RANDY BRUMLEY APPELLANT v. APPELLEE

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Court of Appeals of Kentucky.

RANDY BRUMLEY APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

NO. 2010–CA–001617–MR

Decided: February 24, 2012

BEFORE:  COMBS, KELLER, AND STUMBO, JUDGES. BRIEF FOR APPELLANT:  Emily Holt Rhorer Assistant Public Advocate Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE:  Jack Conway Attorney General of Kentucky Christian K.R. Miller Assistant Attorney General Frankfort, Kentucky

NOT TO BE PUBLISHED

OPINIONAFFIRMING

Randy Brumley appeals from the judgment of the Clinton Circuit Court which found him guilty of manufacturing methamphetamine and possession of drug paraphernalia.   After reviewing the record and the law, we affirm his conviction.

In the spring of 2009, Clinton County Sheriff Ricky Riddle made several unsuccessful attempts to execute a felony arrest warrant on Brumley.   The warrant was not for a search of Brumley's property.   On May 29, Sheriff Riddle received a tip that Brumley was at home.   Accompanied by several other law enforcement officers, Sheriff Riddle arrived at Brumley's home around eleven o'clock at night.   Brumley cooperated by stepping out of his residence.   As Sheriff Riddle went through the process of arresting Brumley, the officers heard a rustling inside the trailer and discovered that the shuffling sound that they had heard was Brumley's dog.

However, once inside the trailer, the officers observed—in plain sight—several components used in the manufacture of methamphetamine.   As a result, Brumley was charged with manufacturing methamphetamine.   He was also charged with possession of drug paraphernalia because Sheriff Riddle found a pipe in Brumley's pocket at the time of his arrest.

Prior to trial, Brumley filed a motion to suppress the evidence seized during the search of his house, arguing that the search was illegal.   The trial court denied the motion on November 24, 2009.   He filed a second motion to suppress evidence, alleging that it lacked a proper chain of custody.   The court denied that motion on March 31, 2010.   The evidence was presented at the jury trial, which was held on July 16, 2010.   The jury found Brumley guilty of both charges.   He received a sentence of ten-years' incarceration.   This appeal follows.

Brumley's appeal concerns only the motions to suppress.   He does not allege that any error occurred during the trial.

Our standard of review is twofold.   We will not disturb the trial court's findings of fact if they are supported by substantial evidence.   However, we apply a de novo review to the trial court's legal conclusions.  Commonwealth v. Marr, 250 S.W.3d 624, 626 (Ky.2008).

Brumley first contends that the evidence collected at his house was improperly obtained without a warrant and was not, therefore, admissible at trial.   We disagree.

The Fourth Amendment of the United States Constitution and Section 10 of Kentucky's Constitution provide protection against unreasonable searches and seizures.   A basic tenet underlying that safeguard is that evidence obtained in an illegal or unreasonable search is not admissible in court.  Wilson v. Commonwealth, 37 S.W.3d 745, 748 (Ky.2001).   See also Mapp v. Ohio, 367 U.S. 643 (1961).   A search without a warrant is deemed unreasonable per se unless exigent circumstances are present.  Commonwealth v. McManus, 107 S.W.3d 175, 177 (Ky.2003).

Among the exigent circumstances that justify a warrantless search are situations in which “it is necessary to prevent harm to arresting officers.”   Taylor v. Commonwealth, 577 S.W.2d 46, 48 (Ky.App.1979).   In order for a warrantless search to be proper under this exception, the exigent circumstances must be accompanied by probable cause.  Southers v. Commonwealth, 210 S.W.3d 173, 176–77 (Ky.App.2006).  “Probable cause involves whether the known facts provide reasonable grounds or a fair probability that a circumstance exists supported by less than prima facie proof but more than mere suspicion.”   Baltimore v. Commonwealth, 119 S.W.3d 532, 538 (Ky.App.2003).

In this case, the trial court found that the facts provided police officers with reason to believe that they were at risk of being in danger.   The officers had received information that guns were in the residence.   It was not unreasonable for them to suspect another person might be armed inside the trailer when they heard the movement.   They had surrounded the trailer anticipating the possibility that another person might exit.   Brumley argues that it was obvious that no one else was inside the trailer because only he answered the door when the police knocked.   We do not agree.   Many people do not answer knocks at the door.   Additionally, the arrest took place late at night;  other occupants could have been sleeping.   Although the rustling sound was caused by a dog, guns were indeed discovered.   It was not unreasonable for police to enter the trailer in order to insure their safety.   The trial court did not err in its findings of fact and conclusions of law on this point.

Brumley's second argument is that the trial court erred in dismissing his second motion to suppress evidence, which was based on a claim that the evidence lacked a proper chain of custody.   The Commonwealth argues that the error was not properly preserved for appeal.   Nonetheless, that allegation of error was the subject of a suppression hearing, and we shall address its merits.

Brumley's claim of lack of proper chain of custody concerns photographs of five HCl generators – soda bottles that were modified to produce hydrogen chloride gas.   At the suppression hearing, a Kentucky State Police trooper testified that she and another trooper had been the first officers to enter the trailer.   After they determined that no people were inside, they exited and informed Sheriff Riddle that they had observed components of a methamphetamine lab, including the HCl generators.   Sheriff Riddle oversaw collection and inventory of items for evidence.   Sheriff Riddle testified that there was a gap of approximately ten minutes between the time the KSP troopers observed the HCl generators and the time that he entered the trailer.   Brumley alleges that this ten-minute gap was a break in the chain of custody sufficient to render the evidence inadmissible.   We disagree.

Chain of custody is a term of art in Fourth Amendment analysis utilized to describe temporal and spatial control of an object of evidence in order to assure its authenticity and integrity.  Thomas v. Commonwealth, 153 S.W.3d 772, 781 (Ky.2004).   Gaps in an object's chain of custody go to weight rather than admissibility.   Gaps can be overcome by “a reasonable probability that it has not been altered in any material respect.”  Id. (Internal citations omitted).   The proof of chain of custody for physical items “which are clearly identifiable and distinguishable” is not as stringent as the proof for ephemeral substances such as human blood or tissue.  Rabovsky v. Commonwealth, 973 S.W.2d 6, 8 (Ky.1998).

In this case, the items at issue were clearly identifiable and distinguishable.   They were modified soda bottles that were sitting on the kitchen stove when the first officers entered the trailer.   Brumley has not offered any evidence to support the suggestion that they were altered in any way during the ten-minute period when no one was in the trailer.   The deputy who logged the inventory testified that the photographs were those of the HCl generators taken at the scene.   While it appears that someone may have come back and attempted to burn some items after the first team of officers left but before the hazardous materials team arrived the next day, Brumley's argument is only related to the ten minutes involved at the time of his arrest.   We are not persuaded that the court committed error by admitting photographs of the bottles into evidence.   The jury was made aware of Brumley's allegation and was properly permitted to determine the weight of the evidence.

We find no error in the admission of the evidence discovered inside Brumley's residence.   Therefore, we affirm the Clinton Circuit Court.

ALL CONCUR.

COMBS, JUDGE: