KY: Protective sweep was illegal, but officers would have gotten a SW anyway for the obvious, so inevitable discovery applies

Officers coming to do a drug knock and talk saw dead ducks on defendant’s porch, so they asked how he killed them. He said that he shot them with a shotgun. Defendant, however, was a convicted felon. They asked where the gun was. He said it was inside, and he offered to go get it. Officers declined and asked for consent. He refused, so they arrested him based on his admission he was a felon in possession. They caucused amongst themselves and with a state’s attorney on the phone and decided to do a protective sweep and a search warrant, and they saw the gun. They retreated and got a search warrant. That was unreasonable because there was no justification whatsoever for a protective sweep. However, they could have gotten a search warrant based on what they knew before the protective sweep. Not only that, all the information they had about a potential meth lab on the property was good enough to get a search warrant anyway. Inevitable discovery supports the search warrant. Carter v. Commonwealth, 2014 Ky. App. LEXIS 44 (March 14, 2014):

The fact that the arrest was conducted outside the home and that officers had observed no signs that the home was otherwise occupied dispels any claim of fear of an “immediate threat” to the arresting officers. See Commonwealth v. Elliott, 714 S.W.2d 494, 496 (Ky. App. 1986). We conclude that this warrantless search violated the Fourth Amendment because it did not fall within the exception for a protective sweep. However, our analysis continues.

As the circuit court was aware, the “inevitable discovery rule” also bears upon the question of suppression. Under the inevitable discovery rule, it is permissible to admit “evidence unlawfully obtained upon proof by a preponderance of the evidence that the same evidence would have been inevitably discovered by lawful means.” Hughes v. Commonwealth, 87 S.W.3d 850, 853 (Ky. 2002) (citing Nix v. Williams, 467 U.S. 431, 104 S. Ct. 2501, 81 L. Ed. 2d 377 (1984)). “The rationale behind the rule is that it does not put the police in a better position than they would have been absent the error, but only puts them in the same position as if there had been no unlawful search.” Commonwealth v. Elliott, 714 S.W.2d 494, 496 (Ky. App. 1986) (citing Nix, 467 U.S. at 443, 104 S. Ct. at 2509, 81 L. Ed. 2d 377 at 387).

In its original April 12, 2012, order denying suppression, the trial court stated that, even if this warrantless search did not qualify as a protective sweep, the “evidence would have been inevitably discovered[.]” The conclusory statement is not supported in this one-page order by any fact determinations that would have been helpful to this Court in considering an alternative basis upon which to affirm the trial court. However, the subsequent order denying reconsideration included the following passages relevant to the inevitable discovery of all the evidence:

A neighbor of the defendant interviewed by the officers indicated … that there was an inordinate amount of traffic in and out of the defendant’s home and on Pete Scott Road; in fact, the neighbor stated he had to “run people off” of his own property more than once. He also indicated that he often smelled a strong chemical odor coming from the defendant’s premises (which, according to Officer Stratton, was consistent with the marijuana cultivation supposedly occurring there).

When the defendant arrived at his home on the night of his arrest, investigating officers engaged him in conversation on the front porch. The defendant was initially deceptive with the officers concerning his prior criminal history and whether he had any guns in his home. However, upon further questioning, he acknowledged that he was a convicted felon and that he had a 12 gauge shotgun inside the residence.

(Order, June 7, 2012; emphasis added). These incontrovertible facts establish the reason the officers needed to enter the residence – to retrieve the shotgun as evidence of the crime for which Carter was arrested – a convicted felon in possession of a firearm. These facts also provide a sufficient justification for the issuance of a warrant to enter and search the residence to recover the weapon.