Opinion
NO. 2011-CA-002089-MR
04-05-2013
LAWRENCE LEWIS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Roy A. Durham II Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Courtney J. Hightower Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE FRED A. STINE V, JUDGE
ACTION NO. 11-CR-00156
OPINION
AFFIRMING
BEFORE: DIXON, LAMBERT, AND TAYLOR, JUDGES. DIXON, JUDGE: Lawrence Lewis entered a conditional guilty plea to trafficking in marijuana (second offense) and was sentenced to a five-year term of imprisonment, probated for three years. Lewis appeals the Campbell Circuit Court's denial of his motion to suppress statements and evidence, alleging that the evidence was obtained as the result of an unlawful seizure, interrogation, and warrantless search. After careful review, we affirm.
At the suppression hearing, the court heard testimony from two Newport police officers: Richard Robbins and Chris Fangman. Appellant also testified on his own behalf. In its written order, the court summarized the disputed testimony as follows:
The events in question in this matter occurred on February 6, 2011 at approximately 3:00 a.m. in the 600 block of Liberty Street. While on patrol, Officer Robbins noticed a car blocking Liberty Street and after noticing it [had] not been moved for several minutes, approached the vehicle. The engine was running and an individual was sitting in the passenger seat. Officer Robbins engaged the individual in conversation and learned that the driver had briefly entered 614 Liberty Street and would return momentarily and move the car. During this conversation, [Appellant] approached with his hands in his pockets. According to Robbins, he asked the [Appellant] to remove his hands from his pockets and for his own safety, asked [Appellant] if he had any drugs or guns on his person. The [Appellant] responded that he did, two small quantities of marijuana, which the officer reached into his pockets and retrieved. Robbins asked the [Appellant] if he had any more and [Appellant] responded that he did not but he had another quantity in his home.
At approximately this time, Fangman approached and Robbins informed him what [Appellant] had said. Fangman continued the conversation with [Appellant] while Robbins spoke to the passenger of the car. Upon learning that the passenger had a valid operator's license he was permitted to leave. Fangman testified that he read [Appellant] his constitutional rights. According to the officers, [Appellant] was informed that he might simply be cited and released or could be arrested depending on what was found in the residence. [Appellant] responded
that he wished to cooperate and allowed the officers to enter the home and search his living space which was in the basement. Upon reaching the basement, [Appellant] retrieved an additional quantity of marijuana while the officers found a roll of money in a shoe which the [Appellant] admitted was marijuana proceeds. Additionally, officers found two small sets of scales with small plastic baggies in a shoe box containing CD's and DVD's. After being permitted to talk to his mother who owned the home at 614 Liberty, the [Appellant] was arrested. Both officers explained the [Appellant] was very cooperative and did not appear intoxicated and did not attempt to obstruct their investigation in any way.
The [Appellant's] testimony differed in some respects from the officers. He acknowledged that he admitted having marijuana in his pockets and giving the Officers the marijuana. According to the [Appellant], Robbins then informed him that the offense had escalated from possession to trafficking. The Officers asked if they could go in the house and the [Appellant] responded 'no' to which the Officers responded that since the offense had escalated to trafficking in marijuana they were going in to search. The [Appellant] explained that once the Officers made it clear they were going to enter the home he decided that he was not going to allow them to disrupt his mother's home and showed them where the additional marijuana was. As he explained it, he was handcuffed after the Officers found marijuana on his person and he was never informed of his constitutional rights prior to entering the home.
The court rendered findings of fact and conclusions of law, which required it to assess the credibility of the witnesses in order to resolve the conflicting testimony. Based on the officers' testimony, the court concluded: 1) the initial contact with Lewis was a consensual encounter; 2) Lewis's incriminating statement that he had marijuana in his house was not made during custodial interrogation; and 3) Lewis's consent to search his bedroom was voluntary. Lewis now appeals the decision of the Campbell Circuit Court.
When this Court reviews a determination on a motion to suppress evidence, we are bound by the factual findings of the trial court if they are supported by substantial evidence. Adcock v. Commonwealth, 967 S.W.2d 6, 8 (Ky. 1998), citing Kentucky Rules of Criminal Procedure (RCr) 9.78. We then review de novo the application of the law to the facts. Id.
Appellant contends the trial court's factual findings were clearly erroneous, and he points to inconsistencies between Robbins's testimony at the preliminary hearing and the suppression hearing. Appellant essentially challenges the veracity of the officers' testimony at the suppression hearing, and he opines that his own testimony was more reliable. Appellant's assertions are unpersuasive, as it was the duty of the trial court to assess the credibility of the witnesses and weigh the conflicting evidence. Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003). Although Lewis believes his testimony was more credible, our review of the record indicates that the officers' testimony was of sufficient probative value to induce conviction in the minds of reasonable persons. Id. We are satisfied that the court's factual findings were supported by substantial evidence; accordingly, those findings are conclusive. RCr 9.78.
On appeal, Appellant maintains: 1) his statements should have been suppressed as the product of an un-Mirandized custodial interrogation; 2) the consent to search his bedroom was involuntary due to police coercion; and 3) he was impermissibly detained during the initial encounter with Robbins. For our analysis, we will address these arguments in the order that the events occurred.
