Lead Opinion
Opinion of the Court by
Barry Kerr appeals as a matter of right
1) he is entitled to retroactive application of House Bill 468;
*254 2) his sentence of fifty years’ imprisonment constitutes cruel and unusual punishment;
3) the trial court erroneously denied his motion to suppress evidence uncovered in an illegal search;
4) the trial court erroneously admitted prior-bad-acts evidence and hearsay evidence;
5) the prosecutor’s closing argument constituted misconduct; and
6) the jury recommended sentences enhanced by the PFO statute without first fixing sentences for the underlying charges.
Kerr’s convictions and sentences must be reversed because the trial court erroneously admitted hearsay evidence. Because we reverse, we need address only the issues likely to recur upon retrial.
I. FACTUAL AND PROCEDURAL BACKGROUND.
Kerr had two outstanding arrest warrants at the time Kentucky State Police received an anonymous tip that he was trafficking pills out of a guest room at the Pinehurst Lodge. Only one guest room in the lodge was being rented at the time,
For the first hour of surveillance, the officers observed no activity in or out of the room. Within the next hour, a vehicle in which Kerr was a passenger pulled up to the rear door of the rented room. Kerr exited the vehicle carrying a blue duffel bag and entered the rented room.
About an hour and a half later, another car containing three people parked at the rear of the lodge.
After two to three hours passed without further traffic,
In addition to the pills, officers discovered $1,269.00 in cash in the pocket of Kerr’s trousers, which were hanging on the back of the bedroom door. They found a crack pipe under the mattress. And they found a rolled up dollar bill with white powder residue, digital scales, a knife with white powder residue, and a box of plastic sandwich baggies.
At trial, the trial court granted a directed verdict of acquittal on the charge of trafficking in alprazolam. And the jury found Kerr guilty of (1) first-degree trafficking in a controlled substance, second offense; (2) second-degree trafficking in a controlled substance; and (3) being a PFO 1. The jury acquitted Kerr of possession of drug paraphernalia. The jury recommended a sentence of fifty years’ imprisonment for first-degree trafficking in a controlled substance, second offense, as enhanced by being a PFO 1; and a sentence of twenty years’ imprisonment for second-degree trafficking in a controlled substance as enhanced by being a PFO 1, with the sentences to be served concurrently. The trial court sentenced Kerr in accordance with the jury’s recommendation.
II. ANALYSIS.
A. Evidentiary Errors.
Before the prosecution began its case on the first day of trial, Kerr moved the court in limine to exclude two areas of evidence: (1) that police received an anonymous tip that Kerr was trafficking drugs out of a guest room at the Pinehurst Lodge, and (2) that the police had outstanding arrest warrants for Kerr. Kerr argued that the anonymous tip was hearsay and that the arrest warrants were unduly prejudicial and would be used by the jury as propensity evidence. Kerr wanted the trial court to limit the jury’s information to knowing only that the police were at the lodge conducting surveillance, the police knocked on Kerr’s door, and immediately arrested him.
The Commonwealth argued that the jury needed more information to understand what was happening at the lodge leading up to Kerr’s arrest. The Commonwealth argued that the anonymous tip would not be presented as substantive evidence but to explain why the police were monitoring Kerr. The trial court ruled that it would allow testimony that the police had arrest warrants for Kerr — but not the crimes underlying the warrants — and would admonish the jury in order to limit prejudice to Kerr. The Commonwealth then agreed that it would not offer evidence of the anonymous tip. Ultimately, evidence of both the arrest warrants and the anonymous tip was introduced at trial under circumstances discussed below.
Kerr argues that the existence of the arrest warrants and the tip that he was trafficking pills out of the lodge are irrelevant, more prejudicial than probative under Kentucky Rules of Evidence (KRE) 403, and prohibited prior-bad-acts evidence. He also contends the anonymous tip evidence is inadmissible hearsay. We will review the arrest warrant and anonymous tip evidence separately because they implicate distinct evidentiary rules. Upon review, we hold that the trial court erred in allowing testimony of the anonymous tip but did not err in allowing testimony of the arrest warrants.
1. The Trial Court Abused its Discretion in Admitting the Anonymous Tip Evidence, and the Error was not Harmless.
Detective Wesley was the Commonwealth’s first witness. He testified that the police did not charge Sharp because there was no traffic in or out of the guest
At that point, a bench conference ensued at which the trial court agreed with the Commonwealth that Kerr had just opened the door for Detective Wesley to respond that it was not an assumption that the room occupants were trafficking because of the anonymous tip implicating Kerr. When Kerr offered to withdraw the question, the trial court said that the witness should be allowed to answer because the question had been raised before the jury. Detective Wesley then proceeded with testimony to the effect that the reason for the surveillance mission at Pinehurst Lodge was the arrest warrants for Kerr and an anonymous tip that Kerr was trafficking in controlled substances at the lodge.
