APPELLANT v. APPELLEE

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Court of Appeals of Kentucky.

willie johnson APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

NO. 2011–CA–001963–mr

Decided: May 31, 2013

BEFORE:  CLAYTON, STUMBO AND THOMPSON, JUDGES. BRIEF FOR APPELLANT:  Steve Mirkin Elizabethtown, Kentucky BRIEF FOR APPELLEE:  Jack Conway Attorney General of Kentucky David B. Abner Assistant Attorney General Frankfort, Kentucky

NOT TO BE PUBLISHED

OPINIONAFFIRMING IN PART, REVERSING IN PART AND REMANDING

Willie Johnson challenges the denial of his motion to suppress based upon lack of specificity in a search warrant authorizing the search of any and all persons present during the execution of the warrant.   He also challenges the Commonwealth's refusal to grant him a deferred prosecution under KRS 218A.1415.

On November 19, 2010, a search warrant was issued for a suspected methamphetamine house owned by James Ballard.   The warrant was very specific as to the description of the house to be searched and personal property to be seized, but used catch-all language to provide for a search “on the person or persons of:  any and all present found inside residence during the execution of the search warrant.”

The affidavit in support of the warrant by Detective John D. Stroop indicated that video taken by a confidential informant conducting controlled buys from Ballard inside the house showed on one occasion two other subjects using what appeared to be methamphetamine and marijuana and, on another occasion, one male subject smoking what appeared to be methamphetamine.   The affidavit provided no identifying description of any person besides Ballard.

When the officers approached the house to execute the warrant, two men ran out of the house, were ordered to the ground and immediately handcuffed.   They were identified as James Ballard and Willie Johnson.   Stroop recognized Johnson as one of the men on the video.

Trooper Seth Payne frisked Johnson and emptied his pockets finding keys, a cigarette pack and a cell phone.   Later, Payne opened the cigarette pack and found a small bag containing what looked like methamphetamine.   Testing confirmed that the bag contained .343 grams of methamphetamine.   Payne testified that until the discovery of the methamphetamine, Johnson was only being frisked as a protective measure and was not under arrest.

Johnson was indicted for first-degree possession of a controlled substance.   He filed a motion to suppress that was denied by the circuit court.   He filed an application for deferred prosecution that was denied by the Commonwealth.   He then entered a conditional guilty plea reserving the right to appeal these denials.   Johnson was sentenced to one year imprisonment, probated for three years.

The circuit court denied the motion to suppress because it found substantial evidence that other individuals were involved in the criminal activities in the house.   Johnson was described without identification in the affidavit as smoking methamphetamine and Stroop recognized Johnson as being the individual on the video who was smoking methamphetamine.   Accordingly, the circuit court concluded that this was sufficient to allow a valid search of Johnson under the warrant.

Because the circuit court's findings of facts are uncontested, we review whether the circuit court's denial of the motion to suppress was correct as a matter of law.  Matthews v. Commonwealth, 371 S.W.3d 743, 747 (Ky.App.2011).   The law is clear that Johnson could properly be detained as being in the immediate vicinity of the home when the search warrant was executed, whether or not he was named on the search warrant.  Bailey v. United States, 133 S.Ct. 1031, 1042–1043, 185 L.Ed.2d 19 (2013).   However, we conclude that the search warrant was invalid as to Johnson for lack of specificity and, therefore, his search beyond a protective pat down was improper for lack of probable cause.

The Fourth Amendment to the United States Constitution and Section Ten of the Kentucky Constitution require that persons, places and things to be searched or seized must be reasonably identified.  Johantgen v. Commonwealth, 571 S.W.2d 110, 111–112 (Ky.App.1978);  McMahan's Adm'x v. Draffen, 242 Ky. 785, 47 S.W.2d 716, 718 (1932).   These constitutional provisions were designed to avoid the evils of indiscriminate general searches that needlessly invade privacy rights.  Commonwealth v. Appleby, 586 S.W.2d 266, 269 (Ky.App.1978).

“The controlling constitutional requirement is specificity of description.”   Johantgen, 571 S.W.2d at 112.   When specificity is observed, it avoids “cloaking the police with selective discretion in determining what may be searched[.]”  Commonwealth v. Smith, 898 S.W.2d 496, 500 (Ky.App.1995).   A search warrant which fails to contain a reasonably specific description of the thing to be searched or seized is constitutionally defective.  Williams v. Commonwealth, 261 S.W.2d 416, 417 (Ky.1953);  Crum v. Commonwealth, 223 S.W.3d 109, 112 (Ky.2007).

Persons cannot be searched pursuant to a warrant unless they are specifically named or described.   In Johantgen, the search warrant allowed for the search of Daryl Driver, his car, his residence and “any other person present believed to be involved in the illegal use of, possession of, or trafficking in controlled substances.”  Johantgen, 571 S.W.2d at 111.   This Court determined the warrant could not be used to justify the search of Jack Johantgen, who was in the car with Driver when the warrant was executed, because the only specific description in the warrant and supporting affidavit was of Driver and Johantgen was not mentioned in any way.  Id. at 112.   Therefore, while a frisk was justified under the circumstances, the warrant could not justify the search in which a police officer removed a packet from Johantgen's pocket which turned out to contain heroin.  Id.

In Smith, the Court confirmed that Johantgen held “an ‘all persons present’ clause as invalid for lack of specificity in the description of the persons to be searched.”  Smith, 898 S.W.2d at 502.   The Court then proceeded to determine that similar warrant language of “any other person(s) present who may conceal or destroy evidence” is defective and will cause that section of a warrant to be invalid for lack of specificity.  Id. at 502–503.

While Stroop perhaps had sufficient evidence to adequately identify Johnson with specificity in the affidavit and search warrant, either through a physical description or picture taken from the video, he failed to do so.   Anyone found at Ballard's residence, no matter how innocent, could have been searched under the “all persons present” clause of this warrant.   Stroop's after-the-fact testimony linking Johnson to the informant's video cannot correct the facial invalidity of the search warrant.

There is no justification for allowing the search of Johnson's cigarette pack.   The methamphetamine contained within it was not discovered as a result of a “plain feel” during the course of a protective pat-down.   Johnson was not arrested, so the search cannot be justified as one incident to arrest.   Therefore, the methamphetamine discovered on Johnson's person must be suppressed as the product of an illegal search.

Johnson's challenge to the Commonwealth's refusal to grant him a deferred prosecution under KRS 218A.14151 is without merit.   The circuit court is without authority to question the prosecutor's motives for rejecting the request for a deferred prosecution.   To construe KRS 218A.14151 otherwise would render the statute subject to constitutional attack for violating separation of powers.   See Flynt v. Commonwealth, 105 S.W.3d 415, 423–424 (Ky.2003).

Accordingly, we reverse the Hardin Circuit Court's denial of Johnson's motion to suppress, affirm the denial of deferred prosecution and remand to allow him to withdraw his guilty plea.

STUMBO, JUDGE, CONCURS.

clayton, judge, concurs in result only.

THOMPSON, JUDGE: