Bolin v. Commonwealth, 2018-CA-000477-MR

• Decision Date: 08 November 2019
• Docket Number: NO. 2018-CA-000477-MR,2018-CA-000477-MR
• Citation: 592 S.W.3d 305
• Parties: Chad Everett BOLIN, Appellant v. COMMONWEALTH of Kentucky, Appellee
• Court: Kentucky Court of Appeals

592 S.W.3d 305

Chad Everett BOLIN, Appellant

v.COMMONWEALTH of Kentucky, Appellee

NO. 2018-CA-000477-MR

Court of Appeals of Kentucky.

NOVEMBER 8, 2019; 10:00 A.M.

BRIEF FOR APPELLANT: B. Scott West, Assistant Public Advocate, Frankfort, Kentucky.

BRIEF FOR APPELLEE: Andy Beshear, Attorney General, Lauren Massie, Assistant Attorney General, Frankfort, Kentucky.

BEFORE: COMBS, JONES, AND L. THOMPSON, JUDGES.

OPINION

JONES, JUDGE:

Appellant, Chad Bolin, pleaded guilty to first-degree possession of a controlled substance, possession of a firearm by a convicted felon, possession of drug paraphernalia, operating a motor vehicle on a suspended license, failure to maintain insurance, and driving under the influence. He appeals from the Henderson Circuit Court’s judgment of conviction and sentence, which was entered following Bolin’s conditional plea of guilty.¹ Bolin argues the trial court improperly denied his motion to suppress the evidence seized from the vehicle he was driving at the time he was stopped by law enforcement. Following review of the record and applicable law, we affirm the Henderson Circuit Court.

I. BACKGROUND

On August 29, 2017, Trooper Joseph Hensley of the Kentucky State Police pulled over a vehicle for expired registration. Bolin was driving the vehicle; the owner was in the passenger seat. During the stop, Trooper Hensley observed Bolin sweating profusely, shaking, and talking very quickly. He was also drinking from two bottles, one Mountain Dew, and one tea, in quick succession. Bolin said he was "extremely hot and thirsty." Trooper Hensley ran the Social Security number Bolin provided him through dispatch and discovered Bolin had a suspended driver’s license and unrelated warrants for his arrest.

Based on his observations of Bolin, Trooper Hensley also believed Bolin might have been driving the vehicle under the influence of drugs. He asked Bolin to step out of the vehicle to perform field sobriety tests. Bolin successfully completed the first test; however, Trooper Hensley noticed Bolin’s pupils were dilated, and his eyelids were "droopy." Trooper Hensley decided more tests were in order. Bolin showed no signs of intoxication on a second test but failed the final three tests. At this point, Trooper Hensley placed Bolin under arrest for driving under the influence and on the outstanding warrants. Trooper Hensley then asked Bolin whether he had recently used any drugs. Bolin responded by admitting that he had used methamphetamine prior to operating the vehicle. Trooper Hensley then asked Bolin if there was methamphetamine in the vehicle, to which Bolin replied there may be.

Following this exchange, Trooper Hensley contacted dispatch to send out the Henderson Police Department K-9 Unit. When the K-9 Unit arrived, the canine hit on the front driver’s seat. The vehicle was then searched. Officers discovered methamphetamine, drug paraphernalia, and a loaded firearm in the vehicle.

Bolin was indicted on charges of first-degree possession of a controlled substance, possession of a firearm by a convicted felon, possession of drug paraphernalia, operating a motor vehicle on a suspended license, failure to maintain insurance, and operating a motor vehicle under the influence. On January 31, 2018, Bolin moved to suppress the evidence obtained during the traffic stop. The trial court conducted a suppression hearing on February 13, 2018. Trooper Hensley was the only witness.² He testified it was his custom to give Miranda³ warnings, but he could not remember whether he had done so in this case.⁴ He further testified he had specialized "ARIDE"⁵ training allowing him to observe, identify, and articulate the signs of impairment related to drugs and/or alcohol. Based on Bolin’s demeanor and his physical characteristics during their initial interactions related to the traffic stop, Trooper Hensley believed Bolin had been operating the vehicle while under the influence of drugs.

The trial court sustained Bolin’s motion to suppress in part and denied it in part. It determined that Bolin’s statements to Trooper Hensley had to be suppressed because he made the statements in response to questioning while in custody, but without having first been given the mandatory Miranda warnings. The trial court, however, did not suppress the evidence from the search of the vehicle Bolin was driving. The trial court determined that even without the statements, there was probable cause for Trooper Hensley to believe the vehicle contained evidence related to the offense of arrest, DUI, inside the vehicle. Alternatively, the trial court determined Bolin lacked "standing" to object to the search because the vehicle’s owner was a passenger and did not object to its search.

Thereafter, Bolin entered a guilty plea conditioned on his right to appeal the trial court’s denial of his motion to suppress introduction of the evidence seized from the vehicle. This appeal followed.

II. STANDARD OF REVIEW

"The standard of review of a pretrial motion to suppress is twofold." Whitlow v. Commonwealth , 575 S.W.3d 663, 668 (Ky. 2019).

First, we review the trial court’s findings of fact under a clearly erroneous standard. Under this standard, the trial court’s findings of fact will be conclusive if they are supported by substantial evidence. We then conduct a de novo review of the trial court’s application of the law to the facts to determine whether its decision is correct as a matter of law.

Id. (quoting Simpson v. Commonwealth , 474 S.W.3d 544, 547 (Ky. 2015) ).

III. ANALYSIS

The Fourth Amendment of the United States Constitution, as applied to the states under the Fourteenth Amendment, and Section 10 of the Kentucky Constitution provide safeguards against unreasonable searches and seizures.⁶ "The basic purpose of [the Fourth] Amendment, as recognized in countless decisions of [the United States Supreme Court] is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials. The Fourth Amendment thus gives concrete expression to a right of the people which ‘is basic to a free society.’ " Singleton v. Commonwealth , 364 S.W.3d 97, 101 (Ky. 2012) (quoting Wolf v. Colorado , 338 U.S. 25, 27, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949), overruled on other grounds by Mapp v. Ohio , 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) ). Fourth Amendment jurisprudence is premised on "the basic rule that ‘searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.’ " Arizona v. Gant , 556 U.S. 332, 338, 129 S.Ct. 1710, 1716, 173 L.Ed.2d 485 (2009) (quoting Katz v. United States , 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (footnote omitted)). "One such exception is the automobile exception which permits an officer to search a legitimately stopped vehicle where probable cause exists that contraband or evidence of a crime may be in the vehicle." Morton v. Commonwealth , 232 S.W.3d 566, 569 (Ky. App. 2007). Additionally, in some instances, law enforcement may lawfully search a vehicle without a warrant incident to an occupant’s recent arrest. This right, however, is not unlimited. "[P]olice may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest." Owens v. Commonwealth , 291 S.W.3d 704, 708 (Ky. 2009) (quoting Gant , 556 U.S. at 351, 129 S.Ct. at 1723 ). With these principles in mind, we now turn to the parties' arguments relative to the search of the vehicle that occurred in this case.

Bolin asserts that the trial court erred when it denied his motion to suppress the evidence seized from the vehicle he was driving immediately prior to his arrest. Bolin maintains that because the trial court suppressed his statement to the arresting officer regarding his use of methamphetamine, the trial court should have likewise suppressed the evidence seized from the vehicle he was driving as fruits of the poisonous tree. The Commonwealth counters that even though the trial court decided the ultimate issue, this Court should affirm on the basis that Bolin did not have a reasonable expectation of privacy in the automobile at issue because his passenger, who was present, owned the vehicle and did not object to the search.⁷

"[P]roperty rights are not the sole measure of Fourth Amendment violations." Carpenter v. United States , ––– U.S. ––––, 138 S.Ct. 2206, 2213, 201 L.Ed.2d 507 (2018) (quoting Soldal v. Cook County , 506 U.S. 56, 64, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992) ). Instead of focusing on property ownership or the lack thereof, we engage in a multi-step analysis predicated on the expectation of privacy from governmental intrusion. "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." Id. (quoting Smith v. Maryland , 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220 (1979) ).

We must now consider whether Bolin had a legitimate expectation of privacy in the vehicle he was driving where the vehicle’s owner was riding with him as a passenger. To date, Kentucky’s appellate courts have not weighed in on this exact issue.⁸ But, we are not left without any guidance; the United States Supreme Court and our own appellate courts have considered other scenarios that assist in our analysis of the issue before us. We are also guided by decisions that are on point from several lower federal courts and other states' appellate courts.

We begin with Rakas , a 1978 opinion by the United States Supreme Court. The issue in Rakas was whether...