Ricky L. POSEY, Appellant
v.
COMMONWEALTH of Kentucky, Appellee.
No. 2004-SC-0060-DG.
Supreme Court of Kentucky.
February 23, 2006.

        Opinion of the Court

        Appellant entered conditional guilty pleas to Trafficking in Marijuana (subsequent offense), Possession of a Firearm by a Convicted Felon, Misdemeanor Possession of a Controlled Substance, and Possession of Drug Paraphernalia in Jefferson Circuit Court. For these crimes, Appellant was sentenced to four years of probation with six months work release. Pursuant to his conditional pleas, Appellant took a direct appeal to the Court of Appeals. RCr 8.09. In an unpublished opinion, the Court of Appeals affirmed his convictions in all respects. Posey v. Commonwealth, 2003 WL 23008779, 02-CA-2519-MR, (rendered December 24, 2003). Appellant filed a petition for discretionary review in this Court, which we granted. CR 76.20. For the reasons set forth herein, we now affirm Appellant's convictions, but for reasons not stated in the Court of Appeals' opinion.

        On January 6, 2002, two Louisville police officers attempted to serve an outstanding arrest warrant on an individual named James Powell. Powell's last known address was 1565 South Ninth Street. When the officers arrived at that address and knocked on the door, Appellant, Ricky L. Posey, appeared at the door. Appellant, who was standing immediately inside the threshold of the home, opened the door and began to talk with one of the officers. The other officer soon joined their conversation and as they were conversing with Appellant on the porch, they observed shotgun shells and individually wrapped packets of marijuana inside the home. They also smelled an odor of marijuana emanating from the home.

        From these observations, the officers decided to step inside Appellant's home (through the open door) and arrest him for possession of a controlled substance. They immediately seized the marijuana and the shotgun shells in plain view and then proceeded to search the rest of the home. They found a gun lying on the floor in an adjoining room in plain view. In addition, they found a set of electronic scales and a bottle of codeine cough syrup.

        Appellant was indicted for Trafficking in Marijuana (less than eight ounces) while in Possession of a Firearm (subsequent offense1), Possession of a Firearm by a Convicted Felon, Misdemeanor Possession of a Controlled Substance, and Possession of Drug Paraphernalia. Appellant filed a pretrial motion to suppress all of the evidence seized during the search of his home. Appellant also filed a motion to dismiss the firearm possession charge, arguing that KRS 527.040 (barring convicted felons from possessing handguns) was unconstitutional. The trial court denied both of Appellant's motions. Appellant subsequently entered conditional pleas of guilty for all charges, reserving for appeal the suppression issue and the constitutionality of KRS 527.040.

        The Court of Appeals affirmed the trial court's rulings, holding that the officers' entry into the home for the purposes of arresting Appellant and seizing contraband in plain view did not violate the Fourth Amendment. The Court of Appeals further ruled KRS 527.040 constitutional, relying on this Court's decision in Eary v. Commonwealth, 659 S.W.2d 198 (Ky.1983). We accepted discretionary review and now affirm on both issues.

I. Fourth Amendment Issue

        Appellant first argues the officers violated his Fourth Amendment rights when they entered his home without consent and without a warrant for the purpose of seizing evidence and arresting him for a misdemeanor crime.2 He contends that while the police would have been justified in arresting him and seizing the marijuana had he been located in a public place, see KRS 431.005(1)(d) (permitting warrantless arrests for misdemeanors committed in the officer's presence), the Fourth Amendment barred such an arrest and seizure in his home without a warrant or consent. Because we believe exigent circumstances justified entry into Appellant's home for the purpose of preventing the imminent destruction of evidence, we reject Appellant's argument that his Fourth Amendment rights were violated in this instance.3

        Absent exigent circumstances, it is not reasonable for a law enforcement agent or officer to enter a person's home without consent or a warrant. Payton v. New York, 445 U.S. 573, 590, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980); Talbott v. Commonwealth, 968 S.W.2d 76, 81 (Ky. 1998). "The Commonwealth bears the burden to demonstrate that exigent circumstances were present justifying the warrantless entry." Commonwealth v. McManus, 107 S.W.3d 175, 177 (Ky.2003).

        "Destruction of evidence is a recognized exigent circumstance creating an exception to the warrant requirement." Id. Where officers have probable cause to believe that a crime has occurred and that evidence from that crime is in imminent danger of being destroyed, it is reasonable for law enforcement officers to secure the place where the evidence is located in order to prevent its imminent destruction. Id. (citing Segura v. United States, 468 U.S. 796, 810, 104 S.Ct. 3380, 3388, 82 L.Ed.2d 599 (1984) (characterizing the preservation of evidence in danger of imminent destruction as a "now or never" situation)).

        In this case, the marijuana was in plain view. As such, there is no dispute as to whether the officers had probable cause to believe that Appellant was in possession of a controlled substance. Moreover, since the contraband was in plain view, it was also reasonable for them to believe that the drugs were in imminent danger of being destroyed in the absence of immediate action to secure the evidence. See Ker v. California, 374 U.S. 23, 28, n. 3, 83 S.Ct. 1623, 1627, n. 3, 10 L.Ed.2d 726 (1963) (referring to the ease and speed with which drugs can be destroyed) and Illinois v. McArthur, 531 U.S. 326-327, 121 S.Ct. 946, 948, 148 L.Ed.2d 838 (2001) (police had good reason to fear that, unless restrained, defendant would destroy drugs before they could return with a warrant). Therefore, the circumstances in this case were exigent and as such, the officers acted reasonably when they entered the home without a warrant, restrained and arrested Appellant, and then secured the evidence which was in plain view (i.e. the marijuana and the shot gun shells).

        Appellant argues that while the imminent destruction of evidence can present exigent circumstances in the case of felony crimes, they should not constitute exigent circumstances in the case of misdemeanor crimes (the possession of marijuana in this case was a misdemeanor crime). Appellant cites to Welsh v. Wisconsin, 466 U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984) as support for his position. In that case, the United States Supreme Court held that likely imminent destruction of evidence did not present exigent circumstances justifying warrantless entry into a home where the offense was non-jailable and civil in nature. Id. at 754, 104 S.Ct. 2091. The Welsh Court explained that the government's interest in arresting or securing evidence for a purely "minor offense" does not outweigh the presumption of unreasonableness for warrantless entries into a person's home. Id. at 752, 104 S.Ct. 2091.

        However, misdemeanors in Kentucky are more than mere civil offenses; they are crimes which can subject offenders to imprisonment. In this case, simple possession of marijuana is a Class A misdemeanor, KRS 218A.1422, and those found guilty of committing that crime are subject to as much as twelve (12) months imprisonment, KRS 532.090. The fact that conviction of misdemeanor crimes may result in the loss of one's freedom for as much as one year belies the contention that such crimes are "minor." As this case is clearly distinguishable from the facts in Welsh, supra, we find no merit in Appellant's contention that the imminent destruction of misdemeanor crime evidence is not sufficient to constitute exigent circumstances under the Fourth Amendment. See Illinois v. McArthur, 531 U.S. 326, 336, 121 S.Ct. 946, 952, 148 L.Ed.2d 838 (2001) (distinguishing between "jailable" and "nonjailable" offenses when determining importance of law enforcement's need to preserve evidence of those crimes); Ingram v. City of Columbus, 185 F.3d 579, 587 (6th Cir.1999) ("Under Welsh, courts must look to the state's penalty scheme to determine the seriousness of a state law offense; if the suspect has committed an offense `for which no imprisonment is possible,' the offense is 'minor.'"); United States v. Grissett, 925 F.2d 776, 778 (4th Cir.1991) (exigent circumstances existed to justify warrantless entry into motel room where police smelled burning marijuana while standing outside); Randolph v. State, 152 S.W.3d 764, 771-72 (Tex.App. 2004) ("[I]f an offense, either a misdemeanor or a felony, is punishable by confinement and there are exigent circumstances, then it is serious enough to justify the warrantless entry of a constitutionally protected area."); Cherry v. Commonwealth, 44 Va.App. 347, 605 S.E.2d 297, 305 (2004) (police officer's warrantless entry into residence based on exigent circumstances after smelling burning marijuana was reasonable, even though marijuana possession was only a misdemeanor offense); see also, KRS 431.005(1)(d) (authorizing peace officers to make warrantless arrests of persons committing misdemeanors in their presence); Atwater v. City of Lago Vista, 532 U.S. 318, 340, 121 S.Ct. 1536, 1550, 149 L.Ed.2d 549 (2001) (noting that bulk of state and federal law permits warrantless arrests of persons committing misdemeanors in their presence). But see, United States v. Carter, 360 F.3d 1235, 1241 (10th Cir.2004) (small quantity of marijuana does not rise to the level of "serious crime" to justify warrantless entry into home on the basis of exigent circumstances); State v. Davis, 133 Ohio App.3d 114, 726 N.E.2d 1092, 1095 (1999) (exigent circumstances exception to the warrant requirement did not apply to misdemeanor crime involving no violence or weapons), reasoning overruled to some extent by City of Middletown v. Flinchum, 95 Ohio St.3d 43, 765 N.E.2d 330, 332 (2002).

        Because the contraband in this case was in plain view and possession of such contraband is a crime subject to as much as twelve (12) months imprisonment, we find the officers' warrantless entry into Appellant's home to secure the contraband was justified by exigent circumstances, namely, to prevent the imminent destruction of evidence.

II. Constitutionality of KRS 527.040

        Appellant next argues that KRS 527.040 is unconstitutional. Under KRS 527.040, it is a felony for convicted felons to possess, manufacture, or transport a firearm in the Commonwealth of Kentucky. Appellant contends that this law violates Section 1(7) of the Kentucky Constitution which states:

        All men are, by nature, free and equal, and have certain inherent and inalienable rights, among which may be reckoned:... The right to bear arms in defense of themselves and of the State, subject to the power of the General Assembly to enact laws to prevent persons from carrying concealed weapons.

        When considering the constitutionality of a statute, this Court draws all fair and reasonable inferences in favor of the statute's validity. Kentucky Industrial Utility Customers, Inc. v. Kentucky Utilities Company, 983 S.W.2d 493, 499 (Ky.1998). "[T]he violation of the Constitution must be clear, complete and unmistakable in order to find the law unconstitutional." Id.; see also Walters v. Bindner, 435 S.W.2d 464, 467 (Ky.1968) ("It is the rule that all presumptions and intendments are in favor of the constitutionality of statutes and, even in cases of reasonable doubt of their constitutionality, they should be upheld and the doubt resolved in favor of the voice of the people as expressed through their legislative department of government.")

        Appellant concedes that KRS 527.040 would be a legitimate exercise of the General Assembly's broad police powers4 if Section 1(7) were not enacted as a provision of the Kentucky Constitution. See Walters, supra, at Id. ("Our Legislature has a broad discretion to determine for itself what is harmful to health and morals or what is inimical to public welfare...."). Indeed, the legislature's power to pass laws, especially laws in the interest of public safety and welfare, is an essential attribute of government. Manning v. Sims, 308 Ky. 587, 213 S.W.2d 577, 592 (Ky.1948) ("when the power of the Legislature to enact a law is called in question, the court should proceed with the greatest possible caution and should never declare an act invalid until after every doubt has been resolved in its favor") (quotation and citation omitted). Thus, we must always accord great deference to the legislature's exercise of these so-called "police powers," unless to do so would "clearly offend[ ] the limitations and prohibitions of the constitution." Id., see also, Medtronic, Inc. v. Lohr, 518 U.S. 470, 475, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996) ("States traditionally have had great latitude under their police powers to legislate as to the protection of the lives, limbs, health, comfort, and quiet of all persons.") (quoting Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 756, 105 S.Ct. 2380, 2398, 85 L.Ed.2d 728 (1985)).

        However, Appellant contends that the mandates of Section 1(7) are clear and that its existence affirmatively operates to exempt the area of firearms possession from regulation by the General Assembly. Pursuant to Section 26 of our constitution, Appellant argues that KRS 527.040 is essentially nullified by Section 1(7) and should be declared invalid as an impermissible infringement upon the people's right to bear arms. For the reasons set forth herein, we disagree.

        We begin by emphasizing that rights preserved to the people pursuant to Sections 1 through 26 of our constitution cannot be usurped by legislative fiat.5 Ky. Const. § 26, see also Steelvest, Inc. v. Scansteel Service Center, Inc., 908 S.W.2d 104, 106 (Ky.1995); Union Trust, Inc. v. Brown, 757 S.W.2d 218, 219 (Ky.App.1988). The Kentucky Bill of Rights has always been, and continues to be, recognized as the supreme law of this Commonwealth. Gatewood v. Matthews, 403 S.W.2d 716, 718 (Ky.1966). Accordingly, we consider carefully and fully any possible infringements upon these rights by a governmental power.

        KRS 527.040 prohibits a specific class of individuals, namely convicted felons, from possessing firearms in the Commonwealth of Kentucky. Decades of decisions have taught us that a statute prohibiting a class of individuals from doing anything must, at a minimum, be based on some rational basis in order to satisfy constitutional standards. See, e.g., Commonwealth Natural Resources & Env. Protection Cabinet v. Kentec Coal Co., Inc., 177 S.W.3d 718, 724-25 (Ky. 2005). In this case, neither party disputes that regulation of firearms among convicted felons is supported by substantial and rational concerns. See Eary v. Commonwealth, 659 S.W.2d 198, 200 (Ky. 1983) ("It is our opinion that a statute limiting the possession of firearms by persons who, by their past commission of serious felonies, have demonstrated a dangerous disregard for the law and thereby present a threat of further criminal activity is reasonable legislation in the interest of public welfare and safety...."); see also, Philip J. Cook and Jens Ludwig, Principles for Effective Gun Policy, 73 Fordham L.Rev. 589 (2004) (stating that gun misuse is concentrated among people with arrest records and arguing that effective gun policy should be designed to increase the "legal liability" to those who misuse guns); Matthew S. Miner, Hearing the Danger of an Armed Felon—Allowing for a Detention Hearing under the Bail Reform Act for those who Unlawfully Possess Firearms, 37 U. Mich. J.L. Reform 705 (2004) (arguing that unlawful firearms possession by felons is a serious threat to public safety), Judge Amy Karan and Helen Stampalia, Domestic Violence and Firearms: A Deadly Combination, 79 Fla. B.J. 79 (October 2005) (reporting that domestic abusers are more likely to seriously harm or kill somebody if they have access to firearms).

        Rather, Appellant contends that the constitution expressly protects the convicted felon's right to bear arms in spite of these substantial risks to public welfare and safety. He points to the plain language of Section 1(7), and argues that when it is read in comparison to another right endowed by the constitution, there can be no doubt as to the meaning of the language. We disagree, finding nothing in the constitution, either express or implied, which support Appellant's positions.

        First, Appellant argues that the language of Section 1(7) is plain and clear. It declares that all "men" have the right to bear arms in defense of themselves and of the Commonwealth subject only to "the power of the General Assembly to enact laws to prevent persons from carrying concealed weapons." Ky. Const. § 1(7). He argues that use of the word "men" in the modern constitution rather than "citizens" (the word used in previous versions)6 implies that the right is meant to encompass all persons and not just those who were endowed with the rights and privileges which were commonly conferred on citizens.7

        While we agree that it may be reasonable to infer from this language change that the 1890 constitutional convention desired to expand the lot of persons entitled to possess firearms, we disagree that this expansion reasonably or necessarily included convicted felons.8 It is generally accepted that certain classes of persons are thought to lack the ability or the natural attributes to possess many of the rights which are recognized under our constitution. For example, none of the parties dispute the premise that children and insane or incompetent persons are likely not endowed with the natural right to bear arms. See United States v. Emerson, 270 F.3d 203, 227 n. 21 (5th Cir.2001) (citing numerous authorities which document the fact that "violent criminals, children, and those of unsound mind" were never intended to be conferred with the right to bear arms). Historically, convicted felons were similarly accorded diminished status when it came to being endowed with certain natural rights.

        Indeed, the view prevailing at the time our modern constitution was formulated was that felons were not endowed with the natural right to possess firearms. See Emerson, supra, at Id.; State v. Hirsch, 177 Or.App. 441, 34 P.3d 1209, 1212 (2001) ("Felons simply did not fall within the benefits of the common law right to possess arms. That law punished felons with automatic forfeiture of all goods, usually accompanied by death.") (quoting Don B. Kates, Jr., Handgun Prohibition and the Original Meaning of the Second Amendment, 82 Mich. L.Rev. 204, 266 (1983)); see also Glenn Harlan Reynolds, A Critical Guide to the Second Amendment, 62 Tenn. L.Rev. 461, 480 (1995) (reporting that felons did not historically possess a right to possess arms). Thus, without further evidence to suggest that convicted felons were somehow accorded more status by the 1890 constitutional convention than was historically attributed to them, we cannot say that the use of the word "men" within our modern constitution was intended to necessarily encompass those men who were convicted felons.

