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RENDERED: JULY 18, 2003; 2:00 P.M. NOT TO BE PUBLISHED

Commonwealth Of Kentucky Court of Appeals
NO. 2002-CA-001281-MR

VINCENT ANDREW MASON

APPELLANT

v.

APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE STEPHEN P. RYAN, JUDGE ACTION NO. 01-CR-000200

COMMONWEALTH OF KENTUCKY

APPELLEE

OPINION AFFIRMING

** ** ** ** ** BEFORE: COMBS, GUIDUGLI, and SCHRODER, Judges. The appellant, Vincent Andrew Mason (Mason),

COMBS, JUDGE.

appeals from an order of the Jefferson Circuit Court of April 24, 2002, that granted in part and denied in part his motion to suppress evidence. On appeal, Mason argues that the circuit

court erred when it failed to suppress all the evidence at issue after finding that the police officer had no consent either to enter or to search Mason's home. After our review of this case,

we conclude that the trial court's careful analysis of this matter was correct. Therefore, we affirm.

In the early morning hours of December 1, 2000, the Jefferson County Police discovered an abandoned vehicle that had left the street and had run over at least one mail box. It came

to rest in a front yard at 8806 Bost Lane in Jefferson County. While investigating the apparent accident, the police learned from a witness that an unidentified person had exited the wrecked vehicle and headed toward Maple Creek Drive. The police

found documents in the vehicle containing his address as 8808 Maple Creek Drive, and they proceeded to that location to question Mason. When they arrived, Kelly Dean Blair (Blair) Blair owned the home and identified himself

answered the door. as Mason's roommate.

The events that followed and led to Mason's arrest were the subject matter of testimony presented at his suppression hearing. That hearing was held on March 11, 2002,

following Mason's indictment by a Jefferson County Grand Jury on five counts: (1) Operating a Motor Vehicle under the Influence

of Intoxicants; (2) Criminal Mischief I; (3) Tampering with Physical Evidence; (4) Operating a Motor Vehicle While License Is Revoked or Suspended for Driving under the Influence; and (5) Failure to Stop and Render Aid.

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At the suppression hearing, Officer Glaser testified that it was very cold that night and that he asked Blair if he could come in from the cold. He testified that Blair stepped However, Blair testified

back without a word and let him enter. to the contrary: the home.

that he did not consent to Glaser's entering

After entering the house but while remaining near the door, Glaser saw a set of keys lying on the kitchen counter, which was visible from his location. While Glaser waited, Blair Mason soon came out to

went to a bedroom and spoke with Mason.

meet Glaser, and Glaser immediately detected the distinctive odor of airbag powder and of alcohol; he observed that Mason appeared to be inebriated. Glaser then arrested him.

Glaser testified that Mason was barefoot and was wearing only a T-shirt and sweat pants at the time. shoes, which were in his bedroom. He needed

Since Mason was already under

arrest, Glaser accompanied him to the bedroom to get his shoes and a jacket. While in Mason's bedroom, Glaser testified that He shined his

he noticed a heightened odor of airbag powder.

flashlight on a jacket lying on the floor and noticed a sparkle characteristic of airbag powder. smelled strongly of airbag powder. He picked up the jacket, which At this point, Glaser did

not claim the jacket as evidence but allowed Mason to wear it to

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jail.

Glaser also took the keys from the kitchen counter after

Blair denied ownership of them. Mason moved to suppress both the arrest and all the evidence seized as fruits of an illegal, warrantless search. The Commonwealth argued exclusively on the consent exception to the warrant requirement, contending that a valid consent for Glaser's presence in the house had never been given. In its

order of April 24, 2002, the Jefferson Circuit Court agreed that Glaser may have lacked consent to enter Blair's home initially. Accordingly, the court suppressed the keys as evidence since Glaser arguably discovered them while allegedly present unlawfully in Blair's house. However, the court concluded that

Glaser had probable cause to arrest Mason based upon his observations of Mason inside the home, the odor of airbag powder, and Mason's inebriated condition. Moreover, it held

that the jacket was also admissible since Glaser saw it in plain view incident to a lawful arrest

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