Opinion
NO. 2014-CA-000375-MR
05-06-2016
ANTONIO CHAMES APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Karen Shuff Maurer Assistant Public Advocate Department of Public Advocacy 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NOT TO BE PUBLISHED APPEAL FROM KENTON CIRCUIT COURT
HONORABLE MARTIN J. SHEEHAN, JUDGE
ACTION NO. 13-CR-00723 OPINION
AFFIRMING BEFORE: D. LAMBERT, MAZE AND THOMPSON, JUDGES. THOMPSON, JUDGE: Antonio Chames appeals from the judgment convicting him after a jury trial. He challenges the trial court's order denying his motion to suppress.
On August 29, 2013, City of Covington police officers Robert Christian and Gideon Craymer responded to a report from dispatch that two white women were selling stolen property and narcotics out of a red minivan with Ohio plates located at 13th Street and Wheeler. Both officers testified this area is the highest crime area in the city and they have arrested multiple people in this area for narcotics. When the uniformed officers arrived at that corner, they observed the minivan and a group of people around it, including Chames. The officers were familiar with Chames and knew he had a felony record involving narcotics and suspected him of being involved in other drug transactions from observing a hand-to-hand transaction between him and another individual. After Officer Craymer stepped out of his vehicle, Chames made eye contact with him, turned and ran down an alley. The officers found this behavior suspicious and chased him, with Officer Craymer chasing him on foot and ordering him to stop and Officer Christian attempting to follow him in his vehicle. During the course of the pursuit, Officer Christian ordered Chames to stop two or three times and Officer Craymer ordered him to stop multiple times. Chames never complied.
While chasing him, Officer Craymer observed Chames pause and crouch over a sewer grate and manipulate a black object. Officer Craymer suspected Chames was disposing of evidence. Officer Craymer drew his gun and ordered Chames to the ground, but he again ran away.
Chames then jumped a fence onto private property and ran through a yard while the officers pursued him. Chames climbed another fence, entered and ran through another yard and then was attempting to climb a third fence when Officer Craymer pulled him off the fence to arrest him. Chames resisted and it took the assistance of Officer Christian to handcuff him. In the search incident to arrest, the officers discovered a handgun and a small quantity of marijuana.
Chames was originally charged with possession of a handgun by a convicted felon, fleeing or evading police in the second degree, resisting arrest and criminal trespassing in the second degree. Later, the grand jury indicted him for possession of a handgun by a convicted felon.
Chames filed a motion to suppress on the basis that the police lacked reasonable suspicion to detain him and lacked probable cause to arrest him. There was no dispute as to the facts surrounding the police officers' encounter with Chames; there was only a dispute as to the legal ramifications of those facts in whether there was reasonable suspicion or probable cause. Following testimony by Officers Christian and Craymer, the trial court denied the motion to suppress, finding "there was probable cause for the stop and/or arrest/detention and all evidence was properly seized."
After a jury trial, Chames was convicted of possession of a handgun by a convicted felon and sentenced to five and a half years' incarceration in accordance with the jury's recommendation.
In reviewing the denial of a motion to suppress, when the trial court's findings of fact are supported by substantial evidence they are conclusive. Payton v. Commonwealth, 327 S.W.3d 468, 471 (Ky. 2010). "Based on those findings of fact, we must then conduct a de novo review of the trial court's application of the law to those facts to determine whether its decision is correct as a matter of law." Id. at 471-72 (quoting Commonwealth v. Neal, 84 S.W.3d 920, 923 (Ky.App. 2002)).
Since the decision in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), it has been well established that the brief detention of a person by a police officer may constitute a seizure within the meaning of the Fourth Amendment of the United States Constitution, and as such may properly be undertaken only if the police officer has a reasonable suspicion based upon objective, articulable facts that criminal activity is afoot.Strange v. Commonwealth, 269 S.W.3d 847, 850 (Ky. 2008).
While an individual's mere presence in a high crime area is not sufficient for reasonable suspicion, id. at 852, proof of flight from police is "some evidence of a sense of guilt[,]" Rodriguez v. Commonwealth, 107 S.W.3d 215, 218 (Ky. 2003) (quoting Hord v. Commonwealth, 227 Ky. 439, 13 S.W.2d 244, 246 (1928)).
In Illinois v. Wardlow, 528 U.S. 119, 124-26, 120 S.Ct. 673, 676-77, 145 L.Ed.2d 570 (2000), the United States Supreme Court determined that the combination of a person's presence in an area of heavy narcotics trafficking and action of fleeing when noticing the police was sufficient to justify an officer's reasonable suspicion that the person was involved in criminal activity and decision to stop that person and investigate further.
Even more facts support reasonable suspicion to stop Chames. Not only was Chames in a high crime area known for narcotics when he noticed the police and fled, but Chames was also in the vicinity of a vehicle from which it was reported that stolen property and narcotics were being sold, and the officers knew Chames had a felony conviction involving narcotics and suspected him of being involved in the sale of drugs from their previous personal observations of him.
Furthermore, in their pursuit of Chames, the police observed additional suspicion facts: Chames attempted to dispose of something in a sewer grate, failed to stop even when an officer's gun was aimed at him and he climbed over fences surrounding private property in his attempt to elude the police. Under these circumstances, the police had reasonable suspicion for stopping him, both when they first ordered him to stop and when they eventually were successful in stopping him. The officers were then justified in conducting a protective pat-down under Terry v. Ohio, 392 U.S. 1, 24-27, 88 S.Ct. 1868, 1882-83, 20 L.Ed.2d 889 (1968), which led to the discovery of the firearm.
Additionally, Chames's arrest without a warrant was justified under Kentucky Revised Statutes (KRS) 431.005(1)(d) because he committed two misdemeanors in the officers's presence, criminal trespassing in the second degree, KRS 511.070, and fleeing or evading police in the second degree, KRS 520.100(1)(a). Because his arrest was authorized, they were justified in patting him down as part of a search incident to an arrest. Owens v. Commonwealth, 291 S.W.3d 704, 707 (Ky. 2009). Therefore, the firearm was properly discovered either through a Terry stop-and-frisk or through a search incident to arrest.
Accordingly, we affirm Kenton Circuit Court's judgment convicting Chames because it acted properly in denying his motion to suppress.
ALL CONCUR. BRIEF FOR APPELLANT: Karen Shuff Maurer
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky Wm. Robert Long, Jr.
Assistant Attorney General
Frankfort, Kentucky