Opinion
2023-CA-1087-MR
07-26-2024
JIMMY COOK APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Timothy G. Arnold Frankfort, Kentucky BRIEF FOR APPELLEE: Russell Coleman Attorney General of Kentucky Courtney J. Hightower Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM LETCHER CIRCUIT COURT HONORABLE JAMES W. CRAFT, II, JUDGE ACTION NO. 22-CR-00135
BRIEF FOR APPELLANT: Timothy G. Arnold Frankfort, Kentucky
BRIEF FOR APPELLEE: Russell Coleman Attorney General of Kentucky Courtney J. Hightower Assistant Attorney General Frankfort, Kentucky
BEFORE: ACREE, EASTON, AND GOODWINE, JUDGES.
OPINION
GOODWINE, JUDGE:
Jimmy Cook ("Cook") entered a conditional guilty plea in the Letcher Circuit Court reserving the right to challenge the court's denial of his motion to suppress evidence obtained at a roadblock. Based on our review of the record and applicable case law, we vacate and remand.
On April 11, 2022, Kentucky State Police ("KSP") troopers, assisted by the Letcher County Sherriff, set up a roadblock around 1:00 p.m. on Kentucky Route 7 at the Colson Baptist Church in Letcher County. The troopers stopped every vehicle to check license, registration, insurance, and safety restraints. Sheriff Mickey Stines was scheduled to be there with a drug-sniffing dog, but he was late. There were no signs announcing the roadblock, but the officers thought their cruisers were sufficient advertisement and were visible for about five hundred feet in any direction. However, individuals who saw the roadblock and turned around were pursued by troopers manning the roadblock.
Cook was driving his motorcycle on Route 7 when he encountered the roadblock. Trooper Watts asked for his license, registration, and insurance. Cook did not have a driver's license or proof of insurance, so the trooper pulled him to the side, apparently until his motorcycle could be towed away. Trooper Watts ran Cook's social security number and found the title to the motorcycle had been transferred but not registered. The trooper had also received reports from a known informant that Cook was trafficking methamphetamine on his motorcycle and there was a lot of traffic at his residence at night, but he did not independently verify the tips.
Trooper Watts asked Cook to consent to a search of the motorcycle's saddlebags, but he declined. While Cook waited for his motorcycle to be towed, Letcher County Sheriff Stines arrived with a drug detection dog and asked the trooper if he could conduct a canine sweep of the motorcycle. Trooper Watts acquiesced. The dog alerted to one of the saddlebags, so the sheriff searched it and found 50 grams of suspected methamphetamine, drug paraphernalia, and vials of perfume to mask the scent. Trooper Watts then arrested Cook.
On July 14, 2022, Cook was indicted on first-degree trafficking in a controlled substance (more than two grams of methamphetamine), possession of drug paraphernalia, operating on a suspended license, failure to maintain insurance, failure to produce insurance card, expired registration receipt, and expired registration tag.
On February 14, 2023, Cook filed a motion to suppress the evidence. Cook argued the safety checkpoint was not constitutionally reasonable under the Fourth Amendment to the United States Constitution, citing state and federal case law discussing the constitutional limitations on roadblocks. Cook also argued the officers lacked reasonable individualized suspicion to justify the warrantless seizure, and the stop was unlawfully extended to conduct the dog sniff.
The circuit court conducted a hearing on Cook's motion. Trooper Watts and Sheriff Stines testified at the hearing, and much of their testimony focused on the purpose of the roadblock. Trooper Watts testified that they "check for seatbelts, DUIs," and they sometimes will "just be visible, like in high drug trafficking areas." Video Record ("VR") 4/11/23, 9:18:42-9:19:02. On crossexamination, Trooper Watts said the purpose of the stop was for everything, including general crime prevention.
On redirect, the Commonwealth showed Trooper Watts a statement from the KSP website advertising and stating the purpose of roadblocks. From at least the date of the evidentiary hearing in this case, Kentucky State Police Post 13 has a statement on its website about roadblocks:
Kentucky State Police Post Thirteen will be conducting safety traffic checkpoints in the Post Thirteen area. Troopers will be checking for impaired drivers, children that are not properly restrained in child safety seats, and to inform the public about the use of seatbelts. These safety checkpoints will be conducted in various locations throughout the Post Thirteen area that are experiencing a high ratio of vehicular crashes resulting in injury and/or death compared to relatively low safety restraint usage ratio.Record ("R.") at 54. Trooper Watts did not recognize the website statement. Trooper Watts testified he was not the supervisor who approved the checkpoint, did not determine the purpose of it, and did not hear any supervisor say the purpose of the roadblock was to locate drugs or for general crime prevention.
Sheriff Stines testified that he was the K-9 handler for the sheriff's office, and that he was scheduled to be at the roadblock the day Cook was arrested, but he was late. The sheriff testified that he was merely assisting with the roadblock, and he believed the purpose of the roadblock was "a traffic safety checkpoint." VR 4/11/23, 9:57:36-9:57:40. Sheriff Stines testified that when KSP conducts roadblocks, they ask them to join, presumably with the drug-sniffing dog. They conduct roadblocks weekly at various times of the day. For this roadblock, KSP invited the sheriff and the drug-sniffing dog to assist with the roadblock that morning. Like Trooper Watts, Sheriff Stines testified that he arrived late to the roadblock. When he arrived, he learned Cook was waiting for his motorcycle to be towed. Sheriff Stines asked Trooper Watts if he could conduct the drug sniff. Trooper Watts acquiesced, and the dog immediately alerted. Sheriff Stines found 50 grams of suspected methamphetamine, drug paraphernalia, and vials of perfume to mask the drug scent.
At the end of the hearing, the circuit court orally denied Cook's motion. The court found the checkpoint satisfied the factors in Commonwealth v. Buchanon, 122 S.W.3d 565 (Ky. 2003), because it was pre-approved by a supervisor, its primary purpose was advertised and was not for general crime deterrence based on the website statement, it was conducted in daylight, and it was visible for 500 feet in either direction. The circuit court did not address Cook's arguments that the officers lacked reasonable individualized suspicion to justify the warrantless seizure and the stop was unlawfully extended to conduct the dog sniff.
On July 3, 2023, the circuit court entered an order allowing Cook to enter a conditional guilty plea. Cook reserved the right to appeal the circuit court's denial of his motion to suppress.
On July 26, 2023, Cook entered a conditional guilty plea to the amended charge of first-degree trafficking in a controlled substance (less than two grams of methamphetamine), possession of drug paraphernalia, failure to maintain insurance, and not having an operator's license. On August 30, 2023, circuit court entered a judgment and sentence on a plea of guilty, and Cook was sentenced to five years of imprisonment.
On appeal, Cook argues the circuit court erred in denying his motion to suppress because: (1) the primary purpose of the roadblock was general law enforcement, and the circuit court erred in relying on the website instead of witness testimony; (2) the roadblock does not survive the Buchanon Fourth Amendment balancing test; and alternatively, (3) if the Fourth Amendment does not prohibit this roadblock, Section 10 of the Kentucky Constitution does.
The circuit court did not address Cook's arguments that the officers lacked reasonable individualized suspicion to justify the warrantless seizure and the stop was unlawfully extended to conduct the dog sniff. Cook did not ask the court for a ruling on these two issues or raise them on appeal, but he has challenged the constitutionality of the roadblock on appeal.
We apply a two-part standard in reviewing the denial of a motion to suppress:
The trial court's findings of fact are reviewed under the clear-error standard. We accordingly defer to the trial court's fact finding if it is supported by substantial evidence. Substantial evidence is "evidence, taken alone or in light of other proof, that a reasonable mind would find sufficient to support a conclusion." We review the trial court's application of the law to the facts de novo. This means we have "a duty to make an independent evaluation of the record," and will give no deference to the trial court's ruling.Cox v. Commonwealth, 641 S.W.3d 101, 113 (Ky. 2022) (footnotes omitted).
First, Cook argues the circuit court erred in relying on the website instead of witness testimony in determining the purpose of the roadblock was a general safety checkpoint and not a crime deterrent stop. In reviewing whether a roadblock passes "constitutional muster," the Supreme Court of the United States has held that "the seizure must be deemed reasonable." Buchanon, 122 S.W.3d at 568 (Ky. 2003). "The general test for the reasonableness of a seizure requires a reviewing court to '[weigh] the gravity of the public concerns saved by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty.'" Commonwealth v. Cox, 491 S.W.3d 167, 170 (Ky. 2015) (quoting Brown v. Texas, 443 U.S. 47, 50-51, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979)).
Since Brown, the United States Supreme Court updated the reasonableness test to include the purpose of the roadblock, and the Kentucky Supreme Court created four general factors for courts to examine in determining the reasonableness of a roadblock. Id. "Law enforcement may not impose checkpoints 'whose primary purpose is to detect evidence of ordinary criminal wrongdoing.' Rather, roadblocks must have a 'primary purpose,' such as keeping the roads safe from impaired drivers or maintaining border security." Id. (quoting City of Indianapolis v. Edmond, 531 U.S. 32, 41-47 (2000)).
