                                            MODIFIED: SEPTEMBER 28, 2017
                                              RENDERED: MARCH 23, 201 7
                                                        TO BE PUBLISHED


                                                                                         l
                                   {




              ~uprtttt~0 ~~:!3~!0?ttttf~~ (NJ ffe\
JOSEPH PACE                                              fR\    fM 9f'f&PELLANT              '
                                                         lbV   ik u 1.b'f/.l8/17 g,;, taJtMlt\,OC...
                ON REVIEW FROM COURT OF APPEALS
V.       CASE NOS. 2014-CA-000501~MR AND 2014-CA-000621-MR
             FAYETTE CIRCUIT COURT NO. 13-CR-00566-002


COMMONWEALTH OF KENTUCKY                                                  APPELLEE


AND                          2015-SC-000400-DG



BRANDON COLLINS                                                         APPELLANT


                ON REVIEW FROM COURT OF APPEALS
V.      CASE NOS. 2014-CA"'.000501-MR AND 2014-CA-000621-MR
             FAYETTE CIRCUIT COURT NO. 13-CR-00566-002


COMMONWEALTH OF KENTUCKY                                                  APPELLEE


           · OPINION OF THE COURT BY JUSTICE CUNNINGHAM

                 REVERSING, VACATING, AND REMANDING


      In this appeal, Joseph Pace and Brandon Collins (the "Appellants")

challenge the Court of Appeals' affirmance of the Fayette Circuit Court's denial

of their separate motions to suppress evidence.
         On the evening of April 18, 2013, Sergeant Bryan Jared, of the Lexington

Police Department, was surveilling an apartment building located on Augusta

Drive in Lexingto:q, Ke,ntucky. Appellants' apartment was located within the

Augusta Drive apartment building. Sergeant Bryan was monitoring the area
                                         I


due to a threat of retaliatory violence following a murder at a local bowling

alley.. The tip concerning the possible retaliation did not specify who would be

the subject of the reprisal, nor did it specify when or where the violence would

occur.

         While observing the area, Sergeant Jared noticed a group of several

individuals loitering by the Augusta Drive apartment building. Shortly

thereafter, a black Dodge Charger pulled into a driveway adjacent to the left

side of the apartment building. Two men and·one woman exited the Charger

and walked behind the left side of the apartment building .. ~ Thereafter, the

loiterers made their way to the back right side of the apartment building.

Sergeant Jared suspected that the three individuals and the loiterers were

meeting around the back of the apartment building to brawl or conduct a drug.

transaction. Consequently, Sergeant Jared called for backup, exited his

cruiser' and approached the three individuals on the driveway side of the

apartment building. Sergeant Jared ultimately searched one of the men and

found a gun and narcotics on his. person. An erisuirtg search of the Charger

uncovered another gun. Further investigation revealed that one of the

Charger's occupants had been smoking.marijuana. This individual stated that



                                             2·
f




    he had smoked marijuana in Apartment 14. This particular apartment was

    Appellants' apartment.

          Numerous officers responded to the scene and required the loiterers to .

    move to the front of the apartment building. Officers asked the crowd who

    lived in Apartment 14, to which no one responded. One of the officers, Officer
                 '           '
    Donna Shepherd, proceeded to Appellants' apartment to conduct a "knock and

    talk." To no avail, Officer Shepherd entered the atrium of the apartment

    building and knocked on the front door of Appellants' first floor apartment.

    Officer Shepherd then exited the inside atrium and walked around the outside

    of the building to Appellants' back door.. The back door was a sliding glass

    door, which was ajar, unobstructed, and located within a partially enclosed

    patio. The patio enclosure consisted of a brick wall standing approximately five

    feet and four inches tall.

          As Officer Shepherd approached the back patio area, two other officers

    were already standing within the enclosure and looking through the sliding

    glass door. The officers notified Officer Shepherd that they could see baggies of

    marijuana sitting on an inside table. Officer Shepherd was unaple to view the

    baggies of marijuapa until she was standing within.the patio enclosure.

          Without a warrant or Appellants' consents, Officer Shepherd and the two

    officers entered Appellants' apartment through the sliding glass door and

    conducted a search. Concurrently, other officers entered the front door of the
                                 \



    apartment'andjoined the search. It is unknown which officer ordered the

    entry and search. Officer Shepherd testified that she entered the apartment

                                           3
because she was _fearful someone may have been injured inside and in need of

assistance. During the search, officers found three baggies of marijuana, eight

marijuana plants, and other drug paraphernalia. Officers did not seize the

evidence upon discovery.

