Opinion
NO. 2016-CA-000592-MR
06-23-2017
COMMONWEALTH OF KENTUCKY APPELLANT v. STEPHANIE PEARCE BURKE, JUDGE JEFFERSON DISTRICT COURT AND JUSTIN WAGNER (REAL PARTY IN INTEREST) APPELLEES
BRIEF FOR APPELLANT: Michael J. O'Connell Jefferson County Attorney David A. Sexton Assistant Jefferson County Attorney Louisville, Kentucky BRIEF FOR APPELLEES: Steven R. Romines Gregory D. Simms Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JAMES M. SHAKE, JUDGE
CASE NO. 15-CI-004401 OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE: JOHNSON, JONES, AND THOMPSON, JUDGES. JOHNSON, JUDGE: The Commonwealth of Kentucky ("Commonwealth"), brings this appeal of an order of the Jefferson Circuit Court denying Commonwealth's Petition for Writ of Prohibition and further denying Commonwealth's Motion to Alter, Amend, or Vacate the denial of that Petition for Writ of Prohibition. After reviewing the record in conjunction with the applicable legal authorities, we REVERSE and REMAND this case to Jefferson Circuit Court for further proceedings in light of the Opinion below.
BACKGROUND
The Commonwealth's appeal originates from a traffic stop and subsequent DUI arrest of the real party in interest, Justin Wagner ("Wagner"), on January 26, 2014, in Jefferson County, Kentucky. The Uniform Citation of Louisville Metro Police Department Officer Jeff Eberenz ("Officer Eberenz") listed three factors as the precipitating factors resulting in Officer Eberenz initiating the traffic stop of Wagner:
1) Officer [Eberenz] observed [Wagner's] . . . vehicle speeding up and slowing down erratically [northbound] on US42.
2) [Wagner] failed to signal when turning right onto Seminary Drive.
3) [Wagner's] max speed verified by . . . radar was 59 mph.
Further discussion of Officer Eberenz and Wagner's interactions during the pendency of the stop and arrest is omitted since the issue on appeal before us deals only with the Jefferson District Court ruling on this limited aspect of this matter pre-stop. The specific issue on appeal in this case is the factors and indicia that led Officer Eberenz to initiate the traffic stop of Wagner, which requires analysis of Officer Eberenz's testimony, the associated record, district court rulings, and the circuit court decision on that limited issue. Important for these proceedings is to simply note that Wagner was ultimately charged with Speeding, 14 miles over the posted speed limit, Aggravated Driving Under the Influence, First Offense, and Failure to Give a Proper Signal.
Kentucky Revised Statutes (KRS) 189.390.
KRS 189.380. --------
Wagner filed a suppression motion that was heard before the Jefferson District Court on January 21, 2015, arguing that the traffic stop initiated by Officer Eberenz lacked the reasonable and articulable suspicion necessary for such a stop to occur. The following excerpted testimony proffered by Officer Eberenz (and the rest of the excerpted testimony in this Opinion) is from the court reporter-generated transcript of that January 21, 2015 hearing. The first series of questions answered by Officer Eberenz ("O.E.") are those posed by Assistant Jefferson County Attorney Ben Wyman ("B.W.") on behalf of the Commonwealth:
B.W.: On January 26 of 2014, what were your responsibilities?
O.E.: I was employed . . . by the . . . Louisville Metro Police Department to be a traffic enforcement officer. . . . It was in that capacity that I encountered [Wagner].
B.W.: What first drew your attention to [Wagner]?
O.E.: I observed a vehicle traveling on - getting off of 264 onto US 42. I got in behind the vehicle, observed it was traveling - traveling at varying rates of speed between 264 and where it turned onto Seminary Lane. The vehicle sped up to a maximum of 59 miles per hour. It was traveling fairly slow at first and sped up, sped up to that high speed, slowed down again, and then it eventually turned on Seminary Lane where I stopped it after it failed to . . . use a turn signal to turn right on Seminary from US 42.
B.W.: So what exactly did you observe regarding his speeding?(emphasis added).
O.E.: When he got off of 264 onto Seminary Lane he was traveling at a low rate of speed, maybe 30 miles an hour, nothing too . . . out of the ordinary. When he quickly changed speeds to that higher speed, it was noticeable to me because the speed limit did change to 45 miles per hour, but he increased to a high rate, all the way up to 59 miles per hour, and then before - notably before he was going to make any kind of turn, he dropped his speed back down to a low speed, around 30 to 35 miles per hour. . . . It drew my attention to it because it was varying the speed erratically in my view.
After hearing the testimony and the arguments of counsel the district court made the following ruling:
With respect to the Motion to Suppress based upon the lack of reasonable articulable suspicion, the Court is going to overrule the Motion. The Court finds that [Officer Eberenz] did have reasonable articulable suspicion based upon the fact that his testimony was that he witnessed [Wagner] driving too slowly, about 30 miles an hour, which he found to be too slow for conditions; and although he did not believe that to be breaking the law, it caught his attention, and then [Wagner] sped up to a point which would have been more than 15 . . . or about 15 miles over the limit . . . in a 45 mile an hour zone and then [Wagner] slowed back down to 30 to 35 miles an hour. So it was the totality of those circumstances and erraticness [sic] of [Wagner's] driving that [prompted Officer Eberenz to] pull [Wagner] over.(emphasis added). The court declined to find reasonable and articulable suspicion based upon the alleged lack of a turning signal because "the video is inconclusive as to whether or not [Wagner] used a turn signal or not." After the January 21, 2015 hearing in the district court, the record was supplemented with documentation concerning the radar unit and its maintenance records. The calibration records showed that Officer Eberenz's radar unit had last been calibrated in 2011.
. . . .
[M]y finding is based upon . . . [Officer Eberenz] finding [Wagner's] erratic speed, going from slow to fast to slow.
In a subsequent order, issued on July 31, 2015, the district court reversed its former finding, declaring that "there was no credible evidence to support Officer Eberenz's claim that [Wagner] was speeding . . . and therefore, [Officer Eberenz] had no reasonable articulable suspicion of criminal activity which would justify the stop of [Wagner]," while simultaneously modifying its reasoning and analysis to reach this new, different conclusion. Specifically, the court stated:
The in car video was presented during the hearing on the matter and did not provide support for [Officer Eberenz's] statement of . . . speeding or that [Wagner] failed to use his turn signal. . . . As the video evidence did not support the allegation of speeding, Officer Eberenz then testified that prior to the start of the recording, he had clocked [Wagner] speeding over the posted limit.
The court further found Office Eberenz knowingly provided false statements to the court regarding the calibration and maintenance of his radar unit.
The matter was then brought to the attention of the Jefferson Circuit Court by way of the Commonwealth's Petition for a Writ of Prohibition. That court denied the Petition based upon its decision that it must defer to the district court's findings regarding Officer Eberenz's testimony and its judgment of his veracity and honesty. A subsequent Motion to Alter, Amend, or Vacate Pursuant to Kentucky Rules of Civil Procedure (CR) 59.05 was likewise denied, resulting in the appeal of the circuit court's ruling to us.
STANDARD OF REVIEW
As the Kentucky Supreme Court stated in Grange Mut. Ins. Co. v. Trude, 151 S.W.3d 803, 808 (Ky. 2004) (internal citations and quotations marks omitted):
A writ of prohibition is an extraordinary remedy and we have always been cautious and conservative both in entertaining petitions for and in granting such relief. We have divided writ cases into two classes, which are distinguished by whether the inferior court allegedly is (1) acting without jurisdiction . . . , or (2) acting erroneously within its jurisdiction.The court in Grange went on to state:
[W]rits of prohibition ordinarily have not been granted unless the petitioner established, as conditions precedent, that he (a) had no adequate remedy by appeal or otherwise, and (b) would suffer great and irreparable injury (if error has been committed and relief denied). We have consistently . . . required the petitioner to pass the first test; i.e., he must show he has no adequate remedy by appeal or otherwise. The petitioner must then also meet the requirements of the second test, i.e., by showing great and irreparable injury, alternately defined as "something of a ruinous nature".Id. (internal citations and quotation marks omitted).
Because a writ of prohibition is an original action, the "trial court" in this case is the Jefferson Circuit Court and we must review its findings of fact for clear error and then review its decision to deny the petition under an abuse of discretion standard.
A factual finding is not clearly erroneous if it is supported by substantial evidence. Substantial evidence is evidence, when taken alone or in light of all the evidence, which has sufficient probative value to induce conviction in the mind of a reasonable person. Hunter v. Hunter, 127 S.W.3d 656, 659 (Ky. App. 2003) (internal citations omitted). The abuse of discretion standard is defined by the Kentucky Supreme Court as "whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Miller v. Eldridge, 146 S.W.3d 909, 914 (Ky. 2004).
ANALYSIS
In the case at bar, the Commonwealth seeks a writ of prohibition based on the second type of error described above, where it is alleged the inferior court is acting erroneously yet within its jurisdiction. In a situation such as this, we are tasked with judging the circuit court's deference to the district court's ruling. This necessarily requires a careful analysis of the district court record since the circuit court joined the district court in its findings of fact and refused to disturb the district court's findings. The district court's ruling concerning the alleged untruthful testimony of Officer Eberenz was its basis for granting Wagner's motion to suppress after the record had been supplemented with Officer Eberenz's radar calibration records.
The district court modified the crux of its reasoning from initially denying Wagner's motion to suppress based on "the totality of the circumstances and erraticness [sic]" and "[Officer Eberenz] finding [Wagner's] erratic speed, going from slow to fast to slow" to granting said motion because "It is almost without question that Officer Eberenz knew his statements were false" and "The Court finds that the radar gun and tuning forks used by Officer Eberenz were not properly calibrated and therefore, any reliance on their use would be inappropriate . . . therefore . . . [Officer Eberenz] had no reasonable articulable suspicion of criminal activity which would justify the stop of [Wagner]."
The circuit court found that the Commonwealth's inability to go to trial without crucial evidence constituted great injustice and irreparable harm when determining it must conduct the aforementioned writ of prohibition analysis, and that seeking a writ was the only recourse available in this situation. Ultimately, the court declined to issue the sought-after writ, ruling "While [the district court's] choice of words might have been gentler and less damaging to the officer's reputation, they were accurate as applied to his conduct in this case."
Pursuing a writ of prohibition is the correct, and indeed the only, redress available to the Commonwealth based on the district court's rulings. Were the Commonwealth to proceed with attempting to try the case without any of Officer Eberenz's testimony or the evidence flowing from the traffic stop, acquittal or a directed verdict would be a foregone conclusion, leaving the Commonwealth with no right of appeal or further inquiry. Grange at 808. So, not only is the pursuit of a writ of prohibition the only redress available to the Commonwealth, the Commonwealth's case would suffer ruinous and irreparable injury were the court's errors to go unrectified. Id.
We will next address the district court's finding that Officer Eberenz proffered knowing and intentionally false testimony in its court. The court stated:
The Court finds it extremely troublesome that Officer Eberenz proffered testimony that was false. Further, it is almost without question that Officer Eberenz knew his statements were false. Officer Eberenz stated vehemently that he tuned the machine before every shift and that it was properly calibrated and maintained.This finding of intentional dishonesty on the part of Officer Eberenz is wholly unsupported by a nuanced reading of the record. There was clearly some initial confusion regarding the verification of Officer Eberenz's radar unit's readings versus the calibration of same. Following are the relevant selected excerpts of Officer Eberenz's testimony on this issue while being questioned by Assistant Jefferson County Attorney Ben Wyman on behalf of the Commonwealth and Attorney Gregory D. Simms ("G.S.") on behalf of Wagner:
B.W.: You mentioned that you own [your radar unit], maintain it. Does someone calibrate it for you? How does that look like, the maintenance and calibration?
O.E.: I check the calibration of the device daily at the beginning of my shift. I use one tuning fork to verify stationary speed and then two tuning forks to verify the calibration for moving speeds.
B.W.: Did you calibrate the device on the day that you stopped [Wagner]?
O.E.: Indeed I did. Before every shift I do.
. . .
G.S.: The people that they take [radar units] to to check them, they are certified in order to do this?
O.E.: Indeed.
G.S.: Okay. Are you certified?
O.E.: To calibrate my machine?
G.S.: Right.
O.E.: No, ma'am - no, sir. I don't calibrate the machine. I verify the calibration at the beginning of every shift.
Furthermore, Officer Eberenz stated that he could not recall the exact date on the certificate of calibration for his privately-owned radar unit, giving clear indication that he was not attempting to hold himself out as performing calibrations on his radar unit:
G.S.: Okay. Do you have any documentary proof for us today that the machine was calibrated, that it is certified?
O.E.: I have the certificate of calibration in my possession from - I can't remember the exact date on my certificate of calibration, but I do have one that pertains to that device that shows that it was calibrated.Finally, Simms and Wyman both clearly understood the distinction between calibration and verification:
G.S.: Okay. You've got some documentary proof; you don't remember what day is on it?
O.E.: The exact date, no, I do not.
G.S.: And you don't have that with you today is that accurate?
O.E.: In my possession right now, no. It's in my police car.
G.S.: In very brief rebuttal, there is a huge difference between calibration and tuning. This officer cannot say I calibrate [the radar unit] every time before we go out. He doesn't. He's tuning the instrument. He's not calibrating it. When you send it off to someone who is certified to calibrate it, they calibrate the machine. You don't calibrate it each shift. They are tuning it and there's a big difference between those two things. [Officer Eberenz's] not certified to do that. He has testified that he's not certified to do that.There was obviously some initial confusion regarding the verbiage in regard to the proper word usage between calibration and verification, but the record does not support that Officer Eberenz deliberately lied under oath.
B.W.: Your honor, Mr. Simms did not understand what I said. What I said was he verifies the calibration at every shift, and that's exactly what the witness testified to. Thank you.
There is some question between Louisville Metro Police Department calibration guidelines for privately-owned radar units, such as the one possessed by Officer Eberenz, and departmentally-issued radar units. However, even were we to fully disregard the radar findings of Officer Eberenz, that still would not disturb his testimony and the bedrock for the district court's initial finding that the "totality of the circumstances and erraticness [sic]" and "[Officer Eberenz] finding [Wagner's] erratic speed, going from slow to fast to slow" as the basis for creating the reasonable articulable suspicion to initiate the traffic stop of Wagner.
The standard for reasonable, articulable suspicion is relatively low. In fact, "Reasonable suspicion is the lowest tier of the pyramid comprised of probable cause (level two) and preponderance of the evidence (level three): 'the likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of satisfying the preponderance of the evidence standard.'" Baker v. Commonwealth, 475 S.W.3d 633, 634 (Ky. App. 2015) (quoting United States v. Arvizu, 534 U.S. 266, 274, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002)). In Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968), the United States Supreme Court held that "in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Further, reasonable suspicion, while requiring less of a showing than probable cause, requires at least a minimal level of objective justification for making the stop. United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989). Accordingly, the stop of an automobile and the resulting detention of the driver are unreasonable, under the Fourth Amendment, absent a reasonable, articulable suspicion that the driver is unlicensed, or that the automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of the law. Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979) (emphasis added).
The case of Bauder v. Commonwealth, 299 S.W.3d 588 (Ky. 2009), is particularly illustrative of the standard necessary for a police officer to meet the "reasonable, articulable suspicion" standard necessary to make a traffic stop. In Bauder, the police had established a roadblock around the holidays to discourage impaired driving. A police officer pursued and stopped the defendant solely because he turned his vehicle off the highway prior to the roadblock based on his knowledge and experience as a police officer despite the fact that pulling off onto a different road in front of a roadblock is not, in and of itself, illegal. The Kentucky Supreme Court held:
Though [the police officer] may not have observed any other traffic violations on the part of [defendant], [the police officer's] own training and experience, coupled with the above-mentioned circumstances, reasonably indicated that [defendant] was intentionally avoiding the roadblock to evade arrest or detection. As such, [the police officer] clearly had a reasonable suspicion, based on specific and articulable facts, that [defendant] was committing a crime or otherwise engaging in unlawful activity, thus justifying the investigatory stop.Id. at 593.
Thus, in the instant case, even if fully discounting the radar findings and alleged lack of a turn signal, Officer Eberenz's judgment and subsequent testimony that Wagner's speed going from slow to fast to slow constituted erratic driving and that Wagner was traveling at a "high rate" of speed in a 45-mph zone was sufficient to permit an investigatory stop. As the Commonwealth correctly asserts, a police officer may provide lay witness testimony as to whether someone is speeding, meaning that Officer Eberenz was correct to initiate the investigatory stop based on his aforementioned observations and judgment as a police officer even in lieu of the disallowed radar and alleged lack of turn signal evidence. Quist v. Commonwealth, 338 S.W.3d 778, 784 (Ky. 2011).
Based on this standard, as well as the understanding that Officer Eberenz's testimony was neither intended to be nor was misleading or erroneous, the district court's initial finding of the existence of a reasonable and articulable suspicion based on "the totality of the circumstances and erraticness [sic]" and "[Officer Eberenz] finding [Wagner's] erratic speed, going from slow to fast to slow" was the correct finding and any other finding, based on the totality of the circumstances, would be clearly erroneous and unsupported by substantial evidence. The district court, while proceeding within its lawfully-granted jurisdictional powers, did so erroneously, and the Jefferson Circuit Court erred and committed an abuse of discretion in denying the requested writ while adopting the District Court's flawed factual determinations and resulting analysis. The Commonwealth possessed no adequate remedy to this error except via a writ and its case would suffer irreparable and ruinous injury were the inferior court's error not reversed. The writ of prohibition must therefore be granted.
CONCLUSION
Based upon the foregoing, this matter is hereby reversed and remanded to the Jefferson Circuit Court with direction to issue the writ in accordance with this Opinion.
JONES, JUDGE, CONCURS.
THOMPSON, JUDGE, DISSENTS WITHOUT SEPARATE OPINION. BRIEF FOR APPELLANT: Michael J. O'Connell
Jefferson County Attorney David A. Sexton
Assistant Jefferson County Attorney
Louisville, Kentucky BRIEF FOR APPELLEES: Steven R. Romines
Gregory D. Simms
Louisville, Kentucky