Opinion
NO. 2012-CA-001830-DG
03-07-2014
THOMAS P. CARR APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: John H. Harralson, III Louisville, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Michael J. O'Connell Jefferson County Attorney David A. Sexton Special Assistant Attorney General Louisville, Kentucky
NOT TO BE PUBLISHED
ON DISCRETIONARY REVIEW FROM JEFFERSON CIRCUIT COURT
HONORABLE MARY M. SHAW, JUDGE
ACTION NO. 11-XX-000081
OPINION
AFFIRMING
BEFORE: COMBS, DIXON AND VANMETER, JUDGES. DIXON, JUDGE: Thomas P. Carr was charged with speeding, reckless driving, driving under the influence, and failure to maintain insurance. The Jefferson District Court granted Carr's motion to suppress the evidence of the traffic stop, concluding the officer lacked probable cause for the arrest. The Court dismissed the charges against Carr, and the Commonwealth appealed the suppression ruling to the Jefferson Circuit Court. The circuit court reversed the district court's suppression order, and this Court granted Carr's petition for discretionary review. We conclude the district court's decision to suppress the evidence was erroneous as a matter of law; accordingly, we affirm the judgment of the Jefferson Circuit Court.
Officer Sam Madison, a twenty-year veteran police officer, testified at the suppression hearing. Madison stated he had training in detection of impaired driving and field sobriety testing. Madison explained that he initiated a traffic stop of Carr's vehicle on Interstate 65 in Louisville. Madison's radar indicated Carr passed the officer at a speed of 83 miles per hour in a 55 miles-per-hour zone. When Madison approached Carr to request his driver's license, Madison smelled the odor of alcohol and observed that Carr's eyes were red. Carr admitted to Madison that he had consumed two beers and that he had finished the second beer twenty minutes prior to the traffic stop. Madison administered three field sobriety tests (the "horizontal gaze nystagmus" (HGN) test, the "walk and turn" test, and the "one leg stand" test) and a preliminary breath test (PBT). Madison explained that on the HGN test, he observed Carr's eye movement while following the tip of a pen. Madison stated that Carr's gaze lacked "smooth pursuit" of the pen. Carr completed the "walk and turn" test by walking heel-toe for nine paces and returning to the starting position. The third test was the one leg stand, in which Carr was asked to hold one foot six inches off the ground and count out loud. Madison stated that Carr did not follow the instructions, as he did not remove his hands from his coat pockets, and he did not stand still as Madison explained the procedure. During the procedure, Madison observed that Carr was wobbly, and he dropped his foot at the seventeen-second mark. Madison administered a PBT, and he stated that it detected the presence of alcohol. Based on Madison's observations, he believed Carr was driving under the influence of alcohol and placed him under arrest. The Commonwealth also introduced the video recording of the traffic stop as evidence during the hearing.
During the summation for the defense, Carr's attorney argued at length regarding the validity of the field sobriety tests and the PBT results. Counsel contended that Madison did not administer the field sobriety tests in strict compliance with the standardized guidelines established by the National Highway Traffic Safety Administration ("NHTSA"). In counsel's opinion, Carr "passed" each of the tests because Madison deviated from the guidelines. As to the PBT, counsel contended the pass/fail result was inadmissible because Madison administered the test after twelve minutes. Counsel opined that the guidelines required a fifteen-minute observation period to ensure there was no residual mouth alcohol. Counsel argued the evidence of the stop should be suppressed because the infirmities in the field sobriety tests and PBT established that Madison lacked probable cause to arrest Carr.
At the close of the hearing, the district court granted the suppression motion from the bench; consequently, the court did not memorialize its findings of fact and conclusions of law in a written order.
The trial court discussed at length whether the field sobriety tests were administered correctly, and it concluded that Carr "passed two if not three" of the tests. The court found that the PBT was "administered too early" and was not "given properly." The court determined that suppression of the evidence was proper because the officer lacked probable cause to arrest Carr.
The Commonwealth appealed the suppression ruling to the Jefferson Circuit Court. The circuit court concluded that, under the totality of the evidence, there was probable cause to arrest Carr for DUI; accordingly, the circuit court reversed and remanded the case to the district court. This Court granted Carr's petition for discretionary review, which alleged the circuit court erroneously considered the "totality of the circumstances" instead of deferring to the findings of the district court.
On appellate review of an order denying a motion to suppress evidence, we first review the trial court's findings of fact under the clearly erroneous standard, and then we review de novo the application of the law to those facts. Welch v. Commonwealth, 149 S.W.3d 407, 409 (Ky. 2004). Likewise, while a reviewing court "must defer to the findings of fact made by a trial court, as a general matter determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal." Commonwealth v. Jones, 217 S.W.3d 190, 196 (Ky. 2006) (internal quotation marks and brackets omitted).
"To determine whether an officer had probable cause to make an arrest, a court must examine the events leading up to the arrest, and then decide 'whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to' probable cause." Jackson v. Commonwealth, 343 S.W.3d 647, 653-54 (Ky. App. 2011), quoting Maryland v. Pringle, 540 U.S. 366, 371, 124 S. Ct. 795, 800, 157 L. Ed. 2d 769 (2003). "Probable cause exists when the totality of the evidence then known to the arresting officer creates a "fair probability" that the arrested person committed the [offense]." White v. Commonwealth, 132 S.W.3d 877, 883 (Ky. App. 2003).
Carr contends the circuit court exceeded its role as a reviewing court by disturbing the district court's factual findings and reweighing the totality of the evidence. We disagree.
Having reviewed the suppression hearing, it appears the district court believed that each piece of evidence, by itself, was not sufficient to support a finding of probable cause. See, e.g., United States v. Arvizu, 534 U.S. 266, 274-75, 122 S. Ct. 744, 751, 151 L. Ed. 2d 740 (2002). In the course of its analysis, the district court stated that the mere admission by Carr that he drank two beers did not establish probable cause. Likewise, the court asserted that the mere odor of alcohol or having red eyes was not enough for probable cause. Further, in discussing Madison's observation that Carr did not follow instructions because he kept his hands in his coat pockets, the court reasoned that Carr might have kept his hands in his pockets because he was cold. The court also noted Madison's observation that Carr dropped his foot after seventeen seconds during the one leg stand. The court did not believe that dropping his foot indicated that Carr was impaired; rather, the court stated that Carr's ability to stand on one leg for seventeen seconds was "pretty impressive."
Based upon our review of the record, we conclude the district court clearly erred in its application of the law to the facts in this case. The court stated that the officer properly initiated the traffic stop because Carr was speeding. The trial court acknowledged Carr's admissions of drinking two beers and finishing the second beer twenty minutes prior to the traffic stop. The court also accepted the officer's observation that Carr smelled strongly of alcohol and had red eyes. As to the field sobriety tests, the court acknowledged the officer's assertions that Carr dropped his foot during the one leg stand test and that he lacked "smooth pursuit" during the HGN test. The totality of the evidence established a "fair probability" that Carr was operating a motor vehicle under the influence of alcohol, in the presence of Officer Madison; consequently, probable cause existed to arrest Carr for DUI. White, 132 S.W.3d at 883. The Jefferson Circuit Court correctly reversed and remanded the decision of the district court.
For the reasons stated herein, we affirm the judgment of the Jefferson Circuit Court and remand the matter to the district court for further proceedings consistent with this opinion.
ALL CONCUR. BRIEF FOR APPELLANT: John H. Harralson, III
Louisville, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Michael J. O'Connell
Jefferson County Attorney
David A. Sexton
Special Assistant Attorney General
Louisville, Kentucky