If the purpose of the roadblock is constitutionally valid, then we apply the four non-exclusive factors in Buchanon, 122 S.W.3d at 569, to determine the reasonableness of a particular roadblock:
1. It is important that decisions regarding the location, time, and procedures governing a particular roadblock should be determined by those law enforcement officials in a supervisory position, rather than by the officers who are out in the field. Any lower ranking officer who wishes to establish a roadblock should seek permission from supervisory officials. Locations should be chosen so as not to affect the public's safety and should bear some reasonable relation to the conduct law enforcement is trying to curtail.
2. The law enforcement officials who work the roadblock should comply with procedures established by their superior officers so that each motorist is dealt with in exactly the same manner. Officers in the field should not have unfettered discretion in deciding which vehicles to stop or how each stop is handled.
3. The nature of the roadblock should be readily apparent to approaching motorists. At least some of the law enforcement officers present at the scene should be in uniform and patrol cars should be marked in some manner. Signs warning of a checkpoint ahead are also advisable.
4. The length of the stop is an important factor in determining the intrusiveness of the roadblock. Motorists should not be detained any longer than necessary in order to perform a cursory examination of the vehicle to look for signs of intoxication or check for license and registration. If during the initial stop, an officer has a reasonable suspicion that the motorist has violated the law, the motorist should be
asked to pull to the side so that the other motorists can proceed.Cox, 491 S.W.3d at 170-71 (quoting Buchanon, 122 S.W.3d at 571).
In sum, if "the court finds that the purpose is one that has previously been held by the Supreme Court to be in violation of the Constitution, then there is no need to perform the balancing test enumerated in Brown. If, however, the primary purpose of the checkpoint were determined by the court to be valid, then it would be necessary to apply the balancing test to the facts of each case." Buchanon, 122 S.W.3d at 570.
We begin our analysis by examining the purpose of the roadblock. In Edmond, the Supreme Court of the United States held that although walking a drug-sniffing dog "around the exterior of each car at the Indianapolis checkpoints does not transform the seizure into a search," this act indicates the primary purpose of the roadblock "is to uncover evidence of ordinary criminal wrongdoing" or narcotics interdiction. Edmond, 531 U.S. at 40, 42. The Supreme Court has "never approved a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing. Rather, our checkpoint cases have recognized only limited exceptions to the general rule that a seizure must be accompanied by some measure of individualized suspicion." Id. at 41. The Court further opined:
[T]he gravity of the threat [of drug trafficking] alone cannot be dispositive of questions concerning what means law enforcement officers may employ to pursue a given purpose. Rather, in determining whether individualized suspicion is required, we must consider the nature of the interests threatened and their connection to the particular law enforcement practices at issue. We are particularly reluctant to recognize exceptions to the general rule of individualized suspicion where governmental authorities primarily pursue their general crime control ends.Id. at 42-43. Furthermore, roadblocks are constitutionally permissible for the limited purpose of highway safety. Id. at 43. Though "our streets would no doubt be safer but for the scourge of illegal drugs," roadblocks are only permissible to eliminate "immediate, vehicle-bound threat to life and limb." Edmond, 531 U.S. at 43.
Based on this reasoning, the United States Supreme Court held that the primary purpose of the roadblocks in Edmond was "the general interest in crime control." It declined "to suspend the usual requirement of individualized suspicion where the police seek to employ a checkpoint primarily for the ordinary enterprise of investigating crimes. We cannot sanction stops justified only by the generalized and ever-present possibility that interrogation and inspection may reveal that any given motorist has committed some crime." Id. at 44.
Below, the circuit court relied on the purpose statement on the KSP website to determine whether the purpose of the roadblock was constitutionally valid, but it failed to consider the suppression hearing testimony regarding this roadblock. Law enforcement cannot hide behind a blanket purpose statement on their website to justify all roadblocks, and trial courts cannot solely rely on a website statement to determine a roadblock's primary purpose. Courts must also consider testimony presented at the evidentiary hearing and the specific circumstances of each roadblock in determining whether the purpose of the individual roadblock is constitutionally valid.
Based on our review of the suppression hearing, Trooper Watts' and Sheriff Stines' testimony prove that the purpose of the roadblock was general law enforcement or drug interdiction rather than traffic safety. Trooper Watts testified the purpose of the roadblock was for traffic safety, and KSP likes to be visible in high drug trafficking areas. On cross-examination, the trooper stated the purpose of the roadblock was for "just everything," and answered yes when asked if the purpose was general crime prevention. VR 4/11/23 at (9:27:40-9:28:37). Trooper Watts also testified they pursued vehicles that turned around when they encountered the checkpoint.
