Commonwealth v. Perry
| Decision Date | 30 September 2021 |
| Docket Number | 2020-SC-0279-DG |
| Citation | 630 S.W.3d 671 |
| Parties | COMMONWEALTH of Kentucky, Appellant v. James PERRY, Appellee |
| Court | United States State Supreme Court — District of Kentucky |
COUNSEL FOR APPELLANT: Daniel Cameron, Attorney General of Kentucky, Lauren Rachel Lewis, Assistant Attorney General, Office of the Attorney General.
COUNSEL FOR APPELLEE: Kayla Danielle Deatherage, Assistant Public Advocate, Department of Public Advocacy.
The Anderson Circuit Court granted Appellee James Perry's motion to suppress evidence, concluding the evidence was the fruit of an illegal seizure. After the Court of Appeals in a split decision affirmed the trial court, this Court granted the Commonwealth's motion for discretionary review. Like the Court of Appeals, upon review, we conclude that substantial evidence supported the trial court's findings of fact and that the trial court's conclusions of law were legally sound. Accordingly, we affirm both the trial court and the Court of Appeals.
Perry and a friend were walking down Lawrenceburg's Main Street, on their way to an area nursing home, when Officer Doty, on patrol that morning, saw them. Officer Doty pulled into the nursing home parking lot, exited his vehicle, and approached them. Officer King, in a separate cruiser, arrived shortly after Officer Doty. A search of Perry and his backpack resulted in Perry being indicted on two counts of first-degree possession of a controlled substance (heroin and methamphetamine), possession of drug paraphernalia, and possession of a legend drug (gabapentin) which had not been prescribed for him. Perry moved to suppress the evidence against him and, in the ensuing suppression hearing, Officer Doty and Officer King testified, but Perry did not.
Officer Doty testified that there was nothing remarkable about Perry and his companion walking down the sidewalk and that he was familiar with Perry, having previously arrested him under warrants and for drug possession. He testified that he decided to stop and approach the two because Perry usually had outstanding arrest warrants and narcotics on his person and his companion also was known to possess and traffic narcotics. In fact, Perry had no outstanding warrants at that time.
Officer Doty stated that when speaking with Perry, he noticed that Perry had pinpoint pupils and was unsteady on his feet. Officer Doty asked the two what they were doing and asked Perry if he had any weapons, illegal drugs or paraphernalia on his person or in his backpack. Officer Doty testified that Perry stated that he had not used drugs in about two weeks. He did not perform a field sobriety test. According to Officer Doty, Perry and his friend, whose purse was also searched, were cooperative, were never restrained, and never expressed a desire to not speak with him. Upon Officer Doty's request, Perry consented to a search, which produced the aforementioned drug paraphernalia and substances confirmed to be heroin, methamphetamine, and gabapentin.
Officer King testified that he heard over his radio that Officer Doty was exiting his cruiser to approach Perry on foot. He arrived to back up Officer Doty. Officer King got out of his vehicle and was present when Officer Doty asked Perry, a known drug user, for consent to search. Officer King further testified that he did not recall anything about Perry's appearance or speech that struck him.
The trial court granted Perry's suppression motion. The circuit court's suppression order, after recounting the suppression hearing testimony, stated:
Law enforcement may "briefly stop or seize an individual for an investigative purpose if the police possess a reasonable suspicion that the individual is involved in criminal activity." Terry v. Ohio , 392 U.S. 1 [88 S.Ct. 1868, 20 L.Ed.2d 889] (1968). The Commonwealth argues that Officer Doty did not "stop" Perry, rather he engaged him in conversation. The Court finds that Officer Doty "stopped" Perry to investigate him and did so because he "usually" had warrants and narcotics on his person, his purpose was to detain and investigate him. Based on the totality of the evidence and the Court's perception of the interaction between Perry and Officer Doty, the Court does not believe that Perry would have been voluntarily allowed to wish Officer Doty a "good morning" and continue on his way and the interaction would not be classified as a voluntary conversation. The Court finds that Officer Doty stopped Perry. There was no reasonable suspicion that Perry was involved in criminal activity prior to his stop on August 28, 2018 [at approximately 8:20 a.m.]. Officer Doty testified that there was nothing remarkable about Perry and his companion walking down the street. Officer Doty had on prior occasions arrested Perry for warrants or narcotics, however, these facts accompanied only by the fact that Perry was observed walking down a public street does not create a "reasonable suspicion" that Perry was involved in criminal activity. Perry's consent to search was obtained after his illegal stop, and is the fruit of that illegal stop.
As noted, the Court of Appeals, in a split decision, upheld the trial court's order. This Court then granted the Commonwealth's motion for discretionary review.
The Commonwealth expresses two reasons for reversing the trial court and the Court of Appeals. First, the Commonwealth contends that Officer Doty's approach and conversation with Perry "on a public sidewalk" was not a Terry stop. Second, the Commonwealth claims that even if a Terry stop occurred, it did not begin until the second officer arrived, at which point Officer Doty had an articulable basis for reasonable suspicion that Perry was engaged in criminal activity. While the Commonwealth asserts that the evidence in this case does not support the trial court's findings otherwise, we must disagree.
When reviewing a ruling on a suppression motion, an appellate court generally employs a two-step process. First, findings of fact are reviewed and will not be set aside unless they are clearly erroneous. CR 1 52.01 ; Simpson v. Commonwealth , 474 S.W.3d 544, 547 (Ky. 2015). Findings of fact are not clearly erroneous if they are supported by substantial evidence. Commonwealth v. Deloney , 20 S.W.3d 471, 473 (Ky. 2000). Substantial evidence is "evidence of substance and relevant consequence having the fitness to induce conviction in the minds of reasonable men." Owens–Corning Fiberglas Corp. v. Golightly , 976 S.W.2d 409, 414 (Ky. 1998) (citations omitted). Also, due regard is given to the opportunity of the circuit court to judge the credibility of the testifying officer and to assess the reasonableness of the officer's inferences. Commonwealth v. Whitmore , 92 S.W.3d 76, 79 (Ky. 2002). Second, the circuit court's application of the law to conclusive facts is reviewed de novo. Simpson , 474 S.W.3d at 547.
The Fourth Amendment provides that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ...." The landmark United States Supreme Court decision, Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), established that while the brief detention of a person by a police officer may be an unconstitutional seizure, a detention is nevertheless proper as long as the police officer has a reasonable suspicion based upon objective, articulable facts that criminal activity is afoot. "The Fourth Amendment's requirement that ... seizures be founded upon an objective justification, governs all seizures of the person, ‘including seizures that involve only a brief detention short of traditional arrest.’ " United States v. Mendenhall , 446 U.S. 544, 551, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) (citations omitted). Of course, not all interactions between police officers and a citizen involve seizures of that person. Id. at 552, 100 S.Ct. 1870. The Fourth Amendment's safeguards may be invoked only when a person's freedom of movement is restrained by means of physical force or a show of authority. Id. at 553, 100 S.Ct. 1870 (citing Terry , 392 U.S. at 19 n.16, 88 S.Ct. 1868 ). "The purpose of the Fourth Amendment is not to eliminate all contact between the police and the citizenry, but ‘to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals.’ " Id. at 553–54, 100 S.Ct. 1870 (quoting United States v. Martinez-Fuerte , 428 U.S. 543, 554, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976) ). As explained by the United States Supreme Court in Mendenhall , id. at 551-52, 100 S.Ct. 1870, and this Court in Strange v. Commonwealth , 269 S.W.3d 847, 851 (Ky. 2008), if a citizen was seized when the officer approached and asked questions, the officer's conduct in doing so was constitutional only if the citizen was reasonably suspected of wrongdoing based on objective, articulable facts.2
The Commonwealth argues that the trial court erred by classifying Officer Doty's approach of Perry as a Terry stop and then ruling that the stop was improper because the officer had no reasonable suspicion that Perry was involved in criminal activity just prior to the stop. Citing Mendenhall , 446 U.S. at 553, 100 S.Ct. 1870, the Commonwealth contends that the trial court and the Court of Appeals improperly considered Officer Doty's subjective intent in approaching Perry despite "[p]olice officers [being] free to approach anyone in public areas for any reason," Commonwealth v. Banks , 68 S.W.3d 347, 350 (Ky. 2001), and failed to properly consider that a seizure does not occur "as long as the person to whom questions are put remains free to disregard the questions and walk away," Mendenhall , 446 U.S. at 554, 100 S.Ct. 1870. The Commonwealth maintains that the Court of Appeals misconstrued Mendenhall , 446 U.S. 544, 100 S.Ct. 1870 (1980),3 and United States v. Drayton , 536 U.S. 194, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002)...
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