Search and Seizure: OLDEN V. COM. (SC 10/19/2006)

OLDEN  V. COM.
CRIMINAL:  Search warrant (forfeiture)
2005-SC-000502-MR.pdf
PUBLISHED: AFFIRMING IN PART AND REVERSING IN PART (SCOTT)
DATE RENDERED: 10/18/2006

SC affirmed Defendant’s conviction and 40 year sentence for trafficking in cocaine, but reversed the TC’s order of forfeiture of Defendant’s personal property.

Though the issue was not preserved, SC nonetheless found that the trial court did not abuse its discretion in admitting the testimony concerning marijuana found at the Defedant’s residence during the search.

TC properly upheld validity of search warrants. Officer McDowell testified as to the reliability of the information he received during the two traffic stops. The officer noted that he had very recently observed the vehicles parked at Defendant’s house, and he waited until the vehicles left the area to pull them over on traffic violations. Further, he testified that Gordon, who was pulled over and found to be in possession of crack cocaine on May 17, 2004, voluntarily signed a statement to the effect that she had smoked crack with Defendant at his house just prior to being pulled over and that Defendant had given her some crack to take home. TC properly excluded the written statement of informant as there were no corroborating circumstances to indicate the trustworthiness of the statement, nor was there any cross-examination permitted in this circumstance by which such trustworthiness could be examined.

Although the trial court had discretion in finding whether the Defendant had indeed met his burden in rebuttal and in ultimately ordering the forfeiture, Commonwealth v. Shirlev, 140 S.W.3d 593, 598 (Ky. App. 2004), there could be no forfeiture without first providing the claimants with notice and an opportunity to be heard. Therefore, we reverse the trial court’s order of forfeiture and remand the issue to the trial court so that notice may be properly served concerning the property to be forfeited such that the claimants may be adequately apprised of such in order to attempt to rebut any presumptions pursuant to KRS 218A.