                                               RENDERED: OCTOBER 29, 2015
                                                         TO BE PUBLISHED

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                                2014-SC-000653-MR U U     u
MICHAEL E. SIMPSON
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                ON APPEAL FROM JEFFERSON CIRCUIT COURT
V.              HONORABLE SUSAN SCHULTZ GIBSON, JUDGE
                  NO. 13-CR-000990-02 AND 13-CR-002750


COMMONWEALTH OF KENTUCKY                                                  APPELLEE



               OPINION OF THE COURT BY JUSTICE VENTERS

                                  AFFIRMING

      Appellant, Michael Simpson, appeals from a judgment of the Jefferson

Circuit Court convicting him of the crimes of possession of a handgun by a

convicted felon and of being a second-degree persistent felony offender. As

enhanced, Appellant was sentenced to a total of twenty years in prison. He

appeals as a matter of right.

      Appellant contends that the trial court misapplied the law pertaining to a

search based on a "protective sweep" when it denied his motion to suppress his

illegal arrest, seizure, search and fruit from the poisonous tree under. Maryland

v. Buie, 494 U.S. 325 (1990). More specifically, he argues that the police

unlawfully located and identified him during the course of a protective sweep at

a Louisville residence where he was staying, which in turn led to his unlawful

arrest during the course of which he spontaneously uttered an incriminating

statement to police. That incriminating utterance, Appellant contends, should
have been suppressed as the fruit of an unlawful search, seizure, and arrest.

We disagree.

      As demonstrated below, the initial entry of police into the residence was

consensual; under the totality of the circumstances, the scope of the protective

sweep was reasonable; the initial seizure of Appellant was lawful; and the

incriminating statement uttered upon his arrest was spontaneous and not a

product of custodial interrogation. We find no violation of Maryland v. Buie or

other applicable law. We conclude that suppression of Appellant's

spontaneous utterance was not required. Accordingly, we affirm Appellant's

conviction and sentence.


                 I. FACTUAL AND PROCEDURAL BACKGROUND

      The chain of events leading to Appellant's incriminating statement began

when Louisville Police Officers Spaulding and King stopped a vehicle registered

to Cameron Adkins. Police had two outstanding warrants for Adkins' arrest.

The driver of the vehicle explained to the officers that he was a friend of Adkins

and he told them where she could be found. The officers went to the address

and recognized Adkins on the porch. Upon seeing the officers approaching,

Adkins quickly went inside the residence. The officers then called for

assistance in apprehending Adkins.

      Officer Spaulding knocked on the front door. When an occupant of the

house, Anthony O'Neal, opened the blinds of a large window beside the door,

Spaulding saw a handgun resting on the mantle inside the residence. As

O'Neal opened the door, Spaulding saw Adkins retreat into the back part of the

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residence. O'Neal consented to the officers' request to enter the home to

apprehend Adkins on the outstanding warrants. O'Neal's authority to consent

to the officers' entry has not been challenged. Officer King and several other

officers called in as backup entered the residence and joined the search for

Adkins. O'Neal admitted to having possessed the handgun and that he was a

convicted felOn.

      As they searched for Adkins, officers observed drug paraphernalia

throughout the residence. Adkins was eventually located hiding in a bedroom

with another female, Megan Bruce. Adkins and Bruce were taken into the

front room while Officer King looked about the residence for other individuals

whose presence might pose a potential threat to the officers. King found

Appellant in the basement trying to hide behind the furnace, and brought him

to the front room with the other occupants of the home.

      The officers began a check to determine if any of the other individuals

present had outstanding warrants. Adkins and Bruce had outstanding

warrants and were arrested for that reason. O'Neal was arrested based upon

his verified admission that he was a convicted felon and his admission that the

handgun on the mantle belonged to him. Appellant falsely identified himself to

officers as "Ralph Simpson." When officers found no outstanding warrant for

"Ralph Simpson," they allowed Appellant to leave the residence.

      Soon afterward, Officer King discovered that Appellant had

misrepresented his true identity, and that his true name is Michael Simpson.

