Opinion
NO. 2013-CA-000488-MR
03-14-2014
TREVOR SCOTT SPENCER APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Katherine M. Paisley James I. Lowry, IV Lexington, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Heather M. Fryman Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE THOMAS CLARK, JUDGE
ACTION NO. 12-CR-00018
OPINION
VACATING AND REMANDING
BEFORE: ACREE, CHIEF JUDGE; CAPERTON AND VANMETER, JUDGES. CAPERTON, JUDGE: The appellant, Trevor Spencer, entered a conditional guilty plea on the charges of promoting contraband in the first degree, possession of a controlled substance in the first degree, trafficking in marijuana less than eight ounces, operating on a suspended or revoked operator's license, and failure to have his rear license plate illuminated. Spencer's conditional plea reserved the right to challenge the arrest and subsequent search that led to the discovery of marijuana and prescription pills. Based upon our review of the record, it is clear that the circuit court applied sound judicial reasoning and logic in its hearing of this case. Nevertheless, our rules require that the court make those essential findings of fact in writing, as part of its order denying the motion to suppress. Therefore, we vacate the order denying the motion to suppress and remand for proceedings consistent with this opinion.
At the outset, we note that a trial court's findings of fact are entitled to great deference and are conclusive if supported by substantial evidence. RCr 9.78. When the trial court rules on a motion to suppress, they must make findings of fact on issues essential to the judgment. Id. The circuit court made no findings of fact in this case; thus, for the reasons set forth below, remand is necessary. Commonwealth v. Neal, 84 S.W.3d 920, 925 (Ky. App. 2002).
This appeal concerns the constitutionality of an arrest and subsequent search that resulted from a traffic stop, which revealed that Spencer was driving on a suspended license, a misdemeanor offense pursuant to KRS 186.620(2). Spencer contends his arrest was made in violation of KRS 431.015(1), which provides for the issuance of a citation, instead of an arrest, under certain circumstances. He argues that KRS 431.015(1) extends the protections afforded by Section Ten of the Kentucky Constitution beyond that of the Fourth Amendment of the United States Constitution.
In Virginia v. Moore, the Supreme Court of the United States considered the effect of a similar statute on the constitutionality of a misdemeanor arrest made in violation of a state statute requiring a citation. 533 U.S.164, 128 S.Ct. 1598, 170 L.Ed.2d 559 (2008). The Court determined that the arrest did not violate the United States Constitution and concluded "that warrantless arrests for crimes committed in the presence of an arresting officer are reasonable under the Constitution, and that while States are free to regulate such arrests however they desire, state restrictions do not alter the Fourth Amendment's protections." Id. at 176.
In reviewing these arguments, we note that they operate on the assumption that the arrest was not permissible under the statute. This question must be addressed as a threshold matter because the statute does not create a blanket rule that requires a citation for all misdemeanors. For example, KRS 431.015(1)(b)(2) allows for the arrest of an individual who commits a misdemeanor that "is an offense in which the defendant poses a risk of danger to himself, herself, or another person . . . ." If the arrest is valid under the statute, then the question of constitutionality is moot.
Even if we assume that the arrest was invalid under the statute, findings of fact are nonetheless essential because the search may have been permissible for other reasons; for example, if there was probable cause to arrest for reasons independent of the misdemeanor. See e.g., Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) (an arrest may be permissible if it was obtained "by means sufficiently distinguishable to be purged of the primary taint"). Without findings of fact from the trial court, we are unable to address these questions.
The judgment of the circuit court is vacated and the matter is remanded for proceedings consistent with this opinion.
ALL CONCUR. BRIEFS FOR APPELLANT: Katherine M. Paisley
James I. Lowry, IV
Lexington, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Heather M. Fryman
Assistant Attorney General
Frankfort, Kentucky