Com. v. Jones

• Decision Date: 22 November 2006
• Docket Number: No. 2004-SC-001017-DG.,2004-SC-001017-DG.
• Citation: 217 S.W.3d 190
• Parties: COMMONWEALTH OF KENTUCKY, Appellant, v. Charles JONES, Appellee.
• Court: United States State Supreme Court — District of Kentucky

217 S.W.3d 190

COMMONWEALTH OF KENTUCKY, Appellant, v. Charles JONES, Appellee.

No. 2004-SC-001017-DG.

Supreme Court of Kentucky.

November 22, 2006.

As Corrected December 1, 2006.

Rehearing Denied April 19, 2007.

Gregory D. Stumbo, Esq., Attorney General of Kentucky, Michael L. Harned, Esq., Assistant Attorney General, Office of Criminal Appeals, Frankfort, Counsel for Appellant.

Shannon Dupree, Esq., Assistant Public Advocate, Department of Public Advocacy, Euva D. May, Assistant Public Advocate, Appellate Division, Department of Public Advocacy, Frankfort, Counsel for Appellee.

Opinion of the Court by Justice MINTON.

We granted the Commonwealth of Kentucky's motion for discretionary review of the Court of Appeals's decision, which held that a pat-down search of Charles Jones exceeded the proper bounds of the "plain feel" exception to the Fourth Amendment's warrant requirement. Because the incriminating nature of the contents of a pill bottle produced from Jones's pants pocket was not apparent until the pill bottle was removed from the pocket, we agree and, thus, affirm.

I. FACTS & PROCEDURAL HISTORY.

Officer John Teagle arrested Jones and charged him with first-degree possession of a controlled substance, tampering with physical evidence, and resisting arrest. Jones filed a pretrial motion to suppress the evidence seized by Teagle before the arrest contending that the search and seizure did not fall within the plain feel exception. At the suppression hearing, both the Commonwealth and Jones acquiesced in the trial court's suggestion that there was no need to call Teagle as a live witness because his testimony would be in accordance with his written report. So the only facts in the record simply derive from this report.

According to the report, Teagle went to Jones's residence to serve an emergency protective order (EPO) on Jones. When he arrived, he saw a man leaning into the driver's side window of a vehicle. The man walked away when he noticed Teagle. Teagle asked him to stop and to approach. He ignored Teagle's request, kept walking away, and attempted to enter Jones's residence. Teagle put his hand on the door of the residence to keep it from closing. The man then returned to the front porch and, when asked, identified himself as Charles Jones. Teagle then informed Jones that he was there to serve an EPO on him, at which time Teagle noticed a bulge in Jones's right front pants pocket. Teagle asked Jones what was in the pocket and Jones replied, "nothing." Because the EPO stated that Jones had assaulted his wife with a handgun, Teagle made a protective pat down of Jones. The bulge felt like a prescription medicine bottle. Teagle then "asked" Jones to remove it from the pocket, and Jones reluctantly did so. When Teagle asked Jones to see the bottle, Jones stepped off the porch; opened the bottle; and flung its contents, which turned out to be Oxycontin pills, into a nearby ditch. After a struggle, Teagle arrested Jones.

At the suppression hearing, after reading Teagle's report into the record and making comments about the facts of the case against Jones, as well as other reported plain feel cases, the trial court announced that Jones's motion to suppress was denied. Neither side called witnesses nor made oral argument. More importantly, a close review of the videotape of the suppression hearing reveals that although the trial court spoke about plain feel and about Jones's case for over thirty minutes, the trial court never made any findings to support its denial of Jones's motion. And the trial court did not later issue a written order containing findings.

After his motion to suppress was denied, Jones entered a conditional guilty plea to all of the charges against him. Jones was ultimately sentenced to a maximum of one year in prison each for the possession of a controlled substance charge and the tampering with physical evidence charge, and to twelve months for the resisting arrest charge. The possession of a controlled substance sentence and the tampering with physical evidence sentences were ordered to be served consecutively with each other but concurrently with the resisting arrest sentence, for a total effective sentence of a maximum of two years' imprisonment. Additionally, that two-year sentence was ordered to be served consecutively to a one-year sentence Jones received for an unrelated offense. Jones then appealed to the Court of Appeals contending that the trial court erred by denying his motion to suppress.

