Opinion
NO. 2015-CA-000445-MR
04-22-2016
MICHAEL ANTHONY PATTERSON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Molly Mattingly Assistant Public Advocate Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Julie Scott Jernigan Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE PAMELA R. GOODWINE, JUDGE
ACTION NO. 14-CR-00524-001 OPINION
AFFIRMING
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BEFORE: DIXON, MAZE AND STUMBO, JUDGES. DIXON, JUDGE: Michael Anthony Patterson appeals from a Fayette Circuit Court judgment after entering a plea of guilty conditioned on his right to appeal the denial of his motion to suppress evidence.
The following facts were elicited at the suppression hearing: Detective Gibbons of the Lexington Police Department testified that he received a tip that Michael Patterson and Jared Bartley were involved in trafficking heroin. Gibbons testified that he knew the name and identity of the informant, who he said had worked for other detectives, but never before for Gibbons. The informant told Gibbons that she used to purchase heroin from the two men, who were dealing drugs out of a gray Nissan Maxima automobile. Gibbons looked up the criminal histories of the two men and discovered an active warrant for Bartley's arrest, and that Patterson was on probation for a trafficking offense.
A couple of days later, the same informant told Gibbons that Bartley and Patterson were headed to the Walmart on Richmond Road. Although Gibbons was not entirely clear regarding what the two men were supposed to be doing there, he testified that his informant told him that a friend of hers was trying to get in touch with them to set up a transaction.
Gibbons drove to the Walmart where he spotted the gray Nissan Maxima and identified the driver as Patterson. There was a passenger in the car but Gibbons could not identify him at that point. Gibbons watched the two men sit in the car for five to ten minutes. Meanwhile, he radioed for more officers to report to the scene, as well as a drug dog unit and a back-up unit. After waiting another minute, he approached the parked Nissan. As Gibbons was wearing plain clothes, he identified himself as a police officer and showed the men his badge. As he stood by the driver's side window, he was able to identify the passenger as Bartley, the subject of the arrest warrant. Gibbons explained that at the point he recognized Bartley, the men were not free to leave because he was conducting an investigation. When he asked them why they were there, they told him they were to meet an individual to get a key to an apartment where Patterson had some of his belongings. At that point, Lieutenant Van Brackel arrived, and Gibbons signaled him to arrest Bartley.
While Van Brackel arrested Bartley, Gibbons removed Patterson from the vehicle and patted him down for weapons. He found a pocketknife clipped to his pocket which he seized. He asked Patterson for consent to search the Nissan, which Patterson refused. Gibbons overheard Bartley confessing to Van Brackel that he had a needle in his pocket. He also heard Bartley tell Van Brackel that his identification was probably in a string bag in the car. Bartley gave Van Brackel permission to get the drivers' license from the bag, over Patterson's objection that the officer could not search anything in the car. Gibbons observed Van Brackel retrieve the bag, open it and discover several bags containing different types of narcotics. The police officers proceeded to search the Nissan, over Patterson's objection.
Then, as Gibbons escorted Bartley to a police car, he observed Patterson attempting to flee between the cars. Other officers gained control of Patterson, and one officer told Gibbons he had seen Patterson throw something underneath his car. The officers retrieved Patterson's sunglasses and a small baggie of what appeared to be heroin from beneath the car. Gibbons arrested Patterson, searched him, and found a digital scale and $1300 in cash. Patterson made a motion to suppress the evidence which was denied following a hearing.
The trial court made oral findings from the bench. After looking at the totality of the circumstances, the court concluded that the police officers had a reasonable articulable suspicion to initiate an investigatory stop, based on the tip from the informant which provided specifics as to the identity of the individuals, their vehicle, and where they were going to be.
Patterson entered a conditional plea of guilty to trafficking in a controlled substance in the first degree, first offense; assault in the third degree; tampering with physical evidence; drug paraphernalia - buy/possess; resisting arrest; and being a persistent felony offender in the first degree. He received a total sentence of ten years. This appeal followed.
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.Commonwealth v. Neal, 84 S.W.3d 920, 923 (Ky.App. 2002) (footnotes omitted).
"Under Terry v. Ohio [392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)], a police officer may briefly detain a person for investigative purposes if the officer has a reasonable suspicion, supported by articulable facts, that the person has engaged or is about to engage in criminal activity. And if the officer believes the detained person is armed and dangerous, the officer may also frisk for weapons." Williams v. Commonwealth, 364 S.W.3d 65, 66-67 (Ky. 2011) (footnote and citation omitted). "[T]he level of articulable suspicion necessary to justify a stop is considerably less than proof of wrongdoing by preponderance of the evidence." Id. at 69 (footnote and citation omitted).
Patterson argues that Detective Gibbons and the other officers lacked reasonable suspicion to initiate a Terry investigatory stop of his vehicle and its occupants. He contends that the tip from the informant was insufficiently reliable to justify the stop, and that when Detective Gibbons first saw the vehicle he recognized only Patterson, not Bartley, who was the subject of the outstanding warrant.
When Detective Gibbons approached the car in the parking lot and questioned its occupants, he had been provided with their names, a description of their vehicle, where it would be located, and information that they might be dealing drugs. He also knew, as a result of his subsequent research, that Bartley was the subject of an arrest warrant and that Patterson was on probation. This evidence was certainly sufficient to justify a brief investigatory stop, and is distinguishable from the facts of Florida v. J.L., 529 U.S. 266, 120 S. Ct. 1375, 146 L. Ed. 2d 254 (2000), the case relied upon by Patterson.
In J.L., the police stopped and detained a young man on the basis of a tip from an anonymous informant that a young black male wearing a plaid shirt and standing near a particular bus stop was carrying a firearm. Apart from the tip, the officers had no reason to suspect any illegal conduct. The United States Supreme Court held that the tip was insufficient to justify a stop and seizure:
An accurate description of a subject's readily observable location and appearance is of course reliable in this limited sense: It will help the police correctly identify the person whom the tipster means to accuse. Such a tip, however, does not show that the tipster has knowledge of concealed criminal activity. The reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person. Cf. 4 W. LaFave, Search and Seizure § 9.4(h), p. 213 (3d ed.1996) (distinguishing reliability as to identification, which is often important in other criminal law contexts, from reliability as to the likelihood of criminal activity, which is central in anonymous-tip cases).Florida v. J.L., 529 U.S. at 272, 120 S. Ct. at 1379.
By contrast, the tip in Patterson's case was more reliable in its assertion of illegality, firstly, because the informant was not anonymous, and secondly, because her allegations of drug dealing and likelihood of criminal activity on the part of named individuals were supported by Gibbons's discovery that Bartley had an outstanding warrant and that Patterson was on probation for a drug-related offense.
When Van Brackel arrested Bartley, Detective Gibbons was fully justified under Terry in removing Patterson from the car and patting him down for reasons of safety. "When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others," the officer may conduct a pat-down search "to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm." Terry, 392 U.S. at 24, 88 S.Ct. at 1881-82.
In any event, no incriminating evidence was recovered as a result of the pat down of Patterson's person. The trial court specifically found that the pocketknife was of no consequence.
Patterson further argues that after the pat down he should have been free to leave. But a bag containing drugs had just been recovered from the interior of his car. This discovery justified the further detention of Patterson for questioning. His own decision to attempt to escape police custody and to throw the baggie of drugs under the car led to the discovery of the incriminating evidence.
The Fayette Circuit Court properly denied Patterson's motion to suppress and consequently its final judgment is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Molly Mattingly
Assistant Public Advocate
Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky Julie Scott Jernigan
Assistant Attorney General
Frankfort, Kentucky