Opinion
NO. 2013-CA-001357-MR
01-30-2015
JANSON M. WADE APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Gregory W. McDowell Florence, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Leilani K. M. Martin Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM BOONE CIRCUIT COURT
HONORABLE JAMES R. SCHRAND, JUDGE
ACTION NOS. 12-CR-00634 AND 13-CR-00138
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; JONES AND NICKELL, JUDGES. NICKELL, JUDGE: Janson M. Wade was indicted on charges of complicity to traffick in marijuana over five pounds, and possession of drug paraphernalia, both charged as first offenses. Thereafter, Wade moved the Boone Circuit Court to suppress evidence seized from the search of a black Acura registered in his name. After convening an evidentiary hearing, the trial court denied the suppression motion, finding the totality of the circumstances supported probable cause to stop the Acura; a K-9 unit's alert on the Acura between the stop and the search provided further support for the stop; upon arriving at the Acura a few minutes after the stop, Sgt. Greg Rehkamp smelled marijuana wafting from the Acura; and, Wade was not detained for an unreasonable period of time. After two days of trial testimony, jurors convicted Wade of both offenses. Consistent with the jury's verdict, he was sentenced to eight years and a $1,000.00 fine on the felony and a $500.00 fine on the misdemeanor. Wade now appeals the judgment and sentence on plea of not guilty, specifically arguing the trial court erred in denying his suppression motion as well as a mistrial requested after Officer Craig Burch had completed his testimony. Having carefully reviewed the record, the briefs and the law, we affirm.
Kentucky Revised Statutes (KRS) 218A.1421(4), a Class C felony.
KRS 218A.500(2), a Class A misdemeanor.
Throughout the record, this officer's name appears as both Burch and Berch.
FACTS
According to the Commonwealth's proof at the suppression hearing, on Wednesday, September 19, 2012, Sgt. Rehkamp of the Florence Police Department spoke via telephone with a concerned citizen who had noticed delivery of a FedEx package to a vacant home at 9013 Crimson Oak Drive, in Florence, Kentucky. The neighbor called after seeing a black vehicle bearing a Kentucky law enforcement memorial license plate near the residence at 4:40 that afternoon.
With this information in hand, Sgt. Rehkamp contacted Det. Mike Stanaland of the Florence Police Department—who also works with the FBI's Safe Streets Joint Task Force—about intercepting the package which was believed to contain drugs. Pursuant to a search warrant, the suspicious package was collected from the home's porch, opened and found to contain three vacuum-packed pouches of marijuana—each weighing about one pound—inside a hollow computer tower. The package was addressed to Brian Perry at 9013 Crimson Oak Drive.
Det. Stanaland modified the package—removing two-thirds of the marijuana—before placing the box back on the vacant home's porch, and beginning covert surveillance of the package from his unmarked vehicle at about 4:00 p.m. on September 20, 2012. Officer Burch, also of the Florence Police Department, was nearby in a separate unmarked vehicle. Within fifteen to thirty minutes of his arrival at 9013 Crimson Oak Drive, Officer Burch observed a black Acura with tinted windows and a law enforcement memorial tag travel down the street—it was driven by Wade, whom he recognized from a previous drug investigation. A check of the Acura's license plate confirmed it was registered to Wade with a home address of 1059 Stallion Way, Union, Kentucky.
When Officer Burch went off duty at 6:00 p.m., Det. Todd Mitchell of the Erlanger Police Department joined Det. Stanaland and continued surveillance of the vacant home. Just after 8:00 p.m., the same black Acura made another slow pass by the home—driving to the back of the cul de sac, returning and then leaving without stopping. Neither Det. Stanaland nor Det. Mitchell identified the Acura's driver.
Shortly thereafter, a black Mazda passed the house and continued down the street. When the Mazda returned a few minutes later, around 9:00 p.m., a large male—Brian Berry—exited the car and retrieved the FedEx box from the porch. The Mazda was registered to Emily Ray—Berry's girlfriend—a passenger in the car. Once Berry had picked up the package and was walking back to the Mazda, officers converged telling him to stop, and both Berry and Ray were arrested.
Berry, described as being nervous and afraid by Sgt. Rehkamp, was Mirandized and given the opportunity to work with police. Berry was told if he cooperated with police, Sgt. Rehkamp would seek "consideration" on his behalf from the Commonwealth Attorney's Office. During questioning, Berry said he was just picking up the package and delivering it to someone else. He said he did not know the street address of his destination, but when he described the location, officers believed it to be 1059 Stallion Way—Wade's home. When Sgt. Rehkamp told Berry he believed the package was going to "J.W.," Berry's "eyes lit up" and Berry eventually confirmed Janson Wade—Berry's best friend for two decades and a business associate—was the intended recipient. Berry agreed to deliver the package as originally planned.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L. Ed. 2d 694 (1966).
Det. Stanaland repackaged the marijuana—returning it to the original condition in which it had been delivered by FedEx to 9013 Crimson Oak Drive—gave it to Berry, and followed Berry to 1059 Stallion Way. Once at Wade's home, Det. Stanaland exited his vehicle and took a prone position in Wade's yard to watch what transpired. Berry drove up the long driveway in Ray's Mazda; an external light came on at the house; a tall "heavyset individual" met Berry in the driveway and accepted the FedEx package from Berry; as Berry and Ray drove away, returning to Sgt. Rehkamp at New Haven School where both Berry and Ray were cited for trafficking in marijuana, the recipient of the package disappeared into the corner of the house. Det. Stanaland could not identify the individual who accepted the package from Berry in the driveway.
After Berry and Ray departed, Det. Stanaland saw no one enter or leave Wade's property for about ten minutes. At that point, he saw brake lights illuminate and watched the same black Acura that Wade had driven past 9013 Crimson Oak Drive earlier that day exit the Stallion Way driveway. Believing he had probable cause to stop the Acura at that point, Det. Stanaland followed the Acura and via radio requested assistance from a uniformed officer in a marked cruiser because he was not equipped to make the stop himself.
Deputy Jared Demoisey of the Boone County Sheriff's Department—who knows and frequently works with Det. Stanaland—was nearby and offered assistance. Deputy Demoisey caught up with Det. Stanaland, spoke personally with him by radio, learned there was probable cause to stop the black Acura, and made the stop on Chambers Road. Deputy Demoisey positively identified Wade in the courtroom as the person driving the Acura at the time of the stop.
Deputy Demoisey testified he made the stop based solely on Det. Stanaland's assurance he had probable cause; he acknowledged he did not personally have probable cause to make a stop; he did not know who was driving the Acura; and, he did not know whether the car contained drugs. Deputy Demoisey further testified he did not know what type of investigation was in progress, but from the radio chatter he assumed drugs were involved.
After providing his license, registration and insurance information, Wade said he was taking a roundabout route to his girlfriend's home. Deputy Demoisey questioned Wade only for officer safety, asking whether there was anything in the car about which the officer should be concerned; Wade said there was not. When asked to step out of the vehicle, Wade said he would rather not, so he remained in the Acura with Deputy Demoisey at a safe distance.
Arriving less than five minutes later, Sgt. Rehkamp smelled marijuana coming from the Acura, called for a K-9 unit, and told Wade a K-9 unit was en route. For the safety of all involved, it was determined Wade would be allowed to sit in Deputy Demoisey's cruiser, but first he would be patted down. At that point, Wade admitted having marijuana in his pocket. A search of Wade's person revealed a small packet of marijuana and $778.51 in cash. Wade never consented to the search of the Acura.
Before speaking to Wade, Sgt. Rehkamp had called Corporal John Dolan of the Florence Police Department, asking him to bring his K-9 partner "Max" to do a narcotics sweep of the Acura. Dolan and Max arrived within five to ten minutes of receiving the call. Max alerted first on the Acura's trunk and then showed interest in both car doors. A thorough search of the vehicle followed Max's alert. Wade remained in Deputy Demoisey's cruiser, affording him the best vantage point from which to observe the search. The search of the Acura's trunk revealed a suitcase, two laptop computers, and a large plastic bag containing marijuana shake, four empty metal cans, and several empty vacuum-packed bags that smelled strongly of marijuana.
"Shake" refers to loose leaves, seeds and stems remaining in a bag after marijuana is removed.
Prior to trial, Wade filed a written motion to suppress all evidence seized from the stop and subsequent search of the Acura. In his memorandum in support, Wade acknowledged Berry had delivered a package containing three and one-half pounds of marijuana to Wade's home. He then noted Deputy Demoisey had not cited Wade for any traffic violation and, therefore, lacked probable cause to make the stop. Wade emphasized that at the time of the stop, Det. Stanaland did not know who was driving the Acura, nor did he know the number or names of the occupants in Wade's home. In Wade's view, all police knew at the time of the stop was the Acura had been seen in the vicinity of 9013 Crimson Oak Drive and while they knew the package of marijuana had been delivered to Wade's home, they were uncertain who—Wade or another heavyset subject—had received the package from Berry in the driveway.
Wade called no witnesses during the suppression hearing, but tried to develop the theory that while Berry did not "qualify" as a confidential informant, police officers used him in that capacity. During the hearing, Det. Stanaland referred to Berry as a "cooperating suspect"—not a confidential informant—because while he met the qualifications of a confidential informant, he was not signed up as one pursuant to the Florence Police Department's protocol. At the close of the Commonwealth's proof, the motion to suppress was not orally argued.
In a supplemental memorandum filed after the hearing, Wade argued the officers would have searched the Acura immediately, rather than calling for the K-9 Unit to sweep the car, if they had probable cause to make the stop. Wade also noted the prosecutor had conceded during the suppression hearing that no traffic violation had occurred; officers did not know who was driving the Acura when the stop was initiated; and, since Det. Stanaland had not seen anyone place the FedEx package in the Acura, officers were uncertain the Acura contained marijuana.
In its written response, the Commonwealth relied on Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996), to argue the totality of the circumstances for a stop must be viewed as an "objectively reasonable police officer" would view it "through the lens of his police experience and expertise." 517 U.S. at 696, 700, 116 S.Ct. at 1662-63. The Commonwealth argued the following facts established probable cause: officers twice saw the black Acura pass the vacant house where the marijuana was initially delivered by FedEx —one of those passes occurring within ten minutes of the package being retrieved from the porch by Berry; the license plate on the Acura was registered to Wade; Officer Burch had told Det. Stanaland he was familiar with Wade from a prior marijuana investigation; Berry confirmed he was picking up the package for and delivering it to Wade; without stating the address, Berry gave directions to Wade's home; Det. Stanaland watched Berry deliver the package to a person fitting Wade's description in Wade's driveway; and, shortly after the controlled delivery, Wade left his home in the Acura and was stopped by Deputy Demoisey. Based on the foregoing, the Commonwealth argued officers had probable cause to believe the Acura was involved in a drug crime based upon their own personal observations—not on information provided by a confidential informant. In a reply memorandum, Wade argued Berry did not qualify as a confidential informant because his credibility was never established.
On March 8, 2013, the trial court entered a six-page order denying the suppression motion. After recounting the testimony from the hearing—some of which Wade challenges on appeal—the trial court found Deputy Demoisey's traffic stop was lawful because officers had more than a "hunch" criminal activity was afoot, Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889 (1968), they had "reasonable suspicion that the persons in the vehicle are, or are about to become involved in criminal activity." Taylor v. Commonwealth, 987 S.W.2d 302, 305 (Ky. 1998). First, the information Berry provided was entitled to a presumption of reliability because he subjected himself to personal criminal liability. Kelly v. Commonwealth, 180 S.W.3d 474, 477 (Ky. 2005) (internal citation omitted). Second, shortly after Berry delivered the package to Wade's home, Wade left the driveway in the same black Acura he had driven past 9013 Crimson Oak Drive earlier that day. Third, Det. Stanaland maintained visual contact of the Acura from the time it exited the home's driveway until Deputy Demoisey initiated the stop with Wade at the wheel. Fourth, the search of the Acura followed Max's alert on the trunk and doors; an alert by a trained drug-sniffing dog establishes "probable cause for the presence of a controlled substance." United States v. Diaz, 25 F.3d 392, 394 (6th Cir. 1994) (internal citation omitted). Fifth, the stop was not unreasonably prolonged—five minutes for Sgt. Rehkamp to arrive and another five to ten minutes for Corporal Dolan and Max to arrive. Sixth, when Sgt. Rehkamp arrived, he smelled the odor of marijuana coming from the driver's side window of the Acura. Seventh, the trial court noted Deputy Demoisey's pat-down of Wade for officer safety revealed a baggie of marijuana and a large sum of money. The trial court concluded this blow-by-blow description of the events of September 20, 2012, amounted to probable cause and a lawful stop.
Wade stipulated to Max's credentials.
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A timely notice of appeal was filed. This appeal followed.
ANALYSIS
Generally, the police may not search an individual without a warrant unless it can be shown that the search falls within one of the recognized exceptions to the rule. The recognized exceptions include: (1) a consensual search; (2) a plain view search; (3) a search incident to an arrest; (4) a probable cause search; (5) a search based on exigent circumstances; and (6) an inventory search. However, in Terry v. Ohio, the United States Supreme Court balanced individual liberty interests and the public safety interest in recognizing a limited exception to the warrant requirement by sanctioning both investigatory stops and restricted pat-down searches of suspects. Police officers may briefly detain an individual on the street, even though there is no probable cause to arrest him, if there is a reasonable suspicion that criminal activity is afoot. The existence of a reasonable articulable suspicion or probable cause is based on an analysis of all the facts and the totality of the circumstances. The standard for reasonable suspicion is less demanding than the grounds for probable cause.Stewart v. Commonwealth, 44 S.W.3d 376, 379-80 (Ky. App. 2000). Wade's primary argument is he was stopped on the night of September 20, 2012, without probable cause and, therefore, anything seized as a result of that stop and the subsequent search should have been excluded from trial. "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." Jackson v. Commonwealth, 187 S.W.3d 300, 305 (Ky. 2006), as amended (Mar. 29, 2006) (internal citations omitted).
Initially, Wade challenges four of the trial court's findings of fact. If those findings are supported by substantial evidence, we will deem them to be conclusive, and review de novo the trial court's application of the law to the facts to determine its correctness. Commonwealth v. Neal, 84 S.W.3d 920, 923 (Ky. App. 2002). From our review of the record, two of the four disputed facts are accurate; that means the other two are inaccurate. Det. Stanaland testified the surveillance of 9013 Crimson Oak Drive lasted six hours—Officer Burch may have watched the house for only two of those six hours, but when he went off duty at 6:00 p.m., he was replaced by Det. Todd Mitchell and the surveillance continued for a total of six hours. Additionally, Det. Stanaland testified Berry picked up the package within ten minutes of the Acura's second pass of the vacant house. Thus, these two findings of fact are supported by substantial evidence and deemed to be conclusive.
However, Wade accurately points out two errors made by the trial court in its recitation of the facts. Det. Stanaland testified he observed Berry hand the package to a "heavyset individual" in the driveway—not a "heavyset male" as reflected in the trial court's order. Additionally, Det. Stanaland testified the Acura's tail lights came on and the Acura exited Wade's driveway within ten to fifteen minutes of Berry leaving Wade's home after delivering the package—this contradicts the trial court's finding that the Acura pulled out of the garage before exiting the driveway. Furthermore, the trial court wrote, "Det. Standaland (sic) did not have a view of the garage at the time of the delivery." Thus, there was no testimony about the Acura emerging from the garage. While these two facts were misstated, they are not significant errors justifying reversal.
Deeming the bulk of the factual findings to be conclusive, we now consider whether the trial court properly applied the law to the facts. Wade claims the warrantless search of the Acura was unreasonable because officers lacked an "articulable and reasonable suspicion" he had been, was, or was going to be involved in illegal conduct as required by Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 1401, 59 L.Ed.2d 660 (1979). In contrast, the Commonwealth argues the officers had more than a hunch Wade's vehicle was involved in the trafficking of marijuana based on the series of events leading to the stop, as well as the experience and training of the officers involved. United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 750-51, 151 L.Ed.2d 740 (2002).
