warrant requirement in Kentucky

2021However, an established warrant exception is the protective sweep announced by the United States Supreme Court in Buie, 494 U.S. at 334 , 110 S.Ct. at 1098 , and -5- adopted by Kentucky in Guzman v. Commonwealth, 375 S.W.3d 805, 807 (Ky. 2012).

2014See Guzman v. Commonwealth, 375 S.W.3d 805, 807 (Ky. 2012) (noting this Court’s prior recognition of the protective sweep exception to the warrant requirement in Commonwealth v. Elliott, 714 S.W.2d 494, 496 (Ky.App.1986)).

2025“The plain-view exception to the warrant requirement applies when the object seized is plainly visible, the officer is lawfully in a position to view the object, and the incriminating nature of the object is immediately apparent.”4 Kerr v. Commonwealth, 400 S.W.3d 250, 266 (Ky. 2013) (citing Horton v. California, 496 U.S. 128, 136-37 (1990)). 4 While Bessinger recites this rule, he does not challenge any specific element; he merely argues that “there is not a scintilla of evidence [Deputy] Jewell had a ‘right of access to the [bags].’” -9- Here, the deputy was lawfully in a position to observe

2025We disagree. 13 “The plain-view exception to the warrant requirement applies when the object seized is plainly visible, the officer is lawfully in a position to view the object, and the incriminating nature of the object is immediately apparent.” Kerr v. Commonwealth, 400 S.W.3d 250, 266 (Ky. 2013) (citing Horton v. California, 496 U.S. 128 , 136–37 (1990)).

2010“Destruction of evidence is a recognized exigent circumstance creating an exception to the warrant requirement.” Commonwealth v. McManus, 107 S.W.3d 175 , 177 *28 (Ky.2003).

2007"Destruction of evidence is a recognized exigent circumstance creating an exception to the warrant requirement." Posey v. Commonwealth, 185 S.W.3d 170, 173 (Ky.2006) (quoting Commonwealth v. McManus, 107 S.W.3d 175, 177 (Ky.2003)).

2023Ed. 2d 430 (2014) (citation omitted); see also Cook v. Commonwealth, 826 S.W.2d 329, 331 (Ky. 1992).

2022Guzman v. Commonwealth, 375 S.W.3d 805, 807 (Ky. 2012); Kerr v. 64 Commonwealth, 400 S.W.3d 250, 266 (Ky. 2013). 65 Styles v. Commonwealth, 507 S.W.2d 487, 488 (Ky. 1974). 66 Cook, 826 S.W.2d at 331 . 67McCloud v. Commonwealth, 286 S.W.3d 780, 784-85 (Ky. 2009); Styles, 507 S.W.2d at 489 . 68Hedgepath, 441 S.W.3d at 127-28 ; Chavies v. Commonwealth, 354 S.W.3d 103, 110-11 (Ky. 2011), abrogated on other grounds by Morris v. Commonwealth, 2019- SC-0606-MR, 2021 WL 1133612 (Ky. Mar. 25, 2021). 69 Crowder, 884 S.W.2d at 652. 70 Williams, 213 S.W.3d at 675-76. 71 Kerr, 400 S.W.3d at 266 (citing Hor

2025While a strong marijuana odor was noted in Dunn, 199 S.W.3d at 776 , we are unaware of any precedent specifically requiring that the odor of marijuana be strong for the automobile exception to the warrant requirement to apply.

2024Stewart, supra. “All warrantless searches are presumed to be unreasonable and unlawful, requiring the Commonwealth to bear the burden of justifying the search and seizure under one of the exceptions to the warrant requirement.” Dunn v. Commonwealth, 199 S.W.3d 775, 776 (Ky. App. 2006) (internal quotation marks, -6- footnote, and citation omitted).

