Opinion
NO. 2016-CA-001808-MR
01-26-2018
DOMINIQUE JAMAR MASON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Julia K. Pearson Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky James C. Shackelford Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE KIMBERLY N. BUNNELL, JUDGE
ACTION NO. 16-CR-00452-001 OPINION
AFFIRMING
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BEFORE: JONES, J. LAMBERT, AND STUMBO, JUDGES. JONES, JUDGE: Appellant, Dominique Jamar Mason, pleaded guilty to possession of a controlled substance in the first degree and possession of drug paraphernalia. His guilty plea was conditioned on his right to appeal the trial court's denial of his motion to suppress evidence he alleges was the product of an illegal seizure. On appeal, Mason argues that his consent to a pat-down search flowed out of his illegal detention and seizure. He asks this Court to reverse his conviction with directions to suppress the evidence gleaned from the search on retrial. Following review of the record and applicable law, we affirm the Fayette Circuit Court.
Judge Janet Stumbo concurred in this opinion prior to retiring from the Kentucky Court of Appeals effective December 31, 2017. Release of this opinion was delayed by administrative handling.
I. BACKGROUND
In the early part of 2016, Detective Benjamin Shirley, a narcotics detective with the Lexington Metro Police Department, was investigating the source of crack cocaine coming out of the Lima Drive area of Lexington, Kentucky. At some point, Detective Shirley's investigation zeroed in on Thomas Gillespie. Detective Shirley used a confidential informant to purchase drugs from Gillespie on four occasions. These buys took place in the parking lot of a strip mall off Lima Drive. On March 23, 2016, Detective Shirley observed Gillespie at the strip mall, and decided that the time had come to arrest him. At that point, he requested assistance from Lexington Metro Police Officers Beatty and Wells.
Detective Shirley parked his unmarked police car approximately 50 to 75 meters away from the strip mall. From this location, he was able to observe Gillespie's movements in the parking lot. Officers Beatty and Wells arrived in separate marked police cruisers, which they parked across the street from the strip mall. Detective Shirley and the patrol officers were in radio communication with one another during this time.
Detective Shirley observed Gillespie move away from a white car and make his way toward a black car that was parked near some dumpsters in the strip mall parking lot. Detective Shirley testified that he then observed Gillespie pause near the driver's side window of the black car. The Appellant, Dominque Mason, was the sole occupant of the car and was seated in the driver's seat. Officer Beatty also observed Gillespie interacting with Mason, the occupant of the black car. Officer Beatty testified that Gillespie and Mason conversed for about 30 to 45 seconds. Neither Officer Beatty nor Detective Shirley saw Gillespie actually reaching or bending inside of the black car or any hand-to-hand transaction between Gillespie and Mason. As Gillespie started walking away from the black car, Detective Shirley directed Officers Wells and Beatty to arrest him. He also directed them to make contact with the driver of the black car.
None of the officers had any prior knowledge of Mason; they only learned his identity after making contact with him later that day.
Officers Beatty and Wells approached Gillespie and placed him under arrest. While Officer Wells finished arresting Gillespie, Officer Beatty made his way over to Mason's black car, positioning himself outside of the passenger's side door/window. Officer Beatty asked Mason to roll down the window, to provide identification, and to put the car in park. Mason complied with these requests. During this short interaction, which lasted less than a minute, Officer Beatty noticed that Mason's hands and arms were shaking.
By this time, Officer Wells had secured Gillespie in his police cruiser, and Detective Shirley had made his way to the parking lot. Officer Beatty remained positioned on the passenger's side of Mason's car, and Officer Wells and Detective Shirley positioned themselves outside the driver's side door. At this point, Detective Shirley took the lead in questioning Mason. Detective Shirley testified that his purpose was to speak with Mason about his interaction with Gillespie. Even before speaking with Mason, Detective Shirley suspected that Mason was involved in a drug transaction with Gillespie. Detective Shirley noted that Mason had backed his car into the parking spot, an activity he recognized as common practice for automobile-based drug buys. He also considered it significant that Mason was parked close to the dumpsters because the controlled drug buys from Gillespie had taken place near the dumpsters. Detective Shirley also testified that the brief contact between Gillespie and Mason and the fact Mason never exited his car were consistent with a drug transaction.
