The Richmond Register

October 29, 2012

State appeals court upholds ruling in drug possession case

By Sarah Hogsed
Register News Writer

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.