Opinion
NO. 2018-CA-000402-DG
07-19-2019
CAMERON HOLEMAN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Dax R. Womack Henderson, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Nicole Bachman Special Assistant Attorney General Henderson, Kentucky
NOT TO BE PUBLISHED DISCRETIONARY REVIEW FROM HENDERSON CIRCUIT COURT
HONORABLE JOHN L. ADKINS, SPECIAL JUDGE
ACTION NO. 17-XX-00003 OPINION
REVERSING
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BEFORE: ACREE, GOODWINE, AND KRAMER, JUDGES. KRAMER, JUDGE: Cameron Holeman appeals from an order of the Henderson Circuit Court affirming the Henderson District Court's Findings of Fact, Conclusions of Law and Judgment denying his motion to suppress the evidence obtained from the search of his person and vehicle. For reasons stated herein, we reverse.
Holeman was stopped at a roadblock operated by Kentucky State Police ("KSP") in Henderson County on or about September 2, 2016. The roadblock was set up by Troopers Blake Owens and Myles Scott after they received approval from a supervisor. At the roadblock, the troopers used marked KSP cruisers with blue lights flashing. They were in full uniform and wearing agency-issued safety vests. There were no road signs announcing the checkpoint to approaching motorists. Holeman approached the roadblock at approximately 10:50 p.m. He was stopped by Trooper Owens and, after performing field sobriety tests, was placed under arrest and charged with several misdemeanor offenses, including driving under the influence of alcohol. He filed a motion to suppress evidence seized from his person and vehicle, arguing the roadblock violated his Fourth Amendment rights and did not meet the notice requirements set forth in Cox v. Commonwealth, 491 S.W.3d 167 (Ky. 2015). The district court held hearings on February 16, 2017, and May 18, 2017. It subsequently denied Holeman's motion to suppress evidence related to the constitutionality of the roadblock and the notice requirements of Cox. Holeman entered a conditional guilty plea. He appealed to the Henderson Circuit Court, which affirmed the district court in an order that states only, "[h]aving reviewed the record in the above styled and numbered action and finding no error, the decision of the Henderson District Court is AFFIRMED." (Emphasis in original). This appeal followed.
The district court also held that troopers did not give proper warning pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and suppressed statements made by Holeman. That holding was not appealed.
We note that the only evidence of Holeman's plea contained in the record before us is the video recording dated November 22, 2017. At that time, he was assessed $335 in fines and costs and was to attend an "alcohol program." There is no written order regarding the plea or sentencing contained in the record before us.
On appeal, Holeman asserts that the district court's findings of fact and conclusions of law were erroneous, specifically regarding whether KSP provided proper notice of the roadblock, and that the circuit court erred in affirming. We agree.
Findings of fact are reviewed for clear error. CR 52.01. A trial court's findings of fact on a suppression motion are deemed conclusive and will not be overturned so long as they are supported by substantial evidence. Smith v. Commonwealth, 181 S.W.3d 53, 58 (Ky. App. 2005). "Substantial evidence means evidence that when taken alone or in light of all the evidence, . . . has sufficient probative value to induce conviction in the minds of reasonable men." Turley v. Commonwealth, 399 S.W.3d 412, 420 (Ky. 2013) (internal quotations and citation omitted). A trial court's reliance upon evidence not in the record constitutes clear error. Skinner v. Skinner, 249 S.W.3d 196, 201 (Ky. App. 2008). Here, the record does not contain substantial evidence to support the district court's findings that Holeman received adequate notice of the roadblock or that troopers operated pursuant to the then-current General Order OM-E-4 issued by KSP.
Kentucky Rule of Civil Procedure.
If a trial court's findings of fact are supported by substantial evidence the next question addressed by the reviewing court is "whether the rule of law as applied to the established facts is or is not violated." Adcock v. Commonwealth, 967 S.W.2d 6, 8 (Ky. 1998) (citing Ornelas v. United States, 517 U.S. 690, 697, 116 S. Ct. 1657, 1662, 134 L. Ed. 2d 911 (1996)).
At the suppression hearing conducted by the district court on February 16, 2017, Trooper Owens provided the only witness testimony. He had in front of him, and referred to, a General Order OM-E-4. Briefly, the OM-E-4 details procedures and guidelines used by KSP for establishing and conducting roadblocks. Trooper Owens testified that he complied with the policies and procedures contained in the OM-E-4. He further testified that he believed the order had been amended after December 17, 2015, but not prior to Holeman's arrest. However, he could not say for certain that it had been amended, nor could he testify what amendments were made. The Commonwealth did not admit into evidence the OM-E-4 that Trooper Owens referred to during his testimony.
Cox was rendered by the Kentucky Supreme Court on December 17, 2015.
Trooper Owens testified that one of the ways motorists receive notice of roadblocks is through the KSP website, which lists all pre-approved roadblock locations and is periodically updated. This is the only testimony Trooper Owens provided regarding the website. He could not say when the website was last updated prior to Holeman's arrest. He could not say definitively that the roadblock at issue in this case was listed on the website nor could he say what other roadblocks were listed, if any. Other than the extremely limited testimony of Trooper Owens, there was no evidence submitted by the Commonwealth regarding information available on the KSP website pertaining to roadblocks prior to, on the date of, or after Holeman's arrest.
Trooper Owens testified that Kentucky motorists also receive notice of roadblock locations because KSP publishes periodic press releases to media outlets (i.e., radio, television, and newspaper). Trooper Owens was unaware of the last press release prior to the date of Holeman's arrest. He offered no details as to any specific press release. Trooper Owens did not refer to a press release during his testimony and the Commonwealth did not offer a press release into evidence.
At the conclusion of the hearing, the district court expressed concern about the lack of evidence regarding publication of the roadblock locations. Holeman then made an oral discovery request. He wanted to know what was published on the KSP website on the date of Holeman's arrest and what was on the website as of the date of the suppression hearing. Holeman also requested the OM-E-4 as it was on the date of the arrest and any amendments made. The district court said it wanted a list of locations of roadblocks at the time of Holeman's arrest. The Commonwealth agreed to provide the information. The district court did not enter an order following the hearing.
The matter came before the district court again on February 22, 2017, but was continued to March 6, 2017. The record before us shows that on March 6, 2017, the Commonwealth submitted a "Recommendation of County Attorney" stating that the parties wished to continue that matter until April 13, 2017. The document also states, "Parties request a continuance to get officer testimony from officers . . . and to resolve the OM-E-4 discrepancies between the 11/1/05 version and the 12/1/12 version . . . . The Court has requested that we subpoena the three officers listed above for a 1:00 hearing[.]" The Commonwealth again submitted a "Recommendation of County Attorney" on April 13, 2017, that states, "We currently have a suppression hearing set for 4/13/17. Due to officers being out of town and defense counsel's trial schedule, the parties agree that we would like to continue the hearing to 5/18/17." The district court conducted another hearing on May 18, 2017. However, despite the contents of the previously filed recommendations of the county attorney, no testimony was taken on that date. Rather, the parties presented oral arguments. The Commonwealth tendered to the district court what it claimed was a "media announcement." A copy was also provided to defense counsel. The Commonwealth argued that the document showed KSP had issued a publication on September 1, 2016 (i.e., one day prior to Holeman's arrest) regarding traffic checkpoints over the upcoming Labor Day weekend. Defense counsel argued that the "media announcement" did not provide adequate notice under Cox. In his memorandum filed with the district court after the hearing, Holeman argued that the Commonwealth failed to prove that KSP published the "media announcement." The "media announcement" was not filed in the district court record.
The district court entered its findings of fact, conclusions of law, and judgment on October 19, 2017. It relied, in part, on the "media announcement" from the Commonwealth, finding that
The day before [Holeman's arrest], KSP had issued a press release titled "KSP Increasing Patrols During Labor Day Weekend." The press release noted that traffic accidents claimed ten lives during the 2015 Labor Day holiday, and that "[T]he 2016 Labor Day holiday enforcement period begins at 6:00 p.m., Friday, September 2 and continues through Monday, September 5 at 11:59 p.m." The release stated that the locations of traffic safety checkpoints are posted on the KSP website.The district court also found that KSP had established and conducted the roadblock pursuant to OM-E-4 "effective 10/12/92; revision date 12/1/12."
A highway stop of motorists at a government-operated checkpoint constitutes a seizure for Fourth Amendment purposes. Michigan Dep't of State Police v. Sitz, 496 U.S. 444, 450, 110 S. Ct. 2481, 110 L. Ed. 2d 412 (1990). "In order to pass constitutional muster, the seizure must be reasonable[.]" Commonwealth v. Buchanon, 122 S.W.3d 565, 568 (Ky. 2003). The Kentucky Supreme Court has enumerated non-exclusive factors for determining the reasonableness of any particular roadblock:
First, 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.Id. at 571. The Kentucky Supreme Court emphasized that ". . . a mere violation of one factor does not automatically result in a violation of constitutional proportions. The guidelines are to be applied on a case-by-case basis[.]" Id.
Second, the law enforcement officials who work the roadblock should comply with the 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.
Third, 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.
Fourth, the length of a 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 other motorists can proceed.
Holeman's argument at the trial court level, and to this Court, focuses on the third factor. The Kentucky Supreme Court has clarified that the third factor effectively requires adequate notice of the roadblock. Cox, 491 S.W.3d at 172.
The record contains a copy of a General Order OM-E-4 with an effective date of October 21, 1992, and a revision date of November 1, 2005. It appears that it was filed in June 2017, but the date of filing is an assumption by this Court. The document is not file-stamped and appears on page forty-four of the record, after Holeman's "Memorandum In Support of Defendant's Motion To Suppress," which was filed June 13, 2017. Regardless, it was not filed as an exhibit at either of the suppression hearings conducted by the district court. It is unknown which party filed the document. In its judgment, the district court cited an OM-E-4 that was "effective 10/12/92; revision date 12/1/12." This OM-E-4 was not submitted into evidence at either hearing and does not appear in the record. Furthermore, both the effective and revision dates cited by the district court are inconsistent with Trooper Owens's testimony regarding his belief that amendments were made after December 17, 2015. Perhaps Trooper Owens's testimony regarding amendments was incorrect or, possibly, no amendments were made prior to Holeman's arrest; however, no evidence in the record refutes Trooper Owens's testimony. Although Trooper Owens testified that he complied with the OM-E-4, it is unknown to which specific version he referred.
More problematic is the district court's reliance on the "media announcement" for its finding that KSP gave proper notice of the roadblock under Cox. The Commonwealth attached what it refers to as a "press release" as an appendix in its brief to this Court. The document appears to be an email between two KSP employees, namely, an individual named Corey King and an individual named Courtney Milliken. Assuming arguendo that this is the same "media announcement" tendered by the Commonwealth on May 18, 2017, and upon which the district court relied, it was not entered into the record. Moreover, even if the district court had filed the document in the record, it is hearsay. KRE 801 defines hearsay as an oral or written assertion, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. KRE 802 provides that hearsay is not admissible "except as provided by these rules or by rule of the Supreme Court of Kentucky." The Commonwealth relies on the email to prove the truth of the matter asserted (i.e., that KSP issued a media announcement one day prior to Holeman's arrest and that specific roadblock locations were listed on the KSP website). Neither of the individuals listed in the email testified. Indeed, no witness offered testimony regarding the "media announcement." We agree with Holeman that the record is lacking any evidence whatsoever to support the district court's finding that a media announcement had been published by KSP.
Kentucky Rule of Evidence.
See KRE 803-04.+
The Kentucky Supreme Court has held that notice was inadequate where KSP "did not erect warning signs down the road to inform vehicles approaching the site, nor did they post any announcements of a proposed checkpoint to the media." Cox, 491 S.W.3d at 172. Similarly, in Commonwealth v. Wheeler, 558 S.W.3d 475 (Ky. 2018), the Kentucky Supreme Court held that, even though troopers had activated their blue lights and were wearing safety vests at a roadblock, there was insufficient notice because the Commonwealth could not prove that a media announcement had been issued, nor were there road signs or cones visible prior to motorists arriving at the roadblock. In the instant action, it is undisputed that there were no road signs posted to alert approaching motorists.
In Wheeler, the defendant was arrested in March 2015. At the suppression hearing in Wheeler, the Commonwealth offered into evidence a press release from May 2015.
Trooper Owens testified only to his personal knowledge surrounding the facts associated with the establishment and operation of the roadblock the night of Holeman's arrest. His testimony that KSP had made a media announcement was merely an assumption; as was his testimony that information regarding roadblocks in the area was available on the KSP website. Holeman argues that the Commonwealth did not prove that the "media announcement" was actually published to the public. We agree.
The district court's findings of fact were clearly erroneous. First, it relied on a version of the General Order OM-E-4 that was not part of the record when it found that KSP acted in accordance therewith. Second, the district court relied on a "media announcement" that is not part of the record, was not authenticated, and is hearsay. Accordingly, the circuit court erred when it affirmed the district court. Hence, we reverse the Henderson Circuit Court with directions to enter a new judgment not inconsistent with this opinion.
Holeman also argues that he did not receive a "meaningful appeal" from the Henderson Circuit Court. Because we are reversing on other grounds, we need not address the argument. --------
ALL CONCUR. BRIEF FOR APPELLANT: Dax R. Womack
Henderson, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Nicole Bachman
Special Assistant Attorney General
Henderson, Kentucky