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# Commonwealth of Kentucky Court of Appeals

NO. 2022

- CA

- 0858

- MR
AUSTON STEWART APPELLANT

v. APPEAL FROM ROWAN CIRCUIT COURT

HONORABLE DAVID A. BARBER, JUDGE ACTION NO. 17

- CR

- 00058

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION AFFIRMING
**   **  **
BEFORE: CETRULO, GOODWINE, AND JONES, JUDGES. CETRULO, JUDGE: Appellant Aust i n 1 Stewart (“Stewart”) appeals a January 2018 order denying his motion to suppress evidence and the March 2022 jury verdict and final judgment in Rowan Circuit Court finding him guilty of one count of violating Kentucky Revised Statute (“KRS”) 510.155 and se ntencing him to five
years of incarceration. After review, we affirm.

1 The Appellant’s name appears as “Austin” on his judgment and s entence and all circuit court documents , but as “Auston” on the Court of Appeals’ documents.- 2

- BACKGROUND In March 2017, Detective Brian Cooper of the Kentucky State Police (“Detective Cooper”) received a complaint of a juvenile receiving inappropriate messages and photographs from Stewart, an adult male, through Facebook. With permission from the juvenile’s mother, Detective Cooper took over the juvenile’s
Facebook account and continued the conversation undercover, posing as the juvenile

. During th o se conversation s, Stewart asked for and sent sexually explicit
messages, photographs , and videos , and as a result, Detective Cooper obtained a felony arrest warrant.

In April 2017, Detective Cooper, accompanied by Winchester police, arrested Stewart at his home , confisc ated Stewart’s phone, then conducted a custodial interview at the police station . One month later, the Rowan County Grand Jury indicted Stewart on unlawful use of electronic means to induce a minor to engage in sexual or other prohibited activities (KRS 510.155).

In September 2017, Stewart filed a motion to suppress the police custodial interview and the contents of his phone , and i n January 2018, the circuit court held a suppression hearing. At that hearing, Detective Cooper testified t hat during their messaging, Stewart said he drove a white Chevy Impala. Detective Cooper also testified that he obtained Stewart’s address off his state identification- 3

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card 2 and drove past Stewart’s home where he saw a white Chevy Impala in the driveway. Also, Detective Cooper noticed a Winchester police cruiser parked in a nearby driveway and stopped to ask the officer about Stewart. The neighbor ing officer stated he knew Stewart personally and confirmed Stewart’s res idence

.

Accompanied by the Winchester officer, Detective Cooper went back to Stewart’s residence a few days later to serve the arrest warrant

. Detective Cooper again saw a white Chevy Impala parked in the driveway . Prior to knocking on the door, the det ective sent Stewart a message through the Facebook account they had been using to communicate

. Detective Cooper testified that Stewart’s
mother answered the door and indicated that Stewart was home and in his bedroom in the basement. Detective Cooper testified that he entered the home and went to the basement. The detective testified that he asked Stewart , “Is that your phone? Do you care if I look at it?” Detective Cooper testified that Stewart gave him permission to look at his ph one , and the detective saw, on the phone’s screen, the message he had sent prior to entering the home

. Then, Detective Cooper informed Stewart that he was under arrest and took him to the Winchester police station.

During the suppression hearing, Stewart asked Detective Cooper how he knew Stewart’s actual address because the address where he found and arrested Stewart was different than the address on the arrest warrant. Detective Cooper

2 He could not remember if it was a state identification card or driver’s license.- 4

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could not remember how or where he got the correct address , but indicated he had confirmed Stewart’s actual address with the neighbor ing officer. Stewart asked Detective Cooper if Stewart’s mother asked him to enter; the detective said the
mother indicated where S tewart was located and started walking in that direction

. He said, “She didn’t ask me to come in; she didn’t ask me not to come in either .”
T he court denied Stewart’s motion to suppress.

In March 2022, the Rowan Circuit Court held Stewart’s trial. The Commonwealth entered into evidence

– without objection

– photographs and messages from the online conversation s between Stewart and the juvenile and between Stewart and the undercover Detective Cooper. These included filtered photographs of Stewart’s face, naked photographs of Stewart (with his face clearly visible), videos of him masturbating, and Stewart’s reque sts for the same from the juvenile. The Commonwealth did not attempt to admit Stewart’s phone into
evidence at the trial. 3 All the relevant photographs and videos admitted at trial came from the device Detective Cooper used to communicate with Stewart a nd the juvenile’s Facebook account. 4

3 Detective Cooper testified that police did not have the technology in 2017 to access the Facebook application on Stewart’s phone. Police never accessed Stewart’s Facebook account.

4 Stewart also sent the juvenile his Snapchat profile and username, “Stew artAuston50.”- 5

- Detective Cooper testified that after the arrest, he transported Stewart to the Winchester police station. At the station, Stewart signed a consent for police to search his phone 5 and agreed to an interview with Det ective Cooper. The Commonwealth admitted into evidence

– without objection

– both the phone

search consent form and the custodial interview. In this interview, Stewart admitted sending sexual videos of himself to a person he believed to be a 13

- year old girl

. He stated, “I knew I done wrong

. . . . I know you got the proof

. . . . I’m not going to say [ inaudible ] I didn’t do it. ”

Stewart testified at trial that his phone was hacked, and he was not the
person communicating with the juvenile. He als o testified that he never knowingly signed a consent form allowing police to search his phone. After a 19

- minute deliberation, the jury found Stewart guilty and ultimately recommended five years
to serve in prison , which the trial court accepted. Stewart appealed. ANALYSIS On appeal, Stewart argues (A) the trial court erred in denying his motion to suppress , and (B) the trial court committed palpable error by allowing the Commonwealth to introduce evidence without laying foundation.

5 Detective Cooper testified that Stewart

– in front of the detective

– willingly, knowingly signed the phone search consent form

.- 6

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A. The trial court did not err by denying Stewart’s m otion to s uppress
. The standard of review of the trial court ’ s denial of a suppression motion is twofold: first, the trial court ’ s findings of fact are reviewed for clear error and are deemed conclusive if supported by substantial evidence; a nd second, the trial court ’ s legal conclusions are reviewed de novo. Barrett v. Commonwe alth , 470 S.W.3d 337, 340

- 41 (Ky. 2015) (citing Commonwealth v. Marr , 250 S.W.3d 624, 626 (Ky. 2008) )

.

“ Substantial evidence is evidence of substance and relevant consequence having the fitness to induce conviction in the minds of reasonable men.” Commonwealth v. Jennings , 490 S.W.3d 339, 346 (Ky. 2016) (internal quotation marks omitted ) ( quoting Owens

- Corn ing Fiberglas Corp., v. Golightly , 976 S.W.2d 409, 414 (Ky. 1998))

.

Here, the trial court made oral findings at the conclusion of the suppression hearing and stated, “I’m going to deny the motion to suppress given
Barrett [ supra ] and the fact that Detectiv e Cooper was told that [Stewart] was in
the home and he had a right to enter and place him under arrest.” On appeal, Stewart argues the trial court erred . He asserts that Detective Cooper illegally entered his home, 6 and as a result, the court improperly admitted the custodial

6 Stewart also argues the police illegally searched his bedroom and seized his phone. However, this argument does not warrant further analysis because (1) while in his bedroom, Stewart consented to Detective Cooper viewing his phone and Stewart does not deny this ; (2) police- 7

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interview because it was fruit of the poisonous tree. 7 Conversely, the Commonwealth again relies on Barrett to support the contention that Detective Cooper did not enter the home illegally, be cause the detective had a valid arrest warrant and “reason to believe” Stewart was in the home.

The Fourth Amendment to the United States Constitution and Section 10 of the Kentucky Constitution protect citizens from unreasonable searches and seizures

. While w arrantless searches and seizures inside a home are presumptively unreasonable , a valid arrest warrant permits police to enter a suspect’s home when there is reason to believe the suspect is inside

. Simpson v. Commonwealth , 474 S.W.3d 544, 548 (Ky. 2015) (quoting Payton v. New York , 445 U.S. 573, 603, 100 S. Ct. 1371 , 1373 , L. Ed. 2d 639 (1980) ). More specifically, “ a n arrest warrant founded on probable cause implicitly carries with it

officers may seize and secure cell phones i ncident to arrest ( Riley v. Cal ifornia , 573 U.S. 373, 388 , 134 S. Ct. 2473, 2486 , 189 L. Ed. 2d 430 (2014) (citations omitted) ) ; (3) police officers , in effectuating a valid arrest warrant, may search the area adjoining the place of a defendant’s arrest ( Kerr v. Commonwealth , 400 S.W.3d 250, 2 67

- 68 , (Ky. 2013) ); ( 4 ) Stewart gave written consent for police to search his phone at the police station and Detective Cooper testified that Stewart signe d this form knowingly and willingly ; ( 5 ) Stewart’s phone and its contents were not accessed prior to his custodial interview and Stewart does not deny this ; ( 6 ) Stewart’s phone’s Facebook app lication was never accessed by police , and Stewart does not deny this ; and ( 7 ) Stewart’s phone w as not admitted at tria l , and Stewart does not deny this

. 7 Stewart ’s brief states the address on the arrest warrant does not match the address where Detective Cooper arrested Stewart. He does not specifically argue that such a discrepancy has legal ramifications, nor does he cite any precedent that would suggest such a discrepancy negated the validity of the arrest wa rrant. It is the appellant who must make the arguments, not the appellate court. See Kentucky Rule of Appellate Procedure 32(A)(2). Also, w e note, the warrant in question is an arrest warrant ( for a person ) not a search warrant ( for a specific location )

.- 8

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the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within.” Barrett , 470 S.W.3d at 344 (ci tations omitted). If Detectiv e Cooper’s actions

– entering Stewart’s home and arresting
him

– were improper, as Stewart contends, there could be residual legal ramifications based on the “fruit of the poisonous tree” doctrine.

The exclusionary rule requires the suppression of any evid ence that is either the direct or indirect result of illegal police conduct. The fruit of the poisonous tree doctrine precludes not only the admissibility of evidence which is the direct result of a violation of the defendant ’ s rights, but also any evidence obtained by an exploitation of that violation.
Stevens v. Commonwealth , 354 S. W.3d 586, 590 (Ky. App. 2011) (citation omitted).
In Barrett , police received an anonymous tip that a suspect with multiple arrest warrants was currently located at a particular home

. 470 S.W.3d at 339. Dispatch “informed the officers that the last police contact with [the suspect ] had occurred at that address and that [the suspect ] was listed as the homeowner.” 8
Id. Before announcing themselves, police walked the perimeter of the home and heard voices inside. Id

. at 340. When police knocked on the front door, the voices stopped, but no one answered. Id

. Police continued to knock with a flashlight, and

8 The home ultimately belonged to the suspect’s father, with the same name, but the suspect did not challenge this at trial.- 9

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due to the force of the knocks alone, the front door opened. Id

. Police entered the home and announced their presence. Id

. A woman called from upstairs and came downstairs as directed. Id

. Upon questioning, the woman admitted that the suspect police were looking for was hiding in an upstairs closet. Id

. Police searched for the suspect upstairs and while sea rching for him, they found drug paraphernalia in plain view. Id

. Police arrested the suspect and after a denied motion to suppress, he entered a conditional guilty plea. Id

. This Court affirmed the trial court’s denial of the motion to suppress, and th e Kentucky Supreme Court granted discretionary review. Id

.

Ultimately, Our Supreme Court clarified the “reason to believe”
standard relevant here:

[P] olice executing a valid arrest warrant may lawfully enter a residence if they have reason to believe that the suspect lives there and is presently inside. Reason to believe is established by looking at common sense factors and evaluating the totality of the ci rcumstances and requires less proof than does the probable cause standard

. Id

. a t 342 (citation omitted).

Stewart implies the Commonwealth did not mee t the Barrett “ reason to believe” standard, or that Barrett is distinguishable , because here, the officers had “no reason to believe that [Stewart] was currently at the residence.” Simply,

w e do not agree.- 10

- The trial court’s role was t o look at “common sense factors” and the “totality of the circumstances.” See i d

. Then our role is to review the trial court’s decision to determine whether it was supported by substantial evidence

. Id

. at 340

- 41 (citation omitted). Here, Detective Cooper had a valid felony arrest warrant and reason to believe Stewart was inside the home: a white Chevy Impala matching the ca r Stewart said he drove was parked in the driveway; the neighbor ing officer confirmed Stewart lived at that location; and Stewart’s mother admitted to Detective Cooper that Stewart was in the home, in his basement bedroom. T he trial court found Detective Cooper entered Stewart’s residence with
a valid arrest warrant where he had reason to believe that Stewart lived and was currently inside . T hese findings are not clearly erroneous because they are supported by substantial evidence. Thus, Detective Cooper did not improperly enter the residence, nor he did violate St ewart’s Fourth Amendment rights (or Section 10 of the Kentucky Constitution). We detect no fruit, poisonous or otherwise. As there were no search and seizure violations, the custodial interview was not fruit of a poisonous tree.
B. The trial court did not err when it allowed the Commonwealth to introduce the Facebook messages

. Stewart argues that the trial court improperly allowed the Commonwealth to admit the Facebook messages into evidence. “An appellate court’s standard of review for admission of e vidence is whether the trial court- 11

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abused its discretion.” Brewer v. Commonwealth , 206 S.W.3d 313, 320 (Ky. 2006) (citation omitted) . “The test for abuse of discretion is whether the trial judge ’ s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Commonwealth v. English , 993 S.W.2d 941, 945 (Ky. 1999) (citation s omitted)

. However, here, Stewart did not preserve the issue, and we may only review for palpable erro r .

Under the Kentucky Rules of Criminal Procedure (RCr) 10.26, an unpreserved error may only be corrected on appeal if the error is both “palpable” and “affects the substantial rights of a party” to such a degree that it can be determined “manifest in

justice resulted from the error.” For error to b e palpable, “it must be easily perceptible, plain, obvious and readily noticeable.” [ Brewer , 206 S.W.3d at 349].

. . . Ultimately, “[m]anifest injustice is found if the error seriously affected the fairness, integrity, or public reputation of the proceeding.” Kingrey v. Commonwealth , 396 S.W.3d 824, 831 (Ky. 2013) (quoting McGuire v. Commonwealth , 368 S.W.3d 100, 112 (Ky. 2012)). Stephens v. Commonwealth , 680 S.W.3d 887, 898 (Ky. 2023) (quoting Young v. Commonwealth , 426 S.W.3d 577, 584 (Ky. 2014) )

.

Stewart argues Kentucky Rule of Evidence (“KRE”) 901(a) requires authentication before admission of evidence, but here, the Commonwealth sought to admit the Facebook messages witho ut authentication. He asserts, “[t]here was no evidence at trial that [Stewart] sent the messages to the alleged victim in this

case . . . . No foundation was laid as to [Stewart’s] ownership of the Facebook- 12

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account and time and date of the messages canno t be determined from the record.” Further, he asserts, “Facebook was never reached [] to properly link the account that [Detective Cooper] was messaging to [Stewart’s] cellphone. ”

Conversely, the Commonwealth contends it properly authenticated the Facebook messages ; hence the trial court did not err. We agree.

KRE 901(a) states, “The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” “T he proponent ’ s burden of authentication is slight, which requires only a prima facie showing of authenticity to the trial court.” Johnson v. Commonwealth , 134 S.W.3d 563, 566 (Ky. 2004) (citation omitted)

. “The factual inquiry is whether the evidence is what its proponent claims it to be.” Baker v. Commonwealth , 545 S.W.3d 267, 275 (Ky. 2018) (citing Johnson , 134 S.W.3d at 566) . A witness with knowledge may authenticate evidence by te stifying that the evidence is what it is claimed to be. Id. (citing KRE 901(b)(1)).

Here, the messages contained photographs of Stewart ’s face , sent both before and after Detective Cooper took over the account. These photographs, as the Commonwealth asserts , “clearly depicted and indicated it was Stewart’s Facebook account.” Detective Cooper matched the photographs sent from the
Facebook accou nt with the state’s license photo (and identification card) database,- 13

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and Detective Cooper confirmed Stewart’s identity. Also, Detective Cooper testified that the messages presented were an accurate description of the conversations he had with Stewart , an d the messages were consistent with the conversations between Stewart and the juvenile. Detective Cooper testified that he saw the message (that he sent immediately before entering Stewart ’s house to arrest him) on Stewart’s phone, confirming the Facebook account he was interacting with was linked to Stewart’s current phone. Further, in the custodial interview, Stewart admitted to Detective Cooper that he sent the messages and videos to the juvenile, and other females.

“ Exercising its considerable discretion, a trial court may admit a piece of evidence solely on the basis of testimony from a knowledgeable person that the item is what it purports to be and its condition has been substantially unchanged. ” Kays v. Commonwealth , 505 S.W.3d 260, 270 (Ky. App. 2016) (citing Grundy v. Commonwealth , 25 S.W.3d 76, 80 (Ky. 2000) )

. Whether there is enough evidence of authenticity to admit evidence is within the discretion of the trial court. Brafman v Com monwealth , 612 S.W.3d 850, at 866 (Ky. 2020). Here, Detective Cooper’s testimony established the requisite authentication. Thus, the trial court did not err.- 14

- CONCLUSION In light of the foregoing, we AFFIRM the trial court’s January 2018 order denying Stewart’s motion to suppress evidence and the March 2022 jury verdict and final judgment of the Rowan Circuit Court

.

ALL CONCUR

.

BRIEF FOR APPELLANT: Derrick L. Harris Lexington, Kentucky BRIEF FOR APPELLEE: Daniel Cameron Attorney General of Kentucky Joseph A. Beckett Assistant Attorney General Frankfort, Kentucky