2022When a search is conducted without a warrant, “[t]he Commonwealth carries the burden to demonstrate that the warrantless entry falls within a recognized exception to the warrant requirement.”77 In this case, the 76 King v. Commonwealth, 302 S.W.3d 649, 653-54 (Ky. 2010) (citing United States v. Santana, 427 U.S. 38, 43 (1976)), rev’d on other grounds by Kentucky v. King, 563 U.S. 452 (2011). 77 King v. Commonwealth, 386 S.W.3d 119, 122 (Ky. 2012); Gallman v. Commonwealth, 578 S.W.2d 47, 48 (Ky. 1979). 21 Commonwealth failed to raise an argument that any of the above-mentioned exceptions to the

2020Gallman v. Commonwealth, 578 S.W.2d 47, 48 (Ky. 1979). - 11 - Kentucky courts have recognized an exception to the warrant requirement called “plain smell.” It is analogous to the “plain view” doctrine by which a police officer may infer probable cause that an offense has been or is being committed based upon his sense of smell.

2024“The plain-view exception to the warrant requirement applies when the object seized is plainly visible, the officer is lawfully in a position to view the object, and the incriminating nature of the object is immediately apparent.” Chavies v. Commonwealth, 354 S.W.3d 103, 109 (Ky. 2011), abrogated on other grounds by Morris v. Commonwealth, 2019-SC-0606-MR, 2021 WL 1133612 (Ky. Mar. 25, 2021) (citing Horton v. California, 496 U.S. 128, 136-37 , 110 S. Ct. 2301 , 2307-08 110 L.

2016See e.g., Chavies, 354 S.W.3d at 109 (following the Supreme Court’s lead in rejecting an "inadvertent discovery” element as a prerequisite to application of the “plain view” exception to the warrant requirement); Estep v. Commonwealth, 663 S.W,2d 213, 215 (Ky. 1983) (following United States v. Ross, 456 U.S. 798 , 102 S.Ct. 2157 , 72 L.Ed.2d 572 (1982), in upholding the search of a lawfully stopped automobile). .

2024And, “[t]he Commonwealth carries the burden to demonstrate that the warrantless entry falls within a recognized exception to the warrant requirement.” Kerr v. Commonwealth, 400 S.W.3d 250, 266 (Ky. 2013) (quoting King v. Commonwealth, 386 S.W.3d 119, 122 (Ky. 2012)).

2022When a search is conducted without a warrant, “[t]he Commonwealth carries the burden to demonstrate that the warrantless entry falls within a recognized exception to the warrant requirement.”77 In this case, the 76 King v. Commonwealth, 302 S.W.3d 649, 653-54 (Ky. 2010) (citing United States v. Santana, 427 U.S. 38, 43 (1976)), rev’d on other grounds by Kentucky v. King, 563 U.S. 452 (2011). 77 King v. Commonwealth, 386 S.W.3d 119, 122 (Ky. 2012); Gallman v. Commonwealth, 578 S.W.2d 47, 48 (Ky. 1979). 21 Commonwealth failed to raise an argument that any of the above-mentioned exceptions to the

2007"Destruction of evidence is a recognized exigent circumstance creating an exception to the warrant requirement." Posey v. Commonwealth, 185 S.W.3d 170, 173 (Ky.2006) (quoting Commonwealth v. McManus, 107 S.W.3d 175, 177 (Ky.2003)).

2007“Destruction of evidence is a recognized exigent circumstance creating an exception to the warrant requirement.” Posey v. Commonwealth, 185 S.W.3d 170, 173 (Ky.2006) (quoting Commonwealth v. McManus, 107 S.W.3d 175, 177 (Ky.2003)).

2025Simpson v. Commonwealth, 474 S.W.3d 544, 547 (Ky. 2015). 3 To be clear, we do not reverse the trial court’s suppression of the statements made by Slaughter after his placement in the police cruiser because the Commonwealth has not alleged error in the trial court’s resolution of this specific issue on appeal. -7- Trial Court Erred in Suppressing the Marijuana Found in Car Trunk The Fourth Amendment protects against unreasonable searches, and warrantless searches are considered unreasonable unless a recognized exception to the warrant requirement applies.

