Opinion
NO. 2017-CA-000363-MR
07-20-2018
KRISTA MARIE KLEEM APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Kathleen K. Schmidt, Department of Public Advocacy Brandon Neil Jewell Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Bryan D. Morrow Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM BOONE CIRCUIT COURT
HONORABLE JAMES R. SCHRAND II, JUDGE
ACTION NO. 16-CR-00094 OPINION
REVERSING AND REMANDING
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BEFORE: DIXON, D. LAMBERT AND SMALLWOOD, JUDGES. DIXON, JUDGE: Appellant, Krista Kleem, appeals from a judgment of the Boone Circuit Court sentencing her to five years' imprisonment following her conditional guilty plea to one count of first-degree trafficking in a controlled substance, first offense, and one count of third-degree criminal mischief. Appellant challenges the trial court's denial of her motion to suppress evidence seized during a search of her purse. We agree that the search was constitutionally impermissible and, therefore, reverse the trial court.
On September 7, 2015, Boone County Sheriff's Deputy John Stidham responded to an automobile accident near Houston Road in Boone County, in which Appellant was the driver. When he arrived at the scene, Deputy Stidham found Appellant sitting in the grass in close proximity to her vehicle. She had a laceration on her forehead and Deputy Stidham noticed that there was hair embedded in the windshield of her vehicle. Deputy Stidham further observed that Appellant smelled of alcohol, had slurred speech and was unsteady on her feet. Based on his observations, Deputy Stidham requested EMS assistance. When the ambulance arrived, Appellant became aggressive, kicking and swinging at medical personnel. Deputy Stidham was advised by EMS personnel that Appellant's behavior was consistent with having suffered a head trauma. Appellant's uncooperativeness required EMS personnel to strap her legs to the backboard while officers held down her arms. After Appellant was loaded into the ambulance, she requested her purse. One of the EMS personnel retrieved it from her vehicle and placed it on her chest. Because of Appellant's aggressive and unpredictable behavior, Deputy Stidham immediately took the purse from Appellant and searched it for the stated purpose of ensuring she did not have a weapon. In the process, he discovered a bag of cocaine therein. Appellant was thereafter transported to the hospital. Deputy Stidham did not arrest or charge her with any offense at that time.
On February 2, 2016, Appellant was indicted by a Boone County Grand Jury for first-degree trafficking in a controlled substance (cocaine), first offense, first-degree operating a motor vehicle under the influence of drugs or alcohol, and third-degree criminal mischief. Subsequently, on April 13, 2016, Appellant filed a motion to suppress the evidence of the cocaine, arguing that the search of her purse was unconstitutional because Deputy Stidham did not have probable cause or reasonable suspicion under the Fourth Amendment to conduct the search. Following a hearing, the trial court entered an order denying Appellant's motion. Therein, the trial court noted,
Upon contacting the Defendant, Deputy Stidham noted her forehead had a laceration and her hair was imbedded into the windshield of the wrecked vehicle. He smelled alcohol on her person and she had slurred speech and was unsteady on her feet. She became combative with medical personnel and had to have her lower extremities restrained. Although the deputies were holding her arms, her purse, which was on her chest and which she could have gained immediate access to, could have contained a hidden danger or weapon. Deputy Stidham took it and looked inside of it for safety reasons to look for weapons.
Appellant thereafter entered a conditional guilty plea to first-degree trafficking in a controlled substance, first offense, and third-degree criminal mischief. In exchange, the Commonwealth dismissed the DUI charge and recommended a five-year sentence. Appellant reserved her right to appeal the trial court's denial of her suppression motion. The trial court entered a judgment and sentence in accordance with the plea agreement. This appeal ensued.
In this Court, Appellant argues that the trial court erred in denying her suppression motion because there was no exception to the warrant requirement that justified Deputy Stidham's search of her purpose. Specifically, Appellant contends that the Commonwealth failed to prove that either probable cause and exigent circumstances existed, or that a search pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) was warranted. As such, Appellant argues that the search was unconstitutional, and the evidence obtained should have been suppressed as "fruit of the poisonous tree." See generally Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).
For cases involving suppression issues, this Court uses the standard of review set forth by the United States Supreme Court in Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996), and adopted by the Kentucky Supreme Court in Adcock v. Commonwealth, 967 S.W.2d 6 (Ky. 1998). Under Ornelas, the decision of the trial court on a motion to suppress, which is based on an alleged illegal search, is subject to a two-part analysis. First, factual findings of the trial court are conclusive if they are not clearly erroneous and are supported by substantial evidence. Id. at 699, 116 S.Ct. at 1663. See also Commonwealth v. Neal, 84 S.W.3d 920, 923 (Ky. App. 2002). Second, we conduct a de novo review of the trial court's application of the law to the established facts to determine whether its ruling was correct as a matter of law. Id.; Welch v. Commonwealth, 149 S.W.3d 407, 409 (Ky. 2004).
"The Fourth Amendment to the United States Constitution, applicable to the states through the Fourteenth Amendment prohibits unreasonable searches and seizures." Commonwealth v. Patton, 430 S.W.3d 902, 906 (Ky. App. 2014) (footnotes omitted). "It is fundamental that all searches without a warrant are unreasonable unless it can be shown that they come within one of the exceptions to the rule that a search must be made pursuant to a valid warrant." Cook v. Commonwealth, 826 S.W.2d 329, 331 (Ky. 1992). See also Commonwealth v. Ousley, 393 S.W.3d 15, 23 (Ky. 2013). The Commonwealth bears the burden to demonstrate that the warrantless search of Appellant's purse falls within a recognized exception. Gallman v. Commonwealth, 578 S.W.2d 47, 48 (Ky. 1979).
The trial court herein, citing to King v. Commonwealth, 386 S.W.3d 119, 122 (Ky. 2012), noted that "[i]n the absence of consent, police may not conduct a warrantless search or seizure without probable cause and exigent circumstances." However, the trial court never made any findings that Deputy Stidham had probable cause that evidence of a crime was in Appellant's purse or that exigent circumstances existed. Rather, the trial court simply concluded that safety reasons justified the search. The Commonwealth, while implicitly conceding that probable cause and exigent circumstances did not exist, nevertheless argues that the search of Appellant's purse should be deemed constitutional under Terry.
In the seminal Terry decision, the United States Supreme Court stated,
[W]e cannot blind ourselves to the need for law enforcement officers to protect themselves and other prospective victims of violence in situations where they may lack probable cause for an arrest. When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm.
. . .
Our evaluation of the proper balance that has to be struck in this type of case leads us to conclude that there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. Cf. Beck v. State of Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 226, 13 L.Ed.2d 142 (1964); Brinegar v. United States, 338 U.S. 160, 174-176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949); Stacey v. Emery, 97 U.S. 642, 645, 24 L.Ed. 1035 (1878). And in determining whether the officer acted reasonably in such
circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or 'hunch,' but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience. Cf. Brinegar v. United States, supra.392 U.S. at 24-27, 88 S.Ct. at 1881-83. (footnotes omitted). As explained by the Kentucky Supreme Court in Commonwealth v. Banks, 68 S.W.3d 347 (Ky. 2001), "the test for a Terry stop and frisk is not whether an officer can conclude that an individual is engaging in criminal activity, but rather whether the officer can articulate reasonable facts to suspect that criminal activity may be afoot and that the suspect may be armed and dangerous." Id. at 350-51 (emphasis in original). The purpose of a Terry search is not to discover evidence of a crime but to allow the officer to investigate "without fear of violence or physical harm." Baltimore v. Commonwealth, 119 S.W.3d 532, 538 (Ky. App. 2003) (footnotes omitted). Therefore, "[a] lawful stop does not necessarily carry with it the authority to conduct a pat-down search." Bennett v. City of Eastpointe, 410 F.3d 810, 822 (6th Cir. 2005).
Whether a pat-down is permitted depends upon whether the totality of the circumstances indicate there was reasonable suspicion the person may be armed and dangerous. Adkins v. Commonwealth, 96 S.W.3d 779, 787 (Ky. 2003). "The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger." Terry, 392 U.S. at 27, 88 S.Ct. at 1883. The Terry pat-down search allows the officer to determine if the suspect is unarmed before continuing his investigation and is, therefore protective in nature. Minnesota v. Dickerson, 508 U.S. 366, 377, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993). If a pat-down search for weapons goes beyond what is necessary to determine if the suspect is armed, it is no longer valid and any evidence obtained will be suppressed. Adkins, 96 S.W.3d at 787.
In Frazier v. Commonwealth, 406 S.W.3d 448 (Ky. 2013), our Supreme Court granted discretionary review to determine whether the search of Frazier's person exceeded the scope of Terry, and whether the police had reasonable grounds for believing that evidence of the crime of arrest would be found in his vehicle at the time the vehicle search was conducted. On direct appeal, this Court had concluded that "[t]he combination of Frazier's nervousness, his failure to cooperate, his failure to look the officers in the eyes, and his verbal belligerence once outside the vehicle, were sufficient to alert the officers that Frazier may have been a threat." Id. at 454. Disagreeing, the Supreme Court observed,
To reiterate, the facts available to the deputies at the time of the Terry pat-down were: 1) Frazier had failed to use a turn signal; 2) Frazier's hands shook as he spoke; 3) Frazier would not make eye contact as he sat in his vehicle; 4) Frazier initially refused to answer Deputy Moore's question about his passengers and destination; 5)
Frazier appeared "verbally belligerent" as he exited the vehicle; and 6) Frazier refused to consent to a search. The pertinent inquiry before us is whether the facts available to Deputy Boggs at that moment would convince a reasonable person that the action taken was appropriate. Baker, 5 S.W.3d at 146. Based on these facts, we cannot say that the Terry frisk was reasonable.
An individual's suspicious or nervous demeanor has generally been perceived by this Court and others as a factor supporting an officer's reasonable suspicion of danger. Baker, 5 S.W.3d at 146 (officers suspected that a defendant may be armed after he refused to remove his hands from his pockets); Adkins, 96 S.W.3d at 788 (reasonable suspicion existed where a defendant gave false names to officers, appeared to be nervous, and responded with loud profanities). However, we have held that nervous behavior alone is an insufficient basis for reasonable suspicion. Adkins, 96 S.W.3d at 788 ("Although nervousness alone is insufficient to give rise to reasonable suspicion, it is an important factor in the analysis.")[.] . . .
While Frazier may have certainly appeared nervous, and even passively defiant at first, such behavior was insufficient to provide the requisite reasonable suspicion that Frazier had a weapon. Again, the purpose of a Terry frisk is protective, not investigative, Dickerson, 508 U.S. at 377, 113 S.Ct. 2130, and to that end, the requisite reasonable suspicion must logically relate to the frisk's protective objective. See, e.g., Williams v. Commonwealth, 364 S.W.3d 65 (Ky. 2011)[.] . . .
The Commonwealth insists that Frazier's behavior, particularly his nervous presentation and refusal to answer "simple, reasonable questions" was enough to justify the Terry frisk. However, while the officers' testimonies consistently reflected the general impression that Frazier was acting in a nervous manner, they failed
to offer specific articulable facts suggesting he was armed and dangerous. . . .Frazier, 406 S.W.3d at 454-55.
In Commonwealth v. Brooks, 388 S.W.3d 131 (Ky. App. 2012), a panel of this Court addressed the constitutionality of a warrantless search of the appellant's purse after the owner of a home where the appellant was a guest consented to a search of the home. The trial court had granted the appellant's motion to suppress finding that, because the appellant was secured in another room and could not have accessed the purse, the police officer could not have reasonably believed that a search of the purse was warranted for safety reasons. Id. at 135. Affirming the trial court, this Court observed,
Merely because narcotics and weapons go hand-in-hand in most cases does not support the police's decision herein to search [the appellant's] purse. In fact, she was in another room and supervised by police officers. Moreover, Detective Farmer testified that he was no longer concerned about his safety once the search was conducted. . . . Therefore, the trial court's decision was supported by substantial evidence because the Commonwealth did not establish that police officers' safety was in jeopardy during the search of the purse.Id. Other jurisdictions have reached similar conclusions. People v. Walker, 995 N.E.2d 351 (Ill. App. Ct. 2013); In re Tiffany O., 174 P.3d 282 (Ariz. Ct. App. 2007); State v. Booker, 820 P.2d 1378 (Or. Ct. App. 1991).
As previously noted, law enforcement officers are permitted to conduct a reasonable search for weapons for their protection regardless of whether they have probable cause to effect an arrest. Adkins, 96 S.W.3d at 786-87. However, there must be "specific and articulable" facts, which with "rational inferences," support a reasonable suspicion that an individual is armed and dangerous. Baker v. Commonwealth, 5 S.W.3d 142, 146 (Ky. 1999). Deputy Stidham testified during the suppression hearing that based upon Appellant's belligerent behavior he conducted a search of her purse for the sole purpose of ensuring she did not have a weapon. We simply cannot find that Appellant's behavior, which Deputy Stidham was told by EMS personnel was consistent with a head injury, constituted a specific, articulable fact which would justify his belief that she was armed and dangerous.
Furthermore, at the time he seized her purse, Appellant was strapped to a backboard in the back of an ambulance. Without question, Deputy Stidham was entitled to ensure the safety of those attending to Appellant, even in the absence of reason to believe she was armed and dangerous. He properly took that precaution when he seized the purse from her. The question then becomes whether, having gained control of Appellant's purse, the danger justifying the seizure of the purse still existed once Deputy Stidham had it in his possession. If the exigency was gone, a search warrant should have been obtained before he opened it. We are of the opinion that any safety concerns were eliminated when Deputy Stidham seized the purse, and his subsequent search of the purse, which consisted of opening the purse and inspecting its contents, could have done nothing to further the situation or ensure the safety of others. Accordingly, the search must be deemed constitutionally impermissible.
We hold true to the words expressed by a panel of this Court in Pitman v. Commonwealth, 896 S.W.2d 19, 22 (Ky. App. 1995):
While carving out a useful and necessary exception to the Fourth Amendment warrant requirement to safeguard the lives of our police officers, Terry still carefully reiterated the sacrosanct status of the Fourth Amendment's protection of or citizenry from arbitrary pilfering of their belongings or premises, noting that court "cannot and will not be made party to lawless invasions of the constitutional rights of citizens by permitting unhindered governmental use of the fruits of such invasions." Terry, 392 U.S. at 13, 88 S.Ct. at 1875.Because the Commonwealth failed to meet its burden that the warrantless search of Appellant's purse fell within a recognized exception, the trial court should have granted Appellant's motion and suppressed the evidence obtained during the search.
For the reasons set forth herein, the order of the Boone Circuit Court is reversed, and this matter is remanded for further proceedings consistent with this opinion.
LAMBERT, D., JUDGE, CONCURS.
SMALLWOOD, JUDGE, CONCURS IN RESULT ONLY. BRIEF FOR APPELLANT: Kathleen K. Schmidt,
Department of Public Advocacy Brandon Neil Jewell
Assistant Public Advocate
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Bryan D. Morrow
Assistant Attorney General
Frankfort, Kentucky