Cook v. Commonwealth

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JIMMY COOK APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

No. 2023-CA-1087-MR

Court of Appeals of Kentucky

July 26, 2024

NOT TO BE PUBLISHED

APPEAL FROM LETCHER CIRCUIT COURT HONORABLE JAMES W. CRAFT, II JUDGE ACTION NO. 22-CR-00135

BRIEF FOR APPELLANT: Timothy G. Arnold Frankfort, Kentucky

BRIEF FOR APPELLEE: Russell Coleman Attorney General of Kentucky Courtney J. Hightower Assistant Attorney General Frankfort Kentucky

BEFORE: ACREE, EASTON, AND GOODWINE, JUDGES.

OPINION

GOODWINE, JUDGE:

Jimmy Cook ("Cook") entered a conditional guilty plea in the Letcher Circuit Court reserving the right to challenge the court's denial of his motion to suppress evidence obtained at a roadblock. Based on our review of the record and applicable case law, we vacate and remand.

On April 11, 2022, Kentucky State Police ("KSP") troopers, assisted by the Letcher County Sherriff, set up a roadblock around 1:00 p.m. on Kentucky Route 7 at the Colson Baptist Church in Letcher County. The troopers stopped every vehicle to check license, registration, insurance, and safety restraints. Sheriff Mickey Stines was scheduled to be there with a drug-sniffing dog, but he was late. There were no signs announcing the roadblock, but the officers thought their cruisers were sufficient advertisement and were visible for about five hundred feet in any direction. However, individuals who saw the roadblock and turned around were pursued by troopers manning the roadblock.

Cook was driving his motorcycle on Route 7 when he encountered the roadblock. Trooper Watts asked for his license, registration, and insurance. Cook did not have a driver's license or proof of insurance, so the trooper pulled him to the side, apparently until his motorcycle could be towed away. Trooper Watts ran Cook's social security number and found the title to the motorcycle had been transferred but not registered. The trooper had also received reports from a known informant that Cook was trafficking methamphetamine on his motorcycle and there was a lot of traffic at his residence at night, but he did not independently verify the tips.

Trooper Watts asked Cook to consent to a search of the motorcycle's saddlebags, but he declined. While Cook waited for his motorcycle to be towed, Letcher County Sheriff Stines arrived with a drug detection dog and asked the trooper if he could conduct a canine sweep of the motorcycle. Trooper Watts acquiesced. The dog alerted to one of the saddlebags, so the sheriff searched it and found 50 grams of suspected methamphetamine, drug paraphernalia, and vials of perfume to mask the scent. Trooper Watts then arrested Cook.

On July 14, 2022, Cook was indicted on first-degree trafficking in a controlled substance (more than two grams of methamphetamine), possession of drug paraphernalia, operating on a suspended license, failure to maintain insurance, failure to produce insurance card, expired registration receipt, and expired registration tag.

On February 14, 2023, Cook filed a motion to suppress the evidence. Cook argued the safety checkpoint was not constitutionally reasonable under the Fourth Amendment to the United States Constitution, citing state and federal case law discussing the constitutional limitations on roadblocks. Cook also argued the officers lacked reasonable individualized suspicion to justify the warrantless seizure, and the stop was unlawfully extended to conduct the dog sniff.

The circuit court conducted a hearing on Cook's motion. Trooper Watts and Sheriff Stines testified at the hearing, and much of their testimony focused on the purpose of the roadblock. Trooper Watts testified that they "check for seatbelts, DUIs," and they sometimes will "just be visible, like in high drug trafficking areas." Video Record ("VR") 4/11/23, 9:18:42-9:19:02. On crossexamination, Trooper Watts said the purpose of the stop was for everything, including general crime prevention.

On redirect, the Commonwealth showed Trooper Watts a statement from the KSP website advertising and stating the purpose of roadblocks. From at least the date of the evidentiary hearing in this case, Kentucky State Police Post 13 has a statement on its website about roadblocks:

Kentucky State Police Post Thirteen will be conducting safety traffic checkpoints in the Post Thirteen area. Troopers will be checking for impaired drivers, children that are not properly restrained in child safety seats, and to inform the public about the use of seatbelts. These safety checkpoints will be conducted in various locations throughout the Post Thirteen area that are experiencing a high ratio of vehicular crashes resulting in injury and/or death compared to relatively low safety restraint usage ratio.

Record ("R.") at 54. Trooper Watts did not recognize the website statement. Trooper Watts testified he was not the supervisor who approved the checkpoint, did not determine the purpose of it, and did not hear any supervisor say the purpose of the roadblock was to locate drugs or for general crime prevention.

Sheriff Stines testified that he was the K-9 handler for the sheriff's office, and that he was scheduled to be at the roadblock the day Cook was arrested, but he was late. The sheriff testified that he was merely assisting with the roadblock, and he believed the purpose of the roadblock was "a traffic safety checkpoint." VR 4/11/23, 9:57:36-9:57:40. Sheriff Stines testified that when KSP conducts roadblocks, they ask them to join, presumably with the drug-sniffing dog. They conduct roadblocks weekly at various times of the day. For this roadblock, KSP invited the sheriff and the drug-sniffing dog to assist with the roadblock that morning. Like Trooper Watts, Sheriff Stines testified that he arrived late to the roadblock. When he arrived, he learned Cook was waiting for his motorcycle to be towed. Sheriff Stines asked Trooper Watts if he could conduct the drug sniff. Trooper Watts acquiesced, and the dog immediately alerted. Sheriff Stines found 50 grams of suspected methamphetamine, drug paraphernalia, and vials of perfume to mask the drug scent.

At the end of the hearing, the circuit court orally denied Cook's motion. The court found the checkpoint satisfied the factors in Commonwealth v. Buchanon, 122 S.W.3d 565 (Ky. 2003), because it was pre-approved by a supervisor, its primary purpose was advertised and was not for general crime deterrence based on the website statement, it was conducted in daylight, and it was visible for 500 feet in either direction. The circuit court did not address Cook's arguments that the officers lacked reasonable individualized suspicion to justify the warrantless seizure and the stop was unlawfully extended to conduct the dog sniff.

On July 3, 2023, the circuit court entered an order allowing Cook to enter a conditional guilty plea. Cook reserved the right to appeal the circuit court's denial of his motion to suppress.

On July 26, 2023, Cook entered a conditional guilty plea to the amended charge of first-degree trafficking in a controlled substance (less than two grams of methamphetamine), possession of drug paraphernalia, failure to maintain insurance, and not having an operator's license. On August 30, 2023, circuit court entered a judgment and sentence on a plea of guilty, and Cook was sentenced to five years of imprisonment.

On appeal, Cook argues the circuit court erred in denying his motion to suppress because: (1) the primary purpose of the roadblock was general law enforcement, and the circuit court erred in relying on the website instead of witness testimony; (2) the roadblock does not survive the Buchanon Fourth Amendment balancing test; and alternatively, (3) if the Fourth Amendment does not prohibit this roadblock, Section 10 of the Kentucky Constitution does.^[1]

We apply a two-part standard in reviewing the denial of a motion to suppress:

The trial court's findings of fact are reviewed under the clear-error standard. We accordingly defer to the trial court's fact finding if it is supported by substantial evidence. Substantial evidence is "evidence, taken alone or in light of other proof, that a reasonable mind would find sufficient to support a conclusion." We review the trial court's application of the law to the facts de novo. This means we have "a duty to make an independent evaluation of the record," and will give no deference to the trial court's ruling.

Cox v. Commonwealth, 641 S.W.3d 101, 113 (Ky. 2022) (footnotes omitted).

First, Cook argues the circuit court erred in relying on the website instead of witness testimony in determining the purpose of the roadblock was a general safety checkpoint and not a crime deterrent stop. In reviewing whether a roadblock passes "constitutional muster," the Supreme Court of the United States has held that "the seizure must be deemed reasonable." Buchanon, 122 S.W.3d at 568 (Ky. 2003). "The general test for the reasonableness of a seizure requires a reviewing court to '[weigh] the gravity of the public concerns saved by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty.'" Commonwealth v. Cox, 491 S.W.3d 167, 170 (Ky. 2015) (quoting Brown v. Texas, 443 U.S. 47, 50-51, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979)).

Since Brown, the United States Supreme Court updated the reasonableness test to include the purpose of the roadblock and the Kentucky Supreme Court created four general factors for courts to examine in determining the reasonableness of a roadblock. Id. "Law enforcement may not impose checkpoints 'whose primary purpose is to detect evidence of ordinary criminal wrongdoing.' Rather, roadblocks must have a 'primary purpose,' such as keeping the roads safe from impaired drivers or...