2021However, “warrantless searches of a residence based upon the consent of a person with the authority to give such permission is a well-established exception to the warrant requirement.” Simpson v. Commonwealth, 474 S.W.3d 544, 548 (Ky. 2015).

2025“Consent is a valid exception to the warrant requirement under the Fourth Amendment.” Id. at 3-4 (citing Commonwealth v. Neal, 84 S.W.3d 920, 923 (Ky. App. 2002)).

2025Whether a suspect voluntarily consented to a search is a question of fact, which the Commonwealth bears the burden of proving “by a preponderance of the evidence from the totality of all the circumstances.” Id. at 4 (quoting Neal, 84 S.W.3d at 925 ); see also Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973). 4 In reviewing a trial court’s decision on a motion to suppress, we apply a familiar two-part standard.

2024The “automobile exception” to -9- the warrant requirement “permits an officer to search a legitimately stopped automobile [without a warrant] where probable cause exists that contraband or evidence of a crime may be in the vehicle.” Commonwealth v. Elliott, 322 S.W.3d 106, 110-11 (Ky. App. 2010) (modification original) (quoting Morton v. Commonwealth, 232 S.W.3d 566, 569 (Ky. App. 2007)).

2020The automobile exception to the warrant requirement “permits an officer to search a legitimately stopped automobile where probable cause exists - 10 - that contraband or evidence of a crime may be in the vehicle.” Morton v. Commonwealth, 232 S.W.3d 566, 569 (Ky. App. 2007).

2010See also id. at 234 , 93 S.Ct. 2041 ("knowledge of a right to refuse is not a prerequisite of a voluntary consent."). [19] The trial court found that Sharon consented to the search, noted the "voluntary consent" of a co-tenant exception to the warrant requirement, and concluded that Sharon "gave valid consent to the search of that household, including the bedroom and its contents." Although the trial court did not explicitly find that Sharon's consent was voluntary, it does not seem unreasonable to assume that it implicitly found such consent voluntary and, in any case, it certainly did not fi

2010See also id. at 234 , 93 S.Ct. 2041 ("knowledge of a right to refuse is not a prerequisite of a voluntary consent."). [19] The trial court found that Sharon consented to the search, noted the "voluntary consent" of a co-tenant exception to the warrant requirement, and concluded that Sharon "gave valid consent to the search of that household, including the bedroom and its contents." Although the trial court did not explicitly find that Sharon's consent was voluntary, it does not seem unreasonable to assume that it implicitly found such consent voluntary and, in any case, it certainly did not fi

2025“The plain-view exception to the warrant requirement applies when the object seized is plainly visible, the officer is lawfully in a position to view the object, and the incriminating nature of the object is immediately apparent.”4 Kerr v. Commonwealth, 400 S.W.3d 250, 266 (Ky. 2013) (citing Horton v. California, 496 U.S. 128, 136-37 (1990)). 4 While Bessinger recites this rule, he does not challenge any specific element; he merely argues that “there is not a scintilla of evidence [Deputy] Jewell had a ‘right of access to the [bags].’” -9- Here, the deputy was lawfully in a position to observe

2025We disagree. 13 “The plain-view exception to the warrant requirement applies when the object seized is plainly visible, the officer is lawfully in a position to view the object, and the incriminating nature of the object is immediately apparent.” Kerr v. Commonwealth, 400 S.W.3d 250, 266 (Ky. 2013) (citing Horton v. California, 496 U.S. 128 , 136–37 (1990)).

2023Accord Katz v. United States, 389 U.S. 347, 357 (1967) (“[S]earches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.”). 24 See Reed, 647 S.W.3d at 243. 10 to the warrant requirement applies.

2022If no exception is applicable, the officers’ search of Reed’s real-time CSLI is presumptively unreasonable and, as such, unconstitutional.63 This Court has adopted several exceptions to the warrant requirement, including searches or seizures performed in the course of a protective sweep,64 while in hot pursuit of a suspect,65 with a suspect’s consent,66 incident to a lawful arrest,67 on automobiles,68 during a “stop-and-frisk,”69 as an administrative inspection,70 of objects in the officers’ plain view,71 or other 63 Helphenstine v. Commonwealth, 423 S.W.3d 708, 714 (Ky. 2014) (citing Katz, 38

2025The plain view exception and the protective sweep exception are “well-established exceptions to the warrant requirement.” Pace v. Commonwealth, 529 S.W.3d 747, 753 (Ky. 2017) (citing Coolidge v. New Hampshire, 403 U.S. 443 , 91 S. Ct. 2022 , 29 L.

2025The plain view exception and the protective sweep exception are “well-established exceptions to the warrant requirement.” Pace v. Commonwealth, 529 S.W.3d 747, 753 (Ky. 2017) (citing Coolidge v. New Hampshire, 403 U.S. 443 , 91 S. Ct. 2022 , 29 L.

2016Nevertheless, as this Court noted in Hughes v. Commonwealth, 87 S.W.3d 850 (Ky. 2002), under one of the widely recognized exceptions to the warrant requirement, police officers are not barred from making warrantless entries and searches of a residence “when they reasonably believe that a person within is in need of immediate aid.” 87 S.W.3d at 852 (citing Mincey v. Arizona, 437 U.S. 385, 392 , 98 S.Ct. 2408 , 57 L.Ed.2d 290 (1978)).

2016Nevertheless, as this Court noted in Hughes v. Commonwealth, 87 S.W.3d 850 (Ky. 2002), under one of the widely recognized exceptions to the warrant requirement, police officers are not barred from making warrantless entries and searches of a residence “when they reasonably believe that a person within is in need of immediate aid.” 87 S.W.3d at 852 (citing Mincey v. Arizona, 437 U.S. 385, 392 , 98 S.Ct. 2408 , 57 L.Ed.2d 290 (1978)).

2025As recently stated by our Supreme Court: “The automobile exception to the warrant requirement applies when the vehicle is readily mobile and probable cause exists to believe evidence of criminal activity may be contained in the vehicle.” Gasaway, 671 S.W.3d at 316 (citing Hedgepath v. Commonwealth, 441 S.W.3d 119, 128 (Ky. 2014)).

2022Additionally, the Court of Appeals found that the good-faith exception to the warrant requirement did not apply because this Court’s decision in Hedgepath v. Commonwealth alerted officers that the warrant requirement for obtaining real-time CSLI was an unsettled point of law.1 The Court of Appeals remanded 1 441 S.W.3d 119 (Ky. 2014). 3 the case to the trial court for further proceedings in accordance with this holding.

2023Id.

2015Bratcher v. Commonwealth, 424 S.W.3d 411, 413 (Ky.2014).

2021However, an established warrant exception is the protective sweep announced by the United States Supreme Court in Buie, 494 U.S. at 334 , 110 S.Ct. at 1098 , and -5- adopted by Kentucky in Guzman v. Commonwealth, 375 S.W.3d 805, 807 (Ky. 2012).

2021However, an established warrant exception is the protective sweep announced by the United States Supreme Court in Buie, 494 U.S. at 334 , 110 S.Ct. at 1098 , and -5- adopted by Kentucky in Guzman v. Commonwealth, 375 S.W.3d 805, 807 (Ky. 2012).

2022Pursuant to the United States Supreme Court’s holding in Arizona v. Gant, “[p]olice may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.” Otherwise, “a search of an arrestee’s vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.” -7- Owens v. Commonwealth, 291 S.W.3d 704, 708 (Ky. 2009) (quoting Gant, 556 U.S. at 351 , 129 S.

2022Pursuant to the United States Supreme Court’s holding in Arizona v. Gant, “[p]olice may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.” Otherwise, “a search of an arrestee’s vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.” -7- Owens v. Commonwealth, 291 S.W.3d 704, 708 (Ky. 2009) (quoting Gant, 556 U.S. at 351 , 129 S.

2024Id.

2023On the one hand, we must weigh the governmental interests at stake, as informed by the justifications for the search incident to arrest exception to the warrant requirement as described in Chimel v. California, 395 U.S. 752 , 762–63 (1969).

2026Indeed, the relevant prior decisions are uniformly to the contrary.” United States v. Watson, 423 U.S. 411, 416-17 (1976). 9 “The usual rule is that a police officer may arrest without warrant one believed by the officer upon reasonable cause to have been guilty of a felony, and that he may only arrest without a warrant one guilty of a misdemeanor if committed in his presence.” Carroll v. United States, 267 U.S. 132, 156-57 (1925) (citations omitted).

2025Id.

2016Nevertheless, as this Court noted in Hughes v. Commonwealth, 87 S.W.3d 850 (Ky. 2002), under one of the widely recognized exceptions to the warrant requirement, police officers are not barred from making warrantless entries and searches of a residence “when they reasonably believe that a person within is in need of immediate aid.” 87 S.W.3d at 852 (citing Mincey v. Arizona, 437 U.S. 385, 392 , 98 S.Ct. 2408 , 57 L.Ed.2d 290 (1978)).

2016Nevertheless, as this Court noted in Hughes v. Commonwealth, 87 S.W.3d 850 (Ky. 2002), under one of the widely recognized exceptions to the warrant requirement, police officers are not barred from making warrantless entries and searches of a residence “when they reasonably believe that a person within is in need of immediate aid.” 87 S.W.3d at 852 (citing Mincey v. Arizona, 437 U.S. 385, 392 , 98 S.Ct. 2408 , 57 L.Ed.2d 290 (1978)).

2024The established and well-delineated exceptions that grant law enforcement the authority to enter someone’s home without a search warrant are: (1) “the consent of a person with the authority to give such permission.” Simpson v. Commonwealth, 474 S.W.3d 544, 548 (Ky. 2015); (2) an arrest warrant, which “implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within.” Id. (quoting Payton, 445 U.S. at 603 ); (3) exigent circumstances 6 Accord Ky. Const. § 10 (“The people shall be secure in their persons, houses,

2022It does not matter whether the police knocked on Bush’s home to talk with him or to effect his arrest; in either situation they still needed a warrant to make him come out.2 The United States Supreme Court unequivocally held in Payton v. New York, 445 U.S. 573, 576 , 100 S.Ct. 1371, 1374-75 , 63 L.Ed.2d 639 (1980) (citations omitted), “the Fourth Amendment to the United States Constitution, made applicable to the States by the Fourteenth Amendment, 2 We recognize that the police did not engage in appropriate knock and talk conduct as they surrounded the house and knocked at Bush’s back door, t

2022Particularly, the trial court analyzed whether a search warrant was required under KRS 189A.105(2)(b) and Fourth Amendment search and seizure principles in light of Birchfield v. North Dakota, 579 U.S. 438 (2016), and then recently-decided Commonwealth v. Brown, 560 S.W.3d 873 (Ky. App. 2018).7 While concluding KRS 189A.105(2)(b)’s plain language negated the warrant requirement because Haney granted consent for the blood draw, the trial court also observed that according to Commonwealth v. Morriss, 70 S.W.3d 419 (Ky. 2002), cited in Brown, KRS 189A.105(2)(b) is not applicable 7 Brown was rende

2021The Court concluded that unlike breath tests, blood tests do not qualify for categorical exception from the warrant requirement under the search-incident-to-arrest doctrine as “[b]lood tests are significantly more intrusive, and their reasonableness must be judged in light of the availability of the less invasive alternative of a breath test.” Id. at 2184 .