       Appellants were notified of the initial search and consented to a second

search of their apartment. During this second search, officers seized the

incriminating evidence, in addition to a newly discovered bag of cocaine      in the
amount of 4.3 grams. Appellants were immediately arrested and charged with

one count each of cultivation of marijuana five or more plants, trafficking in a

controlled substance within 1,000 feet of a school, possession of a controlled

substance in the first degree, and possession of drug paraphernalia.

Appellants filed separate motions to suppress all evidence seized under the

Fourth Amendment to the United States Constitution and Section 10 of the

Kentucky Constitution. In support of their motions, Appellants claimed that

the officers violated the curtilage of their apartment when they entered the

back patio enclosure, thereby having no legal au_thority to view the marijuana.

baggies. Appellants further argued that officers lacked any exigencies to enter

the apartment and conduct the search. Due to these illegalities, the seizure ·Of

e.vidence was made unlawfully.

       After a hearing at which Officer Shepherd and Sergeant Jared testified,

the trial court made verbal findings of fact· and conclusions of law and denied

·Appellants' motions_ to suppress. The trial court ruled that officers were

entitled to be ori the back patio as it was not within the apartment's curtilage ..
,.   l




         The trial court further found that, although the precise justificatiof?. for the

         officers' entrance was unknown, officers were permitted to conduct a search of

         the apartment pursuant to the plain view exception to the warrant

         requirement. Moreover, the.trial court believed officers were permitted to enter

         the apartment and conduct a protective sweep of the area and check for

         injured individuals.

               On March 24, 2015, Appellants entered conditional guilty pleas in the

         Fayette Circuit Court. Collins pled   gu~lty   to one count each of criminal·

         facilitation-cultivation of marijuana five or more plants, possession of

         marijuana, and possession of drug paraphernalia. Pace pled guilty to one

         count, of criminal facilitation-cultivation of marijuana five or more plants and

         one count of possession of marijuana. Appellants both received a sentence of

         twelve months' imprisonment, probated for a period of two ye.ars. Appellants'

         guilty pleas provided that they reserved the right to appeal the Fayette Circuit

         Court's denial of their motions to suppress. It is from that denial that

         Appellants appealed to the Court of Appeals.

               The Court of Appeals affirmed the trial court's denial, but on different

         grounds. First, the Court of Appeals disagreed that a protective sweep was

         necessary since the search was not made incident to an arrest and there were

         .no perceived threats fo the officers. .The Court of Appeals also explained that
                                \


         the "emergency aid" exception to the warrant requirement, not the protective

         sweep exception, was applicable to the officers' search. However, the.Court of

         Appeals concluded that the emergency aid exception could not excuse the

                                                  5
warrantless   ~earch   because officers did not have an objectively reasonable

basis for believing the apartment's occupants required emergency aid. In

regards to the plain view doctrine, the Court of Appeals opined that officers did

not invade the curtilage of the apartment when viewing the marijuana baggies

from the back porch. Even so, the Court of Appeals did not believe the plain

view exception applied to the initial entry and search of the apartment~because

officers did not actually seize any incriminating evidence at that time.

Ultimately, the Court of Appeals affirmed the trial court's order on the grounds

that the seizure of evidence occurred during the second search which was

conducted pursuant to Appellants' valid consents. Appellants appealed to this

Court and we· granted discretionary review.

      Generally, when reviewing a trial court's ruling on a motion to suppress,

this Court will examine the trial court's findings of fact to ensure they are

supported by substantial evidence. Peyton v. Commonwealth, 253 S.W.3d 504,

514 (Ky. 2008) (citing Adcock v. Commonwealth, 967 S.W.2d 6, 8 (Ky. 1998));

RCr 9.78. However, the trial court's factual findings are not in dispute and

appear to be sufficiently supported by the record. For that reason, the Court

will proceed in conducting a 4e novo review of the trial court's legal conclusions.

Peyton, 253 S.W.2d at 514-15.

      Before conducting our review, we note that the trial court did not render

a written order of its findings of fact and conclusions of law. As this Court

explained in Coleman v. Commonwealth, "written findings greatly facilitate

appellate review." 100 S.W.3,d 745, 749 (Ky. 2002). It is important to ·

                                          6
.•




     underscore that this Court's analysis would have been significantly aided by a

     submission of written findings. Fortunately, we can satisfactorily determine

     the basis for the trial court's ruling from the suppre.ssion hearing record. Id.

              Our analysis begins with the Fourth Amendment to the United States

     Constitution, made applicable to the states through the Fourteenth

     Amendment and Section 10 of the Kentucky Constitution. The Amendment

     protects "[t]he right of the people to be secure in their persons, houses, papers,
                                      )

     and effects, against unreasonable searches and seizures." A basic tenet of this
                                                                      }




     area of the law is that warrantless searches are "per se unreasonable upder the

     Fourth Amendment-subject only to a few specifically established and well-

     delineated exceptions." Katz v. United States, 389 U.S. 347, 357 (1967). In the

     absence of :exigent circumstances, it is unreasonable for a law enforcement

     of~cer   to enter a person's home withqut consent or a warrant. Payton v. New

     York, 445 U.S. 573, 590 (1980). Therefore, in order to analyze the legality of

     the officers' seizures in the case before us, the Court must first focus on the

     lawfulness of the initial search of Appellants' apartment.
                                                             I



                                          Exigencies

              Due to both the trial court and Court of Appeals' holdings, the three

     following well-established exceptions to the warrant requirement are at issue:

     (1) the protective sweep exception fashioned in Maryland v. Buie, 494 U.S. 325

     (1990); (.2) the emergency aid exception articulated iri Brigham City v. Stuart,

     547 U.S. 398 (2006); and (3) the plain view exception delineated in Coolidge v.

     New Hampshire; 403      u:s. 443 (1971). These three exceptions provide that the

                                               7
UJ:?.reasonabl~ness   of a warrantless search can be overcome by "'the exigencies

of the situation' [which may] make the needs of law enforcement so compelling

that the warrantless search is objectively reasonable." Mincey v. Arizona, 437

U.S. 385, 393-394 (1978). We will address each exception in tum.

Protective Sweep

      According to our highest court, law enforcement officers are permitted to

perform a protective sweep of a residence under two limited circumstances,

both of which are preceded by an in-home arrest. Buie, 494 U.S. at 333-35;

see Guzman v. Commonwealth, 375 S.W.3d 805, 808 (Ky. 2012). The first type

of pr~tective sweep provides that officers· may "as a precautionary matter and

without probable cause or reasonable suspicion, look in closets and other

spaces immediately adjoining the place of arrest from which an attack could be

immediately launched." Kerr v. Commonwe.alth, 400 S.W.3d 250, 266 (Ky.

2013) (quoting Buie, 494 U.S. at 334). The second type of protective sweep

allows officers to perform a broader search of the premises if the officer has

reasonable suspicion "that the area to be swept harbors an individual posing a

danger to those on the arrest scene." Id. The exigency in these situations is the

safety of the officers. Guzman, 375 S.W.3d at 807. "

      The trial court ruled that this exception permitted officers to enter

Appellants' apartment in order to conduct a protective sweep of the premises.

The trial court stated that "the officers had the potential to be in imminent

danger," and were, therefore, entitled to conduct a "protective· sweep" of the

apartment. The Court of Appeals quickly disposed of this argument since there

                                          8
.;.




      were no arrests ma.de, thereby negating the need for a protective sweep of the

      apartment.

            Based on the factual context predicating the. officers' entry into

      Appellants' apartment, we can find no identifiable basis for the performance of

      a protective sweep. The only arrests made prior to the officers' search of

      Appellants' apartment occurred outside the front of the apartment building.

      Moreover, those individuals were safely detained away from the apartment
      '
      building when officers decided to enter Appellants' apartment. There were no

      other factors present which placed the safety of the officers or those on the

      arrest scene in danger. The protective sweep exception to· the warrant

      requirement simply did not arise in this situation.

      Emergency Aid

            Like the Court of Appeals, this Court also believes the more appropriate

      legal framework in which to analyze the     reasonablen~ss   of the officers' search

      is under the emergency aid exception. This exception acknowledges the

      exigency created when an occupant of a residence is in need of emergency help.

      The exception allows law enforcement officers to "enter a home without a

      warrant to render emergency assistance to an injured occupant or to protect an

      occupant from imminent injury." Brigham City, 547 U.S. at 403 (citing Mincey,

      437 U.S. at 392). In determining if this exception applies, we do not rely on the

      subjective intent of the officers, rather we must ask "whether there was 'an

      objectively reasonable basis for believing' that medical assistance was needed,




                                              9
      or persons were in danger." Goben v. Commonwealth, 503 S.W.3d 890, 913

      ·(Ky. 2016) (quoting Michigan v. Fi.sher, 558 U.S. 45, 47 (2009)).

            · This Court just recently illustr~ted the permissive use of the emergency

      aid exception in Goben, 503 S.W.3d 890. In that case, officers responded to an

~--   alleged stabbing. Id. at 8_26. Once they arrived on the scene, officers found a

      man suffering from a stab wound in an apartment complex parking lot and a

      trail of blood leading up to the apartment complex's stairs. Id. At those stairs,

      a "debris trail" led to an open door of an apartment. Id. at 896-97. The officers

      entered the apartment believing that a previous struggle likely occurred and

      that someone may be injured inside. Id. In upholding the warrantless search,

      the ·Court found that a reasonably prudent officer would have concluded that

      someone was possibly injured inside the apartment and needed medical help.

      Id. at 897..

            ·Unlike in Goben, officers who entered Appellants' apartment were not

      responding
              .
                 to any violence. Although
                                      .
                                           there was loitering at the apartment

      building, and there was an individuru who possessed a gun, there was no

       evidence of an altercation. See Brigham City, 547 U.S. at 401 (officers

      witnessed a physical fight through the window of the residence). Neither was

      there any indication that someone was injured within the apartment. See

      Fi.sher, 558 U.S. 46 (officers noticed blood on the hood of a truck parked

      outside the residence and the door to the residence). In fact, there were no

      noises or smells which would have led officers to   believ~   that anyone was even.

       present. See Hughes v. Commonwealth, 87 S.W.3d 850, 852-53 (Ky. 2002).

                                               10
     i


:-



                    Officer Shepherd cited. the retaliation threat and the individual who was

             arrested for harboring a gun as support for her belief that an injured person

             was present in the   ap~tment.    We do not believe a reasonably prudent officer

             would have invoked .the emergency aid exception when faced with this minimal

             amount of evidence of an injury. -Therefore, the officers' warrantless entry and

             search of Appellants' apartment cannot be justified by the emergency aid

             ·exception.

             Plain View

                   -The plain view exception to the warrant requirement is justified by the

             exigent need to preserve· evidence that may otherwise be moved or destroyed.

              See Coolidge, 403 U.S. at 446. The plain view exception applies "when the

             object seized is plainly visible, the officer is lawfully in a position to view the

             object, and the incriminating nature of the object is immediately apparent."

         t   Kerr, 400 S.W.3d at 266 (citing Horlon v. California, 496 U.S. 128, 136-37

             _(1990)) (emphasis added). Unlike the exigencies outlined in the protective

              sweep and emergency aid exceptions, which are justified when conducting a

             warrantless search, the plain view doctrine only applies to the warrantless

              seizure of evidence. Horlon, 496 U.S. at 135. This exception cannot justify an

             otherwise .unlawful intrusion just becau~e it may bring the officers within plain

             view of evidence. Id. Since this exception only excuses the seizure of evidence,

             not warrantless searches, we agree with the Court of Appeals that the trial

             _court erred in finding that the plain view doctrine permitted.the officers'

             warrantless entry and search of Appellants' apartment.

                                                       11
                                    Open Fields

      Having concluded that the officers' initial warrantless search of

Appellants' apartment was illegal, we must still determine the lawfulness of the

officers' viewfrig of the marijuana baggies prior to the search. If officers viewed

the marijuana baggies while conducting a search of the open fields

surrounding the apartment, then officers were entitled to exploit that,

information in order to secure Appellants' cons_ent to conduct the second

search and ultimate seizure of evidence.

      In order to determine if officers viewed the marijuana baggies from a

lawful vantage point, we must first determine if Appellants' apartment patio is

within the curtilage of 'the home. The curtilage    of~ ho~e   is an area outside the

indoor parameters of a residence in which there is a reasonable expectation of ,

privacy. United States v. Dunn, 480 U.S. 294, 300 (1987). The curtilage is

basically an extension of the home and as such enjoys Fourth A_m.endment

protection. Id.

      There are four non-exclusive factors the Court may utilize in determining

the parameters of a residence's cl,lrtilage. Dunn, 480 U.S. at 301. The four

factors include "[1] the p~oximity of the area claimed to be curtilage to the
              \,


home, [2] wl1.ether the area is included within an enclosure surrounding the

home, [3] the nature of the uses to which the area is put, and [4] steps taken

by the resident to protect the area from observation by people passing by." Id.

      As applied to the trial court's factual :t:J.ndings,. the Dunn factors

demonstra~e   that Appellants' back patio was within the protected curtilage of

                                          12
the home. In regards to the first factor, the patio was attached and

immediately adjacent to the apartment. In fact, a sliding gfa.~s door was the

only object separating the inside of the home to the patio .. This Court has

explained that areas this clqse in proximity, like a back yard, "may not always

enjoy the protection of the curtilage, [but] it is a rare one that does not."
                             1
Quintana v. Commonwealth, 276 S.W.3d 753, 760 (Ky. 2008) (citing

Daughenbaugh v. City of Tiffin, 150 F.3d 594, 601 (6th Cir.1998)). As for the

second factor, the patio was partially enclosed by a five foot, four inch tall brick

wall. This wall provJded Appellants' with privacy as illustrated by Officer

Shepherd's testimony that the marijuana baggies were not viewable unless she.

was standing within the patio enclosure. This Court has previously found that

individuals maintain an expectation of privacy in areas with far less enclosures

or even none at all. See, e.g., Quintana, 276 S.W.3d at 760; see also

Commonwealth v. Ousley, 393 S.W.3d 15 (Ky. 2013). With respect to the third

factor, the nature of Appellants' patio use was not revealed during the

suppression hearing. Even so, it is common knowledge that a back yard,

porch, or patio is an area where private domestic activities extend. Quintana,

276 S.W.3d at 760.

      Lastly, the fourth Dunn factor requires an inquiry into the steps

Appellants have taken to protect the patio from public observation. The Court

of Appeals and the trial court's analysis hinged on this factor. The lower courts

concluded that the patio was not part of the apartment's curtilage because it

was accessible via a public walkway and was not totally enclosed by a fence or

                                         13
gate. We disagree. Nothing within our jurisprudence requires a homeowner to

totally enclose an area in order to ensure curtilage protection. See Oustey, 393

S.W.3d at 27. As the Court reasoned in Ousley, to require full enclosures in

order to extend ones curtilage is unreasonable since "[f]ew people, other than

the very wealthy, barricade their front yard so completely that a person seeking

to enter must request the unlocking of a solid gate that is higher than eye

level." Id. (quoting U.S. v. Redmon, 138 F.3d\1109, 1130 (7th Cir. 1998)

(Posner, J., dissenting)).

      In light of the above-discussed Dunn factors, the Court concludes that

Appellants' back patio enjoys curtilage protection. Thusly, officers could not

have maintained ·a lawful vantage point when viewing the marijuana baggies

unless done so by virtue of a warrant, an exception to the warrant requirement,

or due to an extraneously valid reason. Coolidge, 403 U.S. at 467. As already

discussed, the office_!s' presence on Appellants' patio was not in   further~ce   of

a warrant, nor was it excused by any exigent circumstances. However, further

analysis is required to determine if officers were lawfully on the property due to

an extraneously valid   re~son,   such as a "knock and talk".

                                   Knock and Talk

      The trial court's factual findings demonstrate that Officer Shepherd

approached the back patio in an attempt to conduct a second "knock and talk"

                                                        ')




                                          14
after the prevfous front door knock was unsuccessful.I A "knock and talk" is

an investigatory procedure whereby officers knock on the door 'of a structure in

order to talk with an occupant. Quintana, 276 S.W.3d at 756 (stating that the

procedure may be utilized "for the purpose of obtaining information about a

crime that has been committed, a pending investigation, or matters of public

welfare.").

      While the "knock and talk" procedure is a legitimate investigatory tool, it ·

is not without limits. Officers are still bound by the curtilage rule espoused in

Dunn, 480 U.S. 294. Nevertheless, a "knock and talk'' conducted at "the main

entrance to a home" does not violate the resident's otherwise protected

c~rtilage    because it "can be assumed that the resident consented" to the

curtilage .encroachment. buintana, 276 S.W.3d at 758. In other words, law·

enforcement, like any other member of the public, have an implied license to

knock on the front door of a residence in order to speak with its      occup~ts.   Id.

For that reason, the main entrance of a residence, including driveways and
                                                                  /'

walkways thereto, is properly "invadable" curtilage, since it is an area that is

open to the public. Id. ("[T]he basic rule is that police with legitimate business

may enter the areas of the curtilage which are impliedly open to use by the

public.").




       1The record is devoid of evidence or testimony which would explain the reasons·
the other two officers were already present on Appellants' patio when Officer Shepherd
made her way to the back of the apartment.

                                         15
.]!,   1




                 In light of our case ·1aw, the .Court concludes that Appellants' back sliding

           glass door is not located on "invadable" curtilage. This Court has previously

           explained that "[t]he back door of a home is not ordinarily understood to be

           publicly accessible ... ."·Id. at 759. As a result, "knock and talk" procedures ·

           are commonly violated when conducted at a back door that is not the main

           entryway. See Milam v. Commonwealth, 483 S.W.3d 347, 352 (Ky. 2015).

           Indeed, we doubt that a member of the public, whether it be "Girl Scouts,

           pollsters, mail carriers, [or] door-to-door salesmen," would assume it ·

           appropriate to enter Appellants' back patio enclosure and knock on the sliding

           ·glass door. Ousley, 393 S.W.3d at 30. Accordingly, we cannot surmise that·

           Officer Shepherd conducting a valid "knock and talk" when she encroached

           upon Appellants' back patio . Therefore, we find that officers were unlawfully

           located on Appellants' patio when they viewed the marijuana baggies .

                                                 Exclusion

                 In light of our holdings that officers breached the curtilage of Appellants'

           apartment when viewing the marijuana baggies, in addition to conducting an

           illegal search of Appellants' apartment, we are now faced with whether the

           evidence seized should be excluded as fruit of the poisonous tree. The

           exclusionary rule declares that evidence obtained directly or indirectly through

           an illegal sear:ch is not admissible against an accused. .Wilson •v.

           Commonwealth, 37 S.W.3d 745, 748 (Ky. 2001.) ("[E]vidence cannot be admitt~d

           against an accused if the evidence is derivative of the original illegality . . . .").



                                                      16
l.'   ,,   ...




                 The Commonwealth urges the Court to find that the taint of the officers'

           illegal search was purged by Appellants' subsequent consents to search. See

           Hedgepath v. Commonwealth, 441 S.W.3d 119, 125 (Ky. 2014). Although.the

           trial court did not issue factual and legal findings regarding consent, and the

           Commonwealth. did not preserve this. issue at the trial court, this Court has

           held that the judgment ·Of a lower court can be affirmed for any reason

           supported by the record. See Ky. Farm Bureau Mut. Ins. Co. v. Shelter Mut.- Ins.

           Co., 326 S.W.3d 803, 805 n. 3 (Ky. 2010) (noting that a court may affirm for

           any reason appearing in the record). Here, the Court of Appeals addressed the

           issue of consent; therefore, we cannot say procedurally that the issue was

           unpreserved and will address it accordingly.

                 "Even if a consent later followed, when an individual consents to a

           search after an illegal entry is made, consent is not valid and suppression is_

           required of any items seized -during the .search ... , unless the taint of the initial

           entry has been dissipated before the consents to search were given."· U.S. v.

           Hardin, 539 F.3d 404, 424 (6th Cir. 2008) (internal quotations and citations
                                                             }




           omitted). "The Commonwealth b~ars the burden of demonstrating that consent

           was freely obtained." Milam v. Commonwealth, 483 S.W.3d 347, 352 (Ky.

           2015) ..

                 As the Court of Appeals stated in Stevens v. Commonwealth, 354 S.W.3d

           586, 591 (Ky. App. 2011), and as we later acknowledged in Milam, 483_S.W.3d

           at 352,
                                 r'




                                                     17
                                                            I




                  a subsequent consent to search .may dissipate \
            the taint of a prior illegality.... The admissibility of
            the challenged evidence involves a two-part test: (1)
            whether the consent was voluntary and (2) whether
            the consent was an independent act of free will.

                  Looking at the second inquiry, [f]actors relevant
            to whether consent was an independent act of free will
            include: (1) the temporal proximity of the illegal
            conduct and the consent; (2) the presence of
            intervening circumstances; and (3) the purpose and
)
            flagrancy of the initial misconduct.

Stevens, 354S.W.3d at 591 (internal quotations and citations omitted) (holding

that a defendant's wife's consent to search was voluntary and attenuated

enough to _remove the taint of the officers' improper search of a Kawasaki on

the defendant's property).

      Applying 'these factors to the instant case, Appellants arrived home to

find that the police officers had already searched their apartment and found
                             l




contraband, at which point the officers then asked for written consent. Unlike

in Stevens, ~nly mere minutes passed between the officers' initial illegal search

and Appellants' consent. A "substantial period of time supports attenuation

mor.e than consent obtained in close proximity to the initial violation." Id.

(citing U.S. v. Simpson, 439 F.3d 490, 495, n. 3 (8th Cir. 2006) (noting that a

closer time period between the initial illegality ~d the defendant's consent

makes it more likely that the consent was the product of police misconduct)).

Second,·no intervening circumstances occurred between the· illegal search and

the officers' use of the contraband, although unseized, as leverage to obtain

consent. We can.not assume that Appellants would have given consent if the


                                        18
    ::l   f.    -..




               officers had not informed them of the initial search. Third, the officers' entry·

               into and search of the apartment was flagrantly inappropriate.

                       Thus, Appellants' consen~ was not an act of free will sufficient to

               dissipate the taint of the initial illegal search. "The evidence discovered as a

               result of the detectives' unlawful entry must be suppressed." Milam, 483

               S.W.3d at 352·(citing Wong Sun v. U.S., 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d

               441 (1963)). Since the first search was improper, and the consent was not

               attenuated enough in time or pr~xi~ity to cure the illegality, the evidence
)

               seized during the second search must be excluded as fruit of the poisonous

               tree.

                                                   Conclusion

                       For the aforementioned reasons, we reverse the opinion of the Court of

               Appeals, vacate the Fayette Circuit Court's order denying Appellants' motion

               for suppression, and remand this case back to the trial court for further

               proceedings consistent with this opinion.

                       All sitting. All concur.



               COUNSEL FOR APPELLANT,
                           ,-       . "' JOSEPH PACE:
                                                  .   ·

               Steven Jared Buck
               Assistant Public Advocate


               COUNSEL
                   . I
                       FOR APPELLANT, BRANDON
                                       ,
                                              COLLINS:

               Linda Roberts Horsman
               Assistant Public Advocate
                                                                        ' J




                                                        19
.J"   QI   ~




           COUNSEL FOR APPELLEE:

           Andy Beshear
           Attorney General of Kentucky

           James Daryl Havey
           Assistant Attomey General




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                               2015-SC~000399-DG
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JOSEPH.PACE                                                          APPELLANT


                 ON APPEAL FROM FAYETTE CIRCUIT COURT
V.                HONORABLE JAMES D. ISHMAEL, JUDGE
                          NO. 13-CR-00566-002      -


COMMONWEALTH OF KENTUCKY                                              APPELLEE


AND                            2015-SC-000400,,DG


BRANDON COLLINS                                                      APPELLANT
            I

                 ON APPEAL FROM FAYETTE CIRCUIT COURT
v.                HONORABLE JAMES D. ISHMAEL, JUDGE
                          NO. 13-CR-00566-002

COMMONWEALTH OF KENTUCKY                                              APPELLEE


               ORDER DENYING PETITION FOR REHEARING
                    AND GRANTING MODIFICATION

            This.matter is before the Court on the Commonwealth's Petition for
                           I    "

Rehearing on the Opinion ·of the Cour~ by Justice Cunningham, rendered

March 23, 2017. The Court having reviewed the record and being otherwise

fully and sufficiently advised; ORDERS:

      1)    The Commonwealth's Petition for Rehearing on the Opinion of the

Court rendered March 23, 2017 is DENIED; and

      -2)   On the Court's own Motion, the Opinion is MODIFIED on its face
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                                                                             ,
by substitution of the attached opinion in lieu of the original opinion rendered
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"



      March 23, 20 i 7. Said modification occurs on pages 17 -19 and does not affect

      the holding:

            All sitting. All concur.

            ENTERED: September 28, 2017:




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