A divided panel of the Court of Appeals reversed. The majority found that Teagle acted properly when he conducted a pat down of Jones because the EPO stated that Jones had used a handgun against his wife. But the majority concluded that because it was not immediately apparent that the pill bottle in Jones's pocket contained contraband, Teagle exceeded the permissible scope of a Terry¹ stop and frisk when he ordered Jones to remove the pill bottle from his pocket. The dissent opined that Teagle's search of Jones was a valid warrantless search under the totality of the circumstances. Despite the fact that the issue of whether Jones consented to the search was neither argued nor ruled upon by the trial court,² the dissent also concluded that the warrantless search of Jones was proper because Jones had consented to the search by virtue of having assented to Teagle's request to remove the bottle from his pocket. We granted the Commonwealth's motion for discretionary review.

II. ANALYSIS.

The Commonwealth argues before this Court that (a) the totality of the circumstances provided Teagle probable cause to believe that the pill bottle contained contraband, even though Teagle could not readily ascertain that fact by touch alone; or, in the alternative, (b) the warrantless search was valid because Jones consented to it. We disagree with the Commonwealth's first argument, and we find that the second argument has not been preserved for our review.

A. Standard of Review.

Motions to suppress are governed by Kentucky Rules of Criminal Procedure (RCr) 9.78. That rule provides that a court facing a motion to suppress "shall conduct an evidentiary hearing outside the presence of the jury and at the conclusion thereof shall enter into the record findings resolving the essential issues of fact raised by the motion or objection and necessary to support the ruling." When reviewing an order that decides a motion to suppress, the trial court's findings of fact are "conclusive" if they are "supported by substantial evidence."³ Using those facts, the reviewing court then conducts a de novo review of the trial court's application of the law to those facts to determine whether the decision is correct as a matter of law.⁴

The truncated suppression hearing in this case hampers our review. Although not mentioned by the parties or the Court of Appeals, our review of the suppression hearing revealed a dearth of evidence presented about the search. There were no live witnesses called and no oral argument presented. Most importantly, although the trial court spoke at length about the Fourth Amendment issues presented in Jones's case and what it perceived to be the similarities and dissimilarities to reported plain feel decisions, the trial court failed to make any findings, either orally or in writing, as is required by RCr 9.78. Rather, the trial court ended its discourse by stating that the motion to suppress was denied "for the reasons the court has expressed in this ruling from the bench."

RCr 9.78 requires a trial court to hold an "evidentiary hearing" before resolving a motion to suppress. Therefore, both Jones and the Commonwealth had the right to introduce evidence for or against Jones's motion.⁵ But Jones has not claimed error resulting from the trial court's failure to permit him to introduce evidence in support of his motion to suppress. And Jones stipulated that Teagle would testify in accordance with his written report and made no objection to the adequacy of the proceedings. So we are constrained to find that Jones has waived this issue, and we decline to rule on our own motion that Jones failed to have a proper evidentiary hearing.⁶

But before we can address the merits of the Commonwealth's arguments, we must first decide whether the lack of specific findings by the trial court prevents us from undertaking a meaningful review of this case. Because reviewing courts are required to give great deference to the factual findings made by the trial court, it is essential that the trial court discharge its responsibility to make express findings that sufficiently resolve the legal issues presented by a motion to suppress.⁷ Nevertheless, given the parties' lack of disagreement as to the pertinent facts, as evidenced by the stipulation to Teagle's report, we do not believe that this case requires remand for the entry of findings.

The lack of findings in this case makes it similar to Coleman v. Commonwealth.⁸ In Coleman, we also lamented the lack of findings by the trial court; but we proceeded to review the merits of the issues, holding that:

Although we agree that written findings greatly facilitate appellate review, and we recognize that it is sometimes difficult to discern the basis for a trial court's ruling from on-the-record free-form analysis, we do not believe this is a case where we are "left in the dark" as to the basis for the trial court's ruling. [Jones] offered no evidence to contradict the Commonwealth's evidence at the hearing, and, in his brief to this Court, [Jones] does not contest the factual testimony at the hearing. Furthermore, when considered in the context of the immediately preceding evidentiary hearing, the trial court's oral comments sufficiently display its factual findings. . . .

Given the nature of [Jones's] argument on appeal, the primary issue here is a legal, rather than a factual one . . . . The trial court's oral comments on the record sufficiently documented...