We are persuaded by the Commonwealth's argument. Delivery of a suspicious FedEx package to a vacant home and the events that followed reasonably led officers to Wade. At least twice, his Acura passed by 9013 Crimson Oak. On the Acura's first pass, Officer Burch recognized Wade as the driver. Shortly after the Acura's second pass, Berry drove by the house in a black Mazda. On his second pass of the house, Berry stopped and retrieved the package. At that point, officers stopped Berry and he reluctantly admitted he was picking up the package and delivering it to Janson Wade—after Sgt. Rehkamp told him they suspected the package was being delivered to "J.W." Det. Stanaland followed Berry to Wade's home and observed Berry transfer the package to a heavyset individual—Wade is a heavyset individual. Ten to fifteen minutes later, the Acura's tail lights came on and Wade left the residence. Det. Stanaland followed the Acura and asked for assistance in making a stop, believing he had probable cause to do so. From this chain of events we believe Det. Stanaland reasonably believed Wade and his vehicle were involved in the trafficking of marijuana and the stop was lawful. Based on the facts known to Det. Stanaland he drew reasonable inferences and we will not fault him for doing so. Bauder v. Commonwealth, 299 S.W.3d 588, 591-92 (Ky. 2009).
Wade has raised a second issue on appeal. During trial, Officer Burch was the Commonwealth's third witness. About midway through his testimony, which lasted just over six minutes, he described the two hours he watched 9013 Crimson Oak Drive. The prosecutor asked the witness, "Did you see anything that caught your eye?" Officer Burch responded he had observed a black Acura travel down the street with Wade at the wheel. He then stated, "I recognized him from a previous." There was no contemporaneous objection, and before Officer Burch could finish his statement, the prosecutor said, "uh, uh, if we could hold up there" and immediately began a series of pointed questions about the Acura. At the end of Officer Burch's testimony, the court took a short recess.
Officer Burch's prior knowledge of Wade was not a surprise to the parties, having been a topic of conversation before trial began on June 20, 2013. At that point, defense counsel explained Wade's name had been mentioned in a 2010 drug investigation. While Wade was not charged in connection with that event, the police recognized Wade's name and believed he was involved with this FedEx package. The Commonwealth stated it had instructed its witnesses— including Officer Burch—to say nothing about how they recognized Wade, but reserved the right to explain the basis of their knowledge if it became an issue as the proof developed. In response, defense counsel stated if the basis of Officer Burch's knowledge were revealed, it might result in a mistrial.
The trial court sustained the defense objection to revealing the basis of Officer Burch's knowledge, but clearly stated if something objectionable were said during trial, the court would rely on the party to object. Defense counsel agreed and the Commonwealth said it would remind Officer Burch to avoid saying how he recognized Wade before the officer took the stand.
When trial resumed after the recess, defense counsel approached the bench and moved for a mistrial because Officer Burch had said he knew Wade "from a prior." Defense counsel acknowledged the prosecutor had moved quickly to halt the testimony, but argued he could not "unring the bell." Defense counsel theorized jurors could believe Officer Burch knew Wade from a prior drug investigation because he had testified most of the fifteen years he had served as a police officer were devoted to drug enforcement and while working in Eastern Kentucky for three years he had made daily drug buys.
The prosecutor responded he had stopped Officer Burch from completing his statement and nothing objectionable was heard by the jury. Rather than ruling immediately, the trial court stated it would research the matter overnight and rule the next morning. Jurors then heard about thirty minutes of testimony from Det. Stanaland before court adjourned for the day.
The next morning, the trial court denied the motion for a mistrial. Defense counsel made no argument, but stated on the record an admonition was not desired because giving one would do more harm than good. The motion for mistrial was reiterated as trial moved forward, but was denied each time.
Denial of a mistrial will not be disturbed unless there has been an abuse of discretion. Gould v. Charlton Co., Inc., 929 S.W.2d 734 (Ky. 1996). Here, the prosecutor stepped in and redirected Officer Burch before he was able to reveal any objectionable information. Therefore, there was no need to halt trial. No undue attention was drawn to the unfinished statement and no admonition was requested. We discern no error in the trial court's ruling.
WHEREFORE, having discovered no errors in the denial of the motion to suppress or the motion for mistrial, the judgment of the Boone Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Gregory W. McDowell
Florence, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Leilani K. M. Martin
Assistant Attorney General
Frankfort, Kentucky