Hensley v. Commonwealth
| Decision Date | 03 June 2016 |
| Docket Number | NO. 2014-CA-001653-MR,2014-CA-001653-MR |
| Parties | CHAD HENSLEY APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE |
| Court | Kentucky Court of Appeals |
NOT TO BE PUBLISHED
APPEAL FROM KENTON CIRCUIT COURT
On January 23, 2014, Hensley, his significant other, Randall Ruwan, and a second passenger rode together to a friend's house to purchase a video camera. After Hensley paid $20 for the camera as an intended gift to Ruwan, the friend took the video camera into a back room of her home, out of sight of Hensley, then returned and handed Hensley the case with the camera purported to be inside. He testified that he did not look in the case when handed to him but could feel the weight of the camera in the closed case. Hensley then placed the video camera case into his pocket. The camera also included a video cord, paperwork, and a C.D. that explained how the camera worked. When Hensley was driving home about five minutes later, he was pulled over by Officer Wyatt Gayer for speeding.1 Hensley was driving with Ruwan in the passenger seat, and their other friend in the backseat of the vehicle.
Officer Gayer approached the vehicle and asked Hensley for his registration, insurance, and identification. Officer Gayer commenced the traffic stop with routine questions directed at Hensley. Gayer then asked if any illegal weapons or narcotics were in the vehicle, and testified that Hensley became visibly nervous, and attempted to confer with the other passengers. At this point, Gayer asked the other passengers not to speak for Hensley, and then asked him to step out of the vehicle so they could speak "one-on-one." A second detective, Dwayne Rolfson, arrived at this time to assist Gayer with the traffic stop.
Hensley exited his car, and Gayer asked Hensley again if he had anything illegal either in the car or on his person, to which Hensley answered no. In Gayer's opinion, Hensley seemed to get more nervous at this request. Gayer then asked Hensley if he would mind emptying his pockets onto the hood of the patrol car. Hensley emptied his pockets, and placed the contents, which included the camera case, on the back of the patrol car. Gayer asked permission to search the camera case, which Hensley granted. Inside the camera case, Gayer found some film, empty film canisters, papers, and a small knotted baggie of a tan substance, which was later identified as heroin. Gayer asked Hensley where the bag of heroin came from, but Hensley told him that he did not know, and that the camera case was not his, but rather Ruwan's. After the discovery of the heroin, Gayer and Rolfson searched the car and the other two occupants.
At the jury trial, Hensley testified that due to medical issues, his memory is "fuzzy" about the actual details of the traffic stop.2 He did testify, however, that he did not give consent for the officers to search his pockets or the camera case. He testified that he did not know where the heroin came from, but, on cross-examination, he admitted he did recognize what fell out of the camera case, and that the bag contained heroin. Additionally, he testified at trial that the camera was still in its case when he was searched by the police; no camera was located in the search.
Hensley was convicted by a Kenton County jury of first-degree possession of a controlled substance, heroin, and sentenced to three years. He now directly appeals his conviction and sentence. Any necessary additional facts will be discussed with the relevant argument.
Hensley makes three arguments on appeal. First, he argues that the trial court erred when it denied his motion to suppress because the search and seizure of his person violated the Fourth Amendment. Second, Hensley argues that the trial court violated KRE3 404(b) by permitting the introduction of his prior heroin use. And third, Hensley argues that his prior convictions should not have been admitted due to the prosecution's failure to disclose in a timely manner.
Hensley argues that the trial court erred in denying his motion to suppress for three reasons. First, he argues the trial court's findings were not supported by substantial evidence. Second, he argues that the initial traffic stop was not supported by probable cause, and was thus improper. Third, he argues Officer Gayer conducted an unreasonable search and seizure not supported by a warrant and not under any exception to the warrant requirement.
After a hearing on a defendant's suppression motion, a trial court's findings are deemed to be conclusive if supported by substantial evidence. See, e.g., Simpson v. Commonwealth, 474 S.W.3d 544, 547 (Ky. 2015); Talbott v.Commonwealth, 968 S.W.2d 76, 82 (Ky. 1998). The trial court's findings of fact will only be overturned if clearly erroneous. Davis v. Commonwealth, No. 2014-SC-000405-MR, 2016 WL 1068352, at *1 (Ky. Mar. 17, 2016); Welch v. Commonwealth, 149 S.W.3d 407, 409 (Ky. 2004). Finally, an appellate court conducts a de novo review of the trial court's application of the law to those facts to determine whether its decision is correct as a matter of law. Drake v. Commonwealth, 222 S.W.3d 254, 256 (Ky. App. 2007); Commonwealth v. Neal, 84 S.W.3d 920, 923 (Ky. App. 2002).
First, Hensley argues that the trial court's findings were not supported by substantial evidence as required by RCr4 9.78 and the first level of appellate review.5 RCr 8.27 governs motions to suppress evidence and requires the trial court to "state its essential findings on the record." RCr 8.27(5), RCr 8.20(2); see also CR 52.01.
Hensley argues that Officer Gayer's testimony is not corroborated by any other witness at the scene, nor was he wearing his body camera. However, corroboration is not required for a trial court's determination of witness credibility. The trial court specifically found Hensley's claims of coercion unbelievable and that his consent to the search was voluntary, and stated explicitly the facts onwhich it relied. The trial court's findings were "based squarely in the evidence presented at the suppression hearing." Hampton v. Commonwealth, 231 S.W.3d 740, 749 (Ky. 2007). A trial court's choice Id.
In this case, the trial court's findings about the voluntariness of the search were explicitly founded on Officer Gayer's testimony at the suppression hearing, which the court deemed trustworthy. The trial court's findings were therefore supported by substantial evidence, and thus not clearly erroneous. See id. Since we have determined the trial court relied on substantial evidence in its findings, we will now review the motion to suppress de novo to determine if the decision was correct as a matter of law. Commonwealth v. Pride, 302 S.W.3d 43, 49 (Ky. 2010).
Hensley argues Officer Gayer's initial traffic stop was pretextual and not supported by probable cause, and that Gayer also did not have probable cause to detain him after the initial traffic stop, for which he was not issued a citation.
This court recently addressed probable cause to initiate a traffic stop:
"[S]topping an automobile and detaining its occupants constitute a 'seizure' under the Fourth Amendment." Chavies v. Commonwealth, 354 S.W.3d 103, 108 (Ky. 2011) (citing Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979)(citations omitted)). Traffic stops are similar to Terry stops and must be supported by articulable, reasonable suspicion of criminal activity. Id. In Terry v. Ohio, the United States Supreme Court held that "in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968). Reasonable suspicion is the lowest tier of the pyramid comprised of probable cause (level two) and preponderance of the evidence (level three): "the likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of satisfying the preponderance of the evidence standard." United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002).
Baker v. Commonwealth, 475 S.W.3d 633, 634-35 (Ky. App. 2015). The Kentucky Supreme Court has held that "an officer who has probable cause to believe a civil traffic violation has occurred may stop a vehicle regardless of his or her subjective motivation[.]" Wilson v. Commonwealth, 37 S.W.3d 745, 749 (Ky. 2001). Recent Kentucky cases have addressed situations in which seemingly minor violations justified a traffic stop.6
In the instant case, that Hensley was exceeding the posted speed limit is not contested. Once Officer Gayer used stationary radar technology to clock Hensley going 30 m.p.h. in a posted 25 m.p.h. zone, he certainly had probablecause to believe that Hensley violated the traffic laws. The trial court did not err in finding that this traffic stop was proper and supported by probable cause.
Alternatively, Hensley argues that even if the traffic...
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