Com. v. Kelly, No. 2004-SC-0385-DG.

• Decision Date: 22 December 2005
• Docket Number: No. 2004-SC-0385-DG.
• Citation: 180 S.W.3d 474
• Parties: COMMONWEALTH of Kentucky, Appellant, v. Michael KELLY, Appellee.
• Court: United States State Supreme Court — District of Kentucky

180 S.W.3d 474

COMMONWEALTH of Kentucky, Appellant, v. Michael KELLY, Appellee.

No. 2004-SC-0385-DG.

Supreme Court of Kentucky.

December 22, 2005.

Gregory D. Stumbo, Attorney General, George G. Seelig, Courtney J. Hightower, Assistant Attorney General, Office of Attorney General, Criminal Appellate Division, Frankfort, for Appellant.

Robin L. Webb, Grayson, for Appellee.

GRAVES, Justice.

Appellee, Michael Kelly, was indicted on three counts of trafficking in a controlled substance and one count of driving under the influence. Appellee moved to dismiss the indictments, arguing that the evidence supporting his indictments was seized in violation of his right to be free from unreasonable seizures. U.S. Const. amend. IV and XIV; Ky. Const. § 10. The trial court granted Appellee's motion, finding that the evidence should be suppressed due to the fact that it was obtained as the result of an unlawful seizure. The Commonwealth appealed. The Court of Appeals affirmed the trial court's order in a two to one (2-1) vote.¹ We granted discretionary review and for the reasons set forth herein, we now reverse the decision of the Court of Appeals.

The facts, as presented before the trial court indicated the following: On October 10, 2002, Lexington police received a call from two persons who identified themselves simply as Waffle House employees. The employees reported that they suspected a recent patron of their restaurant of being intoxicated and that the suspect was about to drive away from the restaurant. They stated their location and gave details about the suspect and his vehicle. The suspect was described as being a white male and the vehicle was identified as being a red, older model Camaro with Tennessee tags. Lexington dispatch immediately disseminated the information through an "attempt to locate" broadcast which was sent to all police cruisers in the area. Officer Hilton Hastings responded to the broadcast and drove to the Waffle House restaurant.

Shortly after responding to the broadcast, Officer Hastings arrived at the Waffle House location reported by the callers. Upon pulling into the parking lot, Officer Hastings saw two people standing outside whom he assumed were the employees who had reported the suspected drunk driver. Upon seeing the police vehicle, the two people then started pointing in the direction of a night club across the street from the restaurant. When Officer Hastings looked toward the area where the people were pointing, he immediately spotted a red, older model Camaro. Officer Hastings drove across the street to the night club and followed the Camaro to a nearby hotel. He then activated his emergency lights and proceeded to conduct an investigatory stop of the vehicle and its driver, who identified himself as Appellee, Michael Kelly.

Officer Hastings candidly stated that prior to stopping Appellee's vehicle, he did not personally observe any criminal or suspicious activity on the part of Appellee. However, once the vehicle was stopped, he did detect a strong smell of alcohol emanating from the vehicle. He also conducted several field sobriety tests which Appellee failed. The officer then searched Appellee's person and found thirty-eight (38) Oxycontin pills, $2,800 in cash, and another pill bottle. A search of the vehicle revealed more pills and a gun. At this point, Appellee was arrested and later indicted on three counts of trafficking and one count of driving under the influence. The trial court found that the initial stop of Appellee's vehicle was unlawful and dismissed the indictments. The Commonwealth now appeals the trial court's ruling to this Court. For the reasons set forth below, we vacate the trial court's order and remand for further proceedings.

I. LAWFULNESS OF THE INVESTIGATORY STOP

It is well-established that investigatory stops, such as the one performed by Officer Hastings in this case, are permissible if the officer has reasonable and articulable suspicion that a violation of the law is occurring. Collins v. Commonwealth, 142 S.W.3d 113, 115 (Ky.2004) (citing Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 1401, 59 L.Ed.2d 660, 673 (1979)). When reviewing a trial court's order regarding whether certain evidence should be suppressed, we defer to the trial court's factual findings unless they are clearly erroneous and we review de novo the trial court's application of the law to the facts found. Welch v. Commonwealth, 149 S.W.3d 407, 409 (Ky.2004).

In this case, there seems to be no dispute as to the facts as they have been recounted herein. Rather, the parties dispute whether the facts amount to "reasonable suspicion," and specifically, whether the tip should be classified as "anonymous." Both of these determinations involve applying law to the facts found, and thus, we review these questions de novo. See, e.g., Commonwealth v. Banks, 68 S.W.3d 347, 349 (Ky.2001), United States v. Pasquarille, 20 F.3d 682, 687 (6th Cir.1994).

We find that the setting and circumstances of this case do not support a conclusion that the tip was truly "anonymous." While the tipsters did not give their names, they (1) identified themselves as employees of the Waffle House restaurant; and (2) provided the location of the particular restaurant where they worked. This information alone raises a strong presumption that these informants could likely be located in the event that their tip was determined to be false or made for the purpose of harassment. However, in addition to the identifying information given over the telephone, Officer Hastings reasonably believed that he had face-to-face contact with the actual tipsters when he pulled into the parking lot of the restaurant and observed two people (1) waiting outside for him; and (2) pointing toward a vehicle that had the same description as the one provided in the dispatch broadcast. Cf. State v. Ramey, 129 Ohio App.3d 409, 717 N.E.2d 1153, 1158 (Oh.App.1998) ("There is nothing even remotely anonymous, clandestine, or surreptitious about a citizen stopping a police officer on the street to report criminal activity."). When all these facts are considered in their totality (including and especially the pre-detention investigation which verified most of the information given by the tipsters), it is clear to us that this tip was generated from identifiable informants as opposed to anonymous informants.

The significance of whether this tip was generated from "anonymous" informants or not bears upon our overall determination of reliability. In Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the United States Supreme Court stated that "an informant's `veracity,' `reliability' and `basis of knowledge' are all highly relevant in determining the value of his report." Id. at 230, 103 S.Ct. at 2328. When determining whether a set of facts is sufficient to generate reasonable suspicion, we must look at the totality of the circumstances in each case. Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990).

In cases involving identifiable informants who could be subject to criminal liability if it is discovered that the tip is unfounded or fabricated, such tips are entitled to a greater "presumption of reliability" as opposed to the tips of unknown "anonymous" informants (who theoretically have "nothing to lose"). See Florida v. J.L., 529 U.S. 266, 276, 120 S.Ct. 1375, 1381, 146 L.Ed.2d 254 (2000) (Kennedy, concurring) ("the ability of the police to trace the identity of anonymous telephone informants may be a factor which lends reliability to what, years earlier, might have been considered unreliable anonymous tips"). Moreover, the tip in this case is entitled to even greater deference than it normally might be accorded due to its status as a "citizen informant" tip. See Gates, supra at 233, 103 S.Ct. at 2330 ("rigorous scrutiny of the basis...