        Appellant similarly argues that the framers' intent to include convicted felons within the scope of Section 1(7) of the Kentucky Constitution is illustrated by comparison to Section 145 of the constitution. Section 145 describes, in detailed form, the types of "persons" who are entitled to vote in the Commonwealth of Kentucky. It states that these "persons" must be (1) at least eighteen years of age; and (2) be a citizen of the United States of America. It excludes, with specificity, the following "persons": (1) convicted felons; (2) people who are incarcerated at the time of election; and (3) idiots and insane persons. Ky Const. § 145.

        Appellant contends that since Section 145 excludes convicted felons with specificity, but Section 1(7) does not, then it must be inferred that Section 1(7) meant to include convicted felons among the class of persons who were entitled to possess firearms. This argument is also flawed. First, it is notable that the right of suffrage is not contained within the sections entitled "Kentucky's Bill of Rights." Rather, it is located within its own section entitled "Suffrage and Elections."9 Thus, Appellant's "consistency in form" argument is weak since the specimen provisions are found in two completely different sections of the constitution.

        Moreover, the reason that voting rights exist within a completely different section of the constitution is because voting was not thought to be a natural, inalienable and inherent right of the people (like the right to bear arms) at the time that our modern constitution was drafted. See Ky Const. § 1; Volume 1 Proceedings and Debates of the Constitutional Convention of 1890, 534 [hereinafter "Debates"] (Delegate Bronston, C.J.) (listing the absolute rights of man); Yick Wo v. Hopkins, 118 U.S. 356, 370, 6 S.Ct. 1064, 30 L.Ed. 220 (1886) (right to vote is "not regarded strictly as a natural right, but as a privilege merely conceded by society"). Rather, voting was a privilege which was conferred to the people through the prudence and consent of the legislature. It is self-evident that a grant of power requires some specificity so as to prevent such power from being swallowed within those powers which have otherwise been limited or reserved. See Varney v. Justice, 86 Ky. 596, 6 S.W. 457, 459 (1888). Such specificity is not particularly necessary or desired, however, when it comes to reserving (or perhaps, preserving) the people's natural and inherent rights. See Ky Const. §§ 1, 4, 26; 16 Am.Jur.2d Constitutional Law § 40 (discussing constitutions as grants or limitations of power); Cf. The Federalist No. 45, at 236 (James Madison) ("The powers delegated by the proposed Constitution to the Federal Government, are few and defined. Those which are to remain in the State Governments are numerous and indefinite."). Accordingly, we also cannot infer a clear intent to endow convicted felons with the right to possess firearms by reference to language utilized in a different section of the constitution for a different purpose.

        Finally, we find nothing to support Appellant's suggestion that the limiting language concerning "concealed weapons" utilized in Section 1(7) (in conjunction with Section 26) of the constitution somehow divests the legislature of power to reasonably regulate the area of firearms possession. The people's right to bear arms in defense of themselves and of the Commonwealth was first recognized and preserved by our constitution in 1792. Ky. Const. of 1792, art. 12, § 23 ("The rights of the citizens to bear arms in defense of themselves and the State shall not be questioned."). The language as we know it today was ratified in 1891. A review of the debates which accompany the modern formulation of Section 1(7) indicate no intent on the part of the drafters to deem the right to bear arms in Kentucky absolute. See Debates, pg. 534 ("and hence arose civil liberty, which is but natural liberty, restrained by the necessities of the public good") (Bronston, C.J.); pg. 557 ("the right to bear arms in defense of themselves and the State, that means on all proper occasions") (Askew, J.F.); pg. 764 ("We are not freemen because we are licensed to do as we please, we are freemen because we are licensed to do what is right according to the law.") (Rodes, Robert); pg. 776 ("I know the object of this is to give every man the right to bear arms in defense of himself, his family, and country.") (Rodes, Robert); pg. 816-17 ("A man, of course, has a right to defend his life and liberty. His right to do it is inherent and inalienable, and he can enjoy that privilege without interfering with anybody else.") (Montgomery, J.F.).

        In fact, the concept of an individual right to bear arms sprung from classical republican ideology which required the individual holding that right to maintain a certain degree of civic virtue. Hirsch, supra, at 1211 (quoting Don B. Kates, Jr., The Second Amendment: A Dialogue, 49 Law & Contemp Probs 143, 146 (Winter 1986) (footnote omitted)); see also Saul Cornell and Nathan DeDino, The Second Amendment and the Future of Gun Regulation: Historical, Legal, Policy, and Cultural Perspectives, 73 Fordham L.Rev. 487, 492 (2004) ("Historians have long recognized that the Second Amendment [of the U.S. Constitution] was strongly connected to the republican ideologies of the Founding Era, particularly the notion of civic virtue."). "One implication of this emphasis on the virtuous citizen is that the right to arms does not preclude laws disarming the unvirtuous citizens (i.e. criminals) or those, who, like children or the mentally unbalanced, are deemed incapable of virtue." Hirsch, supra, at 1212, see also Debates, pg. 764 ("We are not freemen because we are licensed to do as we please, we are freemen because we are licensed to do what is right according to the law.") (Rodes, Robert). This concept of civic virtue is similarly reflected in other provisions contained in Section 1 of our Constitution, such as the rights of all persons to life, liberty, and the pursuit of happiness. Yet, neither party would claim that these rights are absolute or somehow immune from reasonable limitations in the interest of public safety and welfare. See Robert M. Ireland, The Kentucky State Constitution, A Reference Guide 25 (1999) (commenting that Section 1 "is by no means an unlimited repository of rights against government regulation or judicial mandate" and citing to several decisions which uphold reasonable limitations on the rights contained within Section 1).

        Moreover, the text in Section 1(7) does not support the notion that a person's right to bear arms is absolute since it plainly states that one may bear arms for the purpose of self-defense and defense of the State. Such language indicates that the right is conditioned on certain self-evident premises — that it be enjoyed lawfully and without undue interference with the rights of others. See Debates, pg. 816-17 ("A man, of course, has a right to defend his life and liberty. His right to do it is inherent and inalienable, and he can enjoy that privilege without interfering with anybody else.") (Montgomery, J.F.). Thus, we reject Appellant's contention that our constitution somehow confers on all persons an absolute right to bear arms or that the area of firearms possession is completely exempt from legislative regulation.10

        In essence, Appellant's arguments boil down to mere presumptions or suggestions that could conceivably be inferred by the language present in our modern constitution.11 However, the mere possibility that language could be interpreted in a particular way is insufficient to invalidate the plain language of a statute. Walters, supra, at 467 (ambiguities are to be resolved in favor of the legislative interpretation). In balance, we defer to the reasonable interpretation of our legislature, finding that the constitution permits some reasonable regulation of the people's right to bear arms, but only to the extent that such regulation is enacted to ensure the liberties of all persons by maintaining the proper and responsible exercise of the general right contained in Section 1(7). See, e.g., KRS 237.060 (prohibition against armor-piercing ammunition); KRS 237.090 (providing for the disposition of forfeited firearms or ammunition); KRS 527.020 (making it unlawful to possess firearms or other weapons on school property); KRS 527.100 (prohibiting the possession of handguns by minors). Under no circumstances may regulation by the legislature be enacted for an arbitrary or irrational purpose, nor may it unduly infringe upon the general exercise of this right as it was envisioned and preserved pursuant to Section 1(7) of the Kentucky Constitution.

        With this standard in mind, and considering that the vast majority of persons living in this Commonwealth are law-abiding and responsible individuals, we ultimately determine that the regulation contained within KRS 527.040 is not arbitrary or irrational and does not unduly infringe upon the right to bear arms which was reserved to the people through Section 1(7) of our constitution. As previously stated by this Court, KRS 527.040 is "reasonable legislation in the interest of public safety." Eary, supra, at 200. Since nothing in the constitution, either express or implied, undermines or prohibits such legislation, we find KRS 527.040 to be constitutional.

        The decision of the Court of Appeals is affirmed.