Back v. Commonwealth

ROBERT LEE BACK APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEEANDCHARLES ALLEN BACK APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

NO. 2019-CA-000591-MR

NO. 2019-CA-000601-MR

Commonwealth of Kentucky Court of Appeals

MAY 1, 2020

NOT TO BE PUBLISHED

APPEAL FROM FAYETTE CIRCUIT COURT

HONORABLE THOMAS L. TRAVIS, JUDGE

ACTION NO. 17-CR-00987-002

APPEAL FROM FAYETTE CIRCUIT COURT

HONORABLE THOMAS L. TRAVIS, JUDGE

ACTION NO. 17-CR-00987-001

OPINION

AFFIRMING

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BEFORE: JONES, MAZE AND L. THOMPSON, JUDGES.

THOMPSON, L., JUDGE: Robert Lee Back and Charles Allen Back ("Appellants") appeal from judgments reflecting conditional pleas of guilty to charges of possession of a controlled substance and bail jumping. They argue that the Fayette Circuit Court committed reversible error in denying their motions to suppress the introduction of evidence. For the reasons addressed below, we find no error and AFFIRM the judgments on appeal.

On the evening of July 28, 2017, Officer Nichols of the Lexington Police Department observed a black Chevy Impala parked at Race and Second Streets in Lexington, Kentucky. Nichols, along with Officers Clements and Harris, were members of the department's Community Law Enforcement Action Response ("CLEAR") unit, which patrolled high-crime areas. Nichols recognized the Impala as being on a list of reported stolen vehicles.

Officers Nichols, Clements, and Harris approached the vehicle and made contact with Appellants. The officers determined that Robert was the owner of the Impala and that it was no longer listed as stolen. Robert stated that someone with a gun had taken his vehicle, but he found it abandoned and reported therecovery to the police. Robert consented to a vehicle search. No contraband was found, and Appellants were allowed to leave.

At 12:16 a.m. on the morning of July 29, 2017, Officer Clements saw Robert's black Chevy Impala parked in the middle of Self Avenue blocking the street. Clements approached the vehicle and observed that it was again occupied by Appellants. When asked, Appellants told Clements that they were in the area to give Robert's friend "Phil" a ride so he could retrieve some items. Being suspicious about their presence in a high-crime area after midnight, Officer Clements told Appellants to "hang tight." Officers Nichols and Harris arrived, and Officer Clements began asking residents in the area who were outside their homes if they knew anyone named Phil. No one was found who knew Phil.

After checking Appellants' criminal history and speaking with his fellow officers, Officer Clements summoned the Canine Unit about eight minutes into his encounter with Appellants. The Canine Unit arrived at 12:37 a.m., and alerted to the odor of narcotics in Appellants' vehicle. Officers then searched the vehicle and found heroin, digital scales, and sandwich baggies.

Robert and Charles were each indicted on charges of trafficking in a controlled substance in the first degree, violations of conditions of release, and bail jumping in the first degree.¹ The matter proceeded in Fayette Circuit Court, whereAppellants filed motions to suppress based on their contention that the police lacked reasonable suspicion to justify the investigatory stop. The court conducted a suppression hearing, where Officers Clements, Nichols, and Harris testified as to their reasons for approaching Appellants' vehicle and investigating their presence in the street. The court denied the motions to suppress upon finding that the police had a reasonable suspicion justifying the investigatory stop. Appellants then entered conditional guilty pleas to possession of a controlled substance and bail jumping, subject to their right to appeal the denial of their motions to suppress.² These appeals followed.

ARGUMENTS AND ANALYSIS

Appellants argue that the Fayette Circuit Court erred in denying their motions to suppress. They contend that though their vehicle was unlawfully parked in the street, the encounter with the officers is nonetheless properly characterized as a traffic stop. They maintain that once the purpose of the stop, i.e., illegal parking, had been resolved, Officer Clements should have cited them and told them they were free to go. Appellants assert that no reasonable suspicion of criminal activity arose during that phase of the encounter, and that extending the stop beyond the time required to issue a parking citation violated the constitutionalproscription against unreasonable seizures. Appellants further argue that even if the encounter was an investigatory stop, the evidence still must be suppressed. They contend that the initial detention was not justified, and that there was no reasonable, articulable suspicion to extend the stop. In sum, Appellants argue that the Fayette Circuit Court erred when it failed to suppress the evidence of heroin possession found as a result of an illegal seizure in violation of the Fourth Amendment of the United States Constitution and Section 10 of the Kentucky Constitution. They seek an opinion reversing the judgment on appeal.

The Fourth Amendment to the U.S. Constitution, made applicable to the states through the Fourteenth Amendment and Section 10 of the Kentucky Constitution, protects citizens from unreasonable searches and seizures. A traffic stop is considered a seizure of the driver "even though the purpose of the stop is limited and the resulting detention quite brief." Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). Therefore, a traffic stop is "subject to the constitutional imperative that it not be 'unreasonable' under the circumstances." Whren v. U.S., 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). It has long been considered reasonable for an officer to conduct a traffic stop if he or she has probable cause to believe that a traffic violation has occurred. Wilson v. Commonwealth, 37 S.W.3d 745 (Ky. 2001).

Commonwealth v. Bucalo, 422 S.W.3d 253, 257-58 (Ky. 2013).

Further, to justify an investigative stop of a vehicle, the stop must be supported by a reasonable and articulable suspicion that an offense has been or isabout to be committed. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Creech v. Commonwealth, 812 S.W.2d 162, 163 (Ky. App. 1991). Reasonable suspicion does not rise to the level of probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard. United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989). Rather, it requires a "minimal level of objective justification[.]" Id. (citation omitted). The detaining law officer must consider the totality of the circumstances when determining whether there is a particularized and objective basis for stopping a person suspected of criminal activity. Id., 490 U.S. at 8, 109 S.Ct. at 1585. The officer may develop reasonable suspicion based on his own personal observation. Bucalo, 422 S.W.3d at 259.

In addition, on appellate review of the denial of a motion to suppress, we accept the trial court's findings of fact if they are supported by substantial evidence. Davis v. Commonwealth, 484 S.W.3d 288, 290 (Ky. 2016). We then engage in a de novo review to determine if the trial court's analysis is correct as a matter of law. Whitlow v. Commonwealth, 575 S.W.3d 663, 668 (Ky. 2019).

Appellants acknowledge that they were parked in the street blocking traffic, which justified Officer Clements' approach to the vehicle and his initial questioning of Appellants. The question for our consideration is whether the Fayette Circuit Court properly determined that the officers possessed a reasonablesuspicion sufficient to justify continuing the stop, and whether they employed "the least intrusive means reasonably available to verify or dispel the officer's suspicion[.]" Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 1325-26, 75 L.Ed.2d 229 (1983) (citations omitted). We must answer this question in the affirmative.

At the suppression hearing, testimony was adduced that Appellants were in a high-crime area after midnight, that they were parked in the middle of the road with the engine off and the lights out, and that they had been seen earlier in the evening in a different high-crime area for reasons that could not be corroborated. Further, when Officer Clements asked Appellants why they were parked in the street in a high-crime area after midnight, with two weed eaters present in the vehicle that were not there during the first encounter, Appellants' response supported a reasonable inference that they were not telling the truth. Pursuant to Sokolow, supra, the suspicion of criminal activity need only consist of a minimal level of objective justification, which is far short of a preponderance of the evidence or probable cause. We conclude that the officers' suspicion of criminal activity comports with Sokolow.

In addition, the officers' investigatory response was timely. Officer Clements summoned the Canine Unit which arrived about 11 minutes later andapproximately 21 minutes into the investigatory stop. The canine then alerted to the smell of narcotics in the vehicle, which led to the search and resultant arrests.

CONCLUSION

We conclude from the totality of the record and the law that the officers were justified in continuing their investigation beyond the time required to address Robert's parking violation. The police officers properly prolonged the stop based on their reasonable and articulable suspicion of criminal activity, Bucalo, 422 S.W.3d at 260, and they employed the least intrusive means—the timely summoning of the Canine Unit—to verify or dispel their suspicion. Royer, supra. We find no error in the denial of Appellants' motions to suppress, and accordingly...