483 S.W.3d 364
Ky.2016Background
- Traffic stop on Aug. 29, 2011: Cody Abney (son) stopped; officers smelled marijuana and found suspected narcotics and cash; Dallis Abney (father) present.
- Cody was questioned at the station and (according to officers) told them he’d seen 10–20 pounds of marijuana at his father’s home, including its location; Cody later disputed these statements at the suppression hearing.
- Trooper Brewer used Cody’s statements (and a phone verification) to prepare an affidavit which did not specify the time or date of Cody’s observations; an Estill County judge issued a search warrant based on that affidavit.
- Search yielded large quantities of marijuana and pills; Dallis Abney was charged with multiple drug offenses and moved to suppress, arguing the affidavit was defective under Henson because it failed to state when the observations were made.
- Trial court and Court of Appeals denied suppression after applying the totality-of-the-circumstances standard; Abney appealed to the Supreme Court of Kentucky.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Henson’s rule requiring the affidavit to state the time of informant’s observations remains controlling, rendering the warrant invalid | Henson requires specifying when the informant observed the alleged activity; omission is fatal and warrants suppression | Affidavit should be evaluated under Gates/Beemer totality-of-the-circumstances test; failure to state time is not automatically fatal if probable cause exists | Henson’s bright-line time requirement is overruled to the extent it conflicts with Gates/Beemer; warrants are reviewed under totality of the circumstances, and this affidavit provided sufficient probable cause |
Key Cases Cited
- Henson v. Commonwealth, 347 S.W.2d 546 (Ky. 1961) (earlier Kentucky decision requiring affidavits to state time of observation when based on information and belief)
- Illinois v. Gates, 462 U.S. 213 (1983) (adopts totality-of-the-circumstances test for probable cause in warrant affidavits)
- Beemer v. Commonwealth, 665 S.W.2d 912 (Ky. 1984) (Kentucky adoption of Gates totality approach)
- United States v. Ventresca, 380 U.S. 102 (1965) (rejects hypertechnical pleading requirements for warrants; favors practical, common-sense review)