Opinion
NO. 2014-CA-001482-MR
01-22-2016
BRANDON SMITH APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Harry P. Hellings, Jr. Covington, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Tami Allen Stetler Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM KENTON CIRCUIT COURT
HONORABLE MARTIN J. SHEEHAN, JUDGE
ACTION NO. 13-CR-00925 OPINION
AFFIRMING BEFORE: COMBS, J. LAMBERT AND THOMPSON, JUDGES. THOMPSON, JUDGE: Brandon Smith entered a conditional guilty plea to trafficking in marijuana, greater than eight ounces, operating a motor vehicle under the influence (DUI), second offense, and persistent felony offender, second degree. His conditional guilty plea preserved his right to appeal the trial court's denial of his motion to suppress evidence found in the trunk of his vehicle. We conclude the warrantless search of the vehicle's trunk and box found in the trunk was lawful under the automobile exception to the warrant requirement.
Just before 3:00 a.m. on August 12, 2013, Smith was stopped in his vehicle by Covington Police Officer Lusardi, a K-9 specialist, who observed Smith operating his vehicle with no lights illuminated on his vehicle. Smith's vehicle was also observed stopped in the middle of an intersection while the light was green.
Upon approaching Smith, the officer noticed Smith was highly disorientated, had severely slurred speech, and bloodshot and glassy eyes. Officer Lusardi also noticed a strong odor of intoxicants including marijuana emanating from within the vehicle and from Smith. A partially consumed bottle of Bud Light was sitting in the vehicle's center console.
A DUI specialist officer was contacted to respond to conduct field sobriety tests. Smith failed to perform or complete all the sobriety tests, refused a blood test and was agitated. Smith was placed under arrest for DUI and placed in the back of a police cruiser.
Following Smith's arrest, Officer Lusardi walked his K-9 unit around Smith's vehicle. Officer Lusardi testified at the suppression hearing that the K-9 was nationally certified and specifically trained to identify multiple types of narcotics, including marijuana. The dog positively alerted on the driver's side of Smith's vehicle as well as on the rear seat back. The officers then searched the passenger compartment of the vehicle and simultaneously opened the trunk from inside the vehicle.
Inside the trunk, the officers found a closed cardboard box that formerly held a vacuum cleaner. Inside the box, Officer Lusardi found what appeared to be marijuana in two bags. Testing by the Kentucky State Police confirmed the bags contained marijuana.
Smith filed a motion to suppress the evidence seized from inside the box arguing the search of the trunk and box was in violation of the Fourth Amendment to the United States Constitution and Section 10 of the Kentucky Constitution prohibiting unreasonable searches and seizures. The trial court found there was probable cause to search the vehicle's trunk and the box inside and ruled the automobile exception to the warrant requirement was applicable. It denied the motion.
Our standard of review for a trial court's ruling on a suppression motion requires that this Court affirm the trial court's factual findings if supported by substantial evidence. We review de novo the trial court's application of the law to the facts. Chavies v. Commonwealth, 354 S.W.3d 103, 107-08 (Ky. 2011).
"A warrantless search is presumed to be both unreasonable and unlawful both under the United States Constitution and Kentucky Constitution and the prosecution has the burden of proving the warrantless search was justifiable under a recognized exception to the warrant requirement." Gray v. Commonwealth, 28 S.W.3d 316, 318 (Ky.App. 2000). An exception determinative of the present case is the automobile exception.
Because this case is decided on the basis that the automobile exception to the warrant requirement is applicable, we do not address the search-incident-to-arrest exception. See Commonwealth v. Elliott, 322 S.W.3d 106, 110 (Ky.App. 2010)(interpreting Arizona v. Gant, 566 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) and holding officers may search a vehicle "if it is reasonable to believe the vehicle contains evidence of the offense of arrest.")). --------
Any inquiry into whether the automobile exception applies necessarily requires determining whether the stop of the vehicle was justified. "Stopping an automobile and detaining its occupants constitute a seizure under the Fourth Amendment. Traffic stops are similar to Terry stops and must be supported by articulable reasonable suspicion of criminal activity." Chavies, 354 S.W.3d at 108 (internal quotations, brackets and footnotes omitted).
Officer Lusardi had more than sufficient justification to stop Smith's vehicle. Smith was visibly violating the law when he did not have his headlights illuminated in the dark hours of the early morning. Kentucky Revised Statutes (KRS) 189.030(1)(a). The officer also observed Smith sitting stationary in an intersection with a green light, indicating he may be impaired.
Having properly stopped Smith, under the automobile exception to the warrant requirement the officers could lawfully search the entire vehicle and seize all evidence if probable cause existed to believe his vehicle contained evidence of criminal activity and was "readily mobile." Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S.Ct. 2485, 2487, 135 L.Ed.2d 1031 (1996). "When police have probable cause to believe a car contains evidence of criminal activity, they may search the entire vehicle, including areas that are not in plain view." Chavies, 354 S.W.3d at 111. (emphasis added).
In United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982), the Court applied the analysis to facts analogous to the present. After receiving a tip that narcotics were located in the trunk of a car located at a specific location, police later stopped the vehicle and opened the trunk where they found a closed paper bag. The police opened the bag and found a substance contained inside that later was determined to be heroin. The car was impounded and driven back to the police station. A police officer then searched the car without a warrant and $3,200 in cash was found inside a zippered bag.
The Supreme Court held police officers who have legitimately stopped an automobile and have probable cause to believe contraband is concealed within the car may conduct a warrantless search of the vehicle, including compartments and containers within the vehicle whose contents are not in plain view. Id. at 825, 102 S.Ct. 2173. Under the Ross rational, if "probable cause justifies the search of the lawfully stopped vehicle, it justifies the search of every part of the vehicle and the contents that may conceal the object of the search." United States v. Burnett, 791 F.2d 64, 67 (6th Cir. 1986).
Because a probable cause determination is a mixed question of law and fact, we apply a de novo standard of review. Baltimore v. Commonwealth, 119 S.W.3d 532, 539 (Ky.App. 2003). However, it is a slightly modified de novo standard in that "the reviewing court must give due weight to inferences drawn from the facts by the trial court and law enforcement officers and to the circuit court's findings on the officers' credibility." Id.
Upon approaching the vehicle, Officer Lusardi observed an open container of alcohol inside in violation of KRS 189.530(2) and detected a strong smell of marijuana from inside the vehicle and as well as from Smith. Smith failed the field sobriety test and was arrested. A short time later, the dog trained in narcotic detection positively alerted to narcotics on the passenger side and the back seat area just in front of the trunk. At this point, there was probable cause to search the entire vehicle, including the trunk and its contents.
Smith contends that even if probable cause existed to search the trunk and its contents, the vehicle was not "readily mobile" because he was under arrest and in the back seat of the police cruiser. He argues that the Commonwealth could not meet the second prong required for the automobile exception. Our case law is to the contrary.
This precise argument was extensively addressed in Chavies. The Court held that even though the defendant was under arrest and could not access his vehicle when the search was conducted, the lack of access was not significant. It stated:
An individualized assessment of the likelihood that the car will be driven away or that its contents will be tampered with during the period required to obtain a warrant is unnecessary. And a search of an automobile is proper even if the occupants or owners are taken into custody. The mobility of an automobile is an exigent circumstance, per se. And the automobile exception has
no separate exigency requirement. So Chavies's automobile was readily mobile even though Chavies was under arrest at the time officers conducted the search.Chavies, 354 S.W.3d at 111 (internal quotations and footnotes omitted). The Court added that the lessened expectation of privacy resulting from the use of a potentially readily mobile vehicle is not increased merely because it is not immediately mobile. Id. Smith's argument that his arrest and location in the back seat of the police cruiser rendered the automobile exception to the warrant requirement inapplicable is rejected.
Based on the reasoning stated, the judgment of the Kenton Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Harry P. Hellings, Jr.
Covington, Kentucky BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky Tami Allen Stetler
Assistant Attorney General
Frankfort, Kentucky