Shelton v. Commonwealth

SENECA L. SHELTON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

NO. 2018-CA-001839-MR

Commonwealth of Kentucky Court of Appeals

AUGUST 23, 2019

NOT TO BE PUBLISHED

APPEAL FROM MUHLENBERG CIRCUIT COURT

HONORABLE BRIAN WIGGINS, JUDGE

ACTION NO. 18-CR-00200

OPINION

AFFIRMING

** ** ** ** **

BEFORE: DIXON, KRAMER, AND K. THOMPSON, JUDGES.

KRAMER, JUDGE: After entering a conditional guilty plea, Seneca Shelton appeals from an order of the Muhlenberg Circuit Court denying his motion to suppress the evidence obtained from the search of his person and vehicle at a roadblock set up and operated by Kentucky State Police ("KSP"). After careful review, we affirm.

Shelton was stopped at a roadblock operated by KSP at KY 246 and Wyatt Cemetery Road in Muhlenberg County on or about August 22, 2018. Sometime prior to this date, KSP issued a Holiday Traffic Enforcement Plan to be in effect from August 17-September 3, 2018. On August 1, 2018, KSP issued a media announcement entitled "Traffic Safety Check Point Reminder." The announcement listed numerous pre-approved traffic safety checkpoint locations in Muhlenberg and surrounding counties and included the location of KY 246 and Wyatt Cemetery Road. On the night of Shelton's arrest, the site of the roadblock was chosen by Sergeant Jeff Ayers from the list of pre-approved locations. Sergeant Ayers contacted his subordinate, Trooper Curtis Crick, for assistance in set-up and operation of the roadblock. The officers met at the location, and the roadblock began operation at 9:02 p.m. It was shut down by Sergeant Ayers at 9:46 p.m. Sergeant Ayers and Trooper Crick were in full uniform and wearing agency-issued safety vests; they also utilized marked cruisers with blue lights flashing. There were no road signs announcing the checkpoint to approaching motorists, nor were there traffic cones.

Shelton was the third or fourth vehicle to pass through the roadblock. All vehicles prior to Shelton were also stopped. Trooper Crick made initial contact with Shelton. Upon approach, Trooper Crick noted the smell of "green" (i.e., unsmoked) marijuana coming from Shelton's vehicle. During the initialconversation between Trooper Crick and Shelton, Sergeant Ayers remained in the roadway, waiting for other vehicles. Trooper Crick eventually asked Shelton to exit the vehicle, and Shelton complied. When Trooper Crick asked Shelton if he had anything in his pockets, Shelton removed a large amount of cash and a rag. Shelton opened the rag, which contained a pipe used for smoking methamphetamine. Trooper Crick administered field sobriety tests. Shelton passed one test but failed several others. Trooper Crick searched Shelton's vehicle and found more cash, containers of marijuana, and approximately 20 grams of methamphetamine. Shelton was later indicted by the grand jury in the Muhlenberg Circuit Court on numerous offenses.

Shelton motioned the trial court for suppression of evidence, arguing that the roadblock was unconstitutional because it did not comply with the factors set forth in Commonwealth v. Buchanon, 122 S.W.3d 565 (Ky. 2003). The trial court denied his motion and Shelton entered a conditional guilty plea to trafficking in a controlled substance, first degree, two or more grams (methamphetamine), and possession of drug paraphernalia.¹ He received a sentence of ten years' imprisonment. This appeal followed.

Before we turn to the merits of Shelton's arguments, we note that in contravention of CR² 76.12(4)(c)(v), Shelton does not have a preservation statement at the beginning of each argument and while he provides some citations to the record in his factual section, none are provided in any of his arguments in contravention of CR 76.12(4)(c)(iv) and (v), which require ample references to the trial court record supporting each argument. The Court recently addressed these issues (again) in Curty v. Norton Healthcare, Inc., 561 S.W.3d 374, 377-78 (Ky. App. 2018). Given the length at which the Court in Curty urged compliance with CR 76.12(4)(c), we quote the rationale for the rule and the Court's warnings that leniency should not be presumed.

CR 76.12(4)(c)[ (v) ] in providing that an appellate brief's contents must contain at the beginning of each argument a reference to the record showing whether the issue was preserved for review and in what manner emphasizes the importance of the firmly established rule that the trial court should first be given the opportunity to rule on questions before they are available for appellate review. It is only to avert a manifest injustice that this court will entertain an argument not presented to the trial court. (citations omitted).

Elwell v. Stone, 799 S.W.2d 46, 48 (Ky. App. 1990) (quoting Massie v. Persson, 729 S.W.2d 448, 452 (Ky. App. 1987) ). We require a statement of preservation:

so that we, the reviewing Court, can be confident the issue was properly presented to the trial court andtherefore, is appropriate for our consideration. It also has a bearing on whether we employ the recognized standard of review, or in the case of an unpreserved error, whether palpable error review is being requested and may be granted.

Oakley v. Oakley, 391 S.W.3d 377, 380 (Ky. App. 2012).

. . .

Failing to comply with the civil rules is an unnecessary risk the appellate advocate should not chance. Compliance with CR 76.12 is mandatory. See Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky. App. 2010). Although noncompliance with CR 76.12 is not automatically fatal, we would be well within our discretion to strike Curty's brief or dismiss her appeal for her attorney's failure to comply. Elwell. While we have chosen not to impose such a harsh sanction, we strongly suggest counsel familiarize himself with the rules of appellate practice and caution counsel such latitude may not be extended in the future.

Curty, 561 S.W.3d at 377-78 (emphasis added).

As the Court in Curty, we would be well within our discretion to strike Shelton's brief, we have chosen not to do so at this time.

Turning to the merits, we review the trial court's findings of fact for clear error. CR 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 ofall 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). If a trial court's findings of fact are supported by substantial evidence the next question addressed by the reviewing court is "whether the rule of law as applied to the established facts is or is not violated." Adcock v. Commonwealth, 967 S.W.2d 6, 8 (Ky. 1998) (citing Ornelas v. United States, 517 U.S. 690, 697, 116 S.Ct. 1657, 1662, 134 L.Ed.2d 911 (1996)).

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[.]" Buchanon, 122 S.W.3d at 568. The Kentucky Supreme 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 be readily apparent to approaching motorists. At least some of the law enforcement officers present at the scene should be in uniform and patrol cars should be marked in some manner. Signs warning of a checkpoint ahead are also advisable.

Fourth, the length of a stop is an important factor in determining the intrusiveness of the roadblock. Motorists should not be detained any longer than necessary in order to perform a cursory examination of the vehicle to look for signs of intoxication or check for license and registration. If during the initial stop, an officer has a reasonable suspicion that the motorist has violated the law, the motorist should be asked to pull to the side so that other motorists can proceed.

Id. at 571.

Shelton argues that KSP failed to comply with the first three Buchanon factors. He also argues that there are "other factors" that made the roadblock unconstitutional. We disagree.

Regarding the first factor, the trial court found that Sergeant Ayers set up and conducted the roadblock pursuant to KSP's Holiday Traffic Enforcement Plan and that the site of the roadblock was pre-approved. Sergeant Ayers chose this location because he knew of numerous other drunk driving incidents that hadpreviously occurred in the area. The location was listed in the media announcement. Shelton argues that Sergeant Ayers' superiors did not choose the location. However, Sergeant Ayers testified he was the supervisor on duty that night because none of his superiors were working. Therefore, as supervisor, Sergeant Ayers was authorized to make decisions regarding the location and time of the roadblock. He further testified that the purpose of the roadblock was to look for...