Clark v. Com.

• Decision Date: 03 September 1993
• Docket Number: 92-CA-000449-MR,Nos. 91-CA-001889-M,s. 91-CA-001889-M
• Citation: 868 S.W.2d 101
• Parties: Phillip A. CLARK Appellant, v. COMMONWEALTH of Kentucky, Appellee, and Clifford G. NUTTER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: Kentucky Court of Appeals

Page 101

868 S.W.2d 101

Phillip A. CLARK Appellant, v. COMMONWEALTH of Kentucky, Appellee, and Clifford G. NUTTER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Nos. 91-CA-001889-MR, 92-CA-000449-MR.

Court of Appeals of Kentucky.

Sept. 3, 1993.

Discretionary Review Denied

by Supreme Court Feb. 16, 1994.

Mark A. Posnansky, Appellate Public Advocate, Louisville, for appellant/Phillip A. Clark.

Barbara F. Anderson, Adele Burt Brown, Appellate Public Advocate, Lexington, for appellant/Clifford G. Nutter.

Chris Gorman, Atty. Gen., Todd D. Ferguson, Asst. Atty. Gen., Frankfort, Michael L. Harned, Asst. Atty. Gen., Frankfort, for appellee.

Before EMBERTON, SCHRODER and STUMBO, JJ.

STUMBO, Judge:

These appeals arise from judgments of conviction of Appellant, Phillip A. Clark (hereinafter "Clark") in 91-CA-001889-MR, and Appellant, Clifford A. Nutter (hereinafter "Nutter"), in 92-CA-000449-MR. The principal issue concerns the decision of the Mason Circuit Court not to suppress certain evidence. We have reviewed the record and the law, and we must reverse.

As a preliminary note, the question of whether either Clark or Nutter have "standing" to challenge the search has been raised. However, the trial court made no determination of the issue; therefore, we will not consider it. If the Commonwealth wanted to make standing an issue, it should have secured a ruling from the trial court. See e.g Our starting point must be the trial court's findings of fact and conclusions of law regarding Clark's and Nutter's motions to suppress the items obtained. In reviewing this issue, we must analyze the findings made by the trial court regarding the motions to suppress. The factual findings of the trial court shall be conclusive if supported by substantial evidence. RCr 9.78. Clark and Nutter have the burden to show that the trial court's ruling was clearly erroneous. Harper v. Commonwealth, Ky., 694 S.W.2d 665, 668 (1985). The trial court found as follows:

United States v. Cotton, 751 F.2d 1146, 1148 (10th Cir.1985); see also Helm v. Commonwealth, Ky., 813 S.W.2d 816, 818 n. 1 (1991), which also declined to reach a standing issue where the record was not complete as to that issue.

FINDINGS OF FACT

1. On the 8th day of January, 1991, Trooper Keith Taylor of the Kentucky State Police observed a 1988 Ford automobile traveling along the highway at a speed clocked by him as 76 miles per hour in a 55 mile per hour zone.

2. Trooper Taylor stopped the vehicle which was being operated by defendant Nutter with defendant Clark a passenger.

3. The driver did not have a valid driver's license, but did have a learner's permit which was valid only when a licensed driver was a passenger in the car. The passenger had no driver's license, his license having been suspended.

4. Trooper Taylor arrested Nutter and made arrangements for defendant Clark to be returned to Maysville, Kentucky.

5. During the arrest of Nutter, the trooper saw several unopened packages in plain view in the rear seat which were addressed to people other than either defendant.

6. According to defendant Nutter, the vehicle belonged to his wife, Patricia Nutter.

7. The automobile was stopped because of a substantial violation of the traffic laws, and not as a pretext in order to search the vehicle.

8. Both defendants were nonresidents of the County, and the arrest of the defendant was proper. It would not have been proper for the trooper to allow the defendant Nutter to drive the car away without a license.

9. In view of the fact that neither of the occupants of the car could legally drive it away, proper police procedure would have required that the car be inventoried.

CONCLUSIONS OF LAW

1. A warrantless search of an automobile stopped by police officers who had probable cause to believe the vehicle contained contraband is not unreasonable. Carroll v. United States, 267 US 132, 69 LEd. 543, 45 S.Ct. 280.

2. Police officers who have legitimately stopped an automobile and who have probable cause to believe that contraband is concealed somewhere within it may conduct a search that is as thorough as a magistrate could authorize in a warrant. United States v. [Rose] [sic], 456 US 798, 72 LEd. [2d] 572, 102 S.Ct. 2157 [ (1982) ].

3. The reasonable expectation of privacy is a particular relevant factor in determining the validity of any warrantless search. In regard to automobiles, the expectation of privacy is limited because of the nature of the unit. Estep v. Commonwealth, Ky. 663 SW2d 213.

4. A routine inventory search does not violate the Fourth Amendment prohibition against unreasonable search and seizures. South Dakota v. Opperman, 428 US 364, 49 LEd.2d 1000, 96 S.Ct. 3092.

Then, the trial court entered its order denying the motions to suppress, since it determined that the search and seizure was proper. The trial court apparently concluded that the search could be justified under the "automobile" or inventory search exceptions to the warrant requirement of Sec. 10, and the diminished expectation of privacy in an automobile. None of the trial court's conclusions explain in any way how they are supported by the factual findings, nor is there even a conclusion that probable cause existed.

Since the main issue presented concerns the validity of the search and seizure, we must present a detailed summary of the facts. The testimony presented at the preliminary hearing and the suppression hearing establishes that the genesis of these appeals was a traffic stop near the Mason-Fleming County line for speeding (76 m.p.h. in a 55 m.p.h. zone) of the vehicle driven by Nutter, in which Clark was a passenger. We note that Nutter and Clark were travelling toward Fleming County. The automobile, a four-door Ford Tempo, was registered in Fayette County to Patricia Nutter. The Kentucky State Police trooper who made the stop requested that Nutter provide his operator's license. However, Nutter only had a valid learner's permit, and Clark had no identification at all. Therefore, the trooper obtained Clark's full name, his social security number, and his date of birth in order to check on Clark's license. The trooper was informed by his dispatcher that Clark did not have a valid license, since his Ohio license had been transferred to Kentucky, but was suspended. As a result, the trooper had Nutter exit the Tempo, and when Nutter was at the left rear of the car placed him under arrest. He then searched Nutter's person, handcuffed him, and placed him in the police cruiser. Next, the trooper asked Clark where he was headed. After Clark indicated that he desired to return to Maysville, the trooper arranged for a Mason County deputy sheriff to transport him. At that time, the trooper did not believe he had any basis to hold Clark. Some time passed, perhaps as much as forty minutes, before the deputy arrived. Prior to allowing Clark to leave with the deputy, the trooper executed a "protective" search of Clark.

After Clark departed, the trooper searched the Tempo. A review of the record does not clearly establish why the trooper thought he was authorized to search the vehicle, which causes us to question the trial court's seventh and eighth findings. While it is correct that the initial traffic stop was not a pretext to search, we have serious questions about whether the trooper's decision to arrest Nutter for a traffic violation was a pretext to attempt to justify a search of the car. We have a similar problem with the trial court's findings about the trooper not letting Nutter drive the vehicle away. It is again correct, but incomplete. The record does not foreclose the conclusion that Nutter could have made alternate legal arrangements to move the automobile, which might particularly include contacting his wife, Patricia. Thus, findings seven and eight may serve more to conceal than reveal the true situation.

In fact, the trooper offered several comments as to why he decided to search. At one point, the trooper indicated that he thought he could search the car incident to the arrest. However, it also appears that the search may have been made based upon the information then available to him (i.e., probable cause). The evidence available to the trooper included the nervousness of Clark and Nutter, although the trooper conceded that many people are nervous whenever they are stopped by the police. Additionally, visible in the back seat, on the left side, was a big, round cardboard box labeled "Sears & Roebuck Co., Bluegrass Shopping Center, Maysville, Kentucky," with a person's name on it which was neither Clark's nor Nutter's. We note that there were other items in the back seat, including a VCR under a Sears diehard battery in an open box on the floor, on the right, and a large comforter set on either the floor or the middle of the back seat, but the trooper never stated that the items garnered his attention before he started to search. As a result, the trial court's fifth finding about several packages being in plain view is not supported by substantial evidence. Finally, there was the absence of any receipts on Clark or Nutter for any items from Sears. The trooper also indicated at one time that he could search the vehicle, because the big, round cardboard box with a name other than Clark's or Nutter's was in plain view. ¹ Finally, we note that the trooper never articulated that the purpose of the search and seizure was for an inventory of the vehicle, although at one point the trooper made a comment about "safekeeping" the items. Nor is there any indication in the record that the Tempo was in a position to pose any risk to other vehicles, nor parked in violation of any law. In fact, there is some indication that Patricia Nutter would have come from Lexington and picked up the Tempo. Moreover, there is not one single reference in the record to any police procedures regarding impoundment and inventory. As a result, the trial court's finding to that effect is not...