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McLevain v. Commonwealth8/5/2005
AFFIRMING
BEFORE: BUCKINGHAM, JOHNSON, AND MINTON, JUDGES.
Roger McLevain has directly appealed from the judgment and sentence entered June 28, 2004, by the Muhlenberg Circuit Court, based on the denial of his motion to suppress evidence seized as the result of a warrantless search, and the trial court's denial of his motions for mistrial and a directed verdict of acquittal. Having concluded that the trial court did not err, we affirm.
The charges stemmed from a search that occurred at McLevain's residence on January 22, 2004. On February 6, 2004, McLevain was indicted for trafficking in a controlled substance in the first degree, possession of a controlled substance in the first degree while in possession of a firearm, receiving stolen property valued at $300.00 or more, possession of a firearm by a convicted felon, possession of drug paraphernalia, and for being a persistent felony offender in the first degree. On March 19, 2004, McLevain filed a motion to suppress the evidence seized as the result of a warrantless search of a backpack and fanny pack taken from a four-wheeler on the premises of his residence.
A suppression hearing was held in this case on March 22, 2004. Muhlenberg County Sheriff Jerry Mayhugh testified that on January 22, 2004, he, along with Deputy Bob Jenkins and Deputy Kathy McDonald, went to the residence of McLevain and Sherry Neal at 220 McConnell Lane, Central City, Muhlenberg County, Kentucky, to serve a mental health arrest warrant on Neal. The arrest warrant was obtained for Neal based on an affidavit from her mother, Mary Groves, that Neal was mentally ill and needed professional psychiatric treatment. Groves had also informed Sheriff Mayhugh of her suspicion that Neal was "strung out" on methamphetamine and that McLevain might be manufacturing methamphetamine.
Sheriff Mayhugh testified that just as he and the deputies arrived at the residence , McLevain appeared from behind the house on a four-wheeler. Sheriff Mayhugh stated that McLevain initially shut off the four-wheeler, but when McLevain saw Sheriff Mayhugh get out of his police cruiser, McLevain started the four-wheeler and pulled it into a garage located 30 to 50 feet from the house. According to McLevain, earlier that day, Charles "Charlie" Stewart, McLevain's nephew, had driven the four-wheeler, which belonged to Stewart's mother, Patsy Stewart, to McLevain's house for repair.
Sheriff Mayhugh testified that Deputy Jenkins and Deputy McDonald approached the house to look for Neal, while he approached McLevain and Stewart outside the garage. While standing just outside the garage, Sheriff Mayhugh informed McLevain and Stewart that he was on the premises to serve a mental health warrant on Neal. Sheriff Mayhugh also testified that upon entering the garage area, he smelled a strong odor of ether or anhydrous ammonia, which was coming from a backpack located in a basket attached to the front of the four-wheeler, previously driven by McLevain.
Sheriff Mayhugh informed the two men that he had received complaints of drug trafficking at the residence, and read both men their Miranda rights. McLevain questioned Sheriff Mayhugh as to why he was arresting him, but Sheriff Mayhugh told McLevain that he was not under arrest and that it was department policy to give Miranda warnings anytime a discussion occurred regarding possible drug trafficking. McLevain asked Sheriff Mayhugh if he could smoke a cigarette and Sheriff Mayhugh agreed. Sheriff Mayhugh then asked McLevain if he could look around. McLevain consented.
Sheriff Mayhugh approached the four-wheeler and noticed a backpack lying in the basket that was attached to the
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