Opinion
NO. 2017-CA-000980-DG
05-24-2019
DANIELLE CAYLE DAVIS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Mary E. Rohrer Providence, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Wesley A. Hunt Special Assistant Attorney General Marion, Kentucky
NOT TO BE PUBLISHED APPEAL FROM CRITTENDEN CIRCUIT COURT
HONORABLE C. RENE WILLIAMS, JUDGE
ACTION NO. 17-XX-00002 OPINION
AFFIRMING
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BEFORE: DIXON, LAMBERT, AND L. THOMPSON, JUDGES. DIXON, JUDGE: Danielle Davis appeals from the Crittenden Circuit Court's May 11, 2017, order affirming the district court's order denying Davis's suppression motion. Finding no error, we affirm.
On August 11, 2015, Marion Police Officer Robert Harris received a complaint of two individuals allegedly "shooting up" narcotics in a red Jeep parked at a local gas station. Upon running the license plate number of the Jeep provided by the informant, Officer Harris learned that the vehicle belonged to Brad McKinney and his wife, and that the registration was expired. Shortly thereafter, Officer Harris located the Jeep and observed two occupants—Davis was the passenger. The vehicle exited the parking lot, and Officer Harris followed it for about half a block before initiating a traffic stop.
During the traffic stop, the driver was identified as Brad McKinney. According to Officer Harris, McKinney appeared "very nervous and very jittery" but exhibited no signs of impairment. Officer Harris asked McKinney for permission to search his vehicle, but McKinney did not consent. Officer Harris asked McKinney to exit the vehicle to perform a field sobriety test. Upon McKinney's exit, Officer Harris observed a baggie containing pills in the pocket of the driver's door. McKinney was then handcuffed and taken to the patrol car where Officer Harris informed McKinney that he was not under arrest but, rather, was being detained while his vehicle was searched. Officer Harris retrieved the baggie, showed it to McKinney, and asked, "What are these?" McKinney admitted that the baggie contained pills.
Believing he had probable cause, Officer Harris then searched the vehicle. The search yielded a baggie containing twelve pills of suspected narcotic medication, a pill bottle containing 64 of the 120-count pills prescribed to McKinney the same day, a leather pouch with a spoon containing a powdery residue, and a syringe. Officer Harris also searched the purse he found in the vehicle—later determined to belong to Davis, a parolee at the time—where he discovered a small bag of marijuana.
After Officer Harris completed the vehicle search, he asked McKinney where the rest of his prescription pills were. McKinney replied that he had taken two. No field sobriety tests were administered, and no evidence was found that McKinney or Davis had been "shooting up." At no point did Officer Harris read McKinney his Miranda warnings. Nonetheless, Officer Harris arrested McKinney, charging him with a litany of offenses, and Davis was charged with possession of marijuana.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
On November 12, 2015, the circuit court conducted a suppression hearing in McKinney's case and found that Officer Harris effectuated an appropriate stop of McKinney's vehicle but did not have probable cause to search the vehicle based upon the call and his observations of McKinney. As a result, on March 2, 2016, the circuit court granted McKinney's suppression motion.
On October 5, 2016, the district court conducted a suppression hearing in Davis's case. No testimony was taken; the parties stipulated to the findings of fact in the circuit court's March 2, 2016, order in McKinney's case. It was also undisputed that Davis was a parolee at the time of the search. On December 14, 2016, Davis entered a conditional Alford plea for possession of marijuana, reserving her right to appeal based on the grounds set forth in her suppression motion. On January 18, 2017, the district court denied Davis's suppression motion because she was a parolee at the time of the search, and the Fourth Amendment presents no impediment against a warrantless and suspicionless search of parolees, citing Samson v. California, 547 U.S. 843, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006) and Bratcher v. Commonwealth, 424 S.W.3d 411, 412 (Ky. 2014). Davis appealed to the circuit court, which affirmed the district court on May 11, 2017. Davis moved our court for discretionary review, which was granted by a motion panel of our court on December 15, 2017. The Commonwealth moved to dismiss this appeal as moot, but the motion was denied by another motion panel of our court on November 26, 2018. The appeal was later assigned to this merits panel.
North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).
On appeal, Davis raises five questions of law, whether: (1) she has standing to challenge the search; (2) her seizure—after the completion of the initial purpose for the traffic stop—was unlawful; (3) Bratcher should be overturned because the Fourth Amendment and Kentucky law protect Kentucky parolees from suspicionless searches; (4) Bratcher should be overturned as counter to United States Supreme Court precedent; and (5) Bratcher should be overturned because it violates the doctrine of separation of powers. We will address each issue in turn.
As an initial matter, in contravention of CR 76.12(4)(c)(v), which requires ample references to the trial court record supporting each argument, Davis's brief contains none. Additionally, in contravention of CR 76.12(4)(c)(v), Davis does not state how she preserved her arguments in the trial court.
Kentucky Rules of Civil Procedure.
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 and therefore, 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). Davis fails to explain how, or precisely where, she preserved her arguments.
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 Davis's brief or dismiss the appeal for her failure to comply. Elwell, 799 S.W.2d at 48. While we have chosen not to impose such a harsh sanction, we caution counsel that such latitude may not be extended in the future.
The standard of review of a trial court's denial of a motion to suppress is twofold: "First, the trial court's findings of fact are conclusive if they are supported by substantial evidence; and second, the trial court's legal conclusions are reviewed de novo." Milam v. Commonwealth, 483 S.W.3d 347, 349 (Ky. 2015) (citing Commonwealth v. Marr, 250 S.W.3d 624, 626 (Ky. 2008); RCr 9.78)). The parties stipulated to the findings of fact; therefore, our review is solely of the legal conclusions and is de novo.
Kentucky Rules of Criminal Procedure.
The Fourth Amendment to the U.S. Constitution and Section 10 of the Kentucky Constitution protect citizens from unreasonable searches and seizures by the government. "A search conducted without a warrant is presumed to violate the Fourth Amendment of the United States Constitution unless it satisfies the criteria of certain exceptions[,]" one of which is valid consent. Hall v. Commonwealth, 438 S.W.3d 387, 390 (Ky. App. 2014) (citing Cook v. Commonwealth, 826 S.W.2d 329, 331 (Ky. 1992)).
First, we address whether Davis has standing to challenge the search. Davis's argument that she had standing to challenge the search of McKinney's vehicle consists of only tenuous theories with little or no application of the facts to legal precedence. We will not search the record to construct Davis's argument for her, nor will we go on a fishing expedition to find support for her underdeveloped arguments. "Even when briefs have been filed, a reviewing court will generally confine itself to errors pointed out in the briefs and will not search the record for errors." Milby v. Mears, 580 S.W.2d 724, 727 (Ky. App. 1979). Nevertheless, for the reasons discussed below, we discern no error in the circuit court's finding that Davis did not have standing to challenge the search of McKinney's vehicle which led to the search of her purse.
The United States Supreme Court made it clear in Brendlin v. California, 551 U.S. 249, 252, 127 S.Ct. 2400, 2404, 168 L.Ed.2d 132 (2007), that a passenger in a vehicle has standing to challenge the constitutionality of a traffic stop but not a subsequent search of the vehicle. In Lindsey v. Commonwealth, 306 S.W.3d 522, 527 (Ky. App. 2009) (citing Rakas v. Illinois, 439 U.S. 128, 133, 99 S.Ct. 421, 425, 58 L.Ed.2d 387 (1978)), another panel of our court held that to challenge a warrantless search of a car, the passenger must show an infringement of his own Fourth Amendment rights. Lindsey noted "while [B]rendlin recognized a passenger's standing to challenge a stop of the vehicle in which he is riding, it remains the law that a passenger does not have standing to challenge the search of a car in which he is riding unless he has some property interest in the car." Id. (citing Rakas, 439 U.S. at 134, 99 S.Ct. at 425; Commonwealth v. Fox, 48 S.W.3d 24, 28 (Ky. 2001)). We have found no case, nor has any been cited to us, in which a contrary holding was made. Thus, Davis lacked standing to challenge the search of McKinney's car as she asserted neither property nor possessory interest in the car and, therefore, suffered no infringement of her Fourth Amendment rights. Bratcher, 424 S.W.3d at 415 ("the Fourth Amendment presents no impediment against a warrantless and suspicionless search of a person on parole." (emphasis original)).
Davis cites to Wyoming v. Houghton, 526 U.S. 295, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999), asserting she had an expectation of privacy in her personal belongings within McKinney's car—namely, her purse. However, the court in Houghton held,
The sensible rule (and the one supported by history and case law) is that such a package may be searched,
whether or not its owner is present as a passenger or otherwise, because it may contain the contraband that the officer has reason to believe is in the car.Id., 526 U.S. at 307, 119 S.Ct. at 1303-04. Thus, although the officer in Houghton had probable cause to search the vehicle in which Houghton was a passenger, the Court's analysis fails to support Davis's contention concerning her expectation of privacy. The singular difference—that Davis was a parolee—makes Officer Harris's lack of probable cause to search Davis's purse, as part of his impermissible vehicle search, inconsequential. As a parolee, Davis had no expectation of privacy and, therefore, the search did not violate her Fourth Amendment rights. Bratcher, 424 S.W.3d at 415 ("the Fourth Amendment presents no impediment against a warrantless and suspicionless search of a person on parole." (emphasis original)).
We hold that police officers with probable cause to search a car may inspect passengers' belongings found in the car that are capable of concealing the object of the search.
Second, we examine whether the seizure of Davis after the initial purpose for the traffic stop was complete—or abandoned—was unlawful. Davis's argument that Officer Harris lacked probable cause to conduct the search is distinct from McKinney's due, in part, to her lack of standing and, also in part, to her status as a parolee. Had Davis had standing, even then her argument would have failed because:
Under the Fourth Amendment analysis set forth in Samson, it is immaterial whether the information available to the officers who searched Appellant's residence rose to the standard of reasonable suspicion. The Fourth Amendment does not prohibit a police officer from conducting a suspicionless search of a parolee. Samson, 547 U.S. at 857, 126 S.Ct. 2193. Without a constitutional right underpinning his motion to suppress, Appellant has no basis for application of the exclusionary rule. Copley v. Commonwealth, 361 S.W.3d 902, 905 (Ky. 2012) ("Suppression of evidence pursuant to the exclusionary rule applies only to searches that were carried out in violation of an individual's constitutional rights.").Bratcher, 424 S.W.3d at 415. Here, we pause to comment on the fact that Officer Harris appeared to have no knowledge that Davis was a parolee at the time of the search, thus, presenting us with a unique scenario and what also appears to be an issue of first impression. However, although Davis's status was a matter of public record, applying Bratcher's logic that "it is immaterial whether the information available to the officers who searched Appellant's residence rose to the standard of reasonable suspicion," it was likewise immaterial whether Officer Harris knew of Davis's status as a parolee at the time of the search. Suppression of evidence pursuant to the exclusionary rule applies only to searches that were carried out in violation of an individual's constitutional rights. Brock v. Commonwealth, 947 S.W.2d 24, 29 (Ky. 1997). As previously discussed, Davis's constitutional rights were not violated; therefore, the exclusionary rule is inapplicable, and the court's denial of Davis's suppression motion was proper.
Finally, we address whether Bratcher should be overturned. As Davis notes, a federal judge in Jones v. Lafferty, 173 F.Supp.3d 493 (E.D. Ky. 2016), disagreed with Bratcher, stating:
Lafferty relies upon the Kentucky Supreme Court's statement that "the Fourth Amendment presents no impediment against a warrantless and suspicionless search of a person on parole." Bratcher, 424 S.W.3d at 415. With due respect to our sister court, that conclusion misapprehends the holdings and the reasoning of the Supreme Court precedent upon which it relies.Jones, 173 F.Supp.3d at 496-97. This criticism has been acknowledged by at least two panels of our court. Nevertheless, we are bound to follow our Supreme Court's established precedent. As Bratcher remains the law in Kentucky, we are bound to follow it. None of the arguments Davis presents requesting our departure from this precedent have merit nor compel us to render an opinion inconsistent with this precedent.
In Shelton v. Commonwealth, 2015-CA-000877-MR, 2017 WL 243460 (Ky. App. Jan. 20, 2017), another panel of our court recognized:
Bratcher has been criticized by at least one federal district court for failing to consider the Kentucky Department of Corrections Policies as one factor relating to the reasonableness of the search. See Jones v. Lafferty, No. CV 5:15-51-KKC, 2016 WL 1255720, at *8 (E.D. Ky. Mar. 29, 2016) ("The Kentucky Supreme Court's reliance upon Moore to conclude that the particular terms of the KDOC Policy are simply not relevant to the reasonableness of the search under the Fourth Amendment was misplaced."). We acknowledge this criticism, but are bound to follow Bratcher.Shelton, at *3, n.2.
Again, in Stigall v. Commonwealth, 2016-CA-000160-MR, 2017 WL 4217352, at *3 (Ky. App. Sept. 22, 2017), review denied (Aug. 8, 2018) another panel of our court recognized that Jones "strongly suggest[s] Bratcher is wrong, but recogniz[es] 'federal courts are generally bound by the Kentucky Supreme Court's interpretation of Kentucky law.'" Stigall, at *3 (citations omitted.) Stigall pointed out:
This Court is bound to follow the law as stated by our Supreme Court. See Kindred Healthcare, Inc. v. Henson, 481 S.W.3d 825, 829 (Ky. App. 2014) ("As an intermediate appellate court, this Court is bound by published decisions of the Kentucky Supreme Court. SCR 1.030(8)(a). The Court of Appeals cannot overrule the established precedent set by the Supreme Court[.]"). Thus, we decline Stigall's invitation to reexamine binding precedent and announce a rule contrary thereto.These unpublished opinions are cited pursuant to CR 76.28(4)(c) as illustrative of the issue before us and not as binding authority.
For the foregoing reasons, the judgment of the Crittenden Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Mary E. Rohrer
Providence, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Wesley A. Hunt
Special Assistant Attorney General
Marion, Kentucky