Opinion
NO. 2011-CA-001439-MR
01-04-2013
MICHAEL D. EDDINGS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Karen Shuff Maurer Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Courtney J. Hightower Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM MUHLENBERG CIRCUIT COURT
HONORABLE BRIAN WIGGINS, JUDGE
ACTION NO. 11-CR-00051
OPINION
VACATING AND REMANDING
BEFORE: CLAYTON, STUMBO AND THOMPSON, JUDGES. STUMBO, JUDGE: Michael Eddings appeals from a conditional guilty plea in which he reserved the right to appeal the denial of his motion to suppress. We find that the trial court should have granted the motion to suppress. We therefore vacate the conditional guilty plea and remand.
Michael Eddings was in Lee Cemetery in Muhlenberg County on February 12, 2011, at about 10:30 p.m. Eddings was in his car with a female passenger. Constable Darren Albro was patrolling the cemetery that night. It was a routine patrol of the area, there having been no specific complaints about illegal activity in the cemetery that night. Constable Albro thought it was suspicious that a vehicle was in the cemetery so late at night. He activated his blue lights and spotlight as he approached the vehicle. Constable Albro testified at the suppression hearing that he had no suspicion of criminal activity at the time.
Constable Albro called dispatch and his nephew, Deputy Shannon Albro, responded to the scene. Before Deputy Albro arrived, Constable Albro went to Eddings's car and asked for identification. Eddings did not have his driver's license, but provided Constable Albro with his social security number. The female passenger also provided her driver's license. While Constable Albro was checking to see if there were any warrants or other issues in regard to Eddings and his passenger, Deputy Albro arrived. Deputy Albro requested that Eddings exit the vehicle and proceed to the rear of the car. At the suppression hearing, Deputy Albro also testified that he did not have a suspicion of criminal activity at the time. At about this same time, Constable Albro discovered there were no active warrants or any other problems in relation to Eddings and his passenger. Constable Albro then stood with Deputy Albro and Eddings.
When Eddings got to the rear of the vehicle, Deputy Albro asked Eddings if he had any weapons or anything illegal on him. Eddings replied that he did not. Deputy Albro then asked if Eddings would empty his pockets onto the trunk of the car. Eddings did so. There was nothing obviously illegal in Eddings's pockets. There was a cigarette pack. Deputy Albro asked if he could look inside the cigarette pack. Instead of handing the pack to Deputy Albro, Eddings picked it up, opened the top, and shook it at the officer. Eddings then placed it back on the trunk of the vehicle. Deputy Albro then picked up the pack and looked in it himself. Inside Deputy Albro found what appeared to be a small amount of methamphetamine.
Once he discovered the methamphetamine, Deputy Albro patted Eddings down. While doing this, a small baggie of methamphetamine fell out of Eddings's right pant leg. Eddings then admitted he had marijuana and a pipe in his crotch area. A search of the vehicle resulted in the discovery of another pipe. Eddings was arrested and subsequently indicted for possession of a controlled substance in the first degree, possession of drug paraphernalia, possession of marijuana, and of being a persistent felony offender in the first degree.
Eddings moved to suppress the evidence found at the scene. He argued that it was an illegal detention and any evidence recovered was "fruit of the poisonous tree" and should be suppressed. After a hearing, the trial court found that an illegal detention had taken place, but Eddings had consented to the request to empty his pockets and search of the cigarette pack; therefore, the consent validated the detention and search. The trial court denied the motion to suppress. Eddings then entered into a conditional guilty plea, reserving the right to appeal the suppression issue.
In its order denying the motion to suppress, the trial court found that at the time Deputy Albro began questioning Eddings about whether he had any illegal items in his possession, the detention became unlawful. The Commonwealth did not appeal the issue of the unlawful detention; therefore, our analysis will focus on whether Eddings' consent validated the illegal detention and search.
"[C]onsent to search may—but not necessarily—dissipate the taint of an illegal detention." Baltimore v. Commonwealth, 119 S.W.3d 532, 540 (Ky. App. 2003) (citing United States v. Santa, 236 F.3d 662, 676 (11th Cir. 2000); United States v. Beason, 220 F.3d 964, 967 (8th Cir. 2000); United States v. Hernandez, 279 F.3d 302, 307 (5th Cir. 2002)). "The admissibility of the challenged evidence involves a two-part test: (1) whether the consent was voluntary and (2) whether the consent was an independent act of free will. 'Voluntariness focuses on coercion, and the second prong considers the causal connection between the 'consent' and the prior constitutional violation.'" Id. (citations omitted).
Factors relevant to voluntariness of consent include: (1) the voluntariness of the defendant's custodial status; (2) the presence of coercive police procedures; (3) the extent and level of the defendant's cooperation; (4) the defendant's awareness of his right to refuse consent; (5) the defendant's education and intelligence; and (6) the defendant's belief that no incriminating evidence will be found. Factors relevant to whether consent was an independent act of free will include: (1) the temporal proximity of the illegal conduct and the consent; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the initial misconduct.Id. n.34 (citations omitted).
When reviewing an order that decides a motion to suppress, the trial court's findings of fact are "conclusive" if they are "supported by substantial evidence." Using those facts, the reviewing court then conducts a [de novo]review of the trial court's application of the law to those facts to determine whether the decision is correct as a matter of law.Commonwealth v. Jones, 217 S.W.3d 190, 193 (Ky. 2006) (citations omitted).
At the suppression hearing, Constable Albro, Deputy Albro, and Eddings testified. Their testimony was nearly identical; therefore, the findings of fact are not at issue. What is at issue is whether the court's decision is correct as a matter of law. The trial court found that Eddings's consent validated the illegal detention and search because neither police officer displayed a weapon, physically engaged Eddings, or used commanding language that would have indicated compliance was required. The court found that the officers acted in a professionally courteous manner and were not coercive.
As stated previously, there are two prongs to determine whether consent validated an illegal detention and search. The court has to decide if the consent was voluntary and an act of free will. Here the trial court seems to have only determined that the consent was voluntary. The factors the trial court considered, i.e., no officer displaying a weapon, no use of physical force, no use of commanding language, and the officers' courteous demeanor, all point to the voluntariness of Eddings's consent.
The trial court does not cite to any factors that would show the consent was an act of free will. Such factors would be "(1) the temporal proximity of the illegal conduct and the consent; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the initial misconduct." Baltimore, supra. We find that the facts of this case prove that consent was not an act of free will. Even though it does not appear the police officers purposefully intended to illegally detain Eddings, the search of the items in Eddings's pockets flowed immediately from the illegal detention. A number of Kentucky cases hold that when the consent flows directly from an illegal detention, then the consent is tainted and becomes invalid. See Strange v. Commonwealth, 269 S.W.3d 847, 852 (Ky. 2008); Henson v. Commonwealth, 245 S.W.3d 745, 751 (Ky. 2008); Commonwealth v. Stephens, 2008 WL 2167980, 7 (Ky. 2008); and Stewart v. Commonwealth, 2012 WL 246300, 3 (Ky. App. 2012). Since Eddings's consent was not an act of free will, the evidence obtained as a result of the illegal detention and search should have been suppressed.
Unpublished cases are cited as persuasive authority pursuant to Kentucky Rules of Civil Procedure (CR) 76.28.
In addition, it is worth noting that, although not raised in the trial court, when Eddings placed the cigarette pack back on the trunk of the car without giving it to Deputy Albro, this could have reasonably been viewed as a revocation of consent. See Commonwealth v. Fox, 48 S.W.3d 24, 28 (Ky. 2001) (where the Kentucky Supreme Court held that consent to search was revoked when a defendant consented to the search of a bag, opened it, and showed some contents to the police officer, but then closed the bag without showing all the contents or allowing the officer to have the bag).
For the foregoing reasons, we hold that the trial court should have granted Eddings's motion to suppress because his consent was not an act of free will. Eddings's guilty plea is therefore vacated and this case is remanded for further proceedings.
ALL CONCUR BRIEFS FOR APPELLANT: Karen Shuff Maurer
Assistant Public Advocate
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky