                                                   RENDERED: MARCH 17, 2016
                                                         TO BE PUBLISHED

               $uprrittr (Court of
                              2014-SC-000445-DG
                                                             Prig
                                                             IJ Li
                                                       113A7_61-1-tG,       VA.04.QTroc);


DALLIS ABNEY                                                          APPELLANT


                    ON REVIEW FROM COURT OF APPEALS
V.                      CASE NO. 2013-CA-000026-MR
                   ESTILL CIRCUIT COURT NO. 11-CR-00074


COMMONWEALTH OF KENTUCKY                                               APPELLEE


                  OPINION OF THE COURT BY JUSTICE NOBLE

                                   AFFIRMING

      This case involves the validity of a search warrant that was issued based

on an affidavit recounting observations made by Cody Abney, Appellant Dallis

Abney's son, of drug-trafficking activity by Appellant. The affidavit did not

state the time and date when the drug-trafficking activity was observed. In a

1961 opinion, this Court's predecessor held that a search-warrant "affidavit is

defective unless it discloses the time at which the observation was made ... if

the affidavit shows on its face that it is based on information or belief." Henson

v. Commonwealth, 347 S.W.2d 546, 546 (Ky. 1961). Appellant claims this rule

applies and requires suppression of the evidence obtained pursuant to the

search warrant.
       The issue before this Court is whether Henson still presents a viable rule,

or whether it has been replaced by the totality-of-the-circumstances test of

Illinois v. Gates, 462 U.S. 213 (1983), and Beemer v. Commonwealth, 665

S.W.2d 912 (Ky. 1984). Both the trial court and Court of Appeals found that

the affidavit was sufficient to support issuance of a warrant under the totality

of the circumstances test. This Court agrees that the validity of a search-

warrant affidavit and resulting warrant is determined under the totality of the

circumstances, and is not controlled by Henson's bright-line rule.

                                   I. Background

      On August 29, 2011, Powell County Deputy Sheriff Matt Reed was

notified by the Powell County Sheriff that he was following a vehicle that

appeared to be driven by someone under the influence. Deputy Reed caught up

to the sheriff and took up following the vehicle. After seeing the vehicle cross

the center line several times, he initiated a traffic stop. The driver of the vehicle

was Cody Abney, who did not have a driver's license. Also in the vehicle were

the Appellant and a female, Kim Gould. Cody is the Appellant's son.

      Deputy Reed had the parties exit the vehicle, and asked for permission to

search the car, which was given. The deputy claimed that the car smelled of

marijuana, and he found narcotics not in their original container in Ms.

Gould's purse. When Appellant was asked to produce his driver's license, he

pulled the driver's license, approximately $6,000 in cash, and some other cards

out of his pocket. He also pulled out several small, crushed green leaves that

the deputy believed to be marijuana. Although this substance was collected as

evidence, it was never analyzed.
                                          2
        Appellant was arrested and charged with trafficking in marijuana. Gould

was arrested on the narcotics charge. Cody, however was not arrested,

although he agreed to go to the police station to talk to officers. At the police

station, father and son were separated, and Cody was kept at the station for

several hours.

        Because he had previous reports that Appellant was trafficking in drugs

from his home, Deputy Reed asked Cody if there was drug trafficking or other

illegal activity going on at Appellant's residence. Deputy Reed testified at the

suppression hearing that Cody admitted seeing the Appellant weighing

marijuana on scales, and seeing money and marijuana in a safe. He also

testified that Cody gave a detailed description about how to find approximately

20 pounds of marijuana in the Appellant's garage. Cody denied making most of

this statement when he testified at the suppression hearing.

        Although he had been arrested in Powell County, the Appellant's

residence was in Estill County. Consequently, the Kentucky State Police were

asked   to   obtain a warrant and search the residence. After hearing Deputy

Reed's version of what Cody had said, Trooper Joshua Brewer asked Deputy

Reed to get Cody on the phone to verify the information. At the suppression

hearing, the trooper testified that the person answering the phone identified

himself as Cody Abney, and gave the Appellant's address as his residence. This

person told the trooper that there were approximately 15 pounds of marijuana

in his house and garage at the time, and that his father hid marijuana all over

the house. Trooper Brewer then completed the Affidavit for Search Warrant



                                          3
form AOC-336 based on this information and presented it to an Estill County

district judge who issued the search warrant.

      In the search of the Appellant's home, a large quantity of marijuana and

prescription pills was found, leading to the Appellant being charged with

trafficking in marijuana in an amount greater than five pounds; trafficking in a

controlled substance, second degree, first offense; possession of a controlled

substance, first degree, first offense; possession of drug paraphernalia;

prescription controlled substance not in proper container, first offense; and two

counts of possession of a controlled substance, third degree.

      Appellant moved to suppress this evidence, claiming that the search

warrant was invalid because the affidavit on which it was based was fatally

flawed. As noted above, Appellant claimed that the affidavit violated Henson v.

Commonwealth because it did not state when Cody had observed his father's

illegal activity. The trial court declined to apply Henson's seemingly bright-line

rule and instead evaluated the affidavit and warrant under the totality of the

circumstances. The court concluded that the affidavit showed sufficient

probable cause to support issuance of the warrant and, as a result, denied the

motion to suppress.

      Appellant entered a conditional guilty plea to trafficking in marijuana

greater than five pounds, possession of a controlled substance, second degree;

and possession of a controlled substance, first degree. The other counts were

dismissed. The court sentenced Appellant to concurrent sentences totaling five

years in prison and a $1,000 fine, but allowed him to remain free on bond

pending appeal.
                                        4
      Appellant appealed, and the lower court was affirmed by the Court of

Appeals. This Court took discretionary review to address the viability of Henson

and to clearly state the appropriate standard of review as to the sufficiency of

affidavits presented in support of warrant requests.

                                    H. Analysis

      Henson v. Commonwealth has never been expressly overruled by this

Court, and it is consequently the basis of Appellant's argument today. In that

case, written in 1961, the Court of Appeals, then the highest appellate court,

held in an opinion by Judge John Palmore that the rule that a search-warrant

"affidavit is defective unless it discloses the time at which the observation was

made definitely applies in Kentucky if the affidavit shows on its face that it is

based on information and belief." Henson, 347 S.W.2d at 546. The affidavit in

that case had stated that the defendant "now has in possession" the

contraband (liquor) and that the knowledge of the possession was gained by

lolbservation, in person." Id. Despite the strength of that statement, the Court

found that when the possession occurred had to be specifically stated in order

for probable cause to issue a warrant to exist. The Court stated:

      The necessity for a simple statement of how and when an allegedly
      existing fact was observed could be unreasonable or burdensome
      only to one who actually does not have enough reliable information
      to justify the warrant. The onus of being specific is little enough
      price for the suspension of so valuable a right.

Id. at 548.

      This extremely strong statement of what is necessary for probable cause

to issue a search warrant remained the law of the Commonwealth for many



                                         5
years. It expresses a concern over the staleness of the information used to

obtain the warrant, which is, no doubt, a valid consideration.

      But technical requirements for warrants and their supporting affidavits

have largely been done away with. Indeed, the U.S. Supreme Court has noted

that the "Nechnical requirements of elaborate specificity once exacted under

common law pleading have no proper place in this area." Illinois v. Gates, 462

U.S. 213, 235 (1983) (quoting United States v. Ventresca, 380 U.S. 102, 108

(1965)). In their place, the Court has evaluated search-warrant affidavits (and

whether they establish probable cause) under a totality-of-the-circumstances

analysis. Id. at 238. As stated in Gates:

      The task of the [warrant] issuing magistrate is simply to make a
      practical, common-sense decision whether, given all the
      circumstances set forth in the affidavit before him, including the
      "veracity" and "basis of knowledge" of persons supplying hearsay
      information, there is a fair probability that contraband or evidence
      of a crime will be found in a particular place. And the duty of a
      reviewing court is simply to ensure that the magistrate had a
      "substantial basis for ... conclud[ing]" that probable cause existed.

Id. at 238-39 (second alteration in original). This Court adopted Gates' totality-

of-the-circumstances approach in Beemer v. Commonwealth, 665 S.W.2d 912,

915 (Ky. 1984).

      Gates was specifically about information from anonymous informants.

Prior to Gates, the United States Supreme Court analyzed the sufficiency of

search-warrant affidavits based on such information under a stringent two-

prong test requiring that the basis of the informant's knowledge be known and,

when the informant was anonymous, that his reliability must be established,

as set out in Aguilar v. Texas, 378 U.S. 108 (1964) and Spinelli v. United States,


                                        6
393 U.S. 410 (1969). But as the Court expressed in Gates, there are sound

reasons why such strict specificity is not practical.

      Affidavits are frequently drafted by non-lawyers, who cannot be expected

to keep abreast of "each judicial refinement" relating to probable cause. Gates,

462 U.S. at 235. Affidavits are often done in haste. Id. And most warrants are

issued "on the basis of nontechnical, common-sense judgments of laymen

applying a standard less demanding than those used in more formal legal

proceedings." Id. at 235-36. And, at any rate, how do the technical refinements

actually assist a judge in determining probable cause?

      According to the Court in Gates, such hypertechnical requirements

disincentivize police officers from obtaining warrants, even though the

Constitution states a clear preference for searches conducted under a warrant.

Instead, the Court speculated, officers "might well resort to warrantless

searches, with the hope of relying on consent or some other exception to the

warrant clause that might develop at the time of the search." Id. at 236. Also,

allowing warrants on a reasonable rather than a hypertechnical basis, thus

resulting in more warrants, "reduces the perception of unlawful or intrusive

police conduct," id., because the warrant gives the assurance that there is a

need to search, that the search is limited, and that it is being done under

lawful authority.

