NOT TO BE PUBLISHED

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION.

MEMORANDUM OPINION OF THE COURT

A Hancock Circuit Court jury found Appellant, Jacqueline Widdifield, guilty of complicity to manufacturing methamphetamine (firearm enhanced), complicity to unlawful possession of anhydrous ammonia in an unapproved container with intent to manufacture methamphetamine, complicity to first-degree trafficking in a controlled substance (firearm enhanced), and possession of drug paraphernalia (firearm enhanced). As a result, she was sentenced to twenty years' imprisonment. She now appeals as a matter of right, Ky. Const. § 110(2)(b), asserting that the trial court erred by denying her pre-trial motion to suppress evidence seized from her home. For the following reasons, we affirm.

I. BACKGROUND

Law enforcement officers, Deputy Aaron Emmick of the Hancock County Sheriff's Department and Trooper Robert Gaither of the Kentucky State Police, arrived at the residence of Allan and Jacqueline Widdifield to execute an arrest warrant on Mr. Widdifield for a theft charge. Upon arrival, the officers were approached by Mr. Widdifield, who had been in a garden on the property. The officers informed Mr. Widdifield of the theft warrant. Subsequently, Mr. Widdifield surrendered a pistol that was in his pocket, and the officers read him his Miranda rights and placed him in a police cruiser.

The events that followed are in dispute and are the crux of this appeal. Deputy Emmick testified that after advising Mr. Widdifield of his Miranda rights, he told Mr. Widdifield that the Owensboro Police Department informed him that illegal drug activity had been occurring on the premises. According to Deputy Emmick, Mr. Widdifield acknowledged that there was drug contraband on the property and then proceeded to lead law enforcement officers to a shed, across a field, and along a tree line on the property. The officers uncovered evidence of the manufacture of methamphetamine during their inspection of the shed and tree line.1

Deputy Emmick testified that he then asked Mr. Widdifield if he could search his home, and Mr. Widdifield consented. However, Emmick admitted that when the officers attempted to enter the residence, Appellant refused to allow them to enter. Upon learning Appellant's identity, the officers discovered that there were two outstanding e-warrants for her arrest. As a result, they arrested her as well and placed her in a police cruiser.

Following Appellant's arrest, Mr. Widdifield also withdrew his consent to search the home, and Deputy Emmick left the Widdifield residence to obtain a search warrant. After obtaining a search warrant, Deputy Emmick returned later that evening to execute it and found methamphetamine inside a lockbox in the bedroom closet and several loaded firearms.

The Widdifields' account of this incident is strikingly different. They both deny that Mr. Widdifield ever consented to any search of the shed or home. Both testified that Mr. Widdifield never exited the police cruiser once he was seated inside it and that he never led law enforcement officers around any part of his property.

The discovery of the evidence on the Widdifields' property led to Appellant's indictment for multiple drug and firearm-related offenses. Appellant filed a motion to suppress the evidence seized from both the shed and the home on the basis that there was no consent to the initial search of the shed. The trial court denied the motion, and the case proceeded to jury trial. The jury found Appellant guilty of the aforementioned charges and recommended that Appellant be sentenced to twenty years' imprisonment. The trial court adopted the jury's recommendation. This appeal followed.

II. ANALYSIS: THE TRIAL COURT PROPERLY DENIED APPELLANT'S MOTION TO SUPPRESS

Appellant asserts that the trial court improperly denied her suppression motion. She contends that the trial court erred in failing to suppress evidence seized from the search because (1) there was never consent to search the shed and (2) the eventual search warrant and evidence found in the home were the "fruits" of the initial illegal search of the shed. We disagree.

This Court has long recognized a heightened privacy interest in one's own residence. The Fourth Amendment generally protects against warrantless searches of the residence. Colbert v. Commonwealth, 43 S.W.3d 777, 780 (Ky. 2001). "This general prohibition may be overcome by any of the valid exceptions to the warrant requirement, including consent to search, whether obtained from the individual who is the target of the search or from a third party who possesses common authority over the premises." Id. (internal citations omitted). The Commonwealth bears the burden of proof to show that an exception exists. Id.

An appellate court's standard of review when addressing a suppression motion is two-fold:

Payton v. Commonwealth, 327 S.W.3d 468, 471-72 (Ky. 2010); see also RCr 9.78. Findings of fact must be reviewed only for clear error while giving due deference to the inferences drawn from those facts by the trial judge. Commonwealth v. Whitmore, 92 S.W.3d 76, 79 (Ky. 2002) (citing Ornelas v. United States, 517 U.S. 690, 699 (1996)).

A. There was Substantial Evidence to Support the Trial Court's Findings of Fact

Consent to search is a question of fact. Hampton v. Commonwealth, 231 S.W.3d 740, 749 (Ky. 2007). After reviewing the record, we hold that there was substantial evidence to support the trail court's finding that Mr. Widdifield gave consent to the initial search and led law enforcement officers around the property and shed. Deputy Emmick's testimony was detailed and thorough. He vividly described how Mr. Widdifield showed him the shed and even included details about the conversations that the two of them had while walking around the property. For example, he explained that Mr. Widdifield claimed another person, whose identity he would not disclose, was responsible for the manufacture of methamphetamine on his property. He also described Mr. Widdifield stating that he thought Appellant did not want the officers to search their home because she occasionally smoked marijuana in the home. According to Deputy Emmick, Mr. Widdifield also offered to take responsibility for any marijuana found within the residence.

