Opinion
NO. 2019-CA-000657-MR
05-01-2020
HARRY WAYNE SIMPSON, JR. APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Erin Hoffman Yang Frankfort, Kentucky BRIEF FOR APPELLEE: Daniel Cameron Attorney General of Kentucky Kristin L. Conder Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE KIMBERLY N. BUNNELL, JUDGE
ACTION NO. 18-CR-00217-001 OPINION
AFFIRMING
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BEFORE: DIXON, GOODWINE, AND TAYLOR, JUDGES. GOODWINE, JUDGE: Appellant, Harry Simpson, Jr., appeals the Fayette Circuit Court's April 16, 2019 final judgment. Specifically, he argues the trial court erred by denying his motion to suppress, incorrectly ruling that officers had reasonable suspicion to extend a stop, which led to Simpson's arrest. Based on our review of the record, we affirm the judgment of the Fayette Circuit Court.
BACKGROUND
Just after midnight on January 18, 2018, Officers Harris and Nichols were patrolling Breathitt Avenue in Lexington, Kentucky. They were patrolling the west-end neighborhood of Lexington due to the high criminal activity and increased occurrence of narcotics transactions. While driving, they observed a car with two passengers "circling" the block near Breathitt Avenue and Price Road. It was the only car on the road in the area. When the car turned on to Price Road, Officer Harris noticed its unilluminated license plate and the driver failing to use a turn signal. For these reasons, Officer Harris initiated a stop at the corner of Price Road and De Porres Avenue, and the car travelled approximately 25 yards before pulling over. But during that time, neither Officer Harris nor Officer Nichols saw any furtive or evasive movements from either the driver or the passenger.
Once out of their cruiser, Officers Harris and Nichols walked up to the car. Officer Harris approached the driver's side and Officer Nichols approached the front passenger's side. The driver, Keith Byrd, slightly rolled down his window and turned the dome light on in the car. Officer Harris began a basic line of questioning, i.e., "Do you know why I pulled you over?"; "Where are you going?"; "Where have you been?"; etc. Byrd answered all questions, immediately reached into his glove compartment, and handed Officer Harris his license, registration, and proof of insurance. During the interaction, Byrd infrequently made eye contact with Officer Harris, did not roll his window down completely, and seemed "nervous and confused." After talking to Byrd, Officer Harris returned to his cruiser to run Byrd's information and check for warrants.
On the other side of the car, Officer Nichols questioned Simpson. Simpson did not have an identification card on him but gave Officer Nichols his social security number to check. He also answered all of Officer Nichols's questions. And like Byrd, Simpson also made infrequent eye contact with Officer Nichols. Before returning to the cruiser, Officer Nichols asked Simpson if he "had any priors for narcotics," and Simpson replied, "No."
Once both officers were back in the cruiser, Officer Harris entered Simpson's information for a warrant search, while also accessing the Fayette County Detention Center website to review his criminal history. Officer Harris then began reading Simpson's prior charges aloud, stating Simpson had a prior second-degree possession of a controlled substance charge. And at that point, Officer Nichols interjected, saying Simpson lied about having prior "dope" charges. Upon learning this information, Officer Harris called in for the canine unit. Quickly after the canine unit arrived, the dog alerted on Byrd's car. Because of this, the officers searched the car, finding a handgun between the driver's seat and middle console and cocaine.
Approximately one month later, the Fayette County grand jury indicted Simpson on two separate counts: (1) convicted felon in possession of a handgun; and (2) carrying a concealed deadly weapon. Simpson filed a motion to suppress evidence recovered from the search of Byrd's car, arguing the stop was unconstitutionally prolonged. On February 20, 2019, the trial court held a suppression hearing.
During the suppression hearing, Simpson's counsel argued the call for the canine unit, and subsequently waiting for it to arrive, unconstitutionally prolonged the officers' stop. But the trial court focused its questioning, and eventual ruling, on whether the officers had a reasonable and articulable suspicion to warrant extending the stop and calling in the canine unit. The parties called one witness, Officer Harris. The Commonwealth walked him through his bodycam video, intermittently pausing for questioning and testimony.
During his testimony, Officer Harris gave several reasons why he had a reasonable suspicion which justified detaining Byrd and Simpson and calling in the canine unit: (1) Byrd and Simpson were circling the block on a frigid night, in a high-crime area, after midnight; (2) Byrd took extended time to pull over after the stop initiated; (3) Byrd and Simpson gave conflicting statements and multiple addresses when the officers questioned them; (4) Byrd made minimal eye contact and seemed nervous while being questioned; (5) Byrd did not fully roll down his window while being questioned; and (6) Simpson lied about having prior narcotics charges.
After hearing Officer Harris's testimony, as well as oral argument from the Commonwealth and defense, the trial court admitted that it was an "exceptionally close" call. It explained that a reasonable suspicion had to be based on more than a hunch. Video Record (V.R.), 2/20/19, 1:59:05-13. And it further explained that "when you put it all together, that [was] the question." Id. at 1:59:15-18. Ultimately, its decision rested on its finding that Simpson lied to Officer Nichols about having prior drug charges. And it further explained, given the totality of the circumstances, Officer Harris had a reasonable and articulable suspicion that criminal activity was afoot and denied Simpson's suppression motion.
On April 12, 2019, Simpson entered a conditional Alford plea to one count of convicted felon in possession of a firearm. The Commonwealth dismissed the remaining charges. Simpson waived formal sentencing and the trial court sentenced Simpson to one year, running consecutively to another case. The trial court entered its Judgment on Guilty Plea and Sentence of Imprisonment on April 16, 2019. This appeal followed.
Alford v. North Carolina, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
STANDARD OF REVIEW
Our standard of review for a trial court's ruling on a suppression motion is two-fold. We review the trial court's factual findings for clear error and deem them conclusive if supported by substantial evidence. Williams v. Commonwealth, 364 S.W.3d 65, 68 (Ky. 2011). We review the trial court's application of the law to the facts de novo. Commonwealth v. Kelly, 180 S.W.3d 474, 476-77 (Ky. 2005).
ANALYSIS
The parties agree that Officer Harris's traffic stop was proper. See, e.g., Commonwealth v. Lane, 553 S.W.3d 203, 205 (Ky. 2018) (citation omitted) ("A police officer is authorized to conduct a traffic stop when he or she reasonably believes that a traffic violation has occurred."). Thus, our analysis pertains to whether the officers had a reasonable suspicion to detain Simpson and call for a canine unit.
Under Kentucky law, a lawful traffic stop "can become unlawful if it is prolonged beyond the time reasonably required to issue a traffic citation." Commonwealth v. Smith, 542 S.W.3d 276, 281 (Ky. 2018) (citing Illinois v. Caballes, 543 U.S. 405, 407, 125 S. Ct. 834, 160 L. Ed. 2d 842 (2005)). In other words, if an officer unjustifiably extends a traffic stop beyond what is reasonably required to complete the purpose of the stop, it violates the Fourth Amendment's protection against unreasonable seizures. Id. (citing Rodriguez v. United States, 575 U.S. 348, 135 S. Ct. 1609, 191 L. Ed. 2d 492 (2015)). But if officers have a reasonable suspicion to extend the stop, that suspicion legally permits an extension. Turley v. Commonwealth, 399 S.W.3d 412, 421 (Ky. 2013).
Here, the trial court based its analysis on whether Officers Harris and Nichols had a reasonable suspicion to extend their stop of Byrd and Simpson. In doing so, it noted on the record that a Smith/Rodriguez analysis regarding an unjustified extension of the stop was not needed, making no specific findings on the issue. V.R., 2/20/19, 1:26:00-27:52. Given that Simpson did not ask the trial court at the hearing to make specific findings on whether there was an unlawful extension of the stop under Smith or Rodriguez, we are precluded from now considering this issue for the first time on appeal. Smith, 542 S.W.3d at 285.
To begin, we find the trial court's findings of fact to be conclusive and backed by substantial evidence. But our review of the record indicated some discrepancies and outright confusion regarding specific facts, so we take a moment to clarify the record before us. At the trial and appellate level, there is vehement disagreement about whether Simpson: (1) lied to Officer Nichols; and (2) if he did lie, what he lied about. On one hand, the Commonwealth argues Simpson told Officer Nichols that he had no prior "narcotics" charges and that Officer Harris's criminal history search proved the statement to be untrue. On the other hand, Simpson asserts that he never lied about having prior "narcotics" charges and the charge in his criminal history was for marijuana, which is not a narcotic. Neither party is correct.
Officer Harris's bodycam recorded an informative interaction between him and Officer Nichols. Per the footage, Officer Harris told Officer Nichols that Simpson had a second-degree possession of a controlled substance charge in November 2018. Record (R.) at 37. At that point, Officer Nichols replied that Simpson "told him he did not have any dope charges." Id. (emphasis added). But somewhere down the line, this phrase was misconstrued by both the Commonwealth and Simpson. Officer Harris stated at the suppression hearing that "[Simpson] lied to Officer Nichols about never having any narcotics charges before . . . once again raising our suspicion." V.R., 2/20/19, 1:17:36-38 (emphasis added). On the flip side, while Simpson argued during the hearing that he never had a narcotics charge, he never refuted the assertion that Officer Nichols said Simpson lied about past narcotics charges. We note this back and forth argument between the parties does not change in their respective briefs before us either.
Clearly, both parties' wires are crossed. As proven through the bodycam footage, Officer Nichols explicitly said Simpson lied to him about prior "dope" charges, not "narcotics." R. at 37. Somewhere down this case's path, the subject of Simpson's alleged lie switched from dope to narcotics. And both parties are at fault for this confusion and discrepancy. But luckily, the trial court did not hinge its analysis on whether there was specifically a lie about prior "narcotics" charges, but rather on the general basis that Simpson was "not being truthful, from the officer's perspective." We agree and deem the trial court's factual findings conclusive. Williams, 364 S.W.3d at 68.
"Dope" is a colloquial phrase that encompasses a plethora of drugs, including marijuana. However, a "[n]arcotic drug" carries a specific legal definition under Kentucky Revised Statutes (KRS) 218A.010(33)(a)-(g). The term "narcotic" is now loosely used in law enforcement circles as a proprietary eponym for numerous drugs, similar to using the brand name Kleenex for all tissues.
Briefly, we also note there is "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 on 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) (footnote omitted).
Now, we must decide whether the trial court properly applied the law to the facts. Here, Simpson argues the officers lacked reasonable suspicion to extend the stop and the Commonwealth argues to the contrary. As previously noted, the Commonwealth lists six separate facts that gave rise to Officer Harris's reasonable suspicion. In evaluating these facts, we must "consider the totality of the circumstances to determine whether a particularized and objective basis existed for suspecting [an] [a]ppellant of illegal activity." Moberly v. Commonwealth, 551 S.W.3d 26, 31 (Ky. 2018) (citation omitted).
"[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 omitted). The set of circumstances before us, as culminated together, give reason to believe Officers Harris and Nichols had a requisite, objective basis to form a reasonable suspicion that criminal activity was afoot. We note and explain each in turn.
First, Officer Harris testified that he noticed Byrd's car circling the block on a frigid night, in a high-crime area, after midnight. 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, 124, 120 S. Ct. 673, 676, 145 L. Ed. 2d 570 (2000).