Furthermore, it was discovered that a warrant for Appellant's arrest was


                                       3
outstanding. Appellant was quickly located and arrested on the warrant and

for giving the police a false name. While being processed into jail, Appellant

spontaneously acknowledged to Officer King that he owned the handgun found

at the residence. At that point, Appellant was charged with the additional

offense of possession of a handgun by a convicted felon.

      Appellant was tried for possession of a handgun by a convicted felon and

for being a persistent felony offender. Appellant moved to suppress the

evidence gathered by police as a result of the search of O'Neal's residence.

Appellant asserted that the statement he allegedly made to Officer King

admitting ownership of the handgun found on the mantle should be

suppressed because the police had neither reasonable suspicion nor probable

cause to enter the basement of the residence and seize him, and that any

evidence obtained as a result of the illegal seizure of his person must be

suppressed as fruit of the poisonous tree.   See Wong Sun v. United States, 371

U.S. 471 (1963). Finding that the officers engaged in a proper protective sweep

which resulted in finding Appellant in the basement, the trial court denied the

motion and the case proceeded to trial. Appellant was found guilty of being a

felon in possession of a handgun. Appellant was additionally found to be a

second-degree persistent felony offender and was sentenced to a total of twenty

years' imprisonment. This appeal followed.




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                                      II. ANALYSIS

A. Standard of Review — the transition from RCr 9.78 to RCr 8.27

       At the time of Appellant's trial, RCr 9.78 was in effect and governed

pretrial motions to suppress evidence.' RCr 9.78 provided that "[i]f supported

by substantial evidence, the factual findings of the trial court shall be

conclusive." Under RCr 9.78 we apply the two-step process adopted in Adcock

v. Commonwealth, 967 S.W.2d 6 (Ky. 1998). First, we review the trial court's

findings of fact under a clearly erroneous standard.      Welch v. Commonwealth,

149 S.W.3d 407, 409 (Ky. 2004). Under this standard, the trial court's findings

of fact will be conclusive if they are supported by substantial evidence.      See CR

52.01; Canler v. Commonwealth, 870 S.W.2d 219, 221 (Ky. 1994) (citations

omitted). We then "conduct a de novo review of the trial court's application of

the law to the facts to determine whether its decision is correct as a matter of

law." Payton v. Commonwealth, 327 S.W.3d 468, 471-72 (Ky. 2010) (quoting

Commonwealth v. Neal, 84 S.W.3d 920, 923 (Ky. App. 2002)).

       Effective January 1, 2015, RCr 9.78 was superseded by RCr 8.27.

Unlike its predecessor, RCr 8.27 does not specifically address an appellate

standard of review. However, CR 52.01 2 provides that findings of fact shall not

be set aside unless clearly erroneous. "A finding supported by substantial




        RCr 9.78 was deleted effective January 1, 2015.
      2 RCr 13.04 provides that "[t]he Rules of Civil Procedure shall be applicable to
criminal proceedings to the extent not superseded by or inconsistent with these Rules
of Criminal Procedure. Given the rule change, RCr 13.04 makes CR 52.01 applicable.



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evidence is not clearly erroneous." 3 Hunter v. Mena, 302 S.W.3d 93, 97 (Ky.

App. 2010) (citation omitted). Consequently, the application of CR 52.01 leads

us to the identical standard applied under RCr 9.78. Accordingly, while RCr

9.78 has been superseded, the standard of review for a pretrial motion to

suppress as stated in Adcock, Welch, Canler, Payton, and Neal, all of which

were buttressed by RCr 9.78, remains substantively unaffected.

B. The Trial Court's Factual Findings
       Following the suppression hearing the trial court entered the following

findings:

