Opinion
NO. 2012-CA-000737-MR
05-10-2013
BRENT STEVENS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Elmer J. George Lebanon, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Frankfort, Kentucky Courtney J. Hightower Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JESSAMINE CIRCUIT COURT
HONORABLE C. HUNTER DAUGHERTY, JUDGE
ACTION NO. 11-CR-00235
OPINION
AFFIRMING
BEFORE: MOORE, NICKELL, AND TAYLOR, JUDGES. MOORE, JUDGE: Brent Stevens appeals the Jessamine Circuit Court's judgment convicting him of complicity to traffic in a controlled substance, first-degree. After a careful review of the record, we affirm because the officers had probable cause to stop Stevens.
I. FACTUAL AND PROCEDURAL BACKGROUND
Stevens and co-defendant Robert Ferguson were indicted on the charge of complicity to traffic in a controlled substance, first-degree, based upon allegations that they sold oxycodone to Jacob Stamper. Stevens moved to suppress all the evidence in the case on the basis that "the officers did not have a reasonable, articulate suspicion that [he] had violated the law in any manner at the time of the police detention."
Co-defendant Ferguson was also charged in this indictment with the counts of possession of marijuana and of being a second-degree persistent felony offender.
A hearing was held on the motion to suppress, during which Scott Cottingham, who was employed as a Nicholasville Police Officer at the time of the events in question, testified that Detective Nolan Bruner came across the radio and asked if there was an officer in the vicinity of Elizabeth Drive and Highway 27. Officer Cottingham responded with his location, and Detective Bruner explained that he was in an unmarked car and that he and other officers were witnessing what appeared to be a drug transaction occurring. Officer Cottingham went to that location, which was a Shell gas station. As he was pulling into the parking lot, he saw a man approximately ten feet from the suspects' vehicle, and the vehicle began pulling out of its parking space. There were two people in the suspects' vehicle, which was a Hyundai. Detective Bruner told Officer Cottingham, whom he was speaking with by cellular telephone, to stop the Hyundai. Officer Cottingham pulled in behind the Hyundai, blocking it in, and activated his emergency lights. He exited his police cruiser and made contact with the driver of the Hyundai, who was Stevens. Officer Cottingham asked Stevens to exit his vehicle, and he placed Stevens in handcuffs. The officer attested that at that point, Detective Bruner approached and informed Officer Cottingham that the person who had been ten feet away from the Hyundai when Officer Cottingham arrived on the scene had exited the Hyundai shortly before he arrived, and that person told Detective Bruner that he purchased fifty oxycodone pills for $1,000.00 from inside the Hyundai.
Officer Cottingham testified during the hearing that he no longer worked for the Nicholasville Police Department; he now works for the Versailles Police Department.
Detective Bruner testified that on the afternoon in question, he, Detective Crouch, and Sergeant Prather were in the area of the Shell station when he saw a black Tacoma vehicle that he believed belonged to a known drug dealer. Detective Bruner explained that gas stations are known for being places where drug deals often occur, and this particular Shell station was next door to a hotel that had been the subject of past complaints about drug activity. On the day in question, the detectives turned their vehicle around. When they came back to the Shell station, the Tacoma had changed locations within the Shell parking lot. Detective Bruner saw that the Hyundai was also in the Shell station's parking lot. Stevens and Ferguson were in the Hyundai. The Hyundai also changed parking places, moving closer to the Shell Station. Stamper was standing outside the Tacoma, and he went into the Shell Station. Ferguson also entered the Shell station. Stamper and Ferguson met inside the gas station, exited the station together, and walked to the Hyundai and entered the vehicle. Ferguson climbed into the front passenger seat and Stamper into the backseat. Detective Bruner attested that he did not see the men in the Hyundai exchange money or drugs. Stamper did not remain in the vehicle long. Once he began exiting the vehicle, the officers pulled their cars in behind the Hyundai.
No first names were provided for Detective Crouch or Sergeant Prather.
As it turned out, this was not the Tacoma that Detective Bruner initially believed it to be, but it is unclear when he discovered that this Tacoma did not belong to the person he thought owned the vehicle.
As Stamper was walking away from the scene, he was stopped by Detective Crouch. Because Stamper did not appear to want to stop and was "wailing his hands around," Detective Crouch put his hands on Stamper to stop him. At that point, Detective Bruner walked over to Stamper and Detective Crouch. The two detectives began interrogating Stamper. Detective Bruner testified that they did not read Stamper his Miranda rights. Stamper told the detectives that he had just purchased fifty oxycodone pills inside the Hyundai.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
The circuit court denied Stevens's motion to suppress, reasoning as follows:
Officer Cottingham had a reasonable, articulable suspicion, based on having been told by other officers that they thought they had just observed Defendants engaged in a drug deal, that a crime was in process. Cottingham, therefore, had the authority to stop the vehicle. The officers' perception that they had observed a drug deal was reasonable based on circumstances described by the officer, i.e., the location of vehicles and the suspicious actions of the participants.
Regardless of the validity of the stop, the officers obtained independent information from the buyer of the drugs that Defendants had just sold the drugs to him. That information was not fruit from the stop of the vehicle. The information was sufficient to establish probable cause for the arrest of Brent Stevens and Robert Ferguson.
The Commonwealth provided Stevens an Offer on a Plea of Guilty, in which the Commonwealth proffered that if Stevens entered a guilty plea to the charge and provided "truthful testimony in any future proceeding against Robert Ferguson," the Commonwealth would recommend a sentence of five years of imprisonment and forfeiture of the $1,010.00 seized. Stevens moved to enter a conditional guilty plea to the charge, which he conditioned on his right to appeal the denial of his suppression motion. The circuit court accepted his plea and sentenced him to five years of imprisonment, which was probated.
The court's judgment did not state that Stevens's guilty plea was conditioned on his right to appeal the denial of his motion to suppress. However, the Commonwealth does not dispute that Stevens's guilty plea was conditional. Additionally, Stevens's motion to enter a guilty plea specified that he was moving to enter a conditional guilty plea, reserving the right to appeal the denial of his motion to suppress. Further, during the plea colloquy, Stevens's counsel informed the court that he was entering a conditional guilty plea, and the court acknowledged this verbally. Thus, pursuant to Dickerson v. Commonwealth, 278 S.W.3d 145, 148-49 (Ky. 2009), Stevens sufficiently preserved his right to appeal the denial of his motion to suppress.
Stevens now appeals, contending that: (a) the circuit court erred in concluding that the officers had a reasonable, articulable suspicion to justify stopping Stevens; and (b) the circuit court erred in concluding that the officer obtained independent information that provided the probable cause to arrest Stevens.
II. STANDARD OF REVIEW
The Kentucky Supreme Court has held that the test to use on appeal in reviewing a ruling concerning a Terry stop and warrantless search is: "First, review the factual findings of the circuit judge to see if they are supported by substantial evidence, RCr[] 9.78, and then review the ruling on the motion to suppress de novo to see whether the decision was correct as a matter of law." Commonwealth v. Pride, 302 S.W.3d 43, 49 (Ky. 2010). We review findings of fact for clear error, and we "give due weight to inferences drawn from those facts by resident judges and local law enforcement officers." Stewart v. Commonwealth, 44 S.W.3d 376, 380 (Ky. App. 2000) (internal quotation marks and citation omitted). We also "give due weight . . . to the circuit court's findings on the officers' credibility." Baltimore v. Commonwealth, 119 S.W.3d 532, 539 (Ky. App. 2003).
Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
Kentucky Rule of Criminal Procedure.
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III. ANALYSIS
Stevens first alleges that the circuit court erred in concluding that the officers had a reasonable, articulable suspicion to justify stopping him. "The Fourth Amendment of the United States Constitution and Section Ten of the Kentucky Constitution prohibit unreasonable searches and seizures by police officers. There are three types of interaction between police and citizens: consensual encounters, temporary detentions generally referred to as Terry stops, and arrests." Garcia v. Commonwealth, 335 S.W.3d 444, 446 (Ky. App. 2010) (internal quotation marks and citations omitted). This case involves a Terry stop. In order to justify a Terry stop,
the officer must be able to articulate more than a mere "inchoate and unparticularized suspicion or 'hunch'" of criminal activity. Rather, a warrantless stop of a vehicle is permissible if the officer has an "articulable and reasonable suspicion" of criminal activity.Greene v. Commonwealth, 244 S.W.3d 128, 133-34 (Ky. App. 2008) (citations omitted).
The objective justification for the officer's actions must be measured in light of the totality of the circumstances. When considering the totality of the circumstances, a reviewing court should take care not to view the factors upon which police officers rely to create reasonable suspicion in isolation. Courts must consider all of the officers' observations, and give due weight to the inferences and deductions drawn by trained law enforcement officers.
As the United States Supreme Court has remarked, probable cause is a flexible, common-sense standard. It merely requires that the facts available to the officer would "warrant a man of reasonable caution in the belief," that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false. A "practical, nontechnical" probability that incriminating evidence is involved is all that is required.Williams v. Commonwealth, 147 S.W.3d 1, 7-8 (Ky. 2004) (citation omitted).
In the present case, the detectives observed a Tacoma vehicle that was believed to belong to a known drug dealer at the Shell Station; they observed both the Tacoma and the Hyundai, which was driven by Stevens, change locations within the Shell station's parking lot; they knew that drug deals often occur at gas stations, and that there had been complaints of drug activity at the hotel next door to the Shell station in the past; they observed Stamper standing outside the Tacoma, then going into the Shell station, walking out of the station with Ferguson, getting into the back seat of the Hyundai while Ferguson climbed into the front passenger seat, and Stamper exiting the Hyundai minutes later. Considering the totality of the circumstances, the officers had a reasonable, articulable suspicion to justify stopping Stevens, who was driving the Hyundai. Consequently, this claim lacks merit, and the circuit court did not err in denying Stevens's motion to suppress. Having so found, all other issues are moot and we decline to review them.
Accordingly, the judgment of the Jessamine Circuit Court is affirmed.
ALL CONCUR BRIEF FOR APPELLANT: Elmer J. George
Lebanon, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Frankfort, Kentucky
Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky