Holeman v. Commonwealth

CAMERON HOLEMAN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

NO. 2018-CA-000402-DG

Commonwealth of Kentucky Court of Appeals

JULY 19, 2019

NOT TO BE PUBLISHED

DISCRETIONARY REVIEW FROM HENDERSON CIRCUIT COURT

HONORABLE JOHN L. ADKINS, SPECIAL JUDGE

ACTION NO. 17-XX-00003

OPINION

REVERSING

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BEFORE: ACREE, GOODWINE, AND KRAMER, JUDGES.

KRAMER, JUDGE: Cameron Holeman appeals from an order of the Henderson Circuit Court affirming the Henderson District Court's Findings of Fact, Conclusions of Law and Judgment denying his motion to suppress the evidence obtained from the search of his person and vehicle. For reasons stated herein, we reverse.

Holeman was stopped at a roadblock operated by Kentucky State Police ("KSP") in Henderson County on or about September 2, 2016. The roadblock was set up by Troopers Blake Owens and Myles Scott after they received approval from a supervisor. At the roadblock, the troopers used marked KSP cruisers with blue lights flashing. They were in full uniform and wearing agency-issued safety vests. There were no road signs announcing the checkpoint to approaching motorists. Holeman approached the roadblock at approximately 10:50 p.m. He was stopped by Trooper Owens and, after performing field sobriety tests, was placed under arrest and charged with several misdemeanor offenses, including driving under the influence of alcohol. He filed a motion to suppress evidence seized from his person and vehicle, arguing the roadblock violated his Fourth Amendment rights and did not meet the notice requirements set forth in Cox v. Commonwealth, 491 S.W.3d 167 (Ky. 2015). The district court held hearings on February 16, 2017, and May 18, 2017. It subsequently denied Holeman's motion to suppress evidence related to the constitutionality of the roadblock and the notice requirements of Cox.¹ Holeman entered a conditional guilty plea.² He appealed tothe Henderson Circuit Court, which affirmed the district court in an order that states only, "[h]aving reviewed the record in the above styled and numbered action and finding no error, the decision of the Henderson District Court is AFFIRMED." (Emphasis in original). This appeal followed.

On appeal, Holeman asserts that the district court's findings of fact and conclusions of law were erroneous, specifically regarding whether KSP provided proper notice of the roadblock, and that the circuit court erred in affirming. We agree.

Findings of fact are reviewed for clear error. CR³ 52.01. A trial court's findings of fact on a suppression motion are deemed conclusive and will not be overturned so long as they are supported by substantial evidence. Smith v. Commonwealth, 181 S.W.3d 53, 58 (Ky. App. 2005). "Substantial evidence means evidence that when taken alone or in light of all the evidence, . . . has sufficient probative value to induce conviction in the minds of reasonable men." Turley v. Commonwealth, 399 S.W.3d 412, 420 (Ky. 2013) (internal quotations and citation omitted).⁴ A trial court's reliance upon evidence not in the record constitutes clear error. Skinner v. Skinner, 249 S.W.3d 196, 201 (Ky. App. 2008). Here, the recorddoes not contain substantial evidence to support the district court's findings that Holeman received adequate notice of the roadblock or that troopers operated pursuant to the then-current General Order OM-E-4 issued by KSP.

At the suppression hearing conducted by the district court on February 16, 2017, Trooper Owens provided the only witness testimony. He had in front of him, and referred to, a General Order OM-E-4. Briefly, the OM-E-4 details procedures and guidelines used by KSP for establishing and conducting roadblocks. Trooper Owens testified that he complied with the policies and procedures contained in the OM-E-4. He further testified that he believed the order had been amended after December 17, 2015,⁵ but not prior to Holeman's arrest. However, he could not say for certain that it had been amended, nor could he testify what amendments were made. The Commonwealth did not admit into evidence the OM-E-4 that Trooper Owens referred to during his testimony.

Trooper Owens testified that one of the ways motorists receive notice of roadblocks is through the KSP website, which lists all pre-approved roadblock locations and is periodically updated. This is the only testimony Trooper Owens provided regarding the website. He could not say when the website was last updated prior to Holeman's arrest. He could not say definitively that the roadblock at issue in this case was listed on the website nor could he say what otherroadblocks were listed, if any. Other than the extremely limited testimony of Trooper Owens, there was no evidence submitted by the Commonwealth regarding information available on the KSP website pertaining to roadblocks prior to, on the date of, or after Holeman's arrest.

Trooper Owens testified that Kentucky motorists also receive notice of roadblock locations because KSP publishes periodic press releases to media outlets (i.e., radio, television, and newspaper). Trooper Owens was unaware of the last press release prior to the date of Holeman's arrest. He offered no details as to any specific press release. Trooper Owens did not refer to a press release during his testimony and the Commonwealth did not offer a press release into evidence.

At the conclusion of the hearing, the district court expressed concern about the lack of evidence regarding publication of the roadblock locations. Holeman then made an oral discovery request. He wanted to know what was published on the KSP website on the date of Holeman's arrest and what was on the website as of the date of the suppression hearing. Holeman also requested the OM-E-4 as it was on the date of the arrest and any amendments made. The district court said it wanted a list of locations of roadblocks at the time of Holeman's arrest. The Commonwealth agreed to provide the information. The district court did not enter an order following the hearing.

The matter came before the district court again on February 22, 2017, but was continued to March 6, 2017. The record before us shows that on March 6, 2017, the Commonwealth submitted a "Recommendation of County Attorney" stating that the parties wished to continue that matter until April 13, 2017. The document also states, "Parties request a continuance to get officer testimony from officers . . . and to resolve the OM-E-4 discrepancies between the 11/1/05 version and the 12/1/12 version . . . . The Court has requested that we subpoena the three officers listed above for a 1:00 hearing[.]" The Commonwealth again submitted a "Recommendation of County Attorney" on April 13, 2017, that states, "We currently have a suppression hearing set for 4/13/17. Due to officers being out of town and defense counsel's trial schedule, the parties agree that we would like to continue the hearing to 5/18/17." The district court conducted another hearing on May 18, 2017. However, despite the contents of the previously filed recommendations of the county attorney, no testimony was taken on that date. Rather, the parties presented oral arguments. The Commonwealth tendered to the district court what it claimed was a "media announcement." A copy was also provided to defense counsel. The Commonwealth argued that the document showed KSP had issued a publication on September 1, 2016 (i.e., one day prior to Holeman's arrest) regarding traffic checkpoints over the upcoming Labor Day weekend. Defense counsel argued that the "media announcement" did not provideadequate notice under Cox. In his memorandum filed with the district court after the hearing, Holeman argued that the Commonwealth failed to prove that KSP published the "media announcement." The "media announcement" was not filed in the district court record.

The district court entered its findings of fact, conclusions of law, and judgment on October 19, 2017. It relied, in part, on the "media announcement" from the Commonwealth, finding that

The day before [Holeman's arrest], KSP had issued a press release titled "KSP Increasing Patrols During Labor Day Weekend." The press release noted that traffic accidents claimed ten lives during the 2015 Labor Day holiday, and that "[T]he 2016 Labor Day holiday enforcement period begins at 6:00 p.m., Friday, September 2 and continues through Monday, September 5 at 11:59 p.m." The release stated that the locations of traffic safety checkpoints are posted on the KSP website.

The district court also found that KSP had established and conducted the roadblock pursuant to OM-E-4 "effective 10/12/92; revision date 12/1/12."

A highway stop of motorists at a government-operated checkpoint constitutes a seizure for Fourth Amendment purposes. Michigan Dep't of State Police v. Sitz, 496 U.S. 444, 450, 110 S. Ct. 2481, 110 L. Ed. 2d 412 (1990). "In order to pass constitutional muster, the seizure must be reasonable[.]" Commonwealth v. Buchanon, 122 S.W.3d 565, 568 (Ky. 2003). The KentuckySupreme Court has enumerated non-exclusive factors for determining the reasonableness of any particular roadblock:

First, it is important that decisions regarding the location, time, and procedures governing a particular roadblock should be determined by those law enforcement officials in a supervisory position, rather than by the officers who are out in the field. Any lower ranking officer who wishes to establish a roadblock should seek permission from supervisory officials. Locations should be chosen so as not to affect the public's safety and should bear some reasonable relation to the conduct law enforcement is trying to curtail.

Second, the law enforcement officials who work the roadblock should comply with the procedures established by their superior officers so that each motorist is dealt with in exactly the same manner. Officers in the field should not have unfettered discretion in deciding which vehicles to stop or how each stop is handled.

Third, the nature of the roadblock should

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