Opinion
NO. 2015-CA-000466-MR
04-07-2017
JAMES WILLOUGHBY APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Brandon Neil Jewell Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General Jeffrey A. Cross Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM KENTON CIRCUIT COURT
HONORABLE GREGORY M. BARTLETT, JUDGE
ACTION NO. 11-CR-00066 OPINION
AFFIRMING
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BEFORE: KRAMER, CHIEF JUDGE; COMBS AND JONES, JUDGES. COMBS, JUDGE: This is a criminal case in which Appellant, James Willoughby (Willoughby), appeals from the denial of his motion to suppress evidence seized during a traffic stop. This is the second appeal in this matter. It is based upon the decision of the trial court following a remand from this Court in the first appeal.
Willoughby was indicted by a Kenton County grand jury on one count of manufacturing methamphetamine, first-offense, and one count of first-degree possession of a controlled substance. A jury convicted Willoughby of both charges and sentenced him to ten years.
As a preliminary matter, we shall address a motion filed as a part of this appeal. On October 30, 2015, Willoughby filed a motion asking us to take notice of the case file pertaining to the previous appeal in this matter, No. 2012-CA-000776. He cites KRE 201(d) and contends that judicial notice is mandatory. However, the rule governs only judicial notice of adjudicative facts. KRE 201(a). "The purpose of judicial notice is to eliminate the need for formal proof of facts . . . beyond the scope of reasonable and legitimate dispute." Polley v. Allen, 132 S.W.3d 223, 226 (Ky. App. 2004) (internal quotation marks and footnote omitted). We are not persuaded that judicial notice is appropriate here to recognize the existence of a legal action - which is a matter of record. Willoughby explains that "in his brief in the case at bar . . . he incorporates all other arguments previously made . . . and ruled against by this Court" for possible preservation purposes.
Passed to the merits by Order entered December 22, 2015.
Kentucky Rule[s] of Evidence.
KRE 201(d) provides: "When mandatory. A court shall take judicial notice if requested by a party and supplied with the necessary information."
In the first appeal, this Court reversed the trial court's denial of Willoughby's motion to suppress and remanded for additional proof and findings regarding the issue of the initial traffic stop; it affirmed as to the other issues. Therefore, this Court's decision in the prior appeal is the law of the case as to all those other issues previously affirmed. "[A]n appellate court, on a subsequent appeal, is bound by a prior decision on a former appeal in the same court. The rule means that issues decided in earlier appeals should not be revisited in subsequent ones." St. Clair v. Commonwealth, 455 S.W.3d 869, 887 (Ky. 2015) (internal quotation marks and citations omitted).
Willoughby contends that it may be helpful for this Court to have access to the file in the prior appeal in order to have a complete case history. However, the case history is accurately reflected in the trial court's docket sheet, which is included in the certified record, along with the evidence presented to the trial court and this Court's Opinion in the prior appeal. Willoughby's Motion is DENIED, and a separate Order will be issued in conjunction with this Opinion.
The underlying facts are summarized in this Court's Opinion rendered in Willoughby v. Commonwealth, 2012-CA-000776-MR, 2014 WL 92253 (Ky. App. Jan. 10, 2014), in relevant part, as follows:
On November 18, 2010, while on routine patrol, Officer Scott Hardcorn of the Kenton County Police Department (KCPD) encountered a 1997 Jeep Cherokee. Officer Hardcorn entered the vehicle's license plate number into his Mobile Data Terminal (MDT) which was
linked to, among other databases, Kentucky's automated vehicle information system (AVIS). This database maintains title, registration, and insurance information for all vehicles . . . registered in Kentucky. . . . AVIS displayed Willoughby's name and vehicle information, including the statement "verify proof of insurance." Officer Hardcorn testified that he routinely stopped vehicles whose registration information shows this indication, and that "more times than not, that person has either lapsed in payment, so the insurance company canceled them or the registered owner of that vehicle canceled the insurance policy themself [sic ]."
According to the County Clerk, several possible reasons exist for AVIS's indication that an individual's insurance requires verification: a lapse in coverage, cancellation of coverage, or a change in insurance provider of which the County Clerk or the Transportation Cabinet has not been notified. Because larger insurance companies upload their data to AVIS monthly, but smaller companies are not required to do so, valid insurance through a smaller carrier or the change from a larger carrier to a smaller carrier may cause AVIS to indicate that a driver's insurance requires verification.
Based on the indication AVIS provided . . . Officer Hardcorn initiated a traffic stop. Upon approaching the vehicle, Officer Hardcorn requested Willoughby's insurance card and observed a female passenger he later identified as Sheena Martin. While Willoughby searched for his insurance card, Officer Hardcorn shone his flashlight around the car, through the tinted back window and into the backseat, where he observed an electric coffee bean grinder. After five minutes elapsed, Officer Hardcorn asked Willoughby to continue looking for his insurance card and returned to his cruiser where he called dispatch to request a warrant and other information. He also contacted Sergeant Benton of KCPD and requested that he check a database of recent pseudoephedrine purchases and purchasers in Kentucky.
Approximately twenty minutes after the traffic stop began, Sergeant Benton arrived . . . and informed Officer Hardcorn that his search of the database showed that both Willoughby and Martin had purchased pseudoephedrine earlier that day . . . . Upon learning this, Officer Hardcorn returned to Willoughby's vehicle and questioned him regarding pseudoephedrine purchases. Willoughby initially told the officer that he had not bought any pseudoephedrine and that he was not "into that anymore."
Officer Hardcorn asked Willoughby to exit the vehicle and informed him he was being given a warning for driving without proof of insurance. [Although Willoughby was not able to provide proof of insurance during the traffic stop, he was legally insured at the time.] According to Officer Hardcorn, he decided to issue only a warning "to build a rapport" with Willoughby in hopes of gaining information on other drug traffickers. Officer Hardcorn, with the assistance of Sergeant Benton, conducted a pat down of Willoughby which yielded two small bags of white powder, one of which was found tucked down his pants and between his buttocks. Officer Hardcorn then handcuffed Willoughby. Officers asked Willoughby for consent to search the vehicle and placed him in the back of a police cruiser. After reading Willoughby his Miranda rights, Officer Hardcorn repeatedly informed him that he was not under arrest.
In Willoughby's vehicle, officers found an electric coffee bean grinder, store brand cold medicine containing pseudoephedrine, and plastic tubing with white residue on it. Following these discoveries, and after field tests on the white powder found on Willoughby's person revealed it to be methamphetamine, officers formally arrested Willoughby.
Prior to trial, Willoughby sought suppression of the evidence seized from his person and from his vehicle during the traffic stop, claiming, inter alia, that Officer
Hardcorn did not possess the requisite level of suspicion to initiate the traffic stop. At the hearing on this motion, Officer Hardcorn testified and the court viewed the in-car video of the traffic stop. The Kenton County Clerk testified regarding AVIS and Willoughby's insurance agent testified regarding his insurance status on the date of the traffic stop.Id. at *1-3 (footnotes omitted).
Following the hearing and submission of memoranda, the trial court denied Willoughby's motion to suppress. In its order, the trial court stated that Officer Hardcorn "testified that in his experience, 95% of the individuals that he has stopped in order to verify insurance do not have insurance in effect." The trial court . . . conclude[d] that Officer Hardcorn had sufficient suspicion and "certainly had the legal authority to investigate further by stopping the vehicle for investigation."
In the first appeal, Willoughby argued inter alia that Officer Hardcorn did not have sufficient cause to stop him based solely on AVIS's indication regarding insurance. This Court examined precedent from other jurisdictions and concluded that further proof was necessary:
[T]he trial court properly recognized the significant role AVIS's reliability plays in determining the reasonableness of Officer Hardcorn's suspicions. However, we are troubled by the trial court's statement that Officer Hardcorn's testimony attributed a 95% accuracy rate to AVIS. Had this been the case, ours might be a simpler decision. However, Officer Hardcorn never said, or even intimated, this fact. Hence, there is a lack of substantial evidence supporting the trial court's only finding regarding the crucial question of AVIS's reliability.
[O]n remand, the trial court shall hear and consider further evidence concerning AVIS, including, but not limited to: what the various indications provided by AVIS mean, both in theory and in practice; whether the database's "match rate" can be definitively determined; and how (in)frequently an indication of "verify proof of insurance" indicates that a vehicle is uninsured. We, like the few courts who have taken up this issue, refuse to announce a threshold value or percentage which, once crossed, would bestow "reasonable and objective" status upon an officer's suspicions. Instead, we leave to the sound, and soon-to-be more informed, judgment of the trial court the determination of whether, under these facts, AVIS was sufficiently accurate and reliable so as to raise an objectively reasonable suspicion of criminal conduct.Id. at *5-6 (Bold-face emphasis added).
On February 6, 2015, the trial court conducted a hearing pursuant to our remand. On March 2, 2015, it entered Findings of Fact, Conclusions of Law, and an Order and Judgment on Remand again denying Willoughby's Motion to Suppress in which it reasoned as follows:
At this most recent hearing the Commonwealth offered the testimony of two representatives from the Kentucky Department of Transportation . . . knowledgeable of the operation of AVIS . . . [who] provided more detail with regard to the system. Godwin Oonodu, Assistant Director of the Transportation Department, and Tonya Davis, an expert on AVIS, explained that, on the 15th of each month, all automobile insurance carriers submit a list, by vehicle identification numbers (VIN) of all covered vehicles. The Department then compares that list to a list of all registered vehicles. If no insurance is indicated for that vehicle when the
insurance carriers file their lists in the following month, that vehicle is placed on a watch list and put into AVIS. The Department then sends a letter to the registered owner warning that their registration could be cancelled. If no response is received, the registration for that vehicle will be cancelled. Approximately 20,000 warning letters are sent each month, with about 3,000 or 4,000 registrations cancelled for lack of proof of insurance.
Ms. Davis acknowledged that errors do occur which will indicate no proof of insurance when there is a policy. For example, the insurance company may make a mistake in listing the VIN of a given vehicle, or the County Clerk may err in transmitting the VIN to the Transportation Department. Thus, when the AVIS indication to "verify proof of insurance" appears on the officer's MDT, the particular vehicle may not be insured, or it may actually be insured but not shown as such due to an error or due to a change in insurance carriers.
Unfortunately, the witnesses from the Department of Transportation could not answer the critical question posed by the Court of Appeals. There are no statistics available to show how often a vehicle is actually uninsured when AVIS displays the "verify proof of insurance coverage" message. Ms. Davis testified that AVIS has a 98% "match rate" but it appears that merely reflects the fact that, on any given day, AVIS will report that 98% of all registered vehicles have proof of insurance on file. It does not tell us how many of the 2% of vehicles are insured or uninsured. However, since each month there are 3,000 to 4,000 registrations cancelled for lack of proof of insurance, and on any given day as many as 20,000 vehicles with no proof of insurance on file in Frankfort, it would be reasonable to suspect that a vehicle being checked does not have insurance when AVIS displays "verify proof of insurance".
In the case before us, the officer was not acting upon a "hunch", but rather was relying upon the AVIS system. The AVIS system provides data to the officer which is far beyond a tip or a hunch. It is based upon objective data collected by the Department of Transportation. While the AVIS system does not guarantee in every case that the indication of "verify proof of insurance" is conclusive that the vehicle in question does not have insurance, it certainly provides an objective, articulable basis for suspecting that the vehicle may be uninsured. If the "verify proof of insurance" indication can be described as an ambiguity, Courts have held that such an ambiguity would not prevent the officer from forming a reasonable suspicion which would allow a temporary detention to clarify the ambiguity. Courts have recognized in such cases as Terry[] that the Fourth Amendment accepts the risk that innocent people may be temporary detained under such circumstances. Wardlow, supra, at pp. 125, 126,[] citing Terry v. Ohio, supra. In the case at hand, the officer testified that when the indication of "verify proof of insurance" appears on his computer, "more times than not" the vehicle turned out to be uninsured.(Underline original).
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000).
The trial court considered evidence presented at an April 1, 2011, suppression hearing and a February 6, 2015, supplemental hearing. The trial court concluded that AVIS was "sufficiently accurate and reliable so as to have provided Officer Hardcorn with objective and articulable facts to support a reasonable suspicion" that Willoughby was operating an uninsured motor vehicle. Considering the totality of the circumstances, including Officer Hardcorn's experience, the trial court found that the officer "had a reasonable, particularized and objective basis to conduct the investigatory stop in this case." The trial court again denied Willoughby's motion to suppress after concluding that the investigatory stop did not violate Willoughby's Fourth Amendment rights.
On appeal, Willoughby contends that the Commonwealth failed to prove that an AVIS indicator (that insurance verification is needed) is sufficient to give rise to probable cause or reasonable suspicion of criminal activity. Willoughby asserts that the impossibility of obtaining statistics regarding AVIS's ability to accurately indicate illegal conduct "should be enough" for this Court to reverse the trial court's denial of the suppression motion.
We disagree. In its direction on remand, this Court specifically declined "to announce a threshold value or percentage which, once crossed, would bestow 'reasonable and objective' status upon an officer's suspicions." It deferred instead to the discretion of the trial court to determine "whether, under these facts, AVIS was sufficiently accurate and reliable so as to raise an objectively reasonable suspicion of criminal conduct."
In Commonwealth v. Morgan, 248 S.W.3d 538, 540 (Ky. 2008), our Supreme Court explained that:
In order to uphold the protections of the Fourth Amendment, an officer conducting an investigatory stop must have a reasonable suspicion, based on objective and articulable facts, that criminal activity has occurred, is occurring, or is about to occur. Brown v. Texas, 443 U.S.
47, 51, 99 S.Ct. 2637, 2641, 61 L.Ed.2d 357 (1979); U.S. v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981); See Terry v. Ohio, 392 U.S. 1, 30-31, 88 S.Ct. 1868, 1885, 20 L.Ed.2d 889 (1968). To determine whether an officer had reasonable suspicion, a court must look at the totality of the circumstances surrounding the officer's decision to conduct an investigatory stop. U.S. v. Cortez, 449 U.S. at 417, 101 S.Ct. 690.
A reasonable suspicion does not require that the likelihood of criminal activity rise to the higher required for probable cause. Baker v. Commonwealth, 475 S.W.3d 633 (Ky. App. 2015). In analyzing the propriety of an officer's actions in such circumstances, "due weight must be given, not to his inchoate and unparticularized suspicion or 'hunch,' but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience." Terry, 392 U.S. at 27.
Our review of a trial court's denial of a suppression motion is two-fold:
First, we defer to the trial court's factual findings if they are supported by substantial evidence and only review such findings for clear error. RCr 9.78[]; Commonwealth v. Neal, 84 S.W.3d 920, 923 (Ky.App.2002). Second, when the findings of fact are supported by substantial evidence, we review the court's application of the law to those facts de novo. Roberson v. Commonwealth, 185 S.W.3d 634, 637 (Ky.2006). When undertaking that review we take care "to give due weight to inferences drawn from those facts by resident judges
and local law enforcement officers." Ornelas v. United States, 517 U.S. 690 at 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996).Bond v. Commonwealth, 453 S.W.3d 729, 732 (Ky. 2015).
Kentucky Rule of Criminal Procedure (RCr) 9.78 was repealed effective January 1, 2015, and reformulated under RCr 8.27; however, the standard of review of pretrial motions to suppress evidence remains unchanged. Maloney v. Commonwealth, 489 S.W.3d 235, 237 (Ky. 2016). --------
We conclude that the trial court's findings of fact are supported by substantial evidence and that the trial court correctly applied the law to those facts as it was directed by the remand order of this Court. The trial court properly considered the totality of the circumstances. It determined that Officer Hardcorn was entitled to rely on AVIS, which is based upon objective data collected by the Transportation Department. The trial court explained that although AVIS does not guarantee that the "verify proof of insurance" indicator is conclusive in every case, "it certainly provides an objective, articulable basis for suspecting that the vehicle may be uninsured." The trial court also considered Officer Hardcorn's testimony regarding his own experience - that when the "verify proof of insurance" appeared on his computer, "more times than not" the vehicle turned out to be uninsured. We have "consistently held that a law enforcement officer's testimony alone is enough to constitute 'substantial evidence.'" Johnson v. Commonwealth, 2013-SC-000787-MR, 2015 WL 3635292, at *3 (Ky. June 11, 2015). Thus, the court correctly concluded that Officer Hardcorn "had a reasonable, particularized and objective basis to conduct the investigatory stop in this case."
More troubling to this Court is an issue that we are not at liberty to adjudicate. We are bound by the law of the case to uphold what was determined in the previous appeal. Therefore, we are restricted solely to a review of the viability and reliability of AVIS in relation to the reasonable suspicion of a police officer to justify a stop. We have decided that issue in accord with the specific directive of another panel of this Court in its remand to the trial court.
However, at the threshold of invoking access to AVIS are the issues of why and when and under what circumstances may a police officer choose a license plate to run through the AVIS System. Is it sufficient to do it at random? Or based on a mere hunch? The insidious danger of using AVIS as a "rod and reel" in an evidentiary "fishing expedition" - in violation of Fourth Amendment principles - becomes readily apparent. Potentially any citizen - insured or uninsured, guilty or innocent - is put at immediate risk of being subjected "at random or on a hunch" to a traffic stop, which then morphs into a legitimate investigatory stop. This logic is the very reverse of the spirit of the Fourth Amendment. Thus, we must question the criteria (if indeed they exist) upon which an officer bases a decision at its inception to initiate an AVIS search.
This is an issue for another case and another day. But its specter lingers over a motoring citizenry as an omnipresent possibility of intrusion into that ever shrinking zone of a legitimate expectation of privacy.
We affirm the Kenton Circuit Court's March 2, 2015, Order and Judgment upon Remand. By separate Order, we deny Willoughby's motion asking this Court to take judicial notice of the previous appeal in this matter.
KRAMER, CHIEF JUDGE; CONCURS.
JONES, JUDGE; CONCURS IN RESULT ONLY. BRIEF FOR APPELLANT: Brandon Neil Jewell
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General Jeffrey A. Cross
Assistant Attorney General
Frankfort, Kentucky