RENDERED: SEPTEMBER 26, 2024

TO BE PUBLISHED

Supreme Court of Kentucky

2022-SC-0382-MR

SCOTT EDWARD BITTER APPELLANT 

V. 

ON APPEAL FROM KENTON CIRCUIT COURT

HONORABLE KATHLEEN LAPE, JUDGE

NO. 21-CR-00288-001

COMMONWEALTH OF KENTUCKY APPELLEE 

OPINION OF THE COURT BY JUSTICE THOMPSON

AFFIRMING

Following the denial of his motion to suppress, Scott Bitter was found 

guilty by a Kenton County jury of two counts of trafficking in controlled 

substances and being a persistent felony offender. The trial court sentenced 

him to a total of twenty years’ imprisonment. In this appeal, Bitter argues that 

the trial court erred in denying his motion to suppress because an officer, who 

had not yet obtained a warrant, violated his constitutional right to be free from 

unreasonable searches and seizures when the officer entered his apartment 

and testified to seeing drug paraphernalia in plain view immediately after the 

door was opened.

After reviewing the record, viewing the responding officer’s body camera 

footage and hearing oral argument, we affirm the trial court’s denial of Bitter’s 
2

motion to suppress and conclude that there was no violation of his

constitutional rights under U.S. Const. amend. IV and Ky. Const. § 10.

I. FACTUAL AND PROCEDURAL HISTORY

On December 5, 2020, Covington Police Officer Kevin Igo received a letter 

from a resident of a multi-family apartment house that another tenant, Bitter, 

had pistol-whipped a man and was selling drugs out of the basement of the 

residence. Officer Igo knew that Bitter was a convicted felon and was aware 

that drug users arrested in this area had reported that Bitter was their source. 

Officer Igo and other officers went to the residence to investigate with a 

“knock and talk”1 prior to requesting or being issued a warrant. When Officer 

Igo arrived at the residence, he spoke with a man who was either the boyfriend 

or husband of the woman who had written the letter and this man confirmed 

that Bitter and Susan Hornsby were living in the basement of the building and 

indicated that this apartment could be accessed from the rear of the house. 

Officer Igo, with his body camera activated, and another officer went to 

the basement door and knocked but did not announce they were police officers. 

A male’s voice from inside the basement apartment asked who it was, and 

Officer Igo responded with “John” and stated he was looking for “Melissa.” A 

female voice answered saying they had “the wrong place” to which Officer Igo 

1 Quintana v. Commonwealth, 276 S.W.3d 753, 757 (Ky. 2008) (“The knock and

talk procedure is a helpful and commonly used police tool, often applied in situations 

as mundane as looking for a lost pet or to ask if the homeowner has seen a suspicious 

person in the neighborhood”).
3

responded that Melissa had told him to “come talk to you.” Later in this 

exchange another male voice from inside the apartment also stated that it was 

the wrong house. Ultimately though, Hornsby, who had recently begun living 

with Bitter, opened the door. 

Officer Igo testified that immediately upon the door being opened, he 

observed a coffee table approximately five to ten feet from the door which had 

drug paraphernalia on it. Officer Igo testified that this drug paraphernalia was 

in plain view to him on the table and included a black scale, a baggie of pink 

pills and a box of sandwich bags with several baggies removed. Officer Igo’s 

body camera footage recorded him announcing to his fellow officers, “I got a 

scale and everything in plain view.” 

Officer Igo instructed Bitter and Hornsby to exit the basement. No one 

else could be seen in the apartment and no one else made their presence 

known but Officer Igo asked Bitter if anyone else was still inside. Bitter told 

him that another man, Jeremy, was in the back room of the basement. Jeremy 

only came out of the back room of the basement after being called out by name 

by Officer Igo. After this third person exited the basement, Officer Igo and 

another officer entered the basement and conducted a protective sweep based 

on allegations of a firearm and for the officers’ safety. The basement was 

composed of two rooms, one of which could not be observed from the entrance 

doorway.

After the protective sweep, Officer Igo asked Bitter for consent to search 

the basement which Bitter refused. Officer Igo applied for a search warrant 
4

based upon his plain view the digital scale, the pink pills and the baggies he 

saw when Hornsby opened the door to him. During the execution of the search 

warrant, in addition to the digital scales, baggies, and a bent spoon with burnt 

residue, officers recovered approximately three and one-half grams of fentanyl, 

over fifteen grams of methamphetamine, and a firearm. The baggy of pink pills 

turned out to be vitamins. 

Bitter and Hornsby were both indicted on one count of first-degree 

trafficking in a controlled substance (two or more grams of methamphetamine 

while in possession of a firearm) and one count of first-degree trafficking in a 

controlled substance (fentanyl while in possession of a firearm). Bitter was also 

indicted on one count of tampering with physical evidence, one count of being 

convicted felon in possession of a firearm, and first-degree persistent felony

offender (PFO). The trial court severed the charge of felon in possession of a 

firearm prior to his trial. 

Bitter filed a motion to suppress pursuant to Kentucky Rules of Criminal 

Procedure (RCr) 9.78 which stated “[p]olice officers did not obtain consent to 

search” his apartment, “police allege[d] that they saw items in ‘plain view’ 

indicative of criminal activity,” and “[p]olice performed a protective sweep inside 

of the residence before obtaining a warrant.” 

Based on those recited facts, Bitter argued that:

This search was illegal because the protective sweep did not fall 

under a valid exception to the warrantless entry of the home, the 

items in “plain view” did not support probable cause, and the 

warrant on its face was not sufficient to support probable cause. 
5

For purposes of this appeal, it is important to recognize what Bitter failed 

to allege in his motion to the trial court: He neither alleged that officers violated 

“knock and talk” rules when first making contact with Bitter and Hornsby, nor 

that they used an improper ruse to get Hornsby to open the apartment door. 

In the hearing conducted on Bitter’s motion to suppress,2 only Officer Igo 

was called and his unrebutted testimony was that he observed the baggies, 

pills and scales immediately upon Hornsby opening the door. Officer Igo was 

questioned by Bitter’s counsel regarding the video footage of the events 

surrounding his contact with Hornsby and Bitter at the apartment which was 

preserved by his body camera and such video was viewed by the trial court.

The trial court entered a written order denying Bitter’s motion which detailed

the facts of the encounter between Igo, Bitter and Hornsby as testified to by 

Officer Igo and corroborated by his body camera footage. 

II. LEGAL ANALYSIS

At the outset, in reviewing a trial court’s denial of a suppression motion, 

we recognize that “we utilize a clear error standard of review for factual 

findings” and will defer to the trial court's findings of fact to the extent they are 

supported by substantial evidence and are not clearly erroneous. Jackson v.

Commonwealth, 187 S.W.3d 300, 305 (Ky. 2006). Regarding the trial court’s 

conclusions of law however, we apply a de novo standard of review. Id.

2 Hornsby followed up Bitter’s motion to suppress with her own which was also 

addressed within this hearing. 
6

The trial court found nothing in Officer Igo’s body camera footage that 

disproved his testimony. In pertinent part, the trial court’s order recited Officer 

Igo testifying that “upon a woman opening the door, he saw a scale, a bag of 

pills (later identified as vitamins), a bent and burnt spoon, and a package of 

sandwich bags in plain sight on tables” and that Igo believed these items to be 

indicia of drug use based upon his knowledge and experience. The trial court 

determined, “[i]t is clear from Igo’s body cam that there were items of alleged 

drug paraphernalia on the table in the room, and they are in plain sight of Igo. 

Igo immediately announces to his fellow officers that in plain view is a ‘scale 

and everything.’” 

The trial court’s order also offered a specific response to Horsby’s 

argument that the table viewed by Officer Igo was too messy for him to have 

had a “plain view” of the drug paraphernalia present, stating:

Defendant Hornsby not only adopts Bitters’ arguments about the 

issues and does not deny that the items of suspected drug 

paraphernalia; scales, bent and burnt spoon, a bag of pills, and a 

package of sandwich bags were in the rooms, but argues that they 

could not be in plain view as it was messy. Defense further argues 

that all of the items are for ordinary kitchen use. The Court is not 

swayed by these arguments. A review of the video from the body 

camera clearly shows this was not a kitchen setting, and while the 

area and tables were messy, Officer Igo immediately identified 

these items upon contact with the occupants of the room.

The trial court went on to address Bitter’s allegation of an unlawful 

protective sweep of his apartment by concluding:

This Court finds that the circumstances in this case for a 

protective sweep of both the first room, as well as, the second room 

(where Turner emerged) was to protect law enforcement and other 

individuals against the threat of unknown individuals, as well as, 

the suspicion that there could be a weapon on the property. Based 
7

on the totality of the circumstances, this Court finds that the 

protective sweep was appropriate and reasonable under the 

circumstances presented in this case. The officers did not exceed 

the scope of the protective sweep. 

The factual findings made by this trial court in a suppression matter are 

conclusive so long as they are supported by substantial evidence; thus “a 

reviewing court should take care both to review findings of historical fact only 

for clear error and to give due weight to inferences drawn from those facts by 

resident judges and local law enforcement officers.” Commonwealth v. Ousley,

393 S.W.3d 15, 22–23 (Ky. 2013).

On appeal, Bitter argues that the search of his basement dwelling was 

conducted illegally in violation of rights under both the Fourth Amendment to 

the United States Constitution and Section 10 of the Kentucky Constitution.

Bitter makes four separate allegations in support of his argument: (1) Officer 

Igo’s initial contact with Bitter and Hornsby was not consensual and otherwise 

violated the confines of a permissible “knock and talk;” (2) Officer Igo 

unlawfully crossed the dwelling’s threshold; (3) the unlawful nature of the 

evidence that Officer Igo saw “in plain view” was not immediately apparent; and 

(4) the trial court erred “when it held the warrantless search was predicated on 

a lawful protective sweep.” 

While Bitter asserts in his appellant brief that “this error (the legality of 

search of the basement by police) is preserved for appellate review,” such 

statement is, at best, only partially correct in the context of the four separate 

grounds for reversal raised by him in this appeal.
8

I. Was the Search of the Basement Illegal? 

We review the underlying facts to determine whether: (a) an unlawful 

entry occurred and a search was conducted prior to the issuance of a warrant; 

or (b) whether the actions taken by police in responding to a report of violence 

and illegal drug activity constituted a lawfully conducted investigation wherein 

drug-related items were identified in plain view, from a lawful vantage point,

and without an unlawful “entry” occurring. 

A. Was Officer Igo’s Initial Contact with Bitter and Hornsby NonConsensual and an Improperly Conducted “Knock and Talk?”—

Not Preserved 

Bitter did not argue to the trial court that his or Hornsby’s initial contact 

with Officer Igo was non-consensual and/or a violation of this Court’s “knock 

and talk” policies as set forth in Quintana. When such an argument is not 

addressed within a suppression hearing, the issue is not reviewable on appeal. 

Commonwealth v. Smith, 542 S.W.3d 276, 285 (Ky. 2018). During oral 

argument, Bitter’s counsel conceded that this issue was not argued to the trial 

court, Bitter was not asking for suppression of the evidence for this reason, 

and these allegations were made to show a lack of voluntariness and consent in 

the initial encounter which resulted in Hornsby opening the door to Officer Igo. 

B. Did Officer Igo Enter the Basement Unlawfully? 

In this argument, Bitter asserts that Igo “barged through the door” and 

“immediately breached the threshold and was inside the apartment” as soon as 

Hornsby opened the door and did so without a warrant or explicit or implicit 

invitation. Bitter asserts that Officer Igo’s body camera footage shows Igo 
9

“moving past the lock mechanism on the door jamb” and cites to Payton v. New 

York, 445 U.S. 573, 590 (1980) (“Absent exigent circumstances, that threshold 

may not reasonably be crossed without a warrant.”). At oral argument, Bitter’s 

counsel conceded that Officer Igo was not questioned at the suppression 

hearing on the issue of if or when he crossed the threshold of the doorway 

when it was opened to him. 

This Court conducted an independent review of Officer Igo’s body camera 

footage to attempt to determine whether or not he breached the threshold of 

the apartment and therefore “entered” the apartment prior to seeing the table 

and drug paraphernalia. Following that review, a majority of this Court has 

determined that the body camera footage does not conclusively disprove Officer 

Igo’s unrebutted testimony that he viewed drug paraphernalia immediately 

upon Hornsby opening the door to him and otherwise does not support Bitter’s 

allegation that Officer Igo physically crossed the threshold of the basement 

door prior to his eyes seeing, in plain view, the table with evidence of drug 

activity. 

C. Was the Incriminating Nature of the Evidence in Plain View to 

Officer Igo Immediately Apparent? 

Bitter contends that Officer Igo could not have positively recognized drug 

paraphernalia from his vantage point in the doorway given the other “mess” on 

the table and that such identification could have only come during the later 

protective sweep. Bitter contends that only the scales might have been 

positively identifiable on the table from the vantage point of the doorway and 
10

that scales alone would not provide probable cause to believe there was illegal 

drug activity occurring. 

The only real issue here is whether or not the trial court’s determination 

that “[i]t is clear from Igo’s body cam that there were items of alleged drug 

paraphernalia on the table in the room, and they are in plain sight of Igo” was 

clearly erroneous.

Having independently reviewed both the hearing and Officer Igo’s body 

camera footage, a majority of this Court cannot agree with Bitter that the trial 

court’s determination, based as it was on both the body camera video and 

Officer Igo’s testimony,3 could be found to be clearly erroneous. While being an 

invaluable tool to both law enforcement and our courts, body camera footage 

can be a poor substitute for trained human eyes, especially when it comes to 

recognizing details in a fluid situation where the camera’s perspective is not 

synchronous to the eyes of the officer wearing it and lighting comes into play.

Officer Igo stated that “I got a scale and everything in plain view” almost 

immediately after the apartment door was opened to him by Hornsby. The fact 

that he did not also instantly verbally identify each item of “everything” he 

observed in that first moment does not persuade us that he did not 

immediately recognize the remaining and obviously drug-related items strewn 

across the table. These items would have created more than a mere suspicion 

3 See Henson v. Commonwealth, 20 S.W.3d 466, 470 (Ky. 1999) (“the trial court 

is the sole trier of facts and the exclusive judge of the credibility of the witnesses and 

of the weight to be given their testimony”).
11

and their “incriminating nature” would have been immediately apparent to any 

trained and experienced officer. See Commonwealth v. Hatcher, 199 S.W.3d 

124, 127 (Ky. 2006). 

The various items present on the table in plain view to Officer Igo from 

the doorway and recognized by him were, en toto, sufficient to justify the 

issuance of the subsequent warrant which led to their seizure. 

D. Did the Trial Court Err by Ruling the Warrantless Search was 

Predicated on a Lawful Protective Sweep?—Preserved 

Lastly, Bitter argues that the trial court erred in determining “the 

protective sweep was appropriate and reasonable under the circumstances 

presented in this case” and since three persons had already exited the 

residence and were not yet under arrest, there was no need for, or lawful 

argument for, a protective sweep, citing to Guzman v. Commonwealth, 375 

S.W.3d 805 (Ky. 2012), Kerr v. Commonwealth, 400 S.W.3d 250 (Ky. 2013) and 

Brumley v. Commonwealth, 413 S.W.3d 280 (Ky. 2013). 

This argument is a proverbial “red herring” in this particular case and 

was only addressed by the trial court because it was raised by Bitter. 

Discussion of the underlying facts which led officers to conduct a sweep of 

Bitter’s apartment prior to obtaining a warrant, would only merit further 

discussion here if the drug-related paraphernalia had only been observed by 

Officer Igo during the sweep and had not already been viewed by him from the 

doorway prior to the sweep being performed. Officer Igo testified that he was
12

able to observe drug paraphernalia in plain view, from a lawful vantage point.4

Such observations were sufficient for the warrant ultimately obtained and we

conclude that neither the sweep conducted, nor the officer’s rationale for such 

a sweep, could have served as a proper basis for the trial court to have granted 

Bitter’s motion to suppress. 

III. CONCLUSION

Because Covington police ultimately obtained a search warrant based on 

the observations made by Officer Igo, the only substantive issues requiring 

resolution in this case were whether Officer Igo could have made his 

observation of drug paraphernalia despite the clutter on the table in question 

and whether those observations were made from a lawful vantage point outside 

the residence. 

Having determined that the trial court’s own findings of fact on those 

issues were not clearly erroneous, we affirm the order by the Kenton Circuit 

Court denying Bitter’s motion to suppress and affirm his conviction and 

sentence. 

All sitting. VanMeter, C.J.; Bisig, Keller, and Nickell, JJ., concur. 

Lambert, J., dissents by separate opinion in which Conley, J., joins. 

LAMBERT, J., DISSENTING. While I do not dispute that the officers in 

this case removed an armed and allegedly violent drug trafficker from the 

community, I am compelled to emphasize that the protections provided by the 

4 See Hazel v. Commonwealth, 833 S.W.2d 831, 833 (Ky.1992).
13

Fourth Amendment against impermissible intrusion by government agents into 

the home belong to everyone, including armed and allegedly violent drug 

traffickers. And, while I would not argue in favor of overturning such an 

individual’s convictions lightly, I am deeply disturbed by the blatant Fourth 

Amendment violations that occurred in this case. Officer Igo’s body camera 

footage clearly showed that he was facing the full width of the interior staircase 

to his right as he moved into the dwelling as the door was opened.5 This was a 

clear and inexcusable violation of Bitter’s Fourth Amendment rights. 

But, before reaching the merits, I would like to clarify the fundamental 

Fourth Amendment doctrines that are involved in this case. I fully 

acknowledge many of these issues were not argued before the circuit court and 

have therefore not been preserved for our review. Nevertheless, at the very 

least, a thorough discussion may provide clarity to the bench, bar, and law 

enforcement such that the Fourth Amendment violations that occurred in this 

case might be avoided in the future. 

First, and of the upmost importance, the Fourth Amendment of the 

United States Constitution, made applicable to the states via the Fourteenth 

Amendment, states: 

The right of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and seizures, 

shall not be violated, and no Warrants shall issue, but upon 

probable cause, supported by Oath or affirmation, and particularly 

5 It is at times like these that, for the reader’s sake, I long for a hyperlink that 

would take the reader to the video of the body camera footage so it could be seen, and 

the gravity of the violation better understood. 
14

describing the place to be searched, and the persons or things to 

be seized.6

“[T]he ‘physical entry of the home is the chief evil against which the wording of 

the Fourth Amendment is directed.’” Payton v. New York, 445 U.S. 573, 585 

(1980) (quoting United States v. U.S. Dist. Court for E. Dist. of Mich., S. Div., 407 

U.S. 297, 313 (1972)). As such, “[i]t is a ‘basic principle of Fourth Amendment 

law’ that searches and seizures inside a home without a [search] warrant are 

presumptively unreasonable,” Payton, 445 U.S. at 586, “subject only to a few 

specifically established and well-delineated exceptions.” Katz v. United States, 

389 U.S. 347, 357 (1967). And, “[t]he Commonwealth carries the burden to 

demonstrate that the warrantless entry falls within a recognized exception to 

the warrant requirement.” Kerr v. Commonwealth, 400 S.W.3d 250, 266 (Ky. 

2013) (quoting King v. Commonwealth, 386 S.W.3d 119, 122 (Ky. 2012)). 

The established and well-delineated exceptions that grant law 

enforcement the authority to enter someone’s home without a search warrant 

are: (1) “the consent of a person with the authority to give such permission.” 

Simpson v. Commonwealth, 474 S.W.3d 544, 548 (Ky. 2015); (2) an arrest 

warrant, which “implicitly carries with it the limited authority to enter a 

dwelling in which the suspect lives when there is reason to believe the suspect 

is within.” Id. (quoting Payton, 445 U.S. at 603); (3) exigent circumstances 

6 Accord Ky. Const. § 10 (“The people shall be secure in their persons, houses, 

papers and possessions, from unreasonable search and seizure; and no warrant shall 

issue to search any place, or seize any person or thing, without describing them as 

nearly as may be, nor without probable cause supported by oath or affirmation.”).
15

such as rendering emergency aid, Hughes v. Commonwealth, 87 S.W.3d 850, 

852 (Ky. 2002), the “hot pursuit” of a fleeing subject, see King, 386 S.W.3d at 

122, or the feared destruction of evidence, Commonwealth v. McManus, 107 

S.W.3d 175, 177 (Ky. 2003); and (4) a protective sweep is “a quick and limited 

search of premises, incident to an arrest and conducted to protect the safety of 

police officers or others.” Kerr, 400 S.W.3d at 266 (quoting Maryland v. Buie, 

494 U.S. 325, 326 (1990)).7 

Before further discussion of the requirements for a legal protective 

sweep, it is crucial to note that an officer seeing illegal items in “plain view,” 

alone, is not an established exception to the requirement that law enforcement 

must have a search warrant to enter someone’s home. Rather, the plain view 

doctrine is an exception to the requirement that law enforcement must have a 

search warrant to seize evidence. See, e.g., Hazel v. Commonwealth, 833 

S.W.2d 831, 833 (Ky. 1992) (citing Coolidge v. New Hampshire, 403 U.S. 443 

(1971)) (“[T]he courts have allowed several exceptions for seizures without 

warrants—one of these being evidence found within ‘plain view.’”). The plain 

view doctrine allows the warrantless seizure of evidence if three elements are 

satisfied: 

First, the law enforcement officer must not have violated the 

Fourteenth Amendment in arriving at the place where the evidence 

could be plainly viewed. Second, “not only must the officer be 

7 Both the United States Supreme Court and this Court have also recognized 

that “because of the ‘special needs’ presented by law enforcement, a state may issue 

regulations allowing a probation or parole officer to search a probationer's or parolee's 

property without a warrant.” Riley v. Commonwealth, 120 S.W.3d 622, 627 (Ky. 2003) 

(citing Griffin v. Wisconsin, 483 U.S. 868, 869 (1987)). 
16

lawfully located in a place from which the object can be plainly 

seen, but he or she must have a lawful right of access to the object 

itself.” Finally, the object's “incriminating character must also be 

‘immediately apparent.’” 

Hazel, 833 S.W.2d at 833 (quoting Coolidge, 403 U.S. at 466). But the plain 

view doctrine has never been used to justify an otherwise unlawful entry into 

an individual’s home. Indeed, “even where the object is contraband [the United 

States Supreme Court] has repeatedly stated and enforced the basic rule that 

police may not enter and make a warrantless seizure[]” relying solely on plain 

view, plain smell, or plain sound. Horton v. California, 496 U.S. 128, 137 n. 7 

(1990) (quoting Coolidge, 403 U.S. at 468) (collecting cases). 

By way of example in Taylor v. United States, a Prohibition era case, 

federal agents had received complaints for over a year regarding the 

defendant’s residence. 286 U.S. 1, 5 (1932). One night, without possessing a 

warrant, consent, or exigent circumstances the agents approached a garage 

adjacent to the defendant’s residence and “got the odor of whisky coming from 

within. Aided by a searchlight, they looked through a small opening and saw 

many cardboard cases” that they believed contained liquor. Id. at 5-6. The 

officers “broke the fastening upon a door,” entered the garage, and discovered 

122 cases of whisky; the defendant was later convicted of unlawful possession 

of intoxicating liquor. Id. at 1-5. The U.S. Supreme Court reversed and held 

that the cases of whisky should have been suppressed, reasoning:

[T]he action of the agents was inexcusable and the seizure 

unreasonable . . . . Prohibition officers may rely on a distinctive 

odor as a physical fact indicative of a possible crime; but its 

presence alone does not strip the owner of the building of 
17

constitutional guarantees (Const. Amend. 4) against unreasonable 

search. 

Id. at 6. 

Similarly, in McDonald v. United States, the defendant had been under 

police observation for several months as he was believed to be involved with an 

illegal gambling operation colloquially known as the numbers game. 335 U.S. 

451, 452 (1948). On the day of the defendant’s arrest, officers, not armed with 

a warrant, consent, or exigent circumstances, surrounded the boarding house 

in which the defendant had been renting a room. Id. “While outside the 

house, one of the officers thought that he heard an adding machine[,]” a device 

typically used in the numbers’ operation. Id. One of the officers entered the 

house through a window in the landlady’s room and thereafter admitted the 

other officers into the house. Id. at 453. After searching the first floor, the 

officers proceeded to the second floor and observed a closed door. Id. One of 

the officers stood on a chair, looked through the door’s transom, and “observed 

[the defendant] in the room, as well as numbers slips, money piled on the table, 

and adding machines.” Id. The defendant was arrested after following the 

officers’ command to open the door. Id. The U.S. Supreme Court held that 

evidence of the adding machines and papers should have been suppressed. Id. 

at 456. It reasoned:

We are not dealing with formalities. The presence of a search 

warrant serves a high function. Absent some grave emergency, the 

Fourth Amendment has interposed a magistrate between the 

citizen and the police. This was done not to shield criminals nor to 

make the home a safe haven for illegal activities. It was done so 

that an objective mind might weigh the need to invade that privacy 
18

in order to enforce the law. The right of privacy was deemed too 

precious to entrust to the discretion of those whose job is the 

detection of crime and the arrest of criminals . . . . And so the 

Constitution requires a magistrate to pass on the desires of the 

police before they violate the privacy of the home. We cannot be 

true to that constitutional requirement and excuse the absence of 

a search warrant without a showing by those who seek exemption 

from the constitutional mandate that the exigencies of the 

situation made that course imperative.

Id. at 455-56. See also, e.g., Chapman v. United States, 365 U.S. 610 (1961); 

Jones v. United States, 357 U.S. 493 (1958); Johnson v. United States, 333 U.S. 

10 (1948). 

This Court has likewise recognized that an officer seeing a potentially 

illegal item in plain view does not, alone, authorize entry into a person’s home. 

In Hatcher v. Commonwealth, officers received an anonymous complaint about 

an abandoned minor, responded to Hatcher’s home, and knocked on the front 

door. 199 S.W.3d 124, 125 (Ky. 2006). When Hatcher’s adolescent son opened 

the front door one of the officers observed “a pipe sitting on a table in the front 

room” that he believed to be a marijuana pipe. Id. Upon the officer’s request, 

the minor allowed the officer to enter the home at which point he picked up the 

pipe and detected the smell of marijuana emanating from it. Id. Hatcher was 

later convicted of possession of drug paraphernalia, second offense, after the 

trial court denied her motion to suppress the pipe. Id. 

This Court reversed after determining that the officer’s actions violated 

the second and third requirements of the Hazel test, supra. Id. at 126-28. 

Relevant to this case, the Hatcher Court held that the officer did not have “a 

lawful right of access” to the pipe, Hazel, 833 S.W.2d at 833, because he “was 
19

not authorized to enter Hatcher’s residence[.]” Hatcher, 199 S.W.3d at 127. 

The Court explained that, while the officer “was certainly authorized to knock 

on Hatcher's door to respond to the report of an allegedly abandoned minor” 

and was also permitted to look through the open door into the house while 

standing on the porch, the officer 

did not have a warrant authorizing his entry into Hatcher's 

residence. As such, his entrance must have been precipitated by 

some exigent circumstance, such as threat of injury or destruction 

of evidence. 

. . .

[N]ot even [the officer] alleged any exigent circumstances which he 

believed justified his immediate entry into the home. There was 

certainly no argument presented to the trial court that the 

adolescent was perceived as a threat or that there was any fear he 

would destroy or conceal the pipe. “Before agents of the 

government may invade the sanctity of the home, the burden is on 

the government to demonstrate exigent circumstances that 

overcome the presumption of unreasonableness that attaches to all 

warrantless home entries.” 

Id. at 126-27 (quoting Welsh v. Wisconsin, 466 U.S. 740, 750 (1984)). The 

Court did not address whether the child’s consent to the officer entering the 

home made the search legal, as the Commonwealth’s sole justification for the 

search was the plain view doctrine. Hatcher, 199 S.W.3d 128. See also Pace v. 

Commonwealth, 529 S.W.3d 747, 755 (Ky. 2017) (holding that “[the plain view] 

exception cannot justify an otherwise unlawful intrusion just because it may 

bring the officers within plain view of the evidence. Since this exception only 

excuses the seizure of evidence, not warrantless searches. . . the trial court 

erred in finding that the plain view doctrine permitted the officers’ warrantless 

entry and search of Appellants’ apartment.”). 
20

This brings me to protective sweeps. In Buie, the United States Supreme 

Court discussed that in its previous cases addressing reasonableness under 

the Fourth Amendment it had “balanced the intrusion on the individual’s 

Fourth Amendment interests against its promotion of legitimate governmental 

interests.” 494 U.S. at 331. Under this balancing act “a search of the house or 

office is generally not reasonable without a warrant issued by probable cause.” 

Id. However, the Court noted that there are certain contexts in which “the 

public interest is such that neither a warrant nor probable cause is required.” 

Id. The Court held that the interest of police officers in “taking steps to assure 

themselves that the house in which a suspect is being, or has been, arrested is 

not harboring other persons who are dangerous and who could unexpectedly 

launch an attack” is one such public interest that permits law enforcement to 

conduct a protective sweep of a home absent a search warrant. Id. at 333. 

However, the Buie Court placed very specific limitations on the ability of the 

police to conduct protective sweeps. Id. at 334. It held that 

as an incident to the arrest the officers could, as a precautionary 

matter and without probable cause or reasonable suspicion, look 

in closets and other spaces immediately adjoining the place of 

arrest from which an attack could be immediately launched. 

Beyond that, however, we hold that there must be articulable facts 

which, taken together with the rational inferences from those facts, 

would warrant a reasonably prudent officer in believing that the 

area to be swept harbors an individual posing a danger to those on 

the arrest scene. 

. . . 

We should emphasize that such a protective sweep, aimed at 

protecting the arresting officers, if justified by the circumstances, 

is nevertheless not a full search of the premises, but may extend 
21

only to a cursory inspection of those spaces where a person may be 

found. The sweep lasts no longer than is necessary to dispel the 

reasonable suspicion of danger and in any event no longer than it 

takes to complete the arrest and depart the premises.

Id. at 334-36.

This Court explicitly adopted Buie in Guzman v. Commonwealth, 375 

S.W.3d 805, 807 (Ky. 2012). Since Guzman, this Court has addressed whether 

the Buie test was satisfied during a given protective sweep several times. In 

each of those cases, there was an explicit determination that the protective 

sweep at issue was either the “first type” of protective sweep, i.e., a search of 

“spaces immediately adjoining the place of arrest from which an attack could 

be immediately launched[,]” and therefore required “neither probable cause nor 

reasonable suspicion[.]” See Barrett v. Commonwealth, 470 S.W.3d 337 (Ky. 

2015); Kerr, 400 S.W.3d at 267. Or, whether the protective sweep at issue was 

of the “second type,” meaning that the search extended beyond the area 

immediately adjoining the place of arrest, for which law enforcement must have 

“articulable facts which, taken together with the rational inferences from those 

facts, would warrant a reasonably prudent officer in believing that the area to 

be swept harbors an individual posing a danger to those on the arrest scene.” 

See Simpson v. Commonwealth, 474 S.W.3d 544, 549 (Ky. 2015); Brumley v. 

Commonwealth, 413 S.W.3d 280, 288 (Ky. 2013). 

With the foregoing principles established, I will address the merits of the 

case now before us. 
22

During the hearing on Bitter’s motion to suppress Officer Igo testified 

that he had received a written complaint from a woman that lived at 836 

Crescent Avenue which stated that Bitter had pistol whipped another 

individual and was also selling narcotics out of the separate living space below 

the complainant’s apartment, which Bitter was renting. He further testified 

that he was familiar with Bitter and knew him to traffic drugs based on 

statements from individuals he had recently arrested for drug possession who 

identified Bitter as their dealer. The dwelling at 836 Crecent Avenue was a 

single building separated into two living spaces: an apartment on the top floor 

which was separated from a basement area by a locked door. A married couple 

lived in the upstairs apartment, while Bitter and Hornsby were renting the 

space below the upstairs apartment. Both the apartment and the dwelling 

below had their own “front doors.” Officer Igo and several other officers 

responded to 836 Crescent Avenue to further investigate the woman’s 

complaint. When the officers responded to the dwelling, they had neither an 

arrest warrant nor a search warrant and no exigent circumstances were 

present. 

Officer Igo’s body camera footage, which was provided in its entirety to 

the circuit court, showed that the following occurred when the officers arrived 

at the residence. Initially, the officers knocked on the front door of the upstairs 

apartment and spoke to the complainant’s husband. He confirmed that Bitter 

was living in the basement space and gave the officers permission to go around 

the side of the building to access its door. When the officers initially knocked 
23

on the door no one opened it, but a male voice could be heard asking “who is 

it?” to which the officers respond “John.” The male voice asked who they were 

looking for and Officer Igo responded “Melissa.” The male told them they had 

the wrong place to which Officer Igo responded, “Melissa said to come talk to 

you.” The male asked who Melissa is and the officer responded, “she lives 

upstairs.” The male again told them they had the wrong place. The officers 

knocked again and continued to stand at the door for a little over a minute, at 

which point the door was opened by Hornsby, and Officer Igo stepped forward 

across the threshold as the door opened. 

The basement dwelling’s layout was as follows. The door opened inward, 

on left hand hinges, to a room with a staircase leading to the upstairs 

apartment to the immediate right of the entryway. There was a couch next to 

the staircase with both a coffee table and an ottoman next to it. The coffee 

table was heavily cluttered, and the ottoman also had several items on it. The 

dwelling had two rooms. The entrance to the second room was straight across 

from the front door approximately ten feet away; it did not have a door or 

covering. 

When Hornsby opened the door for police, Officer Igo simultaneously 

stepped into the dwelling without asking for consent to do so. He then 

commanded Bitter, who was standing near the entrance to the second room, to 

“come here.” Bitter immediately complied. As soon as Bitter reached the front 

door Officer Igo commanded him to exit his home and stand on the front porch 

area. Bitter complied. Officer Igo then ordered Hornsby out of the dwelling by 
24

saying, “Step right there. Step right here. Step right here! I’m not going to tell 

you again.” She also complied. Once Bitter and Hornsby were outside two 

other officers patted them down and placed them in handcuffs while Officer Igo 

directed, “Yeah, just detain them both for now.” 

As Officer Igo was commanding Hornsby to exit the residence, his body 

camera showed that he was standing directly in front of the staircase to the 

right of the door, i.e., he was still standing inside the dwelling and had been 

since Hornsby opened the door. Once Hornsby was outside, Officer Igo 

announced to the other officers, “I’ve got a scale and everything in plain view.” 

Officer Igo would later testify that he saw a digital scale, a bent and burnt 

spoon, plastic baggies, and a baggie of pills (later determined to be vitamins) on 

the coffee table and ottoman, respectively. As Hornsby and Bitter were being 

handcuffed, Officer Igo continued to stand inside the dwelling near its 

entryway. He asked Bitter if there was anyone else “in there.” Bitter 

responded that someone was upstairs. After Officer Igo clarified that they had 

already spoken to the man upstairs, both Bitter and Hornsby told the officers 

“Jeremy is in there.” Officer Igo then identified himself as a police officer and 

ordered him to come out. Jeremy Turner immediately emerged from the 

second room with his hands up. Officer Igo had Turner sit on the stairway to 

the upstairs apartment and asked if anyone else was in Bitter’s apartment. 

Turner responded that there was not. At that point Officer Igo again 

announced, “I’ve got paraphernalia and everything in plain view” and asked his 

sergeant what he should do next. 
25

After Officer Igo had already been standing in Bitter’s residence for 

several minutes, his sergeant told him to perform a protective sweep to ensure 

no one else was in it. Officer Igo and a second officer then went to the 

dwelling’s second room and cleared it. Afterwards, the officers returned to the 

front room and stood looking at the coffee table and ottoman with their 

flashlights. Officer Igo said to the other officer, “It’s all in plain view bag it 

up.”8 The officers did not discover any additional evidence of criminal activity 

in plain view during the sweep nor did they find anyone else in the dwelling. 

Officer Igo then placed Turner, who had been sitting on the staircase 

responding to questioning by another officer, in handcuffs and told him he was 

being detained. Turner was later permitted to leave the scene and was not 

charged with any crime. 

While still standing in the middle of the dwelling’s front room, Officer Igo 

began pointing to the table and the ottoman and told his sergeant, “So when 

she opened the door I seen (sic) the scale in plain view, the pills bagged, and 

then the paraphernalia.” His sergeant told him to ask for consent to search, 

which Bitter did not give. Bitter, Hornsby, and Turner were then separated 

and Officer Igo interrogated Hornsby at the scene after he provided her with her 

Miranda warnings. Hornsby admitted that she knew Bitter sold marijuana but 

denied that he sold Fentanyl. When Officer Igo told Hornsby that he knew 

8 While the items of paraphernalia may have ultimately been bagged and 

confiscated by the officers, neither Bitter nor Hornsby were indicted for possession of 

drug paraphernalia. 
26

Bitter sold methamphetamine, she responded, “Yeah.” When he asked her if 

there was a firearm in the dwelling, she said she was not sure but 

acknowledged she had seen him with a gun sometime previously. Officer Igo 

then relayed that information to his sergeant and a search warrant was 

obtained. 

The application for a search warrant was not included in the record 

before us, but my understanding is the application was based on both the 

paraphernalia Officer Igo saw in plain sight on the coffee table and ottoman 

and Hornsby’s mirandized statements. When the search warrant was executed 

in Bitter’s residence, the officers found, in relevant part, methamphetamine, 

fentanyl, and a handgun. Bitter was never indicted for possession of 

paraphernalia. Accordingly, his motion to suppress did not seek suppression 

of the items Officer Igo saw in plain sight. Rather, Bitter sought to suppress 

the items seized pursuant to the search warrant: the methamphetamine, 

fentanyl, and handgun. This is an odd set of circumstances given that, in a 

typical plain view seizure case, an officer will seize illegal items without a 

search warrant based on the plain view justification, and the defendant will 

thereafter seek suppression of those items. Here, the items seen in plain sight 

instead formed at least part of the basis for the search warrant itself. And, as I 

discuss below, the question of whether the items obtained pursuant to the 

search warrant should have been suppressed based on the officer’s initial 

unlawful entry into the dwelling, or whether the evidence could nevertheless 
27

have been admissible based on an exception to the fruit of the poisonous tree 

doctrine remains unanswered. 

As for the unlawful entry itself, the officers responded to 836 Crescent 

Avenue to follow up on a non-anonymous complaint by a woman who lived in 

the upstairs apartment who claimed, in part, that Bitter was trafficking drugs 

out of his basement dwelling. They were therefore conducting a “knock and 

talk.” A knock and talk is a procedure that allows “law enforcement officers [to 

approach] a home for the purpose of obtaining information about a crime that 

has been committed, a pending investigation, or matters of public welfare” 

provided that it is “limited to only the areas which the public can reasonably 

expect to access.” Quintana v. Commonwealth, 276 S.W.3d 753, 756-59 (Ky. 

2008). 

When Officer Igo arrived, he without question knew that the basement 

space was Bitter’s home based on both the complaint and the statements of the 

man living in the apartment above it. Accordingly, because Officer Igo did not 

have a search warrant, an arrest warrant, exigent circumstances, or Bitter’s 

consent, he had absolutely no legal authority to immediately enter the dwelling 

and order the occupants to vacate when Hornsby opened the door. The only 

other exception that could have enabled him to enter the dwelling was the 

performance of the protective sweep, which is discussed below. However, the 

protective sweep did not occur until well after Officer Igo entered and it was not 

his initial basis for doing so. 
28

Much ado has been made over whether Officer Igo entered the dwelling 

prior to seeing the paraphernalia in plain sight, or whether he saw the 

paraphernalia after he entered the dwelling. Indeed, the Majority holds that 

the body camera footage does not conclusively disprove Officer 

Igo’s unrebutted testimony that he viewed drug paraphernalia 

immediately upon Hornsby opening the door to him and otherwise 

does not support Bitter’s allegation that Officer Igo physically 

crossed the threshold of the basement door prior to his eyes 

seeing, in plain view, the table with the evidence of drug activity. 

But whether Officer Igo saw the paraphernalia in plain sight before or after he 

entered the dwelling makes absolutely no difference. The fact of the matter is 

Officer Igo entered the dwelling immediately after the door was opened and 

remained in it thereafter without any legal justification to do so because, as 

discussed at length above, plain sight is not and has never been an established 

exception to the requirement that law enforcement must have a search warrant 

before they enter someone’s home. Assume for argument’s sake that Officer 

Igo remained on the front porch after Hornsby opened the door, as he should 

have.9 Then, while still standing on the porch, he saw the items of 

paraphernalia in plain sight. That scenario still would not have granted him 

authority to enter the dwelling because, as both this Court and the United 

States Supreme Court have held repeatedly, plain sight alone is not an 

exception to the requirement that law enforcement must have a search warrant 

9 See Quintana, 276 S.W.3d at 759 (holding that when police are conducting a 

knock and talk, “[u]nless an officer has probable cause to obtain a warrant or exigent 

circumstances arise, the intrusion can go no further that the approach to the obvious 

public entrance of the house.”) 
29

to justify the enormous invasion of privacy that occurs when a government 

agent enters someone’s home. Officer Igo should have instead remained on the 

porch, viewed the paraphernalia from that lawful vantage point, and then used 

that observation in conjunction with his personal knowledge of Bitter’s 

trafficking activities and the complaint of Bitter’s upstairs neighbor to obtain 

search warrant prior to entering Bitter’s dwelling. I have seen nothing in this 

record that justified his failure to do so, and I fear that the Majority’s opinion 

may be interpreted to hold that plain sight is now an exception to the warrant 

requirement for government entry into a home. I consequently cannot join it, 

nor can I agree with its conclusion that “there was no violation of [Bitter’s] 

constitutional rights under U.S. Const. amend. IV and Ky. Const. § 10.” 

In his written motion to suppress, Bitter argued that the officers’ 

warrantless search of his residence violated the Fourth and Fourteenth 

Amendments of the United States Constitution and Section 10 of the Kentucky 

Constitution “because the protective sweep did not fall under a valid exception 

to the warrantless entry of the home, the items in ‘plain view’ did not support 

probable cause, and the warrant on its face was not sufficient to support 

probable cause.” Consistent with his motion to suppress, Bitter’s arguments 

during the suppression hearing primarily focused on challenging the protective 

sweep rather than the officers’ initial unlawful entry. However, he did argue 

during closing arguments that, under the Hazel test, Officer Igo did not have a 

“lawful right of access” to the paraphernalia he saw in plain view on the coffee 

table and ottoman. Specifically, he asserted that, “When the door is first 
30

opened, as Mr. Bitter and Ms. Hornsby are coming out you can see first Officer 

Igo steps into the door before anything has really happened.” 

The circuit court’s order denying Bitter’s motion to suppress did not 

address Bitter’s allegation that Officer Igo unlawfully entered the dwelling 

immediately after Hornsby opened the door. Rather, it disposed of the issue 

entirely on the grounds that the protective sweep was lawful and that “Officer 

Igo immediately identified [the paraphernalia] upon contact with the occupants 

of the room.” The entirety of the circuit court’s legal analysis was as follows:

A warrantless search of an individual’s private residence, absent 

exigent circumstances, is prohibited by the Fourth Amendment to 

the United States Constitution. Carter v. Commonwealth, 449 

S.W.3d 771, 774 (Ky. App. 2014). Commonwealth v. McManus, 107 

S.W.3d 175 (Ky. 2003). Maryland v. Buie, [494 U.S. 325 (1990)], 

expanded the scope of permissible warrantless searches to include 

a limited protective sweep in conjunction with an in-home arrest. 

In 2012 [t]he Supreme Court of Kentucky adopted the holding of 

Buie in Guzman v. Commonwealth, 375 S.W.3d 805, 808 (Ky. 

2012). In Guzman, the Court defined a permissible protective 

sweep to include all or part of an individual’s home when officers 

possess an objective reasonable belief that the residence may be 

harboring a dangerous person. Id. 

Buie permits “two types of protective sweeps incident to an arrest 

that are reasonable and lawful under the Fourth Amendment.” 

Kerr v. Commonwealth, 400 S.W.3d 250, 266 (Ky. 2013). The first 

type allows officers “as a precautionary matter and without 

probable cause or reasonable suspicion, [to] look in closets and 

other spaces immediately adjoining the place of arrest from which 

an attack could be immediately launched.[”] The second type 

“allows officers to undertake a broader search of places not 

adjacent to the place of arrest if here are ‘articulable facts which, 

taken together with the rational inferences from those facts, would 

warrant a reasonable prudent officer in believing that the area to 

be swept harbors an individual posing a danger to those on the 

arrest scene.’” Id. see also Terry v. Ohio, [392 U.S. 1, 21 (1968)] 

(“[i]n justifying the particular intrusion the police officer must be 

able to point to specific and articulable facts which, taken together 
31

with rational inferences from those facts, reasonably warrant that 

intrusion.”). This is the well-known reasonable suspicion 

standard. See Terry, [392 U.S. at 1].

The Supreme Court of Kentucky addressed the second type of 

sweep in Brumley v. Commonwealth, 413 S.W.3d 280 (Ky. 2013). 

In Brumley, the Court found that officers had violated the Fourth 

Amendment because the sweep conducted did not comply with the 

Buie requirements. Specifically, knowledge of firearms in a 

residence, as well as, noise emanating from the residence did not 

provide officers with the requisite reasonable suspicion to conduct 

a protective sweep of the residence for an individual posing a 

danger to officers on the scene. Id. at 288. “Reasonable suspicion 

must be determined under the totality of the circumstances, 

considering all of the information available to law enforcement 

officials at the time.” Id. 

The justification for a protective sweep is the safety threat posed to 

officers by unseen individuals in the residence. Brumley v. 

Commonwealth, 413 S.W.3d 280, 285 (Ky. 2013). This Court 

finds that the circumstances in this case for a protective 

sweep of both the first room, as well as, the second room 

(where Turner emerged) was to protect law enforcement and 

other individuals against the threat of unknown individuals, as 

well as, the suspicion that there could be a weapon on the 

property. Based on the totality of the circumstances, this 

Court finds that the protective sweep was appropriate and 

reasonable under the circumstances presented in this case. 

The officers did not exceed the scope of the protective sweep. 

Defendant Hornsby not only adopts Bitters’ arguments about the 

issues and does not deny that the items of suspected drug 

paraphernalia; scales, bent and burn (sic) spoon, a bag of pills, 

and a package of sandwich bags were in the rooms, but argues 

that they could not be in plain view as it was messy. Defense 

further argues that all of the items are for ordinary kitchen use. 

This Court is not swayed by these arguments. A review of the 

video from the body camera clearly shows this was not a kitchen 

setting, and while the area and tables were messy, Officer Igo 

immediately identified these items upon contact with the 

occupants of the room. 

(Emphasis added). 
32

I assert that there are several problems with the circuit court’s findings 

of fact and conclusions of law regarding the protective sweep. Significantly, it 

failed to recognize that, while a protective sweep can be an exception to the 

warrant requirement for entry into a home, the sweep in this case occurred 

well after Officer Igo made his initial unlawful entry and that initial entry was 

accordingly not made while conducting the protective sweep. In addition, while 

the circuit court correctly identified the two “types” of Buie sweeps, it failed to 

identify which type occurred here and, by extension, the factual basis justifying 

it. To conclude that the sweep was of the “first type,” and therefore required 

neither reasonable suspicion nor probable cause, would have necessitated a 

finding by the circuit court that the sweep occurred in a space “immediately 

adjoining the place of arrest from which an attack could be immediately 

launched.” Buie, 494 U.S. at 334. But the only fact finding the circuit court 

made regarding the protective sweep was: “The officers then [perform] a 

protective sweep, to [ensure] no one else is hiding in the rooms and based on 

the allegations of Bitter having a weapon. The sweep is conducted of the two 

rooms, taking less than a minute to complete, and is recorded on Igo’s body 

cam.” 

Similarly, for the circuit court to have concluded that the protective 

sweep was justified as the “second type” of Buie sweep, it first had to find that 

the sweep went beyond the area “immediately adjoining the place of arrest.” It 

then had to find that the officers had “articulable facts which, taken together 

with the rational inferences from those facts, would warrant a reasonably 
33

prudent officer in believing that the area to be swept harbors an individual 

posing a danger to those on the arrest scene.” Assuming arguendo that the 

circuit court believed that the protective sweep was of the “second type,” its 

finding that its purpose was “to protect law enforcement against the threat of 

unknown individuals” and the “suspicion that there could be a weapon on the 

property” were insufficient justifications. 

In Brumley, officers arrested the defendant outside his home and 

thereafter performed a protective sweep inside the home after hearing “rustling” 

or “shuffling” therein which turned out to be the arrestee’s dog. 413 S.W.3d at 

283. The Brumley Court first determined that the sweep was of the “second 

type” as it did not occur in an area adjacent to the defendant’s arrest. Id. at 

284-85. The Court then rejected the Commonwealth’s argument that the 

search was justified based on the officers’ knowledge that there may have been 

a gun in the residence, stating: “we accept that some prior information existed 

between the officers concerning the presence of guns at Brumley’s residence. 

Nevertheless, the mere presence of guns at the home of an arrestee does not 

automatically rise to the level of reasonable suspicion that would justify a 

protective sweep.” Id. at 286. 

The Brumley Court also rejected the argument that the noises emanating 

from the home created a reasonable suspicion that the home harbored an 

individual that posed a threat to the officers. Id. at 286-88. It reasoned:

The undiscovered individual must be more than just a fellow 

resident. There must be some indication that the hidden third 

party may be a danger to officers on the scene. Justifying a 
34

protective sweep on the ground that law enforcement officers had 

no information at all is directly contrary to the Supreme Court's 

explicit command in Buie. [United States v. Archibald, 589 F.3d 

289, 300 (6th Cir. 2009)]. A valid protective sweep requires “that 

the police have an articulable basis on which to support their 

reasonable suspicion of danger from inside the home.” Id. The 

absence of information cannot be an articulable basis for a 

protective sweep that requires information to justify it in the first 

place. Id.

In this case, the officers had no information whatsoever that an 

accomplice or other third party may have been with Brumley in the 

residence. Again, several federal cases prove instructive when 

determining the possibility of the existence of potential assailants. 

In United States v. Biggs, the United States Court of Appeals for 

the Sixth Circuit approved a sweep based on several factors, 

including (1) the police had received information that another 

person would be meeting the defendant at his motel room, and (2) 

the defendant had previously been arrested on multiple occasions 

in the presence of someone with a firearm. 70 F.3d 913, 916 (6th 

Cir.1995); see also [United States v. Atchley, 474 F.3d 840, 844, 

849-850 (6th Cir. 2007)]. Under the totality of the circumstances, 

police officers in these cases had, at a minimum, reasonable 

suspicion that potentially dangerous criminal accomplices may 

have been present.

Moreover, the arrest warrant issued for Brumley was for 

possession of a controlled substance which did not involve 

accomplices. Similarly, the arrest warrants involved in Archibald

were for probation violations which did not involve accomplices, 

and “therefore did not raise concerns that an accomplice might be 

present in Archibald's apartment at the time of his arrest.”

Archibald, 589 F.3d at 299. Neither the felony arrest warrant nor 

any other evidence in this case directly or indirectly implicated that

accomplices may have been present at Brumley's residence at the 

time of his arrest.