As Detective Shirley began the process of speaking with Mason, he noticed that Mason appeared to be extremely nervous. Detective Shirley testified that Mason appeared more nervous than any other person he typically dealt with in a narcotics situation. He explained that Mason's head, body, and arms were shaking. Given Mason's nervousness, Detective Shirley asked—and expected—Mason to step out of the car to gain more control over the situation and ensure his and the other two officers' safety. As Mason was stepping out of the car, Officer Beatty, who was still standing outside the passenger's side door, observed some digital scales in the center console of Mason's car. Based on his training, Officer Beatty knew that these types of digital scales were used to weigh narcotics. At some point, Officer Beatty communicated this information to Detective Shirley, although it is somewhat unclear from the record exactly when he did so.
After Mason was placed under arrest, he told Detective Shirley that he suffered from seizures as a result of a prior gunshot wound to the head.
Once Mason was outside of the car, Detective Shirley asked Mason for permission to pat him down. Mason consented. When Detective Shirley patted Mason's front-right pants pocket, Detective Shirley felt a notable bulge. Detective Shirley asked Mason if he could remove the bulge. Mason consented. Detective Shirley uncovered what appeared, and was later confirmed to be, several ounces of crack cocaine. Mason was then placed under arrest and transported to the Fayette County Detention Center.
The Commonwealth indicted Mason on May 17, 2016, for one count of possession of controlled substance in the first-degree and one count of possession of drug paraphernalia. Mason filed a motion to suppress all evidence recovered on March 23, 2016, i.e., the crack cocaine and the digital scales. The trial court conducted a suppression hearing. Both Detective Shirley and Officer Beatty testified at the hearing. The trial court found that Detective Shirley lawfully asked Mason to step out of the car—i.e., Detective Shirley lawfully detained Mason, making Mason's consent to search his person, on which the crack cocaine was found, valid. Because Officer Beatty observed the digital scales in Mason's car in plain view, the trial court found no basis on which to suppress them.
Subsequent to the trial court's findings, Mason entered a conditional guilty plea to both counts, such that Mason reserved the right to appeal the trial court's denial of his motion to suppress. The trial court sentenced Mason to three years for the possession of a controlled substance and twelve months for the possession of paraphernalia to run concurrently with each other. This appeal followed.
II. STANDARD OF REVIEW
On appeal of an order denying a motion to suppress, the standard of review regarding the trial court's factual findings is the clearly erroneous standard. See Commonwealth v. Banks, 68 S.W.3d 347, 349 (Ky. 2001); see also Commonwealth v. Ousley, 393 S.W.3d 15, 22-23 (Ky. 2013). Legal questions regarding reasonable suspicion to stop or probable cause to search are reviewed de novo. See id at 23. (citing Ornelas v. United States, 517 U.S. 690, 697, 116 S. Ct. 1657, 1662, 134 L. Ed. 2d 911 (1996)); see also Commonwealth v. Jones, 217 S.W.3d 190, 193 (Ky. 2006).
Mason contends that the trial court should have entered written findings of fact and conclusions of law, citing Commonwealth v. Alleman, 306 S.W.3d 484 (Ky. 2010), for support. But, that case held that the findings made on a video record satisfied due process because a reviewing court would be able to determine the basis of the judge's decision. Id. at 487-88. Here, we are able to determine the basis of the trial court's decision. Written findings, while always much appreciated, are not required.
III. ANALYSIS
"The Fourth Amendment of the U.S. Constitution, as applied to the states under the Fourteenth Amendment, and Section 10 of the Kentucky Constitution provide safeguards against unreasonable searches and seizures." Singleton v. Commonwealth, 364 S.W.3d 97, 99 n.2 (Ky. 2012). In Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), the United States Supreme Court established that even a brief detention of a person for questioning by a police officer, known as a "stop and frisk[,]" constitutes a "seizure" within the meaning of the Fourth Amendment of the United States Constitution, and therefore may properly be undertaken only if the police officer has a reasonable suspicion based upon objective, articulable facts that the subject of the inquiry may be involved in some criminal activity.
In the context of a Terry stop, an "officer may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer's suspicions. But the detainee is not obliged to respond." Berkemer v. McCarty, 468 U.S. 420, 439, 104 S. Ct. 3138, 3150, 82 L. Ed. 2d 317 (1984). Additionally, while an officer may conduct a Terry stop for investigative purposes upon the belief that the subject is involved in criminal activity, an officer can only conduct a pat-down, or Terry frisk, for the limited purpose of securing his own safety if some additional facts reasonably suggest that the subject may be armed. Nunn v. Commonwealth, 461 S.W.3d 741, 746 (Ky. 2015) ("[T]he reasonable suspicion that justifies the initial stop of a vehicle . . . does not, under Terry, authorize an additional pat down search for weapons unless it includes, or is later supplemented with, the additional reasonable belief or suspicion that the subject may be armed.").
Our first task is to determine whether Mason was unlawfully seized prior to consenting to a search of his person by Detective Shirley. This is because "the fruits of even a consensual search must be suppressed if the search was conducted pursuant to an unlawful stop or detention." Parks v. Commonwealth, 192 S.W.3d 318, 330 (Ky. 2006).
"Police officers are free to approach anyone in public areas for any reason." Banks, 68 S.W.3d at 350. After approaching a citizen, an officer may ask questions or request identification, and as long as the officer does not restrain the liberty of the person or indicate that compliance with his request is mandatory, the interaction does not amount to an investigatory stop. See I.N.S. v. Delgado, 466 U.S. 210, 216, 104 S. Ct. 1758, 1762, 80 L. Ed. 2d 247 (1984) (stating that an "interrogation relating to one's identity or a request for identification by the police does not, by itself, constitute a Fourth Amendment seizure"). However, under certain circumstances, what begins as an encounter can turn into seizure. "Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled." United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 1877, 64 L. Ed. 2d 497 (1980).
The interaction between Officer Beatty and Mason, which took place while Officer Beatty was standing outside the passenger's side of Mason's automobile, would best be described as an encounter, not a seizure. Officer Beatty merely asked Mason a series of questions that he appears to have voluntarily answered without any complaint. Things changed, however, when Officer Beatty was joined by Officer Wells and Detective Shirley. At this point, three law enforcement officers were surrounding Mason's car. Detective Shirley and Officers Wells were positioned outside Mason's driver's side door while Officer Beatty remained outside the passenger's side door. Additionally, although Detective Shirley "asked" Mason to get out of his car, he testified that his request was a directive, and he expected Mason to comply with it. At this point, no reasonable person would have felt free to leave. Therefore, we hold that a seizure occurred at the point Detective Shirley and Officer Wells joined Officer Beatty outside of Mason's car. See Williams v. Commonwealth, 364 S.W.3d 65, 68-69 (Ky. 2011) ("A person is seized under the Constitution when, based on the totality of the circumstances, a reasonable person would believe he is not free to leave.").
Having determined that Mason was seized for Fourth Amendment purposes, we must decide whether the officers had an articulable reasonable suspicion that criminal activity was afoot based upon the facts in existence at that time. Detective Shirley testified that several facts caused him to suspect that Mason might be engaged in criminal activity: 1) the manner in which Mason parked his car (backed into a spot) was consistent with an automobile-based drug buy; 2) the area of the parking lot (near the dumpsters) where Mason parked his car was the same area Gillespie had used in the past to conduct other drug transactions; and 3) the short interaction between Gillespie and Mason was typical of a drug transaction. Detective Shirley then grew concerned that Mason might be armed or present some other danger to the officers if allowed to remain in command of the car due to his extreme shaking. It was at this point that Detective Shirley directed Mason to exit the car so that he could continue questioning him.
In Strange v. Commonwealth, 269 S.W.3d 847 (Ky. 2008), an officer stopped Strange in a high crime area after Strange turned away from the officer and appeared nervous when the officer approached him. Id. at 849. Based on those circumstances, the officer detained Strange. Id. But the Supreme Court of Kentucky held that Strange's turning away from the officer plus the officer's general suspicion of Strange being out at night in a high crime area did not give rise to reasonable, articulable suspicion. Id. at 851-52. The Court held:
Without conduct that can truly be deemed suspicious, the only factor from which reasonable suspicion is articulated here is Appellant's presence in a high crime area at night. That mere presence alone is not sufficient evidence to justify an investigatory stop and seizure. Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). The officers acknowledged that in that area they stop and talk to everyone they see out at that time of night. Doing so may be a good police practice, and as stated above, they are free to do so. See Banks, 68 S.W.3d at 350. Undoubtedly, that involvement with citizens deters some from committing crimes and it surely on occasion enables the police to obtain information helpful in the law enforcement effort. But, when the police take control over a citizen's person, and limit the movement of that citizen, as they did with Appellant, the Fourth Amendment is involved and they must be able to articulate the grounds for their suspicion.Id. at 852.
If Mason had been simply sitting in his car in the general parking lot, a seizure would not have been justified under Strange. What sets this case apart from Strange, however, is that Gillespie, a known drug dealer, was seen interacting with Mason's car just moments before. Additionally, the manner in which Mason parked his car, backed in near the dumpsters, was consistent with past drug transactions by Gillespie. These circumstances coupled together created a reasonable and articulable basis to suspect Mason had just been engaged in criminal activity.
While not precedential authority, we note our conclusion is consistent with our unpublished decision in Minniefield v. Commonwealth, 2010-CA-000581-MR, 2012 WL 28680, at *4 (Ky. App. Jan. 6, 2012). In Minniefield, a panel of this Court distinguished Strange and held that a Terry stop was justified because the defendant's actions were consistent with criminal activity that was known to have occurred at the specific location where he was stopped. The Minniefield court explained:
The Speedway gas station was not only in an area generally known for drug activity, but Officer Toms had received specific complaints from the manager about recent drug activity. Indeed, the manager described particular patterns of conduct which accompanied this drug activity. Officer Toms conducted an extended surveillance of the Speedway to confirm these complaints. The behavior which he observed from Minniefield and the others was consistent with the manager's descriptions.
Minniefield notes that Officer Toms did not observe the Focus arrive or his entry into the store to make a purchase. Nevertheless, he did notice Minniefield looking from side to side as the Regal arrived. Furthermore, he observed the interactions between
Minniefield and the occupants of the Regal for several minutes. Although their behavior could be considered as innocent, it also was consistent with drug trafficking activity, based both on Officer Toms's experience and the manager's earlier descriptions. Finally, Minniefield and the others appeared startled when Officer Toms pulled his cruiser into the lot, and they quickly returned to their vehicles. In addition, they all appeared very nervous when speaking to Officer Toms. Given the totality of the circumstances, we conclude that Officer Toms articulated sufficient facts to establish a reasonable suspicion that Minniefield and the others were engaging in criminal activity.Id.; see also Chames v. Commonwealth, 2014-CA-000375-MR, 2016 WL 2638250, at *2 (Ky. App. May 6, 2016) (holding that a stop was justified, in part, because the defendant was seen in the vicinity of a vehicle from which it was reported that stolen property and narcotics were being sold).
Having concluded that a Terry stop was justified, we turn now to the question of whether the officers unduly prolonged and/or unjustifiably extended the scope of the Terry stop by directing Mason to exit his vehicle. Mason obeyed all of Officer Beatty's directives, and provided proper identification. When Detective Shirley asked about Gillespie, Mason denied knowing him. The conversation between the two lasted less than a minute before Detective Shirley decided he needed to have Mason exit the car. Detective Shirley explained that he strongly suspected Mason had just participated in a drug deal, and this fact coupled with Mason's extreme nervous shaking concerned him. He wanted to ensure that Mason was not armed and that he could not control the car.
The interaction that occurred between Mason and the law enforcement officers prior to him being asked to exit his car was very brief. Even if the time he spent with Officer Beatty before Detective Shirley arrived is included, it was likely under a couple of minutes. It appears that he had only been asked to supply his identification and whether he knew Gillespie. Likely, Detective Shirley had additional questions he wanted to ask, such as what Mason was doing in the parking lot. But he elected to have Mason step out of his car before continuing his questioning. The fact that Detective Shirley decided to have Mason exit his car for the remainder of his questioning is not constitutionally significant.
We think this additional intrusion can only be described as de minimis. The driver is being asked to expose to view very little more of his person than is already exposed. The police have already lawfully decided that the driver shall be briefly detained; the only question is whether he shall spend that period sitting in the driver's seat of his car or standing alongside it. Not only is the insistence of the police on the latter choice not a "serious intrusion upon the sanctity of the person," but it hardly rises to the level of a "petty indignity." Terry v. Ohio, supra, 392 U.S. at 17, 88 S.Ct. at 1877. What is at most a mere inconvenience cannot prevail when balanced against legitimate concerns for the officer's safety.Pennsylvania v. Mimms, 434 U.S. 106, 111, 98 S. Ct. 330, 333, 54 L. Ed. 2d 331 (1977).
As already discussed, Mason's interaction with Gillespie and Mason's parking method and location supplied Detective Shirley with sufficient cause to conduct a Terry stop. Detective Shirley was in the process of conducting that stop when he asked Mason to exit his car. He did not need any additional cause to ask Mason to get out of the car, and his act of doing so did not unreasonably delay the questioning, which to that point had been very brief. Docksteader v. Commonwealth, 802 S.W.2d 149, 150 (Ky. App. 1991) ("[W]e find no merit in appellant's contention that it was impermissible for the officers to request appellant to exit the automobile.").
After Mason exited the car, Detective Shirley asked Mason if he could conduct a pat-down search of his person. Mason consented. The crack cocaine was discovered on Mason's person when Detective Shirley patted him down. Around this same time, Officer Beatty spied the scales through the car window. Mason has not argued that his consent was coerced. His argument in favor of suppression is that the search flowed from an illegal detention and seizure, and therefore, the fruits of that search must be suppressed. Because Mason's detention was lawful, suppression is not required. The trial court correctly refused to suppress the crack cocaine because Mason consented to the search, and it correctly refused to suppress the scales under the plain view exception.
Had Detective Shirley conducted a Terry pat down without Mason's consent, our analysis would be slightly different. A Terry pat down is more invasive than a Terry stop. A Terry stop requires the officer to possess only a reasonable, articulable basis to suspect that criminal activity is afoot. If such a basis is present, the officer can briefly detain the individual for investigatory questioning. The stop is limited to questioning unless there are additional, specific articulable facts to suggest the individual is armed and dangerous. Frazier v. Commonwealth, 406 S.W.3d 448, 455 (Ky. 2013). Nervousness alone is not a sufficient basis from which to conclude that an individual is armed and poses a threat. Id. --------
IV. CONCLUSION
For these reasons, we affirm the Fayette Circuit Court.
J. LAMBERT, JUDGE, CONCURS.
STUMBO, JUDGE, CONCURS IN RESULT ONLY. BRIEF FOR APPELLANT: Julia K. Pearson
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky James C. Shackelford
Assistant Attorney General
Frankfort, Kentucky