Opinion
NO. 2014-CA-000899-MR
02-05-2016
ANTONIO JENNINGS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Roy A. Durham Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Jeffrey R. Prather Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE FRED A. STINE, V, JUDGE
ACTION NO. 11-CR-00231 OPINION
REVERSING AND REMANDING BEFORE: CLAYTON, NICKELL, AND THOMPSON, JUDGES. CLAYTON, JUDGE: Antonio Jennings appeals from the Campbell Circuit Court's October 3, 2011 order denying his motion to suppress evidence. He entered a conditional guilty plea to the charges of being a convicted felon in possession of a handgun and possession of drug paraphernalia. The judgment and sentence were entered on December 2, 2011, and he received a sentence of six years' incarceration. After careful consideration, we reverse and remand for further proceedings.
BACKGROUND
Jennings was indicted by a Campbell County grand jury on charges of possession of a handgun by a convicted felon and possession of drug paraphernalia. During the pendency of the action, he filed a motion to suppress the evidence based on the allegation that his vehicle was illegally searched. The record indicates that on March 16, 2011, Officer John Dunn of the Newport Police Department observed Jennings's vehicle at 1:15 a.m. when he drove it past an entrance to a liquor store and stopped at a traffic light. After stopping, Jennings backed the vehicle up into oncoming traffic for about half a block and made a right turn into the liquor store without using his turn signal.
The liquor store was a drive-thru liquor store. Officer Dunn turned into the parking lot and saw other vehicles in a line behind Jennings's vehicle. Although Officer Dunn planned on stopping Jennings's vehicle, he decided to wait until Jennings drove out of the parking lot. In addition, Officer Dunn radioed for back-up, and Sergeant Herschel Day, who was in the area, came to his assistance. Each police officer stationed himself on a different street on either side of the liquor store. Jennings exited onto the street where Sergeant Day was located, and a traffic stop was initiated.
Officer Dunn took over shortly thereafter as he arrived at the scene. He approached the driver's side while Sergeant Day approached the passenger side where a woman was seated. After routine questioning, Officer Dunn noted the smell of alcohol but he could not see anything in the vehicle and asked Jennings to step out of the vehicle. Instead of complying with the officer's request, Jennings reached to his right behind the front passenger seat. Concerned, Officer Dunn stepped forward, put his hand on his service weapon, asked Jennings what he was reaching for, and told him to get out of the vehicle. Because of Jennings's behavior, the officer patted him down for weapons and cuffed him. Officer Dunn then seated Jennings on the bumper of the police cruiser and asked for permission to search his vehicle. Jennings denied permission and asked to see his lawyer.
Meanwhile, Sergeant Day remained with the female passenger and spoke with her. Officer Dunn never spoke with the female passenger during the stop. During the conversation, Sergeant Day noticed a clear cup with liquid in it in plain view on the center console. The cup was the type of cup provided by the aforementioned liquor store. Sergeant Day also smelled alcohol coming from the vehicle. The female passenger said the alcohol was hers. Sergeant Day asked her to get out of the vehicle and she complied. When Sergeant Day reached in to retrieve the cup, he noticed another cup of partially spilled liquor on the passenger floorboard and that the carpet was wet. It, too, smelled of alcohol. He then moved the passenger seat forward and saw a handgun under the seat.
Sergeant Day explained his actions by stating that because of the alcohol in the cups and the fact that the vehicle had just pulled out of a liquor store, he was looking for an open bottle of alcohol. The sergeant recovered both cups, emptied them, checked for warrants on the female passenger, and cited her for having an open container. She ultimately left the scene on foot. Apparently, it was at this point, after Sergeant Day had discovered the gun, that Officer Dunn advised him that Jennings had not given permission to search the vehicle. Indeed, Sergeant Day testified that he was only informed of this fact after he looked into the vehicle for a liquor bottle. Jennings was not charged for possession of alcohol but was arrested for possession of the gun and drug paraphernalia. A digital scale was found in the vehicle.
