Commonwealth v. Bembury
| Docket Number | 2022-SC-0018-DG |
| Decision Date | 24 August 2023 |
| Parties | COMMONWEALTH OF KENTUCKY APPELLANT v. WILLIAM BEMBURY APPELLEE |
| Court | United States State Supreme Court — District of Kentucky |
On Review from Court of Appeals Case No. 2020-CA-1429-MR Fayette Circuit Court No. 19-CR-01326
Counsel for Appellant: Daniel J. Cameron Attorney General of Kentucky Mathew Robert Krygiel Assistant Attorney General Lou Anna Red Corn Assistant Commonwealth Attorney
Counsel for Appellee: Aaron Reed Baker Assistant Public Advocate Department of Public Advocacy Kathleen Kallaher Schmidt Assistant Public Advocate Department of Public Advocacy
OPINION
William Bembury (Bembury) entered a guilty plea to one count of possession of synthetic drugs on the condition that he could appeal the Fayette Circuit Court's denial of his motion to suppress evidence recovered from his backpack. Before the Court of Appeals, Bembury asserted that his backpack was searched in violation of his rights against unlawful search and seizure under the Fourth Amendment of the United States Constitution[1] and Section Ten of Kentucky's Constitution.[2] A split Court of Appeals panel reversed and held that no exception to the rule requiring that searches be supported by a warrant applied. The Commonwealth now appeals that ruling. After thorough review, we reverse the Court of Appeals and reinstate the circuit court's order denying Bembury's motion to suppress.
The facts of this case are not in dispute. On August 14, 2019, Officer Adam Ray (Officer Ray) was assigned to the Bureau of Special Operations, Bicycle Unit, with the Lexington Police Department. His assignment was to patrol the downtown entertainment district. At approximately 6 p.m. he and an Officer Kennedy observed an individual named Joseph Napier (Napier) approach Bembury on a sidewalk near Phoenix Park. Officer Ray was familiar with Bembury from his experience patrolling that area. He also knew Bembury to be an individual that sold synthetic marijuana based on complaints from security personnel at the Lexington Public Library as well as statements from individuals who had been arrested for possession of synthetic marijuana and reported to police that they had purchased the substance from Bembury.
Bembury and Napier had a brief conversation and then began walking away from the area together. This raised the officers' suspicions, so they followed the pair to the courtyard of the Chase Bank building down the street. Officer Kennedy watched Bembury and Napier as they sat at a picnic table in the courtyard while Officer Ray positioned himself in the first level of a parking garage next to the courtyard. Officer Ray had an unobscured view of Bembury and Napier, although they were sitting with their backs to him. Officer Ray could not recall if he used binoculars to observe them, but testified it was his habit to do so. He watched Napier give Bembury an unknown amount of U.S. currency. Bembury then placed the money in his backpack, which was on the table in front of him. Next, Bembury took a white rolling paper out of his backpack and reached back into his backpack and took out a substance that he sprinkled into the rolling paper, rolled into a joint, and handed to Napier. Napier then put the joint into his backpack and walked away.
The officers followed and stopped Napier. They told him they had just watched his transaction with Bembury and asked him to give them the joint. Napier complied with the Officers' request and told them he had paid Bembury about five dollars for it. During the summer months, Officer Ray encountered synthetic marijuana almost every day. Based on his experience, in particular the odor and appearance of the substance in the joint, he believed it was synthetic marijuana. At that point, Officer Kennedy stayed with Napier while Officer Ray rode back to Bembury who was still sitting at a picnic table in the courtyard of the bank building. Officer Ray told Bembury he was under arrest and placed him in handcuffs. The officer then performed a cursory "look through" of Bembury's backpack, but he stopped the search and decided to wait for Officer Kennedy to arrive before conducting a more thorough search. When Officer Kennedy arrived, Officer Ray filled out paperwork while Officer Kennedy searched Bembury's backpack. During the search, Officer Kennedy found a baggie of synthetic marijuana that was approximately the size of a golf ball, a pack of rolling papers, and seven one-dollar bills. Until it was moved to perform the search, Bembury's backpack remained on the picnic table in front of him. He did not consent to the search.
The court then relied on an unpublished Court of Appeals opinion, Agee v. Commonwealth,[4] which applied Gant and upheld a warrantless search of a backpack under factually similar circumstances because the officers had a reasonable basis to believe the bag contained evidence of Agee's crime of public intoxication. Based on Gant and Agee, the circuit court found that the search of Bembury's backpack was lawful as a search incident to his lawful arrest because the officers "had a reasonable belief the backpack contained evidence of the offense of arrest."
The Court of Appeals disagreed with the circuit court's ruling and reversed.[5] The court noted that warrantless searches made incident to arrest are divided into two categories: searches of the arrestee's person and searches of the area within the arrestee's control.[6] And, that the latter category of warrantless search must be justified on the grounds of ensuring the arresting officer's safety and to prevent the destruction of evidence.[7] The court further acknowledged that in Gant, the U.S. Supreme Court created an independent justification for the warrantless search of an arrestee's vehicle when the arresting officer has a reasonable belief that the vehicle contains evidence of the crime of arrest.[8]
However, the court held that the search of Bembury's backpack could not be upheld as a search of the area within his immediate control because at the time of the search he was handcuffed and therefore did not have the ability to destroy evidence or pose a threat to the officers' safety.[9] Moreover, it held that the Gant exception allowing warrantless searches in order to recover evidence of the crime of arrest applies only to vehicle searches due to the "circumstances unique to the vehicle context."[10] The Court of Appeals next addressed whether the search of Bembury's backpack could be upheld as a search of his person, noting that the "authority to search the arrestee's actual person without a warrant has been extended to include 'personal property . . . immediately associated with the person of the arrestee[.]'"[11] The court agreed with Bembury's assertion that his backpack was more akin to the 200 lbs. double locked footlocker that the U.S. Supreme Court held could not be searched without a warrant in United States v. Chadwick than other items on an arrestee's person that the Supreme Court and lower federal courts have held can be searched incident to arrest such as a cigarette packet, a billfold and address book, a wallet, and a purse.[12] The court reasoned that although "the backpack was portable and Bembury had control over it throughout the time he was observed by the police . . . a backpack is functionally distinguishable from a cigarette packet, wallet, address book or even a purse" because "[l]ike luggage, it is intended as a repository of personal effects . . . and is likely to contain many more items of a personal nature than the small items recovered directly from the person of an arrestee."[13]
Finally, the Court of Appeals held that there was insufficient evidence presented at the suppression hearing to nevertheless allow the evidence to be admitted under the inevitable discovery doctrine.[14] Under this doctrine, "[e]vidence unlawfully obtained by police is nevertheless admissible if the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means."[15] The court reasoned that the Commonwealth did not raise its inevitable discovery argument until after the suppression hearing in its supplemental memorandum, and that Officer Ray testified that he did not know if an inventory search of the backpack was conducted by the detention center and that it was likely returned to Bembury after the synthetic marijuana, rolling papers, and money were removed from it.[16] Judge Taylor concurred only with the court's result without separate opinion, and Judge Larry Thompson dissented without separate opinion.[17]
The Commonwealth now challenges the Court of Appeals' ruling before this Court.
The Commonwealth contends that the Court of Appeals' decision directly conflicts with Agee, the opinion relied upon by the circuit court, and that it improperly extends the U.S. Supreme Court's holding in Chadwick. The Commonwealth further asserts that the...
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