Opinion
NO. 2019-CA-000276-MR
02-07-2020
ELINA SADIKOV APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Paul J. Dickman Covington, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Gregory C. Fuchs Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE DANIEL J. ZALLA, JUDGE
ACTION NO. 18-CR-00201 OPINION
AFFIRMING
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BEFORE: GOODWINE, KRAMER, AND MAZE, JUDGES. GOODWINE, JUDGE: Elina Sadikov ("Sadikov") appeals from a judgment and sentence on a conditional guilty plea, alleging the circuit court failed to suppress unlawfully obtained evidence. After careful review of the record, finding no error, we affirm the judgment and sentence.
On the evening of February 3, 2018, three officers of the Newport Police Department responded to a call notifying them that two women had passed out in a car in the Target parking lot in Newport. Sadikov was in the front passenger seat, and the other woman was in the driver's seat. Officer Matthew Boshears observed the two women and testified that he thought they might be overdosing. He further testified there was an abnormal amount of receipts and tags in the car. He believed the items were signs of "receipt shopping," a common practice in which a person searches trash cans for receipts and attempts to fraudulently return items. Officer Chris White obtained consent to search the vehicle from the driver. Officer Corey Bailey initiated contact with Sadikov and testified he believed she was intoxicated from using opiates or methamphetamine because her pupils were dilated, her behavior was erratic, and she was unable to follow his instructions. Officer Bailey arrested Sadikov for public intoxication, and upon conducting a search incident to arrest, he found methamphetamine in her purse and charged her with first-degree possession of a controlled substance.
Kentucky Revised Statutes (KRS) 525.100 (Class B misdemeanor).
KRS 218A.1415 (Class D felony). --------
The circuit court held a suppression hearing on September 18, 2018. All three of the officers testified at the hearing. Sadikov argued the officers did not have grounds to conduct an investigative stop under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), and there was no probable cause to arrest her for public intoxication. The circuit court found the stop was proper because the officers' testimony established a reasonable suspicion of criminal activity. Sadikov does not contest this ruling on appeal. The circuit court also found the officers had probable cause to arrest Sadikov for public intoxication. Her behavior indicated she was under the influence of illegal narcotics, and she was a danger to herself and could be annoying to persons in her vicinity if she entered Target.
Sadikov subsequently entered a guilty plea to both public intoxication and first-degree possession of a controlled substance on the condition that she reserved the right to appeal the circuit court's denial of her motion to suppress. She was sentenced to ninety days of imprisonment probated for one year for public intoxication and two years of imprisonment probated for three years for first-degree possession of a controlled substance. This appeal followed.
On appeal, Sadikov argues she was unlawfully arrested for public intoxication, so the circuit court erred in failing to suppress evidence found in the search incident to her arrest. "When reviewing a trial court's denial of a motion to suppress, we utilize a clear error standard of review for factual findings and a de novo standard of review for conclusions of law." Greer v. Commonwealth, 514 S.W.3d 566, 568 (Ky. App. 2017) (quoting Jackson v. Commonwealth, 187 S.W.3d 300, 305 (Ky. 2006)).
Sadikov argues she was unlawfully arrested because her conduct did not meet the requirements for public intoxication under KRS 525.100(1), which provides:
A person is guilty of public intoxication when he appears in a public place manifestly under the influence of a controlled substance, or other intoxicating substance, excluding alcohol (unless the alcohol is present in combination with any of the above), not therapeutically administered, to the degree that he may endanger himself or other persons or property, or unreasonably annoy persons in his vicinity.
Sadikov argues she was not manifestly intoxicated nor a danger to herself or others or unreasonably annoying because she was merely sleeping in a car. She asserts the Supreme Court of Kentucky dealt with this same issue in Maloney v. Commonwealth, 489 S.W.3d 235 (Ky. 2016). However, Maloney is factually distinguishable. In Maloney, a caller informed police "an intoxicated person was staggering in traffic on a city street." Id. at 237. When an officer went to investigate, he saw the man in question asleep on the front porch of his residence. The officer woke the defendant, "detected the odor of alcohol on his breath[,]" and arrested him for alcohol intoxication in a public place. Id. "During the routine search incident to the arrest, Appellant, a convicted felon, admitted that he had an unloaded handgun in his pocket." Id.
There, the appellant argued his arrest was unlawful. KRS 431.005(a)-(d) provides four circumstances when an officer is authorized to make an arrest:
(a) In obedience to a warrant; orSubsection (d) was the only possible rationale for the arrest, but our Supreme Court determined that the appellant's "only activity in the presence of [the officer] would more aptly be described as inactivity: lying flat on the floor of his front porch in a state of total repose." Maloney, 489 S.W.3d at 239. The Court reasoned that "lying down at home and 'sleeping it off' is the most socially responsible thing a drunk person could be doing." Id. The Court also noted "that guilt under the [alcohol intoxication] statute does not require conduct creating an immediate or actual endangerment or unreasonable annoyance. However, the statute does require some manifest behavior that is likely to produce the requisite endangerment or annoyance." Id. There, the appellant's behavior was unlikely to rise to the level required by the statute.
(b) Without a warrant when a felony is committed in his or her presence; or
(c) Without a warrant when he or she has probable cause to believe that the person being arrested has committed a felony; or
(d) Without a warrant when a misdemeanor, as defined in KRS 431.060, has been committed in his or her presence [.]
Here, Sadikov's intoxication was obvious to the arresting officer. Her pupils were dilated, she acted erratically, and she was unable to follow his instructions. The circuit court found she was a danger to herself and would have been a danger to Target property and unreasonably annoying to persons in her vicinity. Sadikov's argument implies that the mere possibility of posing a danger to others and being unreasonably annoying was insufficient based on the analysis in Maloney. However, there was evidence that Sadikov planned to enter Target to fraudulently return items to the store. Unlike sleeping on one's own porch with no evidence the defendant might engage in endangering or unreasonably annoying conduct, the officers here observed Sadikov's intoxication in a public parking lot under circumstances indicating she would enter Target to attempt to fraudulently return items. Furthermore, Sadikov stated on the officer's body camera video that she was going into the store to return a sweatshirt. Based on our review of the record, Sadikov was manifestly under the influence of a controlled substance to the degree that she may have engaged in endangering or unreasonably annoying conduct. As such, we hold the circuit court correctly found the officers had probable cause to arrest Sadikov for public intoxication.
Because Sadikov's arrest was proper, the warrantless search incident to her arrest was reasonable under Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009). Therefore, the methamphetamine found in her purse was admissible as evidence of first-degree possession of a controlled substance.
For the foregoing reasons, we affirm the judgment and sentence of the Campbell Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Paul J. Dickman
Covington, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Gregory C. Fuchs
Assistant Attorney General
Frankfort, Kentucky