PROTECTIVE SWEEP SEARCH: HAMILTON V. COM. (COA 9/28/2007)

HAMILTON V. COM.
CRIMINAL:  SEARCH AND SEIZURE, PROTECTIVE SWEEP

2006-CA-001135
PUBLISHED: AFFIRMING
PANEL:  LAMBERT PRESIDING; KELLER AND STUMBO CONCUR
COUNTY: PIKE
DATE RENDERED: 09/28/2007

TC properly denied Hamilton’s motion to suppress evidence seized during warrantless search of his home under the protective sweep exception. The totality of the circumstances reveal that Officer Justice had some information that Hamilton may have been involved in drug trafficking. On this particular occasion, with the questionable information given by witness concerning a “car deal,” the officers would have reason to believe that a drug transaction had recently taken place. Moreover, when the officers arrived at Hamilton’s residence, Beverly’s erratic behavior in conjunction with the voluntary statements made by Hamilton regarding a potential outstanding warrant gave reason to the police to suspect she could be concealing or destroying evidence or worse taking actions that could bring the officers’ safety into question.

The protective sweep concept has been acknowledged in several Kentucky and Sixth Circuit cases. See, e.g., U.S. v. Colbert, 76 F.3d 773 (6th Cir. 1996); U.S. v. Johnson, 9 F.3d 506, 510 (6th Cir. 1993); U.S. v. Rigsby, 943 F.2d 631 (6th Cir. 1991); Davis v. Commonwealth, 120 S.W.3d 185 (Ky.App. 2003). Furthermore, it was reasonable for Justice to believe that Beverly had common authority over the residence and therefore had the capacity to consent to search given that she was present at the time of police contact, was familiar enough with the interior to find a closet in which to hide, volunteered to show where the drugs and money would be located, and was Hamilton’s live-in girlfriend. See, e.g., Commonwealth v. Nourse, 177 S.W.3d 691 (Ky. 2005), citing U.S. v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974).

Digested by Scott C. Byrd
Olgin and Byrd

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