Hupp v. Commonwealth
| Decision Date | 05 March 2021 |
| Docket Number | NO. 2019-CA-0697-MR,NO. 2018-CA-1291-MR,2018-CA-1291-MR,2019-CA-0697-MR |
| Parties | CHARLES HUPP APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE AND KATELYN SMITH APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE |
| Court | Kentucky Court of Appeals |
NOT TO BE PUBLISHED
APPEAL FROM MADISON CIRCUIT COURT
At approximately 12:44 a.m. on June 6, 2016, Officer Carl Roark of the Richmond Police Department was contacted on his radio by dispatch regarding a tip received from Smith's mother. According to the tip, Hupp and Smith both had current arrest warrants and were departing the Blue Moon Bar in Richmond in a black Mercedes automobile. Furthermore, the tip indicated that Hupp was a convicted felon, a drug dealer, and was believed to be armed with a handgun. Smith's mother also told dispatch she wished to remain anonymous because she was afraid of Hupp. Based on the direction the Mercedes was said to be traveling, Officer Roark knew the vehicle would be coming toward his location. A fewminutes later, Officer Roark observed a black Mercedes traveling toward him. Reasoning that this must be the vehicle described by dispatch and that it contained individuals with active warrants, Officer Roark initiated a traffic stop.
After stopping the vehicle, Officer Roark made contact with the driver, who provided identification confirming he was Charles Hupp. He admitted having a warrant out of Florida but claimed it was not extraditable. Another officer, Stephen Madden, arrived on the scene and began to question the adult female passenger. She did not present identification, but she asserted her name was Allison Tye and provided a social security number. When he checked the information, Officer Madden did not believe this name or social security number belonged to her because "Allison Tye" was a juvenile, and the woman in the vehicle appeared to be older. As Hupp was asked to step out of the vehicle and escorted toward the cruiser, he told his passenger, "Katie, don't let anybody touch this car," which further indicated the woman was not who she claimed to be. At some point, Sergeant Brian Eaves of the Richmond Police Department arrived on the scene, and he appeared to know the woman. A photograph confirmed her name was actually Katelyn Smith. Officer Madden testified that Smith also had an outstanding arrest warrant.
When Officer Roark removed Hupp from the vehicle, he asked if he had drugs or firearms inside the vehicle. Hupp denied there was any contraband.Officer Roark then performed a Terry2 pat down of Hupp and discovered a pistol magazine in the pocket of the shorts he was wearing. When the officer asked Hupp about the pistol magazine, Hupp became noncompliant, although he told Officer Roark that the shorts he was wearing belonged to the owner of the Mercedes. Officer Roark then described what happened next in his testimony at the suppression hearing:
Notably, during this exchange, Officer Roark did not specify when he learned Hupp was a convicted felon, and this ambiguity was not clarified by Hupp's or Smith's defense attorneys on cross-examination.
The discovery of the pistol magazine led Officer Roark to believe Hupp was not telling the truth when he denied there was a firearm inside the vehicle. He then initiated a search of the vehicle for evidence of a convicted felon being in possession of a handgun. In the process of searching for the firearm, Officer Roark observed white residue on the driver's side floorboard and what hedescribed as "glassy shards" of what appeared to be methamphetamine crystals on the driver's seat. Upon searching the vehicle, the officers discovered a .40 caliber handgun in the glove compartment, 21.7 grams of methamphetamine in a headphones case, and 2.8 grams of heroin, spoons with burn marks, and syringes inside a purse. They also found a safe in the trunk, which unlocked with a key found on Hupp's car key ring. Inside the safe, the officers found 134.6 grams of methamphetamine, 18.9 grams of heroin, .40 caliber ammunition, plastic bags, and syringes. A search of Hupp's wallet, found in the driver's seat of the vehicle, revealed he was carrying $1,705 in cash. Later, after getting a search warrant, the police conducted a more thorough search of the vehicle and found additional contraband in the form of multiple cell phones and electronic devices, a burned spoon with residue, syringe caps, a syringe, plastic bags containing 6.6 grams of methamphetamine, prescription bottles, and a filled syringe which was suspected to contain heroin.
As a result of this incident, Hupp and Smith were jointly indicted on the following charges: second-degree possession of a controlled substance; possession of drug paraphernalia; first-degree trafficking in a controlled substance (more than two grams of methamphetamine, enhanced by possession of a firearm); and first-degree trafficking in a controlled substance (more than two grams of heroin, enhanced by possession of a firearm). Additionally, the indictment chargedHupp with being a convicted felon in possession of a handgun and being a first-degree persistent felony offender, while Smith faced an additional charge of identity theft.
Hupp subsequently moved the Madison Circuit Court to suppress evidence resulting from an unlawful investigative traffic stop, which he asserted violated his rights under the Fourth Amendment of the United States Constitution and Section 10 of the Kentucky Constitution.3 During the suppression hearing, the circuit court heard testimony conforming to the aforementioned narrative from the three police officers on the scene. Hupp argued the search of the vehicle after his traffic stop violated principles announced by the United States Supreme Court in Arizona v. Gant, 556 U.S. 332 (2009). Smith argued there was an insufficient basis for the traffic stop, reasoning that the call to dispatch could not be verified as coming from Smith's mother, and, thus, it should be considered an anonymous tip. Ultimately, the circuit court denied the motion to suppress, finding the tip was not anonymous and there was reasonable articulable suspicion to stop the vehicle. The court also found that the discovery of a loaded magazine on Hupp, a convicted felon, gave probable cause to search the vehicle for evidence of a felon in possession of a firearm.
Appellants subsequently entered conditional guilty pleas preserving their rights to appeal the denial of the suppression motion. On June 6, 2018, the circuit court sentenced Hupp to a total of ten-years' imprisonment based on two counts of trafficking in a controlled substance and one count of being a convicted felon in possession of a handgun. On April 1, 2019, the circuit court sentenced Smith to a total of eight-years' imprisonment based on one count of possession of a controlled substance, one count of possession of drug paraphernalia, two counts of trafficking in a controlled substance, and one count of identity theft. These appeals followed.4
The sole joint issue raised by appellants in this appeal is whether the circuit court erroneously denied their motion to suppress, arguing: (1) Officer Roark did not have reasonable articulable suspicion to initiate a traffic stop of the vehicle; and (2) the officers did not have probable cause to search the vehicle for evidence of a convicted felon in possession of a firearm because there was no evidence presented at the suppression hearing that established the officers knew Hupp was a convicted felon at the time of the search. Smith also argues on appeal that court costs were improperly assessed against her.
This Court's standard of review of a trial court's denial of a motion to suppress requires a two-step analysis. First, the trial court's factual findings are conclusive if supported by substantial evidence. Milam v. Commonwealth, 483 S.W.3d 347, 349 (Ky. 2015). Second, the court's application of the law to those facts and legal conclusions is reviewed de novo. Id.; Simpson v. Commonwealth, 474 S.W.3d 544, 547 (Ky. 2015).
To determine whether an investigatory stop of an automobile is lawful, the Kentucky Supreme Court has provided the following guidance:
In order to perform an investigatory stop of an automobile, there must exist a reasonable and articulable suspicion that a violation of the law is occurring. Delaware v. Prouse, 440 U.S. 648, 663, 99 S. Ct. 1391, 1401, 59 L. Ed. 2d 660, 673 (1979). Complications arise when, as here, the information serving as the sole basis of the officer's suspicion is provided by an anonymous informant, whose veracity, reputation, and basis of knowledge cannot be readily assessed. In situations such as these, we are required to examine the totality of the circumstances, and to determine whether the tip, once suitably corroborated, provides sufficient indicia of reliability to justify an...
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