Additionally, even the testimony of Mr. Widdifield and Appellant suggests that Deputy Emmick suspended his efforts to search the house after they both refused to consent to such search. Thus, Appellant's own testimony can lead to a reasonable inference that Deputy Emmick was not acting in a way such that he blatantly ignored, exceeded, or fabricated the scope of Mr. Widdifield's consent. Moreover, Deputy Emmick's testimony was corroborated by the testimony of Trooper Gaither, who testified that he was present and assisted Deputy Emmick as he walked around the property with Mr. Widdifield.

Appellant contends that Deputy Emmick and Trooper Gaither's testimony was not true and "at best" offsets the testimony that she and Mr. Widdifield provided. Appellant also suggests that more weight should have been given to the video footage obtained by a surveillance system set up on her property. She asserts that the video shows neither Mr. Widdifield leading the officers around the property nor anyone consenting to its search. However, the Commonwealth contested the validity of the video because it had no audio component, had only short clips, and had multiple gaps in time. Furthermore, Mr. Widdifield acknowledged in his testimony that any movement outside the view of the motion sensor would not cause a recording to be made.

In consideration of the inconsistencies with the video and relevant testimony, it was proper for the trial judge to find that Mr. Widdifield led law enforcement officers around the property and shed before the search warrant was obtained. See RCr 9.78. "With controverted evidence, the trial court is the sole trier of facts and the exclusive judge of the credibility of the witnesses and of the weight to be given their testimony." Henson v. Commonwealth, 20 S.W.3d 466, 470 (Ky. 1999). Moreover, this Court has consistently held that a law enforcement officer's testimony alone is enough to constitute "substantial evidence." See e.g., Payton v. Commonwealth, 327 S.W.3d 468, 471-72 (Ky. 2010); Chavies v. Commonwealth, 354 S.W.3d 103, 108 (Ky. 2011); Williams v. Commonwealth, 364 S.W.3d 65, 68 (Ky. 2011). As such, there was substantial evidence to support the trial judge's finding of fact that Mr. Widdifield showed the officers various items in the shed and such finding was not clearly erroneous. Therefore, the trial court did not err, and its finding of fact on this matter is conclusive.

B. The Trial Court Properly Applied the Law to its Findings of Fact

After this Court accepts the trial court's factual findings as conclusive, it must determine whether the trial court appropriately applied the law to those findings. Payton v. Commonwealth, 327 S.W.3d 468, 471-72 (Ky. 2010). Appellant asserts that neither she nor Mr. Widdifield voluntarily consented to the search of their property. The question of voluntariness of consent is to be determined by "an objective evaluation of police conduct and not by the defendant's subjective perception of reality." Id. at 474 (citing Cook v. Commonwealth, 826 S.W.2d 329, 331 (Ky.1992)). In doing so, the totality of the circumstances must be considered. Id. at 473.

According to Deputy Emmick's testimony, after Mr. Widdifield was advised of his Miranda rights, he was simply asked about whether there was any ongoing illegal drug activity on the premises, and he answered in the affirmative. Subsequently, he offered to escort law enforcement officers inside the shed and near a tree line on the property to show them drug contraband.

This offer could not be objectively construed as involuntary. As an owner of the property and without an apparent objection by Appellant, it was proper for police to accept Mr. Widdifield's consent to search the shed. Appellant concedes that consent constitutes a valid exception to the general prohibition against warrantless searches. See Cook v. Commonwealth, 826 S.W.2d 329, 331 (Ky. 1992) (citing United States v. Watson, 423 U.S. 411 (1976)). Thus, no warrant was required to search the shed because Mr. Widdifield's consent had been properly obtained.

Further, police acted properly when Appellant refused to consent to the search of the house. No search of the home was conducted until after Deputy Emmick obtained a search warrant. However, Appellant contests the validity of the warrant for multiple reasons.

First, she essentially asserts that the warrant itself was the "fruit" of the illegal search because but for the search of the property, there would not have been probable cause for the warrant. The Fourth Amendment expressly requires that warrants be supported by probable cause. However, the observations made by Deputy Emmick in Appellant's shed, which were the basis of the warrant, were the product of a valid search as discussed above. That search revealed numerous ingredients and materials for the manufacture of methamphetamine on Appellant's property. Among these items were a stove, liquid drain cleaner, cans of ether, coffee filters, and "sludge residue" which later tested positive for anhydrous ammonia. The test for probable cause is whether "there is a fair probability that contraband or evidence of a crime will be found in a particular place." Moore v. Commonwealth, 159 S.W.3d 325, 329 (Ky. 2005). Therefore, because evidence of methamphetamine manufacturing was already properly discovered on the premises, there was undoubtedly sufficient probable cause to support a warrant for the search of the home for other related drug paraphernalia.

Next, Appellant contends that the warrant also lacked sufficient particularity. To be constitutionally valid under the Fourth Amendment, a warrant must describe with particularity "the place to be searched the thing to be seized." Crayton v. Commonwealth, 846 S.W.2d 684, 688 (Ky. 1992). Appellant claims the warrant was overly broad and authorized a "blanket search." However, the warrant specified that a tan and black single-wide mobile home, a wooden out-building, and curtilage around the residence were the places to be searched. They were to be searched for items used in the manufacture of methamphetamine, items used to ingest methamphetamine or other illegal drugs, and items used to conceal or promote illegal drug activity including weapons, cameras, or scanners. These were particular and adequate descriptions of the places to be searched and the things to be seized. As such, the warrant was valid.

III. CONCLUSION

All evidence obtained from the Widdifields' property was obtained through valid methods. Therefore, it was proper for the trial judge to deny Appellant's suppression motion. The evidence from the shed was obtained after Mr. Widdifield voluntarily consented to its search. Likewise, the evidence from the home was obtained through a duly-executed search warrant. Since no evidence was impermissibly acquired, the trial court properly denied Appellant's motion. Thus, we affirm Appellant's convictions and sentence.

All sitting. All concur.