Opinion
NO. 2013-CA-000620-MR
06-27-2014
RICHARD V. BARRETT APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Dax R. Womack Henderson, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Frankfort, Kentucky Christian K. R. Miller Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM HENDERSON CIRCUIT COURT
HONORABLE KAREN LYNN WILSON, JUDGE
ACTION NO. 12-CR-00202
OPINION
AFFIRMING
BEFORE: CAPERTON, LAMBERT, AND MOORE, JUDGES. MOORE, JUDGE: Richard V. Barrett appeals the Henderson Circuit Court's judgment convicting him of first-degree trafficking in a controlled substance, second offense, and resisting arrest. After a careful review of the record, we affirm because the evidence at issue was admissible pursuant to the independent source doctrine and Barrett's trafficking offense was properly classified as a second or subsequent offense for purposes of the sentencing enhancement.
I. FACTUAL AND PROCEDURAL BACKGROUND
At a suppression hearing in this case, Trooper Zachary Jones of the Kentucky State Police (KSP) testified that on June 3, 2007, he pulled Barrett over for speeding after he observed Barrett driving 89 miles-per-hour in a 65 miles-per-hour zone. The circuit court made the following findings of fact:
The [Nissan] Altima [that Barrett had been driving] was an Enterprise rental car with a Kentucky license plate. Jones approached the driver . . . and asked him for his license and registration. Barrett had a Georgia driver's license. As was his practice in traffic stops, Jones asked Barrett where he had come from and where he was going. Barrett said he had come from Evansville, Indiana, and was going to visit his mother in Owensboro, Kentucky. Jones asked him why he had a Georgia license, and Barrett said he used to live there. Jones asked Barrett where his mother lived; Barrett said [he] didn't know the street address, just how to get there.
Jones observed Barrett to be nervous and short in his answers and believed he was being evasive. He asked Barrett to get out of the car.[ ] The two of them stood between the Altima and Jones's cruiser. They talked again about where Barrett was going. Jones asked him if there was anything illegal in the car. Barrett hesitated and asked why Jones was questioning him about that. According to Barrett, Jones told him that he was traveling along a drug trafficking route.
Jones asked to search the car. Barrett did not consent, and Jones called for a canine unit. Jones testified that on hearing that he was going to call for a dog, Barrett said he would consent to a search of the car except for the trunk. Barrett testified that he never consented to any search of his car.[ ]
The two waited for a few more minutes. Jones heard sirens approaching. Jones testified that when he heard the sirens, Barrett then took off running towards his car. Jones went after him and, after a brief scuffle, handcuffed him and placed him in the back of his cruiser. Barrett was arrested for resisting arrest. According to Barrett's testimony, while he did walk back towards his car when he thought the traffic stop was over, he never tried to run; [he also attested that] Jones did not call for any canine unit until Barrett was secured in the back of the cruiser.
Jones searched the interior of the Altima incident to the arrest.[ ] He did not find any weapons or contraband inside the car. However, he saw that the back seat had been opened a bit, allowing access to the trunk. Jones pushed the seat over, and through this access, he could see three shoe boxes and a single shoe beside one of them. One of the shoe boxes looked like it had something wrapped in plastic inside. Jones did not search the trunk at that time but waited for the canine unit to arrive. When the dog arrived, he walked around the
vehicle and then was allowed in the interior. The dog went to the back seat and alerted to the trunk area.
Jones opened the trunk and then the shoe boxes. One of the boxes contained what appeared to be a "brick" of cocaine wrapped in plastic. Barrett indicated he wanted to make a statement. Jones advised Barrett of his Miranda rights, and he admitted that the substance was cocaine. Jones transported Barrett to the KSP post. He was not charged with trafficking at that time because the police and the DEA wanted Barrett to act as an informant. However, this arrangement fell through when Barrett was arrested again in Georgia.
Jones testified that he asked Barrett to get out of the car because he found it suspicious that Barrett said he was going to his relative's house, but he did not know the relative's address or even the name of the street. Rather, Barrett only knew how to get there. When Barrett testified during the suppression hearing, he attested that he did not know the address because the relative had just moved to that new address about a month prior to the stop in this case.
Barrett also attested that Jones did not call for the canine unit until after he had already searched the car and that Jones did not turn on the dashboard camera in his patrol car to record the events in question until after Barrett was already secured in the back of the patrol car and Jones had done his initial search of the car driven by Barrett. Jones acknowledged during his testimony that he did not turn on his dashboard camera until after Barrett was secured in the back of the patrol car, but he contended that sometimes the camera worked and other times it did not. On the day in question, he thought the camera was on earlier during the stop, but later discovered it was not. So, he turned it on at that time.
Jones testified that he searched the car incident to Barrett's arrest for the charge of resisting arrest. However, we note that Jones attested during the suppression hearing that he did not plan on arresting Barrett for speeding. When defense counsel asked Jones how he could charge Barrett with resisting arrest when he was not planning to arrest him for speeding to begin with, Jones never answered the question, despite being asked multiple times.
Barrett was indicted in this case on charges of: first-degree trafficking in a controlled substance, second offense; resisting arrest; reckless driving; and speeding greater than 24 miles-per-hour. He moved the circuit court to suppress the evidence found during the search of the vehicle he was driving on June 3, 2007. The circuit court denied his motion to suppress.
Barrett then moved to enter a conditional guilty plea in accord with the Commonwealth's Offer on a Plea of Guilty. The Commonwealth's offer provided that if Barrett entered a conditional guilty plea to the charges of first-degree trafficking in a controlled substance, second offense, and resisting arrest, the Commonwealth would seek to dismiss the counts of reckless driving and speeding greater than 24 miles-per-hour. The Commonwealth would also recommend a sentence of twelve years on the trafficking charge and twelve months on the resisting arrest charge. The offer was conditioned on Barrett's right to appeal the denial of his motion to suppress. The court accepted his conditional guilty plea and sentenced Barrett to twelve years of imprisonment for the trafficking offense and twelve months in the county jail for the resisting arrest offense, with the sentences to be served concurrently with each other.
Barrett now appeals, contending that: (a) Jones's search of the vehicle driven by Barrett was improper and the evidence and Barrett's subsequent statements should be suppressed; and (b) the trial court erred in allowing the Commonwealth to indict Barrett with a second or subsequent offense enhancement.
II. ANALYSIS
A. PROPRIETY OF VEHICLE SEARCH
Barrett first alleges that Jones's search of the vehicle driven by Barrett was improper and that the evidence and Barrett's subsequent statements should be suppressed. "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).
New York v. Belton, 453 U.S. 454, 101 S. Ct. 2860, 69 L.Ed.2d 768 (1981), was the law at the time the search in this case was conducted. In Belton, the United States Supreme Court held that "when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile." Belton, 453 U.S. at 460, 101 S. Ct. at 2864 (footnotes omitted).
Subsequently, in Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L.Ed.2d 485 (2009), the United States Supreme Court rejected a broad reading of Belton and held that
[p]olice may search a vehicle incident to a recent occupant's arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arrestee's vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.Gant, 556 U.S. at 351, 129 S. Ct. at 1723-24.
The search in Barrett's case occurred prior to the United States Supreme Court's decision in Gant. The circuit court in this case held that the search of the vehicle was proper under Belton, which was the law at the time the search was conducted. Barrett contends that in arriving at this conclusion, the circuit court incorrectly applied Valesquez v. Commonwealth, 362 S.W.3d 346 (Ky. App. 2011).
In Valesquez, the defendant's vehicle was stopped "for the sole reason that he failed to use his turn signal when he turned left from a left-turn-only lane. Upon checking Valesquez's license, [the police officer] discovered that Valesquez was driving on a suspended license." Valesquez, 362 S.W.3d at 347. Valesquez was then removed from his vehicle, placed under arrest for driving on a suspended license, and his person was searched but no weapons or contraband were found on him. Valesquez, 362 S.W.3d at 347. A search was conducted of the passenger compartments of Valesquez's vehicle. No incriminating evidence was in plain sight in the vehicle and Valesquez "was secured in the back of [the police officer's] cruiser during the vehicle search." Valesquez, 362 S.W.3d at 348. While the officers were "leaning on the backseat in their attempt to look under the driver's seat, [they] discovered that the cover of the backseat was loose and ajar. [One of the officers] used his hand to easily lift the cover, revealing three bags of suspected cocaine and a set of digital scales underneath the cover of the backseat." Valesquez, 362 S.W.3d at 348. Valesquez was then arrested for the drug offenses. Id. In reviewing the case on appeal, a panel of this Court examined both Belton and Gant, as well as the United States Supreme Court's decision in Davis v. United States, 564 U.S. ___, 131 S. Ct. 2419, 180 L.Ed.2d 285 (2011). This Court held that the search of Valesquez's vehicle was "clearly illegal in light of Gant." Valesquez, 362 S.W.3d at 350. However, this Court held that
the good faith exception to the exclusionary rule applies; the officers conducting the search were operating in a pre-Gant situation and were relying on Belton, which at the time of the search was read to "authorize automobile searches incident to arrest of recent occupants, regardless of whether the arrestee in any particular case was within reaching distance of the vehicle at the time of the search." Davis, 564 U.S. at ___, 131 S. Ct. at 2425.Valesquez, 362 S.W.3d at 351. Therefore, this Court held that "[b]ecause the officers conducted the search in reasonable reliance on binding appellate precedent, the exclusionary rule does not apply in [Valesquez's] case and the evidence obtained in the search should not have been suppressed." Valesquez, 362 S.W.3d at 351.
In the present case, like in Valesquez, Belton was the law at the time the search was conducted. Again, Belton provided that "when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile." Belton, 453 U.S. at 460, 101 S. Ct. at 2864 (footnotes omitted) (emphasis added). In this case, Jones claimed that he conducted the search of the car incident to Barrett's arrest for resisting arrest. Although Barrett was secured in the back of Jones's police car and Jones did not search the car for the purpose of discovering evidence supporting Barrett's arrest for resisting arrest or his speeding violation, Jones was nevertheless permitted to conduct the search of the passenger compartment because he did so in reasonable reliance on binding appellate precedent, i.e., Belton.
However, whether Jones was permitted to search the trunk of the car is another issue. Valesquez is not instructive on this point because the search at issue in that case did not involve a car's trunk. Jones's search of the car trunk and the shoeboxes located therein incident to Barrett's arrest for resisting arrest and his speeding infraction was not proper because the trunk and shoeboxes did not constitute the "passenger compartment" of the car, as specified in Belton.
Regardless, the evidence discovered as a result of Jones's search of the trunk was admissible under the independent source doctrine. "The independent source doctrine allows admission of evidence that has been discovered by means wholly independent of any constitutional violation." Nix v. Williams, 467 U.S. 431, 443, 104 S. Ct. 2501, 2508, 81 L.Ed.2d 377 (1984). In this case, the police dog conducted a drug sniff of the vehicle and alerted to the presence of drugs in the trunk. This gave Jones probable cause to search the trunk of the car. Johnson v. Commonwealth, 179 S.W.3d 882, 886 (Ky. App. 2005). Consequently, the circuit court properly denied Barrett's motion to suppress.
B. SECOND OR SUBSEQUENT OFFENSE ENHANCEMENT
Barrett next contends that the trial court erred in allowing the Commonwealth to indict Barrett with a second or subsequent offense enhancement. Specifically, Barrett alleges that the circuit court found that he had "a Trafficking arrest and conviction out of the State of Georgia from June 23, 2007. . . . [Barrett's] Kentucky arrest date and conviction [was] June 3, 2007, before his Georgia arrest and conviction." (Emphasis removed). Thus, he asserts that the second or subsequent offense enhancement was improper.
The circuit court noted that although Barrett was arrested in this case on June 3, 2007, as of the date that the circuit court denied his motion to dismiss, i.e., December 4, 2012, the trial had not yet occurred and it was scheduled for January 2013. However, the circuit court found that in 2007, Barrett was convicted in Georgia on the charge of trafficking.
Pursuant to KRS 218A.010(41),
Kentucky Revised Statute.
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"Second or subsequent offense" means that for the purposes of this chapter an offense is considered as a second or subsequent offense, if, prior to his or her conviction of the offense, the offender has at any time been convicted under this chapter, or under any statute of the United States, or of any state relating to substances classified as controlled substances or counterfeit substances, except that a prior conviction for a nontrafficking offense shall be treated as a prior offense only when the subsequent offense is a nontrafficking offense.
The enhancement set forth in KRS 218A.010 for second or subsequent offenses "is not premised upon an offense-to-offense sequence but upon a conviction-to-conviction sequence." Fulcher v. Commonwealth, 149 S.W.3d 363, 380 (Ky. 2004). Therefore, because Barrett was convicted in Georgia before he was convicted in the present case, the circuit court properly found that the "second or subsequent offense" enhancement was applicable to this case.
Accordingly, the judgment of the Henderson Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Dax R. Womack
Henderson, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Frankfort, Kentucky
Christian K. R. Miller
Assistant Attorney General
Frankfort, Kentucky