CRIMINAL – Search & Seizure: Smith v. Commonwealth (COA 10/23/2009)

Smith v. Commonwealth
2008-CA-000770 10/23/09 2009 WL 3400285
Opinion by Judge Caperton; Judge Stumbo and Senior Judge Buckingham concurred.

The Court affirmed a judgment of the circuit court entered pursuant to appellant’s conditional guilty plea after the court denied a motion to suppress evidence.

The evidence was seized pursuant to a search warrant obtained based on information gathered from a warrantless search of trash cans left for collection. The Court first held that the motion to suppress was properly denied as the trial court’s finding that the information contained in the affidavit was not stale was supported by substantial evidence. The information provided in the four corners of the affidavit indicated that criminal drug activity was of a protracted and continuous nature. Thus, based on the nature of the drug offenses, the judge could properly infer there was a fair probability that evidence of wrongdoing would still be found on the premises, despite the fact that identifying material was not found in a third trash pull. Further, the information in the affidavit was accurate and not misleading. The Court then held that Section 10 of the Kentucky Constitution did not afford greater protection than the Fourth Amendment of the U.S. Constitution. Therefore, the warrantless search and seizure of trash left for collection did not require an articulable, individualized suspicion.

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