Jennings v. Commonwealth
| Decision Date | 05 February 2016 |
| Docket Number | NO. 2014-CA-000899-MR,2014-CA-000899-MR |
| Parties | ANTONIO JENNINGS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE |
| Court | Kentucky Court of Appeals |
NOT TO BE PUBLISHED
APPEAL FROM CAMPBELL CIRCUIT COURT
Jennings was indicted by a Campbell County grand jury on charges of possession of a handgun by a convicted felon and possession of drug paraphernalia. During the pendency of the action, he filed a motion to suppress the evidence based on the allegation that his vehicle was illegally searched. The record indicates that on March 16, 2011, Officer John Dunn of the Newport Police Department observed Jennings's vehicle at 1:15 a.m. when he drove it past an entrance to a liquor store and stopped at a traffic light. After stopping, Jennings backed the vehicle up into oncoming traffic for about half a block and made a right turn into the liquor store without using his turn signal.
The liquor store was a drive-thru liquor store. Officer Dunn turned into the parking lot and saw other vehicles in a line behind Jennings's vehicle. Although Officer Dunn planned on stopping Jennings's vehicle, he decided to wait until Jennings drove out of the parking lot. In addition, Officer Dunn radioed for back-up, and Sergeant Herschel Day, who was in the area, came to his assistance. Each police officer stationed himself on a different street on either side of the liquor store. Jennings exited onto the street where Sergeant Day was located, and a traffic stop was initiated.
Officer Dunn took over shortly thereafter as he arrived at the scene. He approached the driver's side while Sergeant Day approached the passenger side where a woman was seated. After routine questioning, Officer Dunn noted the smell of alcohol but he could not see anything in the vehicle and asked Jennings to step out of the vehicle. Instead of complying with the officer's request, Jennings reached to his right behind the front passenger seat. Concerned, Officer Dunn stepped forward, put his hand on his service weapon, asked Jennings what he was reaching for, and told him to get out of the vehicle. Because of Jennings's behavior, the officer patted him down for weapons and cuffed him. Officer Dunn then seated Jennings on the bumper of the police cruiser and asked for permission to search his vehicle. Jennings denied permission and asked to see his lawyer.
Meanwhile, Sergeant Day remained with the female passenger and spoke with her. Officer Dunn never spoke with the female passenger during the stop. During the conversation, Sergeant Day noticed a clear cup with liquid in it in plain view on the center console. The cup was the type of cup provided by the aforementioned liquor store. Sergeant Day also smelled alcohol coming from the vehicle. The female passenger said the alcohol was hers. Sergeant Day asked her to get out of the vehicle and she complied. When Sergeant Day reached in to retrieve the cup, he noticed another cup of partially spilled liquor on the passenger floorboard and that the carpet was wet. It, too, smelled of alcohol. He then moved the passenger seat forward and saw a handgun under the seat.
Sergeant Day explained his actions by stating that because of the alcohol in the cups and the fact that the vehicle had just pulled out of a liquor store, he was looking for an open bottle of alcohol. The sergeant recovered both cups, emptied them, checked for warrants on the female passenger, and cited her for having an open container. She ultimately left the scene on foot. Apparently, it was at this point, after Sergeant Day had discovered the gun, that Officer Dunn advised him that Jennings had not given permission to search the vehicle. Indeed, Sergeant Day testified that he was only informed of this fact after he looked into the vehicle for a liquor bottle. Jennings was not charged for possession of alcohol but was arrested for possession of the gun and drug paraphernalia. A digital scale was found in the vehicle.
On July 12, 2011, Jennings filed a motion to suppress the evidence seized during the search of his vehicle because the search was not consensual, unnecessary, and violated his rights under the Fourth Amendment. The trial court conducted a hearing on the matter on August 22, 2011. On October 3, 2011, it denied the motion to suppress citing Arizona v. Gant, 556 U.S. 332, 335, 129 S. Ct. 1710, 1714, 173 L. Ed. 2d 485 (2009). Gant discusses the automobile exception and held that a warrantless search of a vehicle is justified when it is reasonable to believe evidence relevant to the crime may be found in the vehicle. Following this line of reasoning, the trial court held that the officers had probable cause to stop Jennings's vehicle and probable cause to search the passenger compartment for evidence of an open container violation.
Following the denial of the motion to suppress, Jennings entered a conditional guilty plea to the charge of being a felon in possession of a firearm. The trial court accepted the conditional plea and on December 2, 2011, sentenced him to six years on the charge of Possession of a Handgun by a Convicted Felon and twelve months for Possession of Drug Paraphernalia, with the sentences to run concurrently. The conditional plea permits Jennings to appeal the trial court's denial of his motion to suppress, which he now does.
Appellate review of a trial court order on a suppression motion involves a two-step analysis. Commonwealth v. Whitmore, 92 S.W.3d 76 (Ky. 2002). First, the factual findings of the trial court are reviewed for clear error and are deemed conclusive if supported by substantial evidence. Bauder v. Commonwealth, 299 S.W.3d 588, 591 (Ky. 2009)(citations omitted); Kentucky Rules of Criminal Procedure (RCr) 9.78. Second, if the findings are supported by substantial evidence, the appellate court conducts a de novo review to determine whether the trial court's ruling is correct as a matter of law. Whitmore, 92 S.W.3d at 79. We turn now to the case at hand.
Jennings argues that he was denied his right to be free from unreasonable search and seizures under the Fourth Amendment of the United States Constitution and Section Ten of the Kentucky Constitution. He bolsters this argument by suggesting that warrantless searches are per se unreasonable; no exception to the warrantless search requirement applies here; and in particular, no probable cause existed for the automobile exception to warrantless searches. The Commonwealth counters that the search was based upon an established exception to the warrant requirement, and therefore, it was proper for the trial court to deny the motion to suppress.
We begin by noting with regard to the two-part analysis that no dispute exists as to whether substantial evidence supported the trial court's findings of fact. This leads us to the second part of the analysis - whether the trial court's ruling was correct as a matter of law. It is fundamental that all searches without warrants are unreasonable unless it can be shown that they come within one of the exceptions to the rule requiring a search 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). Furthermore, it is the Commonwealth's burden to justify the search under one of the exceptions to the warrant requirement. Cook v. Commonwealth, 826 S.W.2d 329, 331 (Ky. 1992).
A well-established exception to the warrant requirement is the automobile exception, articulated originally in Carroll v. U.S., 267 U.S. 132, 149, 45 S.Ct. 280, 283-4, 69 L.Ed. 543 (1925), which allows a warrantless search of an automobile based on probable cause to believe it contains contraband. The automobile exception to a warrantless search allows officers to search a legitimately stopped automobile when probable cause exists that contraband or evidence of a crime is in the vehicle. United States v. Ross, 456 U.S. 798, 800-01, 102 S.Ct. 2157, 2159-61, 72 L.Ed.2d 572, 578 (1982) (citations omitted); Estep v. Commonwealth, 663 S.W.2d 213 (Ky. 1983).
In addition, the Court held that where probable cause justifies the search of a lawfully stopped vehicle, it also justifies the search of every part of the vehicle and its compartments and contents that may conceal the object of the search. Ross, 456 U.S. at 808, 102 S.Ct. at 2164. Our Courts adopted the automobile exception to the warrant requirement in Clark v. Commonwealth, 868 S.W.2d 101, 106-107 (Ky. 1993), overruled on other grounds by Henry v. Commonwealth, 275 S.W.3d 194 (Ky. 2008).
A search may be as thorough as a magistrate could authorize via a search warrant, including all compartments of the automobile and all containers in the automobile which might contain the object of the search. Ross, 456 U.S. at 823-24, 102 S.Ct. at 2172-73; Estep, 663 S.W.2d at 215. And it has been determined that traffic stops are similar to Terry stops and must be supported by articulable reasonable suspicion of criminal activity. Berkemer v. McCarty, 468 U.S. 420, 439, 104 S.Ct. 3138, 3150, 82 L.Ed.2d 317 (1984) (citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). Our Supreme Court clarified that the level of articulable suspicion sufficient to justify a stop has been described as considerably less than proof of wrongdoing by a preponderance of the evidence. Commonwealth v. Banks, 68 S.W.3d 347, 351 (Ky. 2001)(citations...
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