Opinion
NO. 2015-CA-001320-MR
06-08-2018
ISMAEL MUNOZ QUINTERO APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Keith B. Woomer Lexington, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Gregory C. Fuchs Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE JAMES D. ISHMAEL, JR., JUDGE
ACTION NO. 14-CR-00858 OPINION
AFFIRMING
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BEFORE: ACREE, JONES AND THOMPSON, JUDGES. JONES, JUDGE: Ismael Munoz Quintero appeals from his conviction and sentence following a jury trial after the Fayette Circuit Court denied his motion to suppress evidence discovered after a traffic stop.
On May 4, 2012, Quintero was arrested and later indicted for: (1) trafficking in a controlled substance, first offense; (2) two counts of criminal possession of a forged instrument, second degree; (3) possession of drug paraphernalia; (4) operating on a suspended/revoked operator's license; and (5) violating a noise ordinance. Pursuant to a plea agreement, Quintero was sentenced to serve twelve months concurrently on three amended counts (possession of a controlled substance, third degree; and two counts of possession of a forged instrument, third degree) and forfeiture of his cash and vehicle.
On April 17, 2014, Quintero filed a motion pursuant to Kentucky Rules of Civil Procedure ("CR") 60.02(f) to set aside his guilty plea on the basis that he was not advised of the immigration consequences of entering such a guilty plea where two of his crimes were considered crimes of moral turpitude. He claimed he was under continuing detainment for deportation after completing his sentence. On April 21, 2014, the trial court denied his CR 60.02(f) motion. On May 8, 2014, Quintero filed a motion for reconsideration, which was granted on June 4, 2014.
On August 25, 2014, Quintero was re-indicted for the same offenses that occurred on May 4, 2012. On December 3, 2014, Quintero filed a motion to suppress evidence. He argued that his vehicle was stopped without cause and the search of his apartment was conducted without a warrant.
Quintero was ultimately successful in suppressing the evidence found during a search of his apartment. Therefore, we limit our discussion of the suppression hearings to Quintero's claim about the illegality of the initial stop.
At the suppression hearing held on January 16, 2015, officers Kelvin Eden, Joseph Green, and Christopher Cooper with the Lexington division of police, CLEAR unit, testified on behalf of the Commonwealth. On May 3, 2012, Officer Eden received an anonymous tip that Quintero was selling drugs from his residence as well as his three vehicles. The tip included his name, address, and description and stated Quintero was selling pills and cocaine, which he stored in a Coke can with a hidden compartment.
The following evening, Officer Eden set up surveillance with his fellow officers. Officers Green and Thomas were in an unmarked vehicle, in plain clothes, observing the front of Quintero's apartment and the parking lot. Officer Cooper was on a side street, and Officer Eden was by the post office in a marked vehicle.
Officers Green and Thomas observed a man they believed was Quintero move from a white truck, put some things in a Chevy Impala, and then get back in the white truck and drive away. As the man believed to be Quintero was leaving, Officer Green heard him turn up his music loud enough that it could be heard from Green's location about 200 feet away. Officer Green continued to hear the music until the white truck was 300-400 feet away.
Officer Green believed the driver was violating Lexington's noise ordinance which prohibits loud music in a vehicle. Officer Green radioed Officer Eden and told him that the driver was violating the noise ordinance justifying a traffic stop. Officer Green told Officer Eden the vehicle's location and direction. Officer Cooper observed the vehicle as it went up the street. The driver proceeded to a Marathon station and then proceeded back toward the apartment complex. After Officer Eden observed the vehicle, he activated his lights to conduct a traffic stop.
It was undisputed that Officer Eden did not hear the loud music. Instead, he observed Quintero talking on his cell phone. Quintero did not pull over immediately and continued driving at about five miles per hour. Because the pickup had an open window, Officer Eden used his P.A. system to demand Quintero pull over, but Quintero continued until he reached the apartment complex parking lot. According to Officer Green, Quintero parked in the same parking spot as before. Officer Eden heard Quintero say into his cell phone that he was being arrested. In response to being asked for his driver's license, Quintero produced a Mexican identification card and told Officer Eden that was all he had.
Officer Eden arrested Quintero on the basis of operating a motor vehicle without a license and searched him incident to arrest. He found two small baggies of what he believed were cocaine in his pocket and $1,057 in cash. Quintero consented to a search of his truck and other officers found $9,000 in the vehicle's center console and a Pepsi can with a false compartment.
Rachel Quintero testified for her husband (then boyfriend) that they were having a phone conversation on the evening of May 4, 2012, when Quintero told her he had been told to pull over. She did not hear any loud music over the phone.
At the conclusion of the hearing, the trial court made extensive factual findings consistent with the hearing testimony. Important among these was that Officer Green heard loud music that he thought exceeded the noise ordinance but Officer Eden did not hear the loud music and conducted the traffic stop solely on the basis of Officer Green's reported observation. The trial court made the legal conclusion that the traffic stop was unlawful because the noise ordinance violation, which at most could result in a fine, was not committed in Officer Eden's presence and suppressed the evidence.
On January 23, 2015, the trial court sua sponte held another hearing, explaining upon conducting additional research it determined the previous ruling was flawed. The trial court adopted its previous findings of fact to the extent that they were consistent with its new ruling, set aside its conclusions of law, and concluded that the initial traffic stop was authorized on the basis of a tip from a fellow officer which had predictive elements. On January 28, 2015, the trial court entered its written order correcting the prior ruling.
Quintero objected to this new ruling, arguing that there was no predictive element to Officer Green's tip and that Officer Green did not confirm this was the correct vehicle to Officer Eden before the traffic stop. On June 17, 2015, the trial court ordered upon the Commonwealth's recommendation that count one be amended to possession of a controlled substance, first degree, and dismissed counts two, three and four (two counts of criminal possession of a forged instrument, second degree, and possession of drug paraphernalia). This order was consistent with the suppression of the evidence found at Quintero's apartment.
On June 25, 2015, following a jury trial, the jury found Quintero guilty of count one, possession of a controlled substance, first degree; guilty of count two, operating a motor vehicle without a license; and not guilty of count three, the noise ordinance violation. Quintero waived sentencing by the jury on the second count. The jury recommended a three-year sentence on the first count. On July 2, 2015, the trial court entered a judgment of guilt on the first and second counts with sentencing suspended pending a presentence investigation. On August 24, 2015, the trial court entered its final judgment and sentenced Quintero consistently with the jury's recommendation to three years of incarceration on count one concurrent to forty-five days on count two, but suspended his sentence during a three-year-term of probation.
Quintero appeals on the basis that the trial court erred in failing to grant his motion to suppress. He argues that Officer Eden could not conduct an investigatory stop where he never observed the noise ordinance violation, because he lacked reasonable suspicion of criminal activity.
The standard of review on a ruling concerning suppression is well-settled. First, we must determine whether the lower court's findings of fact are supported by substantial evidence. If so, those findings are conclusive. Second, we must perform a de novo review to determine whether the trial court's application of the law to those facts was correct.Lydon v. Commonwealth, 490 S.W.3d 699, 701 (Ky. App. 2016) (internal citations omitted).
Traffic stops constitute a seizure under the Fourth Amendment. Chavies v. Commonwealth, 354 S.W.3d 103, 108 (Ky. 2011), abrogated on other grounds by Roe v. Commonwealth, 493 S.W.3d 814 (Ky. 2015). Law enforcement officers are permitted to conduct a traffic stop if they have probable cause to believe a traffic violation or civil infraction has occurred, or have reasonable suspicion of criminal activity. Commonwealth v. Bucalo, 422 S.W.3d 253, 258 (Ky. 2013); Brooks v. Commonwealth, 488 S.W.3d 18, 22 (Ky. App. 2016).
In Terry v. Ohio, the United States Supreme Court held that "in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968).Baker v. Commonwealth, 475 S.W.3d 633, 634 (Ky. App. 2015).
Where an officer justifies a traffic stop based upon probable cause that a traffic violation or civil infraction has occurred but the facts found ultimately do not support a violation or infraction, there is no justification for the stop. Garcia v. Commonwealth, 185 S.W.3d 658, 664-65 (Ky. App. 2006). Therefore, we must interpret the noise ordinance to determine whether the facts found provided probable cause to stop Quintero. See id.; Kennedy v. Commonwealth, 488 S.W.3d 41, 43-44 (Ky. App. 2016).
Officer Eden stopped Quintero based on information provided by Officer Green that Quintero was violating the noise ordinance. Kentucky has adopted the collective knowledge doctrine, which allows one officer to rely on information communicated from a fellow officer to support his decision to make a stop or an arrest. In Lamb v. Commonwealth, 510 S.W.3d 316 (Ky. 2017), the Kentucky Supreme Court held as follows:
The knowledge upon which the arresting officer bases probable cause to arrest need not be derived exclusively from his own personal observations. Under the collective knowledge doctrine, an arresting officer is entitled to act on the strength of the knowledge communicated from a fellow officer and he may assume its reliability provided he is not otherwise aware of circumstances sufficient to materially impeach the information received. See United States v. Hensley, 469 U.S. 221, 232-233, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985) (Under the collective knowledge doctrine, when law enforcement officers are in communication regarding a suspect, the knowledge of one officer can be imputed to the other officers[.]); Darden v. Commonwealth, 298 S.W.2d 687, 689 (Ky. 1957) ("The necessary elements [of probable cause to arrest] are that the officer acts upon a belief in the person's guilt, based either upon facts or circumstances within the officer's own knowledge or upon information imparted to him by reliable and credible third persons, provided there are no circumstances known to the officer sufficient to impeach materially the information received." (citations omitted)).Id. at 323.
Officer Green testified that he heard Quintero's music from between 100 to 300 feet away. He further understood the ordinance to prohibit loud music in a vehicle. Based on his observations, Officer Green told Officer Eden that Quintero was violating the noise ordinance. The Code of Ordinances, Lexington-Fayette Urban County Government (Code LFUCG) contains a noise ordinance with several different provisions. Code LFUCG § 14-70 through § 14-80 (2000). Two possible sections of Code LFUCG could apply to Quintero's conduct. Code LFUCG § 14-72(8) provides a specific provision that applies to loud music in vehicles on public roads:
All Code LFUCG provisions discussed in the body of this opinion are from the version in effect when Quintero was arrested on May 4, 2012, as provided in Municode Library's May 31, 2012 update, which shows that the last amendments to the relevant sections were in 2000. Municode Library, https://www.municode.com/library/ky/lexington-fayette_county/codes/code_of_ordinances/178035?nodeId=COOR_CH14OFMIPR.
Based on the jury instructions, the Commonwealth attempted to prove Quintero's infraction pursuant to Code LFUCG § 14-71. However, it is appropriate that we examine all applicable sections which could have justified Officer Eden's stop. --------
Operating, playing or permitting the operation or playing of any radio, television, phonograph, drum, musical instrument or similar device:
Code LFUCG § 14-71 also has a catch-all provision:a. In such a manner as to create a noise disturbance across a dwelling unit boundary; or
b. In such a manner as to create a continuing noise disturbance at fifty (50) feet from such device, when operated in or on a motor vehicle on a public right-of-way or public space.
In addition to the specific prohibitions outlined in_section 14-72, no person shall make, continue, or cause to be made, continued or permitted any noise disturbance on or across a public right-of-way or a public place. This section shall not apply to noncommercial public speaking and public assembly activities conducted on any public space or public right-of-way.Code LFUCG § 14-70(7) defines the key term "noise disturbance" as follows:
Noise disturbance means any sound which:
Urban county government law enforcement officers are authorized to issue citations for violations of the noise ordinance, which is punishable by a fine. Id. at § 14-76, § 14-80.a. Endangers or injures the safety or health of humans or animals;
b. Annoys or disturbs a reasonable person of normal sensitivities; or
c. Endangers or injures personal or real property.
Officer Green's testimony confirms that he heard Quintero's music from between 100 to 300 feet away, one to three times in excess of the 50 feet threshold contained in the noise ordinance. It would certainly be reasonable to assume that playing music of that volume would annoy or disturb a reasonable person of normal sensitivities. Based on hearing the music at such a loud volume and from such a distance, Officer Green radioed Officer Eden and told him that he believed Quintero was in violation of the noise ordinance. It was reasonable for Officer Green to suspect a noise violation, and it was likewise reasonable for Officer Eden to stop Quintero based on the information he received from Officer Green.
The trial court's decision is supported by both the facts and the law. Accordingly, we affirm Quintero's conviction and sentence.
ACREE, JUDGE, CONCURS.
THOMPSON, JUDGE, DISSENTS WITHOUT FILING A SEPARATE OPINION. BRIEF FOR APPELLANT: Keith B. Woomer
Lexington, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Gregory C. Fuchs
Assistant Attorney General
Frankfort, Kentucky