Opinion
NO. 2019-CA-000241-MR
02-28-2020
BOBBY BEARD APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: G. George Bertram Lexington, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Emily Bedelle Lucas Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM RUSSELL CIRCUIT COURT
HONORABLE VERNON MINIARD, JR., JUDGE
ACTION NO. 17-CR-00178 OPINION
AFFIRMING
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BEFORE: COMBS, JONES, AND L. THOMPSON, JUDGES. JONES, JUDGE: The Appellant, Bobby Beard ("Beard"), pled conditionally guilty to first-degree trafficking in a controlled substance, tampering with physical evidence, and obstructed vision and/or windshield. The Russell Circuit Court sentenced him to five (5) years of incarceration for tampering with physical evidence and six (6) years for trafficking, to be served concurrently. On appeal, Beard asserts that the trial court erred in failing to suppress the evidence gathered from a traffic stop conducted by Officer Pike. Beard argues that Officer Pike did not have reasonable suspicion that Beard was violating traffic law with his obstructed rear view and did not make an objectively reasonable mistake of law in charging Beard with a traffic violation under KRS 189.110 instead of KRS 189.020. Additionally, he argues that Officer Pike did not have reasonable suspicion that Beard was in possession of stolen property. After reviewing the record and applicable legal authorities, we affirm.
Kentucky Revised Statutes.
I. BACKGROUND
On August 29, 2017, Officer Pike was in the process of responding to an unrelated complaint in his law enforcement vehicle in Russell County, Kentucky, when Beard passed him in his pickup truck. Officer Pike noticed a large amount of construction equipment in the back of Beard's truck, reminding him of a police dispatch report he had received earlier that day regarding a pickup truck containing stolen construction equipment in the back. The report did not provide further specifics. Based on that report and the obstruction of Beard's rear view by construction equipment, Officer Pike decided to stop the vehicle.
Upon stopping Beard's vehicle, Officer Pike recognized Beard, with whom he was acquainted, and observed his conduct and behavior. Officer Pike testified that Beard was behaving nervously, placing a cigarette in his mouth backward and stuttering. Based on these observations, he conducted a search of the vehicle and discovered several grams of illegal drugs. Beard had attempted to hide a plastic bag of methamphetamine in a gas station chicken sandwich, although the contents of the bag had spilled onto the vehicle's interior. Officer Pike then completed a citation and post-arrest complaint charging Beard with possession of illegal drugs, tampering with physical evidence, and operating a motor vehicle in violation of KRS 189.110, a traffic safety law regulating automobile window tinting.
On October 26, 2017, a grand jury indicted Beard, charging him with first-degree trafficking of a controlled substance, tampering with physical evidence, obstructed vision and/or windshield, and being a persistent felony offender. On October 18, 2018, Beard filed a motion to suppress the evidence collected during the traffic stop. Beard argued that the August 29, 2017, stop was illegal on the bases of both the lack of a traffic violation and lack of an objectively reasonable and articulable basis for believing the truck was carrying stolen construction equipment. In his argument that Officer Pike did not have a reasonable basis to believe that Beard's vehicle violated any obstructed view statute, Beard pointed out that KRS 189.110(5) allows for rear-view windows to be made "nontransparent" if the vehicle is equipped with side mirrors on each side. Beard's vehicle had the requisite side mirrors. The Commonwealth maintained that Pike had made a "reasonable mistake of law" by charging Beard with violating KRS 189.110 and that the equipment in the back of Beard's truck constituted a nuisance to traffic safety under KRS 189.020. The Commonwealth further contended that Officer Pike had a reasonable, articulable suspicion that Beard's vehicle violated traffic law and contained stolen construction equipment based on the earlier police dispatch.
Officer Pike testified that "part of the reason" he stopped Beard's truck was due to the construction equipment in the back of the pickup truck obstructing the driver's rear view. He admitted, however, that he did not stop every pickup truck he saw with items in the bed obstructing the rear view, nor did he recall ever stopping any camper top pickup trucks, the rear view of which would be completely obstructed by the nature of the camper top structure. Officer Beard explained that his belief that Beard was operating his vehicle with an obstructed view was only part of the reason he stopped Beard. He was also motivated by a desire to determine if the items in the back of the truck matched the description of the report he had seen earlier.
The trial court denied Beard's motion to suppress. Thereafter, Beard entered a conditional guilty plea. As part of his plea, Beard expressly reserved the right to appeal the trial court's denial of his suppression motion. As a result of his plea, Beard was sentenced to five years for tampering with physical evidence and six years for trafficking. The trial court ordered the sentences to be run concurrently. This appeal followed.
II. STANDARD OF REVIEW
The standard of review of a motion to suppress is two-pronged. First, an appellate court may only reverse a trial court's findings of fact if those findings are clearly erroneous. Simpson v. Commonwealth, 474 S.W.3d 544, 546-47 (Ky. 2015) (citing Adcock v. Commonwealth, 967 S.W.2d 6 (Ky. 1998)). The second prong is a de novo examination of the trial court's application of the law to the facts. Id. at 547.
III. ANALYSIS
Beard appeals his conviction on two grounds. First, Beard argues that Officer Pike did not lawfully stop Beard's vehicle or make an objectively reasonable mistake of law when stopping Beard's vehicle for an obstructed rear view. Second, Beard contends that Officer Pike did not have reasonable suspicion that Beard was in possession of stolen property. Beard contends that due to the illegal nature of the stop, all evidence derived therefrom should be suppressed.
The Fourth Amendment provides some leeway for law enforcement's reasonable mistakes of law preceding an investigatory stop. Heien v. North Carolina, 574 U.S. 54, 67, 135 S. Ct. 530, 540, 190 L. Ed. 2d 475 (2014) ("But just because mistakes of law cannot justify either the imposition or the avoidance of criminal liability, it does not follow that they cannot justify an investigatory stop."). Such mistakes of law and of fact must be objectively reasonable and so do not hinge or even touch upon the "subjective understanding of the particular officer involved." Id., 574 U.S. at 66, 135 S. Ct. at 539.
The Supreme Court has expressly held that reasonable suspicion may "rest on a mistaken understanding of the scope of a legal prohibition[,]" so long as that mistaken understanding is objectively reasonable. Id., 574 U.S. at 60, 135 S. Ct. at 536. The combination of an officer's "understanding of the facts and his understanding of the relevant law" gives rise to reasonable suspicion, regardless of whether the officer is mistaken on either ground. Id., 574 U.S. at 61, 135 S. Ct. at 536.
To justify an investigative stop of a vehicle, the stop must be supported by reasonable, articulable suspicion that an offense has been or is about to be committed. Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); Creech v. Commonwealth, 812 S.W.2d 162, 163 (Ky. App. 1991). Reasonable suspicion does not rise to the level of probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard. Rather, it requires a "minimal level of objective justification." United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585, 104 L. Ed. 2d 1 (1989) (citation omitted). The detaining law officer must consider the totality of the circumstances when determining whether there is a particularized and objective basis for stopping a person suspected of criminal activity. See id. The officer may develop reasonable suspicion based on his own personal observation. Commonwealth v. Bucalo, 422 S.W.3d 253, 259 (Ky. 2013).
At the time of the stop, Officer Pike believed that the construction equipment in the back of Beard's pickup truck obstructing Beard's rear view was a violation of KRS 189.110, which was ultimately found to be an error of law. KRS 189.110 provides:
A person shall not operate a motor vehicle required to be registered in the Commonwealth, upon a public highway, road, or street, on which vehicle the rear window is composed of, covered by, or treated with any material which has the effect of making the window nontransparent, unless the vehicle is equipped with side mirrors on both sides.KRS 189.110(5).
The trial court took into consideration both KRS 189.110 and KRS 189.020 and found that Officer Pike had cited the wrong statute. The trial court determined that it was KRS 189.020 that applied to Beard's obstructed rear view. KRS 189.020 states that "[e]very vehicle when on a highway shall be so equipped as to make a minimum of noise, smoke or other nuisance, to protect the rights of other traffic, and to promote the public safety." The trial court concluded that Officer Beard's mistake of law was reasonable. We agree.
Officer Pike's confusion about which statute he suspected Beard was violating does not negate his knowledge that Beard's conduct likely amounted to a veritable statutory violation. Officer Pike reasonably believed that the construction equipment in the back of Beard's truck created a hazard to Beard and other drivers. Ultimately, the trial court agreed with Officer Pike. Officer Pike did not pull Beard over for one instance of misconduct and then later allege different misconduct to fit the law; rather, he mischaracterized Beard's activity as falling under one statute and then corrected the governing statute after the fact.
Under the provisions of KRS 189.020, a vehicle may be in violation of traffic law if it is a "nuisance" or jeopardizes the safety of other traffic. The Kentucky Court of Appeals has previously held that "'other nuisance' should be interpreted as including only those nuisances of a similar kind as noise and smoke." Garcia v. Commonwealth, 185 S.W.3d 658, 664 (Ky. App. 2006) (holding that "other nuisance" does not encompass a cracked windshield). However, KRS 189.020 also requires a vehicle to be so equipped as to "protect the rights of other traffic, and to promote the public safety." Id. Unreasonable impairments to a driver's vision, such as severely cracked windshields, increase the risk of traffic accidents and thus fall under the purview of KRS 189.020. Id.
This Court has previously distinguished between factual circumstances qualifying as a violation of KRS 189.020. Hairline cracks in a windshield, for example, do not justify a stop by the police. Id. at 665. Similarly, driving on a flat tire or tires is not a violation of KRS 189.020 if, for example, "a driver is proceeding slowly to a service station or to an area where it is safe to pull off the road." Foley v. Commonwealth, No. 2015-CA-000247-MR, 2016 WL 5485409, at *3 (Ky. App. Sept. 30, 2016). However, "[d]riving in the left lane at full speed on two completely flat tires, with the rims striking the asphalt, is a factual scenario that does present a significant threat to public safety and to the safety of the driver," and therefore justifies a stop by the police. Id.
Arguably this is a very close case. On the balance, however, we believe Officer Pike had a reasonable belief that the stacked construction equipment in the back of Beard's truck could create a danger to Beard and other drivers sufficient to justify a stop in this instance. The equipment could have prevented Beard from being able to adequately see behind him or other drivers from being able to see around his truck. Until the officer made the stop, he was unable to ascertain whether Beard's side mirrors were sufficiently clear and unobstructed to allow Beard to safely transport his load.
Beard argues that the presence of side mirrors on his pickup truck negates the need for unobstructed rear view. As Beard points out, the Commonwealth failed to introduce any evidence that Beard's truck did not have at least one side mirror as required by KRS 189.130 and KRS 189.110. According to KRS 189.130(1):
[E]very motor vehicle shall be equipped with the following mirrors so located and adjusted as to reflect to the driver a view of the highway to the rear of the vehicle:
(a) One (1) mirror mounted on the left side of the vehicle; and
(b) One (1) mirror mounted either inside the vehicle approximately in the center or on the right side of the vehicle.
Beard states, "it is common knowledge that the most distinguishing characteristic of a 'pickup truck' is an open bed in which various items may be legally transported, many of which will obscure or completely cover the view through the interior rear-view [sic] mirror." Appellant's Br. at 5. Beard further points out that there are many "rear view obstructing items" that are frequently towed behind motor vehicles that can and do completely block the view through the interior rear-view mirror. Beard argues that "[t]he devices that make these practices 'highway safe' are 'SIDE-MOUNTED' rear-view [sic] mirrors, that are standard equipment required by statute in Kentucky." Id. However, no statute, including KRS 189.130, provides blanket authorization for rear-view obstruction so long as there are side-view mirrors.
We find that Officer Pike did have reasonable, articulable suspicion based on the available facts that Beard was driving with his rear view so obstructed as to be dangerous to others on the roadway. The reasonable suspicion standard does not require Officer Pike to have all the facts and evaluate the legality of a situation or action prior to stopping a vehicle. Officer Pike did not need to know prior to the investigatory stop that Beard's vehicle was equipped with side-mounted mirrors potentially sufficient to make up for Beard's obstructed rear view. It would be unreasonable to expect Officer Pike to wholly evaluate the situation prior to stopping Beard, particularly because Officer Pike was operating his own vehicle at the time. Moreover, that information is something Officer Pike would glean upon stopping Beard's vehicle. Officer Pike did not need to verify the illegality of Beard's obstructed view prior to the stop; he simply needed reasonable suspicion that Beard was in violation of traffic law. Therefore, we affirm the trial court's finding that Officer Pike's detention of Beard for obstructed rear view was lawful.
As noted by the trial court, as part of the suppression hearing, Beard limited his challenge to the initial stop of the vehicle waiving all other post-stop issues. In turn, the only issue Beard reserved the right to appeal was the legality of his initial stop. As such, we have not undertaken an analysis of the actual search that was conducted as part of the stop.
Our decision on the legality of the traffic stop moots the issue of whether Officer Pike had a reasonable basis to make the stop based solely on his knowledge that some construction equipment had been reported stolen. On this point, however, we do not agree with the trial court. Officer Pike had very limited information. He knew that there was a report of some stolen construction equipment. There was nothing whatsoever about the report that would tie it to Beard or his vehicle that day. Driving a truck containing construction equipment is rather commonplace. Without more specifics, we cannot agree that the report itself gave Officer Pike a reasonable basis on which to conclude that the equipment in Beard's truck was stolen.
As noted above, this issue is ultimately moot, however, because of Beard's suspected traffic violation. Regardless of a police officer's subjective intent, a traffic stop is permissible so long as "a reasonable officer in the same circumstances" could have stopped the vehicle for a suspected traffic violation. Whren v. United States, 517 U.S. 806, 809, 116 S. Ct. 1769, 1772, 135 L. Ed. 2d 89 (1996) (citation omitted). Both United States and Kentucky courts have repeatedly and expressly eschewed any analysis of the subjective intent of law enforcement, instead focusing on the objective standard of reasonableness. Id.; Commonwealth v. Fox, 48 S.W.3d 24, 28 (Ky. 2001). Therefore, any underlying motivation for stopping Beard is irrelevant so long as there is reasonable suspicion that a traffic violation is occurring.
IV. CONCLUSION
In light of the foregoing, we affirm the judgment of the Russell Circuit Court.
ALL CONCUR. BRIEFS FOR APPELLANT: G. George Bertram
Lexington, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Emily Bedelle Lucas
Assistant Attorney General
Frankfort, Kentucky