Opinion
NO. 2019-CA-001364-MR
05-22-2020
COMMONWEALTH OF KENTUCKY APPELLANT v. JAMES PERRY APPELLEE
BRIEFS FOR APPELLANT: Michael A. Wright Assistant Deputy Attorney General Frankfort, Kentucky Lauren R. Lewis Assistant Attorney General Frankfort, Kentucky BRIEF FOR APPELLEE: Kayla D. Deatherage Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM ANDERSON CIRCUIT COURT
HONORABLE CHARLES R. HICKMAN, JUDGE
ACTION NO. 18-CR-00141 OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS AND JONES, JUDGES; BUCKINGHAM, SPECIAL JUDGE. BUCKINGHAM, SPECIAL JUDGE: The Commonwealth of Kentucky appeals from an order of the Anderson Circuit Court suppressing evidence in a criminal case. Finding no error, we affirm.
Retired Judge David C. Buckingham sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution.
FACTS
Officer Nathan Doty of the Lawrenceburg Police Department testified at a suppression hearing in a criminal case in the Anderson Circuit Court wherein the appellant, James Perry, was a defendant. Officer Doty testified that on August 28, 2018, at approximately 8:21 a.m., he was on patrol when he observed Perry and another person walking down the sidewalk near a nursing home facility. He stated that he knew Perry, as he had previously arrested him on drug charges, and that he knew Perry usually had narcotics on his person and active arrest warrants outstanding. Based on that information, he decided to stop and approach Perry.
Officer Doty testified that upon approaching Perry, he immediately noticed that Perry appeared to be under the influence of narcotics. He stated that Perry had pinpoint pupils and was unsteady on his feet. Shortly after Officer Doty initiated the encounter, Officer Zach King, also of the Lawrenceburg Police Department, arrived on the scene in his police cruiser, having heard over his radio that Officer Doty had left his vehicle to engage Perry.
Officer Doty testified that Perry was very cooperative and was never restrained or handcuffed. Further, Officer Doty testified that neither Perry nor the other person with him expressed a desire not to speak with him. The officer stated that he asked Perry for his consent to search, which Perry granted. During a search of Perry and his backpack, the officer found narcotics and several items of drug paraphernalia. Sometime between 26 and 38 minutes after the stop began, Officer Doty arrested Perry.
As a result of the search and seizure, Perry was indicted by a grand jury in December 2018 on charges of first-degree possession of a controlled substance (heroin), first-degree possession of a controlled substance (methamphetamine), possession of drug paraphernalia, and possession of a legend drug (gabapentin) that was not prescribed to him.
During the search, Officer Doty found numerous hypodermic needles, a shoestring, cotton swabs, a cut straw, and two baggies containing a tan, powdered substance. Perry informed the officers that he was involved with the needle exchange program in Franklin County, and he produced a card that proved it.
Perry's attorney filed a motion to suppress the evidence, and a suppression hearing was held on July 29, 2019. The court heard testimony from Officer Doty and Officer King. Perry did not testify.
The court thereafter entered an order granting the suppression motion and suppressing the evidence seized as a result of the stop. In response to the Commonwealth's argument that Officer Doty did not "stop" Perry but rather approached him for the purpose of engaging him in conversation, the court found that Office Doty "stopped" Perry to investigate him "and he did so because Perry 'usually' had warrants and narcotics on his person[.]" The court found that the officer's purpose "was to detain and investigate Perry." The court also stated that "the Court does not believe that Perry would have been voluntarily allowed to wish Officer Doty a 'good morning' and continue on his way and the interaction would not be classified as a voluntary conversation."
The court further explained that the information relied upon by Officer Doty to approach Perry "does not create a 'reasonable suspicion' that Perry was involved in criminal activity." In essence, the court held that this was not a legal Terry stop. Based on its conclusion that the stop was unlawful, the court held that Perry's consent to search and the subsequent discovery of the narcotics and drug paraphernalia were inadmissible as fruits of the unlawful stop. This appeal by the Commonwealth followed.
See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). --------
STANDARD OF REVIEW
This Court reviews a trial court's findings of fact under a clearly erroneous standard. Commonwealth v. Jennings, 490 S.W.3d 339, 346 (Ky. 2016). "Findings of fact are not clearly erroneous if they are supported by substantial evidence." Id. (citing Simpson v. Commonwealth, 474 S.W.3d 544, 546-47 (Ky. 2015)). To determine whether the trial court's decision is correct as a matter of law, the trial court's application of the law is reviewed de novo. Simpson, 474 S.W.3d at 547. Substantial evidence is evidence that "when taken alone or in the light of all the evidence, . . . has sufficient probative value to induce conviction in the minds of reasonable men." Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003) (citation and internal quotation marks omitted).
ANALYSIS
A person may be briefly stopped for investigative purposes when the police have reasonable suspicion the individual is involved in criminal activity. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). "[I]n 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." Id., 392 U.S. at 21, 88 S.Ct. at 1880 (footnote omitted).
Our state Supreme Court clearly stated the law in Strange v. Commonwealth, 269 S.W.3d 847 (Ky. 2008):
Since the decision in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), it has been well established that the brief detention of a person by a police officer may constitute a seizure within the meaning of the Fourth Amendment of the United States Constitution, and as such may properly be undertaken only if the police officer has a reasonable suspicion based upon objective, articulable facts that criminal activity is afoot. We have recognized however, that not every interaction on the streets between a police officer and a private citizen rises to the level of an investigatory stop with all of its Constitutional ramifications. We held in Commonwealth v. Banks, 68 S.W.3d 347, 350 (Ky. 2001), that "[p]olice officers are free to approach anyone in public areas for any reason," and that "[o]fficers are entitled to the same freedom of movement that the rest of
society enjoys." No "Terry" stop occurs when police officers engage a person on the street in conversation by asking questions.Id. at 850 (citations omitted).
This case presents a question under specific facts concerning when an officer's approach of a person on the street amounts to a Terry stop, subject to the reasonable suspicion requirement, and when it amounts to only a permissible approach by an inquisitive officer. The Commonwealth contends that the trial court misclassified Officer Doty's approach of Perry as a Terry stop requiring reasonable suspicion when it held the stop to be improper. Rather, the Commonwealth, relying on Banks, asserts that "[p]olice officers are free to approach anyone in public areas for any reason." Banks, 68 S.W.3d at 350. Thus, the Commonwealth contends that the officer's encounter with Perry was nothing more than an attempt to engage him in conversation.
The Commonwealth maintains that the officer's decision to stop Perry was based on Perry's criminal background, including the fact that Perry often had narcotics on his person and active arrest warrants. The Commonwealth further states that upon approaching Perry, the officer noted Perry appeared to be potentially under the influence of a narcotic as he was unsteady on his feet and had pinpoint pupils. At that point, the Commonwealth asserts, the officer had reasonable suspicion to investigate Perry and ask for his consent to search. The Commonwealth argues alternatively that if this Court should agree that the encounter constitutes a Terry stop, then the officer had a reasonable suspicion to initiate the stop and the consent to search was valid.
Perry argues in response that the trial court correctly held that the stop was unlawful from the start as Officer Doty lacked reasonable suspicion of criminal activity. Citing Commonwealth v. Sanders, 332 S.W.3d 739, 741 (Ky. App. 2011), Perry notes that this Court has held that the mere act of walking on a street does not create a reasonable suspicion to conduct a stop. In that case, this Court upheld a trial court's granting of a suppression motion where an officer stopped the defendant, who was walking down a street late at night in an area known for drug activity, and arrested her when she gave false information concerning her identity. Id. Citing United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980), Perry also argues that he had been "seized" prior to being asked to give his consent because, due to the show of force by the presence of two officers, he did not feel free to leave. Id., 446 U.S. at 554, 100 S.Ct. at 1877.
In granting the suppression motion, the trial court held that the officer "'stopped' Perry to investigate him and he did so because Perry 'usually' had warrants and narcotics on his person, his purpose was [to] detain and investigate Perry." The court's finding that the purpose was to detain and investigate is supported by the fact that a second officer (Officer King) arrived shortly after the encounter. Officer Doty was on patrol and exited his vehicle to confront Perry. Were his purpose simply to converse with him, it is doubtful a backup unit would have come to the scene. We believe this to be substantial evidence to support the court's determination that the purpose of the stop was to investigate Perry and was, therefore, a Terry stop.
Further, the fact that the second officer arrived on the scene almost immediately after the stop is substantial evidence to support the trial court's conclusion that it did "not believe that Perry would have been voluntarily allowed to wish Officer Doty a 'good morning' and continue on his way[.]" In Mendenhall, the U.S. Supreme Court held "a person has been 'seized' within the meaning of the Fourth Amendment only if . . . a reasonable person would have believed that he was not free to leave." Id. (footnote omitted). One example of a circumstance indicating seizure is "the threatening presence of several officers[.]" Id.
The Commonwealth also argues alternatively that even if there was a Terry stop, then the search was nonetheless valid because Officer Doty had a reasonable suspicion that criminal activity was afoot. We disagree that the information the officer claims to have relied upon was sufficient in that regard. The fact that Perry had been arrested by the officer before and, according to the officer, frequently had narcotics on his person and outstanding arrest warrants does not rise to the level of reasonable suspicion to conduct a stop and conduct an investigation. The facts here are more akin to those in Sanders where this Court upheld the suppression of evidence after an officer stopped an individual who was simply walking down a street late at night in an area the officer knew had drug activity. Sanders, 332 S.W.3d 739.
Finally, the Commonwealth contends that the officer had reasonable suspicion to make the stop because Perry appeared to potentially be under the influence of a narcotic. Because the officer did not make this observation until approaching Perry, we conclude the observation occurred contemporaneously with the stop rather than prior to it and thus disagree.
CONCLUSION
We conclude that the trial court's findings of fact were supported by substantial evidence. Based on those findings, we find no error in the application of the law. The order of the Anderson Circuit Court granting Perry's suppression motion is affirmed.
COMBS, JUDGE, CONCURS.
JONES, JUDGE, DISSENTS AND FILES SEPARATE OPINION.
JONES, JUDGE, DISSENTING: The majority opinion is well reasoned; however, after careful consideration, I must respectfully dissent. Officer Doty observed Perry walking down a public street. While reasonable suspicion of criminal activity is necessary to stop a moving vehicle, an officer, like Officer Doty, does not need to have any suspicion of criminal activity to approach a person on foot in a public place and ask a few questions. "No 'Terry' stop occurs when police officers engage a person on the street in conversation by asking questions." Strange v. Commonwealth, 269 S.W.3d 847, 850 (Ky. 2008) (citation omitted). After approaching a citizen, an officer may ask questions or request identification, and as long as the officer does not restrain the liberty of the person or indicate that compliance with his request is mandatory, the interaction does not amount to an investigatory stop. See I.N.S. v. Delgado, 466 U.S. 210, 216, 104 S.Ct. 1758, 1762, 80 L.Ed.2d 247 (1984). "Even when law enforcement officers have no basis for suspecting a particular individual, they may pose questions, ask for identification, and request consent to search []—provided they do not induce cooperation by coercive means." United States v. Drayton, 536 U.S. 194, 201, 122 S.Ct. 2105, 2110, 153 L.Ed.2d 242 (2002) (citation omitted).
Under certain circumstances, however, what begins as a lawful police encounter can turn into seizure.
Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of
voice indicating that compliance with the officer's request might be compelled.United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980) (citations omitted).
Even though Officer Doty's subjective intention may have been to launch into a further investigation, I do not believe his initial approach of Perry constituted a Terry stop or otherwise violated Perry's rights. Officer Doty was alone when he first made contact with Perry. Nothing indicates that he brandished a weapon, spoke in a harsh tone, or dispatched any orders to Perry. See Drayton, 536 U.S. at 204, 122 S.Ct. at 2112 (emphasis added) ("There was no application of force, no intimidating movement, no overwhelming show of force, no brandishing of weapons, no blocking of exits, no threat, no command, not even an authoritative tone of voice. It is beyond question that had this encounter occurred on the street, it would be constitutional."). Therefore, I do not believe the initial approach/encounter violated Perry's Fourth Amendment rights.
Admittedly, the initial encounter morphed into a full Terry stop once the other officer arrived and Perry was detained further.
The officers acknowledged that in that area they stop and talk to everyone they see out at that time of night. Doing so may be a good police practice, and as stated above, they are free to do so. See Banks, 68 S.W.3d at 350. Undoubtedly, that involvement with citizens deters some from committing crimes and it surely on occasion enables the police to obtain information helpful in the
law enforcement effort. But, when the police take control over a citizen's person, and limit the movement of that citizen, as they did with Appellant, the Fourth Amendment is involved and they must be able to articulate the grounds for their suspicion.Strange, 269 S.W.3d at 852. However, by this point Officer Doty had a reasonable and articulable basis to believe that Perry was engaged in criminal activity, i.e., his observations of Perry's pinpoint pupils and unsteady gait in combination with his knowledge of Perry's past drug use suggested to him that Perry was under the influence of narcotics in a public place. These facts justified a full Terry stop. The record does not indicate that Perry's liberty was restrained prior to this point. Afterward, the facts changed such that a full Terry stop was justified. To this end, I note that it was only after Officer Doty observed that Perry appeared to be under the influence that Officer Doty was joined by another officer, detained Perry for a longer period, and asked permission to search Perry's person.
In sum, it is my opinion that regardless of his reasons, Officer Doty had the right to approach Perry on the public street and engage him in conversation. He did not need any reasonable suspicion of criminal activity to do so. Immediately upon engaging with Perry, Officer Doty had reason to suspect criminal activity because Perry appeared to be under the influence of narcotics. At this point, there was enough to justify a full Terry stop. The other officer arrived on the scene and the request to search occurred after the initial encounter had morphed into a legitimate and justified Terry stop. Accordingly, I do not believe that Perry's rights were violated.
Perry has not argued that his consent was coerced. His argument in favor of suppression is that the search flowed from an illegal detention and seizure, and therefore, the fruits of that search must be suppressed. Because I believe the initial encounter and the following detention were lawful, I do not believe the trial court should have granted the suppression motion, and I would reverse. Nevertheless, I readily admit that this is a very close case; in my opinion, it is one that could benefit from further review and clarification by our Supreme Court. BRIEFS FOR APPELLANT: Michael A. Wright
Assistant Deputy Attorney General
Frankfort, Kentucky Lauren R. Lewis
Assistant Attorney General
Frankfort, Kentucky BRIEF FOR APPELLEE: Kayla D. Deatherage
Frankfort, Kentucky