Second, Byrd took an extended time to pull over after the stop initiated. Officer Harris testified that when he initiated the stop, Byrd continued for 75 more feet down a vacant road and made a turn before finally pulling over. Recently, the Court of Appeals for the Sixth Circuit dealt with similar circumstances. In United States v. Ledbetter, a police officer turned on his lights and siren to pull over a car. 929 F.3d 338, 347 (6th Cir. 2019). Instead of immediately pulling over, the driver "completed a turn, 'slowed down in an apparent feint to pull over, sped up, and then finally pulled over for good' at the next intersection." Id.
In this case, Officer Harris testified that he found the behavior suspicious because in his training and experience, individuals prolong coming to a stop to hide contraband or firearms from law enforcement. V.R., 2/20/19, 1:07:19-32. Like Officer Harris, the officer in Ledbetter testified that this behavior was "'a huge red flag' because '[w]hen we've seen that before in the past, that's somebody who is trying to hide a gun, or do something to harm us.'" Ledbetter, 929 F.3d at 347. Ultimately, the Sixth Circuit held those circumstances were factors that gave rise to the officer's reasonable suspicion. Id. (citations omitted) ("This court has held repeatedly that a driver's behavior—most notably, the failure to immediately pull over and any attempts to evade officers—can support a reasonable suspicion.").
Third, Byrd and Simpson gave conflicting statements and multiple addresses when the officers questioned them. Byrd gave Officer Harris multiple addresses and told him that he picked up Simpson on Price Road. But Simpson indicated that Byrd picked him up on Ash Street. While inconsistencies in testimony are not inherently criminal, it can give rise to reasonable suspicion when combined with other circumstances. See Points v. Commonwealth, No. 2007-SC-000310-MR, 2007 WL 4462300, at *4 (Ky. Dec. 20, 2007) (noting that a defendant's "conflicting answers to [] questions, combined with the other facts . . . were enough to give [an officer] reasonable suspicion"). Furthermore, 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).
Fourth, Byrd and Simpson made minimal eye contact and seemed nervous while being questioned. While being questioned by Officer Harris, Byrd made infrequent eye contact with him, choosing to look forward more often than looking at Officer Harris. He also seemed nervous and confused throughout the entire interaction. Similarly, Officer Nichols conveyed to Officer Harris that Simpson made minimal eye contact with him, too. Nervous behavior—standing alone—is insufficient to constitute reasonable suspicion, but nervousness is something which may be used as a factor to support the existence of reasonable suspicion. Frazier v. Commonwealth, 406 S.W.3d 448, 454 (Ky. 2013).
And, fifth, Simpson lied about having prior "dope" charges. Under Kentucky law, lying to an officer during a traffic stop is insufficient grounds for reasonable suspicion. See West v. Commonwealth, 358 S.W.3d 501, 503 (Ky. App. 2012) (holding a car passenger's lie to an officer regarding where she was coming from was insufficient grounds for reasonable suspicion). But lying to a police officer about one's criminal record, when combined with other contributing factors, can give grounds for an officer's reasonable suspicion. If anything, the officer is on heightened alert because a defendant lied to them about their criminal history. See United States v. Mason, 628 F.3d 123 (4th Cir. 2010) (considering a defendant's inconsistent statements when determining reasonable suspicion existed).
Given these facts and circumstances, there is an objective basis for us to determine Officers Harris and Nichols had a reasonable and articulable suspicion that criminal activity was afoot. While many of the factors we considered, standing alone, do not give rise to reasonable suspicion, that is not the standard. We must look at the totality of the circumstances. Given that standard, Officer Harris's extension of the traffic stop was justified. Thus, we affirm.
CONCLUSION
The extension of the traffic stop and call for the canine unit was based on Officer Harris's reasonable suspicion. Therefore, we affirm the judgment of the Fayette Circuit Court.
DIXON, JUDGE, CONCURS.
TAYLOR, JUDGE, DISSENTS WITHOUT OPINION. BRIEFS FOR APPELLANT: Erin Hoffman Yang
Frankfort, Kentucky BRIEF FOR APPELLEE: Daniel Cameron
Attorney General of Kentucky Kristin L. Conder
Assistant Attorney General
Frankfort, Kentucky