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RENDERED: FEBRUARY 16, 2017
NOT TO BE PUBLISHED

§§upreme Tunrf of Benfuckg

20 1 6-SC-OOOO66-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 rightl, 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.

 

1Ky. const § 110(2)(b).

I. FACTUAL AND PROCEDURAL BACKGRCUND.
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

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. T he 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.”5 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.”).

3 See United States v. Leon, 486 U.S. 897 (1984).
4 See Ordway 1). Commonwealth, 352 S.W.3d 584, 592 (Ky. 201 1).

5 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.”).

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."' 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 trial judges.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 turn
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.”’).

7 See Commonwealth v. Neal, 84 S.W.3d 920 (Ky. App. 2002). Originally,
Kentucky Rules of Crirninal 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).

8 See Omelas 1). United States, 517 U.S. 690, 699 (1996).
9 Simpson, 474 S.W.3d at 546.

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 T he curtilage of a house extends to a distance that an
individual may reasonably expect to be treated as part of the home itself.11 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 1). 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

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 horne 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 horne 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 1). 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 1). Commonwealth, 489 S.W.3d 235 (Ky. 2016).
15 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 Illinois 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

 

17 Chapman v. United States, 365 U.S. 610 (1961).
18 497 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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