Opinion
NO. 2013-CA-000119-MR
05-30-2014
TONY W. VINCENT, JR. APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Steve W. Lamb Central City, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Taylor Payne Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM MUHLENBERG CIRCUIT COURT
HONORABLE BRIAN WIGGINS, JUDGE
ACTION NO. 12-CR-00174
OPINION
AFFIRMING
BEFORE: CLAYTON, MAZE, AND NICKELL, JUDGES. CLAYTON, JUDGE: This is an appeal from the denial of a suppression motion. Based upon the following, we affirm the decision of the trial court.
BACKGROUND SUMMARY
The Appellant, Tony W. Vincent, Jr., entered a guilty plea in the Muhlenberg Circuit Court to the Class B felony of trafficking in a controlled substance in the first degree, two (2) or more grams, second or subsequent offense. Vincent entered this plea conditioned upon preserving his right to appeal the denial of his Motion to Suppress by the trial court.
The charges stem from an arrest which took place on July 3, 2012, when Kentucky State Trooper John McGehee initiated a traffic stop of Vincent's vehicle. Trooper McGehee testified that he observed the occupants of the vehicle, Vincent and a passenger, not wearing their seatbelts. Upon stopping the vehicle, McGehee stated that he noticed Vincent was nervous and fidgeting and that he suspected he may be under the influence of drugs. McGehee also stated that Vincent kept putting his hands in his pockets, so McGehee patted him down, fearing for his safety.
During the pat down, McGehee found a single Viagra pill in Vincent's pocket. McGehee then performed a search of Vincent's vehicle where he found methamphetamine, marijuana, a drug scale, cellophane bags and an empty prescription Viagra bottle written for Earl Armour. McGehee then asked Vincent to perform three field sobriety tests. He failed two of these three tests.
McGehee arrested Vincent and charged him with failure to wear seat belts, operation of a motor vehicle under the influence of drugs, illegal possession of a legend drug, possession of a prescription controlled substance not in proper container, possession of marijuana, possession of drug paraphernalia, and trafficking in a controlled substance in the first degree.
Vincent filed a motion to suppress the evidence obtained with the trial court. He asserted that the search violated his Fourth Amendment rights. The trial court held a hearing. Vincent asserted that he did not own the truck and stated that the owner was in West Virginia. McGehee also testified that he recognized the car as possibly belonging to Bobby Fulton, whom he had previously arrested for manufacturing methamphetamine.
The trial court denied Vincent's motion finding as follows:
3. McGehee's observations of the Defendant's behavior subsequent to the traffic stop, the finding of a legend drug on the Defendant's person, and the absence of any indicators evidencing alcohol use by the Defendant were circumstances that established probable cause for the search of his vehicle.
4. Moreover, even if the search and seizure of the evidence at issue and described in detail above were illegal, the evidence now sought to be suppressed would have been inevitably discovered by McGehee. As stated above, after searching the vehicle, McGehee conducted field sobriety tests upon the Defendant and the Defendant failed two of the three tests. McGehee thus possessed probable cause for the arrest of the Defendant for the charge of operating a motor vehicle under the influence, and nothing set forth in the case relied upon by the Defendant, namely Arizona v. Gant, 556 U.S. 332 (2009), would have prohibited McGehee from conducting a search of the Defendant's vehicle subsequent to his arrest. Clearly then, the evidence found during McGehee's search would have been inevitably discovered.
Vincent then entered a conditional guilty plea to the charge of trafficking in a controlled substance, reserving the right to appeal the suppression issue. Vincent then filed this appeal.
STANDARD OF REVIEW
When reviewing the denial of a motion to suppress, we must uphold the trial court's findings if they are supported by substantial evidence. See Talbott v. Commonwealth, 968 S.W.2d 76 (Ky. 1998); Canler v. Commonwealth, 870 S.W.2d 219 (Ky. 1994), citing Harper v. Commonwealth, 694 S.W.2d 665 (Ky. 1985). Substantial evidence is "evidence of substance and relevant consequence having the fitness to induce conviction in the minds of reasonable men." Kentucky State Racing Comm'n v. Fuller, 481 S.W.2d 298, 308 (Ky. 1972). A trial court's findings of fact must be upheld unless they are clearly erroneous. See 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). Questions of law are reviewed de novo. With these standards in mind, we will review the trial court's decision.
DISCUSSION
Vincent first argues that the illegal search of his vehicle and the exclusionary rule required suppression of all the evidence seized from both his person and his vehicle. Vincent asserts that this Court should recognize a distinction which it previously has not, that Arizona v. Gant, 556 U.S. 332, 345, 129 S.Ct. 1710, 1720, 173 L.Ed.2d 485 (2009), distinguishes between primary and secondary evidence allowed for the court to consider in situations such as this.
Vincent contends that, pursuant to Gant, primary evidence is evidence obtained directly from the illegal conduct while secondary evidence is evidence derived from or "come at by exploitation of" the illegal activity. W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 11.4 (5th Ed. 2011).
The Commonwealth, however, asserts that the drug and paraphernalia evidence was admissible as the fruit of a probable cause search pursuant to the automobile exception to the warrant requirement. It further argues that even if there were no probable cause for the search, the evidence would have inevitably been discovered during a search incident to arrest since Vincent was arrested for driving under the influence (DUI).
"[A]ll searches without a warrant are unreasonable unless it can be shown that they [are] within one of the exceptions to the rule that a search must be made pursuant to a valid warrant." Morton v. Commonwealth, 232 S.W.3d 566, 569 (Ky. App. 2007), quoting Cook v. Commonwealth, 826 S.W.2d 329, 331 (Ky. 1992). An exception to this rule is the automobile exception. It "permits an officer to search a legitimately stopped automobile where probable cause exists that contraband or evidence of a crime may be in the vehicle." Id.
"Probable cause exists when the totality of circumstances then known to the investigating officer creates a fair probability that contraband or evidence of [a] crime is contained in the automobile." Clark v. Commonwealth, 868 S.W.2d 101, 106-7 (Ky. App. 1993); Illinois v. Gates, 462 U.S. 213, 229-31, 103 S.Ct. 2317, 2327-2329, 76 L.Ed.2d 527 (1983). Probable cause exists "where the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found." Ornelas v. U.S. 517 U.S. 690, 696, 116 S.Ct. 1657, 1661, 134 L.Ed.2d 911 (1996).
In Hughes v. Commonwealth, 87 S.W.3d 850, 853 (Ky. 2002), the Kentucky Supreme Court interpreted the application of Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984), and stated that the inevitable discovery rule "has been applied to the fruits of illegal searches as well as to the fruits of illegally obtained confessions." Kentucky courts, therefore, have not made the distinction that other jurisdictions have regarding primary and secondary evidence.
In determining that the suppression motion should be denied, the trial court looked to the totality of circumstances provided by McGehee at the hearing. McGehee testified that he observed the vehicle which he recognized as belonging to Bobby Fulton whom he had previously arrested for manufacturing methamphetamine. He also observed that the driver and passenger of the vehicle were not wearing seatbelts. Thus, he had probable cause to stop the vehicle. Once the vehicle was stopped, McGehee testified that he thought Vincent seemed more nervous than the typical person at a traffic stop and that he continued to place his hands in his pockets. As a result, McGehee proceeded to do a pat down for weapons. Upon performing the pat down, he found a single Viagra pill in Vincent's pocket for which there was no prescription bottle. McGehee then searched the vehicle.
Upon searching the vehicle, McGehee discovered the drugs and scales. McGehee also asked Vincent to perform field sobriety tests, which Vincent failed. Vincent was arrested for DUI as well as the trafficking and drug possession charges.
Vincent argues that possession of the single Viagra pill was insufficient to allow McGehee to perform a search of the vehicle. Instead, Vincent concedes that had he initially been arrested for DUI, a search incident to the arrest would have been lawful. Under the totality of circumstances in this issue, however, we hold the trial court correctly denied the suppression motion. As set forth above, the totality of circumstances during the stop allowed McGehee the probable cause necessary to search the vehicle Vincent was operating. Thus, we affirm the decision of the trial court.
ALL CONCUR. BRIEF FOR APPELLANT: Steve W. Lamb
Central City, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Taylor Payne
Frankfort, Kentucky