Opinion
NO. 2014-CA-000114-MR
06-05-2015
TERRION TERRELL BANKS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Kathleen K. Schmidt Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Todd D. Ferguson Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE JAMES D. ISHMAEL JR., JUDGE
ACTION NO. 12-CR-01603
OPINION
VACATING AND REMANDING
BEFORE: COMBS, KRAMER AND TAYLOR, JUDGES. COMBS, JUDGE: Terrion Banks appeals the order of the Fayette Circuit Court which denied his motion to suppress evidence. After our review of the record and the law, we vacate and remand.
On October 18, 2012, the Lexington Police Department received a report of a disturbance in front of 1191 Tatesbrook Drive. Officer James Doane and his partner, Officer Pope, responded in an unmarked vehicle. Upon arrival, they observed a group of fifteen to twenty people gathered in the street. It appeared that two people were boxing in the middle of the crowd, but the officers could not tell if the boxing was for sport or was an altercation.
Officer Pope's first name is not in the record.
Officers Doane and Pope were in uniform, and when they stepped out of their vehicle, the crowd peacefully dispersed. Most of the people walked toward 1191 Tatesbrook Drive. However, three men, including Banks, walked in the opposite direction toward Trent Boulevard. Officer Doane thought that he saw Banks shift to the right when he walked past. He observed that Banks had a red bandana hanging from his waistband and a bulge in his pocket.
Both bandana and bandanna are accepted spellings. Appellant's brief uses the single-n version, and the Commonwealth's brief has the other. We shall use the single-n version.
Officer Doane approached Banks and asked him to talk. Banks stopped and asked why he was being stopped. He told Officer Doane that he wanted to leave. However, Officer Doane then told Banks to put his hands behind his back. When Banks hesitated, the two officers wrestled him to the ground and handcuffed him. Officer Doane patted him down and discovered that the red bandana was tied to the barrel of a handgun. Banks also had a holster and an extra magazine. Banks was arrested for carrying a concealed weapon.
Subsequent to the arrest, it was discovered that Banks was a convicted felon and that the gun had been reported stolen. On December 18, 2012, Banks was indicted for being a convicted felon in possession of a handgun; receiving stolen property; carrying a concealed deadly weapon; and being a persistent felony offender in the second degree.
On April 11, 2013, Banks filed a motion to suppress the evidence which resulted from the stop and search. The trial court held an evidentiary hearing on the motion on April 23, 2013. Two days later, it entered an order denying the motion. On May 10, 2013, Banks entered a conditional guilty plea of being a convicted felon in possession of a handgun. On January 3, 2014, the court sentenced him to five-years' incarceration. This appeal followed.
Banks argues that the weapon and ammunition that Officer Doane found in his pocket should be excluded from evidence because the search of his person was not warranted. We agree.
Our standard in reviewing a motion to suppress evidence is two-fold. First, Kentucky Rule of Criminal Procedure (RCr) 9.78 provides that: "If supported by substantial evidence the factual findings of the trial court shall be conclusive." However, the trial court's application of the law to the facts is subject to de novo review. Lynn v. Commonwealth, 257 S.W.3d 596, 598 (Ky. App. 2008).
The Fourth Amendment of the United States Constitution and Section 10 of Kentucky's Constitution provide protection against unreasonable searches and seizures. The consequence for violating that protection is that evidence obtained in an illegal or unreasonable search is not admissible in court. Wilson v. Commonwealth, 37 S.W.3d 745, 748 (Ky. 2001). See also Mapp v. Ohio, 367 U.S. 643 (1961).
The search and seizure of Banks was conducted pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), a landmark case in Fourth Amendment jurisprudence. Terry directly addressed and answered the question presented by the case before us: when may the police approach a citizen in a public place and conduct a search consisting of patting down his outer clothing?
The Terry Court was concerned about protecting the "sacred" right of citizens' personal liberty. Id. at 9, 1873. However, it also recognized and balanced the governmental interest of "effective crime prevention and detection. . . ." Id. at 22, 1880. The Court discussed "the more immediate interest of the police officer in taking steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him." Id. at 23, 1881. Therefore, it determined that permissible interactions between police and citizens in public places must achieve a balance of the two competing interests: personal liberty versus societal protection.
Terry articulated the resulting balancing test:
We merely hold today that where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.
Id. at 30, 1884-85. The police officer must be able to provide "specific and articulable facts" which support his conclusion. Id. at 21, 1880. The Supreme Court later clarified that the facts are to be drawn from the totality of the circumstances. U.S. v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 750, 151 L.Ed.2d 740 (2002). At the time of the officer's decision, the totality of the facts must be of a nature that would "convince a reasonable person that the action taken was appropriate." Baker v. Commonwealth, 5 S.W.3d 142, 146 (Ky. 1999). Discovery of criminal paraphernalia after the fact of an illegal stop or seizure cannot justify the constitutional violation by operation of hindsight.
