Cook v. Com.

• Decision Date: 12 March 1992
• Docket Number: No. 90-SC-874-DG,90-SC-874-DG
• Citation: 826 S.W.2d 329
• Parties: Jericho COOK, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 329

826 S.W.2d 329

Jericho COOK, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 90-SC-874-DG.

Supreme Court of Kentucky.

March 12, 1992.

Mark D. Dean, T. Sherman Riggs, Mathis, Riggs, Prather and Dean, Shelbyville, for appellant.

Chris Gorman, Atty. Gen., David A. Sexton and John S. Gillig, Asst. Attys. Gen., Criminal Appellate Div., Frankfort, David B. Reynolds, Matthews, Myles and Reynolds, Shelbyville, for appellee.

WINTERSHEIMER, Justice.

This appeal is from a decision of the Court of Appeals in a vehicular homicide case in which the Court of Appeals reversed the order of the circuit court suppressing evidence of Cook's blood alcohol content after the fatal accident.

The issues presented are whether the circuit court used the proper test in suppressing the results of the blood alcohol test; whether there was any kind of implied coercion in failing to advise Cook that the blood sample was taken for criminal investigative purposes, and whether preponderance of evidence is the standard that the Commonwealth must meet to prove voluntariness.

Cook was involved in an automobile accident when he crashed his vehicle into an oncoming car. The other driver was accompanied by his pregnant wife and an infant daughter. In Cook's vehicle there were two other passengers in addition to the driver. The driver of the other car was killed instantly, and all others except one were seriously injured.

The first police officer who responded found a partially empty whisky bottle in Cook's car and noted that the car smelled strongly of alcohol. Trooper Westbrook then arrived and was directed to go to the hospital where Cook had been taken. Upon arrival, Westbrook gave the blood alcohol content kit to hospital personnel and later talked with Cook. Westbrook assumed that the hospital had obtained written consent for the blood sample because he did not. The blood test registered the alcohol content to be .21 percent.

Cook was not under arrest or in police custody prior to or at the time of the taking of the blood sample. He was not advised of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). He was subsequently indicted for one count of murder, three counts of first-degree assault and one count of driving under the influence. Cook filed a pretrial motion to suppress the blood test results. At the suppression hearing he made a general denial of giving consent to have his blood drawn. He said he did not remember talking with Trooper Westbrook and that he remembered seeing only a preacher and medical personnel while in the hospital. He said he did not remember anyone in a police uniform and did not remember blood being drawn from him for the tests. He did claim to be cooperative with everyone. The circuit judge granted the suppression motion indicating that the defendant should have been advised of the purpose for taking his blood, and that the prosecution was required to prove an intelligent waiver as opposed to simply a voluntary one. The Court of Appeals reversed the decision of the circuit court and this Court granted discretionary review.

The Court of Appeals correctly reversed the decision of the circuit court because it had erroneously determined that the prosecution was required to prove an intelligent waiver as opposed to simply a voluntary consent.

A careful examination of the record indicates that Cook freely and voluntarily gave his consent to the blood test. The determination by the circuit court that consent to search must be intelligently given in this situation was an erroneous application of the principles of consent under the Fifth Amendment to a Fourth Amendment search and seizure issue. Suppression of the blood test results was improper.

We must observe that Kentucky's implied consent statute, K.R.S. 186.565(1), does not apply in this situation. Cook was not under arrest or in police custody.

The blood test administered here involves the Fourth Amendment to the Federal Constitution. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), held that the Fifth Amendment is not implicated by the taking of a blood sample from a criminal suspect, but that such testing does constitute a search for real or physical evidence which implicates the Fourth Amendment.

It is fundamental that all searches without a warrant are unreasonable unless it can be shown that they come within one of the exceptions to the rule that a search must be made pursuant to a valid warrant. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Consent is one of the exceptions to the requirement for a warrant. United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976). The test for determining if consent is constitutional is set out in Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). The question of voluntariness turns on a careful scrutiny of all the surrounding circumstances in a specific case.

When the circuit court required the prosecution to prove that consent was intelligently given, it placed an improper burden on the prosecution. The correct standard involves voluntary consent only.

The law does not require that Cook be advised of his Miranda rights or that he had a right to refuse the search. Hohnke v. Commonwealth, Ky., 451 S.W.2d 162 (1970). All that was required to establish consent was that the consent was voluntarily given in view of all the circumstances. Commonwealth v. Sebastian, Ky., 500 S.W.2d 417 (1973). A careful examination of the entire record indicates that the prosecution had established by a preponderance of the evidence that the consent given by Cook was freely and voluntarily obtained without any threat or express or implied coercion. Cf. United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974).

A review of the transcript of evidence of the suppression hearing indicates that Cook is a reasonably intelligent young person who is able to understand the English language and can express himself in an understandable fashion. He claims that he did not remember seeing any police at the hospital or giving consent to the search.

Trooper Westbrook was at the hospital for quite some time according to his testimony until he was able to speak with Cook. When he did talk to Cook, "He was lying there. I think the other ones were getting treatment." The testimony of the trooper indicates that Cook was fully conscious at the time he spoke to him and that he was able to understand what the trooper was saying and was responsive to his questions. There is nothing in the record that shows the defendant's mental or physical condition was such that he was unable to give his permission to allow the police to obtain a blood sample. The record does not indicate that Cook was confused or tricked into giving his blood sample. He was fairly apprised of what the police wanted and why they wanted it, and the consent was freely and voluntarily given. That is all the Fourth Amendment requires. There was no constructive duress or coercion. Schneckloth.

The record here clearly demonstrates that Cook voluntarily consented to and cooperated in the search. There was no serious repudiation of the testimony given by the trooper. The addition of the element of intelligent consent is improper in this situation.

The record does not support the argument that there was any kind of implied coercion arising out of a failure to advise Cook that the blood sample was being sought for the purpose of a criminal investigation. The record does not indicate that anything was offered by Cook to refute the trooper's testimony as to the events in the hospital emergency room. The trooper specifically recalled using the term "blood alcohol content" when speaking with Cook. The trooper also observed the blood being taken by the hospital employee and recalled that he told Cook that he was under suspicion for driving under the influence. Cook has failed to demonstrate any kind of police overreaching which is related in any way to the consent given. The question of voluntariness is to be determined by an objective evaluation of police conduct and not by the defendant's subjective perception of reality. Colorado v. Connelly, 479 U.S. 157, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986).

Cook's final argument is that the Commonwealth should be held to a clear and positive or clear and convincing standard of proof. We do not agree. The burden of proof for the Commonwealth is to demonstrate voluntariness by a preponderance of the evidence. The United States Supreme Court has held that a state need only satisfy the preponderance standard where the state bears the burden of proof in a suppression hearing. Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30...