      The Gates Court recalled that the traditional standard for review of an

issuing magistrate's probable-cause determination was whether there was a

substantial basis to believe that evidence of wrongdoing would be uncovered by

the search, and that this had previously satisfied Fourth Amendment
                                         7
requirements. Id. (citing Jones v. United States, 362 U.S. 257 (1960)). The

Court thus concluded: "We think reaffirmation of this standard better serves

the purpose of encouraging recourse to the warrant procedure and is more

consistent with our traditional deference to the probable cause determinations

of magistrates than is the two-pronged test."' Id. at 237.

      Although Gates was specifically about the two-pronged Aguilar-Spinelli

test, its totality-of-the-circumstances approach has been applied more broadly.

See, e.g., Florida v. Harris, 133 S. Ct. 1050, 1055 (2013) (applying Gates to dog-

sniff cases). Now, all determinations of probable cause, which is necessary for

issuance of a search warrant, "depend[] on the totality of the circumstances,"

Maryland v. Pringle, 540 U.S. 366, 371 (2003), rather than narrower, specific

rules. And thus, since this Court adopted the Gates standard, this Court has

applied it repeatedly to all manner of probable-cause determinations. See, e.g.

Commonwealth v. Eckerle, 470 S.W.3d 712, 723 (Ky. 2015) (self-defense claims)

Rawls v. Commonwealth, 434 S.W.3d 48, 58 (Ky. 2014) (warrant based on

confidential informant's tip); Commonwealth v. Walker, 729 S.W.2d 440, 441

(Ky. 1987) (warrant based on officer's observations and controlled buy).

      The law is clear: "the Fourth Amendment's requirement of probable

cause for the issuance of a search warrant is to be applied, not according to a

fixed and rigid formula, but rather in light of the 'totality of the circumstances'

made known to the magistrate." Massachusetts v. Upton, 466 U.S. 727, 728

(1984). That is the only standard for reviewing the issuance of a search

warrant. See Commonwealth v. Pride, 302 S.W.3d 43, 47 (Ky. 2010) (stating



                                         8
that "the standard for reviewing the issuance of a search warrant is provided

by Illinois v. Gates").

       Thus, to the extent that Henson applies more specific requirements to a

search-warrant affidavit and, in effect, requires a more rigorous review, it is

overruled. A search-warrant affidavit is not rendered invalid simply because it

does not include the time and date of any observations on which it relies,

provided the totality of the circumstances indicates with reasonable reliability

that the evidence sought is located in the place to be searched. That said, it is

always the better practice to include such information, as it forecloses any

complaint about the staleness of the information.

      As to this case, we must hold that the trial court applied the correct

standard. We further hold that the trial court did not err in overruling

Appellant's motion to suppress because the search warrant was adequately

supported by probable cause.

      The pertinent part of the affidavit supporting the warrant request states:

              The affiant was contacted by Deputy Matt Reed of the Powell
       County Sheriff's Department. Deputy Reed indicated that during a
       traffic stop in Powell County he observed a strong smell of
       marijuana in a vehicle owned by Dallis Abney. He observed
       marijuana mixed in with money that Dallis Abney had pulled from
       his pant's [sic] pocket. Upon interviewing Cody Abney Deputy Reed
       learned that there was a significant amount of marijuana stored at
       the above residence.

             The Affiant conducted an interview with Cody Abney. Based
      on the interview the Affiant learned that Cody Abney lived at the
      above described residence with his father, Da11's [sic] Abney. Cody
      Abney indicated that Dallis Abney keeps approximately 10 to 20
      pounds of marijuana in the safe at the home along with proceeds
      from the sale of marijuana. He indicates Dallis Abney sells the
      marijuana out of the house and that he keeps the marijuana in a
      safe that is weighed out on scales as he sells it.
                                         9
      Although Cody later disputed the affidavit's claims, it nonetheless clearly

contains sufficient facts to support a finding of probable cause. At the

suppression hearing, both Deputy Reed and Trooper Brewer testified that Cody

gave his address as Appellant's residence. Both testified that Cody had not only

said that his father had a large quantity of marijuana in the home, but that he

also told them where it,could be found. Trooper Brewer further testified that

Cody told him there was probably 15 pounds of marijuana in his house and

garage at the time. The warrant was obtained and executed immediately

thereafter. And although Cody disputed this at the suppression hearing, the

trial court gave a logical rationale—Cody's fear for the depth of trouble his

father was in—as to why he believed the officers instead of Cody. Given the

close relationship between the informant and Appellant, the opportunity the

informant had to see the contraband in the home, and the immediacy of

proceeding to obtain the warrant, there is an evident "substantial basis" under

the totality of the circumstances to believe that the search would produce

"evidence of wrongdoing."

                                 III. Conclusion

      For the foregoing reasons, the Court of Appeals is affirmed.

      All sitting. All concur.




                                        10
COUNSEL FOR APPELLANT:

Tucker Richardson III
Baldani, Rowland 86 Richardson
300 West Short Street
Lexington, Kentucky 40507


COUNSEL FOR APPELLEE:

Andy Beshear
Attorney General

James Hays Lawson
Assistant Attorney General
Office of Criminal Appeals
Office of the Attorney General
1024 Capital Center Drive
Frankfort, Kentucky 40601




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