Lane v. Commonwealth, 110416 KYCA, 2015-CA-001698-MR

Docket Nº:2015-CA-001698-MR
Opinion Judge:CLAYTON, JUDGE.
Party Name:DAMION MONTRECE LANE APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
Attorney:BRIEF FOR APPELLANT: Linda Roberts Horsman Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Emily Bedelle Lucas Assistant Attorney General Frankfort, Kentucky
Judge Panel:BEFORE: CLAYTON, COMBS, AND MAZE, JUDGES.
Case Date:November 04, 2016
Court:Court of Appeals of Kentucky
 
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DAMION MONTRECE LANE APPELLANT

v.

COMMONWEALTH OF KENTUCKY APPELLEE

No. 2015-CA-001698-MR

Court of Appeals of Kentucky

November 4, 2016

APPEAL FROM CHRISTIAN CIRCUIT COURT HONORABLE JOHN L. ATKINS, JUDGE ACTION NO. 15-CR-00152

REVERSING AND REMANDING

BRIEF FOR APPELLANT: Linda Roberts Horsman Frankfort, Kentucky

BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Emily Bedelle Lucas Assistant Attorney General Frankfort, Kentucky

BEFORE: CLAYTON, COMBS, AND MAZE, JUDGES.

OPINION

CLAYTON, JUDGE.

Damion Montrece Lane ran a stop sign while driving his automobile and was stopped for the traffic violation. Officer Tim Merrick and his K9 unit were on scene. Officer Joshua Strauch also arrived on scene as the stop occurred and provided backup. It was late in the evening in Hopkinsville, Kentucky, and they were in a high-crime area. Both officers exited their vehicles and approached Lane's vehicle. They observed Lane looking back at them and fumbling around in the car while they approached. Officer Merrick approached the driver's side and Officer Strauch approached the passenger's side. Only Lane was in the vehicle. Fearing officer safety, Officer Strauch had Lane exit the vehicle. Officer Straugh placed handcuffs on Lane and moved him to the hood of one of the cruisers. He then performed a safety pat down on Lane. Nothing was found on Lane's person.

While that was occurring, Officer Merrick ran his K9 unit, Bowie, around the vehicle. Bowie alerted on the vehicle's driver's side. The officers searched the vehicle and found no evidence of contraband. One of the officers then conducted a more thorough search of Lane's person and located a small packet of a white, powder-like substance in his right watch pocket.

Lane ultimately entered a conditional guilty plea to one count of first-degree, first-offense possession of a controlled substance (cocaine), one count of tampering with physical evidence, and one count of disregarding a stop sign. He received concurrent sentences of imprisonment for three years, imprisonment for five years, and a twenty-dollar fine, respectively. His sentences were probated provided he serve 90 days in home incarceration. He now appeals the denial of his motion to suppress the evidence discovered during the traffic stop.

Lane claims his rights to be free from unreasonable searches and seizures under the Fourth Amendment to the United States Constitution and Section 10 of the Kentucky Constitution were violated. Suppression motions are governed by Kentucky Rules of Criminal Procedure ("RCr") 8.27. That rule has been interpreted to provide appellate review of a trial court's factual findings under the clearly erroneous standard, which allows the factual findings to be conclusive if they are supported by substantial evidence. Davis v. Commonwealth, 484 S.W.3d 288, 290 (Ky. 2016) (citing Simpson v. Commonwealth, 474 S.W.3d 544, 547 (Ky. 2015)). The trial court's legal conclusions are reviewed de novo. Id.

The trial court's docket sheet reflects its factual findings as follows:

Officer Merritt - Canine officer

2/27/15 observed driver fail to stop @ stop sign @

McHenry Lane moving around, looking backward @ officer "fumbling"

Made driver's side approach

One officer on each side. Proceeded to get him out of car (for safety?) Got dog out for free air sniff

Strauch mentioned waistband? ...

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