Ky.'s high court vacates student's drug conviction

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LOUISVILLE, Ky. (AP) — Ruling that a fraternity house should be considered a private residence, Kentucky's Supreme Court on Thursday set aside a college student's drug conviction after police entered without a search warrant and were pointed to his room, where they found marijuana.

In its unanimous ruling, the state's high court held that a fraternity house is a private residence for purposes of Fourth Amendment protections against warrantless searches and seizures. The justices ruled the trial court erred in refusing to suppress evidence found in the student's bedroom.

The state Court of Appeals had upheld the trial court's denial of the suppression motion.

The student, David Milam, won his appeal to the Supreme Court. It vacated his conditional guilty plea to a charge of trafficking in a controlled substance and sent the case back to Fayette County Circuit Court in Lexington for further proceedings.

Milam had been sentenced to a year in prison, probated for three years.

He was a member of the Delta Tau Delta fraternity at the University of Kentucky when three police officers went to the house for a "knock and talk" investigation in 2010. They were responding to a tip that Milam was selling marijuana at the fraternity house.

The officers went to the back door, mistakenly believing it was the front door. One of them testified they knocked and rang the bell several times but no one responded. The back door had a keypad locking device, but the door was unlocked and slightly ajar.

The officers went inside, deciding the frat house was more like an apartment complex than a private residence.

They announced their presence and another student soon entered the foyer area.

The officers identified themselves, said they were looking for Milam and followed the student up the stairs to the second-floor living quarters. The student opened the door to the second floor and pointed to Milam's room. The trial judge determined that student's actions constituted implied consent.

The officers knocked on the door, Milam consented to a search of his bedroom and the officers found a full jar of marijuana on the coffee table, according to background in the court's ruling. They also found $1,700, drug paraphernalia and a fake driver's license.

"In light of our determination that a fraternity house is a private residence, it necessarily follows that the detectives in the present case, like the general public, had no right to enter the residence," Justice Bill Cunningham said in writing for the court.

Cunningham said it was irrelevant whether the back door was closed, ajar or wide open. The fraternity president had indicated that its by-laws required the back door to be locked at all times, and only fraternity members and guests were allowed entry.

"When the detectives arrived at the house to perform the 'knock and talk,' they were not greeted by a scene out of the movie 'Animal House,'" he wrote. "To the contrary, they arrived at the residence at 10 p.m. on a seemingly mundane week night."

Cunningham wrote it was clear the other student "never affirmatively consented" to a search of the frat house. He wrote it would "strain credulity" to hold that the student's alleged consent was either informed or "freely obtained."

"At that point, the scales had already tipped in favor of the detectives," he wrote. "When faced with a similar situation, few lay persons would muster the courage to protest the officers' presence."

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