Opinion
NO. 2016-CA-000438-MR
06-16-2017
WARREN FRASHER APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Brandon Neil Jewell Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Courtney J. Hightower Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM CARTER CIRCUIT COURT
HONORABLE REBECCA K. PHILLIPS, JUDGE
ACTION NO. 15-CR-00025 OPINION
AFFIRMING
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BEFORE: J. LAMBERT, STUMBO, AND TAYLOR, JUDGES. LAMBERT, J., JUDGE: Warren Frasher appeals from the Carter Circuit Court's judgment of conviction following denial of Frasher's motion to suppress. We affirm.
Frasher was arrested by Kentucky Fish and Wildlife Captain Buddy Grayson and Officer Brad Stafford on October 18, 2014, after a complaint had been made that Frasher was hunting with a rifle during muzzleloader season. When the officers arrived at Frasher's campsite, they found him standing near his tent with a .267 gauge Robertson rifle (with scope) laying on top of its case. Frasher wore a large knife on his person. The officers found no other indicia of hunting.
According to Officer Stafford, Frasher approached with his hand in one pocket and refused to remove it after being asked. Feeling that Frasher posed a risk, Captain Grayson performed a pat down search, and a small glass pipe was found in Frasher's pocket. Captain Grayson told Frasher that they would release him with a warning if he "checked out clean." But after running an identification check it was learned that Frasher had an outstanding warrant for his arrest from Jessamine County, Kentucky; he also had a prior felony conviction. Frasher was placed under arrest, and the officers seized the rifle, knife, and glass pipe. A small bag of marijuana, visible within the open tent, was confiscated as well.
On April 10, 2015, the Carter County Grand Jury returned a three count indictment against Frasher, namely, Possession of a Firearm by a Convicted Felon, Possession of Marijuana, and Possession of Drug Paraphernalia. Kentucky Revised Statutes (KRS) 527.040, 218A.1422, and 218A.500(2), respectively. Frasher filed a motion to suppress evidence seized at the campsite, and a hearing was held in Carter Circuit Court on February 9, 2016. The Carter Circuit Court entered an order denying Frasher's motion ten days later. On February 23, 2016, Frasher entered a conditional guilty plea to the three counts, waived the presentence investigation report, and received sentences of one year, one day, and six months, to run concurrently.
Per Kentucky Rule of Criminal Procedure (RCr) 8.09, Frasher reserved the right to appeal the denial of his motion to suppress. The plea colloquy and judgment reflect that Frasher's guilty plea was pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) (i.e., that Frasher did not admit guilt per se but in so pleading acknowledged his belief that the evidence against him strongly indicated guilt and that his interests were best served by a guilty plea). --------
On appeal, Frasher presents a threefold argument that the circuit court's denial of the motion to suppress was erroneous: (1) Frasher claims that the Fish and Wildlife officers were without sufficient suspicion to seize Frasher or enter his campsite; and (2) Frasher claims that the pat down search was unlawful; and (3) Frasher insists that the glass pipe, felt through his pocket, could not be readily identified as contraband.
We shall consider the arguments in the order presented. We begin by stating the standard of review:
On appellate review of the denial of a motion to suppress evidence, we first review the trial court's findings of fact under the clearly erroneous standard; under this standard, the trial court's findings of fact will be conclusive if they are supported by substantial evidence. Simpson v. Commonwealth, 474 S.W.3d 544, 547 (Ky. 2015).Davis v. Commonwealth, 484 S.W.3d 288, 290 (Ky. 2016) (footnote omitted).
. . . . We [next] undertake a de novo review of the trial court's application of the law to the facts to determine whether its decision to deny the motion to suppress was correct as a matter of law. [Simpson v. Commonwealth, 474 S.W.3d 544, 547 (Ky. 2015)]; see also Payton v. Commonwealth, 327 S.W.3d 468, 471-472 (Ky. 2010).
Frasher's first argument is premised upon his contention that the complainant was an anonymous tipster and thus provided unreliable information. This claim is not supported by the evidence presented during the suppression hearing. Frasher gives the following synopsis of the initiation of the investigation in his brief:
Officer Grayson testified that he was at a BP gas station and an irritated man (the complainant) told him that another man [Frasher] ran him off of a piece of private property where the complainant claimed he had permission to hunt. The complainant also told the officer that [Frasher] was related to the person who had given him permission to hunt on the property. Officer Grayson testified that the complainant referred to [Frasher] by name, either in full or in part. Officer Grayson testified that the complainant may have told him his own name, but he did not remember if he did. Officer Grayson testified that he had never met the complainant before. He testified that the complainant said [Frasher] had a high powered rifle, and clarified that the complainant did not say that [Frasher] threatened him with it or pointed it at him.(Citations to the record omitted.)
These facts supplied Captain Grayson and Officer Stafford with sufficient information to conduct an investigation pursuant to KRS 150.090(4), the statute that vests a Fish and Wildlife officer with the authority to enter private property.
All persons charged with the enforcement of this chapter and the administrative regulations issued thereunder shall have the right to go upon the land of any person or persons whether private or public for the purpose of conducting research or investigation of game or fish or their habitat conditions or engage in restocking game or fish or in any type of work involved in or incident to game and fish restoration projects or their enforcement or in the enforcement of laws or orders of the department relating to game or fish, while in the normal, lawful and
peaceful pursuit of such investigation or work or enforcement, may enter upon, cross over, be upon, and remain upon privately owned lands for such purposes, and shall not be subject to arrest for trespass while so engaged or for such cause thereafter. They may arrest on sight, without warrant, any person detected by them in the act of violating any of the provisions of this chapter. They shall have the same rights as sheriffs to require aid in arresting with or without process any person found by them violating any of the provisions of this chapter and may seize without process anything declared by this chapter to be contraband. No liability shall be incurred by any person charged or directed in the enforcement of this chapter.The officers were authorized to investigate the complaint that Frasher was hunting with a rifle during muzzleloader season. Furthermore, the complaint was made in person directly to Captain Grayson, who questioned the complainant regarding the nature of the allegations, the complainant's knowledge of appropriate weapons during that season, and the exact location of the hunting site. The circuit court correctly distinguished this complainant from an anonymous tipster and determined that the officers were within their statutory authority to enter the campsite and conduct an investigation. Davis, supra at 291; see also Commonwealth v. Kelly, 180 S.W.3d 474, 478 (Ky. 2005).
We thus turn to the pat down search conducted by Captain Grayson on Frasher's person. Frasher maintains that Captain Grayson lacked "specific and articulable facts . . . with rational inferences, [to] support a reasonable suspicion that an individual is armed and dangerous in order to justify the pat-down." Frazier v. Commonwealth, 406 S.W.3d 448, 454 (Ky. 2013) (internal quotes and citations omitted). The facts support otherwise. The officers had already observed a high powered rifle within Frasher's reach, and he was visibly armed with a large knife. Given those specific facts and the officers' reasonable belief that Frasher could be in possession of additional weapons and their intent to secure the scene, the circuit court correctly ruled that the pat down search was justified. Fletcher v. Commonwealth, 182 S.W.3d 556, 559 (Ky. App. 2005).
Frasher lastly argues that the circuit court erred in determining that the officers legally extricated the glass pipe from his pocket. Frasher contends that the object was not "immediately apparent as a weapon or contraband." See Commonwealth v. Whitmore, 92 S.W.3d 76, 80 (Ky. 2002). On the contrary, Captain Grayson testified that he had seized 75-100 such pipes in his experience as a Fish and Wildlife officer; therefore, to him the contour of the pipe in Frasher's clothing was immediately apparent as contraband. Id.; see also Minnesota v. Dickerson, 508 U.S. 366, 375-76, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993), and Commonwealth v. Banks, 68 S.W.3d 347, 350 (Ky. 2001). The glass pipe was lawfully seized.
We find no error in fact or law. The judgment of the Carter Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Brandon Neil Jewell
Assistant Public Advocate
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky