Opinion
NO. 2015-CA-001375-MR
11-18-2016
KEVIN LAMAR MANNS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Shannon Dupree Assistant Public Advocate Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky J. Todd Henning Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE THOMAS L. CLARK, JUDGE
ACTION NO. 14-CR-01000 OPINION
AFFIRMING
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BEFORE: COMBS, DIXON AND NICKELL, JUDGES. COMBS, JUDGE: Kevin Manns entered a conditional plea of guilty (RCr 8.09) in the Fayette Circuit Court to a series of charges: first-degree trafficking in a controlled substance (cocaine), under four grams (amended); being a felon in possession of a firearm (amended); first-degree fleeing and evading; and being a first-degree persistent felony offender. Manns was also charged in his indictment with two counts of not having an operator's license. These charges were dismissed pursuant to Manns's plea agreement. He received a sentence of ten years. He appeals from the pre-trial order denying his motion to suppress based on an improper arrest and search. After our review of the record, we affirm.
Kentucky Rules of Criminal Procedure.
Two evidentiary hearings on Manns's suppression motion were conducted, and the evidence was uncontroverted. Through the course of several investigations during the summer of 2014, Detective Kevin Duane of the Lexington Police Department identified Manns and several of his associates as individuals involved in a drug trafficking organization known as "the Money Team." During these investigations, Detective Duane discovered that members of the organization would routinely drive rental cars that other people had rented for them. He also discovered that Manns did not have a valid driver's license.
On July 1, 2014, while driving an unmarked police vehicle, Detective Duane observed Manns driving a rented grey Dodge Charger. Detective Duane did not initiate a stop at that time because he was driving an unmarked car, and the congested traffic conditions would not allow him to turn his vehicle around to follow Manns. The following day, Detective Duane sought an arrest warrant for Manns for driving without an operator's license. The affidavit and criminal complaint in support of the warrant provided as follows:
The Affiant, Kevin P. Duane, states that on 7/1/2014 at 16:37 in FAYETTE County, Kentucky, the above named defendant unlawfully: The above named unlawfully committed the offense of No Operators / Moped License in violation of KRS 186.410(1) 00380.
The above named is currently a suspect in A [sic] illegal narcotics investigation being investigated by the Lexington Police Department. The above named and his associates are also known to the Affiant to travel throughout Lexington in rental cars while suspected of committing illegal narcotics activity.
On 7/1/14, at approximately 1627 hours, the Affiant and Det. J. Curtsinger turned onto Florida Dr. in attempts to identify any rental cars parked on the street that may be associated with the above named suspect. While turning onto the street, I observed a gray 2014 Dodge Charger bearing Virginia registration plates from the front and rear exiting from Dakota St. and traveling east on Seventh St.
At approximately 1637 hours, after exiting the 7th St./Florida St. area, Det. Curtsinger and I were traveling east on Third St./ Nelson Ave. when we observed the same gray Dodge Charger traveling on south on Nelson Ave. / Third St. As the gray Dodge Charger entered the intersection and turned west towards Race St., I immediately recognized the driver as being Kevin L. Manns, whom I have had recent contact with and is confirmed to have a Suspended/Non-License driving status though the Kentucky Department of Motor Vehicle records. Due to being in a non-enforcement police vehicle and being unable to turn around in stopped traffic, I immediately advised police dispatchers of the vehicle description, direction of travel, and that Kevin L. Manns was observed operating the vehicle while not having received a valid operators [sic] license.
After dispatching the above listed information, I was contacted by Officer G. Wims into [sic] recent contact with that particular vehicle. Officer Wims and Officer Burlisle informed the Affiant that the driver of that particular vehicle had been observed conducting a suspected hand-to-hand narcotics transaction the previous day, near the intersection of 5th St./Chestnut St., however fled from the officers at a high rate of speed prior to police being able to identify the driver.
Approximately one week after applying for the arrest warrant, Detective Duane observed Manns enter a white Chevy Impala. Again in an unmarked car, Detective Duane pulled in front of Manns in an effort to stop the vehicle. Instead of stopping, Manns put his vehicle in reverse, drove around the officer, and accelerated at a high rate of speed. Detective Duane pursued, but he discontinued the chase shortly thereafter due to safety concerns over Manns's reckless driving.
Approximately one month after that incident, Detective Duane received information that Manns was staying at the Howard Johnson motel and that he possessed a firearm with an extended magazine clip. When Detective Duane arrived at the motel, he observed Manns and an unidentified female pull a vehicle into a parking space and enter a motel room. Aware that Manns might be armed, Detective Duane phoned dispatch, confirmed that Manns had an active warrant, and requested backup.