       The testimony of record is that police detective Spaulding received
       information that a subject for whom there was an outstanding
       arrest warrant, Cameron Adkins, might be at 1176 Wilson Avenue.
       When the detective arrived at that addres -s, he saw Ms. Adkins on
       the porch. She immediately went inside. Spaulding called for
       backup and was joined by Detective King. They approached the
       house and knocked on the door. While standing on the doorstep,
       Spaulding observed a person later identified as Defendant O'Neal
       open the blinds of a large window beside the front door, then
       retreat. Through the window, Spaulding observed a handgun
       setting on the mantle in the unfurnished room. Several moments
       later, O'Neal opened the door. Spaulding saw other individuals in
       the home. O'Neal was informed of the purpose of the officers' visit,
       and O'Neal allegedly allowed the detectives to enter the home. In
       response to a question about the ownership of the gun, O'Neal
       allegedly stated that the gun was his. King testified that he
       searched the home and located two females, one being Ms. Adkins.
       He also observed suspected controlled substances and
       paraphernalia in the interior rooms. He found Defendant Simpson
       in the basement of the home. All the occupants were then led to
       the front from that the detectives first entered. O'Neal and the two
       females were arrested, and Simpson was cited for drug


      3 "Substantial evidence is that which, when taken alone or in light of all the
evidence, has sufficient probative value to induce conviction in the mind of a
reasonable person." Hunter v. Mena, 302 S.W.3d 93, 97 (Ky. App. 2010) (internal
quotes and citation omitted).

                                            6
       paraphernalia. However, the detectives confirmed shortly
       thereafter that Simpson had given a false name and had an
       outstanding warrant, he was arrested as he walked down the
       street.
       Appellant disputes minor details of the trial court's factual findings 4

which are not relevant to our disposition of the case. The trial court's material

findings, as set forth above, are entirely supported by the testimony given at

the suppression hearing and are therefore binding upon our review. CR 52.01;

Canler, 870 S.W.2d at 221. As to the trial court's recitation that "O'Neal

allegedly allowed the detectives to enter the home," based upon the trial court's

disposition of the case, we construe as a finding that O'Neal did in fact allow

the officers to enter the home for the purpose of finding and arresting Adkins

on the outstanding warrants.

C. De Novo Application of the Law to the Trial Court's Findings

      The Fourth Amendment to the United States Constitution and Section 10

of the Kentucky Constitution protect citizens from unreasonable searches and

seizures by the government. Warrantless searches and seizures inside a home

are presumptively unreasonable. Payton v. New York, 445 U.S. 573, 586

(1980). However, warrantless searches of a residence based upon the consent

of a person with the authority to give such permission is a well-established

exception to the warrant requirement. Bratcher v. Commonwealth, 424 S.W.3d

411, 413 (Ky. 2014). Furthermore, "for Fourth Amendment purposes, an arrest

warrant founded on probable cause implicitly carries with it the limited


      4  For example, Appellant questions the trial court's findings regarding the
precise sequence of when those present were gathered together in the living room of
the residence.

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authority to enter a dwelling in which the suspect lives when there is reason to

believe the suspect is within." Payton, 445 U.S. at 603.

       As noted above, O'Neal gave the police permission to enter the residence

for the purpose of locating Adkins and there is no allegation that O'Neal lacked

the authority to consent to the entry. Given that O'Neal had consented, the

trial court properly determined that the officers' initial warrantless entry into

the home was lawful. Bratcher, 424 S.W.3d at 413. Moreover, the officers had

a valid warrant for Adkins' arrest and having just seen her enter the residence,

they had reason to believe she was inside. Under Payton, they were authorized

to enter the residence to execute the warrant even without O'Neal's consent.

       Since the initial police entry into the residence was proper, the question

is then reduced to whether the officers properly extended their search into the

basement where Appellant was found after their purpose, arresting Adkins,

had been accomplished. As recognized by the trial court and the parties, the

established warrant exception at issue at this point in this case is the so called

"protective sweep" exception as articulated in Maryland v. Buie, 494 U.S. 325

(1990). We recognized this exception and adopted the Buie holding in Guzman

v. Commonwealth, 375 S.W.3d 805, 807 (Ky. 2012), 5 and we further explained

its principles in Kerr v. Commonwealth, 400 S.W.3d 250 (Ky. 2013), and

Brumley v. Commonwealth, 413 S.W.3d 280 (Ky. 2013).



      5 It is important to note that Guzman is distinguishable from this case because
in Guzman the original consent to enter the residence was limited to consent to enter
the front room, whereas here the consent was to enter the home, generally, to arrest
Atkins. The consent authority here was far broader than in Guzman.

                                          8
       Buie permits officers to conduct protective sweeps in two situations.

First, with or without probable cause or reasonable suspicion, officers may

conduct a protective sweep "as a precautionary matter," looking into spaces

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

immediately launched." Brumley, 413 S.W.3d at 284. Because the protective

sweep here extended well beyond the immediate vicinity from which an

immediate attack could be launched, this prong of Buie is not implicated.

       Second, a protective sweep may extend beyond the area immediately

surrounding the place of arrest into places that, to a reasonably prudent officer

relying upon rational inferences drawn from articulable facts, may harbor a

person that poses a threat to those on the scene of the arrest.   Id. Justification

for this type of sweep implicates the well-known reasonable suspicion standard

as stated in Terry v. Ohio, 392 U.S. 1 (1968). Buie, 494 U.S. at 334; See

Brumley, 413 S.W.3d at 284. This second type of Buie protective sweep is

implicated here.

      "Reasonable suspicion must be determined under the totality of the

circumstances, considering all of the information available to law enforcement

officials at the time." Brumley, 413 S.W.3d at 285 (internal quotes omitted)

(citing Humphrey v. Mabry, 482 F.3d 840, 846 (6th Cir. 2007) (quoting Feathers

v. Aey, 319 F.3d 843, 849 (6th Cir. 2003)). "However, determinative

information must relate to the purpose for which the protective sweep

exception was created." Id. "The justification for a protective sweep is the




                                        9
safety threat posed by unseen third parties in the house."      Id. (citing Buie, 494

U.S. at 336).

      The trial court succinctly summed up the factors supporting reasonable

suspicion in its suppression order:

      In this case, before Detectives Spaulding and King ever entered the
      home, they knew at least two people were in the home, and that
      there was at least one weapon in the home. Upon the opening of
      the door, the officers observed a third person in the home, going
      from room to room. Because of the multiple persons present, as
      well as the presence of the weapon, the Court finds that the
      detectives had articulable facts from which they could reasonably
      infer that there were other people in the home who could pose a
      threat to officer safety. The protective sweep of the house was
      therefore proper.

      Our analysis also takes into account another factor that confronted the

officers. In addition to being aware of the gun and drug paraphernalia in the

home, the officers also were aware that the house was without workable sinks

or toilets, giving the residence some indicia of being a drug house. Drug

houses, and their occupants, inherently pose dangers to police officers. Under

the totality of the circumstances, this more expansive protective sweep was

justified because of the reasonable concern that unseen additional persons

may be on the premises posing a threat to the officers.

      In summary, we are persuaded that the trial court properly determined

that the officers (1) lawfully entered the residence to arrest a fugitive, and (2)

conducted a lawful protective sweep justified by articulable facts from which a

reasonably prudent officer would believe that other individuals posing a danger

to the police may be present. Then, after learning that Appellant had falsely

identified himself and that he, too, had an outstanding warrant against him,
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the police lawfully arrested Appellant. And finally, Appellant's incriminating

expression was spontaneous and not a product of custodial interrogation.

Consequently, the statement was lawfully used against him at trial.    Campbell

v. Commonwealth, 732 S.W.2d 878, 881 (Ky. 1987) ("Volunteered statements of

any kind are not barred by the Fifth Amendment and their admissibility is not

affected.") (citation omitted).

      In summary, the trial court properly denied Appellant's motion to

suppress the evidence obtained against him as a result of the initial entry into

the home and the ensuing protective sweep.


                                  III. CONCLUSION
      For the foregoing reasons, the judgment of the Jefferson Circuit Court is

affirmed.

      All sitting. All concur.




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COUNSEL FOR APPELLANT:

Daniel T. Goyette
Louisville Metro Public Defender of Counsel
Office of the Louisville Metro Public Defender

Cicely Jaracz Lambert
Assistant Appellate Defender
Office of the Louisville Metro Public Defender

Sean Thomas Pharr
Louisville Metro Public Defender



COUNSEL FOR APPELLEE:

Jack Conway
Attorney General of Kentucky

Taylor Allen Payne
Assistant Attorney General
Office of Criminal Appeals
Office of the Attorney General




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