Opinion
NO. 2013-CA-000562-MR
06-13-2014
DREW T. PERRIN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Donna M. Dant Calhoun, Kentucky BRIEF FOR APPELLEE: Jack Conway Nate T. Kolb Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM MCLEAN CIRCUIT COURT
HONORABLE BRIAN WIGGINS, JUDGE
ACTION NO. 13-CR-00005
OPINION
AFFIRMING
BEFORE: CLAYTON, JONES, TAYLOR, JUDGES. JONES, JUDGE: Appellant Drew T. Perrin entered a conditional guilty plea to the offense of operating a motor vehicle under the influence of alcohol, fourth offense in violation of KRS 189A.010. On March 20, 2013, the McLean Circuit Court sentenced Perrin to four years imprisonment. On appeal, Perrin asserts that the trial court erred in denying his motion to suppress the alcohol results obtained by the McLean County Sheriff's department because the arresting officer did not have probable cause to initiate a traffic stop. For the reasons more fully explained below, we AFFIRM.
I. BACKGROUND
On November 17, 2012, McLean County Deputy Sheriff Tim McCoy arrested Perrin after alcohol results obtained during a traffic stop indicated that Perrin's blood alcohol level was over the legal limit. Perrin was subsequently indicted on the charge of operating a motor vehicle under the influence of alcohol, fourth offense.
Perrin moved the trial court to suppress the alcohol results. The trial court conducted a suppression hearing on February 25, 2013. Two witnesses testified the hearing: Deputy McCoy and Perrin's father, Felix Wayne Perrin.
Deputy McCoy testified that on the night of November 12, 2012, he was patrolling the county in his police cruiser and while traveling west on Richland Road, he encountered Perrin's vehicle stopped at the intersection of Highway 1046 and Richland Road. Deputy McCoy testified that Richland Road generally runs east to west, but that it follows the Green River and makes several twists and turns. Deputy McCoy testified that he was on one such curve when he encountered Perrin's vehicle and because of the curve, he was traveling north and Perrin's vehicle was facing south while sitting at the intersection.
Deputy McCoy testified that as he approached Perrin's vehicle, he observed that the vehicle's lights were on high beam. He testified that he knew this because all four headlights were illuminated and "extremely bright." Deputy McCoy testified that Perrin did not dim his headlights as Deputy McCoy's vehicle approached. Deputy McCoy "guessed" that at the point on Richland Road when he was facing north, he was approximately 30 yards (90 feet) from Perrin's vehicle stopped at the intersection. Deputy McCoy testified that after observing that Perrin failed to dim his lights, he decided to initiate a traffic stop.
Deputy McCoy testified that he continued traveling briefly on Richland Road in search of a location where he could turn his cruiser around. He testified that he did so on the first available travel road. Deputy McCoy explained that after turning around, he saw that another vehicle was now between his cruiser and Perrin's vehicle. Deputy McCoy testified that he elected not to pass the other vehicle because they were traveling on a gravel road and he thought it would be dangerous to do so. Deputy McCoy testified that he traveled behind the third vehicle for a few miles, before the road became black top at which time he passed the vehicle and stopped Perrin. Deputy McCoy testified that he did not observe Perrin commit any additional traffic violations between the time he decided to pull him over and the actual stop approximately four miles later.
Deputy McCoy testified that upon approaching Perrin's vehicle he immediately smelled alcohol. Deputy McCoy testified that he informed Perrin that he had stopped him for failing to dim his headlights, to which Perrin responded, "I can't believe I didn't dim my headlights." Following a short investigation, Deputy McCoy placed Perrin under arrest for driving under the influence of alcohol.
During Deputy McCoy's cross-examination, a road map of McLean County was introduced into evidence, depicting the location of the alleged driving infraction as well as the Green River.
The second witness at the suppression hearing was Perrin's father, Felix Wayne Perrin. He testified that he is familiar with Richland Road and that the subject area does not turn due north. He testified it turns more in a northwesterly fashion. He further testified that the area where Richland Road does turn northwest is elevated in relationship to the intersection and that the elevation is higher than a vehicle.
Following the hearing, the trial court entered a written order denying Perrin's motion to suppress. The order provides:
Officer Tim McCoy has been employed as a deputy with the McLean County Sheriff's Department for five years and eight months, and was working second shift on November 17, 2012. McCoy was on routine patrol, traveling west on Richland Road when he met a vehicle at the intersection of Richland Road at Highway 1046. McCoy observed the automobile, an Oldsmobile Cutlass, with its high beam headlights illuminated, waiting (at the stop sign on Highway 1046) to turn onto Richland Road. Although McCoy was traveling in a generally "westward" direction on Richland Road, that road runs parallel to the nearby Green River, and follows the curves of the waterway. Consequently, because of the turns in Richland Road, McCoy was in essence facing the Oldsmobile vehicle when he approached the intersection. The driver of the vehicle did not dim its headlights as McCoy approached.(Tr. Or. 2/25/13 at 1-3). It is from this order that Perrin now appeals.
Because of this driving infraction, McCoy immediately decided to initiate a traffic stop. McCoy proceeded another 200 to 300 yards in a westerly direction before
turning around in a private driveway. He was unable to make an immediate stop, however, because at that point another vehicle traveling on the road separated him from the Cutlass. Over two miles of the road travelled by McCoy after he turned around was gravel, and he chose not to pass the vehicle separating him and the Cutlass while on the gravel road. Soon after the road turned to blacktop, McCoy was able to go around the vehicle in front of him and catch up with the Cutlass. The record is clear that McCoy drove approximately four miles in pursuit before finally spotting the Cutlass.
After the vehicle pulled over, McCoy approached it and informed the driver whom he discovered to be the Defendant, Drew Perrin, that he was stopped because he had failed to dim the vehicle's headlights when McCoy met him on the road earlier. Perrin replied in disbelief, "I cannot believe I didn't dim my headlights." McCoy smelled alcohol coming from insider Perrin's vehicle. A short investigation ensued, and McCoy subsequently arrested Perrin for driving under the influence of alcohol, his fourth such offense.
In order to justify an investigatory stop of a vehicle, a police officer must have a reasonable and articulable suspicion that the person in the vehicle is, or about to commit a violation of the law. Here, McCoy clearly had a reasonable and articulable suspicion to support his stop of Perrin's vehicle, as he had witnessed Perrin commit a traffic violation by failing to dim the headlights of his automobile in the face of oncoming traffic, in violation of KRS 189.040(7)(a). Upon observing this infraction, McCoy immediately determined to conduct an investigatory stop. Granted, he traveled behind Perrin's vehicle for four miles before doing so, by the provided a reasonable explanation (detailed above) as to why this was the case.
II. STANDARD OF REVIEW
We review a trial court's decision on a motion to suppress by applying a two-step analysis. Goncalves v. Commonwealth, 404 S.W.3d 180, 189 (Ky. 2013).
First, we must determine if the trial court's findings of fact are supported by substantial evidence. Id. (citing Adcock v. Commonwealth, 967 S.W.2d 6 (Ky. 1998); Peyton v. Commonwealth, 253 S.W.3d 504 (Ky. 2008)). Substantial evidence has been defined as facts of substance and relative consequence having the fitness to induce conviction in the minds of reasonable persons. Kentucky Unemployment Ins. Com'n v. Landmark Community Newspapers of Kentucky, Inc., 91 S.W.3d 575, 579 (Ky. 2002). Factual findings that are supported by substantial evidence are conclusive and binding on an appellate court. Goncalves, 404 S.W.3d at 189; see also RCr 9.78 ("If at any time before trial a defendant moves to suppress . . . the fruits of a search . . . the trial court shall conduct an evidentiary hearing . . . [and] shall enter into the record findings resolving the essential issues of fact[.] If supported by substantial evidence the factual findings of the trial court shall be conclusive."
After this analysis, we then conduct a de novo review of the trial court's application of the law to the established facts to determine whether its ruling was correct as a matter of law. Id. De novo review affords no deference to the trial court's application of the law to the established facts. Id.
III. ANALYSIS
A. Trial Court's Factual Determination
Perrin first contends that the trial court's conclusion that Deputy McCoy's vehicle was an "on coming vehicle" is not supported by substantial evidence. We disagree.
A review of the trial court's well-written opinion, demonstrates that the trial court based its his findings on Deputy McCoy's testimony regarding his direction of travel when he encountered Perrin's vehicle stopped at the intersection of Highway 1046 and Richland Road and the curvatures in the road. The trial court also had a map of the road before it. While Perrin's father testified that the road did not curve due north and was elevated before the intersection, the trial court was not required to give this testimony equal weight. See Henson v. Commonwealth, 20 S.W.3d 466, 469 (Ky. 2000). The trial court acted entirely within its discretion in affording more weight to Detective McCoy's testimony. Because the trial court's factual determination was supported by substantial evidence, it is binding on us.
B. Probable Cause for the Traffic Stop
Having addressed the alleged factual error, we now turn to Perrin's argument that the trial court erred in concluding that probable cause existed to support Detective McCoy's decision to stop Perrin. As noted above, we review this alleged error de novo.
The Fourth Amendment to the United States Constitution, applicable to the states through the Fourteenth Amendment, prohibits unreasonable searches and seizures. Even though the detention is "quite brief", a traffic stop is considered a seizure of the driver for purposes of the Fourth Amendment. See Commonwealth v. Bucalo, 422 S.W.3d 253, 258 (Ky. 2013) (quoting Delaware v. Prouse, 440 U.S. 648 (1979)). Accordingly, "a traffic stop is 'subject to the constitutional imperative that it not be 'unreasonable' under the circumstances.'" Id. (quoting Whren v. U.S., 517 U.S. 806, 810 (1996)). "It has long been considered reasonable for an officer to conduct a traffic stop if he or she has probable cause to believe that a traffic violation has occurred." Id. (citing Wilson v. Commonwealth, 37 S.W.3d 745 (Ky. 2001)).
Section Ten of the Kentucky Constitution also prohibits unreasonable searches and seizures. The Kentucky Supreme Court has consistently held "that the protections of Section 10 of the Kentucky Constitution are no greater than those of the federal Fourth Amendment." Dunn v. Commonwealth, 360 S.W.3d 751, 758 (Ky.2012); Williams v. Commonwealth, 364 S.W.3d 65, 68 (Ky.2011). Accordingly, we limit our review to a discussion of the propriety of the stop under the Fourth Amendment to the United States Constitution.
In this case, Perrin argues that Deputy McCoy did not have probable cause to suspect that McCoy was in violation of KRS 189.040(5). That section provides:
(5) Whenever a driver of a vehicle approaches an oncoming vehicle within five hundred (500) feet, such driver shall use a distribution of light or composite beam, so aimed that the glaring rays are not projected into the eyes of the oncoming driver. The lowermost distribution of light or composite beam specified in paragraph (b) of subsection (3) of this section shall be deemed to avoid glare at all times, regardless of road contour and loading.
The United States Supreme Court has developed a test for ascertaining whether probable cause exists when we are dealing with a stop arising out of the "on-the-spot observations of the officer on the beat" as we are in this case. Terry v. Ohio, 392 U.S. 1, 20 (1968). Under Terry, an officer demonstrates probable cause if he or she can "point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant" the stop.
"The objective justification for the officer's actions must be measured in light of the totality of the circumstances." Greene v. Commonwealth, 244 S.W.3d 128, 133 (Ky. App. 2008). When examining the totality of the circumstances, courts must be careful not to do so in isolation; rather, courts should "consider all of the officers' observations, and give due weight to the inferences and deductions drawn by trained law enforcement officers." Id.
In analyzing whether probable causes exists for a traffic stop, it is important to keep in mind that the cause necessary to justify a stop is a lower threshold than the cause needed to justify an arrest. Baker v. Commonwealth, 5 S.W.3d 142, 146 (Ky. 1999). And, by no means, do the police have to have probable cause to believe that sufficient facts exist to sustain every element necessary to support a criminal conviction before making an investigatory stop.
This is where Perrin's argument fails. He asserts that the trial court's probable cause determination is faulty because during the suppression hearing Detective McCoy failed to testify regarding certain elements that are necessary to prove a violation of KRS 189.040(5) such as the exact distance between Perrin's vehicle and Detective McCoy's cruiser, whether Perrin's lights were "glaring rays," and whether his lights were aimed in Detective McCoy's eyes. However, Perrin was not on trial for violating KRS 189.040(5). The pertinent inquiry was whether Detective McCoy's testified to "specific and articulable facts which, taken together with rational inferences from those facts" supported his on-the-spot determination that Perrin committed a traffic violation.
Perrin testified: (1) he was traveling north (due to the curve in the road) on Richland Road when he approached Perrin's car, which was facing south; (2) he estimated that he was approximately 30 yards away from Perrin's car; (3) he observed that Perrin's lights were "extremely bright"; (3) he further observed that all four of Perrin's headlights were illuminated, which caused him to believe that they were set to the high-beam setting; (4) Perrin did not dim his lights when Detective McCoy's cruiser approached; and (5) Perrin kept his lights on high-beam for the four miles that McCoy followed him before making a stop.
Having reviewed the record, we believe Detective McCoy's testimony was sufficient to establish probable cause to stop Perrin. Again, we reiterate that the Commonwealth did not have to prove, as part of the suppression hearing, every element necessary to sustain a conviction against Perrin for the suspected violation. All the Commonwealth was required to prove is that specific and articulable facts supported Detective McCoy's suspicion of a traffic violation. The Commonwealth met its burden.
IV. Conclusion
For the reasons set forth above, we affirm the McLean Circuit Court's judgment.
ALL CONCUR. BRIEF FOR APPELLANT: Donna M. Dant
Calhoun, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Nate T. Kolb
Frankfort, Kentucky