Boone v. Commonwealth
| Decision Date | 13 August 2021 |
| Docket Number | 2019-CA-0966-MR |
| Parties | KENNETH LAMONT BOONE, JR. APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE |
| Court | Kentucky Court of Appeals |
BRIEFS FOR APPELLANT:
A jury found Kenneth Lamont Boone, Jr. guilty of theft of identity and being a persistent felony offender in the first degree (PFO I). The jury recommended a one-year sentence, enhanced to ten years due to the PFO I conviction. After the Fayette Circuit Court sentenced Boone in accordance with the jury's recommendation, he filed this appeal challenging the trial court's decisions to deny his two suppression motions and to decline to give a requested lesser-included offense instruction. Boone also claims error regarding parole eligibility information given to the jury in the penalty phase. We affirm in part, reverse in part, and remand.
In April 2016, Boone was indicted for the felony offenses of possession of a controlled substance in the first degree, theft of identity, and being a PFO I, as well as the misdemeanor offense of operating on a suspended or revoked license and not having an illuminated rear license plate, a violation. All of those charges stemmed from a February 2016 traffic stop.
In early 2017, Boone filed his first motion to suppress, tersely asserting the traffic stop was improperly extended. The trial court held an evidentiary hearing at which the arresting officer, Detective Christopher Pope from the narcotics enforcement unit of the Lexington Police Department, was the sole witness. Detective Pope testified that he was conducting surveillance in an unmarked vehicle at a Walmart when he observed a black Tahoe and a white Trailblazer pull into the lot, whereupon people switched between the two vehicles without having visited any stores. His suspicions aroused, Detective Pope followed the white Trailblazer and pulled it over because its rear license plate was unilluminated.
Boone was driving the Trailblazer. Detective Pope knew the passenger, who had a criminal history, from previous investigations. Boone said he did not have identification, stated his license was suspended, stated his name was Daniel Wharton, and provided Wharton's birthdate. According to Detective Pope, Boone was breathing heavily, would not make eye contact, and appeared to be nervous (as did the passenger). Boone also told Detective Pope that the Trailblazer belonged to his (Wharton's) sister, but he did not know her last name. Detective Pope requested a canine unit roughly four minutes after initiating the stop.
While awaiting the canine unit, Detective Pope looked up the criminal history of Wharton and the passenger. Detective Pope then began handwriting a traffic citation but had to stop doing so at least twice to respond to questions from Boone about whether he was going to jail. Detective Pope was still working on the citation when the canine unit arrived, about nineteen minutes after being requested (about twenty-three minutes after the stop began).
Detective Pope assisted the canine unit officer in removing Boone and the passenger from the vehicle prior to the dog sniff. The dog alerted to the presence of drugs at the driver's side door. No drugs were found in the vehicle, so Detective Pope searched Boone and found cocaine in his pants pocket. Jail personnel ascertained that "Daniel Wharton" was really Kenneth Lamont Boone, Jr., which led to Boone being charged with theft of identity.
Following the conclusion of the hearing, the trial court permitted the parties to submit pleadings. The Commonwealth argued that the stop was not improperly extended or, alternatively, that there was reasonable suspicion to justify the dog sniff.
In February 2017, the trial court issued an order denying Boone's first motion to suppress. In relevant part, the court concluded the initial stop was justified since Boone's vehicle's rear license plate was not illuminated. The court then found the stop was not improperly extended by the canine sniff because there was no indication Detective Pope was dilatory in completing the citation, so the stop was not extended longer than necessary to complete its original purpose. The trial court did not address the Commonwealth's reasonable suspicion argument because it deemed the stop to have not been improperly extended.
A few months later, Boone filed a second motion to suppress, arguing the search of his person was improper. The trial court dutifully held a hearing on the second suppression motion at which Detective Pope reiterated much of his testimony from the first hearing and Timothy Moore, the canine officer whose dog alerted to the Trailblazer, testified about the dog sniff. Officer Moore testified that narcotics dogs are trained to alert for the odor of narcotics, which can linger after the narcotics themselves are no longer present, akin to how the smell of burned popcorn can be detected by humans after the popcorn has been removed. The trial court orally denied the motion, ruling that the dog's alert gave the police authority to search the driver under our decision in Morton v. Commonwealth, 232 S.W.3d 566 (Ky.App. 2007).
The drug possession charge was severed, and the remaining charges proceeded to a November 2018 jury trial. Boone unsuccessfully requested a jury instruction on the misdemeanor offense of giving a peace officer false identifying information as a lesser-included offense of theft of identity. The jury found Boone guilty of all charges submitted to it and recommended a PFO I-enhanced sentence of ten years' imprisonment, which was the statutory minimum. Boone later entered a conditional guilty plea to the possession of a controlled substance charge, reserving the right to appeal the denial of his motions to suppress. In May 2019, the trial court sentenced Boone to a total of ten years' imprisonment, after which he filed this appeal.
We begin with Boone's contention that the trial court erred by denying his motions to suppress. The scope of our review is familiar:
First, we review the trial court's findings of fact under the clearly erroneous standard. Under this standard, the trial court's findings of fact will be conclusive if they are supported by substantial evidence. Second, we review de novo the trial court's application of the law to the facts.
Rhoton v. Commonwealth, 610 S.W.3d 273, 275-76 (Ky. 2020) (footnotes and citations omitted).
The core of Boone's argument is that Detective Pope improperly increased the duration of the traffic stop because he diverted working on the citation to do other things including looking up the criminal history of Boone and his passenger, calling the canine unit, explaining the situation to Officer Moore upon his arrival, and assisting in removing Boone and his passenger from the vehicle prior to the dog sniff. The Commonwealth maintains that Detective Pope diligently worked on the citation and did not impermissibly extend the stop or, alternately, that he had reasonable articulable suspicion that criminal activity was afoot sufficient to justify the canine sniff.
Boone does not dispute that the vehicle's rear license plate was not illuminated, contrary to the requirements of Kentucky Revised Statute (KRS) 186.170(1). A failure to comply with KRS 186.170 is a violation under KRS 186.990(1). "[A]n officer who has probable cause to believe a civil traffic violation has occurred may stop a vehicle regardless of his or her subjective motivation in doing so." Wilson v. Commonwealth, 37 S.W.3d 745, 749 (Ky. 2001). Consequently, the initial traffic stop was proper.
Generally, "a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution's shield against unreasonable seizures." Rodriguez v. United States, 575 U.S. 348, 350, 135 S.Ct. 1609, 1612, 191 L.Ed.2d 492 (2015). Of course, an officer Id. at 355, 135 S.Ct. at 1615. In other words, "an officer cannot detain a vehicle's occupants beyond completion of the purpose of the initial traffic stop unless something happened during the stop to cause the officer to have a reasonable and articulable suspicion that criminal activity [is] afoot." Turley v. Commonwealth, 399 S.W.3d 412, 421 (Ky. 2013) (internal quotation marks and citations omitted).
We agree with Boone that the time which elapsed during his detention for a minor traffic violation appears to be excessive. However, rather than parse whether the delay constituted an unreasonable seizure, we affirm on the alternative ground that Detective Pope had reasonable suspicion to detain Boone and his passenger because Detective Pope suspected criminal activity was afoot based on additional observations he made before the stop and during his initial encounter with Boone and his passenger while investigating the traffic violation.[1]
A determination of whether an officer possessed reasonable suspicion is based upon "the totality of the circumstances[.]" Commonwealth v. Morgan, 248 S.W.3d 538, 540 (Ky. 2008). Although not readily susceptible to a precise, universal definition, "reasonable suspicion is more than an unparticularized suspicion or hunch[, ]" Bauder v. Commonwealth, 299 S.W.3d 588, 591 (Ky. 2009) (internal quotation marks and citation omitted),...
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