After backup arrived at the scene, officers observed Manns and the female exit the motel room and head toward their vehicle. Officers stopped and detained the female before she could reach the vehicle. Manns, however, made it to the vehicle, entered, and locked the doors. The officers, all in uniform, shouted at Manns to exit the vehicle. Meanwhile, Detective Cobb unsuccessfully attempted to break the car window by hitting it with a hammer. As Manns sat in the car ignoring the commands to exit, the officers observed him putting his hands down toward the center console or the back seat while leaning his body over as if he were attempting to hide something. Moments later, Manns unlocked the door and was arrested by the detectives.
After Manns was placed under arrest, Detective Cobb returned to his vehicle to close the door. While standing outside the vehicle, Detective Cobb observed a set of digital scales in the front cup holder. Based on his observation, Detective Cobb searched the vehicle further and discovered approximately 6.2 grams of cocaine and a Glock .45 handgun.
Prior to trial, Manns filed a motion to suppress the evidence obtained pursuant to the warrantless search of his rental vehicle. Manns argued that the incriminating nature of the digital scales was not readily apparent as constituting contraband and that, therefore, the search of the car was illegal.
The trial court held a suppression hearing at which Detective Duane and Detective Cobb testified. At the conclusion of the hearing, the trial court asked the parties to submit briefs to the court. At the next court date, the judge acknowledged receipt of the briefs but asked the attorneys for additional briefs addressing the propriety of Manns's arrest warrant under KRS 431.015. Another hearing was held for additional testimony to be taken.
Kentucky Revised Statutes. With some exceptions, KRS 431.015 requires that a citation be issued for misdemeanor offenses committed in an officer's presence.
After the second hearing and briefings by the parties, the trial court overruled Manns's motion to suppress, concluding that the arrest warrant was valid because it was issued by a neutral and detached judge. The trial court also found that the digital scales observed in plain view provided a sufficient legal basis to search the vehicle.
As a result of the adverse ruling on his suppression motion, Manns entered a conditional guilty plea, reserving his right to appeal the trial court's order. This appeal follows. Additional facts will be developed as necessary.
On appeal, Manns contends that the arrest warrant should have never been issued for a misdemeanor and that, therefore, his arrest and the subsequent search of his vehicle were improper. Manns further contends that even if the arrest had been proper, the subsequent search of his vehicle was illegal because the incriminating nature of the scales was not immediately apparent to Detective Cobb. The issues were properly preserved by Manns's motion to suppress, the trial court's adverse ruling, as well as Manns's subsequent conditional guilty plea reserving the right to appeal the trial court's denial of his motion to suppress.
In reviewing a trial court's decision on a motion to suppress, we must examine the court's findings of fact for clear error and uphold the findings that are supported by substantial evidence. Peyton v. Commonwealth, 253 S.W.3d 504 (Ky. 2008); RCr 9.78. We then conduct a review de novo of the trial court's application of the laws to those facts. Since the facts in this case are uncontested, we proceed to a determination of whether the facts satisfy the applicable legal standards -- beginning with the legality of the arrest warrant
The Arrest Warrant
Both the Fourth Amendment to the United States Constitution and Section Ten of the Kentucky Constitution prohibit unreasonable searches and seizures. Both provisions require that a warrant to search or seize be based upon probable cause supported by oath or affirmation. Probable cause to obtain an arrest warrant is established where the facts and circumstances within the affiant's knowledge (and of which he or she has reasonably trustworthy information) are sufficient in themselves to support a reasonable belief that a crime has been or is being committed. Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949); Williams v Commonwealth, 147 S.W.3d 1, 7 (Ky. 2004).
Manns observes that driving without a license is a misdemeanor offense for which a person may not be arrested. Therefore, he argues that probable cause to arrest him could not have been properly premised solely on his driving without a license. He further reasons that the warrant based on his driving without a license was not supported by probable cause and that both his arrest and the subsequent search of his vehicle were unconstitutional requiring suppression of the evidence as "the fruit of the poisonous tree." See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).
KRS 431.015, Citation for misdemeanor; failure to appear, provides:
(1) (a) 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.
(b) A peace officer may make an arrest instead of issuing a citation for a misdemeanor committed in his or her presence if the misdemeanor is:
1. A violation of KRS Chapter 508, 510, or 527, or KRS 189A.010 , 511.050, 511.085, 514.110, or 523.110;
2. An offense in which the defendant poses a risk of danger to himself, herself, or another person; or
3. An offense in which the defendant refuses to follow the peace officer's reasonable instructions.
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(2) A peace officer may issue a citation instead of making an arrest for a violation committed in his or her presence but may not make a physical arrest unless there are reasonable grounds to believe that the defendant, if a citation is issued, will not appear at the designated time or unless the offense charged is a violation of KRS 189.223, 189.290, 189.393, 189.520, 189.580, 235.240, 281.600, 511.080, or 525.070 committed in his or her presence or a violation of KRS 189A.010, not committed in his or her presence, for which an arrest without a warrant is permitted under KRS 431.005(1) (e).
