Opinion
NO. 2013-CA-000538-MR
06-27-2014
ROBERT HOLT APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Susan Jackson Balliet Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Frankfort, Kentucky Taylor Payne Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM KENTON CIRCUIT COURT
HONORABLE PATRICIA M. SUMME, JUDGE
ACTION NO. 12-CR-00733
OPINION
VACATING
BEFORE: LAMBERT, MAZE, AND MOORE, JUDGES. MOORE, JUDGE: Robert Holt appeals the Kenton Circuit Court's judgment convicting him of first-degree possession of a controlled substance and sentencing him accordingly. After a careful review of the record, we vacate the circuit court's judgment because the stop and subsequent search in this case were invalid.
Following a jury trial, Holt was convicted of first-degree possession of a controlled substance. He was sentenced to two years of imprisonment, which was probated for four years.
Holt now appeals, contending that the police violated his Fourth Amendment right against unreasonable searches and seizures and therefore, his motion to suppress should have been granted. "Our standard of review of the trial court's denial of a suppression motion is twofold. First, the trial court's findings of fact are conclusive if they are supported by substantial evidence; and second, the trial court's legal conclusions are reviewed de novo." Brumley v. Commonwealth, 413 S.W.3d 280, 283-84 (Ky. 2013). 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).
In the present case, during the suppression hearing, Covington Police Department Officer Jess Hamblin testified that police dispatch received a telephone call from a male anonymous tipster stating that he had observed a male subject in a blue flannel shirt crossing the 15th Street Bridge from east to west in Covington and the subject was going through a female's gold purse. The tipster stated that he found the subject's actions odd because there was no female with the subject. However, there had not been any reports of a purse being stolen or otherwise of any crime in the area. Officer Hamblin reported to the east side of the bridge where Officer HP had arrived just a short time earlier. Officer HP told Officer Hamblin that some people he had spoken with in that location reported that the man was travelling from the east side to the west side of the bridge. Officer Hamblin began travelling west and tried to cut the subject off at Russell Street. When Officer Hamblin arrived in the 1400 block of Russell Street, he was told that another telephone call had been made to dispatch by the tipster stating that the subject was now walking at the corner of 15th Street and Neave Street.
This officer is only referred to in the record as "Officer HP."
Officer Hamblin went to that vicinity and found Holt walking eastbound on nearby Martin Street between Madison Street and Scott Street wearing a blue patterned shirt. Officer Hamblin testified that he cut off Holt's path with his police cruiser, he got out of the cruiser and explained to Holt why he was stopping Holt. Holt was not carrying the purse at that time. Officer Hamblin spoke on the telephone with dispatch and he was told that the tipster was on another telephone line with dispatch at that time and the tipster could see Officer Hamblin and Holt. The tipster told dispatch that the person Officer Hamblin had stopped was in fact the person he had seen on the bridge with the purse. At the same time that dispatch was relaying this information to Officer Hamblin, the officer saw the tipster on a telephone nearby. Officer Hamblin recognized the tipster as "Mr. Kincaide," who had made previous calls to dispatch about alleged illegal activity on the bridge. However, there was no evidence or testimony offered at the hearing regarding the reliability of Mr. Kincaide's past tips.
Mr. Kincaide's first name was not provided.
Officer Hamblin testified that he then began patting Holt down for weapons and during the pat-down, he felt "the unmistakable outline of a hypodermic needle" in Holt's jeans pocket. When he asked Holt what was in his pocket, Holt did not respond, but just shook his head. The officer carefully removed the syringe from Holt's jeans by pushing up on it from outside Holt's pocket. He then placed Holt under arrest. Officer Hamblin began searching Holt incident to the arrest. During his search, Officer Hamblin found some notebook paper folded up in one of Holt's pockets with an off-white powder inside the folded paper, which the officer believed to be heroin.
In summarizing its findings at the conclusion of the suppression hearing, the circuit court stated its findings verbally on the record. The court found that Officer Hamblin stopped Holt to talk with him, which the court concluded he was allowed to do. The court also stated the officer then received confirmation that the person he stopped was the person the tipster was talking about, and the officer patted Holt down based on the confirmation from the tipster, whom he saw waving at him. The court found that while patting Holt down, the officer felt the syringe, which raised other probable cause. The circuit court informed the parties that it would review the case law on the issue and enter a decision on the motion to suppress at a later time.
In a subsequent hearing, the circuit court denied Holt's motion to suppress. In doing so, the court entered the following findings orally on the record:
The [tipster] identified him from where he was. It was someone who was known to the police officer. . . . And so he identified him not only as the person that he saw doing a particular thing, he was able to identify to the police officer. The police officer stopped him but didn't really detain him until he got that confirmation and then the search certainly was incident to just a stop for purposes of Terry. So the court's going to overrule [the] motion [to suppress].The court did not enter a written order denying Holt's motion to suppress.
"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).
Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
The Commonwealth argues that the initial interaction (before the frisk) between Holt and Officer Hamblin was a consensual encounter. However, Officer Hamblin testified that he cut off Holt's path with his police cruiser, he got out of the cruiser and informed Holt that he was stopping him and why he was doing so. Given these facts, it is very questionable whether the stop was consensual. Regardless of whether the initial stop was consensual or not, the subsequent Terry search was constitutionally invalid.
In the seminal case of Terry v. Ohio, the [United States] Supreme Court held that a brief investigative stop, detention and frisk for weapons short of a traditional arrest based on reasonable suspicion does not violate the Fourth Amendment. Terry recognized that as an initial matter, there must be a "seizure" before the protections of the Fourth Amendment requiring the lesser standard of reasonable suspicion are triggered. A police officer may approach a person, identify himself as a police officer and ask a few questions without implicating the Fourth Amendment. A "seizure" occurs when the police detain an individual under circumstances where a reasonable person would feel that he or she is not at liberty to leave. Where a seizure has occurred, if police have a reasonable suspicion grounded in specific and articulable facts, that a person they encounter was involved in or is wanted in connection with a completed felony, then they may make a Terry stop to investigate that suspicion. Evaluation of the legitimacy of an investigative stop involves a two-part analysis. First, whether there is a proper basis for the stop based on the police officer's awareness of specific and articulable facts giving rise to reasonable suspicion. Second, whether the degree of intrusion was reasonably related in scope to the justification for the stop.Baltimore, 119 S.W.3d at 537-38 (internal quotation marks and footnotes omitted).
However,Hampton v. Commonwealth, 231 S.W.3d 740, 744 (Ky. 2007). An "anonymous tip must bear some increased indicia of reliability such as independent verification before the police may rely on it." Hampton, 231 S.W.3d at 745.
[o]fficers must have a reasonable and articulable suspicion that a crime is occurring before they may perform a temporary investigative stop of a person on foot, . . . or driving a car. . . . Whether the information the police have is sufficient to give rise to such a suspicion is evaluated under the totality of the circumstances.
The facts in Hampton provide an excellent point of reference to determine whether under the totality of the circumstances the Terry search in this case was constitutionally sound. In Hampton, the Kentucky Supreme Court upheld the trial court's denial of a suppression motion based upon the trial court's findings as follows:
In this case, the investigative stop was initiated because [the police officers] observed 8-10 people running from the house at 4:00 a.m., after [they] received a tip of drug activity at that house from a person who had previously provided reliable information. Furthermore, the officers had received, on previous occasions, information that drug activity had occurred at this house. Considering all of these factors, THE COURT FINDS that the officers have presented a reasonable, articulable suspicion of criminal activity justifying investigation. . . .Id. at 746-47.
Police officers, who had just received a tip, from a reliable source, that drug activity was occurring at a certain location and who then observed the occupants of the location fleeing the house at 4:00 a.m. as the police approached were justified to initiate the detention of the defendant, one of the suspicious individuals, in order to investigate further.
In the case at hand, there were no reports of a crime having been committed in the area. And while it may be unusual for a male to be going through a purse, this alone would not necessarily justify the belief that a crime had been committed. But see id. at 747. ("But innocent behavior, combined with other circumstances, can 'amount to reasonable suspicion. . . . Indeed, Terry itself involved 'a series of acts, each of them perhaps innocent' if viewed separately, 'but which taken together warranted further investigation."" United States v. Sokolow, 490 U.S. 1, 9-10, 109 S.Ct. 1581, 1586, 104 L.Ed.2d 1 (1989) (quoting Terry, 392 U.S. at 22, 88 S.Ct. at 1881, 20 L.Ed.2d 889)). At the time of the initial stop, no information was provided to Officer Hamblin that given the anonymous nature of the tipster, there was any increased indicia of reliability such that Officer Hamblin could rely upon the information. See Hampton, 231 S.W.3d at 745. Nonetheless even though Officer Hamblin learned-- prior to searching Holt's person-- that the tipster was Mr. Kincaide, there was no testimony or evidence presented whatsoever that Mr. Kincaide was reliable at all. Without some information that Mr. Kincaide had given some type of reliable information in the past and other facts that would have given Officer Hamblin some basis to believe that Holt had committed a crime, under the totality of the circumstance there was an insufficient basis to justify conducting a Terry search. See Hampton, 231 S.W.3d at 744-45; see also Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000). Consequently, the search was invalid.
Even if we consider Mr. Kincaide a citizen informant, this would not change the disposition of this case given that there was no testimony or evidence that he had been a reliable informant in the past.
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For the reasons as stated, the judgment of the Kenton Circuit Court is vacated.
ALL CONCUR. BRIEF FOR APPELLANT: Susan Jackson Balliet
Assistant Public Advocate
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Frankfort, Kentucky
Taylor Payne
Assistant Attorney General
Frankfort, Kentucky