In this case, Officer Doane provided three facts as the basis of his decision to stop Banks: Banks and two others walked in a direction opposite from the crowd; Banks shifted to the right when he passed Officer Doane; Banks displayed a bandana and bulge near his waistband. We are not persuaded that these facts justified the search that ensued in light of the Terry standard.
A proper Terry stop is triggered when an officer observes unusual conduct. Officer Doane testified that he first noticed Banks and two companions when they walked the opposite direction from the rest of the crowd when it broke up. He testified that he and his partner had not observed any criminal activity; the crowd dispersed peacefully. The address, 1191 Tatesbrook Drive, toward which the crowd walked, is a house. It is not unusual for a gathering of people to depart to various places.
Officer Doane explained that people with something to conceal often might step away from a group. Thus, he viewed Banks's act of walking away as suspicious behavior. However, in this case, the group dispersed; there was no longer a group from which to separate. We are not persuaded that peacefully walking away from a gathering is unusual conduct - or at least conduct so noteworthy as to justify a stop and search. Directly on point, we have held that merely walking down a street is not "unusual conduct" that can be used to warrant a Terry stop. Commonwealth v. Sanders, 332 S.W.3d 739 (Ky. App. 2011).
Officer Doane also testified that he observed a bulge in Banks's pocket and a red bandana hanging from his waistband. From his experience as a gang resource officer, Officer Doane recognized that the bandana's color could signify membership in a particular gang. However, he acknowledged that people other than gang members also display bandanas. And, as the trial court reiterated in its findings, Officer Doane agreed that the bulge in Banks's pocket could have been anything.
We emphasize that Terry has been construed as holding that "[t]he purpose of the limited search is not to discover evidence of a crime, but to allow the officer to pursue the investigation without fear of violence." Commonwealth v. Whitmore, 92 S.W.3d 76, 79 (Ky. 2002). (Emphasis added.) Our Supreme Court has also elaborated that a person may be stopped if articulable facts support a reasonable suspicion that a "person has engaged or is about to engage in criminal activity. And if the officer believes the detained person is armed and dangerous, the officer may also frisk for weapons." Williams v. Commonwealth, 364 S.W.3d 65, 66-67 (Ky. 2011); Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972). Thus, there must be some indicia of criminal activity prior to a stop and search.
In this case, Officer Doane testified that he did not observe any criminal activity by anyone at the scene of the reported disturbance. He had not seen Banks engage in criminal conduct; he articulated the fact of Banks's merely walking down the street as suspicious behavior, which led him to speculate about Banks's choice of clothing and an unspecified object in his pocket. We are not convinced that Banks's act of walking away constituted conduct so unusual as to justify a detention and search. Sanders, supra.
Furthermore, the totality of the circumstances did not create a justifiable stop. Without the factors of walking away and the bandana, only the bulge in the pocket remained. We are unable to find precedent in case law where an unidentified object aroused reasonable suspicion without the presence of other factors. See Williams v. Commonwealth, 364 S.W.3d 65 (Ky. 2011) (bulge in clothing was proper basis for search where appellant's companions were using illicit drugs and possessed guns); Commonwealth v. Marshall, 319 S.W.3d 352 (Ky. 2010) (eyewitnesses informed police that appellant had a gun on his person); Commonwealth v. Banks, 68 S.W.3d 347 (Ky. 2001) (appellant was also trespassing and evading police).
In a relevant but unpublished opinion, this Court held that a Terry stop was inappropriate when it was based on the appellant's walking in a high-crime neighborhood. In Washington v. Commonwealth, 2007 WL 3406759 (Ky. App. Nov. 16, 2007), the appellant in that locale changed directions when he observed the police officers; and he was also dressed in gang colors. We held that changing directions and wearing gang colors were not adequate bases for reasonable suspicion and that being in a high-crime area was insufficient without other factors.
In this case, Banks did not change direction evasively, and there has been no testimony that he was in a high-crime area. He merely walked down the street while displaying a bandana. We cannot conclude that a totality of circumstances existed to justify the stop and search.
Like the Washington Court, we appreciate the efforts of police to protect their own safety "in the face of possibly escalating situations." Id. at *7. However, in this case, there were no indications of a "possibly escalating" situation. Relevant to this case is the following language of the Terry Court warning of the societal consequences inherent in the exercise of discretion by the police:
substantial interference with liberty and personal security by police officers whose judgment is necessarily colored by their primary involvement in the often competitive enterprise of ferreting out crime . . . [arguably] can only serve to exacerbate police-community tensions . . . .Terry v. Ohio, 392 U.S. at 12, 88 S.Ct. at 1875 (internal citations omitted).
Because no articulated facts supported reasonable suspicion of criminal activity, we vacate the order of the Fayette Circuit Court and remand for further proceedings consistent with our reversal of the denial of the motion to suppress.
ALL CONCUR. BRIEF FOR APPELLANT: Kathleen K. Schmidt
Department of Public Advocacy
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Todd D. Ferguson
Assistant Attorney General
Frankfort, Kentucky