(3) If the defendant fails to appear in response to the citation, or if there are reasonable grounds to believe that he or she will not appear, a complaint may be made before a judge and a warrant shall issue.
(4) When a physical arrest is made and a citation is issued in relation to the same offense the officer shall mark on the citation, in the place specified for court
appearance date, the word "ARRESTED" in lieu of the date of court appearance.
Driving without a license is a class B misdemeanor. KRS 186.410; KRS 186.990(3). (Emphasis added.)
Detective Duane testified that he observed Manns driving without a license. Thus, a misdemeanor was committed in the presence of a peace officer. When a misdemeanor is committed in a peace officer's presence, KRS 431.015 mandates that a citation be issued unless the misdemeanor is one of those listed as an exception in the statute (which was not the case with Manns) or the perpetrator constitutes a flight risk. We believe that if Detective Duane had arrested Manns immediately upon observing him commit the misdemeanor offense, the arrest would not have necessarily violated the statute. Under the circumstances of this case, however, this portion of the statute was violated.
At the second evidentiary hearing on Manns's motion to suppress, Detective Duane explained that he was aware that Manns had failed to appear for court appearances in the past. He had also once tried to contact Manns for an investigation, and Manns neglected to get back in touch. KRS 431.015(b)(2) allows for the arrest of a suspect if the officer reasonably believes that the suspect will fail to appear. Based on Detective Duane's knowledge of Manns' past failures to appear, the detective did have reason to believe that Manns might not appear to answer for the current charge. However, Manns contends that the warrant violated the statute because the affidavit did not contain specific language stating Detective Duane's belief that Manns was a flight risk - regardless of the subjective state of his reasonable belief.
In order for driving without a license to constitute an arrestable offense, KRS 431.015 (d)(3) requires that the officer believe that the suspect poses a flight risk. We have reviewed the affidavit and we agree with Manns that nothing in the affidavit established grounds to believe that he would not appear in court pursuant to a citation. Detective Duane testified that he listed the reasons he believed that Manns was a flight risk in the "notes section" of the affidavit when he applied for the warrant. However, the "notes section" is not contained on the copy of the affidavit in the record before this Court. In reviewing whether a judge should have issued a warrant, we are confined to the four corners of the affidavit and may not consider extrinsic evidence. Commonwealth v. Pride, 302 S.W.3d 43, 49 (Ky. 2010). KRS 431.015 (d)(3). Again, there was nothing contained in the affidavit that would suggest that Manns would not appear to answer to a citation. Therefore, the arrest warrant was issued contrary to the dictates of KRS 431.015, thus rendering Manns's subsequent arrest based on the warrant statutorily invalid.
At the second suppression hearing, Detective Duane testified that at the time Manns was arrested, there existed a second warrant for Manns' arrest for failure to appear. He stated that before he arrested Manns, he called dispatched and confirmed that there was an active warrant outstanding.
Manns argues that because his arrest did not comport with KRS 431.015, suppression was required. However, the United States Supreme Court rejected a similar argument in Virginia v. Moore, 553 U.S. 164, 128 S.Ct. 1598, 170 L.Ed.2d 559 (2008). In that case, the police arrested Moore for the misdemeanor offense of driving on a suspended license rather than issuing him a summons as required by Virginia law. A search incident to the arrest yielded sixteen grams of crack cocaine, and Moore was tried on drug charges. Prior to trial, Moore moved to suppress the evidence because his arrest violated the Fourth Amendment, but the trial court overruled the motion. The Virginia Supreme Court reversed, reasoning that the arresting officers should have issued a citation under state law and holding that the Fourth Amendment does not permit a search incident to a citation.
The United States Supreme Court reversed. The Court held that police do not violate the Fourth Amendment when they make an arrest that was based on probable cause -- albeit an arrest prohibited by state law. The Court explained that the only requirement under the Fourth Amendment is that the officer have probable cause to believe that a law has been broken in his presence. Id. at 553. The severity of the law broken is of no relevance. This reasoning extends even to minor misdemeanors. Id. The Court acknowledged that states are "free to prefer one search-and-seizure policy among the range of constitutionally permissible options." However, the Court made clear that a state's "choice of a more restrictive option does not render the less restrictive ones unreasonable, and hence unconstitutional." Id. at 164.
Our Supreme Court subsequently followed the Moore holding in Bratcher v. Commonwealth, 424 S.W.3d 411 (Ky. 2014). The trial court denied Bratcher's motion to suppress evidence obtained in violation of a policy procedure of the Department of Corrections. The Kentucky Supreme Court affirmed the denial, explaining:
"[i]t is fundamental that by administrative rule or statute a state may impose upon its police authorities more restrictive standards than the Fourth Amendment requires. Such standards, however, cannot expand the scope of the Fourth Amendment itself." Id. at 415. (Emphasis added).
Additionally, our Courts have continually declared that Section Ten of the Kentucky Constitution "provides no greater protection than does the federal Fourth Amendment." Artis v. Commonwealth, 360 S.W.3d 771 (Ky. App. 2012) (quoting LaFollette v. Commonealth, 915 S.W.2d 747, 748 (Ky. 1996) (overruled on other grounds by Rose v. Commonwealth, 322 S.W.3d 76 (Ky. 2010)). Thus, while KRS 430.015 prohibits arrests for many misdemeanor offenses in the Commonwealth, it does not expand or restrict the scope of the Fourth Amendment or Section Ten of the Kentucky Constitution.
Detective Duane submitted to a neutral and detached judge an affidavit that stated with particularity that on a certain date, and in his presence, Manns committed the misdemeanor crime of driving without a license. The affidavit was amply supported by probable cause that a crime was committed and that Mann committed the crime. Although the warrant to arrest Mann was not authorized by KRS 430.015, under both the United States Constitution and the Kentucky Constitution, the warrant was constitutionally permissible. "The [Fourth] Amendment does not require exclusion of evidence obtained from a constitutionally permissible arrest." Moore, 553 U.S. at 178.
Manns directs our attention to Copley v. Commonwealth, 361 S.W.3d 902, 907 (Ky. 2012), in which our Supreme Court stated:
We now explicitly state that which was implied in earlier Kentucky cases, that is when a criminal procedure rule is violated but the defendant's constitutional rights are not affected, suppression may still be warranted if there is (1) prejudice to the defendant, in the sense that the search might not have occurred or been so abusive if the rule had been followed, or (2) if there is evidence of deliberate disregard of the rule.Manns acknowledges that the holding in Copley applies to rules of criminal procedure. However, he argues that in Commonwealth v. Bedway, 466 S.W.3d 468 (Ky. 2015), the Court extended the rule set forth in Copley to apply to the violation of statutes per se.
After reviewing the Courts opinion in Bedway, we believe that the holding was not intended to be construed as broadly as Manns would suggest. The Supreme Court unambiguously limited its holding to apply only to those situations in which the mandates of KRS 189A.105 are violated. See Id. at 477 ("We now extend this rule to a violation of the statutory mandate in KRS 189A.105."). We do not believe that our Supreme Court expressly or impliedly extended the rule set forth in Copley to apply to violations of all statutes. Accordingly, we hold that Manns' statutorily unlawful arrest was constitutionally permissible and that, therefore, it did not require suppression of the evidence.
KRS Chapter 189A deals with driving under the influence.
The Vehicle Search
Manns argues that even if the arrest had been proper, the search of the automobile was not. He asserts that he was handcuffed and placed under arrest. Thus, there was no possible threat that he might retrieve a weapon. See Arizona v. Gant, 556 U.S.332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) (holding that police are authorized to search a vehicle incident to a recent occupant's arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search). Furthermore, he contends that there was no reasonable basis to believe that the vehicle contained relevant evidence; thus, the automobile exception to the warrant requirement did not apply. See Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S.Ct. 2485, 2487, 135 L.Ed.2d 1031 (1996) (holding that police may lawfully search the entire vehicle if probable cause exists to believe the vehicle contains relevant evidence and the vehicle was "readily mobile").
As a general rule, warrantless searches are unreasonable "subject only to a few specifically established and well-delineated exceptions." Helphenstine v. Commonwealth, 423 S.W.3d 708, 714 (Ky. 2014) (citing Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)). One such exception is the automobile exception, which "applies when there is probable cause to believe an automobile contains evidence of criminal activity and the automobile is readily mobile." Chavies v. Commonwealth 354 S.W.3d 103, 110 (Ky. 2011). The test for probable cause is whether -- under the totality of the circumstances -- a fair probability exists that contraband or evidence of a crime will be found in a particular place. Moore v. Commonwealth, 159 S.W.3d 325, 329 (Ky. 2005). Where probable cause justifies the search of a vehicle for evidence of criminal activity, police "may search the entire vehicle, including areas that are not in plain view." Id. at 111.
In Chavies, supra, an officer observed a man standing in the garage of a house for sale. He saw an unfamiliar vehicle pulling away from the house. The officer stopped the defendant for failure to wear a seatbelt and for reckless driving. The defendant was arrested on an outstanding warrant. After placing the defendant under arrest, the officer went back to the house to investigate and found another man hiding in a closet. Upon questioning, the other man admitted to burglarizing the house and informed the officer that Chavies had taken items from the house, including a laptop and a box of lights. Based on that information, the officer went back to the car and looked in the window, where he observed a laptop computer case and a box of lights in plain view. A full search of the vehicle ensued, which produced numerous items stolen from the house and a mobile methamphetamine lab.
Chavies filed a motion to suppress the evidence found in his car as fruits of an illegal search. He contended that the search was unconstitutional in part because: (1) the incriminating nature of the objects was not immediately apparent; and (2) even if the plain-view exception applied, the police were not authorized to search the entire vehicle. Our Supreme Court observed that "[w]here the evidence is not inherently criminal, probable cause of its incriminating nature is necessary." Based on the totality of the circumstances—including the second suspect's confession and accurate description of the stolen items, the Court found that the police had contemporaneous probable cause to believe that the computer case and box of lights were contraband. The Court further found that the incriminating evidence gave rise to probable cause to search the entire vehicle under the automobile exception.
The plain-view exception to the warrant requirement allows police officers to seize an item when the item "is plainly visible, the officer is lawfully in a position to view the object, and the incriminating nature of the object is immediately apparent." Chavies, 354 S.W.3d at 109.
Like the Court in Chavies, we believe that based on the totality of the circumstances, Officer Duane had probable cause to believe that the digital scales were contraband. In Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the United States Supreme Court described the probable cause standard as follows:
The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as factfinders are permitted to do the same—and so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.Id. at 231-32, 2328-29.
In this case, according to the testimony of both Detective Duane and Detective Cobb at the first evidentiary hearing, the police officers possessed the following information when they observed the scales in plain view: (1) Manns might be involved in the drug trade organization known as "The Money Team" or "TMT"; (2) the driver of a vehicle matching the one which Manns had been seen driving was involved in what appeared to be a hand-to-hand drug transaction; (3) weeks earlier, Manns evaded the police in a high speed chase; (4) Manns may have recently come into possession of a handgun with an extended clip; (5) before being arrested, Manns locked himself in his rental vehicle, ignored commands to exit, and made movements as if he were hiding something; and (6) digital scales are typically used by drug dealers to weigh product.
Based on the totality of these circumstances, we believe that it was reasonable for the police officers, upon observing the digital scales in plain sight in the vehicle, to believe that they were contraband. When the police saw the digital scales, they had probable cause to believe -- again, under the totality of the circumstances -- that the car contained other evidence of criminal activity. Under the automobile exception, the officers were then authorized to search the entire contents of the vehicle.
KRS 218A.500(1) (e), lists digital scales as drug paraphernalia. --------
Manns relies primarily on Commonwealth v. Hatcher, 199 S.W.3d 124 (Ky. 2006), in arguing against the legality of the search. In Hatcher, our Supreme Court held that a pipe found in a home was not admissible under the plain-view exception to the search warrant requirement because the criminal nature of the pipe was not immediately inherent. The Court reviewed the record in that case and found that the police officer lacked probable cause to believe that the pipe was contraband. The Court noted that the pipe was not inherently criminal, that the officer could not smell or see marijuana from his vantage point, and that "importantly, at the time [the officer] observed the pipe, he had not spoken with Hatcher and was unaware of her prior conviction possession of drug paraphernalia." Id. at 128.
The only similarity between Hatcher and the present case is that the two seized items were not inherently criminal. In Hatcher, the officer had "no probable cause to believe the pipe was drug paraphernalia until he picked it up and smelled the odor of marijuana." Id. at 128. Therefore, the plain-view exception to the search warrant requirement did not apply. In this case, however, police had several grounds on which to base their belief that the digital scales observed in Manns's vehicle were being used to weigh drugs. Those grounds, along with the observation of the digital scales, gave rise to probable cause to search the entire vehicle under the automobile exception to the search warrant requirement. Manns's reliance on Hatcher is misplaced and entitles him to no relief.
We find no error in the denial of Manns's motion to suppress by the Fayette Circuit Court. Therefore, we affirm its judgment.
ALL CONCUR. BRIEF FOR APPELLANT: Shannon Dupree
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky J. Todd Henning
Assistant Attorney General
Frankfort, Kentucky