             IMPORTANT NOTICE
        NOT TO BE PUBLISHED OPINION

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                                             RENDERED: DECEMBER 18, 2014
                                                    NOT TO BE PUBLISHED

              ,inprrtur Gurt
                              2013-SC-000678-MR


CHARLES STANFILL
                                                     DATE             APPS         T'


               ON APPEAL FROM CALLOWAY CIRCUIT COURT
V.            HONORABLE TIMOTHY C. STARK, SPECIAL JUDGE
                           NO. 10-CR-00212


COMMONWEALTH OF KENTUCKY                                               APPELLEE



                  MEMORANDUM OPINION OF THE COURT

                                  AFFIRMING

      A Calloway Circuit Court jury found Charles Stanfill, Appellant, guilty of

manufacturing methamphetamine, second or greater offense. Appellant was

sentenced to twenty years' imprisonment, and now appeals as a matter of right,

Ky. Const. § 110(2)(b). He raises the following issues on appeal: (1) the jury

improperly heard about his earlier vacated conviction for possession of

methamphetamine and (2) the trial court erred in denying his motion to

suppress the evidence seized from his home.


                                 I. BACKGROUND

      In December 2010, Appellant was arrested while on parole from a fifteen-

year sentence for the manufacture of methamphetamine, possession of

anhydrous ammonia in an unapproved container with intent to manufacture

methamphetamine, and use of drug paraphernalia. Appellant's friend, Billy

Reed, was present on the morning of Appellant's arrest and testified at trial to
the following facts. Reed stated he stopped by Appellant's house to pick up a

torque wrench, and to ask Appellant for another payment on the car he was

selling to him. Reed and Appellant were in Appellant's storage outbuilding

getting the torque wrench when they saw police pull up. Reed has a previous

conviction for manufacturing methamphetamine, and had been on parole

before. Therefore, he was aware that his friend could be violating parole for

associating with him, so he hid in a closet. He did not remember seeing any

jars or tubes in the outbuilding, but did smell ammonia in the closet, which he

associated with methamphetamine.

          Parole Officer Chris Hendricks and Deputy Richard Steen also testified at

trial. Officer Hendricks, Deputy Steen, and Parole Officer Brett Sorrells went to

Appellant's residence that morning to arrest him for multiple parole violations,

including testing positive for methamphetamine. As they walked around the

property, Deputy Steen noticed a chemical smell coming from an outbuilding.

He also heard what sounded like two male voices talking inside. He called for

whoever was inside to come out. When Appellant walked out of the

outbuilding, Officer Hendricks arrested him and patted him down. He found a

lighter, wallet, empty pseudoephedrine blister packs, and a plastic baggie of

white pellets, which Appellant claimed were fertilizer for his grandmother's

flowers. Having heard a second voice coming from the outbuilding, Deputy

Steen did a protective sweep of the building and found Reed hiding in the

closet.




                                           2
      Deputy Steen called Detective Chris Garland of the Pennyrile Narcotics

Taskforce. Detective Garland drove to Appellant's house and spoke with both

Appellant and Reed, and was shown the white pellets found on Appellant

(suspected to be ammonium nitrate pellets). Detective Garland applied for a

search warrant, citing Deputy Steen's statements about the chemical smell

coming from the outbuilding, the empty pseudoephedrine blister packs and

suspected ammonium nitrate pellets found in Appellant's pockets.

      Detective Garland testified that after obtaining the search warrant for the

outbuilding, he and the Kentucky State Police Clandestine Lab Team found

items he believed to be indicative of a meth lab inside. These items included

empty packages of pseudoephedrine, some acids, lithium batteries that had

been opened up, smoke generator hoses, coffee filters, various jars and bottles,

and black items suspected to be lithium. A suspected one-step lab was located

in the outbuilding on a shelf on top of the closet. Detective Garland took

samples from the bottle to be sent for testing. Detective Garland next obtained

a second warrant to search Appellant's residence and seized several items from

the residence, including digital scales and a receipt from Walgreens for

pseudoephedrine. Appellant was eventually found guilty of manufacturing

methamphetamine and sentenced as noted above. This appeal followed.


                                   II. ANALYSIS

   A. Introduction of Previous Conviction at Trial

      Movant's first argument on appeal is that he was prejudiced by the




                                        3
Commonwealth's introduction at trial of his previous conviction for pos -session

of methamphetamine. In 2008, Appellant was convicted of multiple crimes,

including manufacturing methamphetamine, first offense, for which he was

sentenced to fifteen years' imprisonment. As previously noted, he was on

parole from this sentence when he was charged with the current offense.

      At trial in the present case, Parole Officer Chris Hendricks testified on

behalf of the Commonwealth that Appellant was previously of convicted of

manufacturing methamphetamine and possession of methamphetamine. 1

                                                                                Howev r,thepos e sionconvictonhad ctualybe nsubsequentlyvac tedby

the Court of Appeals because Appellant's convictions at the time for both

manufacture and possession of methamphetamine violated double jeopardy

law. 2 Appellant contends that the introduction of this voided conviction as

evidence against him was material to the result of this case as there was a

"reasonable likelihood that the false testimony could have affected the

judgment of the jury." Robinson v. Commonwealth, 181 S.W.3d 30, 38 (Ky.

2005) (citing United States v. Agars, 427 U.S. 97, 103) (1976)). Specifically,

Appellant argues that there is a reasonable likelihood that hearing about



        Appellant's prior conviction for manufacture of methamphetamine was
relevant evidence in the guilt phase of trial because he was charged with manufacture
of methamphetamine, second or greater offense.
       2 This Court has held that possession of methamphetamine, KRS 218A.1415 is

a lesser-included offense of manufacturing methamphetamine, KRS 218A.1432 for the
purposes of double jeopardy. Beaty v. Commonwealth, 125 S.W.3d 196 (Ky. 2003).
Convictions for both possession and manufacturing of methamphetamine would only
be permissible if the methamphetamine that the defendant was convicted of
possessing was not the same methamphetamine that he was convicted of
manufacturing. Id.

                                          4
another conviction against Appellant tipped the balance for the jury to find him

guilty. Additionally, he asserts that learning about a conviction for possession

likely also pushed the.jury away from his innocent possession defense. 3

      Appellant admits this issue is unpreserved, but requests palpable error

review pursuant to RCr 10.26. "Palpable error affects the substantial rights of

the party and results in manifest injustice. Furthermore, an appellant

claiming palpable error must show that the error was more likely than ordinary

error to have affected the jury."   Boyd v. Commonwealth, 439 S.W.3d 126, 129-

30 (Ky. 2014). "In determining whether an error is palpable, 'an appellate court

must consider whether on the whole case there is a substantial possibility that

the result would have beer; any different."'    Commonwealth v. Pace, 82 S.W.3d

894, 895 (Ky. 2002) (citing Commonwealth v. McIntosh, 646 S.W.2d 43. 45 (Ky.

1983)).

      The jury correctly heard from Officer Hendricks that Appellant had been

previously convicted of manufacturing methamphetamine, and found him

guilty of manufacturing methamphetamine, second or greater offense. Officer

Hendricks's testimony regarding Appellant's vacated conviction for possessing

methamphetamine is unlikely to have affected the jury's decision, given that

the manufacture of methamphetamine already necessarily indicates

possession. Thus, we do not hold that there is a substantial possibility that


       3 At trial, Appellant denied possession of the items in the outbuilding with the

intention to make methamphetamine. He told the jury that Tim Smith, who served as
a witness against him in his previous methamphetamine case, was afraid of him and
would like nothing more than to see him go back to prison, indicating that Smith had
planted the items on his property.

                                           5
the result of Appellant's trial would have been any different due to introduction

of his vacated conviction, and Officer Hendricks's testimony does not rise to the

level of palpable error.

   B. Motion to Suppress

      Appellant's second argument on appeal is that the trial court erred in

denying his motion to suppress the evidence seized from his property.

Specifically, he argues that Deputy Steen's search of his outbuilding was

unreasonable, and therefore tainted the subsequent search warrant obtained

by Detective Garland.

   " The trial court set out the following findings of fact and conclusions of

law in its order denying Appellant's motion to suppress:

      An Officer from Probation and Parole went to the Defendant's
      dwelling to execute a detainer for apparent parole violations. From
      the evidence, it appears that the Defendant had multiple positive
      drug tests; he had a prior history of involvement with
      methamphetamine; when he was searched [incident to arrest] he
      was found to have a baggie with a white granular substances in it
      (which he said was fertilizer for his grandmother's plants, the
      fertilizer being ammonium nitrate); he also had empty
      pseudoephedrine blister packs in his pocket; and the Officer who
      had previously' completed training in methamphetamine lab
      cleanup smelled ether coming from the structure.
                                                                                 b

      The Court finds that the search would be supported by reasonable
      suspicion that the probationer was engaged in criminal activity.

      Apart from the facts included in the trial court's findings of fact, the

following additional facts from testimony at trial are also relevant. When the

officers went to Appellant's home to arrest him for parole

violations, they first knocked on the door of his residence. When Appellant did

not answer the door, they began to look around the property for him. Deputy

                                         6
Steen approached an outbuilding that was located thirty to forty yards from

Appellant's residence. He smelled ether coming from the building, and heard

voices coming from inside that sounded like two males talking. Deputy Steen

called for whoever was in the building to come out. Appellant came outside,

but appeared to be talking to someone still inside the outbuilding. After

Appellant was arrested, Deputy Steen testified that he asked whoever else was

in the outbuilding to come out. When no one answered, he conducted a

protective sweep of the building for officer safety, and found Reed. He testified

that he was inside the building for less than five minutes, long enough to find

Reed and bring him back outside. He did not seize any items while in the

outbuilding or make note of what was in there.

      Appellant argues that Deputy Steen's sweep of the outbuilding was

unreasonable, and that this misconduct tainted the subsequent search

warrant that was obtained by Detective Garland. Therefore, he asserts that

any evidence seized as part of the search warrant is fruit of the poisonous tree.

      A protective sweep for officer safety is an exception to the normal warrant

requirement for search.   Guzman v. Commonwealth, 375 S.W.3d 805, 807 (Ky.

2012). Objects found and seized during a protective sweep are admissible at

trial. Id. Police may conduct a "protective sweep of areas not adjoining the

place of arrest if supported by articulable facts which, taken together with the

rational inferences from those facts, would warrant a reasonably prudent

officer in believing that the area to be swept harbors an individual posing a




                                         7
danger to those on the arrest scene." Kerr v. Commonwealth, 400 S.W.3d 250,

267 (Ky. 2013).

       If evidence is obtained through an illegal search, it is not admissible

against an accused.     Wilson v. Commonwealth, 37 S.W.3d 745, 748 (Ky. 2001).

This rule "extends to the direct as well as to the indirect products of official

misconduct. Thus, evidence cannot be admitted against an accused if the

evidence is derivative of the original illegality, i.e., is 'tainted' or is the

proverbial 'fruit of the poisonous tree."' Id.

       However, "a major exception to the exclusionary rule exists for

information obtained from independent or causally remote sources."                Id. In

other words, "[e]vidence need not be excluded if the connection between the

illegal conduct and the discovery and seizure of the evidence is highly

attenuated, or when evidence has been obtained by means 'sufficiently

distinguishable' from the initial illegality so that the evidence is 'purged of the

primary taint."' Id.

       Although Appellant argues that Deputy Steen's protective search was

unreasonable, and that consequently Detective Garland's search warrant

leading to the seized evidence was tainted, we note that Detective Garland's

search warrant was not based on anything Deputy Steen saw or seized while

conducting his protective sweep. In fact, Deputy Steen testified that he did not

note any of the items that were in the outbuilding Or report any suspicious

items to Detective Garland. In the affidavit supporting his request for a search

warrant, Detective Garland relied on Deputy Steen's smelling ether from


                                             8
outside the outbuilding, the items seized from Appellant during a search

incident to his arrest, and Appellant's history of manufacturing

methamphetamine along with the fact that Appellant had tested positive for

methamphetamine while on parole. Thus, we need not reach the question of

whether Detective Steen's protective sweep was unreasonable because the

subsequent search of Appellant's property was based on independent evidence

unrelated to the sweep.   See Wilson, supra.

      "When reviewing a trial court's denial of a motion to suppress, we utilize

a clear error standard of review for factual findings and a de novo standard of

review for conclusions of law." Jackson v. Commonwealth, 187 S.W.3d 300,

305 (Ky. 2006). Whether "one enjoys a reasonable expectation of privacy is a

question of law." Burd v. Commonwealth, 2011-SC-000531-MR, 2012 WL

5289418 at *2 (Ky. Oct. 25, 2012). Therefore, we review Appellant's allegation

of error with respect to his motion to suppress de novo.

      In this case, the trial court found that Appellant had multiple positive

drug tests, a prior history of involvement with methamphetamine, a baggie with

white granular substances and empty pseudoephedrine blister packs in his

pocket, and that Deputy Steen, who had previously completed training in

methamphetamine lab cleanup, had smelled ether coming from the structure.

We agree with the trial court that from these facts (independent from Deputy

Steen's sweep), Detective Garland's search was supported by reasonable ,

suspicion that Appellant was engaged in criminal activity. Furthermore, the

information supporting Detective Garland's search warrant is independent of
Deputy Steen's sweep. Thus, the trial court did not err in denying Appellant's

motion to suppress.


                                 III. CONCLUSION

      Appellant was not prejudiced by the introduction of his previous

Conviction (which had been vacated), and the trial court did not err in its

denial of Appellant's motion to suppress. For the aforementioned reasons, we

affirm Appellant's conviction and sentencing.

      All sitting. All concur.




COUNSEL FOR APPELLANT:

Molly Mattingly, Assistant Public Advocate


COUNSEL FOR APPELLEE:

Jack Conway, Attorney General of Kentucky
David Wayne Barr, Assistant Attorney General




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