Kentucky Court Of Appeals
No.2011-CA-000187
(On appeal Jefferson Circuit Court, No.2011-CR-000187)

Justin Meyers
V.
Commonwealth Of Kentucky
Brief of Appellant, Justin Meyers

Brittney H. Moran
Moran Law Office
920 Samuel Street, Suite10210
Louisville, Kentucky 40204
Certificate of Service
Undersigned certifies that the copy of this Brief of Appellant has been served by first class mail, on Sherry D. Hall, Counsel for the commonwealth Of Kentucky at 600 Market Street, Suite 1002 and Jake M. Moore, Clerk of Jefferson Circuit Court, at 700 West Jefferson Street, Louisville, Kentucky 40202. “INTRODUCTION”
This is an appeal of ruling on suppression motion. Appellate was tried by a jury and found guilty of possession of a controlled substance, drug paraphernalia, and first degree murder. Appellate appeals a ruling to allow a motion to suppress evidence found during the search warrant, stating the bloody handkerchief was illegally seized which subsequently led him to being charged with murder.
A”STATEMENT CONCERING ORAL ARGUMENT”
Appellant request that there no oral arguments because the issues presented in this case are not complex and the court will not benefit from the ability to question counsel.
A”STATEMENT OF THE CASE”
On November 16, 2010, a search warrant was served to have the premises at24870 Lake View Place Apartment 17, Centerville, searched. This apartment was suspected to be occupied by the defendant. The search warrant allowed law enforcement officers to search the premises for cocaine and cocaine paraphernalia, which included but not limited to: sugar, milk, balloons, condoms, measuring devices, miniature spoons, short straws, money, computer, vehicle, storages, and buyer list. It also allowed officers to verify that the residence was fact occupied by the defendant.
During the search of the residence officers found photographs on the dresser in the bedroom with the accused in them as well missing person Nadine Bostick. They also found utility bills with the defendants name on them which was proof that in fact he does reside at this residence. While continuing the search of the apartment, Officer Alonza stumbled upon a jacket hanging in the closet. After feeling the pockets of the jacket it felt as though there were something illegal in the jacket. Reaching in the pocket Officer Alonza seized the bloody handkerchief and placed it into a container. Having over fifteen years of experience, Officer Alonza felt as through the handkerchief may have had traces of cocaine or paraphernalia, or may have been used to wipe paraphernalia. He was also suspicious as to why there was blood on the handkerchief, police instincts kicked in.
Officer Alonza then asked the accused about the bloody handkerchief. The accused responded by saying that he must have had a bloody nose, but he didn’t remember. The defendant was also asked if he knew Nadine Bostick. Defendant replied that he had met her once or twice but she was a friend of a friend. Officer Alonza continued to question the accused and told him if he knew anything about her disappearance that he should let the officers know.
The accused said he did not know anything about her disappearance. Officer Alonza placed the defendant under arrest and read him his Miranda rights. The defendant then stated that he wanted a lawyer. While being transported to jail, the accused asked the officers if they had any leads in Ms. Bostick’s disappearance. The Officers then asked the accused why he wanted to know, his response was “He was just curious.” After further conversation with the accused made a comment saying with all the time that has gone by that everybody must think that she is already dead.
The accused went on to say if he were investigating the case he would look in Diablo Dam. The officers asked the accused why he would do that, and he said he didn’t want to talk about it any longer without his lawyer present. The bloody handkerchief was sent off for DNA lab for testing. A few weeks later when the DNA test result come back, evidence proved that the blood on the handkerchief was in fact the blood of Nadine Bostick. This is the reason why the accused is being charged of murder.

AN “ARGUMENT”
The defendant challenges the denial of his motion to suppress the evidence obtained during an illegal search of his home where evidence was found that subsequently convicted him of murder. Police officers must have the right to be there and search the area-warrant searches of personal property. A search warrant must describe with particularity the place to be searched and the things to be sized. Without such a warrant, however, officers are free to determine for themselves the extent of their search and the precise objects to be seized. Trupiano v.U.S. 334 U.S.699 U.S.(1948) Officers had a search warrant that was issued by a judge to search the defendant’s home for drugs and paraphernalia. Under the Plain Feel Doctrine, Which states is it immediately apparent as evidence of a crime by just feeling. Officer Alonza who is a veteran on the police force; He has been with the police force for over fifteen years. When Officer Alonza felt the jacket, he stated that he felt something in the jacket pocket, which he recognized as drugs from his training and experience as a police officer. Officer Alonza then went in the jacket pocket and seized the item. In order for Officer Alonza to retrieve the drugs he wanted he had to open the bloody handkerchief, which subsequently led him to finding blood on the handkerchief. If Officer Alonza or Officers have lawful rights of access to the object, they may seize it without a warrant, but if the police lacks probable cause to believe that an object in plain view is contraband without conducting some further search of the object, i.e., if it’s incriminating characters is not immediately apparent, the “Plain View” doctrine cannot justify the seizure.
Minnesota v. Dickerson 508 U.S. 366, 113 S. C.t. 3130(1993)
Police officers must warn a suspects that prior to questioning that he has a right to remain silent and right to the presence of attorney, and after the warnings are given, if the suspect indicates that he wishes to remain silent, the interrogation must cease. Id. The defendant was mirandaized, and understood those rights. The accused understood those rights because immediately after he was handcuffed he stated he wanted a lawyer. There can be no questioning if the defendant indicates in any manner and at any stage of interrogation process that he wishes to consult with an attorney before speaking. Miranda v. Arizona 384 U.S. 436 86 S.C. t.1602 (1966).
The Edwards rule, under which a suspect who has invoked his right to the presence of a counsel during custodial interrogation is not subject to further interrogation until either counsel has been made available or the defendant initiates exchange with the police. Maryland v Shazter 103 S. C. t.1213 U.S. Md. (2010)

It was not held in the Edwards rule that the initiations of a conversations by an accused after invoking right to counsel amounts to a waiver of the right to counsel but, rather, a two step process is involved after finding no Edwards violation the inquiry is whether, the accused made a knowing and intelligent waiver of right to counsel. Oregon v Bradshaw 462 U.S. 1039,103 S.C.t.3830 (1983)
The accused made a knowing and intelligent wavier of right to counsel, and in asking, did officer had any leads in Nadine Bostick’s disappearance, the accused had imitated further conversation for the purpose of the Edwards rule .Officers not once imitates conversation with the accused. There is not a law that states that if a suspect’s initiates conversation with officers that they aren’t allowed to talk back. But even if the illegal entry here could be characterized as a ‘but for” cause of discovering what was inside, we have “never held that evidence is “Fruit of the Poisonous tree ‘simply because ‘it would not have come to light but for illegal actions of the police.” United States v Yamba 506 F.3d.251 (2007)

Exclusion may not be premised on the mere fact that a constitutional violation was a “but for” cause of obtaining evidence. Id. There is no fruit of the poisonous tree. The test of the fruit of the poisonous tree doctrine is whether the evidence to which objection is made was come by exploitation of that illegality or by means of sufficiently independent of wrongful acts so as to avoid the primary taint, and when knowledge is gained from independent source it may be proved like any other. Carpenter v U.S. 463 F.2d.397 C.A.10 (1972)

Officer Alonza did not obtain any evidence illegally or by doing any wrongful acts. Everything that he and the officers did was done by the books. “But for” casualty is only necessary, not a sufficient, condition for suppression. Untied States v Yamba 506 f.3d 251 (2007)

A “CONCLUSION”
The trial court, after examining all the circumstances surrounding the case, the search warrant that was conducted revealed a bloody handkerchief in the defendant’s jacket pocket was legal. The defendant was read hid Miranda rights and understood those rights. We therefore affirm the Districts Court’s denial of the defendant’s motion to suppress the evidence discovered and consequently led to his conviction of first degree murder.