Opinion
NO. 2013-CA-001600-MR
01-23-2015
TYRON LAMONT LEWIS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Gene Lewter Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Leilani K. M. Martin Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE KIMBERLY N. BUNNELL, JUDGE
ACTION NO. 12-CR-01500
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; J. LAMBERT AND VANMETER, JUDGES. ACREE, CHIEF JUDGE: Appellant Tyron Lamont Lewis appeals the September 4, 2013 judgment of the Fayette Circuit Court accepting his conditional guilty plea and finding him guilty of trafficking in a controlled substance less than eight ounces and controlled substance prescription not in original container. For the following reasons, we affirm.
I. Facts and Procedure
On October 18, 2012, Officer James Doane - an LMPD gang resources officer with seven years of experience, narcotics training from the police academy, and on-the-job narcotics training - conducted surveillance at the Marathon gas station/convenience store on Centre Parkway, accompanied by Officer Pope. Officer Doane later testified that this area is known for a high level of criminal and narcotics activity. The Marathon station is also located within one thousand feet of three schools. While conducting surveillance, the officers observed Lewis as he arrived at the Marathon station. Officer Doane then noticed Lewis standing outside the station and moving his hands around his waist band, an area of the body where, according to Officer Doane's subsequent testimony, drug users or traffickers often hide drugs or weapons.
Lexington Metro Police Department
A few minutes later, a vehicle pulled into the Marathon station and parked. Officer Doane watched as Lewis approached the driver's side of the vehicle and stood by the driver's window. Although a truck blocked the officer's view of Lewis' hands, he could still see Lewis' head during the time he remained by the vehicle. After Lewis walked away from the vehicle, an unidentified male approached him in the Marathon parking lot. Officer Doane watched the two men engage in two hand-to-hand transactions. Although Officer Doane could not see what was transferred, based on his law enforcement experience and his surveillance of Lewis, he believed that a drug transaction had occurred.
According to Doane's testimony, a hand-to-hand transaction is one where an individual hands an item to another individual and the second individual reaches out and takes that item. In this case, Doane saw Lewis reach out and hand something to the unidentified man, who took the object then handed something back to Lewis.
Officers Doane and Pope drove onto the station lot in an unmarked Ford Explorer and parked directly in front of the store. While the car was unmarked, both officers were wearing vests with the word "POLICE" across the chest and Officer Doane stated he was fairly certain that Lewis had identified them both as police officers. Lewis then walked inside the convenience store; Officer Doane and Officer Pope followed and made contact with Lewis. When Officer Doane asked Lewis if he had "anything on him," Lewis responded that he had "a little bit of weed."
Considering Lewis' statement admitting to possession of marijuana, in addition to Lewis' previous behavior, the officers determined they had probable cause to detain Lewis. The officers handcuffed Lewis, led him outside the store, and searched his person. The search revealed two baggies containing marijuana, as well as five hydrocodone pills (not in a prescription container), three cell phones, one thousand forty dollars in small bills in one pocket, and fifteen dollars in another pocket.
On December 5, 2012, a grand jury indicted Lewis on four charges: (Count 1) trafficking in a controlled substance within 1,000 feet of a school (a class D felony); (Count 2) trafficking in a controlled substance second degree (a class D felony); (Count 3) controlled substance - prescription not in original container (a class B misdemeanor); and (Count 4) persistent felony offender, first degree (a class C felony).
Lewis moved to suppress the evidence obtained from the search of his person. On January 30, 2013, the trial court held a suppression hearing to decide Lewis' motion. Officer Doane was the sole witness at the suppression hearing. The trial court denied Lewis' motion to suppress.
Lewis entered a conditional guilty plea to Count 3, and a conditional and Alford plea to Count 1, which was reduced to trafficking in a controlled substance less than eight ounces (a class A misdemeanor). Lewis now appeals.
II. Standard of Review
"The standard of review for a motion to suppress requires a two-step determination." Cummings v. Commonwealth, 226 S.W.3d 62, 65 (Ky. 2007) (citing Welch v. Commonwealth, 149 S.W.3d 407 (Ky. 2004)). "The factual findings of the trial court are reviewed under a clearly erroneous standard, and the application of the law to those facts is conducted under a de novo review." Id. A finding of fact is clearly erroneous if it is not supported by substantial evidence; that is, evidence sufficient to induce conviction in the mind of a reasonable person." Turley v. Commonwealth, 399 S.W.3d 412, 417-18 (Ky. 2013).
III. Analysis
On appeal, Lewis argues that the trial court erred by denying his motion to suppress the evidence obtained from the search of Lewis' person subsequent to his arrest on the grounds that the search violated his protection against unreasonable searches and seizures under the Fourth Amendment to the United States Constitution and Section 10 of the Kentucky Constitution.
In support of his unreasonable-search-and-seizure argument, Lewis asserts: (1) the trial court's findings of fact were not supported by substantial evidence; (2) the trial court erred in determining there was probable cause; or, in the alternative, (3) if there was probable cause, KRS 431.015 only permitted issuing a citation, and that Lewis' arrest was therefore improper. We address each argument in turn. A. The Trial Court's Findings of Fact Were Not Clearly Erroneous .
Kentucky Revised Statutes
KRS 431.015 as amended by House Bill 463.
Appellant first argues the trial court's findings of fact are not supported by substantial evidence and must therefore be disregarded. We disagree.
We find the trial court's findings of fact were supported by substantial evidence, and are therefore conclusive. "Substantial evidence means evidence of substance and relevant consequence having the fitness to induce conviction in the minds of reasonable men." Owens-Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky. 1998). Here, Officer Doane was the sole witness at the suppression hearing, and the trial court was entitled to rely on the officer's testimony as credible. Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003) ("[J]udging credibility of witnesses and weighing evidence are tasks within the exclusive province of the trial court.").
On appellate review "[r]egardless of conflicting evidence, the weight of the evidence, or the fact that the reviewing court would have reached a contrary finding, 'due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses[.]'" Moore, 110 S.W.3d at 354 (citation omitted). Doane testified that he observed Lewis approach a car at the Marathon station and, although his view was blocked, the officer could still see Lewis' head. The trial court characterized this interaction as a possible drug transaction based on the basis of Officer Doane's testimony. The officer further testified that he observed Lewis engage in two hand-to-hand transactions with another individual, and that, in Officer Doane's experience, this behavior was consistent with a drug transaction. Officer Doane also testified that he observed Lewis placing his hands near or in his waistband, behavior which is consistent with drug users or traffickers.
Another significant fact upon which the charges were based was Lewis' own admission, never denied, that he was in possession of a controlled substance. This and Officer Doane's testimony constitutes substantial evidence. Because the trial court's findings of fact were supported by substantial evidence, they are not clearly erroneous and are therefore conclusive. B. The Trial Court Error in Applying the Law was Harmless .
Lewis next argues that the officers did not have probable cause to believe he was trafficking in a controlled substance, and therefore the search violated his Fourth Amendment rights. Whether probable cause existed is a matter of law, which is reviewed de novo. Commonwealth v. Banks, 68 S.W.3d 347, 349 (Ky. 2001). We find that, while the trial court erred in its application of law, the error was harmless.
The Fourth Amendment to the United States Constitution provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath of affirmation, and particularly describing the place to be searched, and the persons or things to be seized.U.S. Const. amend. IV. Further, Section 10 of the Kentucky Constitution provides:
The people shall be secure in their persons, houses, papers and possessions, from unreasonable search and seizure; and no warrant shall issue to search any place, or seize any person or thing, without describing them as nearly as may be, nor without probable cause supported by oath or affirmation.Ky. Const. § 10.
While police are generally prohibited from searching an individual without a warrant, there are exceptions to the general rule. One exception is a search incident to an arrest. See McCloud v. Commonwealth, 286 S.W.3d 780, 784-85 (Ky. 2009) ("Among the recognized exceptions to the warrant requirement is a search incident to arrest."). The trial court made a legal conclusion that Lewis was not under arrest at the time he was handcuffed and led outside, but was detained for further investigation. The trial court concluded that the arrest did not occur until after the officers conducted the search. This was error. However, for the reasons discussed below, the error was harmless.
As a matter of law, Lewis was under arrest at the time the officers handcuffed him. In determining whether an individual has been taken into custody "the test is whether, considering the surrounding circumstances, a reasonable person would have believed he or she was free to leave." Smith v. Commonwealth, 312 S.W.3d 353, 358 (Ky. 2010). Lewis was put in handcuffs and led outside the Marathon station after admitting to police officers that he was in possession of marijuana. At that point, a reasonable person, under the circumstances, would not have believed that he or she was free to leave. However, as discussed below, the officers had probable cause to arrest Lewis. The arrest was therefore proper and the subsequent search was a valid search incident to a lawful arrest.
"To determine whether an officer had probable cause to make an arrest, a court must examine the events leading up to the arrest, and then decide 'whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to' probable cause." Jackson v. Commonwealth, 343 S.W.3d 647, 653-54 (Ky. App. 2011) (quoting Maryland v. Pringle, 540 U.S. 366, 366, 124 S.Ct. 795, 797, 157 L.Ed.2d 769 (2003)). "Whether probable cause exists is based on an analysis of the facts considering the totality of the circumstances." Stewart, 44 S.W.3d at 379. Leading up to the arrest, the trial court found that Doane had observed two possible drug transactions, as well as other behavior consistent with drug use or trafficking, prior to making contact with Lewis. The two possible drug transactions, combined with Lewis' other behavior, including avoiding the police, and his admission to possessing a controlled substance, were sufficient for an objectively reasonable police officer to conclude there was a fair probability that Lewis was trafficking in an illegal substance. There is no dispute that the location of the Marathon station is within 1000 feet of a school. Therefore, the officers had probable cause to arrest Lewis for trafficking in a controlled substance within one thousand feet of a school. The court did not err in denying Lewis' motion to suppress the evidence obtained in the search. C. KRS 431.015 Was Not Implicated in This Case .
In the alternative, Lewis argues that, even if his admission did create probable cause, it solely created probable cause for possession of marijuana, a misdemeanor, rather than for trafficking in a controlled substance within one thousand feet of a school. As a result, so Lewis' argument goes, KRS 431.015 mandated only the issuance of a citation, rather than an arrest.
KRS 431.015(1)(a) provides:
KRS 431.005 to the contrary notwithstanding, and except as provided in paragraphs (b), (c), and (d) of this subsection, a peace officer shall issue a citation instead of making an arrest for a misdemeanor committed in his or her presence, if there are reasonable grounds to believe that the person being cited will appear to answer the charge. The citation shall provide that the defendant shall appear within a designated time.
We disagree for a very simple reason. For this Court to embrace the argument, we could not have already concluded there was probable cause to arrest Lewis for committing a felony and having done so in the presence of two police officers. We have so concluded; therefore, this argument fails.
V. Conclusion
For the foregoing reasons, the Fayette Circuit Court's judgment is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Gene Lewter
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Leilani K. M. Martin
Assistant Attorney General
Frankfort, Kentucky