Bembury v. Commonwealth, 2020-CA-1429-MR

CourtCourt of Appeals of Kentucky
Writing for the CourtCLAYTON, CHIEF JUDGE
PartiesWILLIAM BEMBURY APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
Docket Number2020-CA-1429-MR
Decision Date10 December 2021

WILLIAM BEMBURY APPELLANT
v.

COMMONWEALTH OF KENTUCKY APPELLEE

No. 2020-CA-1429-MR

Court of Appeals of Kentucky

December 10, 2021


NOT TO BE PUBLISHED

APPEAL FROM FAYETTE CIRCUIT COURT HONORABLE LUCY ANNE VANMETER, JUDGE ACTION NO. 19-CR-01326

BRIEFS FOR APPELLANT:

Aaron Reed Baker

Frankfort, Kentucky

BRIEF FOR APPELLEE:

Daniel Cameron

Attorney General of Kentucky

Matthew R. Krygiel

Assistant Attorney General

Frankfort, Kentucky

BEFORE: CLAYTON, CHIEF JUDGE; TAYLOR AND L. THOMPSON, JUDGES.

OPINION

CLAYTON, CHIEF JUDGE

William Bembury appeals from a Fayette Circuit Court judgment following his plea of guilty to one count of possession of synthetic drugs. The plea was conditioned on his right to appeal the denial of his motion to suppress the evidence underlying his conviction. Having reviewed the record and the applicable law, we reverse.

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At the suppression hearing, Lexington police officer Adam Ray, a member of a bicycle unit that patrols the entertainment district in downtown Lexington, testified that he knew Bembury because he saw him at least once a week while patrolling. Officer Ray had received complaints from security staff at the Lexington Public Library that Bembury was trafficking in synthetic marijuana and he had also received information from individuals caught with synthetic marijuana that they had purchased it from Bembury.

At around 6:00 p.m. on a summer evening, Ray and a fellow officer observed a man, identified as Joseph Napier, approach Bembury on the sidewalk outside the courthouse on Main Street. Bembury and Napier walked together to an open courtyard outside a nearby bank building and sat at a table. The officers followed the two men. Officer Ray rode his bike to the upper level of a parking garage where he had an unobstructed view of Bembury and Napier from above. He saw Napier hand Bembury some cash but he could not see the amount. Bembury placed the cash in his backpack. Officer Ray then saw Bembury remove a small piece of white paper and an unknown substance from the backpack. Bembury sprinkled the substance onto the paper, which he then rolled and licked into a cigarette and handed to Napier.

As Napier walked away from the courtyard, the police officers stopped and questioned him. He handed the officers the cigarette and told them he

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paid Bembury about $5 for it. Officer Ray testified that, based on his training and experience, he was confident the cigarette contained synthetic marijuana.

Officer Ray returned to the courtyard, where Bembury was still sitting with the backpack on the table. He arrested Bembury for trafficking in synthetic drugs and placed his hands in handcuffs behind his back. Officer Ray conducted a cursory search of the backpack but did not find any contraband. He began completing the arrest paperwork and the backpack remained on the table in front of Bembury. The other police officer then joined him and conducted a more thorough search of the backpack. He found $7 in one-dollar bills, cigarette rolling papers, and a baggie of what appeared to be synthetic marijuana about the size of a golf ball. A lab test later confirmed it was synthetic marijuana. According to Officer Ray, the police kept the cash, rolling papers, and marijuana recovered from the backpack. Ray testified that the backpack was probably returned to Bembury before he was booked into the detention center. Officer Ray did not know if an inventory of the backpack was performed.

Bembury was indicted and charged with trafficking in synthetic drugs, first offense, and being a persistent felony offender in the first degree (PFO I). He filed a motion to suppress the evidence seized from his backpack. Following a hearing and the submission of supplemental memoranda, the trial court entered an order denying the motion. Bembury thereafter entered a plea of guilty to an

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amended charge of possession of synthetic drugs, second offense, conditioned on his right to appeal the denial of the suppression motion. The PFO I charge was dismissed. He received a sentence of two years and one day. This appeal followed.

Our standard when reviewing a trial court's denial of a motion to suppress "requires that we first determine whether the trial court's findings of fact are supported by substantial evidence. If they are, then they are conclusive. Based on those findings of fact, we must then conduct a de novo review of the trial court's application of the law to those facts to determine whether its decision is correct as a matter of law." Commonwealth v. Neal, 84 S.W.3d 920, 923 (Ky. App. 2002) (footnotes omitted).

The Fourth Amendment to the United States Constitution and Section 10 of the Kentucky Constitution guarantee the right to be free from unreasonable governmental searches and seizures. Lydon v. Commonwealth, 490 S.W.3d 699, 701-02 (Ky. App. 2016). "When an individual 'seeks to preserve something as private,' and his expectation of privacy is 'one that society is prepared to recognize as reasonable,' we have held that official intrusion into that private sphere generally qualifies as a search and requires a warrant supported by probable cause." Bolin v. Commonwealth, 592 S.W.3d 305, 310-11 (Ky. App. 2019) (quoting Carpenter v. United States, __ U.S. __, 138 S.Ct. 2206, 2213, 201 L.Ed.2d 507 (2018)).

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Warrantless searches are presumed unreasonable, "subject only to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). In denying Bembury's suppression motion, the trial court relied on the exception to the warrant requirement available for searches incident to a lawful arrest. Bembury does not challenge the lawfulness of his arrest.

There are two distinct types of warrantless searches which may be made incident to arrest: (1) a search of the person of the arrestee, and (2) a search of the area within the control of the arrestee. United States v. Robinson, 414 U.S. 218, 224, 94 S.Ct. 467, 471, 38 L.Ed.2d 427 (1973).

For purposes of the second type of search, the United States Supreme Court has delineated what constitutes the "area within the control of the arrestee." In a series of opinions, it has addressed the permissible bounds of a search of an arrestee's residence, see Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), and vehicle, see New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), and Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009).

This type of warrantless search is justified on the grounds of protecting the arresting officers and safeguarding any evidence of the offense an arrestee might conceal or destroy. Gant, 556 U.S. at 339, 129 S.Ct. at 1716.

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Consequently, the search must be confined to "the area from within which [an arrestee] might gain possession of a weapon or destructible evidence." Id. at 335, 129 S.Ct. at 1714 (quoting Chimel, 395 U.S. at 763, 89 S.Ct. at 2040). Additionally, in Gant, the Court created an independent exception for a warrantless search of a vehicle's passenger compartment which applies when it is "reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.'" Id. at 343, 129 S.Ct. at 1719 (citation omitted).

The warrantless search of Bembury's backpack cannot be upheld as a...

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