Blair v. Commonwealth, No. 2005-CA-002017-MR (Ky. App. 6/15/2007)

• Decision Date: 15 June 2007
• Docket Number: No. 2005-CA-002017-MR.,2005-CA-002017-MR.
• Parties: Gregory Kerry BLAIR, Appellant v. COMMONWEALTH of Kentucky, Appellee.
• Court: Kentucky Court of Appeals

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Gregory Kerry BLAIR, Appellant v. COMMONWEALTH of Kentucky, Appellee.

No. 2005-CA-002017-MR.

Court of Appeals Kentucky.

June 15, 2007.

Appeal from Fayette Circuit Court Honorable Thomas L. Clark, Judge, Action No. 05-CR-00315.

Richard Hoffman, Cincinatti, Ohio, Jared Squires, Lexington, Kentucky, Briefs for Appellant.

Jared Squires, Lexington, Kentucky, Oral Argument for Appellant.

Gregory D. Stumbo, Attorney General, Louis F. Mathias, Jr. Assistant Attorney General, Frankfort, Kentucky, Brief for Appellee.

Louis F. Mathias, Jr., Assistant Attorney General, Frankfort, Kentucky, Oral Argument for Appellee.

Before: NICKELL and TAYLOR, Judges; PAISLEY,¹ Senior Judge.

OPINION

NICKELL, Judge:

Gregory Kerry Blair (Greg) entered a conditional guilty plea pursuant to Kentucky Rules of Criminal Procedure (RCr) 8.09 in the Fayette Circuit Court to the amended charges² of possession of a controlled substance in the first degree³ and persistent felony offender in the first degree (PFO I)⁴ and received a sentence of ten years' imprisonment. Within the guilty plea, Greg reserved the right to appeal the circuit court's denial of his motion to suppress evidence. It is from this denial that he appeals to this Court. For the following reasons, we affirm.

On January 14, 2005, officers from the Lexington Metro Police Department were patrolling an area⁵ of Lexington due to citizen complaints of loitering and drug activity. The area is known to the police department as a high crime area, as well as an area known for drug activity.⁶ Officers in the area were in both marked and unmarked patrol cars. At approximately 10:00 p.m., Officer Matthew Greathouse observed two persons acting suspiciously in the Hedgewood Court area, and noted that one of the two turned and walked away when he noticed the officer's patrol car. A few moments later Officer Greathouse saw the same two individuals on Osage Court and radioed for an unmarked vehicle to come to the scene to assist him in his observation of the subjects. Officer Dean Hammond and Officer K. Huddleston arrived in the area in their unmarked cruiser and observed the two subjects exiting a residence. One of the subjects, later identified as Greg, got into a white vehicle and drove away from the area. Officer Hammond and Officer Huddleston determined that they should follow the subject vehicle for further observation while Officer Greathouse remained on Osage Court to continue his observation.

The trailing officers noticed that the white vehicle had an expired registration plate and that the driver failed to give a turn signal when making a left turn. After approximately three-quarters of a mile, the white vehicle made a turn onto a dead-end street. The officers decided to attempt a traffic stop based upon the aforementioned violations and placed a "light bar" on the dashboard of their cruiser. Before the officers could activate their emergency equipment, the white vehicle pulled to the side of the road and the driver got out, leaving the driver's side door ajar, and began to move away from the officers.⁷ The officers exited their vehicle to pursue the driver. According to their testimony, the officers had their badges hanging on chains around their necks and were wearing Lexington Police ball caps. A foot chase ensued,⁸ wherein the officers repeatedly identified themselves and ordered Greg to stop. During the pursuit, Officer Huddleston observed Greg drop an unknown item⁹ near a vehicle parked on the street.

At one point, Officer Huddleston had a grip on Greg's sweatshirt, but Greg was able to wrestle free and continue to run. He changed his course and began to run directly toward a dimly-lit yet highly-traveled roadway. This change of course caused Greg to run directly past Officer Hammond who identified himself as a police officer and again ordered him to stop. Greg continued to run down the middle of the road, with both officers in pursuit. Officer Hammond drew his Taser X26¹⁰ (taser) and deployed it into Greg's back. Greg fell to the ground, sustaining minor injuries in the fall. Officer Hammond testified that Greg continued to struggle and was non-compliant, so a second blast from the taser was administered,¹¹ at which time the officers were able to take Greg into custody.

Greg was placed under arrest for the expired registration plate,¹² resisting arrest,¹³ and operating a motor vehicle on a suspended license.¹⁴ The officers thereupon conducted a search of Greg incident to that arrest, finding 7.2 grams of crack cocaine, a cellular telephone, 12 empty plastic baggies, and $147.00 in U.S. currency, in addition to the digital scales which Greg dropped during the pursuit. Based upon these findings, Greg was indicted by a Fayette County grand jury for trafficking in a controlled substance in the first degree,¹⁵ resisting arrest, operating a motor vehicle on suspended operator's license, no/expired registration plates, and PFO I.

On June 2, 2005, Greg filed a motion to suppress the evidence seized from him on the grounds that the police had only reasonable suspicion to conduct a Terry¹⁶ stop, and that the search and seizure were unreasonable. A hearing was held on the motion on June 22, 2005, wherein Officer Greathouse and Officer Hammond testified, as did Greg. All three testified as to their actions on the night of the arrest. At the conclusion of the hearing, the circuit court ordered the parties to submit briefs supporting their positions prior to its issuing a ruling. On July 29, 2005, the circuit court verbally overruled the suppression motion during a status hearing, stating its reasoning on the record. No written findings were entered and Greg did not object thereto. The trial court's written order was entered on August 2, 2005.

On August 26, 2005, Greg entered a conditional guilty plea to the amended charges of possession of controlled substance in the first degree, and PFO I, reserving the right to appeal the denial of his suppression motion. On September 28, 2005, Greg was sentenced, pursuant to the Commonwealth's recommendation, to five years on the possession charge, enhanced to ten years by the PFO I charge. The following day, Greg entered his notice of appeal on the sole issue of the denial of his suppression motion.

The standard for our review is set forth in Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). Under that decision, the determination of a circuit court regarding a suppression motion based on an alleged illegal search is subject to a two-pronged analysis. First, historical facts should be reviewed for clear error, and the facts are deemed to be conclusive if supported by substantial evidence. Second, determinations of reasonable suspicion and probable cause are mixed questions of law and fact and are therefore subject to de novo review. See also Baltimore v. Commonwealth, 119 S.W.3d 532, 539 (Ky.App. 2003). Furthermore, we are bound to give "due weight to inferences drawn from those facts by resident judges and local law enforcement officers." Ornelas, 517 U.S. at 699.

In the case at bar, Greg contends the circuit court erred in denying his suppression motion because his interaction with the police officers was in violation of the Fourth Amendment¹⁷ search and seizure provisions and the guidance set forth in Terry, arguing the officers utilized excessive force in effectuating his arrest for the crimes he allegedly committed. Pursuant to Ornelas, we shall first address the historical facts for clear error and then consider the circuit court's determination of reasonable suspicion and probable cause. Furthermore, as Greg has alleged the use of excessive force in effectuating his search and seizure, we must also look at the officers' actions in view of the Fourth Amendment's "reasonableness" standard elucidated in Graham v. Conner, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989).¹⁸

The historical facts are relatively simple and were presented at the suppression hearing through the testimony of the defendant and officers involved in the underlying arrest. The date, time, and location of the incident are undisputed and are therefore conclusive. The testimony reveals the officers were following Greg's vehicle in an unmarked cruiser and they did not activate their emergency equipment at any time during the encounter. Officer Greathouse's observations precipitating Officer Hammond's and Officer Huddleston's arrival on-scene were never challenged during the hearing and are thus not in issue. Likewise, there is no dispute a foot chase occurred prior to Greg's arrest.

Greg does dispute whether he was made aware that the two men following him were, in fact, police officers. Conflicting testimony was given as to whether the officers' identification was plainly visible. Further conflicting testimony was elicited regarding whether the officers informed Greg of their identity as police officers when ordering him to stop running. Greg also alleged he did not fail to signal a left-hand turn and denied the officers were ever in a position to identify his license plates as being expired, contrary to the testimony given by Officer Hammond. Finally, contrary to the testimony of Officer Hammond that Greg had broken free from the grip of Officer Huddleston, Greg testified that neither of the officers had laid hold of him until after he was lying on the ground.¹⁹

In reviewing the record, we find that the circuit court took all of the evidence into account, including the supplemental briefs presented by the parties, prior to making a decision. The rule in Kentucky is that if substantial evidence appears in the record to support the circuit court's findings, even if there is conflicting evidence, the decision will not be disturbed on appeal. Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003); Kentucky Rules of Civil Procedure (CR) 52.01. Moreover, "judging the credibility of witnesses and weighing evidence are tasks within...