               IMPORTANT NOTICE
         NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINIOr,1 IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY COURT OF THIS STATE; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISION IN THE FILED DOCUMENT AND A COPY OF THE
ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE
ACTION.
                                                RENDERED: FEBRUARY 16, 2017
                                                       NOT TO BE PUBLISHED




                 ~uprtmt filnurf nf titnfurku
                                    2016-SC-000066-MR



JOHN E. MATLOCK                                                        APPELLANT


                    ON APPEAL FROM WARREN CIRCUIT COURT
V.                  HONORABLE STEVE ALAN WILSON, JUDGE
                             NO. 14-CR-00542-001


COMMONWEALTH OF KENTUCKY                                               APPELLEE




                     MEMORANDUM OPINION OF THE COURT

                                       AFFIRMING

      John Matlock entered a conditional guilty plea to first-degree

manufacturing methamphetamine and second-degree persistent-felony

offender (PFO), for which he was sentenced to thirty years' imprisonment. He

now appeals that judgment as a matter of right 1, contending that the trial court

erred in denying his motion to suppress evidence of the controlled substance.

Because we find no reversible error, we reject Matlock's argument and affirm

the judgment below.




      1   Ky. Const. § 110(2)(b).
                I. FACTUAL AND PROCEDURAL BACKGROUND.
      Shortly before 5:00 am, the Warren County Sheriff Department

responded to a call describing a suspicious person wearing a black t-shirt

going door-to-door. Deputy Jason Richerson arrived and found a man

matching that description, later to be identified as Thomas Bowles, sitting on a

bicycle in front of a double-wide trailer. When asked what he was doing, Bowles

claimed that he and his girlfriend came to this specific location to pick up some

of her belongings. Suspicious that Bowles may be breaking into vehicles or

acting as look-out to someone breaking into vehicles, Deputy Richerson

approached the residence and knocked on the door.

      When no one answered the door, Bowles informed Deputy Richerson that

his girlfriend may be in the storage shed behind the home. Deputy Richerson

went around back to the storage shed, which was about ten feet away from the

back of the trailer. The shed was notably "pre-fab;" that is, there was nothing

remarkable about the structure, and Deputy Richerson simply thought the

structure was a storage unit. It was supported by cinder blocks and used a

cooler as a step into the entrance.

      As he neared, he heard three voices inside the shed-two female and one

male. He knocked on the door, a woman asked who was there, and he

responded that it was the Warren County Sheriff Department. After knocking

again, three people emerged-Brittany Peay, Melissa Tishner, and Matlock. As

the door opened, Deputy Richerson smelled a strong chemical order that he

immediately associated with methamphetamine. After he asked the individuals


                                        2
about the smell, Matlock became irate and adamant that Deputy Richerson not

be permitted to enter the shed, screaming "JD, JD, JD" toward the trailer.

       As it happens, JD, or Jason D. Borden, is the owner of the entire

property, including the shed. Deputy Richerson informed Borden that he

believed illegal activity was going on in the shed and asked to do a quick search

to see if there was an active meth lab. Borden told Deputy Richerson that he

could search his home. After Deputy Richerson corrected him that his interest

was in the shed, Borden consented to the search.

       Deputy Richerson went into the shed and discovered burned foil and a

small baggie with white powder laying on a table. Around the same time,

Deputy Richerson was joined by Deputy Robert Smith. After Matlock told them

nothing harmful was inside the shed, the two officers re-entered and found a

five-gallon bucket that was an active meth lab. Matlock was arrested and

charged with first-degree manufacturing methamphetamine and second-degree

PFO.

       In circuit court, Matlock moved to suppress the evidence discovered in

the shed under the theory that Deputy Richerson violated his Fourth

Amendment rights. The trial court rejected his motion, declaring that Matlock

did not have standing to claim that Deputy Richerson entered the curtilage of

Borden's property and thereby conducted an illegal search. The trial court

further elaborated that there was no indication that the shed was inhabited nor

that Matlock actually resided in the shed. And even still, the circuit court

continued, the search of the premises was constitutionally valid because law

                                        3
enforcement reasonably believed Borden maintained full control of the shed

and they received his consent. Matlock now directly appeals that ruling to this

Court as a matter of right.


