Court of Appeals, 2010-CA-00437-MR
Andrew Self, Judge, Christian County
To be Published Opinion, Affirming
Before: Moore, Stumbo, and Wine, Judges.
Opinion by Judge Wine
If the search in this case been conducted after Arizona v. Gant, 556 U.S. 332 (2009), it would have been unlawful. Under Gant, an automobile search incident to a recent occupant's arrest is constitutional (1) if the arrestee is within reaching distance of the vehicle during the search, or (2) if the police have reason to believe that the vehicle contains evidence relevant to the crime of arrest.
But under the more recent Davis v. United States, __U.S.__, 131 S.Ct. 2419, 2428 (2011) for any search –like this one-- conducted prior to Gant, the exclusionary rule does not apply if the police officers have conducted a search in “objectively reasonable reliance” on appellate precedent that was binding at the time of the search. Id. at 2434.
Acknowledging Davis, Artis asked the Court to find the search was unconstitutional on state law grounds. But the COA held that while the Kentucky Constitution has been held to offer greater protection of the right of privacy than provided by the federal constitution, Kentucky courts have never extended this greater privacy protection to searches and seizures. The Kentucky Supreme Court has stated that “Section 10 of the Kentucky Constitution provides no greater protection than does the federal Fourth Amendment.” LaFollette v. Commonwealth, 915 S.W.2d 747, 748 (Ky. 1996).
Contributed by Susan Balliet
