Opinion
NO. 2014-CA-001372-MR
05-06-2016
ELANDRA SPLAWN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Molly Mattingly Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Tami Allen Stetler Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM MARION CIRCUIT COURT
HONORABLE ALLAN RAY BERTRAM, JUDGE
ACTION NO. 14-CR-00027 OPINION
AFFIRMING
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BEFORE: CLAYTON, THOMPSON, AND VANMETER, JUDGES. VANMETER, JUDGE: In order for a police officer to make a traffic stop, he or she must have a reasonable, articulable suspicion of a violation of law. The issue we resolve in this case is whether the Marion Circuit Court erred in denying Elandra Splawn's suppression motion, ruling that the police officer's observing the vehicle in which Splawn was a passenger stopped in the middle of a two-lane street, in violation of local ordinance, justified a stop of the vehicle. We hold that the trial court did not err, and therefore affirm Splawn's conviction for possession of marijuana.
Splawn was indicted on three counts: Possession of a Controlled Substance, 1st Degree, 1st offense, Cocaine; Possession of Drug Paraphernalia; and Possession of Marijuana. As a result of her conditional guilty plea, the Drug Paraphernalia charge was dismissed. Splawn accepted pretrial diversion on the Possession of a Controlled Substance charge, and received a sentence of 90 days on the Marijuana charge, probated for six months. Splawn successfully completed both her probation and diversion such that the felony charge was dismissed as diverted.
I. Factual and Procedural Background.
Splawn was a passenger in Tyler Mock's motor vehicle. Around midnight on February 12, 2014, Officer Joseph Holliday noticed the vehicle stopped in the middle of a street, blocking both lanes. The vehicle's motor was running and both headlights were on. The vehicle further had an out-of-state license plate. Holliday characterized the area in which the vehicle was parked as a high crime area, and testified that a male person was standing outside the vehicle. Based on the traffic violation, but also on concern that the motorist might be lost, Holliday turned his vehicle around and approached the vehicle, but as he did so, the subject vehicle began to drive away. Holliday then initiated a traffic stop. As Holliday approached the vehicle, the driver, Mock, opened the window and Holliday noticed a strong smell of marijuana. Mock admitted that he had drugs in the vehicle. About that time, another officer from the canine unit arrived on the scene, and walked around the vehicle. The dog hit on the vehicle's passenger side where Splawn was seated in the front seat. Upon further investigation, Splawn was found to have a marijuana cigarette and marijuana crusher in her purse, and cocaine was found in a bag between Splawn's seat and door.
The trial court denied Splawn's suppression motion, ruling that Holliday had a reasonable, articulable suspicion of a traffic violation, based on blocking the street and also had concern for the motorist which he was seeking to assist based on the out-of-state plates. Following denial of the motion, Splawn entered a conditional guilty plea to the marijuana charge and entered pretrial diversion for the cocaine charge. The trial court dismissed the paraphernalia charge. This appeal follows.
II. Standard of Review.
After a hearing on a defendant's suppression motion, a trial court's findings are deemed to be conclusive if supported by substantial evidence. See, e.g., Talbott v. Commonwealth, 968 S.W.2d 76 (Ky. 1998); Canler v. Commonwealth, 870 S.W.2d 219 (Ky. 1994). The trial court's findings of fact will only be overturned if clearly erroneous. See, e.g., Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Roark v. Commonwealth, 90 S.W.3d 24, 28 (Ky. 2002). Finally, an appellate court conducts a de novo review of the trial court's application of the law to those facts to determine whether its decision is correct as a matter of law. Drake v. Commonwealth, 222 S.W.3d 254, 256 (Ky. App. 2007); Commonwealth v. Neal, 84 S.W.3d 920, 923 (Ky. App. 2002).
III. Issue on Appeal.
Splawn only raises one issue in this appeal: Holliday did not have the reasonable, articulable suspicion of a violation of the law required to initiate a traffic stop and therefore all evidence obtained as a result of the stop should be suppressed. Splawn, in her brief, concedes that Holliday observed a traffic violation, blocking a lane of traffic, but attempts to mitigate the violation, reasoning (i) that the time was late at night, and thus no other vehicles were present and no traffic was actually blocked, and (ii) that by the time Holliday initiated the traffic stop, Mock had put the car in motion by pulling away and no violation was then in progress.
This Court recently addressed probable cause to initiate a traffic stop:
"[S]topping an automobile and detaining its occupants constitute a 'seizure' under the Fourth Amendment." Chavies v. Commonwealth, 354 S.W.3d 103, 108 (Ky. 2011) (citing Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979) (citations omitted)). Traffic stops are similar to Terry stops and must be supported by articulable, reasonable suspicion of criminal activity. Id. 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). Reasonable suspicion is the lowest tier of the pyramid comprised of probable cause (level two) and preponderance of the evidence (level three): "the likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of satisfying the preponderance of the evidence standard." United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002).Baker v. Commonwealth, 475 S.W.3d 633, 634-35 (Ky. App. 2015).
The Kentucky Supreme Court has held that "an officer who has probable cause to believe that a civil traffic violation has occurred may stop a vehicle regardless of his or her subjective motivation [.]" Wilson v. Commonwealth, 37 S.W.3d 745, 749 (Ky. 2001). In Wilson, the police were investigating a drug investigation, and a detective observed one suspect take a wrong turn down a one-way alley with one headlight light out. The Court noted the stop was validly made.
In Baker, the facts justifying the stop were the police officer's observing a vehicle sway, albeit not abruptly, and then "hugging" the outer fog line of the right-hand lane for about two miles. Other recent Kentucky cases have addressed situations in which seemingly minor violations justified a traffic stop. See, e.g., Dudley v. Commonwealth, 2014-CA-001284-MR, 2016 WL 194785 (Ky. App., Jan. 15, 2016) (traffic stop made for failure to make a turn without signaling); Perrin v. Commonwealth, 2013-CA-000562-MR, 2014 WL 2643320 (Ky. App., Jun. 13, 2014) (traffic stop made for failure to dim headlights to oncoming traffic).
In this case, as noted, Holliday observed a vehicle in violation of a local ordinance making it "unlawful to operate any vehicle or permit it to remain standing in any street in such manner as to create an obstruction thereof." Lebanon, Ky., Code of Ordinances, Traffic Code §71.01(A). The fact that the vehicle was in motion and a violation was no longer extant at the time Holliday initiated the stop does not erase Holliday's probable cause belief that a violation had occurred. Clearly, many crimes or violations are no longer in process by the time the police make a stop or an arrest, but that does not mean the offense did not occur or the police may not lawfully take permitted action.
http://lebanon.ky.gov/Documents/traffic%20code.pdf (accessed 18 Apr. 2016). --------
The Marion Circuit Court's Order denying Splawn's Motion to Suppress and its Judgment of Conviction are affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Molly Mattingly
Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky Tami Allen Stetler
Assistant Attorney General
Frankfort, Kentucky