Opinion
NO. 2015-CA-001444-MR
06-01-2018
HAROLD NEASE APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Brandon Neil Jewell Assistant Public Advocate Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky David B. Abner Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HON. PAMELA R. GOODWINE, JUDGE
ACTION NO. 14-CR-00950 OPINION
AFFIRMING
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BEFORE: CLAYTON, CHIEF JUDGE; COMBS AND TAYLOR, JUDGES. TAYLOR, JUDGE: Harold Nease appeals from the Fayette Circuit Court's Final Judgment and Sentence of Imprisonment entered September 9, 2015, upon a jury trial where Nease was convicted of various narcotic offenses and for being a Persistent Felony Offender in the Second Degree (PFO II). We affirm.
In 2014, Nease was indicted by the Fayette County Grand Jury for first-degree trafficking in a controlled substance (heroin), third-degree trafficking in a controlled substance (clonazepam—a/k/a Klonopin), possession of drug paraphernalia and for being a second-degree persistent felony offender (PFO II). Prior to trial, Nease filed a motion to suppress evidence obtained from a search of his person and home which was denied by the trial court.
The case then proceeded to a jury trial where Nease was found guilty of trafficking in a controlled substance in the first degree, possession of a controlled substance in the third degree, possession of drug paraphernalia and being a PFO II. In accordance with the jury's recommendation, the trial court sentenced Nease to a PFO II-enhanced total sentence of twelve years' imprisonment. This appeal followed.
The lone issue raised by Nease on appeal is that the trial court erred in denying his motion to suppress the evidence seized at the search of Nease's residence and his person in August 2014. At the hearing on Nease's motion, the only witnesses were Detective Chris Pope from the Lexington Police Department's Narcotics Enforcement Unit, and Probation and Parole Officer Joshua King. Pope testified that in August 2014, the Narcotics Enforcement Unit received an anonymous tip that an individual named "Bo" was trafficking narcotics at 2420 Millbrook Drive in Lexington. Pope had arrested Nease on drug charges in 2013 and consequently knew he lived at that address and used Bo as a nickname. Nease was on probation for drug-based convictions at the time of the anonymous tip, so Pope contacted the Probation and Parole office about the tip.
The day after the anonymous tipster's call, Pope, King and other officers went to Nease's residence at 2420 Millbrook Drive. King knocked on the door and spoke with Nease, who then permitted the officers to come inside. King explained to Nease that they had received an anonymous tip alleging he was dealing narcotics and reminded him that one of the conditions of his probation was agreeing to be searched without a warrant, provided there was reasonable suspicion he possessed illegal drugs. Nease was also reminded by King that he would violate his probation if he refused to cooperate. Nease reluctantly allowed the search.
Additionally, Pope testified at the hearing that he asked Nease if he "had anything on him" and Nease began to rub his pocket. Pope repeated the question and Nease admitted he had heroin on his person and pulled a substance from his pocket, which testing revealed to be 4.2 grams of heroin. A search of Nease's home yielded digital scales, cash, and pills which were later determined to be clonazepam, a schedule IV narcotic.
Because Nease was on probation at the time of the search, he had a diminished expectation of privacy such that a warrantless search was permissible if the officers had reasonable suspicion he was engaged in wrongdoing. See, e.g., Helphenstine v. Com., 423 S.W.3d 708, 714 (Ky. 2014) ("[W]arrantless searches must satisfy the Fourth Amendment's overarching reasonableness requirement. To this end, a warrantless search is held to be reasonable '[w]hen an officer has reasonable suspicion that a probationer subject to a search condition is engaged in criminal activity.'") (citation omitted).
Reasonable suspicion is "a much lower bar" than probable cause. Id. at 715, n.22. Determining whether officers had reasonable suspicion requires evaluating the totality of the circumstances as even "innocent behavior, combined with other circumstances, can amount to reasonable suspicion . . . ." Hampton v. Com., 231 S.W.3d 740, 747 (Ky. 2007) (quotation marks and citation omitted). Officers must have more than "a nebulous and inchoate suspicion of criminal activity" before a court may conclude they had reasonable suspicion. Id. at 747. See also Bauder v. Com., 299 S.W.3d 588, 591 (Ky. 2009) (holding that "reasonable suspicion is more than an unparticularized suspicion or hunch. Reasonable suspicion, while requiring less of a showing than probable cause, requires at least a minimum level of objective justification . . . .") (quotation marks and citations omitted).
Our standard of review on appeal of the denial of a motion to suppress is two-fold. First, we review findings of fact under the clearly erroneous standard. See, e.g., Simpson v. Com., 474 S.W.3d 544 (Ky. 2015). Under that standard, the trial court's findings of fact are conclusive if supported by substantial evidence. Id. Second, we review the trial court's application of the law to the facts de novo. Id. As the facts for purpose of this appeal do not appear to be in dispute, we will focus upon whether the trial court's conclusions of law were correct.
In reviewing the record, the trial court relied on two factors to conclude that the officers had reasonable suspicion to search Nease and his home. The first was Nease's suspicious behavior. King described Nease as sweating, refusing to make eye contact and behaving nervously. Nervous behavior—standing alone—is insufficient to constitute reasonable suspicion, but nervousness is something which may be used as a factor to support the existence of reasonable suspicion. Frazier v. Com., 406 S.W.3d 448 (Ky. 2013). In addition, Parole Officer King testified that he had conducted numerous home visits of probationers and, in his experience, probationers did not normally act nervously if there was nothing improper occurring at the time of the visit. See, e.g., Baltimore v. Com., 119 S.W.3d 532, 539 (Ky. App. 2003) (holding that a reviewing court determining whether officers had reasonable suspicion must "give due regard to inferences and deductions drawn by them [the officers] from their experience and training.").
The second factor relied upon by the trial court was the specific facts in the anonymous tip, as corroborated by Detective Pope's personal knowledge. As with nervousness, an anonymous tip by itself "will rarely exhibit sufficient indicia of reliability to provide reasonable suspicion[.]" Com. v. Brown, 250 S.W.3d 631, 634 (Ky. 2008). Thus, "[b]efore an investigating officer can rely on an anonymous tip as part of his basis for reasonable suspicion, that tip must have sufficient indicia of reliability." Com. v. Morgan, 248 S.W.3d 538, 541 (Ky. 2008) (citations omitted).
However, this case does not look to the typical situation where police receive a tip from an unknown person that someone not personally known by law enforcement is engaging in illegal conduct. Rather, while the tipster in this case was anonymous, the subject matter of the tip and person involved were not. Detective Pope had arrested Nease less than a year before on narcotics charges and thus knew that Nease's address matched the one given by the anonymous tipster and that Nease also went by the nickname Bo, the name mentioned by the anonymous tipster. Pope's personal knowledge of Nease and his previous history with illegal narcotics distinguishes this case from the typical anonymous tip cases, thus giving the tip corroboration. See Morgan, 248 S.W.3d 538.
While neither of the factors relied upon by the trial court might not constitute reasonable suspicion standing alone, based upon the entirety of the circumstances, we agree that the trial court properly denied the motion to suppress. The anonymous tip, as corroborated by Pope's personal knowledge, plus Nease's suspicious behavior and King's experience that persons behaving in a similarly suspicious manner had something to hide, clearly supports that the officers had reasonable suspicion to conduct the search. Coupled with the fact that Nease was on probation for a previous drug charge, the search was not unreasonable within the Fourth Amendment.
For the foregoing reasons, the final judgment of the Fayette Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Brandon Neil Jewell
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky David B. Abner
Assistant Attorney General
Frankfort, Kentucky