Opinion
NO. 2014-CA-000419-MR
01-15-2016
CLARENCE COBB APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Susan Jackson Balliet Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Wm. Robert Long, Jr. Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM GRAVES CIRCUIT COURT
HONORABLE TIMOTHY C. STARK, JUDGE
ACTION NO. 13-CR-00119 OPINION
AFFIRMING BEFORE: ACREE, CHIEF JUDGE; J. LAMBERT AND TAYLOR, JUDGES. TAYLOR, JUDGE: Clarence Cobb brings this appeal from a Graves Circuit Court judgment entered February 18, 2014, imposing a total sentence of five years for being a felon in possession of a handgun, possession of marijuana, and operating on a suspended driver's license. Cobb had filed a motion to suppress various evidence found in his automobile incident to his arrest, which was denied by order entered October 7, 2013. Cobb then entered an Alford plea to the charges, conditioned on his right to appeal the denial of his suppression motion. At issue is whether Cobb's rights under Section 10 of the Kentucky Constitution were violated when his automobile was impounded and searched.
See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970) (An Alford plea "permits a conviction without requiring an admission of guilt and while permitting a protestation of innocence." Wilfong v. Commonwealth, 175 S.W.3d 84, 103 (Ky. App. 2004)).
At the suppression hearing, Officer Rodney Smith testified that he was in his police cruiser when he spotted an individual he thought might be Cobb, driving a car. Two or three weeks earlier, Officer Smith had assisted in arresting Cobb for driving on a suspended license, and Smith suspected that Cobb had not yet had his license reinstated. He followed Cobb and observed him pull into a private driveway, park, and get out of the car. Cobb approached Smith, and asked his name. Cobb replied, "Keith Burton." Smith replied, "Okay, you're not who I thought you were." Cobb entered the house next door to the driveway on which he had parked.
Smith returned to his cruiser and found a picture of Keith Burton on a jail website. Burton did not resemble Cobb. Smith knocked on the door of the home Cobb had entered, asked him to step outside and showed him the picture. Cobb admitted that he was Clarence Cobb. Officer Smith verified that Cobb's license was still suspended, and arrested him. He handcuffed Cobb and placed him in the back of the police cruiser.
A neighbor, who had come outside to inquire about what was going on, told Smith that an elderly man lived in the residence where Cobb had parked his car. She explained that she took care of the elderly man, although he was currently in the hospital. She told Smith that she did not know Cobb.
Officer Smith arranged for Cobb's vehicle to be impounded. When he was asked by Cobb's attorney whether it would not have been reasonable to allow Cobb to call someone to move the vehicle instead, he testified that impoundment was appropriate because Cobb had been "driving several times on a suspended license" and "the vehicle was in a place it shouldn't be." Prior to being towed, Officers Smith and Hammond conducted an inventory search of the vehicle. Inside the console, they found marijuana, rolling papers, and a loaded handgun containing six bullets. The trial court denied Cobb's motion to suppress the evidence and Cobb entered his conditional guilty plea. This appeal follows.
Our review of a trial court's ruling on a motion to suppress is two-fold. First, the factual findings are deemed conclusive if they are supported by substantial evidence. Kentucky Rules of Criminal Procedure 9.78. If unsupported by substantial evidence, the trial court's factual findings are deemed clearly erroneous. Com. v. Banks, 68 S.W.3d 347, 349 (Ky. 2001). Second, we conduct a de novo review to determine whether the trial court's decision was correct as a matter of law. Roberson v. Com., 185 S.W.3d 634 (Ky. 2006).
Cobb argues that the impoundment and search of his vehicle did not comply with any exceptions to the warrant requirement, although he expressly does not challenge the scope of the search into the console of his car.
In Wagner v. Commonwealth, 581 S.W.2d 352 (Ky. 1979), our state's highest court held that impoundment of a vehicle by the police is justified only under the following circumstances:
1. The owner or permissive user consents to the impoundment;Wagner, 581 S.W.2d at 356 (citations omitted).
2. The vehicle, if not removed, constitutes a danger to other persons or property or the public safety and the owner or permissive user cannot reasonably arrange for alternate means of removal;
3. The police have probable cause to believe both that the vehicle constitutes an instrumentality or fruit of a crime and that absent immediate impoundment the vehicle will be removed by a third party;
4. The police have probable cause to believe both that the vehicle contains evidence of a crime and that absent immediate impoundment the evidence will be lost or destroyed.
Some uncertainty exists regarding the extent to which Wagner was overruled by Estep v. Commonwealth, 663 S.W.2d 213 (Ky. 1983). Cobb contends that Estep did not overrule that portion of Wagner setting forth the parameters for a constitutionally-permissible impoundment, and that none of the Wagner conditions justifying a warrantless impoundment were present in his case.
See, e.g., Helm v. Commonwealth, 813 S.W.2d 816, 819 n. 2 (Ky. 1991) ("In light of Estep v. Commonwealth, 663 S.W.2d 213 (Ky. 1983)) the holding in Wagner v. Commonwealth, 581 S.W.2d 352 (Ky. 1979) as to automobile impoundment without a warrant is questionable"). --------
The extent to which Estep overruled Wagner need not be resolved here, however, because the impoundment of Cobb's vehicle did meet the Wagner exception for matters of public safety. Officer Smith testified that the car was impounded in part because Cobb was operating the vehicle without a valid driver's license and had done so in the past. Kentucky Revised Statutes 186.620(2) provides in part that "[n]o person who has not applied for an operator's license or whose operator's license has been denied, canceled, suspended or revoked, or whose privilege to operate a motor vehicle has been withdrawn, shall operate any motor vehicle upon the highways[.]" Our courts have stressed that the licensing statute is intended to protect the safety of the public:
It is our belief that the harm to the public resulting from violation of KRS 186.620(2) is substantial, as incompetently driven motor vehicles on our state's highways cause great loss of human life and property. Enforcement and prosecution of motorists violating KRS 186.620(2) is of significant importance to this Commonwealth. This Court has held that license revocation is noncriminal in nature, but is necessary to protect the safety of the public.Com. v. Duncan, 939 S.W.2d 336, 339 (Ky. 1997).
By impounding the car, Officer Smith ensured that Cobb could not continue to drive the vehicle without obtaining or renewing a valid operator's license. Had he merely allowed Cobb to call a third party to get the car, there was no assurance that Cobb would not continue to drive without a valid permit. Under the facts of this case, the decision to impound falls squarely under the public safety exception in Wagner, 581 S.W.2d 352.
Cobb argues that the Commonwealth failed to meet its burden of proving that he was not allowed to park in the elderly man's driveway, and that the trial court's findings were ambiguous in that they implied that the caretaker of the elderly man lived at his house. But the easiest way to refute the Commonwealth's contention would have been for Cobb to testify that he did know the elderly man, or for his friend to testify that the elderly man allowed her acquaintances to park in his driveway. In any event, the impoundment of the vehicle was justified as a matter of public safety, and whether the caregiver lived with the elderly man is not relevant to this determination.
The next issue raised by Cobb is whether the inventory search of his impounded vehicle was permissible. "An inventory search must be one conducted for purposes other than investigation and be based upon a standardized policy, which provides standardized criteria to restrict or eliminate an officer's discretion as to whether and what to search." Hinchey v. Com., 432 S.W.3d 710, 714 (Ky. App. 2014). Officer Scott testified that his department has a written policy governing the search of towed vehicles. He explained that the intent of the policy is to protect any items the owner may keep in the car, to make the tow truck driver aware of such items, and to prevent future disputes regarding any damage to the exterior of the vehicle. Cobb argues that Scott's testimony was not sufficient to prove the existence of such a policy, and that there was no evidence that the department had a standard procedure for impounding cars. Scott's testimony provided substantial evidence to support the trial court's finding that such a policy existed and that it was followed in this case. See id. Cobb's attorney was free to cross-examine Officer Scott regarding the existence and nature of the impoundment policy, but chose not to do so.
The trial court did not err in denying the motion to suppress and for the foregoing reasons, the judgment entered by the Graves Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Susan Jackson Balliet
Assistant Public Advocate
Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky Wm. Robert Long, Jr.
Assistant Attorney General
Frankfort, Kentucky