KY: Trial court has no duty to suppress without defense objection

The trial court has no duty to sua sponte suppress when the defense makes no objection. It also isn’t plain error. Gardner v. Commonwealth, 2021 Ky. App. LEXIS 23 (Mar. 12, 2021) (unpublished):

Gardner argues first that the Commonwealth’s presentation of the drug evidence constituted a violation of his rights under the Fourth Amendment of the United States Constitution and Sections Two and Ten of the Kentucky Constitution. Gardner acknowledges that he did not file a motion to suppress the drug evidence, however, and that he did not object to presentation of the evidence at trial. We interpret Gardner’s argument to mean that the trial court’s failure, sua sponte, to exclude the evidence constituted palpable error resulting in injustice sufficient to justify reversal of his conviction.

10.26 provides that a palpable error which affects the substantial rights of a party may be considered by the court on appellate review — even where it has not been properly preserved. In order to be considered “palpable,” an error “must be easily perceptible, plain, obvious and readily noticeable.” Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006). We may grant relief only upon determining that manifest injustice has resulted from the error. RCr 10.26.

Despite his failure to file a motion to suppress, Gardner believes that once the trial court became aware of the facts and circumstances surrounding the search and seizure leading to the discovery of methamphetamine, it erred by failing to exclude the drug evidence as “fruit of the poisonous tree.” We disagree.

The trial court’s role is to ensure a fair trial; it is “not burdened by the duty to try the case on behalf of defense counsel.” Thompson v. Commonwealth, 147 S.W.3d 22, 40 (Ky. 2004). The provisions of RCr 8.27 require a trial court to consider suppression when a party has filed a motion requesting that the evidence be suppressed. A motion to suppress evidence must be made within a reasonable time before trial except for good cause shown. RCr 8.18(1), RCr 8.27. Where a party fails to raise an objection to the evidence, the objection is deemed to be waived. RCr 8.18(2). A trial court is under no obligation to suppress evidence on its own motion. Gardner failed to move to suppress the drug evidence or to object to its admission. Therefore, the court’s failure to suppress it, sua sponte, does not constitute error. Consequently, we decline to review the issue under the palpable-error standard.