Gentry v. Commonwealth
| Decision Date | 12 October 2012 |
| Docket Number | NO. 2011-CA-000141-MR,2011-CA-000141-MR |
| Parties | TIMOTHY MONTAZ GENTRY APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE |
| Court | Kentucky Court of Appeals |
TO BE PUBLISHED
APPEAL FROM FAYETTE CIRCUIT COURT
In September 2009 while on routine patrol in Lexington, Kentucky, police officer Jason Newman spotted a red Dodge Charger with a University of Louisville logo on its license plate legally parked on Breckinridge Street. For no articulable reason, Officer Newman decided to run the vehicle's tags in the computer system in his patrol car. The search revealed the vehicle's owner, Dominick Evans,1 had a suspended driver's license. Because Officer Newman never observed Evans in or around the vehicle, Officer Newman did not take any further action at that time.
A few weeks later, on October 3, 2009, at approximately 5:17 p.m., Officer Newman noticed a Dodge Charger driving north on Limestone Street. Officer Newman observed the vehicle matched the make, model, color, and Louisville license plate of the car previously spotted on Breckinridge Street. Officer Newman ran the vehicle's tags, which confirmed it was the same Charger belonging to Evans; Evans's driver's license was still suspended. Officer Newman also discovered Evans was a twenty-three-year old, six-foot-one black male weighing one hundred and seventy pounds.
As the Charger turned into a liquor store parking lot, Officer Newman observed a male matching Evans's description driving the vehicle. Officer Newman circled around the block, and upon returning to the vicinity, viewed the Charger leaving the liquor store parking lot. As the vehicle re-entered NorthLimestone Street, Officer Newman again observed a young black male driving the Charger, confirming for the second time that the driver's description was consistent with that of Evans.
Officer Newman followed the Charger as it traveled down North Limestone Street and subsequently turned onto Rosemary Lane. At this point, Officer Newman activated his emergency lights and conducted a traffic stop. Officer Newman admitted, prior to pulling the Charger over, he did not observe any erratic or reckless driving, or other traffic violations.
Officer Newman approached the vehicle and requested the driver's proof of insurance, registration, and driver's license. Officer Newman quickly discovered the driver of the vehicle was not Evans, but instead was Appellant Timothy Gentry. Gentry readily admitted his driver's license was suspended. Officer Newman confirmed with police headquarters that Gentry's license was, in fact, suspended, but was unable to determine whether the suspension was DUI related. As a result, Officer Newman chose not to arrest Gentry, but instead issued him a citation for operating a vehicle on a suspended driver's license.2
On or about January 26, 2010, the Commonwealth amended the charge from operating a vehicle on a suspended license to third-offense driving on a DUI suspended license, a class D felony. On November 4, 2009, the Fayette County Grand Jury indicted Gentry on one count of third-offense driving on a DUI suspended license, and being a first-degree persistent felony offender. Shortlythereafter, Gentry filed a motion to suppress the traffic stop, claiming Officer Newman did not have probable cause to conduct the stop and contending the stop was a result of racial profiling. The circuit court conducted an evidentiary hearing on August 5, 2010, and ultimately overruled Gentry's motion, concluding "so long as [Officer Newman] had a right to be in a position to observe [Gentry's] license plate, any such information and corresponding use of the information on the plate does not violate the Fourth Amendment." (Cir. Ct. Op. 2)
On November 15, 2010, Gentry entered a conditional guilty plea to third-offense driving on a DUI suspended license and first-degree persistent felony offender. As part of his guilty plea, Gentry reserved the right to appeal the circuit court's denial of his suppression motion. This appeal followed.
In determining whether the trial court properly denied a motion to suppress, this Court is presented with a mixed question of fact and law. Initially, we review the circuit court's findings of fact under the clearly erroneous standard. Commonwealth v. Banks, 68 S.W.3d 347, 349 (Ky. 2001). Those factual findings are deemed conclusive if they are supported by substantial evidence. Kentucky Rules of Criminal Procedure (RCr) 9.78. Next, we undertake a de novo review to determine if the law was properly applied to the facts. Copley v. Commonwealth, 361 S.W.3d 902, 905 (Ky. 2012).
Gentry contends Officer Newman's practice of randomly running license plate checks, in the absence of guiding police department policies and procedures, grants Officer Newman unfettered discretion in violation of Gentry's constitutional protections. Likewise, Gentry submits law enforcement must have an articulable reason or identified suspicion that criminal activity is afoot before running a vehicle's license plate information. Absent such circumstances, Gentry argues, the random running of car tags constitutes arbitrary action in violation of Section 2 of the Kentucky Constitution (Ky. Const.) We disagree.
Gentry grounds his argument primarily in Section 2 of the Kentucky Constitution. However, we do not believe Section 2 affords Gentry the relief he seeks.
Section 2 provides: "Absolute and arbitrary power over the lives, liberty and property of freemen exists nowhere in a republic, not even in the largest majority." Ky. Const. § 2; Kentucky Milk Mktg. and Antimonopoly Comm'n v. Kroger Co., 691 S.W.2d 893, 899 (Ky. 1985). This section ensures citizens of this Commonwealth "shall be free of arbitrary state action." Smith v. O'Dea, 939 S.W.2d 353, 357 (Ky. App. 1997). Kentucky courts have interpreted Section 2's broad provisions as the state-level assurance - comparable to the 14th Amendment to the United States Constitution - of procedural due process and equal protection of the laws. See Kroger Co., 691 S.W.2d at 899 (). To that end, Section 2 is often invoked to curb arbitrary and capriciousagency action or economic legislation where no other section of the Kentucky Constitution provides direct relief. See, e.g., Bd. of Educ. of Ashland v. Jayne, 812 S.W.2d 129, 132 (Ky. 1991) (); Kroger Co., 691 S.W.2d at 899-900 (); Am. Beauty Homes Corp. v. Louisville and Jefferson County Planning and Zoning Comm'n, 379 S.W.2d 450, 456 (Ky. 1964) ().
By contrast, the protections sought by Gentry are specifically embodied in Section 10 of the Kentucky Constitution and the Fourth Amendment to the United States Constitution (U.S. Const.), both of which protect against unreasonable searches and seizures. U.S. Const. amend. IV; Ky. Const. § 10; Commonwealth v. Hatcher, 199 S.W.3d 124, 126 (Ky. 2006). Accordingly, while Gentry's reliance in Section 2 is not entirely misplaced, the jurisprudence under that section will, at best, simply guide us to the more specific Section 10 of the Kentucky Constitution and the Fourth Amendment to the United States Constitution. Therefore, those constitutional provisions are the focus of our analysis.
As referenced above, both the Kentucky and United States Constitutions protect citizens against unreasonable searches and seizures. U.S. Const. amend.IV; Ky. Const. § 10. However, these protections only extend "to areas searched wherein the defendant possesses a 'reasonable expectation of privacy.'" Blades v. Commonwealth, 339 S.W.3d 450, 453 (Ky. 2011) (quoting Rawlings v. Kentucky, 448 U.S. 98, 104, 100 S. Ct. 2556, 2561, 65 L. Ed. 2d 633 (1980)). Stated otherwise, under these provisions, "there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as 'reasonable.'" Katz v. United States, 389 U.S. 347, 361, 88 S. Ct. 507, 516, 19 L. Ed. 2d 576 (1967) (Harlan, J., concurring); Colbert v. Commonwealth, 43 S.W.3d 777, 783 (Ky. 2001).
Society - via the courts - has acknowledged that there are certain areas in which a person does not retain an expectation of privacy, and searches of these areas fall outside the protections of the Fourth Amendment. See, e.g., California v. Greenwood, 486 U.S. 35, 39-42, 108 S. Ct. 1625, 1629-30, 100 L. Ed. 2d 30 (1988) (); Blades, 339 S.W.3d at 454 (); Williams v. Commonwealth, 213 S.W.3d 671, 683 (Ky. 2006) (...
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