Lieutenant Irvin also testified that the police did not arrest Sharp because she did not have any contraband on her or in her purse, nor had they received any information that Sharp was doing “bad stuff’ out of the room.
The Commonwealth later emphasized the significance of this anonymous-tip testimony in its closing argument to the jury. Kerr contends the trial court should have excluded the anonymous tip as irrelevant hearsay.
We have acknowledged that “information as to the motivation of police officers for actions they have taken may be needed to avoid misleading the jury.”
In Gordon v. Commonwealth,
But “[t]here was no legitimate need to say or imply that [Gordon] was a drug dealer or that he was suspected by the police department of selling drugs in a particular vicinity.”
As in Gordon, it would have been proper for Detective Wesley to testify that Kerr had become a suspect in a drug investigation. This would have avoided Kerr’s attempts to suggest that he had been unfairly singled out for prosecution. It also would have explained, at least partially, why officers pursued Kerr more rigorously than the visitors to Kerr’s room. But there was no legitimate need to inform the jury of the anonymous tip that Kerr was dealing drugs out of the Pinehurst Lodge.
We reject the Commonwealth’s contention that the anonymous tip testimony was not hearsay because it was offered to show the officers’ motivation in arresting Kerr, not to prove the truth that Kerr was trafficking. Extrajudicial statements to a police officer are inadmissible hearsay unless offered to explain the basis for the action later taken by the police officer.
The rule is that a police officer may testify about information furnished to him only where it tends to explain the action that was taken by the police officer as a result of this information and the taking of that action is an issue in the case. Such information is then admissible, not to prove the facts told to the police officer, but only to prove why the police officer then acted as he did. It is admissible only if there is an issue about the police officer’s action.
We disagree with the Commonwealth. The anonymous tip was hearsay evidence because it was used, at least in part, to prove the truth of the matter asserted—that the police arrested Kerr because he was trafficking drugs.
We also cannot say that Kerr’s cross-examination of Detective Wesley invited the error or opened the door to the anonymous tip testimony. Kerr asked why it would be an assumption that the people visiting the guest room were selling pills, but it was not an assumption that Kerr was trafficking pills. If anything, this question invited an answer from Detective Wesley that the officers could only assume that the visitors were trafficking in drugs because they did not possess enough proof otherwise. Despite their efforts, the police were unable to stop and search the vehicle after it left the lodge. It is safe to say that the officers would not have arrested and charged Kerr with trafficking based only on their observations of the activity outside the guest room. Rather, they charged Kerr with trafficking because they had arrest warrants for him, which led to the discovery of a large quantity of controlled substances; and before arresting him, they observed activity common to trafficking.
The erroneously admitted anonymous-tip evidence was not harmless. Contrary to the dissent’s assertion on this point, “Our inquiry is not simply ‘whether there [is] enough [evidence] to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.’ ”
When they go in and act on that information, lo and behold, where Kerr is they find [contraband]. Does it make more sense to you that Ms. Sharp ... was selling pills ... or that it was Mr. Kerr who they had received a complaint [about]?
Given the extent to which the prosecutor focused on the anonymous tip in his closing argument, we cannot say that the inadmissible hearsay evidence did not substantially influence Kerr’s conviction. Kerr’s convictions and sentences must be reversed in light of this evidentiary error. As for Kerr’s other claimed errors, we address only those likely to recur in the event of a retrial.
2. The Trial Court did not Abuse its Discretion in Admitting the Arrest-Warrant Evidence.
As discussed, the trial court denied Kerr’s motion in limine to exclude evidence that the police had two arrest warrants for Kerr that were unrelated to the drug charges being tried. At trial, Detective Wesley testified on direct that the officers had arrest warrants for Kerr. The prosecutor also mentioned the arrest warrants in his closing argument. We address this issue because it is likely to recur upon remand.
a. The arrest-warrant evidence was relevant.
Kerr argues that the existence of the arrest warrants is irrelevant because the evidence was not required to present the Commonwealth’s case. He contends the officers should have limited their testimony to relate only that they conducted surveillance (without mentioning why), knocked on the door to Kerr’s guest room, and immediately arrested him.
We give substantial deference to a trial court’s relevancy decisions.
“Evidence which is not relevant is not admissible.”
Here, the arrest-warrant evidence was relevant to the context of the investigation — why the police were observing Kerr’s guest room — and how the crime came to be discovered. The surveillance lasted six hours and took place from a guest room next to Kerr’s. After witnessing individuals visit Kerr’s room twice and stay for a period of ten to twelve minutes each time, the police decided to make contact with Kerr. When Kerr opened the door, the police immediately placed him under arrest.
Knowledge of the arrest warrants was necessary for the jury to understand why the police set up the extensive surveillance and then arrested Kerr with only highly circumstantial proof of criminal activity. Without knowing of the arrest warrants, the jury would have been left to wonder about the legitimacy of the officers’ actions in placing Kerr on the floor and arresting him with such scant evidence of wrongdoing.
b. The arrest-warrant evidence was not prohibited under KRE 404(b).
Kerr next argues that the trial court should have excluded evidence concerning the arrest warrants as impermissible pri- or-bad-acts evidence. Under KRE 404(b),
[ejvidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible:
(1) If offered for some other purpose, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident; or
(2) If so inextricably intertwined with other evidence essential to the case that separation of the two (2) could not be accomplished without serious adverse effect on the offering party.
“[Tjrial courts must apply [KRE 404(b) ] cautiously, with an eye towards eliminating evidence which is relevant only as proof of an accused’s propensity to commit a certain type of crime.”
The trial court did not abuse its discretion in admitting the prior-bad-acts evidence because it falls under the exception found in KRE 404(b)(2), i.e., the existence of the arrest warrants was inextricably intertwined with the police surveillance of the Pinehurst Lodge and with Kerr’s initial arrest. “KRE 404(b)(2) allows the Commonwealth to present a complete, un-fragmented picture of the crime and investigation[,]”
In Clark v. Commonwealth,
the setting and context of the events surrounding [the mother’s] discovery of the sexual abuse of her children, and her reasons for not contemporaneously confronting Appellant about it, were germane to the overall sequence of events surrounding the crimes and to the events which led to them being reported to authorities. As such, this evidence was inextricably intertwined with other evidence critical to the case.34
We also find federal case law on this issue persuasive. Although the Federal Rules of Evidence (FRE) 404 does not specifically provide for the admission of evidence of prior bad acts that are inextricably intertwined with other evidence essential to the case, “[e]very circuit now applies some formulation of the inextricably intertwined ‘test.’ ”
the acts that constitute crimes cannot be understood without at least some reference to acts, events, or conditions that lead up to them ... even though not inherent in or necessary to the crime.... [Witnesses cannot convey what they know to the trier of fact without making at least some reference to acts, events, or conditions that are a natural part of a narrative without referring to at least some things that are not essential in proving the crime itself.... Henee[,] it becomes reasonable to speak of a “complete story” rule[;] and the system allows proof of what amounts to uncharged crimes[ ] when these are nec*262 essary in telling and understanding the story of the charged crimes.36
We find the case United States v. LaDue,
[a] jury is entitled to know the circumstances and background of a criminal charge.... That the report concerned “shots fired” provided the jury with the proper context in which to understand [the officer’s] actions. It helped to explain [the officer’s] decision to leave his patrol car and pursue an unidentified man running across the street, and his decision to draw his service weapon. Without an understanding of the serious nature of the call to which [the officer] was responding, the jury could have been confused or misled by a seeming overreaction to a routine disturbance call.39
Federal courts recognize that a jury “cannot be expected to make its decision in a void — without knowledge of the time, place, and circumstances of the acts which form the basis of the charge.”
The existence of the arrest warrants here was necessary to an adequate understanding of the context of the officers’ conduct — -it provided the setting and context of the events surrounding the offi
So we hold that the arrest-warrant evidence is inextricably intertwined with the charged crimes because it was relevant to the context of the police surveillance, Kerr’s arrest, and discovery of the crime.
c. The arrest-warrant evidence need not have been excluded under KRE 403.
Kerr further argues that even if the arrest-warrant evidence was relevant and admissible under KRE 404(b), the evidence should have been excluded because its probative value was substantially outweighed by the danger of undue prejudice. Kerr claims that the evidence was highly prejudicial because the warrants indicate that Kerr committed crimes in the past and was eluding the law.
KRE 403 provides that “[ajlthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of undue prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.” This rule “gives the trial judge substantial discretion to balance probative worth against harmful effects. The trial court is the most familiar with the facts of the case, and thus in the best position to make the determination of admissibility.”
Significantly, the trial court prohibited in limine any evidence of the underlying offenses on which the arrest warrants were based. This substantially
Although the trial court did not err by admitting evidence of the arrest warrants, we recognize the risk that the jury might consider the arrest-warrant evidence as propensity evidence. Had Kerr requested the jury be admonished to use the evidence only as context for why the police were watching Kerr and the reason for his initial arrest, he would have been entitled to it.
