Baltimore v. Com., 2002-CA-002304-MR.
Decision Date | 31 October 2003 |
Docket Number | No. 2002-CA-002304-MR.,2002-CA-002304-MR. |
Citation | 119 S.W.3d 532 |
Parties | Robert Lee BALTIMORE, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
Court | Kentucky Court of Appeals |
Alicia A. Sneed, Lexington, KY, for appellant.
Albert B. Chandler III, Attorney General, Courtney J. Hightower, Assistant Attorney General, Frankfort, KY, for appellee.
Before EMBERTON, Chief Judge; McANULTY, Judge; HUDDLESTON, Senior Judge.1
Robert Lee Baltimore appeals from a Fayette Circuit Court judgment sentencing him to ten years' imprisonment on a conditional plea of guilty, pursuant to Kentucky Rules of Criminal Procedure (RCr) 8.09, to several counts of fraudulent use of a credit card and being a persistent felony offender in the first degree. Under the conditional guilty plea, Baltimore preserved his right to challenge the denial of his motion to suppress evidence seized by the police during an investigatory stop.
On April 30, 2002, Officer Sean Ray, one of seven members of the West Sector Special Assignment Unit of the Lexington Police Department, received information from Kelly Grandee that several of her credit cards had been stolen from her vehicle when it was broken into while her family was attending a movie the previous Sunday night. Grandee provided Officer Ray with documents of her account activity showing that the stolen credit cards had been used to purchase merchandise between April 28-29, 2002, at various locations including the K-Mart Store on Nicholasville Road, and two Wal-Mart Stores. Officer Ray contacted those stores and obtained surveillance videotapes of the illegal purchases, but he was unable to develop a specific identification of the black male suspect because of the poor quality of the videotapes.
On May 3, 2002, Mr. Baker, the loss prevention officer at the Nicholasville K-Mart Store, notified Officer Ray at approximately 4:00 p.m. that the same person who had purchased items at the store earlier using Ms. Grandee's credit card was at the store with a receipt seeking to receive a cash refund for return of the merchandise. The loss prevention officer videotaped the suspect's activities using a high quality recorder. When he was told that the store would not refund cash but could only provide a credit to Ms. Grandee's credit card account, the black male suspect decided to retain the merchandise and left on a bicycle before Officer Ray could arrive at the store. A few hours later at approximately 6:30 p.m., Officer Ray retrieved the videotape of this incident, which was of much better quality than the earlier videotapes.
When the rest of the officers in the unit arrived for duty that evening, they viewed the May 3rd K-Mart videotape and discussed the case. They decided to patrol the area surrounding K-Mart in search of the suspect. At approximately 10:10 p.m., Officers A. Cain and Brian Maynard saw a person fitting the description of the suspect riding a bicycle near Lowry Road. They stopped the person, who identified himself as Robert Baltimore, and Officer Maynard notified Officer Ray that they had stopped the potential suspect. When Officer Ray arrived, he asked for and received from Baltimore voluntary consent to search his person. Officer Ray found a marijuana cigarette in Baltimore's front shirt pocket and Officer Maynard recovered a K-Mart sales receipt from his wallet. The sales receipt dealt with the April purchase of merchandise and the attempted return of that merchandise to K-Mart earlier that day. Baltimore was then arrested for fraudulent use of a credit card and possession of marijuana.
On July 8, 2002, a Fayette County grand jury indicted Baltimore on four felony counts of fraudulent use of a credit card over $100.00,2 one misdemeanor count of fraudulent use of a credit card under $100.00,3 one count of criminal possession of a forged instrument in the second degree,4 one misdemeanor count of possession of marijuana,5 and being a persistent felony offender in the first degree (PFO I).6
On August 9, 2002, Baltimore's attorney orally requested a suppression hearing, which was followed by a written motion to suppress involving the stop and search of Baltimore on May 3rd. On September 19, 2002, the circuit court conducted a suppression hearing with Officers Ray and Maynard as the only witnesses. At the end of the hearing, the court denied the motion to suppress after orally making findings of fact and holding that the police action was supported by reasonable suspicion and probable cause.
Given the circuit court's ruling on the suppression motion, Baltimore decided to enter a conditional plea of guilty pursuant to an agreement with the Commonwealth to three felony counts of fraudulent use of a credit card, the one misdemeanor count of fraudulent use of a credit card, an amended count of criminal possession of a forged instrument in the third degree,7 and PFO I. The Commonwealth moved to dismiss one count of fraudulent use of a credit card and possession of marijuana. Under the plea agreement, the Commonwealth recommended sentences of two years on one count of fraudulent use of a credit card over $100.00 enhanced to ten years for being a PFO I, one year on each of the two remaining felony counts of fraudulent use of a credit card, twelve months in jail on each of both misdemeanor counts of criminal possession of a forged instrument in the third degree and fraudulent use of a credit card under $100.00, all to run concurrently for a total sentence of ten years. Baltimore reserved his right to appeal the circuit court's ruling on the suppression motion. On October 30, 2002, the circuit court entered a final judgment sentencing Baltimore to serve ten years' imprisonment consistent with the Commonwealth's recommendation. This appeal followed.
There are three types of interaction between police and citizens: consensual encounters, temporary detentions generally referred to as Terry8 stops, and arrests. The protection against search and seizure provided by the Fourth Amendment to the United States Constitution applies only to the latter two types. Generally, under the Fourth Amendment, an official seizure of a person must be supported by probable cause, even if no formal arrest of the person is made.9 However, there are various narrow exceptions based on the extent and type of intrusion of personal liberty and the government interest involved. In the seminal case of Terry v. Ohio,10 the Supreme Court held that a brief investigative stop, detention and frisk for weapons short of a traditional arrest based on reasonable suspicion does not violate the Fourth Amendment. Terry recognized that as an initial matter, there must be a "seizure" before the protections of the Fourth Amendment requiring the lesser standard of reasonable suspicion are triggered. A police officer may approach a person, identify himself as a police officer and ask a few questions without implicating the Fourth Amendment.11 A "seizure" occurs when the police detain an individual under circumstances where a reasonable person would feel that he or she is not at liberty to leave.12 Where a seizure has occurred, "if police have a reasonable suspicion grounded in specific and articulable facts, that a person they encounter was involved in or is wanted in connection with a completed felony," then they may make a Terry stop to investigate that suspicion.13 Evaluation of the legitimacy of an investigative stop involves a two-part analysis. First, whether there is a proper basis for the stop based on the police officer's awareness of specific and articulable facts giving rise to reasonable suspicion.14 Second, whether the degree of intrusion was reasonably related in scope to the justification for the stop.15
Meanwhile, Terry authorized only a limited pat-down search of the person for purposes of uncovering potential weapons regardless of probable cause.16 The purpose of the limited Terry search is not to discover evidence of a crime, but rather to allow the officer to pursue the investigation without fear of violence or physical harm.17 A warrantless search more extensive or intrusive than a pat-down for weapons is illegal unless it is supported by probable cause or one of the other exceptions such as consensual search, a plain view search, a search incident to an arrest, a search based on exigent circumstances or an inventory search.18 Probable cause involves whether the known facts provide reasonable grounds or a fair probability that a circumstance exists supported by less than prima facie proof but more than mere suspicion.19 Probable cause for a search exists when the facts are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found.20 Similarly, probable cause for arrest involves reasonable grounds for the belief that the suspect has committed, is committing, or is about to commit an offense.21 The standard for reasonable suspicion is less demanding than the grounds necessary for probable cause.22 "Although an officer's reliance on a mere `hunch' is insufficient to justify a stop, the likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard."23
Both the reasonable suspicion and probable cause objective standards are flexible concepts to be applied in a commonsense manner based on the totality of the circumstances in each case.24 In determining the totality of the circumstances, a reviewing court should not view the factors relied upon by the police officer(s) to create reasonable suspicion in isolation but must consider all of the officer(s) observations and give due regard to inferences and deductions drawn by them from their experience and training.25
Kentucky has adopted the standard of review set out by the United States Supreme Court in Ornelas v. United States.26 Under that approach, the decision of the circuit...
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