CRIMINAL: Search and seizure, knock and talk, voluntary consent — Michael Shawn Payton v. Com. of Kentucky (COA 12/5/2008)

Michael Shawn Payton v. Com. of Kentucky
CRIMINAL:  Search and seizure, knock and talk, voluntary consent
2007-CA-001379
PUBLISHED: AFFIRMING
PANEL: CAPERTON PRESIDING; LAMBERT CONCURS; THOMPSON DISSENTS FILING SEP.
OPINION
GRAYSON COUNTY
DATE RENDERED: 12/5/2008

Michael Shawn Payton (Shawn) appeals from a judgment and sentence of the Grayson Circuit Court entered pursuant to a conditional guilty plea to the charges of two counts of possession of a controlled substance in the first degree, one count of possession of a controlled substance in the second degree, one count of possession of drug paraphernalia, and one count of possession of marijuana.

The COA concluded that the warrantless search of Payton’s home was valid as it was accomplished with the voluntary consent of Sharon Payton (Sharon), Shawn’s wife and a resident of the
home, and thus affirmed the conviction.

Shawn contends that the “knock-and-talk” procedure used to gain access to his residence, and the search conducted thereafter, violated his rights under the Fourth Amendment to the U.S. Constitution and Section 10 of the Kentucky Constitution to be free from an unreasonable search and seizure. 
The trial court found that Sharon voluntarily consented to the officer’s search of the residence by her statement “Come on in,” and that the search did not exceed the scope of that consent. It further found that Sharon’s consent was valid as to Shawn. 
The knock-and-talk procedure employed by law enforcement officers is becoming increasingly prevalent and has been approved as constitutionally permissible by the courts. Quoting Davis v.United States, 327 F.2d 301 (9th Cir.
1964).   Although the inherent potential for intimidation will not negate consent, the Commonwealth cannot meet its burden by showing mere “acquiescence to a claim of lawful
authority.”  Pate v. Commonwealth, 243 S.W.3d 327, 330 (Ky.
2007).   Preliminarily and without contest, Sharon’s consent to search the premises was valid absent Shawn’s contemporaneous objection. Illinois v. Rodriguez, 497 U.S. 177, 186, 110
S.Ct. 2793, 2800, 111 L.Ed.2d 148 (1990)

The voluntary consent given by a co-occupant of a residence who shared common authority over the property is sufficient to authorize a search when the defendant is
present; and under Kentucky law, there is no requirement that an occupant be advised of his Miranda rights or that he had the right to refuse the search. 

Based on the foregoing, we hold that the trial court did not err when it denied Shawn’s motion to suppress the evidence seized from his residence. The judgment of conviction is affirmed.

Digested by Michael Stevens

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