Opinion
NO. 2011-CA-000515-MR
03-07-2014
JAMES BRADLEY HEATH APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Brandon Neil Jewell Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Bryan D. Morrow Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM MUHLENBERG CIRCUIT COURT
HONORABLE BRIAN WIGGINS, JUDGE
ACTION NO. 10-CR-00162
OPINION
AFFIRMING
BEFORE: CLAYTON, MOORE, AND NICKELL, JUDGES. NICKELL, JUDGE: Following entry of a conditional guilty plea to one count of possession of a controlled substance (methamphetamine) in the first degree, James Bradley Heath appeals from an order denying his motion to suppress evidence seized during a pat-down search at a traffic safety checkpoint, a vehicle search incident to his arrest, and a more thorough search of a seized item that occurred several hours later at the Kentucky State Police (KSP) Post. Holding the challenged actions violate neither the state nor federal constitutions, we affirm the judgment of the Muhlenberg Circuit Court.
Kentucky Revised Statutes (KRS) 218A.1415(1)(c), a Class D felony.
FACTS AND PROCEDURAL BACKGROUND
In the early morning hours of August 23, 2010, KSP Trooper Brandon McPherson and Muhlenberg County Deputy Shannon Albro established a traffic safety checkpoint on Highway 2270 in Muhlenberg County. The checkpoint was part of a pre-approved list of locations, was approved by a superior officer, lasted between 45 and 60 minutes, stopped all approaching motorists, treated all motorists alike, and, was visible to oncoming drivers from both directions. Both officers were dressed in uniform and the emergency lights on their vehicles were activated. Trooper McPherson wore a safety vest.
At about 1:19 a.m., Heath approached the traffic safety checkpoint driving a Ford Escape. While Deputy Albro confirmed Heath's registration and driver's license—standard protocol for all drivers stopped at the checkpoint— Trooper McPherson remained at the driver's door, observing Heath and noticing his pupils did not dilate when a flashlight was shown in his eyes. Trooper McPherson had learned during a forty-hour drug training course on intoxicated drivers that fixed pupils are indicative of a person being under the influence of a combination of drugs. Believing Heath was under the influence of narcotics due to his nonreactive pupils, Trooper McPherson asked him whether he was under the influence of an illegal substance or had anything illegal in his vehicle, to which Heath responded, "No."
Although Heath was unknown to Trooper McPherson before the stop, the officer had received a tip about Heath one to two months before this encounter indicating Heath was purchasing the monthly legal limit of pseudoephedrine— raising the suspicion he was involved in illegal activity. Upon completing a quick methcheck—confirming Heath had been purchasing the legal maximum of pseudoephedrine each month—Trooper McPherson asked Heath to exit his vehicle, and frisked him. During the pat-down, Trooper McPherson discovered a pair of brass knuckles in Heath's back pants pocket and two pills in his front pants pocket. Both items were immediately recognizable during the pat-down, but Trooper McPherson did not know the type of pills until he removed them from Heath's pocket. Upon seeing the pills, the officer immediately recognized them as Lortabs for which Heath admitted he had no prescription, but claimed he needed for back pain.
According to the trial court opinion, a methcheck is performed by accessing "a database containing the statewide list of all persons who had been purchasing pseudoephedrine, a key component in the process of manufacturing methamphetamine." While Trooper McPherson testified Heath purchased a "large" quantity and a "suspicious" quantity of pseudoephedrine, he also testified Heath purchased the legal limit. When questioned, Heath said he had a cold and had been sick.
With the pat-down complete, the brass knuckles and loose pills seized, and believing Heath to be impaired, Trooper McPherson asked Heath to perform field sobriety tests. Heath failed the HGN test and refused to perform other tests claiming he had chronic back pain and feared further injury.
Horizontal Gaze Nystagmus Test. According to Trooper McPherson, Heath's eyes lacked "smooth pursuit."
A search of Heath's vehicle revealed a camera case in the pocket behind the driver's seat. The case contained a glass pipe stained with burnt methamphetamine residue.
Heath denied the pipe was his, saying it must have belonged to a recent passenger he chose not to identify.
At that point, Heath was placed under arrest and transported to the hospital where he refused to give blood and urine samples. He was then transported to jail where a uniform citation was completed. According to the trial court, Heath was originally charged with operating a motor vehicle under the influence of drugs, possession of drug paraphernalia, and, having a controlled substance prescription not in original container.
This document does not appear in the record.
KRS 189A.010(1), a misdemeanor or felony depending upon the subject's blood alcohol concentration and whether it was a repeat offense.
KRS 218A.500(2), a Class A misdemeanor.
KRS 218A.210, a Class B misdemeanor. The trial court opinion differs from the uniform citation which states Heath was originally arrested for only "DUI and poss Drug Paraphernalia." We note another inconsistency on the uniform citation—it lists the violation time and date as "2130 hours," which would be 9:30 p.m., on August 23, 2010. Trooper McPherson testified Heath was stopped around 1:19 a.m.
Heath's arrest occurred near the end of Trooper McPherson's shift, but transport and booking occurred after his shift had ended. He secured the evidence in his cruiser, testified in court on other cases later that morning, and at 11:29 a.m.—about ten hours after stopping Heath at the checkpoint—began logging the items collected from Heath into an evidence locker. At Post, Trooper McPherson was less hurried and had better light than on the roadway. Upon closer inspection of the small camera bag that had contained the pipe, Trooper McPherson discovered a separate zippered compartment containing several baggies—some were empty; some contained residue—one that was closed with a twist-tie contained a yellowish substance that tested positive for methamphetamine. As a result of this new discovery, on September 1, 2010, an arrest warrant was served on Heath for possession of a controlled substance (methamphetamine) in the first degree, first offense. He was indicted on that single charge on September 10, 2010.
Trooper McPherson performed a field test.
At final sentencing, the trial court mentioned Heath had a similar conviction in Hopkins County in 2005.
After pleading not guilty at arraignment, a motion to suppress was filed on Heath's behalf. The entire motion read:
Comes now, the Defendant, James Bradley Heath, by and through counsel, and pursuant to [Kentucky Rules of Criminal Procedure] RCr 9.78, and respectfully requests that this Court suppress the evidence against him. As grounds for this motion, the Defendant believes that said evidence was obtained in violation of the 4th and 14th Amendments to the United States Constitution and in violation of Section 10 of the Kentucky Constitution.The motion was heard January 31, 2011. Trooper McPherson was the sole witness.
WHEREFORE, the Defendant respectfully requests that this court have a hearing on the his (sic) Motion to Suppress and grant the relief requested herein.
At the conclusion of the evidence, the trial court denied the suppression motion from the bench and on February 10, 2011, entered a written order detailing its findings and conclusions. The court ruled: execution of the "traffic checkpoint" was "constitutionally sound" because it followed a "systematic plan" that limited officer discretion on which vehicles would be stopped; stops at traffic checkpoints are to be as brief as necessary to achieve their stated purpose, but when an officer has "reasonable articulable suspicion" to believe a driver is engaged in illegal activity, he may question a driver further; Trooper McPherson was authorized to question Heath and conduct a methcheck because Heath's pupils did not respond to light; a positive methcheck "further heightened McPherson's reasonable suspicions" that Heath was impaired due to drugs; as a result, the officer was authorized to order Heath to exit the vehicle and submit to field sobriety tests; Heath's failing of the HGN test and his refusal to perform other tests gave Trooper McPherson probable cause to arrest Heath for driving under the influence of drugs; and, incident to Heath's arrest, Trooper McPherson was authorized to search Heath's body and the "entire passenger compartment of his vehicle, as well [as] all open and closed containers found therein." Finally, citing United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983), the trial court stated it disagreed with Heath's attack on the pat-down not being based on a reasonable belief that Heath was armed and dangerous, but stated it would not discuss the claim further due to its prior analysis. As a result of the foregoing, the trial court deemed the stop and detention of Heath lawful, the seized evidence admissible, and the motion to suppress denied. Defense counsel did not request additional findings at the conclusion of the hearing.