The trial court here indicated that it would admonish the jury not to use the existence of the arrest warrants as proof of Kerr’s guilt in this case. Unfortunately, the trial court failed to give that admonition when the arrest-warrant evidence was admitted. But the onus was on Kerr to request the admonition at the time of the objectionable testimony. So Kerr is entitled to relief only if the arrest-warrant evidence was “so likely to be misapplied by the jury that an admonishment would clearly have been futile, and then only if the remarks were so prejudicial as clearly to have affected the result.”
The trial court did not abuse its discretion in admitting the arrest-warrant evidence even without a corresponding admonition to the jury.
B. The Search of the Guest Bedroom was Legal.
The Fourth Amendment of the U.S. Constitution, applicable to the states through the Fourteenth Amendment, and Section 10 of the Kentucky Constitution provide safeguards against unreasonable searches and seizures. Based on these constitutional provisions, Kerr moved under the U.S. and Kentucky Constitutions to suppress the contents of the duffle bag, claiming the items were discovered during an illegal search of the guest room.
Lieutenant Irvin was the only witness at the suppression hearing. Based on her testimony, the trial court made the following factual findings.
1) The Jamestown Police Department received information that Kerr was selling pills out of a room at the Pinehurst Lodge;
2) There were also outstanding arrest warrants for Kerr;
3) Lieutenant Irvin and another officer conducted surveillance of the guest room where Kerr was located before executing the arrest warrants;
4) After some time, the officers approached the door of Kerr’s room and announced themselves;
5) When Kerr opened the door, the officers placed him and Stephanie Sharp on the floor near the entrance to a bedroom;
6) The officers then conducted a sweep of the bedroom;
7) Sharp also consented to a search; and
8) Officers viewed an unzipped duffel bag in the bedroom and were able to observe several items of pills and other drugs in the bag.
Based on these factual findings, the trial court concluded that the search leading to discovery of the controlled substances was lawful under three exceptions to the warrant requirement, including (1) search incident to arrest, (2) plain view, and (3) protective sweep.
The standard of review for a trial court’s ruling on a suppression motion is two-fold. The trial court’s factual findings are reviewed for clear error and are deemed conclusive if supported by substantial evidence.
The trial court’s factual findings in this case are not in dispute and are clearly supported by substantial evidence. The only question is whether under these facts the search of the guest bedroom was lawful.
When 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.”
Kerr also does not contest the fact that once the officers were in the bedroom of his guest suite, the controlled substances -within the duffel bag were in plain view. 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.
We hold that the officers were permitted to conduct a protective sweep of the bedroom in which the duffel bag of controlled substances was located. “[L]aw enforcement officers may conduct a protective sweep for their own safety.”
In Maryland v. Buie,
The second type of protective sweep incident to an arrest allows officers to undertake a broader search of places not adjacent to the place of arrest if there are “articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.”
The Commonwealth does not contend that the officers here undertook a protective sweep because they reasonably believed the area harbored dangerous individuals. Rather, the Commonwealth argues
In order for a search to be lawful under the first category of the protective-sweep exception to the warrant requirement, the area searched must be adjoining the place of arrest from which an attack may be made, and the search must be cursory, consisting of only a visual inspection of those places in which a person might be hiding.
The guest bedroom where the search was conducted adjoined the place of Kerr’s arrest. The trial court found that the officers placed Kerr and Sharp on the floor near the entrance to the bedroom that was searched. This finding was based on Lieutenant Irvin’s explanation of the guest room’s layout at the suppression hearing. The door through which the officers entered opened up into a hallway. A couple of paces down the hallway and to
Lieutenant Irvin testified that when the officers knocked on the door to the guest room, they could hear voices coming from the bedroom.
Because the bedroom adjoined the place of Kerr’s arrest, the officers were entitled to conduct a cursory search consisting of only a visual inspection of those places in which a person might be hiding. The officers saw the duffel bag containing contraband sitting on the floor between the wall and the bed. This was an area in which a person could have been hiding. So the officers’ visual inspection of the space between the wall and the bed was appropriate for the purposes of a protective sweep.
The officers’ conduct in searching Kerr’s guest room fits cleanly within the first category of protective sweeps that are reasonable under the Fourth Amendment. In effectuating a valid arrest warrant, the officers were allowed to search the bedroom adjoining the place of Kerr’s arrest. They then conducted a cursory search of places where a person could be hiding. In doing so, they observed the unzipped duffel bag full of contraband in plain view. So we affirm the trial court’s denial of Kerr’s motion to suppress the contraband
III. CONCLUSION.
For the foregoing reasons, we reverse Kerr’s convictions and sentences and remand for further proceedings. It is worth noting that if Kerr is convicted again upon remand, he will be entitled to the remedial penalty provisions of House Bill 463 upon his request.
. Ky. Const. § 110(2)(b).
. The room was rented under the name of Stephanie Sharp.
. The officers recognized all three of the people and identified them at trial by name.
.Both officers thought that another car drove up later in the evening; but they had no details of it, and it was not reported in the police report.
.To the extent that Kerr argues that the anonymous tip evidence was inadmissible under KRE 404(b), we note that the anonymous tip was not evidence of other crimes or bad acts. The tip concerned the very crime for which Kerr was on trial. So analysis under KRE 404(b) is inappropriate. This is a pure hearsay issue.
. Gordon v. Commonwealth, 916 S.W.2d 176, 178 (Ky.1995).
. Id.
. Id. at 179.
. Id. at 178.
. Id. (citation omitted).
. Id. (citation omitted).
. Id. at 179.
. Id.
. Id. We, likewise, stated in Peyton v. Commonwealth, 253 S.W.3d 504 (Ky.2008), that an officer’s testimony that a defendant was a target in a drug investigation was "generally admissible under KRE 404(b)(2) because it would be difficult to explain why [Peyton] was being targeted for a drug sting operation without providing some background information.” Id. at 516. But the officer "should not have stated that he believed [Peyton] was a drug dealer...." Id.
. Lieutenant Irvin testified that they did not arrest Sharp in connection with the case because, unlike Kerr, law enforcement had no tips that she was doing "bad stuff" out of the room. This testimony would have been sufficient to show the officers' motivation in arresting Kerr and not Sharp without branding Kerr a drug dealer.
. Sanborn v. Commonwealth, 754 S.W.2d 534, 541 (Ky.1988). "This Court accepted the plurality holding of Sanborn regarding investigative hearsay and the verbal acts doctrine in Brewer v. Commonwealth, 206 S.W.3d 343, 351 (Ky.[]2006), therefore rendering it binding precedent.” Chestnut v. Commonwealth, 250 S.W.3d 288, 294 (Ky.2008).
. Sanborn, 754 S.W.2d at 541 (emphasis in original).
.We note that Kerr's case is distinguishable from Chestnut, 250 S.W.3d at 293-95 (Ky.2008). There, Chestnut objected to testimony that after police stopped Chestnut's car in the vicinity of the burglary, the officers conducted a "show-up” identification to see if a witness could identify him. The officers testified that they arrested Chestnut following the “show-up.” This Court determined that why the police arrested Chestnut was at issue because Chestnut claimed at trial that he was never in the neighborhood where the burglary occurred, and he accused the police of lying. And we held that the testimony regarding the testimony of Chestnut’s identification was offered to prove the motive of the police for arresting him. But we noted that the officers' testimony "concerned only what they did on the night in question, not that [the witness] identified [Chestnut].” Id. at 295. Here, Detective Wesley did not limit his testimony to his actions on the night in question but testified about out-of-court statements made by an anonymous person.
. See Hughes v. Commonwealth, 730 S.W.2d 934, 935 (Ky.1987) (reversing for admission of hearsay in the form of an anonymous tip because it reflected upon the defendant’s guilt).
. Ordway v. Commonwealth, 391 S.W.3d 762, 774 (Ky.2013) (quoting Winstead v. Commonwealth, 283 S.W.3d 678, 689 (Ky.2009)). Contrary to the dissent's claim, a conviction cannot be upheld under the harmless error standard simply because sufficient evidence existed to convict the defendant absent the evidence erroneously admitted.
. Webb v. Commonwealth, 387 S.W.3d 319, 325 (Ky.2012).
. Id. (citation omitted).
. KRE 402.
. KRE 401.
. The Kentucky Evidence Law Handbook Ch. 2 § 2.05(3) (Robert G. Lawson, 4th ed.2003) (citing 2 Weinstein’s Federal Evidence § 401.04(f)(a) (2d ed.2002) ("Background evidence may be admitted to show, for example, the circumstances surrounding the events or to furnish an explanation of the understanding or intent with which certain acts were performed.”)).
. Contrary to the dissent’s objection, we do not suggest that insufficient evidence existed to support Kerr's convictions. We mean only to say that at the time the officers arrested Kerr, they only had circumstantial proof of drug trafficking. This scant evidence would not have justified Kerr's arrest. That is why the jury was entitled to know that the officers initially arrested Kerr on the outstanding arrest warrants.
. Bell v. Commonwealth, 875 S.W.2d 882, 889 (Ky.1994).
. Meece v. Commonwealth, 348 S.W.3d 627, 662 (Ky.2011)
. King v. Commonwealth, 276 S.W.3d 270, 275 (Ky.2009).
. Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 577 (Ky.2000).
. Adkins v. Commonwealth, 96 S.W.3d 779, 793 (Ky.2003) (holding that the defendant’s incarceration at the time of his confession was admissible evidence to show the setting and context of the events surrounding the confession and explain any delays in his return to Kentucky) (citing Robert G. Lawson, Kentucky Evidence Law Handbook § 2.25 at 96 (3d ed. Michie 1993)); see also Norton v. Commonwealth, 890 S.W.2d 632, 638 (Ky.App.1994) (citations omitted) (KRE 404(b)(2) is "intended to be flexible enough to permit the prosecution to present a complete, unfrag-mented, unartificial picture of the crime committed by the defendant, including necessary context, background and perspective.”).
. Clark v. Commonwealth, 267 S.W.3d 668, 681 (Ky.2008) (citations omitted).
. Id.
. Id. (citing KRE 404(b)(2)).
. United States v. Bowie, 232 F.3d 923, 927 (D.C.Cir.2000) (citations omitted).
. 1 Federal Evidence Ch. 4 § 4:33 (Christopher B. Mueller and Laird C. Kirkpatrick 3d ed.) (citations omitted). See also United States v. Senffner, 280 F.3d 755, 764 (7th Cir.2002) ("[UJnder the inextricably intertwined doctrine, ... acts ‘concerning the chronological unfolding of events that led to an indictment, or other circumstances surrounding the crime, is not evidence of ‘other acts’ within the meaning of Fed.R.Evid. 404(b).... ’ Acts satisfy the inextricably intertwined doctrine if they complete the story of the crime on trial; their absence would create a chronological or conceptual void in the story of the crime; or they are so blended or connected that they incidentally involve, explain the circumstances surrounding, or tend to prove any element of, the charged crime.’’) (citations omitted).
. 561 F.3d 855, 857-58 (8th Cir.2009).
. Id. at 857.
. Id. at 857-58 (citations and internal quotations omitted).
. United States v. Moore, 735 F.2d 289, 292 (8th Cir.1984) (citation omitted) (holding that the trial court did not err by "letting the government establish that [the defendant] had been arrested in the course of a drug raid” because it established the context in which the defendant was arrested).
. See, e.g.. United States v. Gorman, 312 F.3d 1159, 1162 (10th Cir.2002) (holding that where the smell of marijuana led to a search that uncovered a firearm, evidence relating to the marijuana was "intertwined with the discovery of the firearm and therefore necessary to understand the flow of events and put police conduct in context”).
. See also Workman v. Commonwealth, 2006-SC-000399-MR, 2007 WL 4139638 (Ky. Nov. 21, 2007) (citation omitted) ("When presenting ‘a complete, unfragmented picture of the crime and investigation,' it is customary and necessary to explain how the crime was discovered and reported to authorities.").
. "Sometimes the justification for proving other crimes is that such proof explains how law enforcement officers uncovered the charged crime, or how they came to the conclusion to bring charges against the defendant. In this setting, proving uncharged offenses can only be justified if some real issue arises that relates to police misconduct, and issues of this sort enter the case only if raised by way of defenses.... [Wjhere such issues are raised in the trial itself, in an apparent bid to prove police misconduct or improper motive, proof of prior uncharged misconduct may be important evidence that helps answer or refute such charges.” 1 Federal Evidence Ch. 4 § 4:33 (citations omitted).
. Id.
. See Burgess-Smith v. Com., 2010-CA-002284-MR, 2012 WL 3136773 (Ky.App. Aug. 3, 2012) (holding that evidence of an arrest warrant was inextricably intertwined with the charged crimes because it was “[inextricably] intertwined with the reasons for the police officers' actions in patting down Burgess-Smith for weapons and securing him, and offers an explanation why the officers so fervently pursued Burgess-Smith during his repeated attempts to escape").
. Webb, 387 S.W.3d at 329 (citation omitted).
. Our predecessor court reversed a conviction for carrying a concealed deadly weapon discovered during service of an arrest warrant because the trial court admitted evidence that the warrant was for a charge of bank burglary. Scamahome v. Commonwealth, 357 S.W.2d 30 (Ky.1962). Likewise, in Metcalf v. Commonwealth, 158 S.W.3d 740 (Ky.2005), the Court reversed a conviction because officers testified that they went to Metcalfs residence to investigate an allegation that he had videotaped a minor undressing. There, the Court specifically said that “[i]t would have been a simple matter for [the officers] to truthfully testify that they came to [Metcalf's] residence to investigate an allegation of child abuse without mentioning the uncharged videotaping incident." Id. at 744.
