Opinion
NO. 2012-CA-000975-MR
04-05-2013
ANTRELL MONTEZ MALONE APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Elizabeth B. McMahon Assistant Public Defender Louisville, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Courtney J. Hightower Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JAMES M. SHAKE, JUDGE
ACTION NO. 10-CR-003352
OPINION
AFFIRMING
BEFORE: CLAYTON, COMBS, AND VANMETER, JUDGES. COMBS, JUDGE: Antrell Montez Malone entered a conditional plea of guilty to illegal possession of a controlled substance, tampering with physical evidence, illegal possession of a controlled substance (marijuana), and fleeing or evading police in the second degree. He reserved his right to appeal the trial court's denial of his motion to suppress. After our review of the record and applicable law, we affirm.
At the suppression hearing, the only witness was Officer Ryan Noland of the Louisville Metro Police Department. Noland testified that he was assigned to a task force that was working a "saturation detail"; that is, a crime unit that was intended to saturate areas of Louisville hard hit by drug and gun crimes. On August 10, 2010, members of the task force were at the Riverview Apartments. While working a back-up position, Officer Noland was notified by other officers that they had observed some sort of dice game taking place in an area of the apartment complex that was posted to forbid loitering and trespassing. The officers told Noland that when they came on the scene of the dice game, a black male immediately rode away down the sidewalk on his bicycle. An officer radioed Noland to be on the lookout for him.
Officer Noland spotted Malone riding a bicycle through an alleyway into the apartment complex courtyard. He yelled: "Stop! Metro police officer!" Malone stopped and said, "You scared the shit out of me." He then got back on his bicycle and rode away. Officer Noland testified that he was not sure why Malone fled, but he suspected that he did so because he had seen the word police printed across Noland's chest. Malone travelled about ten to fifteen feet before Officer Noland grabbed his shirt. Malone dropped the bicycle, changed direction, and ran.
Officer Noland chased Malone, commanded him to stop, and advised other officers over the radio about his location. Malone ran around a couple of the apartment buildings and ended up back in the courtyard. Officer Noland was about sixty feet away and claimed that he never lost sight of Malone. Malone fell and dropped some plastic baggies that appeared to contain drugs. He also was observed placing something in his mouth.
Malone was handcuffed and placed under arrest. Officer Noland walked him over to the scene of the dice game, where officers had rounded up other suspects, and called for a booking van. When the van arrived, a corrections officer searched Malone and found bags containing marijuana and cocaine. Malone was placed in the van, where he became ill. He did not divulge what he had swallowed, but he vomited a powder-like substance. According to EMS workers who examined him, he had most likely ingested cocaine or crack cocaine. Officer Noland also determined that Malone was wanted on multiple arrest warrants.
The trial court denied Malone's motion to suppress the evidence. Malone entered a conditional guilty plea, and this appeal followed.
In reviewing the ruling of a trial court on a motion to suppress, we are mindful of the reasoning of Commonwealth v. Neal, 84 S.W.3d 920, 923 (Ky. App. 2002) (footnotes omitted).
An appellate court's standard of review of the trial court's decision on a motion to suppress requires that we first determine whether the trial court's findings of fact are supported by substantial evidence. If they are, then they are conclusive. Based on those findings of fact, we must then conduct a de novo review of the trial court's application of the law to those facts to determine whether its decision is correct as a matter of law.
Malone argues that the trial court made several erroneous findings of fact in the following portion of its opinion and order:
Officer Ryan Noland testified that he, along with a number of officers, was observing a dice game. When the game broke up, the Defendant [Malone] fled on his bicycle. Noland pursued him. He stated that he only intended to interview him. When he caught up to the Defendant he grabbed his shirt and the Defendant fell from his bicycle. The Defendant then took off on foot.
Malone points to the following alleged errors: (1) Noland did not testify that he personally observed the dice game but rather that he was working a back-up position and was informed of the game by other officers; (2) Noland did not personally see Malone flee from the game but merely saw someone who met the description given by the other officers; and (3) Noland did not immediately catch up with Malone and grab his shirt; rather he spoke to Malone first and then grabbed him after he rode away.
Although there are some inaccuracies in the trial court's findings, they do not invalidate its conclusion that Officer Noland was free to approach Malone. The trial court was also correct in determining that Malone's subsequent flight from Noland created a "reasonable and articulable suspicion" that criminal activity had occurred - especially in light of the fact that Malone met the description of the individual seen by police fleeing an illegal dice game in a no-trespassing area.
In Florida v. Royer, 460 U.S. 491, 497-98, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983), the Supreme Court held that:
[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions. Nor would the fact that the officer identifies himself as a police officer, without more, convert the encounter into a seizure requiring some level of objective justification.However, the Royer court cautioned that the person approached under these circumstances:
need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way. He may not be detained even momentarily without reasonable, objective grounds for doing so; and his refusal to listen or answer does not, without more, furnish those grounds.
Malone acknowledges that under Royer, Officer Noland was free to approach and to attempt to speak to him. But Malone contends that he was also free to leave and that Officer Noland was not justified in pursuing him when Malone rode away on his bicycle because there were no reasonable, objective grounds to detain him.
Under Terry v. Ohio, 392 U.S.1, 88 S.Ct. 1868, L.Ed.2d 889 (1968), police officers may briefly detain an individual on the street -- even if there is no probable cause to arrest him -- if there is a reasonable suspicion that criminal activity is afoot. Gray v. Commonwealth, 150 S.W.3d 71, 74 (Ky. App. 2004).
Malone argues that there was no reasonable suspicion to justify a Terry stop. He points to Officer Noland's testimony that he stopped Malone because he thought Malone "could very well have been at the dice game just watching or whatever. I have no idea. And I . . . all I wanted to do was get information on him, talk to him." Malone stresses the fact that Officer Noland acknowledged on cross-examination that he did not mention the dice game when he filled out the uniform citation or when he testified before the grand jury. Malone contends that Officer Noland's behavior and testimony prove that the officer had no suspicion of criminal activity at the time of the stop.
Officer Noland was present in the apartment complex because of his participation in a police detail intended to combat drug and gun crime. Clearly, Noland wanted to obtain information regarding criminal activity and he so indicated in his testimony. "Other jurisdictions have ruled that simply being in a high crime area is a highly relevant factor upon which a police officer can rely in determining whether a defendant's activities are suspicious." Simpson v. Commonwealth, 834 S.W.2d 686, 688 (Ky. App. 1992). We cannot agree that he lacked reasonable suspicion upon which to justify a Terry stop.
Malone also argues that the description of a black male on a bicycle was not specific enough to justify the stop. Although the description of a black male on a bicycle might not -- standing on its own -- justify a Terry stop, surrounding circumstances corroborated the validity of the "tip." Noland's fellow officers had just radioed him that an individual matching that description had fled an illegal dice game in a no-trespassing area and that he was heading his way on a bicycle.
As outlined in Terry and Williams v. Commonwealth, 147 S.W.3d 1, 5 (Ky.2004), an " 'officer need not be absolutely certain that the individual' is engaged in an unlawful enterprise; 'the issue is whether a reasonably prudent man in the circumstances would be warranted in his belief' that the suspect is breaking, or is about to break, the law." Williams, 147 S.W.3d at 5 (citing Terry, 392 U.S. at 27, 88 S.Ct. 1868).Carter v. Commonwealth, 358 S.W.3d 4, 9 (Ky. App. 2011).
We conclude that Officer Noland was reasonably entitled to rely on the description provided to him by his fellow officers and that he was justified in approaching Malone.
Malone's decision to flee after his initial encounter with Officer Noland further supported a reasonable suspicion to justify a Terry stop. "[T]he fact that the appellant's activity may have been as consistent with innocent activity as with illegal activity did not deprive the police from the ability to entertain a reasonable suspicion that criminal activity had, in fact, occurred." Simpson, 834 S.W.2d at 688.
After reviewing each argument and the surrounding circumstances, we cannot agree that the trial court erred in denying Malone's motion to suppress.
We affirm the judgment of conviction.
ALL CONCUR. BRIEFS FOR APPELLANT: Elizabeth B. McMahon
Assistant Public Defender
Louisville, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky