Opinion
NO. 2017-CA-000496-MR
05-04-2018
KENNETH MCBRIDE APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Joshua R. Hartman Assistant Appellate Defender Louisville, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Gregory C. Fuchs Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE A. C. MCKAY CHAUVIN, JUDGE
ACTION NO. 15-CR-003401 OPINION
AFFIRMING
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BEFORE: COMBS, JONES AND NICKELL, JUDGES. COMBS, JUDGE: Appellant, Kenneth McBride (McBride), appeals from an order of the Jefferson Circuit Court denying his motion to suppress. After our review, we affirm.
On June 17, 2015, McBride was arrested by Louisville Metro Police Department (LMPD) officers after they received an anonymous phone call complaining of a "suspicious person" walking in an ally. He was charged with failure to comply with the sex offender registry, possession of marijuana, and possession of drug paraphernalia.
On November 3, 2016, McBride filed a motion to suppress. On November 7, 2016, the trial court conducted a hearing on the motion. The testimony of the officers was somewhat contradictory. Each believed that an officer in training - Bahar Lowrence -- had been riding with him. Officer Lowrence is no longer with LMPD, and she did not testify at the hearing.
Detective Jeremy McGill testified. On June 17, 2015, he was an LMPD patrol officer and he was training Officer Lowrence. They were dispatched following a report of a suspicious person in a high crime area who was walking through backyards. Detective McGill thought that Officer Lowrence was driving, but he was not sure. When they arrived, Officer Derek Hurley was already on the scene. McBride was standing in front of Officer Hurley's car. According to Detective McGill, Officer Lowrence took charge of the scene and spoke to McBride. McBride told her that he had marijuana on his person and gave his consent to a search. Marijuana and a crack pipe were found. Detective McGill explained that McBride provided his information, that the officers ran it (probably through the radio) to check for warrants, and that they learned that McBride had a parole violation warrant.
Officer Hurley testified that he was training another officer at the time. They were dispatched to a run concerning a suspicious person in an alley. According to Officer Hurley, the officer in training -- Bahar Lowrence -- was in his car and she was driving. As they went down the alley, McBride walked out from a backyard. He was wearing a white t-shirt and jeans. Officer Hurley testified that he believed that Officer Lowrence told McBride to stop and that she may have conducted a pat down. Upon further questioning by the court, Officer Hurley testified that he had an independent recollection of McBride. Asked what was said, Officer Hurley testified, "It's usually hey what's going on, can I talk to you a minute? It's always conversation starters." Officer Hurley testified that that is how he trains people and that is how the McBride scenario happened to the best of his recollection.
At some point, they ran McBride's information to see if he had warrants; he did. Officer Hurley believed that they did a search incident to arrest. Although he was in the car running McBride's information, he could see what was going on. Officer Hurley testified that the marijuana and crack pipe were found as a result of a search after they determined that McBride had an outstanding warrant. As he recalled, the search of McBride's person occurred following the discovery of the warrant for parole violation - not as a result of a previous pat-down.
At the end of the hearing, the court denied the motion to suppress. The court acknowledged but was "not troubled" that the officers remembered the specific details differently: "people remember things differently in the details." The court explained that the details that matter involve, "why'd you stop this guy or did you stop this guy?" The court explained that under either version of the facts in testimony, it was satisfied that the search passed constitutional muster for a Terry stop, that McBride's description and location matched the report of a suspicious person in the alley, and that the officers properly approached as they typically would in a conversational situation. The court explained that although it was unclear exactly when the officers obtained the marijuana, it was either: (1) by way of a consent search prior to the arrest (following a lawful and appropriate citizen-police interaction) or (2) by way of a search incident to a valid arrest, post-warrant.
On January 26, 2017, McBride entered a conditional guilty plea to Count 1: Failure to Comply with Sex Offender Registry (Subsequent Offender); Count 2: Illegal Use or Possession of Drug Paraphernalia; and Count 3: Illegal Possession of a Controlled Substance, Schedule I, Hallucinogen, Marijuana. McBride reserved the right to appeal the denial of his motion to suppress. By Judgment of Conviction and Sentence entered February 2, 2017, the trial court sentenced McBride to seven years on Count 1, 12 months on Count 2, and 45 days on Count 3, all counts to run concurrently for a total of seven years.
McBride now appeals. He first argues that the Commonwealth failed to meet its burden of proving that the police action was constitutional when police responded to a 911 call of a suspicious person in an alley. He claims that: (a) the trial court's findings are not supported by substantial evidence and are clearly erroneous; (b) the officers seized McBride when they approached him instead of engaging in a consensual police-citizen encounter; and (c) there was no reasonable suspicion to suspect that criminal activity might have been afoot when police seized McBride.
In reviewing a denial of a motion to suppress by a trial court, our standard of review is dual in nature. "First, the trial court's findings of fact are conclusive if they are supported by substantial evidence; and second, the trial court's legal conclusions are reviewed de novo." Kavanaugh v. Commonwealth, 427 S.W.3d 178, 180 (Ky. 2014).
Although written findings of fact surely would have been preferable, the trial court's oral findings are adequate for our review and have a substantial evidentiary foundation. "At a suppression hearing, the ability to assess the credibility of witnesses and to draw reasonable inferences from the testimony is vested in the discretion of the trial court." Pitcock v. Commonwealth, 295 S.W.3d 130, 132 (Ky. App. 2009).
The Commonwealth argues that McBride's argument as to whether the stop was proper is moot because an arrest pursuant to an outstanding warrant attenuates any prior taint under Hardy v. Commonwealth, 149 S.W.3d 433, 436 (Ky. App. 2004). We agree. In Hardy, we held that a valid outstanding warrant outweighed the charge of police misconduct for detention for an unreasonable length of time while waiting for results of background check. Since the arrest "was lawful, the search of his person incident to that arrest was also lawful." Id. at 436. That holding was reiterated by the United States Supreme Court in Utah v. Strieff, 136 S. Ct. 2056, 2063, 195 L. Ed. 2d 400 (2016): "[E]vidence discovered on Strieff's person was admissible because the unlawful stop was sufficiently attenuated by the pre-existing arrest warrant.".
We affirm the denial of McBride's motion to suppress by the Jefferson Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Joshua R. Hartman
Assistant Appellate Defender
Louisville, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Gregory C. Fuchs
Assistant Attorney General
Frankfort, Kentucky
Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).