Brumley, 413 S.W.3d at 287-88. In this case, when the officers conducted the 

sweep, they had no reason to believe that anyone other than Bitter, Hornsby, 

and Turner were in the dwelling. Bitter and Hornsby were fully cooperative 

with the officers and were forthcoming about Turner’s presence when asked. 
35

Officer Igo’s testimony did not provide a reasonable articulable basis on which 

to support a conclusion that another, potentially dangerous, person was in the 

dwelling. Moreover, the complaint alleged that Bitter had pistol whipped 

someone but, in accordance with Brumley, a mere allegation of the presence of 

a gun “does not automatically rise to the level of reasonable suspicion that 

would justify a protective sweep.” Id. at 286. 

Accordingly, because the circuit court did not make a factual finding as 

to whether the sweep occurred in an area immediately adjacent to where Bitter 

and Hornsby were detained and from where an attack could have been 

immediately launched, there is no basis to uphold its decision assuming that it 

concluded the sweep was of the “first type” of Buie sweep. And, while it is 

unclear as to which type of sweep the circuit court believed the officers in this 

case to have conducted, if the circuit court believed it was of the second type, 

its findings concerning the justification for the sweep were insufficient. 

Moreover, I disagree with the circuit court’s conclusion that the officers 

“did not exceed the scope of the protective sweep.” As stated in Buie, a “sweep 

lasts no longer than is necessary to dispel the reasonable suspicion of danger 

and in any event no longer than it takes to complete the arrest and depart the 

premises.” Buie, 494 U.S. at 335-36. In this case, though the officers illegally 

entered the dwelling, they should have exited once they were satisfied from the 

protective sweep that there was no one else in it. Instead, after the officers 

cleared the dwelling’s second room, they returned to the front room and stood 

in it while looking over the contents of the table and the ottoman with their 
36

flashlights. Even if one were to ignore the initial unlawful crossing of the 

threshold, this exceeded the bounds of what they were permitted to do once 

they were satisfied that there was no one else in the dwelling. Additionally, if 

the officers had remained outside the dwelling from the time Hornsby opened 

the door, as they were supposed to, entering the dwelling to conduct a 

protective sweep would have created a far greater risk to the officers that would 

not have otherwise existed if they would have remained on the porch. See 

Guzman, 375 S.W.3d at 809 (Cunningham, J., concurring) (“If you do not deem 

it safe to enter the living room, do not enter. In a ‘knock and talk’ conducted in 

such ominous situations, one might consider continuing the investigation on 

the front porch.”). 

I would also note that the protective sweep in this case did not occur 

incident to an in-home arrest; rather, it occurred while Bitter and Hornsby 

were detained outside. Buie specifically held that “as an incident to arrest the 

officers could, as a precautionary matter” conduct a protective sweep, provided 

one of the two Buie tests were satisfied. 494 U.S. at 334 (emphasis added). 

And, while our Court of Appeals has concluded that a protective sweep may be 

conducted in the absence of an arrest, Brown v. Commonwealth, 423 S.W.3d 

765, 770 (Ky. App. 2014), neither this Court nor the United States Supreme 

Court has ever rendered a ruling addressing that issue. 

While on the issue of detainment, I am also greatly concerned by Officer 

Igo’s act of immediately ordering Bitter and Hornsby out of their home as he 

stepped across the threshold. As soon as the door was opened, Officer Igo 
37

commanded both Bitter and Hornsby out of the home and onto the porch. 

During oral argument in this case, the Commonwealth claimed that the 

detainment was lawful because “Michigan v. Summers, [452 U.S. 692 (1981)] . . 

. says you can detain the occupants of the residence when you’re going to get a 

warrant.” This was an incorrect statement of both that case and the facts of 

this case. 

Summers held that “a warrant to search for contraband founded on 

probable cause implicitly carries with it the limited authority to detain the 

occupants of the premises while a search is being conducted.” Id. at 705. 

Stated differently, Summers held that police officers who already possess a 

search warrant may detain individuals while conducting a search of a home 

pursuant to that search warrant. As I have stated ad nauseum herein, these 

officers did not have a search warrant when they went to Bitter’s home. 

Moreover, even if the Commonwealth’s statement of the law had been correct, 

its argument was based on the claim that Bitter and Hornsby were detained for 

the purpose of allowing the officers to seek a search warrant. If that were true, 

the officers would have sought a search warrant the moment they had Bitter 

and Hornsby detained. But that is not what occurred. Instead, from the 

moment Bitter and Hornsby were detained twenty minutes passed before 

Officer Igo even mentioned that he was going to contact the Commonwealth’s 

attorney and apply for a search warrant. Summers accordingly provides no 

justification.
38

I again emphasize that the items Officer Igo observed in plain sight only 

provided additional probable cause for him to obtain a search warrant for the 

dwelling, they did not provide a justification for him to enter it. And, while the 

officers in this case did ultimately obtain and execute a search warrant, a 

question that remains unanswered in this case is whether the items obtained 

pursuant to the search warrant should have been suppressed based on the 

initial unlawful entry into the home as fruit of the poisonous tree. Or, whether 

the evidence obtained pursuant to the search warrant could have nevertheless 

been admitted via application of one of the exceptions to the fruit of the 

poisonous tree doctrine. That doctrine “excludes both the ‘primary evidence 

obtained as a direct result of an illegal search or seizure’ and ‘evidence later 

discovered and found to be derivative of an illegality[.]’” Warick v. 

Commonwealth, 592 S.W.3d 276, 281 (Ky. 2019) (quoting Segura v. United 

States, 468 U.S. 796, 804 (1984)). 

I would certainly argue that Officer Igo’s initial unlawful entry into 

Bitter’s home tainted any of the evidence he saw in plain sight that was later 

used to obtain a search warrant, and it has long been established that 

probable cause cannot be established based on evidence constituting fruit of 

the poisonous tree. See Wong Sun v. United States, 371 U.S. 471, 484–485,

(1963). Nevertheless, I acknowledge that there are three exceptions to the fruit 

of the poisonous tree doctrine—independent source, attenuation, and 

inevitable discovery—that may or may not be applicable in this case. See 

Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392 (1920); Nardone v. 
39

United States, 308 U.S. 338, 341 (1939); Nix v. Williams, 467 U.S. 431, 444, 

(1984), respectively. 

Were it not for Kentucky Rule of Criminal Procedure (CR) 52.04, I would 

strongly advocate for this Court to vacate Bitter’s conviction and remand to the 

circuit court with orders to address the numerous consequential issues I have 

raised herein. As it is, CR 52.04 forbids an appellate court from reversing or 

remanding a final judgment based on 

the failure of the trial court to make a finding of fact on an issue 

essential to the judgment unless such a failure is brought to the 

attention of the trial court by a written request for a finding on that 

issue or by a motion pursuant to Rule 52.02.10

Bitter’s counsel failed to bring these issues to the circuit court’s attention but, 

regardless, based on the foregoing, I cannot join the Majority’s opinion. 

Conley, J. joins. 

10 CR 52.02 states: “Not later than 10 days after entry of judgment the court of 

its own initiative, or on the motion of a party made not later than 10 days after entry 

of judgment, may amend its findings or make additional findings and may amend the 

judgment accordingly. The motion may be made with a motion for a new trial 

pursuant to Rule 59.”
40

COUNSEL FOR APPELLANT:

Jennifer Wade

Department of Public Advocacy

COUNSEL FOR APPELLEE:

Russell M. Coleman

Attorney General of Kentucky

Thomas Van De Rostyne

Assistant Attorney General

Courtney J. Hightower

Assistant Attorney General