Com. v. Priddy, No. 2003-SC-000041-DG.

• Decision Date: 22 December 2005
• Docket Number: No. 2003-SC-000041-DG.
• Citation: 184 S.W.3d 501
• Parties: COMMONWEALTH OF KENTUCKY Appellant, v. Lloyd A. PRIDDY Appellee.
• Court: United States State Supreme Court — District of Kentucky

184 S.W.3d 501

COMMONWEALTH OF KENTUCKY Appellant, v. Lloyd A. PRIDDY Appellee.

No. 2003-SC-000041-DG.

Supreme Court of Kentucky.

December 22, 2005.

Rehearing Denied March 23, 2006.

Gregory D. Stumbo, Attorney General, Janine Coy Bowden, Assistant Attorney General, Frankfort, Counsel for Appellant.

Donna Boyce, Appellate Branch Manager, Department of Public Advocacy, Frankfort, Counsel for Appellee.

SCOTT, Justice.

I. INTRODUCTION

Appellee, Lloyd A. Priddy, sought to suppress the fruits of a search of his person by a police officer during the course of a stop of his vehicle. In denying the motion, the trial court made findings — which Appellee argues were contained only in the uniform citation issued by the officer — that the stop, and thus the search, was justified pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The citation had been filed in the court record and was used and referred to in the hearing by the parties and the court, but it was never formally filed as an exhibit to any record created for the hearing.

Not having been filed of record in the hearing, the Appellee argues the officer's written statement in his citation could not be relied on for the court's findings of facts.

Since the citation¹ was used (and testified to) during the hearing, it was not error for the court to have considered its contents, even though, through fair inference, the officer's actual testimony covered the same information.

Even so, the trial court's ruling was correct since the information (personally given to the officer by a citizen in the area) was sufficient to support an "articulable suspicion" that criminal activity was afoot and thus justified the stop of the Appellee's car and the subsequent search of his person. Where a citizen exposes himself to an officer, in a face-to-face meeting, who then has the opportunity to evaluate the citizen's demeanor during the relay of the information, further "predictive evaluation" of the information is not an absolute requirement, as a citizen is not evaluated as a "confidential informant or anonymous tipster."

II. BACKGROUND

In the evening of September 4, 1999, Officer Michael R. Koenig was traveling on the Outer Loop in Louisville en route to a domestic disturbance on Third Street, when he was flagged down by a citizen who told him a six foot tall, 170 pound white male with shoulder-length, black, curly hair, driving a late 1970s model black Ford truck with primer on the hood — was in the K-mart parking lot on 191 Outer Loop and was about to conduct a drug transaction. Officer Koenig then immediately left the citizen and proceeded to the K-mart parking lot, which was only a few minutes away, and observed the vehicle and male driver exactly as described and, as he testified, "confirmed my information from the informant." Appellee however, argues that the actual testimony from Officer Koenig established only that when he arrived the vehicle was exiting the parking lot.

Officer Koenig then followed and stopped the vehicle and noted Appellee's frantic movement in the vehicle and once backup arrived, asked the Appellee to exit his truck. Upon observing and inquiring about a large bulge in Appellee's front pants pocket, the Appellee stated it was a crack pipe, which Officer Koenig then took possession of. After recovering the pipe and noting the residue therein, Appellee was arrested. A subsequent search of Appellee's pockets revealed methamphetamine in a cigarette package.

Appellee pled guilty to First-Degree Possession of a Controlled Substance,² Possession of Drug Paraphernalia,³ and No Motor Vehicle Insurance.⁴ He also admitted to being a Second-Degree Persistent Felony Offender and received an enhanced five-year sentence on the Possession of a Controlled Substance charge. The misdemeanor charges, Possession of Drug Paraphernalia and No Motor Vehicle Insurance ran concurrently with the felony charge for a total sentence of five years imprisonment.

Appellee's guilty plea was conditioned on his right to appeal the denial of his suppression motion, in which he had argued that the crack pipe and methamphetamine should be suppressed because the stop violated his Fourth Amendment rights. He contended that the initial corroboration of only his description and location, provided by the "tipster," did not provide Officer Koenig with a "reasonable and articulable suspicion" that criminal activity was afoot.

The Court of Appeals reversed the trial court's denial of the motion to suppress as based on clearly erroneous factual findings, finding that in reaching its decision, the trial court relied on statements in the uniform citation, which had not been offered, or admitted, into evidence. The Court of Appeals further reasoned that without reference to the citation, there was insufficient evidence to support a reasonable suspicion that criminal activity was afoot. We granted discretionary review on the Commonwealth's Petition.

III. ANALYSIS

A. TRIAL COURT'S RELIANCE ON CITATION

When reviewing the outcome of a suppression hearing regarding a warrantless search, this Court employs the standard of review enunciated by the United States Supreme Court in Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996).

[A]s a general matter determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal. Having said this, we hasten to point out that a reviewing court should take care both to review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts by resident judges and local law enforcement officers. Id. at 699, 116 S.Ct. at 1663 (cited with approval in Commonwealth v. Whitmore, 92 S.W.3d 76 (Ky.2002)).

"The Ornelas court recognized that police may draw inferences of illegal activity from facts that may appear innocent to a lay person and that a reviewing court should give due weight to the assessment by the trial court of the credibility of the officer and the reasonableness of the inference." Commonwealth v. Whitmore, 92 S.W.3d 76, 79 (Ky.2002).

At the conclusion of the hearing, the trial judge made oral findings and announced her ruling from the bench. Her findings of fact indicate that she relied upon Officer Koenig's observation of Appellee meeting with another individual in the K-mart parking lot as the determinative "predictive behavior" she felt necessary to support a reasonable suspicion:

"Well, I certainly understand Mr. Conkin why you cited that case and I think it's something that I have to take into consideration. The Florida v. J.L. [529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000)] case involved a tip that there would be a black male at a bus stop wearing a plaid shirt and that he had a gun on him. As I read the case that was basically what they were told and the officer went to the bus stop and there was a black male there with a plaid shirt on and he stopped and frisked him and indeed he did have a gun on him.

This case has more detail from the beginning. First, it involves a vehicle that was carefully described as a late 70s black Ford truck, primer on the hood. There was a description of the male as a white male subject six feet tall, I think 150 to 170 pounds is what you said. I didn't get all the poundage written down, but shoulder length hair. That there would be a narcotics transaction at the Kmart parking lot at 191 Outer Loop. So this officer goes and is in the Winn Dixie parking lot and sees a vehicle matching that description and also sees him leaving the location after meeting up with another subject. So, by his own observation, he saw something that could indeed be the narcotics transaction. (Emphasis added).

I think that had he driven to the parking lot and simply seen the truck, even though it's more detailed than it was in the Supreme Court case, Florida v. J.L., I might be inclined to agree with you, Mr. Conkin, if he just saw the truck and followed the truck and stopped. But his testimony was that he observed him leaving the location after he had met up with another person and then he followed him and he stopped him and I think that that was appropriate, and then the frantic behavior was enough to certainly add to the reasonable suspicion that he had for the stop in the first instance ...

* * *

So, it's a closer call than I see sometimes, because I think somebody gives a description and you find someone at that point and place described that meets the description, I think you are most of the way there. But I think it's this added factor that's reflected in his report and it was in his testimony about meeting up with another subject there that pushes it over the line from what we had in Florida, which was just an individual at a bus stop wearing a plaid shirt. It wasn't a very detailed description and there was nothing to pair with, besides his actual presence. (Emphasis added).

Here we had the presence of a truck, a person driving that truck that fit exactly and then the presence of another subject with whom the narcotics transaction could be conducted. So, accounting for all those factors and the cases that have been decided, I'm going to overrule the motion to suppress." (Emphasis added).

"[T]he police can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity `may be afoot,' even if the officer lacks probable cause." United Stated v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989). As such, "[t]he issue is a preliminary question to be decided by the trial judge, KRE 104(a) ...." Cf. Talbott v. Commonwealth, 968 S.W.2d 76, 82 (Ky.1998).

All would agree that Officer Koenig's statement in his traffic citation that "officer went to above location and subject matching description was just leaving that location after meeting up with another subject," would be sufficient "predictive...