On July 12, 2011, Jennings filed a motion to suppress the evidence seized during the search of his vehicle because the search was not consensual, unnecessary, and violated his rights under the Fourth Amendment. The trial court conducted a hearing on the matter on August 22, 2011. On October 3, 2011, it denied the motion to suppress citing Arizona v. Gant, 556 U.S. 332, 335, 129 S. Ct. 1710, 1714, 173 L. Ed. 2d 485 (2009). Gant discusses the automobile exception and held that a warrantless search of a vehicle is justified when it is reasonable to believe evidence relevant to the crime may be found in the vehicle. Following this line of reasoning, the trial court held that the officers had probable cause to stop Jennings's vehicle and probable cause to search the passenger compartment for evidence of an open container violation.
Following the denial of the motion to suppress, Jennings entered a conditional guilty plea to the charge of being a felon in possession of a firearm. The trial court accepted the conditional plea and on December 2, 2011, sentenced him to six years on the charge of Possession of a Handgun by a Convicted Felon and twelve months for Possession of Drug Paraphernalia, with the sentences to run concurrently. The conditional plea permits Jennings to appeal the trial court's denial of his motion to suppress, which he now does.
STANDARD OF REVIEW
Appellate review of a trial court order on a suppression motion involves a two-step analysis. Commonwealth v. Whitmore, 92 S.W.3d 76 (Ky. 2002). First, the factual findings of the trial court are reviewed for clear error and are deemed conclusive if supported by substantial evidence. Bauder v. Commonwealth, 299 S.W.3d 588, 591 (Ky. 2009)(citations omitted); Kentucky Rules of Criminal Procedure (RCr) 9.78. Second, if the findings are supported by substantial evidence, the appellate court conducts a de novo review to determine whether the trial court's ruling is correct as a matter of law. Whitmore, 92 S.W.3d at 79. We turn now to the case at hand.
ANALYSIS
Jennings argues that he was denied his right to be free from unreasonable search and seizures under the Fourth Amendment of the United States Constitution and Section Ten of the Kentucky Constitution. He bolsters this argument by suggesting that warrantless searches are per se unreasonable; no exception to the warrantless search requirement applies here; and in particular, no probable cause existed for the automobile exception to warrantless searches. The Commonwealth counters that the search was based upon an established exception to the warrant requirement, and therefore, it was proper for the trial court to deny the motion to suppress.
We begin by noting with regard to the two-part analysis that no dispute exists as to whether substantial evidence supported the trial court's findings of fact. This leads us to the second part of the analysis - whether the trial court's ruling was correct as a matter of law. It is fundamental that all searches without warrants are unreasonable unless it can be shown that they come within one of the exceptions to the rule requiring a search be made pursuant to a valid warrant. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Furthermore, it is the Commonwealth's burden to justify the search under one of the exceptions to the warrant requirement. Cook v. Commonwealth, 826 S.W.2d 329, 331 (Ky. 1992).
A well-established exception to the warrant requirement is the automobile exception, articulated originally in Carroll v. U.S., 267 U.S. 132, 149, 45 S.Ct. 280, 283-4, 69 L.Ed. 543 (1925), which allows a warrantless search of an automobile based on probable cause to believe it contains contraband. The automobile exception to a warrantless search allows officers to search a legitimately stopped automobile when probable cause exists that contraband or evidence of a crime is in the vehicle. United States v. Ross, 456 U.S. 798, 800-01, 102 S.Ct. 2157, 2159-61, 72 L.Ed.2d 572, 578 (1982) (citations omitted); Estep v. Commonwealth, 663 S.W.2d 213 (Ky. 1983).
In addition, the Court held that where probable cause justifies the search of a lawfully stopped vehicle, it also justifies the search of every part of the vehicle and its compartments and contents that may conceal the object of the search. Ross, 456 U.S. at 808, 102 S.Ct. at 2164. Our Courts adopted the automobile exception to the warrant requirement in Clark v. Commonwealth, 868 S.W.2d 101, 106-107 (Ky. 1993), overruled on other grounds by Henry v. Commonwealth, 275 S.W.3d 194 (Ky. 2008).
A search may be as thorough as a magistrate could authorize via a search warrant, including all compartments of the automobile and all containers in the automobile which might contain the object of the search. Ross, 456 U.S. at 823-24, 102 S.Ct. at 2172-73; Estep, 663 S.W.2d at 215. And it has been determined that traffic stops are similar to Terry stops and must be supported by articulable reasonable suspicion of criminal activity. Berkemer v. McCarty, 468 U.S. 420, 439, 104 S.Ct. 3138, 3150, 82 L.Ed.2d 317 (1984) (citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). Our Supreme Court clarified that the level of articulable suspicion sufficient to justify a stop has been described as considerably less than proof of wrongdoing by a preponderance of the evidence. Commonwealth v. Banks, 68 S.W.3d 347, 351 (Ky. 2001)(citations omitted).
Moreover, the United States Supreme Court acknowledged in Arizona v. Gant the automobile exception to the warrant requirement. 556 U.S. 332, 335, 129 S.Ct. 1710, 1714, 173 L.Ed.2d 485 (2009). Even though the Court in Gant rejected a broad reading of New York v. Belton, 453 U.S.454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), which previously had allowed police officers to perform a vehicle search incident to the arrest of a recent and secured occupant, Gant still recognized in particular the automobile exception to the requirement for a warrant. Gant, 556 U.S. at 346 - 347, 129 S.Ct. at 1721. Therein, the Court proffered that when it is reasonable to believe that the vehicle contains evidence of the offense or there is, "probable cause to believe a vehicle contains evidence of criminal activity, United States v. Ross, 456 U.S. 798, 820-821, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982), authorizes a search of any area of the vehicle in which the evidence might be found. . . . Ross allows searches for evidence relevant to offenses other than the offense of arrest, and the scope of the search authorized is broader." Id. The Kentucky Supreme Court adopted the Ross standard in Estep. Estep, 663 S.W.2d at 215.
Both the Commonwealth and the trial court cite U.S. v. Howton, 260 Fed. Appx. 813 (6th Cir. 2008), an unpublished federal case in which the Court held that once an officer found a passenger in violation of the open container law, the officer had probable cause to search for similar contraband and other open containers. Id. at 817. Jennings claims that a later state case from Kansas, State v. Stevenson, 321 P.3d 754 (Kan. 2014), held differently than Howton. It also involved a vehicle search for open containers of alcohol. Indeed, in Stevenson the state court held that the warrantless search was unlawful, but it is factually distinguishable from Howton. The only evidence relied on by the officers in Stevenson was the odor of alcohol. As noted by the Kansas Court,
In short, the totality of the circumstances in this case only establishes that the officers' observation of a very strong odor of alcohol emanating from within the vehicle, which they suspected to be the result of spilled alcohol, provided them with reasonable suspicion to extend the traffic infraction detention to further investigate whether Stevenson was transporting an open container of alcohol in violation of K.S.A. [Kansas Statutes Annotated] 2013 Supp. 8-1599. The officers' failure to acquire additional inculpatory facts relating to the crime being investigated before commencing their search of the vehicle rendered the search unreasonable and unlawful.Id. at 763. Thus, this case is distinguishable from both the facts of Howton and our case.
Regarding the implicated offense in the scenario in the case at bar, Kentucky Revised Statutes (KRS) 189.530 states in pertinent part:
(2) A person is guilty of possession of an open alcoholic beverage container in a motor vehicle, when he or she has in his or her possession an open alcoholic beverage container in the passenger area of a motor vehicle located on a public highway or on the right-of-way of a public highway. However, nothing in this section shall prohibit the possession of an open alcoholic beverage container by an individual who is strictly a passenger and not the driver, in the passenger area of a motor vehicle maintained or used primarily for the transportation of persons for compensation, such as buses, taxis, and limousines, or in a recreational vehicle, motor home, or motor coach.
. . . .
(4) For the purposes of this section, "open alcoholic beverage container" means any bottle, can, or other receptacle that contains any amount of alcoholic beverage, and:
(a) Is open or has a broken seal; or
(b) The contents of which are partially removed.
(5) For the purposes of this section, "passenger area" means the area designed to seat the driver and the passengers while the motor vehicle is in operation and any area that is readily accessible to the driver or a passenger while in their seating positions, including the glove compartment. . . .
The penalty for possession of an open alcoholic beverage container is a fine ranging from $35 to $100. KRS 189.990 (9)(b). This is a violation and not a crime. According to KRS 500.080(2), a crime is defined as a misdemeanor or a felony. A misdemeanor is defined as:
[A]n offense, other than a traffic infraction, for which a sentence to a term of imprisonment of not more than twelve (12) months can be imposed.KRS 500.080(10) (emphasis added).
There was no crime committed by possessing the alcohol. Alcohol, under the facts in this case, is not contraband. The automobile exception permits an officer to search a legitimately stopped automobile where probable cause exists that contraband or evidence of a crime may be in the vehicle. "The search may be as thorough as a magistrate could authorize via a search warrant, including all compartments of the automobile and all containers in the automobile which might contain the object of the search." Gray v . Commonwealth, 28 S.W.3d 316, 319 (Ky. App. 2000).
In this case, Sergeant Day testified at the suppression hearing that he smelled liquor; the female passenger told him that the liquor was hers; and, he saw the spilled cup of liquor. He also testified that the possession of alcohol was not an offense that resulted in an arrest. In fact, he does not always charge someone when they possess alcohol. Finding the bottle of alcohol was not necessary for the citation of the offense. The officers had all that they needed to cite the passenger. The search should have stopped at that point. It seems unlikely that a warrant could have been obtained based on these facts. Sergeant Day did not find the gun in plain view. It was when he moved the seat that he found the gun.
Given the totality of the circumstances and KRS 189.530, we believe that Sergeant Day was not justified in searching for additional evidence. Hence, we disagree with the trial court's conclusion that these facts provided an articulable suspicion that permitted the sergeant to perform a warrantless search, as authorized by the automobile exception to a warrant of the vehicle based on probable cause and plain view.
Initially, in the motion to suppress the evidence, Jennings maintained that the facts of this case should be analyzed under Gant and Bledsoe v. Commonwealth, 2010 WL 4025901, an unpublished case. Now, however, he argues that Gant and Bledsoe deal with searches incident to a lawful arrest, and that because Jennings was not arrested prior to the search, these cases are not relevant.
The Commonwealth concurs with this reasoning, but we would be remiss if we did not point out that according to the Commonwealth's brief, Jennings has changed his initial legal argument in now opining that Gant does not apply to his factual situation. Hence, the Commonwealth proffers that Jennings cannot argue one theory prior to appeal and another on appeal. It is axiomatic that a theory of error cannot be raised for the first time on appeal. Fischer v. Fischer, 348 S.W.3d 582, 588 (Ky. 2011). And an appellant "will not be permitted to feed one can of worms to the trial judge and another to the appellate court." Kennedy v. Commonwealth, 544 S.W.2d 219, 222 (Ky.1976). Still, notably the Commonwealth and Jennings agree that the primary holding of Gant does not apply to this case. We agree.
The constitutional analysis in Gant, which concerns the search of a vehicle incident to the arrest of an occupant, is inapposite to the facts herein. The facts here involve the automobile exception to a warrant. As delineated by the Commonwealth, the search was based on probable cause and not incident to an arrest. Thus, even though Gant itself recognized the automobile exception to a warrantless search, its primary holding is not pertinent to the facts of this case.
CONCLUSION
In the case at bar, Sergeant Day did not possess the requisite reasonable suspicion, that is, probable cause, to believe that contraband or evidence of a crime may have been in the vehicle when he pulled the passenger seat up to look for an open bottle of alcohol and discovered a gun. Therefore, we reverse the decision of the Campbell Circuit Court denying Jennings's motion to suppress and remand for further proceedings.
THOMPSON, JUDGE, CONCURS.
NICKELL, JUDGE, DISSENTS BY SEPARATE OPINION.
NICKELL, JUDGE, DISSENTING: Respectfully, I dissent. As noted by Jennings, the open container statute contained in K.S.A. 8-1599 is quite similar to that contained in KRS 189.530. The majority accepts the reasoning espoused by the Kansas Supreme Court's 2014 decision in Stevenson. Though a close call, I am persuaded by the contrasting analysis expressed in the U.S. Sixth Circuit's 2008 decision in Howton.
As succinctly set forth by the Commonwealth:
The Kentucky Supreme Court adopted the automobile exception to the warrant requirement in Clark v. Commonwealth, 868 S.W.2d 101, 106-107 (Ky. 1993), overruled on other grounds in Henry v. Commonwealth, 275 S.W.3d 194 (Ky. 2008), (Automobile exception allows officers to search a legitimately stopped automobile where probable cause exists that contraband or evidence of a crime is in the vehicle), and Estep v. Commonwealth, 663 S.W.2d 213, 215 (Ky. 1983) (Probable cause justifies the search of a lawfully stopped vehicle, it also justifies the search of every part of the vehicle and its compartments and contents that may conceal the object of the search); see also Gray v. Commonwealth, 28 S.W.3d 316, 319 (Ky. App. 2000); and, Brown v. Commonwealth, 890 S.W.2d 286, 290 (Ky. 1984).Law enforcement officers may search a readily mobile vehicle without a warrant upon reasonable belief there is a "fair probability that contraband or evidence of a crime will be found in a particular place." United States v. Lumpkin, 159 F.3d 983, 986 (6th Cir. 1998) (citations omitted). In Howton, the Court held once a law enforcement officer found a passenger in violation of the open container law, probable cause existed to search for similar contraband and other open containers. Howton, 260 Fed.Appx. at 817 (see also United States v. McGuire, 957 F.2d 331, 314 (7th Cir. 1992). Contraband has been defined as items "unlawful to import, export, produce, or possess." Black's Law Dictionary, Tenth Edition, Garner (Thomson Reuters 2014), 389.
Here, both law enforcement officers observed Jennings's erratic driving prior to his turning into the liquor store drive-through lane. Then, as they approached the vehicle, both law enforcement officers smelled the odor of alcohol. While speaking with a female in the front passenger seat, Sergeant Day observed—in plain view—a clear plastic cup containing liquid in the console holder, similar to those known by him to be supplied by the liquor store. The female passenger admitted to Sergeant Day the plastic cup contained alcohol and that she had been drinking. After asking the female passenger to exit the vehicle, Sergeant Day reached into the vehicle to retrieve the plastic cup and observed another plastic cup containing alcohol that had spilled, dampening the passenger side floorboard. In searching around the front passenger seat for an open bottle of alcohol, Sergeant Day discovered a handgun sticking out of the front passenger seat, which led to Jennings being arrested and charged with being a convicted felon in possession of a handgun. The subsequent search of the vehicle led to discovery of a digital scale, resulting in the additional charge of possession of drug paraphernalia.
Based on these facts, the law enforcement officers had probable cause to stop the vehicle Jennings was driving, and Sergeant Day, after observing in plain view two plastic cups containing alcohol, lawfully searched the area surrounding the front passenger side seat for additional open containers of alcohol or similar contraband. Because the facts support the warrantless search of Jennings's vehicle based on probable cause and plain view, the trial court's ruling denial of the motion to suppress should be affirmed. BRIEF FOR APPELLANT: Roy A. Durham
Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky Jeffrey R. Prather
Assistant Attorney General
Frankfort, Kentucky