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Riley v. Commonwealth5/22/2003
TO BE PUBLISHED
OPINION OF THE COURT BY JUSTICE COOPER
AFFIRMING
Appellant Freeland Thomas Riley was convicted by a McCracken Circuit Court jury of one count of possession of marijuana and one count of possession of drug paraphernalia, both Class A misdemeanors. KRS 218A.1422(2); KRS 218A.500(5).
Each offense was enhanced to a Class D felony by the jury's additional finding that Appellant was in possession of a firearm at the time the offenses were committed. KRS 218A.992 (1)(b). The marijuana charge was further enhanced by the jury's finding that he was a persistent felony offender in the first degree ("PFO first-degree"). KRS 532.080(3). Appellant was sentenced to a total of twenty years in prison and appeals to this Court as a matter of right. Ky. Const. § 110(b).
Appellant had been previously convicted on December 17, 1987, in the Ballard Circuit Court of burglary in the third degree and felony theft for which he was sentenced to three years in prison. He was subsequently convicted on July 25, 1994, in the McCracken Circuit Court of one count of trafficking in a controlled substance in the first degree, three counts of trafficking in marijuana (less than eight ounces), and two counts of trafficking in marijuana (eight ounces or more, less than five pounds) for which he was sentenced to thirteen years in prison, subject to 380 days credit for time already served. He was released on parole on July 24, 1997, and moved into a mobile home behind his father's residence. As conditions of his parole, Appellant agreed, inter alia, that (1) he would not "purchase, own or have in possession or control" a firearm, ammunition, or other dangerous instrument; (2) he would not use or possess any alcoholic beverages, narcotics, or controlled substances; (3) he would allow his parole officer to visit his residence at any time; and (4) the officer could conduct a search of his person or residence if the officer had reason to believe that he may have "illegal drugs, alcohol, volatile substance, or other contraband" on his person or property.
Around nine p.m. on November 16, 1999, Steve Campbell, a McCracken County probation and parole officer, accompanied by a deputy sheriff and another assistant, made a visit to Appellant's residence. The visit was in accordance with "Operation Night Vision," a cooperative agreement between the McCracken County probation and parole office and local police authorities by which parole officers would make home visits to parolees' residences at night under police protection. If any contraband was confiscated during the visit, the police authorities would process and retain custody of it for possible use in any subsequent legal proceedings. Officer Campbell initiated the visit by knocking on Appellant's door. When Appellant opened the door, Campbell advised that he was performing a "routine visit" as part of "Operation Night Vision" and that the additional officers were there for his (Campbell's) protection. Appellant allowed the officers to enter, then sat down on a chair near the front door. Immediately upon entry, Campbell observed a 30.06 rifle and a Remington twelve gauge shotgun laying that the guns belonged to his father, who was living with him at the time, and on a bassinet within six to eight feet of where Appellant was sitting. Appellant claimed volunteered that there were additional weapons located in his father's bedroom. Appellant then requested that the officers allow his sister-in-law to come to the residence and remove the weapons.
Suspecting that Appellant might be in possession and control of additional weapons, Campbell opened the drawer of an end table next to the chair on which Appellan
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