Immediately after the trial court announced its ruling from the bench, Heath entered a conditional guilty plea to the single count of possession, reserving the right to appeal denial of his suppression motion. The trial court determined Heath's guilty plea was made knowingly and voluntarily and was supported by a factual basis. At final sentencing on February 15, 2010, the trial court sentenced Heath to a prison term of two and one-half years, consistent with the Commonwealth's recommendation. Heath was allowed to remain free on $2,500.00 bond pending appeal. This appeal of the final judgment and the order denying the suppression motion followed. Having considered the briefs, the record and the law, we affirm.
ANALYSIS
Since this appeal concerns the propriety of denying a suppression motion, we begin with our standard of review. Pre-trial suppression motions are governed by RCr 9.78 which requires a hearing outside the jury's presence and subsequent entry of findings of fact which, "[i]f supported by substantial evidence . . . shall be conclusive." On appeal, we review a trial court's findings of fact solely for clear error and defer to all reasonable inferences flowing from the evidence. Commonwealth v. Whitmore, 92 S.W.3d 76, 79 (Ky. 2002) (citing Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)). If the findings of fact are supported by substantial proof, we then review the trial court's application of the law to the facts de novo. Commonwealth v. Pride, 302 S.W.3d 43, 49 (Ky. 2010). If the findings of fact are not supported by substantial proof, they are clearly erroneous and reversal may be appropriate. Moore v. Assente, 110 S.W.3d 336, 354 (Ky. 2003).
Heath's first argument is that the trial court failed to find the checkpoint was supported by a proper purpose. As expressed in Commonwealth v. Buchanon, 122 S.W.3d 565, 568 (Ky. 2004),
[i]t is well established that a highway stop of motorists at a government-operated checkpoint effectuates a seizure for Fourth Amendment purposes. Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 450, 110 S.Ct. 2481, 2485, 110 L.Ed.2d 412, 420 (1990); United States v. Martinez-Fuerte, 428 U.S. 543, 556, 96 S.Ct. 3074, 3082, 49 L.Ed.2d 1116, 1128 (1976). In order to pass constitutional muster, the seizure must be deemed reasonable, which requires "a weighing of the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty." Brown v. Texas, 443 U.S. 47, 50-51, 99 S.Ct. 2637, 2640, 61 L.Ed.2d 357, 362 (1979). The Fourth Amendment requires that generally, in order to be reasonable, all searches and seizures must be accompanied by an individualized suspicion of wrongdoing. Chandler v. Miller, 520 U.S. 305, 308, 117 S.Ct. 1295, 137 L.Ed.2d 513 (1997). The United StatesIn City of Indianapolis v. Edmond, 531 U.S. 32, 46-48, 121 S.Ct. 447, 455-56, 148 L.Ed.2d 333 (2000), the United States Supreme Court added a preliminary inquiry to the aforementioned balancing test—trial courts must also determine each checkpoint is based on a lawful primary purpose. While the broad purpose of detecting "ordinary criminal wrongdoing" was struck down in Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), efforts closely related to policing an international border, Martinez-Fuerte, supra, and removing drunk drivers from the road, Sitz, supra, have been upheld.
Supreme Court has recognized certain situations, however, where individualized suspicion is not required in order for the brief seizure of motorists to be reasonable.
Heath claims he preserved this argument in his written suppression motion, by the trial court's denial of his motion, and with his subsequent entry of a conditional guilty plea. Having reviewed the motion, the suppression hearing, the guilty plea colloquy, the trial court's ruling from the bench, and its written order, we disagree.
Although not argued by the Commonwealth, nowhere in the written suppression motion nor during the suppression hearing does Heath question the purpose of the checkpoint. While defense counsel cross-examined Trooper McPherson about who authorized the checkpoint, how it was operated, its length, whether he knew Heath before encountering him at the checkpoint, and whether he frisked Heath out of fear for his own safety, there was no inquiry about KSP's goal in setting up the checkpoint. From the start of the hearing, Trooper McPherson referred to the stop as a "traffic safety checkpoint," and the prosecutor followed suit, as did the trial court in its written order. During Trooper McPherson's earlier grand jury testimony, which defense counsel had him read aloud from a transcript, the witness had also referred to the event as a "traffic safety checkpoint." Defense counsel even used the phrase "traffic safety checkpoint" during her closing argument at the hearing. If Heath doubted the checkpoint's purpose or whether that purpose was proper, it was incumbent upon him to pose that question to the trial court. He did not, and the issue was therefore, unpreserved for our review.
As explained in Fischer v. Fischer, 348 S.W.3d 582, 588 (Ky. 2011),
[i]t has long been this Court's view that specific grounds not raised before the trial court, but raised for the first time on appeal will not support a favorable ruling on appeal. Most simply put, "[a] new theory of error cannot be raised for the first time on appeal." Springer v. Commonwealth, 998 S.W.2d 439, 446 (Ky. 1999) (discussing specifically a directed verdict issue); see, e.g., Harrison v. Leach, 323 S.W.3d 702, 708-09 (Ky. 2010); Ten Broeck Dupont, Inc. v. Brooks, 283 S.W.3d 705, 734 (Ky. 2009) ("More importantly, this precise argument was never made in the trial court. An appellate court 'is without authority to review issues not raised in or decided by the trial court.' ") (quoting Regional Jail Authority v. Tackett, 770 S.W.2d 225, 228 (Ky. 1989)); Combs v. Knott County Fiscal Court, 283 Ky. 456, 141 S.W.2d 859, 860 (1940) ("[A]ppellant is precluded from raising that question on appeal because it was not raised or relied upon in the court below. It is an unvarying rule that a question not raised or adjudicated in the court below cannot be considered when raised for the first time in this court.").By failing to raise the issue in the trial court, we are unauthorized to review the claim now in the absence of a request for palpable error review. The reasons for the prohibition on review are laudable. Unless the trial court has the opportunity to develop the record, hear argument on the point, and issue a ruling, as a Court of review, we have nothing to review.
Claiming the issue was preserved, Heath has not requested palpable error review.
While not formally considering the alleged deficiency due to lack of preservation, the checkpoint would have been permissible under Sitz if instituted for the purpose of "traffic safety." In light of the directive announced in Edmond, the Commonwealth should have established the purpose of the checkpoint. Here, the prosecutor did not question Trooper McPherson about what KSP hoped to achieve with the checkpoint and how its design was tailored to achieve the desired goal. Similarly, to avoid challenges, trial courts should make explicit findings on the record regarding a checkpoint's purpose, together with any conclusions drawn from those facts. Generalized conclusions, such as stating a checkpoint was operated in a "constitutionally sound manner," do not satisfy the "purpose inquiry at the programmatic level to determine if the program is justified by a lawful primary purpose" mentioned in Buchanon, 122 S.W.3d at 569, and mandated by Edmond.
Heath's next two claims are that the pat-down search did not satisfy the two prongs discussed in Terry v. Ohio, 392 U.S. 1, 24, 88 S.Ct. 1868, 1881, 20 L.Ed.29 889 (1968), wherein the United States Supreme Court approved a protective search for weapons on less than probable cause to arrest because it is reasonable to allow officers "to neutralize the threat of physical harm." In explaining its holding, the Court wrote:
where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. Such a search is a reasonable search under the Fourth Amendment, and any weapons seized may properly be introduced in evidence against the person from whom they were taken.Id., 392 U.S. at 30-31, 88 S.Ct. at 1884-85. Thus, a Terry frisk is permitted when an officer believes a subject may be engaged in criminal activity and he may be armed and dangerous.
Heath argues his fixed pupils alone did not give Trooper McPherson reason to suspect he was engaged in criminal activity so as to justify the pat-down. Prior to the frisk, Trooper McPherson knew four important facts—not just one. He knew Heath's eyes did not dilate when exposed to light; he knew fixed pupils were indicative of a person being under the influence of a combination of narcotics; he knew he had received a tip within the last sixty days that Heath was buying a large quantity of pseudoephedrine each month; and, the methcheck he had just performed in his cruiser confirmed Heath's monthly purchases of this key component in the manufacture of methamphetamine. Based on these four factors, Trooper McPherson could have reasonably suspected criminal activity was afoot and therefore, satisfied the first Terry prong.
A footnote in Heath's brief states, "[t]he trial court found Trooper McPherson did a 'quick methcheck' between the time he got Mr. Heath out of the vehicle and when he searched him." Our review of the opinion reveals the trial court actually wrote, "[u]pon completing the 'methcheck,' McPherson asked [Heath] to exit the vehicle." Thus, the methcheck occurred while Heath was still in his vehicle and clearly preceded the pat-down.
Heath next claims the pat-down search culminating in his arrest was not based on reasonable articulable suspicion that he posed a threat. He argues that since Trooper McPherson testified he did not have probable cause to arrest him due to his fixed pupils alone, he should have been allowed to proceed through the checkpoint without further inquiry. Again, we disagree.
When Trooper McPherson encountered Heath at the checkpoint, he did not know whether Heath was armed and dangerous, but certainty was not required for a permissible pat-down. "The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger." Terry, 392 U.S. at 27, 88 S.Ct. at 1883. All that was required was a "reasonable suspicion that he may be armed and dangerous." United States v. Noble, 364 Fed.Appx. 961, 965 (C.A.6, 2010) (citing Arizona v. Johnson, 555 U.S. 323, 129 S.Ct. 781, 787 (2009)).
Applying Terry to the facts at hand, we know from Trooper McPherson's testimony that during his six years with the KSP he had made numerous traffic stops and worked several checkpoints. Upon encountering Heath at 1:19 a.m., he believed criminal activity was afoot because Heath's pupils did not react to light—a sign Heath was under the influence of a combination of drugs—which lead him to believe Heath was an impaired driver. In addition to Heath's fixed pupils, Trooper McPherson knew from a tip that Heath was purchasing the legal maximum of pseudoephedrine each month, and had twice verified that tip through methcheck. Trooper McPherson testified he frisked Heath out of fear for his safety and ran his hand across each of Heath's pockets for anything that could harm him.
Methcheck conducted both when tip received and again at checkpoint.
In determining whether Trooper McPherson acted reasonably, we must give "due weight . . . not to his inchoate and unparticularized suspicion or 'hunch,' but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience." Terry, 392 U.S. at 28, 88 S.Ct. at 1883 (citing Brinegar v. United States, 338 U.S. 160, 174-76, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949)). Based on Trooper McPherson's years of service as a police officer, and his specialized training in individuals under the influence of drugs, he recognized Heath had consumed a combination of narcotics. Based on his experience, he could infer Heath was involved in the drug culture due to the quantity of pseudoephedrine he was purchasing each month. Trooper McPherson may also have known that people involved in the illegal drug culture are often armed. See Noble, 364 Fed.Appx. at 965 (internal citations omitted). Heath was stopped at the checkpoint at 1:19 a.m. on a rural road. The United States Supreme Court has recognized "roadside encounters between police and suspects are especially hazardous." Michigan v. Long, 463 U.S. 1032, 1050, 103 S.Ct. 3469, 3481, 77 L.Ed.2d 1201 (1983). Based on the totality of the circumstances, we are convinced Trooper McPherson reasonably suspected Heath was armed and dangerous, making the Terry frisk he performed wholly consistent with the Fourth Amendment. Noble, supra. No constitutional violation occurred.
The next claim is that Trooper McPherson exceeded the permissible bounds of a Terry frisk by removing two loose pills from Heath's pants pocket. Commonwealth v. Jones, 217 S.W.3d 190, 195 (Ky. 2006), describes the plain feel exception to the warrant requirement.
Heath's brief states, "[a]fter finding the two Lortab pills in the frisk, Trooper McPherson arrested Mr. Heath for possession of the pills." This is inconsistent with the uniform citation which says Heath was arrested "for DUI and poss Drug Paraphernalia." According to the trial court opinion, Heath was charged with "controlled substance prescription not in the original container," but we cannot independently verify that that statement from the record.
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When a police officer lawfully pats down the outer clothing of a suspect and feels an object whose contour or mass makes its identity immediately apparent, there is no violation of privacy beyond that already permitted by the pat down search for weapons.While Trooper McPherson immediately recognized during the frisk that there were two loose pills in Heath's pocket, he readily acknowledged he did not know the identity of those pills until he retrieved them and saw they were Lortabs. For the officer to remove the pills without conducting an additional search that went beyond a Terry frisk, upon touching the pills he had to immediately know they were contraband—in other words, something other than aspirin. Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993); Commonwealth v. Crowder, 884 S.W.2d 649, 652 (Ky. 1994). On cross-examination, Trooper McPherson agreed the two pills could have been Ibuprofen for all he knew. Because he did not immediately recognize the pills as contraband, there must be some justification for his retrieval of them.
In this case, however, discovery of the brass knuckles in another of Heath's pockets, justified a further search. Brass knuckles are a deadly weapon. Martin v. Commonwealth, 257 Ky. 591, 78 S.W.2d 786 (1935). Carrying a concealed deadly weapon is either a Class A misdemeanor or a Class D felony, depending upon whether the subject has a prior felony conviction "in which a deadly weapon was possessed, used, or displayed[.]" KRS 527.020(10). Thus, Heath was subject to arrest by Trooper McPherson for having the brass knuckles in his pants pocket. Therefore, the officer was permitted to search Heath and the area in his immediate control. McCloud v. Commonwealth, 286 S.W.3d 780, 785 (Ky. 2009). Thus, removal of the two pills as part of a search incident to arrest was entirely proper.
Heath's final complaint is that the trial court applied the wrong law in upholding Trooper McPherson's search of the entire vehicle incident to his arrest. Citing Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), Heath suggests the search of his vehicle—which produced the methamphetamine that resulted in his indictment and conviction—was improper because he had already been secured in a police cruiser when the search occurred and therefore, he could not have reached the vehicle to destroy evidence or access a weapon.
Contrary to Heath's argument, Gant did not foreclose search of a vehicle for evidence of the crime of arrest just because the subject can no longer access the vehicle. Gant states:
we also conclude that circumstances unique to the vehicle context justify a search incident to a lawful arrest when it is "reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle." Thornton [v. United States], 541 U.S. [615,] 632, 124 S.Ct. 2127 (SCALIA, J., concurring in judgment). In many cases, as when a recent occupant is arrested for a traffic violation, there will be no reasonable basis to believe the vehicle contains relevant evidence. See, e.g., Atwater v. Lago Vista, 532 U.S. 318, 324, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001); Knowles v. Iowa, 525 U.S. 113, 118, 119 S.Ct. 484, 142 L.Ed.2d 492 (1998). But in others, including [New York v.] Belton [. 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981)] and Thornton, the offense of arrest will supply a basis for searching the passenger compartment of an arrestee's vehicle and any containers therein.Gant, 556 U.S. at 343, 129 S.Ct. 1719. Thus, a showing of access to the vehicle by the subject is not required for a permissible search incident to arrest.
Our Supreme Court analyzed and applied Gant in Rose v. Commonwealth, 322 S.W.3d 76, 80 (2010), to declare a search incident to arrest unconstitutional. Two outstanding arrest warrants were served on Rose and she was placed in the back of a police cruiser before the vehicle was searched. The arresting officer in Rose testified "he was not searching the vehicle in an attempt to locate evidence relating to the two warrants." That fact is a critical distinction between Rose and the case we review today. Trooper McPherson testified he searched Heath's vehicle for evidence of narcotics due to Heath's fixed pupils. Specifically, he searched for drugs that could be used in combination with the Lortabs to produce the fixed pupils. Thus, the search of Heath's vehicle was proper under Gant's alternative rule which allows a vehicle to be searched "even when the arrestee is secured if he has a reasonable suspicion that the vehicle harbors evidence of the crime of arrest[.]" Rose, 322 S.W.3d at 80 (Emphasis in original). Here, Trooper McPherson was not "rummag[ing] at will." Gant, 566 U.S. at 345, 129 S.Ct. at 1720. He conducted a focused searched for evidence of Heath being an impaired driver which is permissible under Gant.
For the foregoing reasons, we affirm the Muhlenberg Circuit Court's denial of the motion to suppress and the final judgment.
ALL CONCUR. BRIEFS FOR APPELLANT: Brandon Neil Jewell
Assistant Public Advocate
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Bryan D. Morrow
Assistant Attorney General
Frankfort, Kentucky