. KRE 105 ("When evidence which is admissible as to one (1) party or for one (1) purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and admonish the jury accordingly.”). See also Lanham v. Commonwealth, 171 S.W.3d 14, 27 (Ky.2005) (requiring a limiting admonition where requested by the defendant because the introduction of comments that a defendant is lying made by police during a recorded interview entails the possibility that the jury will misunderstand and accord to those comments an impermissible weight during deliberation).
. Walker v. Commonwealth, 349 S.W.3d 307, 312 (Ky.2011).
. The other illicit items and contraband located in the room are not at issue. They were located after Sharp signed a consent-to-search form.
. The trial court also noted that the officers had consent to search the room. The trial court’s factual findings regarding when Sharp gave consent are ambiguous. But Lieutenant Irvin testified that she received Sharp’s consent after the officers viewed the illegal substances in the duffel bag. So the legality of the initial search cannot be based on Sharp’s after-the-fact consent.
. Bauder v. Commonwealth, 299 S.W.3d 588, 591 (Ky.2009) (citations omitted); Kentucky Rules of Criminal Procedure (RCr) 9.78.
. Commonwealth v. Kelly, 180 S.W.3d 474, 476-77 (Ky.2005) (citations omitted).
. King v. Commonwealth, 386 S.W.3d 119, 122 (Ky.2012) (citations omitted).
. Because we find the search lawful for other reasons, we need not address the trial court’s ruling that the search satisfied the search-incident-to-arrest exception.
. Payton v. New York, 445 U.S. 5.73, 603, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980).
. Horton v. California, 496 U.S. 128, 136-37, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990) (citations omitted).
. "Where the initial intrusion that brings the police within plain view of such an article is supported, not by a warrant, but by one of the recognized exceptions to the warrant requirement, the seizure is also legitimate.” Id. at 135, 110 S.Ct. 2301.
. Guzman v. Commonwealth, 375 S.W.3d 805, 807 (Ky.2012).
. Maryland v. Buie, 494 U.S. 325, 327, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990).
. Id.
. Id. at 334, 110 S.Ct. 1093.
. Id. These two types of protective sweeps are distinct from the search-incident-to-arrest exception to the warrant requirement. A search incident to arrest consists of "a search of the arrestee’s person and the area ‘within his immediate control’-construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.” Chimel v. California, 395 U.S.
.Id. See also 68 Am.Jur.2d Searches and Seizures § 265 and United States v. Archibald, 589 F.3d 289, 295 (6th Cir.2009). Recently, this Court expressly recognized the Supreme Court's analysis of the protective sweep set forth in Buie. Guzman, 375 S.W.3d at 807. Kerr mostly cites case law rendered before the Supreme Court’s 1990 decision in Buie, with one exception. Kerr refers us to a Kentucky Court of Appeals decision, Davis v. Commonwealth, 120 S.W.3d 185 (Ky.App. 2003), in which the court applied Kentucky's earlier standard for protective sweeps as stated in Commonwealth v. Elliott, 714 S.W.2d 494, 496 (Ky.App.1986). In Elliott, the Court of Appeals concluded that the "protective sweep” exception to the warrant requirement requires a "serious and demonstrable potentiality for danger.” But neither Davis nor Elliott concern the type of protective sweep at issue here.
. We use the word argues advisedly here because the substantive portion of the Commonwealth’s legal analysis of the suppression issue totals seven sentences.
. See United States v. Lemus, 582 F.3d 958, 964 (9th Cir.2009) (“Because the living room immediately adjoined the place of arrest and was large enough to contain an attacker, we need not reach the second prong of Buie and decide whether the search of the living room was justified as a 'protective sweep.' The officers were permitted to search the room 'as a precautionary matter' without either reasonable suspicion or probable cause to believe that an attacker lay in ambush.”) (citation omitted).
. Lieutenant Irvin testified that she could tell the voices emanated from the bedroom because she could hear them coming from the other side of the window that opened into the bedroom.
. See United States v. Ford, 56 F.3d 265, 270 (D.C.Cir.1995) ("Under Buie’s first prong, however, as a precautionary matter and without probable cause or reasonable suspicion, [the officer] was free to look in spaces immediately adjoining the place of Ford's arrest from which an attack could be immediately launched. Because the arrest took place in the hallway, and the bedroom from which Ford emerged was immediately adjoining the hallway, [the officer] could legitimately look in the bedroom for potential attackers.”); United States v. Thomas, 429 F.3d 282, 287-88 (D.C.Cir.2005) (“If an apartment is small enough that all of it ‘immediately adjoin[s] the place of arrest’ and all of it constitutes a space or spaces ‘from which an attack could be immediately launched,’ then the entire apartment is subject to a limited sweep of spaces where a person may be found.”); United States v. Brown, 64 F.3d 1083, 1086 (7th Cir.1995) ("Buie held that the police may walk through rooms adjacent to the one in which they make an arrest, to ensure that no danger lurks within. The officers need not demonstrate any danger; they may look simply as a precaution.”) (citations omitted); United States v. Lay, 182 F.3d 911 (4th Cir.1999) ("[S]omeone exiting the bedroom would immediately have full view of the area of the arrest, as much or nearly as much as if the bedroom opened directly into the living room. The clear implication of the court's oral ruling is that the focus of Buie — the possibility of sudden violence to police officers engaged in a dangerous task in unfamiliar territory — militates against the interpretation Lay proposes for the term 'immediately adjoining area.' ”).
.See United States v. Lauter, 57 F.3d 212, 217 (2d Cir.1995) ("Aside from looldng in the drawer, the fruits of which search were not introduced into evidence, [the officer’s] conduct was well within the scope of a permissible protective sweep, particularly in light of the small size of the apartment.... Moreover, [the officer] was justified in looking in the space between the bed and the wall, as a person certainly could have been hiding in that location.”) (citation omitted).
. Kentucky Revised Statutes (KRS) 446.110.
Dissenting Opinion
dissenting: I respectfully dissent.
First, I agree with the trial court that Appellant opened the door for the introduction of the evidence concerning the anonymous tip. Selective prosecution can be a very effective defense claim. Appellant’s attorney cross-examined Detective Wesley vigorously as to why Appellant was charged with trafficking, and yet Sharp and other unknown visitors to the room were not. The truthful answer was that there had been an anonymous tip as to Appellant. In effect, that is the question Appellant asked and that is the answer Appellant got. I see no error.
Without conceding error, I cannot imagine a case where the alleged error was more harmless. Let’s briefly review the evidence — other than the anonymous tip— that the jury heard.
The jury learned there were two outstanding arrest warrants against Appellant. The jury also learned that the officers proceeded to the Pinehurst Lodge where Appellant was staying. (Law enforcement only knew this because of the tip.) There, the officers did not attempt to arrest Appellant on the warrants. Instead, they set up a surveillance of his room from a neighboring room. The reason for setting up the surveillance had to be obvious to the jury. Appellant was suspected of dealing in drugs.
After about an hour, Appellant arrived in a car and went into the room carrying a blue duffel bag. No attempt to arrest him on the warrants was made. After several hours of people coming and going, the officers finally decided to go see for themselves what all the fuss was about. When Appellant opened the door, the officers saw what all the fuss was about. There, in plain view, was the duffel bag Appellant had been seen carrying into the room earlier. Now; however, it was open and the officers could see large pill bottles and plastic baggies containing pills. Also discovered in the room was over $1,200 in cash, a crack pipe, white powder residue, digital scales, a knife with white powder residue, and a box of plastic sandwich baggies.
Who needs the anonymous tip to convict Appellant of first-degree trafficking in a controlled substance? In fact, all the evidence simply affirms that the tip was truthful.
It is mystifying to me as to how the majority does not think the admission of the evidence of the existing warrants was not error, yet reverses on the introduction of the anonymous tip. Says the majority: “Here, the arrest warrant evidence was relevant to the context of the investigation — -why the police were observing Kerr’s guest room — and how the crime came to be discovered.”
Knowledge of the arrest warrants was necessary for the jury to understand why the police set up the extensive surveillance and then arrested Kerr with only highly circumstantial proof of criminal activity. Without knowing of the arrest warrants, the jury would have been left to wonder about the .legitimacy of the officers’ actions in placing Kerr on the floor and arresting him with such scant evidence of wrongdoing.
(Emphasis added.)
I am amazed at this declaration. The “highly circumstantial proof of criminal activity” and “scant evidence of wrongdoing” was enough for the jury to be convinced of Appellant’s guilt beyond a reasonable doubt and convict him and send him to prison. Apparently, from the majority’s opinion, Appellant does not even argue insufficient evidence on appeal.
As previously stated, knowledge of the arrest warrants had nothing to do with the jury understanding why the police set up the surveillance. It was the anonymous tip. The anonymous tip explained a lot of things — why the officers went to the Pine-hurst Lodge; why they set up the surveillance; why they did not arrest Appellant on first sighting; and why they arrested and prosecuted only Appellant and not others.
Surely, any error was harmless. Therefore, I respectfully dissent and would affirm the conviction.
SCOTT, J., joins.