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Hatcher v. Commonwealth2/27/2004
TO BE PUBLISHED
OPINION REVERSING AND REMANDING
Dedra Hatcher appeals following a conditional plea of guilty to the charge of possession of drug paraphernalia, entered pursuant to Kentucky Rules of Criminal Procedure (RCr) 8.09, prompted by the circuit court's denial of her motion to suppress a pipe found during a warrantless search of her home. The circuit court denied the motion based on its conclusion that the pipe was in "plain view" and, therefore, fit within an exception to the warrant requirement of the Fourth Amendment to the United States Constitution and Section 10 of the Kentucky Constitution.
The underlying case began when Officer Darryl Carr of the Paducah Police Department responded to a complaint regarding a possibly abandoned minor. When he first knocked on the door to Hatcher's residence, he received no answer. Carr then looked through the side window of the house and saw someone asleep on the couch. He again knocked on the door, this time awakening Hatcher's minor son, who answered the door.
When the door was opened, Carr saw a pipe on a table across the room from where he was standing. Carr described the pipe as being ceramic, having a stem two to four inches long, with a large bowl with a skull on the front of it. During his testimony, Carr held his hands apart in order to approximate the size of the pipe, which approximation appeared more consistent with the larger range described in his testimony. Similarly, in describing the size of the pipe's bowl, he made a circle as large as could be made while maintaining contact between his thumb and fingers.
Upon seeing the pipe, Carr entered the house. He testified that after he picked up the pipe, he detected the odor of marijuana emanating from it. Carr then seized the pipe, which would serve as the basis for a single charge of possession of drug paraphernalia. No marijuana, other drugs, or other paraphernalia were discovered in Hatcher's residence.
In its order denying Hatcher's motion to suppress the pipe, the circuit court found that the pipe was observed by Officer Carr while he was in a place he was legally entitled to be and, thus, fit within the "plain view" exception to the prohibition against warrantless searches. While the Common wealth devotes a great deal of effort on appeal arguing that the pipe was produced as a result of a consensual search, its theory below was one of "plain view" as reflected by the circuit court's order. Therefore, we will not reach its consent argument, it not having been properly presented below.
The "plain view" exception to the prohibition against warrantless seizure was first articulated by the United States Supreme Court in Coolidge v. New Hampshire.
Several elements must exist for this exception to be allowed. First, the law enforcement officer must not have violated the Fourteenth Amendment in arriving at the place where the evidence could be plainly viewed. Second, not only must the officer be lawfully located in a place from which the object can be plainly seen, but he or she must have a lawful right of access to the object itself. Finally, the object's incriminating character must also be immediately apparent. Justice Stewart, writing for the majority in Coolidge, added a fourth limitation on the plain view doctrine, but this requirement did not represent the majority view. The "inadvertent discovery" element required the discovery of the evidence in plain view to be inadvertent.
The U.S. Supreme Court recently reiterated the requirements of the plain view doctrine in Horton v. California, and expressly rejected the "inadvertent dis covery" requirement set forth in the plurality opini
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