The Richmond Register

Crime

October 29, 2012

State appeals court upholds ruling in drug possession case

RICHMOND — The Kentucky Court of Appeals has ruled that a Richmond man had no reasonable expectation of privacy in the area surrounding his mobile home in a case where a Richmond officer saw him handling cocaine through the home’s window.

Javier Cruz-Vazquez, 32, was charged March 20, 2010, with first-degree trafficking in a controlled substance, second-degree possession of a controlled substance and possession of drug paraphernalia.

Two Richmond police officers, Alfred Gray and Joseph Lain, were on foot patrol that night in the Williams Mobile Home Park on Big Hill Avenue, according to the appeals court ruling that was handed down Oct. 5.

After finishing their foot patrol, the officers took a short cut through the grassy area between two trailers to return to their vehicle, the ruling stated. While walking between the homes, Gray reported seeing Cruz-Vasquez “manipulating items” through a window that appeared to be cocaine and a plastic bag. Although the blinds were drawn, Gray said he could see into the trailer through a gap in the blinds and the bottom of the window seal, according to the ruling.

The officers knocked on Cruz-Vasquez’s door, and when he answered, he was holding the plastic bag, according to the ruling. He dropped the plastic bag and tried to step back into the home, but the officers “grabbed and handcuffed Cruz-Vasquez,” the ruling stated. A warrant was obtained for searching the home and officers reported finding drugs and more paraphernalia.

The plastic bag also tested positive for traces of cocaine, according to the ruling.

Cruz-Vasquez’s attorney made a motion to suppress the arrest and the evidence gathered following the arrest based on the belief that Gray violated the man’s Fourth Amendment rights by looking through the window from the area next to the trailer.

Judge Jean Chenault Logue denied the motion to suppress, and Cruz-Vasquez pleaded guilty to the charges, reserving the right to appeal the ruling. He received a sentence of five years probation.

Two of the three judges on the appeals court panel supported the circuit court’s decision that Cruz-Vasquez’s constitutional rights were not violated. One judge, Janet L. Stumbo, dissented.

Cruz-Vasquez asserted that the area immediately around his rented mobile home was curtilage to his home, giving him a reasonable expectation of privacy in that area. Curtilage is defined as the area immediately surrounding a dwelling, and a home and its curtilage are protected from warrantless search and seizure by the Fourth Amendment.

Madison Circuit Court found that the officers had a legitimate purpose for walking between the trailers, and there is no defined yard for each of the homes, which were very close to each other.

“Based on testimony presented, including photographs, the Court concludes that (Cruz-Vasquez) did not have a reasonable expectation of privacy as to his activity inside the mobile home when his blind was not fully closed,” Judge Logue ruled. “The area between the mobile homes is a common area open to the public, and anyone in the area could have viewed Cruz-Vasquez’s activity.”

In its ruling, the appeals court judges applied a precedent from the U.S. Supreme Court, which has defined four factors when determining if an area near a home is curtilage: “the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by.”

The evidence presented in the case showed the mobile homes were not enclosed, no signs supported a finding that the area was used for “intimate activities that take place in the home,” and Cruz-Vasquez did not take any measures to protect the area from public observation, the appeals court said in its ruling.

Cruz-Vasquez also argued in his appeal that the officers conducted a warrantless search when they entered his home to detain him and seize the plastic.

However, based on legal precedent, the court ruled that officers do have the right to conduct a warrantless search under certain exigent circumstances.

One of these is if officers have probable cause to believe evidence may be removed or destroyed while waiting for a search warrant.

The appeals’ court ruling in this case was designated “not to be published,” meaning it did not create a legal precedent that can be cited in future cases. However, unpublished decisions contain legal analyses that may be important to judges ruling on similar cases.

Sarah Hogsed can be reached at shogsed@richmondregister.com or 624-6694.

1
Text Only
Crime
  • Third student charged in dorm room robbery

    A third person, originally thought to be a robbery victim, was charged Wednesday in connection with an armed robbery that occurred March 30 on Eastern Kentucky University’s campus

    April 23, 2014

  • 4-23 Peter Crowe.jpg Intoxicated man charged with wanton endangerment

    A 27-year-old Richmond man was charged Sunday with second-degree wanton endangerment after he was found intoxicated and walking with several young children in the Keystone Drive area, according to a Richmond police report.

    April 22, 2014 1 Photo

  • Pot throwing downtown leads to arrest

    A Berea man was arrested Saturday after police say he damaged a downtown Richmond business and a parked vehicle by throwing flower pots.
    Jonathan A. McCullough, 34, was charged with first- and third-degree criminal mischief as well as alcohol intoxication, according to a Richmond police report.

    April 21, 2014

  • London police chief ordered to stay away from Berea woman

    A woman who who moved to Berea in February 2013 after a live-in relationship with London Police Chief Stewart O. Walker has obtained an emergency protective order against him from Madison Family Court.

    April 21, 2014

  • 4-19 Brian Smith.jpg Berea man indicted on 24 child porn counts

    A Madison grand jury has indicted a Berea man on 24 counts related to child pornography.

    Brian J. Smith, 26, is charged with four counts of distribution and 20 counts of possession of matter portraying sexual performances by a minor.

    April 19, 2014 1 Photo

  • 4-19 Gregory Powell.jpg Police apprehend burglary suspect

    An observant witness was able to help Richmond police catch a burglary suspect shortly after a break-in Thursday afternoon on Savanna Drive off Berea Road.

    April 19, 2014 1 Photo

  • CCDW instructor indicted on charges of failing to provide training

    A Madison County grand jury has indicted a carry-concealed weapons permit instructor on charges he falsely claimed to have provided instruction to one person for a CCDW permit and provided incomplete training to three others.
    Christopher D. Fins was indicted April 9 on one count of CCDW instructor not providing firearms training and three counts of providing incomplete firearms training.
    Fins faces up to 20 years in prison if convicted of all four felony charges.

    April 17, 2014

  • Sixth person charged in motel meth bust

    A sixth person has been charged in connection with a methamphetamine-making operation discovered last week at the Bel Air Motel in Richmond.
    Roger M. Million, 24, Moberly Road, was charged Wednesday with manufacturing methamphetamine.

    April 17, 2014

  • 4-18 George WilliamsWEB.jpg Madison County inmate dies in Lexington hospital

    An inmate at the Madison County Detention Center died Tuesday at a Lexington hospital, according to officials with the Fayette County Coroner’s Office and Madison County EMS.

    April 17, 2014 1 Photo

  • 4-17 Melissa Lear.jpg BPD charge two in Richmond heroin-trafficking case

    Berea police arrested two women April 10 in a Richmond home in connection with heroin possession and trafficking.

    April 16, 2014 1 Photo

AP Video
Hyperlocal Search
Premier Guide
Find a business

Walking Fingers
Maps, Menus, Store hours, Coupons, and more...
Premier Guide
Poll

Should Richmond rezone the southwest corner of Main Street and Tates Creek Avenue to B-1 (Neighborhood Business) with restrictions to allow construction of a financial services office?

Yes
No
     View Results