RENDERED: APRIL 12, 2024; 10:00 A.M.

NOT TO BE PUBLISHED

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 Austin

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 sentencing him to five 

years of incarceration. After review, we affirm.

1 The Appellant’s name appears as “Austin” on his judgment and sentence and all circuit court 

documents, but as “Auston” on the Court of Appeals’ documents.
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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 those conversations, 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, confiscated 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 in January 2018, the circuit 

court held a suppression hearing. At that hearing, Detective Cooper testified that 

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 
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card2and 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 neighboring

officer stated he knew Stewart personally and confirmed Stewart’s residence.

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 detective 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 phone, 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.
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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 neighboring officer. Stewart asked 

Detective Cooper if Stewart’s mother asked him to enter; the detective said the 

mother indicated where Stewart 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.” 

The 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 conversations 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 requests 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 and 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, “StewartAuston50.”
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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 phone5and agreed to an interview with Detective Cooper. The 

Commonwealth admitted into evidence – without objection – both the phonesearch 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-yearold 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 also 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.
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A. The trial court did not err by denying Stewart’s motion to 

suppress.

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;

and second, the trial court’s legal conclusions are reviewed 

de novo.

Barrett v. Commonwealth, 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-Corning 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 Detective 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,6and 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 
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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, because 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 warrantless 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, “an arrest warrant founded on probable cause implicitly carries with it 

officers may seize and secure cell phones incident to arrest (Riley v. California, 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, 267-68, (Ky. 2013)); (4) Stewart gave written consent

for police to search his phone at the police station and Detective Cooper testified that Stewart 

signed 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 

application was never accessed by police, and Stewart does not deny this; and (7) Stewart’s 

phone was not admitted at trial, 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 warrant. It is the appellant who must make the arguments, not 

the appellate court. See Kentucky Rule of Appellate Procedure 32(A)(2). Also, we note, the 

warrant in question is an arrest warrant (for a person) not a search warrant (for a specific 

location).
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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 (citations 

omitted). If Detective 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 

evidence 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.
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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 searching 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 the 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 circumstances and 

requires less proof than does the probable cause standard.

Id. at 342 (citation omitted).

Stewart implies the Commonwealth did not meet 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, 

we do not agree.
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The trial court’s role was to look at “common sense factors” and the 

“totality of the circumstances.” See id. 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 car Stewart said he drove was parked in the driveway; the 

neighboring 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. The 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. These 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 Stewart’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 evidence is whether the trial court 
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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) (citations

omitted). However, here, Stewart did not preserve the issue, and we may only 

review for palpable error.

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 injustice resulted from the error.” 

For error to be 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 without 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 
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account and time and date of the messages cannot 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.” “The 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 testifying 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 account with the state’s license photo (and identification card) database, 
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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, and 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 Commonwealth, 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.
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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