                                       II. ANALYSIS.

   A. Standard of Review.
      The Fourth Amendment to the United States Constitution guarantees

"The right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures ... " We offer a substantially

similar protection in Section 10 of the Kentucky Constitution.2 And as a

consequence for violating this protection, the United States Supreme Court has

held that suppression of evidence is the appropriate remedy for Fourth

Amendment violations. 3

      But in moving a trial court to suppress evidence, the defendant bears the

burden of establishing his own standing to challenge the constitutionality of a

search. 4 To do so, a defendant must prove he had a "legitimate expectation of

privacy in the premises."S To establish this expectation of privacy, a defendant

must prove: (1) that he has exhibited an actual (subjective) expectation of


      2 Ky. Const.§ 10 ("The people shall be secure in their persons, houses, papers,
and possessions, from unreasonable search and seizure; and no warrant shall issue to
search any place, or seize any person or thing, without describing them as nearly as
may be, nor without probable cause supported by oath or affirmation.").
      J   See United States v. Leon, 486 U.S. 897 (1984).
      4   See Ordway v. Commonwealth, 352 S.W.3d 584, 592 (Ky. 2011).
       s Id. See also Minnesota v. Carter, 525 U.S. 83, 88 (1998) (the "capacity to claim
the protection of the Fourth Amendment depends upon whether the person who
claims the protection of the Amendment has a legitimate expectation of privacy in the
invaded place.").

                                            4
privacy in the area; and that (2) society is prepared to recognize that

expectation as legitimate. 6

       Upon review of a circuit court's denial of a defendant's motion to

suppress, all factual findings are conclusive unless they are not supported by

substantial evidence. 7 As such, findings of fact are reviewed for clear error, and

are given their due weight to inferences drawn from the facts by law

enforcement and trialjudges. 8 We then conduct a de novo review of the entirety

of the trial court's legal analysis. 9 Keeping that standard in mind, we now tum

to Matlock's claims.

   B. The Trial Court was Correct in Denying Suppression.
   1. There was no curtilage violation.
       Matlock's initial argument on appeal is that the trial court incorrectly

determined he did not have standing to challenge the constitutionality of the

search of the shed. He presents two arguments in favor of his standing: (1)

that he was a tenant within the curtilage of Borden's property; and (2) that he



      6 See Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring)
("My understanding of the rule that has emerged from prior decisions is that there is a
twofold requirement, first that a person have exhibited an actual (subjective)
expectation of privacy and, second, that the expectation be one that society is
prepared to recognize as 'reasonable. m).
      7  See Commonwealth v. Neal, 84 S.W.3d 920 (Ky. App. 2002). Originally,
Kentucky Rules of Criminal Procedure (RCr) 9. 78 specified that "if supported by
substantial evidence factual findings of the trial court shall be conclusive." That rule
was replaced by RCr 8.27, which does not specify an appellate standard of review. But
this old standard remains under Kentucky Rules of Civil Procedure (CR) 52.01 and
this Court endorsed the continuation of this standard in Simpson v. Commonwealth,
474 S.W.3d 544, 546-47 (Ky. 2015).
      s See Ornelas v. United States, 517 U.S. 690,699 (1996).
      9   Simpson, 474 S.W.3d at 546.

                                           5
had unrestricted access to the main residence and could ask people to leave

without permission. The trial court held that Matlock's status as a tenant in

the shed is "implausible" and determined he possessed no legitimate

expectation of privacy.

      The doctrine of curtilage developed as a matter of common law to extend

the same protection one enjoys inside a dwelling to the area immediately

surrounding the home. 10 The curtilage of a house extends to a distance that an

individual may reasonably expect to be treated as part of the home itself. 1 1 So

the curtilage doctrine is a right in privity with a property owner's Fourth

Amendment right to be free from unreasonable searches and seizures in his

own home. This is the driving point behind the circuit court's determination

that Matlock lacked standing--curtilage rights are categorically tied to the

home. Borden is the owner of the main residence, and the trial court declared

only he has standing to accuse law enforcement of impermissibly invading his

curtilage.

      Matlock claims his status as a tenant in the shed behind Borden's

property gives him license to assert Borden's curtilage rights. First, we agree

with the trial court that his claim of residence in the shed is dubious at best.

Whether it be the lack of rent payments, Borden's failure to immediately

recognize Matlock as a tenant, or Matlock's alleged self-description as a



      10   See United States v. Dunn, 480 U.S. 294 (1987).
    11 See Oliver v. United States, 466 U.S. 170 (1984). See also Quintana v.
Commonwealth, 276 S.W.3d 753, 757 (Ky. 2008).

                                            6
homeless person, there is substantial evidence in the record to support a

factual finding that Matlock was not actually a tenant in the shed when the

search occurred.

      But if he was a tenant, this fact is meaningless to his ability to assert the

curtilage rights for the entire property. The storage shed was indeed on

Borden's property and close to his home. But because curtilage is tethered to

Fourth Amendment protections within the home, standing to assert that

doctrine belongs solely with the property owner or one with a legitimate

expectation of privacy within Borden's trailer. Only an individual with standing

to challenge a search of the home itself possesses standing to assert curtilage

rights associated with the property. And no one can prove Matlock possessed

those privacy expectations within Borden's home.

      Matlock attempts to make this point by offering an affidavit from his

daughter, who lived in the main residence with Borden. According to the

affidavit, Matlock enjoyed unrestricted access to the trailer, he helped prepare

the children for school, and he tended to pets. But there are three issues with

this piece of evidence. First, this affidavit was filed after Matlock's suppression

hearing. The trial court allowed it to be admitted into evidence but noted that it

did not change the court's opinion. Second, this evidence is unsupported by

other facts in the record. And finally, even if its contents are true, the affidavit

does nothing to persuade us Matlock enjoyed Fourth Amendment rights within

the main residence itself. Simply put, there is no true basis in the record to



                                          7
support a finding that Matlock could claim Borden's curtilage rights as his

own.

       In fact, Matlock's alleged status as a tenant in the shed inherently

defeats even Borden's curtilage rights. The whole basis behind the curtilage

doctrine is that the extended property may be treated as part of the home itself.

If Matlock was indeed a tenant and possessed individual privacy rights within

the shed, then in no way could Borden associate the shed as part of his home,

thus defeating the notion that the area is curtilage to his property. Matlock

himself asserts that as a tenant he enjoyed certain expectations of privacy

exclusive from Borden. So it stands to reason that either Matlock is a tenant on

Borden's property and enjoys Fourth Amendment protections associated with a

residence, or he is not and was present within Borden's curtilage. Either way,

he has no standing to assert Borden's curtilage rights.

   2. Deputy Richerson was legally on the premises.
       Then assuming Matlock is correct and was in fact a tenant on the

property as an independent resident, we see no basis for challenging whether

Deputy Richerson was legally on the premises. Generally, the approach to the

main entrance of a residence is a properly "invadable" area because it is open

to the public.12 And it would then stand to reason that Deputy Richerson

approaching the shed and conducting a "knock and talk" was perfectly legal.




       12   See Quintana, 276 S.W.3d at 758.

                                               8
      Matlock protests and argues that the ability to approach the front door is

not absolutely considered invadable curtilage.13 Essentially, he claims that the

shed's status behind Borden's home and the time of day renders Deputy

Richerson's presence at the front door unreasonable. It is a fairly consistent

principle of Kentucky law that law enforcement may approach a home and

knock without a warrant.14 Deputy Richerson was at the scene to confront

Bowles and was suspicious that criminal activity was afoot. We see nothing

inherently unreasonable in approaching the shed in attempt to corroborate

Bowles's story.

   3. Borden's consent to the search.
      As a final argument, Matlock challenges the validity of Borden's consent

to search the shed. In Schneckloth v. Bustamonte, the Supreme Court

categorically held that consent is a recognized exception to the Fourth

Amendment's warrant requirement. 15 And to elaborate, this ability to consent

by someone possessing common authority or another sufficient relationship

over the premises may be valid against a non-consenting person with whom

that authority is shared.16

      When Matlock, Peay, and Tishner answered the door, Deputy Richerson

immediately smelled methamphetamine in the shed. But at that time, he chose



      13 See Dunn, 480 U.S. at 301 (areas like the front door frequently do not carry
an expectation of privacy "unless obvious steps are taken to bar the public.").
      14   See Maloney v. Commonwealth, 489 S.W.3d 235 (Ky. 2016).
      1s See   412 U.S. 218 (1973).
      16   See United States v. Matlock, 415 U.S. 164 (1974).

                                             9
not to seek a search warrant for the shed. Instead, he awoke Borden and

obtained his consent to search the unit. Matlock argues that as an individual

residence with his own expectation of privacy, Borden could not consent to the

search. We agree with the trial court that the search was legal.

      First, if the shed is in fact Borden's curtilage, this issue is a non-starter.

If he felt the shed was an extension of his home, he would undoubtedly possess

common authority over the unit and would be perfectly able to consent to a

search. So under that aspect of Matlock's case, there can be no question of

valid consent.

      But alternatively, if the shed is not Borden's curtilage and is Matlock's

residence, he argues that Borden may not authorize or consent to a search of

the property. And indeed, the Supreme Court has held that a warrantless

search based on consent of a landlord is illegal.17 So Matlock argues that

Borden was powerless to allow Deputy Richerson inside the shed.

      But in Rlinois v. Rodriguez, the Supreme Court extended the common-

authority doctrine beyond those with actual authority to third parties "whom

the police, at time of entry, reasonably believe to possess common authority

over the premises, but who in fact does not do so." 18 At the time, Deputy

Richerson had no reason to believe anyone lived in the shed as an independent

residence and sought consent from the property owner whom he reasonably




      11   Chapman v. United States, 365 U.S. 610 (1961).
      1s   497 U.S. 177, 179 (1990).

                                           10
believed had the ability to consent to the search. So we are confident Deputy

Richerson acted reasonably under the circumstances.


                                 III.   CONCLUSION.

      For the foregoing reasons, we affirm Matlock's convictions and sentence

in circuit court.

      All sitting. All concur.


COUNSEL FOR APPELLANT:

Shannon Renee Dupree
Assistant Public Advocate
Department of Public Advocacy


COUNSEL FOR APPELLEE:

Andy Beshear
Attorney General of Kentucky

Courtney J. Hightower
Assistant Attorney General




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