Opinion
NO. 2018-CA-000297-MR
09-20-2019
JAMES CHAPPELL APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Ryan James Reed Fort Mitchell, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Frankfort, Kentucky William Robert Long, Jr. Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE DANIEL J. ZALLA, JUDGE
ACTION NO. 16-CR-00452 OPINION
AFFIRMING
** ** ** ** **
BEFORE: JONES, NICKELL, AND TAYLOR, JUDGES. TAYLOR, JUDGE: James Chappell brings this appeal from a February 1, 2018, Judgment and Sentence rendered by the Campbell Circuit Court upon a conditional plea of guilty following the denial of his motion to suppress. We affirm.
On April 16, 2016, at approximately 2:00 a.m., Officer Chris Boyd of the Newport Police Department was on patrol in the area of Fourth Street. Officer Boyd initiated a traffic stop of Chappell's vehicle for failure to use a turn signal and failure to properly display a license plate. Officer Boyd approached the vehicle, and Chappell rolled down the window. Officer Boyd testified he immediately detected the distinct odor of burnt marijuana coming from Chappell's vehicle. Officer Boyd asked Chappell to produce his driver's license and proof of insurance, but he could not. Officer Boyd called for backup, and Lieutenant Kevin Drohan responded. Lieutenant Drohan testified he too detected the odor of burnt marijuana coming from the vehicle. Officer Boyd then directed Chappell to exit the vehicle and proceeded to search Chappell. The search of Chappell produced $2,302 in cash and three cell phones. A search of the vehicle produced several baggies containing heroin. Chappell was placed under arrest.
On June 16, 2016, a Campbell County grand jury indicted Chappell upon one count of importing heroin, Kentucky Revised Statutes ((KRS) 218A.1410); trafficking in a controlled substance in the first degree, over 2 grams, second or subsequent offense (KRS 218A.1412); no insurance (KRS 304.39-080); license to be in possession (KRS 186.510); improper display of registration plate (KRS 186.170); and failure to or improper signal (KRS 189.380).
A motion to suppress the evidence seized from Chappell and from his vehicle was filed on September 30, 2016. The circuit court subsequently conducted an evidentiary hearing upon the motion to suppress. Kentucky Rules of Criminal Procedure (RCr) 8.27. By Opinion and Order entered July 7, 2017, the circuit court denied the motion to suppress by reasoning:
Officer Boyd observed [Chappell] proceeding down 4th Street with a temporary tag that failed to meet the requirements of KRS 186.170. Officer Boyd then pulled [Chappell] over, approached the vehicle, and smelled what, in his professional experience, he believed to be the odor of marijuana. At that point, Officer Boyd had an articulable, reasonable suspicion of criminal activity, meriting a search of [Chappell] and [Chappell's] vehicle. Upon finding heroin in the vehicle, Officer Boyd had probable cause to arrest [Chappell].July 7, 2017, Opinion and Order at 7.
Chappell subsequently entered a conditional guilty plea to importing heroin; trafficking in a controlled substance in the first degree, over 2 grams, second or subsequent offense; no insurance; license to be in possession; improper display of registration plate; and failure to or improper signal. See RCr 8.09. Chappell was sentenced to a total of fourteen-years' imprisonment. This appeal follows.
Chappell initially contends the circuit court erred by denying his motion to suppress evidence from his person and his vehicle. Chappell argues that insufficient evidence supported the circuit court's findings that both officers detected the odor of marijuana coming from Chappell's vehicle. More specifically, Chappell asserts the circuit court improperly relied upon the officers' training and experience as neither officer had any training on how to detect the odor of marijuana, and neither could demonstrate any experience in accurately detecting the odor of marijuana.
Upon review of a circuit court's denial of a motion to suppress, we must initially determine whether the court's findings of fact are supported by substantial evidence. Commonwealth v. Neal, 84 S.W.3d 920, 923 (Ky. App. 2002). "Substantial evidence is evidence of substance and relevant consequence having the fitness to induce conviction in the minds of reasonable men." Commonwealth v. Jennings, 490 S.W.3d 339, 346 (Ky. 2016) (citation omitted). If the findings of fact are supported by substantial evidence, we must then undertake a de novo review of the trial court's application of law to the facts. Neal, 84 S.W.3d at 923; Greer v. Commonwealth, 514 S.W.3d 566, 568 (Ky. App. 2017).
In this case, it is unrefuted that both Officer Boyd and Lieutenant Drohan testified they detected the odor of marijuana coming from Chappell's vehicle. Both officers, likewise, testified they had previous experience detecting the odor of marijuana. Officer Boyd testified he had experience detecting the odor of marijuana in his current position with the Newport Police Department and also had several years of experience with the Northern Kentucky Cincinnati International Airport Police. Lieutenant Drohan testified that he too had experience detecting the odor of marijuana as a police officer with the Newport Police Department. Considering the officers' experience, we believe evidence of substance and relevant consequence capable of inducing conviction in the minds of reasonable persons was presented to support the finding that Officer Boyd and Lieutenant Drohan had experience detecting the odor of marijuana and were capable of accurately detecting same. See Jennings, 490 S.W.3d at 346. And, we are mindful that the credibility of witnesses' testimony and the weight afforded their testimony are within the sole province of the circuit court, as fact-finder. Pitcock v. Commonwealth, 295 S.W.3d 130, 132 (Ky. App. 2009) (citation omitted). As such, we conclude that the circuit court's finding that the officers detected the odor of marijuana emanating from the vehicle was supported by substantial evidence of a probative value.
Kentucky Rules of Civil Procedure 52.01 is applicable in criminal proceedings by virtue of Kentucky Rules of Criminal Procedure 12.02.
Chappell next contends the circuit court erred in its application of law to the facts. More specifically, Chappell asserts the circuit court improperly "applied the lesser standard of reasonable suspicion as opposed to the correct standard of probable cause" in analyzing whether the search of Chappell's person and of his vehicle were constitutional. Chappell's Brief at 17. As a result, Chappell argues his motion to suppress was improperly denied.
In this case, the circuit court believed that the searches of Chappell's person and vehicle were justified as reasonable articulable suspicion of criminal activity existed based upon the officers' detection of the odor of marijuana. However, Officer Boyd testified that his search of Chappell was not a pat-down but rather a full search of his person. Additionally, Officer Boyd seized money and cell phones from Chappell, rather than weapons. As Officer Boyd performed a full search of Chappell's person, the officer must have possessed probable cause, rather than reasonable suspicion, to do so. See Baltimore v. Commonwealth, 119 S.W.3d 532, 537 (Ky. App. 2003). The probable cause standard also applies to the warrantless search of Chappell's vehicle. See Hedgepath v. Commonwealth, 441 S.W.3d 119, 128 (Ky. 2014). Generally, a warrantless search of a motor vehicle may be justified if the officer possessed probable cause to believe the vehicle contained contraband. See Morton v. Commonwealth, 232 S.W.3d. 566, 569 (Ky. App. 2007) (citing Gray v. Commonwealth, 28 S.W.3d 316, 319 (Ky. App. 2000)).
Pursuant to the seminal case of Terry v. Ohio, 392 U.S. 1 (1968), the Supreme Court held that where police conduct a "brief investigative stop, detention and frisk for weapons short of a traditional arrest based on reasonable suspicion does not violate the Fourth Amendment." Baltimore v. Commonwealth, 119 S.W.3d 532, 537 (Ky. App. 2003). And, a warrantless search that is "more extensive or intrusive than a pat-down for weapons is illegal unless it is supported by probable cause or one of the other exceptions" to the warrant requirement. Id. at 538. --------
The circuit court found that both Officer Boyd and Lieutenant Drohan did detect the odor of marijuana emanating from the vehicle. Our Court has held that the smell of marijuana emanating from a vehicle constitutes probable cause to search the person and to search the vehicle. Greer, 514 S.W.3d at 568; Dunn v. Commonwealth, 199 S.W.3d 775, 777 (Ky. App. 2006). Therefore, we believe the circuit court's utilization of the lesser standard of reasonable suspicion constituted harmless error. RCr 9.24. Based upon the facts as found by the circuit court, we conclude that probable cause existed to justify the search of Chappell's person and his vehicle.
Accordingly, we are of the opinion that the circuit court did not commit reversible error by denying Chappell's motion to suppress. See Wells v. Commonwealth, 512 S.W.3d 720, 722 (Ky. 2017).
We view any remaining errors to be without merit.
For the foregoing reasons, the Judgment and Sentence of the Campbell Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Ryan James Reed
Fort Mitchell, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky
Frankfort, Kentucky William Robert Long, Jr.
Assistant Attorney General
Frankfort, Kentucky