Opinion
NO. 2019-CA-000087-MR
01-24-2020
ALLEN CHARLES WILLIAM BURGESS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Molly Mattingly Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Kristin Conder Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE ERNESTO SCORSONE, JUDGE
ACTION NO. 15-CR-00283 OPINION
AFFIRMING
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BEFORE: GOODWINE, TAYLOR, AND K. THOMPSON, JUDGES. GOODWINE, JUDGE: Allen Burgess appeals a Fayette Circuit Court judgment imposing a five-year sentence based on a conditional guilty plea to a convicted felon in possession of a handgun charge. Burgess argues the trial court incorrectly denied his motion to suppress evidence based on an alleged unconstitutional stop prior to his arrest. Finding no error, we affirm.
The trial court ordered the five-year sentence to run two years concurrent to any other sentence and three years consecutive.
BACKGROUND
Deputy United States Marshal Tyrone Bartley and Lexington Police Department Officer Wayne Terry were members of the U.S. Marshal task force, assigned with executing arrest warrants. On February 6, 2015, Deputy Marshal Bartley assisted Officer Terry on an outstanding warrant for Martaveus Bell, a murder suspect. During this operation, Officer Terry learned Bell and two of his "associates," "D-Tod" and "Rizzy," were possibly at the Westminster Apartment complex in Lexington, Kentucky. Other task force officers informed them that Bell and his associates may be armed and dangerous. Based on this information, Officer Terry and Deputy Marshal Bartley proceeded to the apartment complex.
Arriving at the complex later in the day, the two officers approached D-Tod's apartment, C-31. Once at the apartment, Officer Terry, Deputy Marshal Bartley, and other task force officers searched the residence. Bell was not there. After the search, Officer Terry and Deputy Marshal Bartley continued with their investigation, speaking with individuals on the scene and acquaintances of Bell. During one of these conversations, the two officers learned from Rizzy's girlfriend that Bell was, in fact, inside the apartment during the search and was hiding under a bed.
Based on this new information, the two officers returned to the complex at 1:30 a.m., setting up a space to effectively surveil the area. While surveilling the complex, the officers observed three men continually going in and out of the building entrance near D-Tod's apartment. Being in a dimly lit area, along with it being 1:30 a.m., neither Officer Terry nor Deputy Marshal Bartley could identify any of the individuals observed. They also observed a running vehicle in the complex's parking lot, which was known to be D-Tod's. One of the three men approached the vehicle, returning to the inside of the apartment complex after a brief conversation with the driver.
Once the three men began entering inside the complex—near D-Tod's apartment—Officer Terry and Deputy Marshal Bartley notified the task force on the far side of the complex to move in for a protective sweep. They did not want to lose the individuals in an apartment, so they approached the complex and made contact with the three men at the bottom of the stairs. Given their inability to identify any of the three men, along with the fact that those associated with Bell were said to be armed and dangerous, the officers approached the men with guns drawn. Different officers approached each of the three men. Burgess was one of the three men, and Deputy Marshal Bartley approached him during the protective sweep.
Deputy Marshal Bartley had arrested people before in the area. Given this information, coupled with the fact that it was at night and Bell's associates were suspected to be armed and dangerous, he believed the three men were possibly armed with weapons. At that point, the officers placed the three men up against the wall, asking if they had anything on them, such as weapons. At that point, Burgess identified himself and told Deputy Marshal Bartley that he had a gun in his right, front pocket. Deputy Marshal Bartley proceeded to remove a loaded gun from Burgess's pocket. Another reporting officer on the scene, Officer Harris, arrested Burgess and took him into custody.
On March 24, 2015, the Fayette County grand jury indicted Burgess on two counts: (1) convicted felon in possession of a handgun; and (2) second degree persistent felony offender. One year later, Burgess filed a motion to suppress, arguing there was no reasonable suspicion that he had committed any crime or that criminal activity was afoot when Deputy Marshal Bartley conducted the Terry frisk. The trial court denied the motion to suppress, and Burgess entered a conditional guilty plea to one count of convicted felon in possession of a handgun. The Commonwealth dismissed the persistent felony offender charge. On December 13, 2018, the trial court sentenced Burgess to five years, running two years concurrent to any other sentence and three years consecutive. It entered the judgment on December 19, 2018. This appeal followed.
Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). --------
STANDARD OF REVIEW
Our review of a trial court's denial of a motion to suppress is twofold. First, we review the trial court's findings of fact under a clearly erroneous standard. Davis v. Commonwealth, 484 S.W.3d 288, 290 (Ky. 2016). Those findings will be conclusive, if supported by substantial evidence. Id. The test for substantiality of evidence is whether the evidence, when taken alone, or in the light of all the evidence, has sufficient probative value to induce conviction in the minds of reasonable persons. Kentucky State Racing Comm'n v. Fuller, 481 S.W.2d 298, 308 (Ky. 1972). Second, if we deem the trial court's findings are supported by substantial evidence, we "undertake a de novo review of the [its] application of the law to the facts to determine whether its decision to deny the motion to suppress was correct as a matter of law." Davis, 484 S.W.3d at 290.
ANALYSIS
First, we shall review whether the trial court made its findings of fact in clear error. We note there are no written findings for our review, but "we see no reason why oral findings made from the bench . . . cannot satisfy the [defendant's] due process [rights], [since] we possess a video record that is sufficiently complete to allow the parties and us to determine [the evidence for which the trial court relied.]" Commonwealth v. Alleman, 306 S.W.3d 484, 487 (Ky. 2010) (citations omitted); see Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). And "[a]lthough we agree that written findings greatly facilitate appellate review, . . . we do not believe this is a case where we are 'left in the dark' as to the basis for the trial court's ruling." Coleman v. Commonwealth, 100 S.W.3d 745, 749 (Ky. 2002), abrogated on other grounds by Bratcher v. Commonwealth, 424 S.W.3d 411 (Ky. 2014).
Based on our review, the trial court's findings were backed by substantial evidence. It listened to three, separate witness testimonies, all of which coalesced with each other. The only discrepancy pertains to the fact of Burgess's admission to Deputy Marshal Bartley that he had a gun. Deputy Marshal Bartley testified that he admitted this to him, prior to the frisk. Officer Terry noted that he did not hear Burgess say this but conceded that he was preoccupied with his own witness and not listening. Officer Harris testified that he did not hear Burgess make any statements but conveyed that: (1) he did not have any contact with Burgess until he placed him under arrest; and (2) most of his submitted report was based on secondhand information conveyed to him by Deputy Marshal Bartley.
Thus, the trial court's determination to make a finding that Burgess did admit to having a gun hinged solely on Deputy Marshal Bartley's testimony and credibility. Under Kentucky law, "[a]t a suppression hearing, the ability to assess the credibility of witnesses and to draw reasonable inferences from the testimony is vested in the discretion of the trial court." Sowell v. Commonwealth, 168 S.W.3d 429, 431 (Ky. App. 2005). On cross examination, Burgess's counsel never brought any facts to light that would put Deputy Marshal Bartley's credibility into question. And in our review, we should not "reevaluate the evidence or substitute [our] judgment of the credibility of the witnesses for that of the [trial court]." Commonwealth v. Suttles, 80 S.W.3d 424, 426 (Ky. 2002) (citations omitted). Based on this fact, as well as giving due deference to the inferences drawn by the trial court from the facts before it, we hold its findings were based on substantial evidence and, therefore, were not clearly erroneous.
Second, we now turn to the central question in this case: Did the trial court err in finding that the Terry stop was proper? If the stop was lawful, then the court properly denied the motion to suppress. We hold that the trial court did not err in concluding Deputy Marshal Bartley's stop and frisk was constitutional because it was based on a reasonable suspicion that criminal activity was afoot.
Under Terry v. Ohio, a police officer may briefly detain a person for investigative purposes if the officer has a reasonable suspicion, supported by articulable facts, that the person has engaged or is about to engage in criminal activity. And if the officer believes the detained person is armed and dangerous, the officer may also frisk for weapons.Williams v. Commonwealth, 364 S.W.3d 65, 66-67 (Ky. 2011) (footnote and citation omitted). "[T]he level of articulable suspicion necessary to justify a stop is considerably less than proof of wrongdoing by preponderance of the evidence." Id. at 69 (footnote and citation omitted).
In the case at hand, case law supports the trial court's conclusion that the Terry stop was justified and appropriate. Officer Terry, Deputy Marshal Bartley, and the remainder of the task force performed a protective sweep on the Westminster apartment complex, specifically the area that surrounded apartment C-31. During this process, they approached three men suspected of association with Bell and believed to be armed and dangerous. Under Kentucky law, a protective search based on reasonable articulable suspicion must be strictly limited to that which is necessary for the discovery of weapons that could be used to harm the officers or others nearby. Commonwealth v. Whitmore, 92 S.W.3d 76, 79 (Ky. 2002) (citations omitted).
The crux of this matter hinges on whether Deputy Marshal Bartley's protective search was based on a reasonable articulable suspicion. A reasonable suspicion requires "at least a minimal level of objective justification for making the stop." Bauder v. Commonwealth, 299 S.W.3d 588, 591 (Ky. 2009). The fact that certain conduct may be construed as consistent with innocent behavior does not mean that this conduct may not form the basis for reasonable suspicion. See Simpson v. Commonwealth, 834 S.W.2d 686, 688 (Ky. App. 1992). To determine if officers possessed the requisite reasonable suspicion of criminal activity, we must analyze the totality of the circumstances that existed before the stop took place. Commonwealth v. Kelly, 180 S.W.3d 474, 477 (Ky. 2005) (citing Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990)).
Here, we agree with the Commonwealth that Burgess is attempting to parse the information relied on by Officer Terry and Deputy Marshal Bartley in arguing there was no reasonable suspicion. But this practice contradicts this Court's precedent. Under past precedent, "a reviewing court should not view the factors relied upon by the police officer(s) to create reasonable suspicion in isolation but must consider all of the officer(s) observations and give due regard to inferences and deductions drawn by them from their experience and training." Baltimore v. Commonwealth, 119 S.W.3d 532, 539 (Ky. App. 2003) (footnote and citations omitted).
The facts before us, as culminated together, give us reason to believe Deputy Marshal Bartley had a requisite, objective basis to form a reasonable suspicion that Burgess was carrying a weapon. First, the task force informed Officer Terry and Deputy Marshal Bartley of reliable information regarding Bell: (1) Bell was a murder suspect; (2) he was suspected to be armed and dangerous; and (3) his associates were suspected to be armed and dangerous. Second, while on patrol, Officer Terry and Deputy Marshal Bartley were informed by Probation and Parole officers that Bell was suspected of being at Westminster apartment. Third, once they arrived at the apartment and searched it, a citizen informant informed them Bell was, in fact, at the apartment in question, but was hiding. Tips from citizen informants are distinguished from other tips because citizen informants "are almost always bystanders or eyewitness-victims of the alleged criminal activity." Kelly, 180 S.W.3d at 478 (citation omitted). Therefore, when the tip is made by a citizen informant, it is "entitled to even greater deference[.]" Id. at 477 (citing Illinois v. Gates, 462 U.S. 213, 233, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). Fourth, once Officer Terry and Deputy Marshal Bartley arrived at Westminster apartment again, it was 1:30 a.m. This is coupled with the fact that this was a high crime area where Deputy Marshal Bartley had made arrests before. The mere presence in a high crime area at night is not per se sufficient evidence to justify an investigatory stop and seizure. Strange v. Commonwealth, 269 S.W.3d 847, 852 (Ky. 2008). But these circumstances can be used in an officer's formation of reasonable suspicion when coupled with other conduct and facts. Illinois v. Wardlow, 528 U.S. 119, 144, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). Fifth, the three men Officer Bell and Deputy Marshal Bartley observed were loitering near the apartment they searched earlier that day and made contact with an individual in a car, which was linked to Bell.
Given these facts and circumstances, there is an objective justification for Deputy Marshal Bartley believing Burgess was armed and dangerous, thus, sufficing the reasonable suspicion requirement for a protective search. Deputy Marshal Bartley believed the three men were associates, or at least associated with, Bell. In fact, he and Officer Terry testified that they could not rule out that one of the men was in fact Bell. Both were also informed that Bell and his associates may have been armed and dangerous. And given the nature of the area they were in, where Deputy Marshal Bartley had made arrests before, it was reasonable for Deputy Marshal Bartley to believe Burgess, along with the other two men, were associates of Burgess and armed. Therefore, under the totality of the circumstances test, there were justifiable grounds for Deputy Marshal Bartley to form a reasonable suspicion.
CONCLUSION
Because the seizure of Burgess was based on an articulable reasonable suspicion, the subsequent Terry stop, and recovery of a gun was proper. Therefore, we affirm the Fayette Circuit Court's denial of Burgess's motion to suppress.
TAYLOR, JUDGE, CONCURS.
THOMPSON, K., JUDGE, CONCURS IN RESULT ONLY. BRIEF FOR APPELLANT: Molly Mattingly
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Kristin Conder
Assistant Attorney General
Frankfort, Kentucky