Opinion
NO. 2011-CA-001770-MR
02-22-2013
KENTON LYLE KAVANAUGH APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Colin H. Lindsay James L. Adams Louisville, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Bryan D. Morrow Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE KIMBERLY N. BUNNELL, JUDGE
ACTION NO. 11-CR-00326
OPINION
AFFIRMING
BEFORE: COMBS, LAMBERT, AND NICKELL, JUDGES. COMBS, JUDGE: Kenton Lyle Kavanaugh appeals from a final judgment and sentence of five-years' imprisonment imposed after he entered a conditional plea of guilty to one count of trafficking in a controlled substance in the first degree. Kavanaugh's plea was conditioned upon his right to appeal the ruling of the trial court denying his motion to suppress the evidence against him. After our review, we affirm.
In the evening of December 30, 2010, Kavanaugh was observed by Officer Benjamin Walker and Officer James Dellacamera, both of the Lexington Metro Police Department, driving his vehicle on Fifth Street near Elm Tree Lane in Lexington. According to the testimony of the officers, Kavanaugh stopped his automobile some distance before the stop bar approaching Elm Tree Lane. After Kavanaugh's vehicle remained stationary for approximately one minute, officers observed as Dexter Lewis approached. Lewis surveyed the surrounding area and climbed inside Kavanaugh's car. Because of the location and Kavanaugh's behavior, the officers believed that Kavanaugh was trafficking in narcotics.
Officer Walker communicated with his colleague, Officer Randall Kloss, who was driving a marked vehicle in the vicinity. Before Officer Kloss responded to the scene, Officer Walker observed Kavanaugh fail to signal a turn from Fifth Street onto North Broadway. As Officer Kloss approached Kavanaugh's car, he observed Kavanaugh make a lane change without signaling. Officer Kloss initiated a traffic stop as Officers Walker and Dellacamera were arriving at the scene. The officers approached both sides of Kavanaugh's car and asked the occupants to step outside.
Once outside the vehicle, Lewis consented to a search of his person. Officer Dellacamera recovered nearly ten thousand dollars ($10,000) from Lewis and a one-day, round-trip bus ticket from Detroit to Lexington.
As Kavanaugh exited the vehicle, Officer Walker observed a small blue pill on the floor board of the passenger side. Officer Walker recognized the blue pill as a controlled substance and signaled the other officers. After he was duly Mirandized, Kavanaugh told Officer Walker that he was working as a free-lance undercover narcotics agent and that he had infiltrated a Detroit drug ring. Kavanaugh explained that he and Lewis were delivering pills around town and that he planned to drive Lewis back to the bus station after they had finished. Kavanaugh then consented to a search of the vehicle, which resulted in recovery of numerous pills from under the front passenger seat. The pills, which were oxycodone, were valued at more than $8,000.00.
On March 14, 2011, a Fayette County grand jury indicted Kavanaugh for one count of trafficking in a controlled substance in the first degree and one count of unlawfully failing to signal while operating a motor vehicle. At his arraignment, Kavanaugh pleaded not guilty.
On June 6, 2011, Kavanaugh filed a motion to suppress the physical evidence found during the search of his vehicle as well as the statements that he made during the officers' investigation. Kavanaugh contended that his seizure did not comport with the constitutional requirements of an investigatory stop; that his detention during the stop was unduly prolonged; and that the investigation undertaken at the scene did not relate to the alleged purpose of the traffic stop.
On June 30, 2011, the trial court conducted an evidentiary hearing on the motion and concluded: that the traffic stop was justified due to Kavanaugh's failure to signal his intention to change lanes pursuant to the requirements of Kentucky Revised Statute(s)(KRS) 189.380; that the officers were authorized to request that Kavanaugh step out of the vehicle; and that his detention at the scene was not unduly prolonged. The court's order denying the motion to suppress was entered on July 5, 2011. On August 12, 2011, Kavanaugh entered a conditional guilty plea, reserving the right to appeal the trial court's ruling on his motion to suppress.
On appeal, Kavanaugh argues that the trial court erred by failing to suppress the drug evidence found by Officer Walker. He presents three arguments in support of this contention.
Kavanaugh first contends that, as a matter of law, the single blue pill observed by Officer Walker on the floorboard of his vehicle could not have justified the warrantless search of the automobile. He claims that the pill could not have been readily identified as contraband, thus failing to qualify as a "plain view" exception to the Fourth Amendment requirement for a warrant. However, Kavanaugh concedes that this issue may not have been adequately preserved for our review.
It is undisputed by the parties that after the occupants had exited the vehicle, the blue pill was plainly visible on the floorboard of the automobile. Our review of the proceedings below indicates that Kavanaugh argued strenuously that the officers were not authorized to ask the occupants to step out of the car. However, Kavanaugh conceded to the court that a warrantless search of the automobile would have been justified if the officers had indeed observed the single blue pill. Additionally, Kavanaugh did not raise the issue of an alleged violation of the plain view doctrine at his suppression hearing. Having failed to give the trial court the opportunity to rule on this issue, he cannot raise it for the first time on appeal. Springer v. Commonwealth, 998 S.W.2d 439, 446 (Ky. 1999). In light of his concession and his failure to present the argument at the suppression hearing, we decline to address the argument further.
Kavanaugh contends that the trial court erred in concluding that his detention was not unreasonably prolonged. He argues that even if his initial seizure had been lawful as a result of the traffic stop, the detention that followed constituted an unreasonable intrusion. The foundation of this argument rests on the single premise that the officers lacked probable cause to conduct any investigation beyond the actual traffic stop. Yet, as noted above, Kavanaugh has conceded that the officers' observation of the blue pill in plain sight would have justified a warrantless search of the automobile. Therefore, his underlying premise must fail and along with it this argument. Under the circumstances, the police investigation following the officers' observation of the blue pill did not constitute an unwarranted intrusion or unnecessarily long detention.
Finally, Kavanaugh contends that the provisions of KRS 189.380 governing a motorist's failure to signal are unconstitutionally vague and unintelligible. However, he concedes that this argument was never presented to the trial court, never presented to the Attorney General, and is thus unpreserved for our review. While he argues that review is nevertheless appropriate since the trial court's error was palpable, we cannot agree that Kavanaugh's conviction under these circumstances constituted a manifest injustice. Consequently, we decline to address the merits of this argument.
The judgment of the Fayette Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Colin H. Lindsay
James L. Adams
Louisville, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Bryan D. Morrow
Assistant Attorney General
Frankfort, Kentucky
Miranda v. Arizona, 384 U.S.426, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).