I. Initial Contact
Appellant asserts the marijuana located in his pocket should have been suppressed as the product of an unconstitutional detention. Appellant contends Robbins impermissibly detained him without reasonable suspicion that he was engaged in criminal activity. Terry v. Ohio, 392 U.S. 1, 22, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889 (1968).
"An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity." United States v. Cortez, 449 U.S. 411, 417, 101 S. Ct. 690, 695, 66 L. Ed. 2d 621 (1981). A reviewing court must bear in mind the totality of the circumstances when determining whether the officer had a reasonable suspicion. Terry, 392 U.S. at 19, 88 S. Ct. at 1878.
At the outset, we note that Robbins did not need reasonable suspicion of criminal activity to approach a parked vehicle blocking a public street. United States v. Dyson, 639 F.3d 230, 232-33 (6th Cir. 2011). Further, "[l]aw enforcement officers do not violate the Fourth Amendment's prohibition of unreasonable seizures merely by approaching individuals on the street or in other public places and putting questions to them if they are willing to listen." United States v. Drayton, 536 U.S. 194, 200-01, 122 S. Ct. 2105, 2110, 153 L. Ed. 2d 242 (2002). A consensual encounter escalates to a seizure for constitutional purposes if the police officer, by physical force or authority, restricts the individual's liberty in such a way that a reasonable person in that situation would believe he was not free to leave. Baker v. Commonwealth, 5 S.W.3d 142, 145 (Ky. 1999). In United States v. Mendenhall, 446 U.S. 544, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980), the Supreme Court explained, "[e]xamples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled." Id. at 554-55, 100 S. Ct. at 1877.
At 3:00 a.m., Robbins was speaking to the passenger when Appellant approached on foot. Robbins, concerned for his safety, asked Lewis to identify himself, to remove his hands from his pockets, and whether he had any guns or drugs. Lewis admitted having marijuana in his pocket, which Robbins removed and asked if Appellant had anything else. Appellant admitted that he had additional marijuana in his house.
After careful review, we agree with the trial court that the initial contact between Robbins and Appellant was a consensual encounter that did not implicate Appellant's constitutional rights. During this encounter, Appellant voluntarily admitted he had illegal drugs on his person and inside his house, which gave Robbins probable cause to further investigate and detain Appellant. Because Appellant's constitutional rights were not implicated, the trial court correctly ruled that suppression of the evidence was not required.
II. Incriminating Statement
Appellant contends his statement that he had additional marijuana in his house was the product of an un-Mirandized custodial interrogation and should have been suppressed. To support his argument, Appellant relies on his own testimony and insists that the trial court's factual findings were clearly erroneous because the testimony of the officers was not credible.
Pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), an individual must be expressly informed of his constitutional rights prior to a custodial interrogation. Watkins v. Commonwealth, 105 S.W.3d 449, 451 (Ky. 2003). However, "[a] Miranda warning is not required when a suspect is merely taken into custody, but rather when a suspect in custody is subject to interrogation." Id. "A custodial interrogation has been defined as questioning initiated by police after a person has been taken into custody or otherwise deprived of freedom of action in any significant way." Rankin v. Commonwealth, 265 S.W.3d 227, 234 (Ky. App. 2007).
Under the circumstances presented here, we simply cannot conclude that Appellant was subjected to custodial interrogation when Robbins asked him if he had "anything else" after the marijuana was removed from Appellant's pocket. Appellant approached Robbins on the street, and Appellant answered Robbins's questions. There is no evidence of physical intimidation, coercion, threatening behavior, or restraint of movement that would indicate Robbins's actions compelled Appellant to incriminate himself. See Commonwealth v. Lucas, 195 S.W.3d 403, 405-06 (Ky. 2006). After reviewing the record, we agree with the trial court's conclusion that suppression of the statement was not required because Appellant's Miranda rights were not violated.
III. Search of Appellant's Bedroom
Finally, Appellant contends his consent to search his bedroom was involuntary due to police coercion. Appellant again relies on his own testimony to support his argument and attacks the credibility of the officers' testimony.
"[W]hether a consent to a search was in fact 'voluntary' or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances." Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S. Ct. 2041, 2047-48, 36 L. Ed. 2d 854 (1973). It is solely the province of the trial court, as the fact-finder, to weigh the conflicting testimony and choose the evidence it finds most credible. Commonwealth v. Anderson, 934 S.W.2d 276, 278 (Ky. 1996).
The trial court heard conflicting testimony from Appellant and the officers on the issue of consent. The officers testified that Appellant was cooperative, and he consented to the search of his living area in the basement of his mother's home. In contrast, Appellant testified that the officers indicated they would obtain a search warrant, and he only consented to the search because he did not want his mother's house to be torn up if the officers obtained a warrant.
After reviewing the record, it is apparent that the trial court thoroughly considered all of the evidence presented and concluded that the officers' version of events was the most credible. The court found that Appellant's consent was voluntary and not the product of duress or coercion. We are satisfied that those findings were supported by substantial evidence; consequently, they are conclusive. The court properly denied the motion to suppress evidence.
For the reasons stated herein, we affirm the judgment of the Campbell Circuit Court.
ALL CONCUR. BRIEFS FOR APPELLANT: Roy A. Durham II
Assistant Public Advocate
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky