrived, Beckham was outside his vehicle.   Kappes told him about the search warrant, gave him a Miranda warning and told him that they were going to take him back to the residence.   Beckham was asked if he had narcotics on him and he told the deputy sheriff where a baggie of marijuana was located.   The deputy searched Beckham and found a large baggie of marijuana, rolling papers, a cell phone and $2,500.   He was placed under arrest and taken back to the residence.   The search warrant for his residence was executed and additional contraband was discovered in the home.   Beckham was indicted on several drug-related charges.

Beckham filed a motion to suppress the evidence seized as a result of his arrest and the search of his residence.   Kappes was the only witness at the suppression hearing, at which Beckham's attorney argued that the search warrant was not supported by probable cause.   The Commonwealth argued that the warrant was valid and that the detention of Beckham was authorized under Parks v. Commonwealth, 192 S.W.3d 318 (Ky.2006).   The trial court ruled that the warrant was supported by probable cause and that the stop was proper because Beckham was detained in close proximity to his home immediately after he left the residence.   Beckham was appointed new counsel who filed a motion to reconsider, arguing that the stop of Beckham as he drove from his residence was improper under Parks.   The trial court denied the motion.   Beckham subsequently entered a guilty plea conditioned on his right to appeal the court's denial of his suppression motion.   He received concurrent sentences of six and five years respectively for complicity to trafficking in marijuana, more than eight ounces, less than five pounds, second or subsequent offense;  and complicity to possession of drug paraphernalia, second offense.   This appeal followed.

An appellate court's standard of review of the trial court's decision on a motion to suppress requires that we first determine whether the trial court's findings of fact are supported by substantial evidence.   If they are, then they are conclusive.   Based on those findings of fact, we must then 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.

Commonwealth v. Neal, 84 S.W.3d 920, 923 (Ky.App.2002) (footnotes omitted).

As the Commonwealth has conceded, the trial court's factual findings contain some minor inaccuracies.   These errors do not affect our de novo review of the main legal issue, however, which is whether the officers properly detained Beckham as he drove away from his residence prior to the execution of the search warrant.

The general rule is that “a warrant to search premises does not authorize the off-premises detention of the owner or occupant of the premises to be searched.”  Parks, 192 S.W.3d at 331 citing United States v. Tate, 694 F.2d 1217, 1223 (9th Cir.1982), vacated on other grounds, 468 U.S. 1206, 104 S.Ct. 3575, 82 L.Ed.2d 873 (1984).   A limited exception to this general rule was established by the United States Supreme Court in Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981), which stated that “a warrant to search [a house] for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted.”  Id. at 705, 101 S.Ct. at 2595 (footnotes omitted).   The Summers court identified three interests which could justify the detention of an occupant:

Most obvious is the legitimate law enforcement interest in preventing flight in the event that incriminating evidence is found.   Less obvious, but sometimes of greater importance, is the interest in minimizing the risk of harm to the officers.   Although no special danger to the police is suggested by the evidence in this record, the execution of a warrant to search for narcotics is the kind of transaction that may give rise to sudden violence or frantic efforts to conceal or destroy evidence.   The risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation.   Finally, the orderly completion of the search may be facilitated if the occupants of the premises are present.   Their self-interest may induce them to open locked doors or locked containers to avoid the use of force that is not only damaging to property but may also delay the completion of the task at hand.

Id. at 702–03, 101 S.Ct. at 2594 (footnote and citation omitted).

The Kentucky Supreme Court discussed and applied the Summers test in Parks, a case in which the police, while awaiting the issuance of a search warrant for a mobile home, observed Parks, who was neither the owner nor a resident of the home, drive away with Morris and Blakeman, the two individuals named in the warrant.  192 S.W.3d at 329.   The police tailed the vehicle for about five miles and executed a stop only when they learned that the warrant had finally been issued.  Id. The Parks court ruled that the stop was impermissible in part because it occurred too far from the residence that was the subject of the search warrant, noting that in “[a]pplying the Summers reasoning, lower courts have upheld off-premises detentions of owner/occupants of premises for which search warrants have been issued only when the owner/occupant was in close proximity to the premises to be searched.”  Id. at 332.   The Court also found no evidence that Blakeman and Morris were flight risks since “they had no way of knowing that the warrant had been issued – they had already departed the residence before the warrant was issued” and that, “because of their absence, they posed no danger to the officers conducting the search.”  Id. at 334.   The Court also concluded that the presence of Blakeman and Morris was unnecessary to facilitate an orderly completion of the search.  Id.

Beckham argues that his detention similarly did not fall within the Summers exception because (1) there was no proof that Beckham was a flight risk or that he fled the residence because he was aware that a warrant had been issued;  (2) he did not pose a safety risk to the officers or a potential threat to any evidence because he was not on the premises and was in fact heading away from the residence;  and (3) he was not needed to facilitate the search because the officers were admitted into the mobile home by a female occupant.

We agree.   We can find no specific facts in the trial court's findings or in the record of the suppression hearing that would justify Beckham's detention under any of the three Summers factors:  Kappes's testimony did not state that Beckham was fleeing;  that he posed a safety risk;  or that he was needed to assist in the search of the residence.   Kappes may well have sought to detain Beckham for these reasons, but these facts were simply not elicited at the hearing.

“[T]the fruits of even a consensual search must be suppressed if the search was conducted pursuant to an unlawful stop or detention.”  Id. 330, citing United States v. Chavez–Villarreal, 3 F.3d 124, 127 (5th Cir.1993).   Therefore, Beckham's convictions are reversed, but only insofar as they were founded on the evidence seized as a result of the improper stop.   The case is remanded to the Boone Circuit Court for further proceedings in accordance with this opinion.

ALL CONCUR.

ISAAC, SENIOR JUDGE: