Opinion
NO. 2019-CA-000567-MR
04-03-2020
SEAN COLLINS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Steven J. Buck Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Mark D. Berry Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM MUHLENBERG CIRCUIT COURT
HONORABLE BRIAN WIGGINS, JUDGE
ACTION NO. 18-CR-00264 OPINION
AFFIRMING
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BEFORE: DIXON AND KRAMER, JUDGES; BUCKINGHAM, SPECIAL JUDGE. DIXON, JUDGE: Sean Collins appeals from the judgment and final sentence entered on March 12, 2019, by the Muhlenberg Circuit Court. Following review of the record, briefs, and law, we affirm.
Retired Judge David C. Buckingham sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution.
Detective Daniel Gagnon with the Montgomery County Sheriff's Office in Tennessee was working with Kentucky's Nineteenth Judicial Circuit Drug Task Force. On May 11, 2018, Det. Gagnon spoke directly via telephone with an anonymous tipster. The tipster informed him that James Vandivort would be in a red Honda Accord traveling from Nashville, Tennessee, to Clarksville, Tennessee, at Exit 4, to purchase methamphetamine. Det. Gagnon and another officer went to Exit 4, located the described vehicle and followed it to a nearby parking lot. Det. Gagnon ran the license plate of the vehicle and confirmed it was registered to Vandivort. Det. Gagnon observed a man exit the vehicle and approach and enter a white minivan. After the man returned to his car, Det. Gagnon approached the vehicle and observed a bag of crystalized substance similar in appearance to methamphetamine in the man's lap, in plain view. The man was read his Miranda rights and identified himself as Vandivort. Det. Gagnon field-tested the substance and confirmed it was methamphetamine. Det. Gagnon asked Vandivort where he got the methamphetamine, and Vandivort said he got it from Collins. Meanwhile, the other officer identified the driver of the minivan as Collins and read him his Miranda rights. Collins agreed to speak to the officer and admitted he had illegal marijuana at his Kentucky residence. Both Vandivort and Collins were arrested.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
Det. Gagnon contacted Det. Troy Gibson of Kentucky's Pennyrile Narcotics Task Force and relayed what had transpired with the anonymous tip, Vandivort, and Collins. Based on this information, Det. Gibson prepared an affidavit for a search warrant to search Collins's residence for "marijuana, and/or any controlled substances, any instrumentalities, paraphernalia, or other contraband associated therewith." A search warrant was issued, and a search of Collins's residence was conducted. That search recovered: two large bags of methamphetamine, a set of digital scales, a large amount of cash, assorted ammunition, bags of baggies, a scanner, eight containers of marijuana "dab" or paste, two boxes of ammunition, and a bolt action rifle with a wooden stock inside a gun case. Collins was charged in Muhlenberg Circuit Court based on the evidence found pursuant to the search warrant.
Collins moved the trial court to suppress the evidence obtained pursuant to the search warrant. The trial court held a suppression hearing and subsequently denied Collins's suppression motion. Collins entered a conditional guilty plea and was sentenced to seven years' imprisonment. This appeal followed.
On appeal, Collins admits he did not specifically argue the anonymous tip lacked proper corroboration. To the extent this argument is not preserved, Collins requests palpable error review:
Under RCr 10.26, an unpreserved error may be reviewed on appeal if the error is "palpable" and "affects the substantial rights of a party." Even then, relief is appropriate only "upon a determination that manifest injustice has resulted from the error." Id. An error is "palpable," only if it is clear or plain under current law. Brewer v. Commonwealth, 206 S.W.3d 343 (Ky. 2006). Generally, a palpable error "affects the substantial rights of a party" only if "it is more likely than ordinary error to have affected the judgment." Ernst v. Commonwealth, 160 S.W.3d 744, 762 (Ky. 2005). We note that an unpreserved error that is both palpable and prejudicial, still does not justify relief unless the reviewing court further determines that it has resulted in a manifest injustice; in other words, unless the error so seriously affected the fairness, integrity, or public reputation of the proceeding as to be "shocking or jurisprudentially intolerable." Martin v. Commonwealth, 207 S.W.3d 1, 4 (Ky. 2006).Miller v. Commonwealth, 283 S.W.3d 690, 695 (Ky. 2009).
Kentucky Rules of Criminal Procedure. --------
Collins argues the trial court erred when it denied his suppression motion because the anonymous tip and brief observations did not give the officers reasonable suspicion to block the cars and block Vandivort and Collins. Collins contends the anonymous tipster was not a "citizen informant." "[C]itizen informants are tipsters who have face-to-face contact with the police or whose identity may be readily ascertained." Garcia v. Commonwealth, 335 S.W.3d 444, 449 (Ky. App. 2010).
However, the case herein differs from Garcia because the tip was reliable and did not stand alone. In Garcia,
[b]ecause the tip in this case is from a truly anonymous informant, we agree with the Appellants that this case fits more into the category of [Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000) and Collins v. Commonwealth, 142 S.W.3d 113 (Ky. 2004)]. As in J.L. and Collins, the tip in this case, standing alone, did not carry sufficient indicia of reliability because it consisted of information readily available to a casual bystander and failed to provide any predictive information. Moreover, Officer May did not independently observe any illegal activity or suspicious behavior by the Appellants to corroborate the tip. It appears from the record that Officer May was acting in good faith and with the protection of the public in mind. However, given the totality of the circumstances, there was not sufficient indicia of reliability to justify the stop of the Appellants.Id. at 449-50. Similarly, the case herein differs from J.L. and Collins.
In the case before us, the tip provided predictive information including what type of drug transaction would be made and where. "What was important was the caller's ability to predict respondent's future behavior, because it demonstrated inside information—a special familiarity with respondent's affairs." Alabama v. White, 496 U.S. 325, 332, 110 S.Ct. 2412, 2417, 110 L.Ed.2d 301 (1990) (emphasis in original). "Because only a small number of people are generally privy to an individual's itinerary, it is reasonable for police to believe that a person with access to such information is likely to also have access to reliable information about that individual's illegal activities." Id. "When significant aspects of the caller's predictions were verified, there was reason to believe not only that the caller was honest but also that he was well informed, at least well enough to justify the stop." Id. Because Det. Gagnon verified the information given by the tipster, as well as their predictions, this bolstered the credibility of the tipster enough to justify the stop.
Furthermore, Det. Gagnon independently observed suspicious activity, which according to his experience and training appeared to be a drug transaction, prior to approaching Vandivort's vehicle, and illegal activity of possession of methamphetamine when he looked into the vehicle. Thus, given the totality of the circumstances, there was sufficient indicia of reliability to justify the stop of Vandivort and Collins. As such, we find no manifest injustice in the trial court's denial of Collins's suppression motion.
Therefore, and for the foregoing reasons, the orders entered by the Muhlenberg Circuit Court are AFFIRMED.
ALL CONCUR. BRIEFS FOR APPELLANT: Steven J. Buck
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Mark D. Berry
Assistant Attorney General
Frankfort, Kentucky