Sheriff Stines' testimony is even more convincing. He testified that KSP asks him to bring the sheriff's drug-sniffing dog to roadblocks almost weekly. The testimony of the law enforcement officers who conducted the stop clearly shows that they routinely use the sheriff's drug-sniffing dog to obtain evidence of drug crimes at roadblocks in Letcher County.
Based on this testimony, we conclude the circuit court erred in relying on the KSP website statement to determine the roadblock's purpose: traffic safety. The circuit court ignored Trooper Watts' and Sheriff Stines' testimony that indicates that KSP believed the roadblock was in a high drug trafficking area, and a drug-sniffing dog was scheduled to be present at the roadblock. The testimony presented proves the purpose of the roadblock was general crime deterrence or drug interdiction, which violates the Constitution. Thus, we hold that the primary purpose of the roadblock was general crime control or drug interdiction, which violates the Fourth Amendment of the United States Constitution. As the purpose was invalid, we need not address the Buchanon balancing test or whether the seizure was reasonable.
Alternatively, the Commonwealth invites this Court to find citizen tips provided reasonable suspicion of criminal activity to justify a Terry stop of Cook's motorcycle. We reject the Commonwealth's invitation to transmute this illegal roadblock into a Terry stop and find the trial court erred in denying Cook's motion to suppress.
Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
For the foregoing reasons, we vacate the judgment of conviction and remand with instructions to allow Cook to withdraw his guilty plea.
ACREE, JUDGE, CONCURS.
EASTON, JUDGE, DISSENTS AND FILES SEPARATE OPINION.
EASTON, JUDGE, DISSENTING:
Because the circuit court's finding of the primary purpose of the roadblock is not clearly erroneous, I respectfully dissent.
Edmond establishes the constitutional requirement of a proper primary purpose for a roadblock other than for general crime control, which includes drug possession and trafficking. Edmond did not eliminate secondary purposes. Contrary to the circumstances of the present case, Edmond involved a conceded primary purpose of general crime control relating to illegal drugs, partly illustrated by the fact that a drug detection dog sniffed every car at the roadblock.
To prevent such abuses, Edmond calls for an assessment of the programmatic purpose, and the Kentucky Supreme Court has followed this direction by clearly indicating that the purpose is determined by supervisory officers, not those conducting the checkpoint, who are instead required to follow procedures. Commonwealth v. Cox, 491 S.W.3d 167, 170 (Ky. 2015). The Court in Edmond continued to warn against relying on the subjective intentions of officers on the scene in Fourth Amendment evaluations. 531 U.S. at 45-46.
The finding of the primary purpose is a finding of fact to which we owe deference. We cannot overturn it unless it was clearly erroneous. See United States v. William, 603 F.3d 66 (1st Cir. 2010). While it would be error to ignore clear evidence of a different primary purpose, this case does not involve such evidence.
Only two witnesses testified. Trooper Watts first said the purpose of the roadblock was traffic safety. On cross-examination he was led to say it was general crime prevention - acknowledging that "all of those were purposes of this stop" without specifying which one was primary. On redirect, Trooper Watts said the purpose was what was stated on the webpage. Of course, consistent with Edmond, Trooper Watts did not oversee the programmatic planning indicated on the webpage. Sheriff Stines did not fall into the same cross-examination trap. When bluntly asked if the roadblock was for general crime prevention, he responded: "It's a traffic safety point."
It was for the circuit court to evaluate the testimony and decide what parts of the testimony to believe. See Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003). The testimony when considered as a whole does not establish an improper primary purpose of general crime prevention for the roadblock.
Actual practices at the roadblock can establish a different primary purpose. But the evidence here does not come close to doing so. Vehicles were stopped, and operators, including Cook, were asked for license, registration, and proof of insurance. Cook's failure to have any of these resulted in his continued detention. He could not lawfully drive away. There was no extension of the stop to get a dog to the scene for a sniff. As made clear in Edmond, if done during a proper detention, a dog sniff does not constitute an unreasonable and therefore unconstitutional search. Edmond, 531 U.S. at 40.
The standard of a proper primary purpose acknowledges the existence and permissibility of secondary purposes. With this in mind, there was nothing improper about having a drug sniffing dog at this roadblock. If impaired drivers were detained, they may be under the influence of alcohol or other substances. While officers check paperwork, plain view or smell observations may include suspected drugs or paraphernalia. In such circumstances, a dog could then be used so long as the stop is not improperly extended.
Again, in Edmond every vehicle was sniffed, and general drug interdiction was admittedly the primary purpose. Not so in this case. Our decision does not defer to the finding of the circuit court of the primary purpose and does not allow the proper secondary purpose of detecting drugs when the developing circumstances of the traffic safety check warrants it. I would affirm the circuit court. For these reasons, I dissent.