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Court of Appeals of Kentucky.


NO. 2010-CA-000469-MR

Decided: March 11, 2011

BEFORE:  CAPERTON, COMBS, AND KELLER, JUDGES. BRIEF FOR APPELLANT:  Jack Conway Attorney General of Kentucky Samuel J. Floyd, Jr. Special Assistant Attorney General Louisville, Kentucky BRIEF FOR APPELLEE:  Rob Eggert Louisville, Kentucky



The Commonwealth appeals the February 11, 2010, Opinion and Order of the Jefferson Circuit Court granting a motion filed by Appellee, Victor Jones, to suppress evidence of a stolen handgun found in his possession during a consent search conducted during a routine probation and parole home visit on March 26, 2009.   Having reviewed the record, the arguments of the parties, and the applicable law, we reverse and remand.

On May 14, 2009, the Jefferson County Grand Jury handed down an indictment charging Jones with possession of a handgun by a convicted felon, receiving a stolen firearm, and with being a first-degree persistent felon.   Thereafter, on May 29, 2009, Jones filed a “Motion to Suppress Evidence as Fruit of an Unconstitutional Investigative Stop.” Double A suppression hearing was held on November 6, 2009, followed by the submission of memoranda from Jones and the Commonwealth.

During the course of the hearing, testimony established that on March 26, 2009, Officer Michael Wilcoxson, of the Louisville Office of Probation and Parole, conducted a series of home visits with his assigned clients.   Wilcoxson was accompanied on these visits by four officers from the Flex Unit of the Louisville Division of Police, as well as by another probation officer.   Around 9:30 p.m., the officers arrived at Jones's residence.   Jones was on probation at the time and was present at the home along with his mother and girlfriend.   Jones admitted the officers to his residence.

Jones asserts that upon arrival, Officer Wilcoxson had no reason to suspect that Jones was engaged in illegal activity, but nevertheless asked to search his room Double .   Jones advised Officer Wilcoxson that he could look wherever he wanted.   The officers then conducted a search of Jones's room but did not find anything incriminating.   Thereafter, the officers proceeded to search the entire house. Double Finding nothing incriminating in the residence, Officer Wilcoxson asked Jones if the officers could search the red Camaro parked outside.   Jones produced the keys to the vehicle and it was searched by the police.   A handgun was found under the front seat of the vehicle and Jones was charged with possession of a handgun by a convicted felon.

During the course of the suppression hearing, Officer Wilcoxson testified that when he first met with Jones in January of 2009, he explained to Jones that he would be coming to his residence periodically and would be accompanied by other police officers for safety.   Officer Wilcoxson testified that if Jones refused to admit him to the residence on such occasions, the visit would be considered a violation of the terms of his probation and would be reported to the sentencing court for a revocation proceeding.   Wilcoxson further stated that prior to his visit to Jones's house on the evening of March 26, 2009, he had no evidence to suggest that Jones was engaged in any type of illegal activity.

Officer Wilcoxson denied that the “routine home visit” to Jones's residence was a pretext to search his home, but did acknowledge that as soon as Jones ushered him inside that he asked Jones if he could search his room.   Officer Wilcoxson stated that Jones's response to his request was to “look wherever you like, I have nothing to hide.”   Officer Wilcoxson further testified that during the course of his extended search of the residence, he learned that Jones's mother had just purchased him a car.   The officer stated that during such visits he routinely requested to search a probationer's vehicle.   On this occasion he asked Jones for permission to search Jones's car.   Officer Wilcoxson testified that Jones consented to this search and provided him with the keys.   Jones's mother, Rosalind Grant, also testified, and stated that she did not recall anyone granting permission for the officers to search the car.   She testified that she recalled the officers taking the car keys from the top of the television set without permission.

In its opinion and order suppressing the seizure of the gun from the vehicle, the circuit court resolved the factual dispute over whether permission had been granted to search the car by finding that the evidence indicated that Jones had granted permission for the search.   This finding by the court is consistent with Wilcoxson's testimony.   After making this finding, the court held that, “A home visit conducted by a probation officer is not, nor was it ever intended to be, the functional equivalent of a search of a probationer's home.   The former requires no justification or provocation whatsoever.   The latter must be based on reasonable suspicion that the probationer is engaged in criminal activity.”

The court went on to find that, pursuant to Wilcoxson's testimony, no reasonable suspicion existed for a search of Jones's residence, and that the Commonwealth bore the burden of proving that an exception to the search warrant requirement justified the search.   The court also found that under the totality of the circumstances, Jones's consent to the search could not be considered to have been freely and voluntarily given, as his refusal to admit the officers for a home visit would have been a violation of his probation.   The court granted Jones's motion to suppress, and concluded, in an opinion and order entered on February 11, 2010, that:

Officer Wilcoxson was conducting the ‘home visit’ cum ‘consent search’ solely in his capacity as the defendant's probation officer, and ostensibly for the limited purpose of determining if the defendant was in compliance with the terms and conditions of his probation.   It follows then, that given the aforementioned, inherently coercive nature of the interaction, the defendant's consent should be limited to purposes for which it was sought.  (TR 71-78).

It is from that order that the Commonwealth now appeals to this Court.

In reviewing the arguments of the parties, we note first that according to the law of this Commonwealth, the trial court's findings of fact regarding the admissibility of evidence seized during a search are deemed conclusive if they are supported by substantial evidence.  RCr 9.78, Davis v. Commonwealth, 795 S.W.2d 942, 955 (Ky.1990) Double .   If it is determined that the trial court's factual findings are supported by substantial evidence, then the appellate court will review the trial court's application of those facts to the law de novo, to determine whether the decision is correct as a matter of law.   Commonwealth v. Neal, 84 S.W.3d 920, 923 (Ky.App.2002).   As its sole basis for appeal, the Commonwealth argued that the circuit court erred in granting the motion to suppress because its application of the law to the facts of this case was erroneous.   While the Commonwealth acknowledges that the circuit court's findings of fact were essentially accurate and supported by substantial evidence, it asserts that the court's application of the law to those facts was incorrect.   Specifically, it argues that the court's legal conclusion that a probationer's consent to a search is “deemed compelled,” and “inherently coercive,” and that any evidence seized is inadmissible in a criminal prosecution absent proof that the probationer “knowingly and voluntarily consented to the search for law enforcement as opposed to probation enforcement purposes,” is without legal support.

The Commonwealth argues that the circuit court had no authority for its conclusion that being on probation rendered any consent given by a probationer to be inherently coerced.   The Commonwealth also argues that the court's attempt to draw a distinction between consent for “law enforcement” purposes and consent for “probation purposes” is without legal support, and is a distinction without a difference.   The Commonwealth thus asserts that if a probationer is faced with a “risk of revocation,” this is a risk which he or she voluntarily assumed by accepting the terms of probation and that it is nonsensical to conclude that by having made such an agreement the probationer immunizes himself from criminal prosecution with regard to contraband found in his possession as a result of such a search.

In response, Jones asserts his Fourth Amendment right under the United States Constitution, and directs this Court to holdings such as that of Coleman v. Commonwealth, 100 S.W.3d 745, 749 (Ky.2002), which establish that physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.   He further argues that a warrantless search of a probationer's home is reasonable under the Fourth Amendment only when the search is supported by reasonable suspicion and authorized by a condition of probation.  Id. at 753.   Jones argues that Officer Wilcoxson had no reasonable suspicion to search his home, and that he used the “routine home visit” as a pretext for a search.   Jones likens his case to that of United States v. Henry, 429 F.3d 603 (6 th Cir.2005) in arguing that Officer Wilcoxson was presumably only searching his home for proof of his residence at that address and not for contraband.   We disagree with this assertion.

Having reviewed the record and applicable law, we are in agreement with the Commonwealth on this issue.   Certainly, one purpose, and perhaps the primary purpose, of probation supervision is to deter further criminal activity on the part of the probationer.   See Griffin v. Wisconsin, 483 U.S. 868, 875, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987).   We believe that the approach taken by the circuit court here, which essentially excludes any evidence of criminal conduct uncovered in a consent search simply because the probationer faces the possibility that his probation might be revoked, does not serve the fundamental purposes of probation.   Indeed, we believe that the fundamental purposes of probation, namely to deter further criminal behavior, are undermined by such an approach.

Our law is clear that probation is a privilege rather than a right.  Brown v. Commonwealth, 564 S.W.2d 21 (Ky.App.1977).   While the trial court found that Jones's situation was “somewhat analogous to that of a probationer who, having been charged with a new offense, must decide whether to exercise his Fifth Amendment right not to testify at his pre-trial revocation hearing,” we are compelled to disagree.   Underlying the prohibition against the introduction of a defendant's testimony at a suppression hearing as substantive evidence in his criminal trial is the recognition that it is “intolerable that one constitutional right should have to be surrendered in order to assert another.”  Hayes v. Commonwealth, 175 S.W.3d 574, 595-96 (Ky.2005), citing Simmons v. United States, 390 U.S. 377, 390, 394, 88 S.Ct. 967, 974, 976, 19 L.Ed .2d 1247 (1968) and Shull v. Commonwealth, 475 S.W.2d 469, 472 (Ky.1971). Double

Such is not the situation in the matter sub judice.   While the Fourth Amendment right not to consent to a search is certainly present, it is balanced not with another constitutional right but with the privilege of probation.   Consistently, our courts have held that there is no constitutional right to probation.   See Land v. Commonwealth, 986 S.W.2d 440, 442 (Ky.1999);  Tiryung v. Commonwealth, 717 S.W.2d 503 (Ky.App.1986).   Thus, in the instant case, Jones was not forced into the “inherently coercive” position of having to surrender one constitutional right to assert another.

Stated simply, whether consent to search was voluntarily given is a question of fact to be determined by a preponderance of the evidence from the totality of all the circumstances.  Cook v. Commonwealth, 826 S.W.2d 329 (Ky.1992).   In the matter sub judice, Jones provided consent that was both express and expansive, stating, “You can look anywhere you want.   I've got nothing to hide.”   Indeed, the only issue of factual dispute concerning consent was whether Jones consented to the search of his vehicle.   The trial court, having reviewed the conflicting evidence on this issue, concluded that he did.   Accordingly, the only remaining issue was whether or not that consent was coerced.

Certainly, it is reasonable to expect that probationers understand that a condition of probation is that they not engage in any further criminal behavior.   Thus, it is likewise reasonable to assume that probationers understand that the discovery of same during a routine home visit could result not only in a revocation of probation, but in additional criminal charges.   Indeed, it is unreasonable to assume that a probationer would actually assume that being on probation provides immunity from prosecution if new offenses are committed during the probationary term.

Accordingly, we disagree with the circuit court that the conditions under which Jones agreed to the search were “inherently coercive.”   While Jones may have felt “compelled” to allow the search so as not to violate the conditions of his probation, this was an obligation voluntarily accepted by Jones when he accepted the terms of probation.   Indeed, as both our United States Supreme Court and Kentucky courts have held, probationers do not enjoy the absolute liberty to which every citizen is entitled but instead enjoy only a conditional liberty which is dependent upon observation of special restrictions.   See Griffin v. Wisconsin, 483 U.S. 868, 874, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987), and Wilfong v. Commonwealth, 175 S.W.3d 84, 97 (Ky.App.2004).

In the matter sub judice, the circuit court found that Jones consented to the search of his vehicle.   For the aforementioned reasons, we see no reason to find that such consent was compelled, coerced, or involuntary.   Accordingly, we are compelled to reverse.   In reversing, we briefly address Jones's arguments likening his case to that of Henry, supra.   In Henry, unlike in the matter sub judice, doubt had been raised as to Henry's actual residence and probation officers accompanied Henry from the probation office to his purported residence exclusively for the purpose of verifying his residence.   In that context, the court found that evidence found in a bag in Henry's closet was inadmissible because “the scope of Henry's consent did not include the search of his bag.”  Henry, at 615. Double Thus, Henry, unlike the matter sub judice, involved a situation addressing the scope of consent, rather than the voluntariness of consent.   Accordingly, we do not find it controlling.

Wherefore, for the foregoing reasons, we hereby reverse the February 11, 2010, opinion and order of the Jefferson Circuit Court, and remand this matter for additional proceedings consistent with this opinion.