K.H. v. Commonwealth

Decision Date24 July 2020
Docket NumberNO. 2017-CA-001989-DG,2017-CA-001989-DG
Citation610 S.W.3d 320
Parties K.H., a Child Under Eighteen, Appellant v. COMMONWEALTH of Kentucky, Appellee
CourtKentucky Court of Appeals

BRIEFS FOR APPELLANT: Laura A. Karem, Frankfort, Kentucky.

BRIEF FOR APPELLEE: Andy Beshear, Attorney General of Kentucky, Ashley R. Morgan, Special Assistant Attorney General, Lexington, Kentucky.

BEFORE: ACREE, GOODWINE, AND KRAMER, JUDGES.

OPINION

ACREE, JUDGE:

K.H., a minor, appeals the Fayette Circuit Court's order affirming the district court's denial of a motion to suppress evidence recovered pursuant to an investigatory stop and search of his person. K.H. frames the question as whether the district court erred by finding no constitutional violation when a police officer stopped and frisked K.H. following what he terms a completed misdemeanor, but one not committed in the officer's presence. For reasons set forth below, we answer his question in the negative and affirm the order denying the suppression motion.

BACKGROUND

The facts are not disputed. On September 21, 2015, Kimberly Kidd called the University of Kentucky Police Department to report that two individuals were in the parking lot adjacent to her workplace "beating on [car] windows with an object" and that they had entered her unlocked car. (Record (R.) at 7.) She was witnessing the events from her office window. She described the individuals to police dispatch as two black males, one in a blue shirt and shorts with a backpack and the other in a gray hoodie and jeans with a backpack. After they entered her car, she pressed the panic button on her key fob and that caused them to flee.

Lieutenant Ramsey, Officer Johnson, and Officer Morris of the university police were dispatched to the scene. Within five minutes of Kidd's call, Officer Johnson found two individuals fitting "the exact description that the witness/victim Kimberly Kidd had given." (Video Record (V.R.) 9/22/16; 10:42:50.) Lieutenant Ramsey arrived seconds later, followed shortly thereafter by Officer Morris. They were approximately two blocks from the parking lot. Both Officer Johnson and Lieutenant Ramsey questioned the individuals.

One of those individuals was fourteen-year-old K.H. K.H. told Lieutenant Ramsey he missed the school bus, and that was why he was in the area and not at school. Relying on information conveyed by dispatch (specifically, that the suspects were "beating on windows with an object" to break into cars), Lieutenant Ramsey conducted a pat-down of K.H. K.H. was polite and "very cooperative." (V.R. 9/22/16; 10:52:52.) Lieutenant Ramsey located a metal tire iron tucked either in K.H.’s pants or front hoodie pocket. When questioned about it, K.H. said he needed to bring the tire iron to his mother's car.

K.H. was charged with possession of burglary tools, a misdemeanor, and criminal trespass in the third degree, a violation. Prosecutors originally brought the case in juvenile court. However, K.H. failed to complete the diversion terms, and he was referred to district court.

K.H. filed a motion to suppress the fruits of the investigatory stop and frisk, including the tire iron. Officer Morris and Lieutenant Ramsey testified at the hearing. Officer Morris said Officer Johnson was the first to approach K.H. but that he completed the Uniform Citation and took Kidd's written statement.

Lieutenant Ramsey testified that he approached K.H. with the information from dispatch that the person reporting the crime witnessed the suspects "using something to break into cars." (V.R. 9/22/16; 10:51:30.) This was consistent with the citation and the contemporaneously completed Juvenile Complaint. (R. at 7, 8.) Concerned that items capable of breaking into cars could also serve as a weapon, he patted K.H. down. (Id. ) Neither the Commonwealth nor K.H. called Kidd to testify, nor did either introduce into evidence the dispatch call initiating these events or the 911 logs.

The district court entered an order finding the stop and frisk constitutional and denying K.H.’s suppression motion. K.H. appealed the order to the circuit court which affirmed. This Court granted discretionary review.

STANDARD OF REVIEW

The standard for reviewing the denial of a motion to suppress evidence is twofold, with deference being granted to the trial court as to factual findings, but with the trial court's legal conclusions being subject to de novo review. Whitlow v. Commonwealth , 575 S.W.3d 663, 668 (Ky. 2019).

ANALYSIS

K.H. says his case presents a unique scenario in our jurisprudence – he was improperly stopped and frisked in connection with a "completed misdemeanor" that was not witnessed by the police officer. Citing a "demonstrated legislative preference for issuing citations for low-level offenses," he first argues Kentucky has already "drawn a line: Terry[1 ] stops to investigate completed ‘citable’ misdemeanors are per se unreasonable and unconstitutional." (Appellant's brief, pp. 8-9 (citing KRS 2 431.015 ).) We are unpersuaded.

No per se rule prohibiting stops to investigate a "completed misdemeanor"

For purposes of our initial analysis, we accept K.H.’s premise that the misdemeanor and violation with which he was charged were "completed" crimes. K.H. acknowledges that in United States v. Hensley , the Supreme Court of the United States clarified that constitutionally permissible Terry stop-and-frisk procedures were not limited to ongoing and imminent criminal activity. 469 U.S. 221, 105 S. Ct. 675, 83 L. Ed. 2d 604 (1985). As the Court said:

We do not agree ... that our prior opinions contemplate an inflexible rule that precludes police from stopping persons they suspect of past criminal activity unless they have probable cause for arrest. To the extent previous opinions have addressed the issue at all, they have suggested that some investigative stops based on a reasonable suspicion of past criminal activity could withstand Fourth Amendment scrutiny.

Id. , 469 U.S. at 227, 105 S. Ct. at 679.

However, K.H. notes that Hensley is limited to completed felonies. He is correct that the Court expressly reserved the question regarding investigatory stops relating to past, non-felony criminal activity. The Court said:

We need not and do not decide today whether Terry stops to investigate all past crimes, however serious, are permitted. It is enough to say that, if police have a reasonable suspicion, grounded in specific and articulable facts, that a person they encounter was involved in or is wanted in connection with a completed felony , then a Terry stop may be made to investigate that suspicion.

Id. , 469 U.S. at 229, 105 S. Ct. at 680 (emphasis added).

Based on the door left open in Hensley , K.H. claims his case falls within a subset of investigatory stops that are not permissible because the crimes with which he was charged were non-felonies. We disagree.

K.H. is correct that for some time after Hensley was rendered, federal and state courts were divided. Some found an investigatory stop of a completed misdemeanor to be per se unconstitutional while others applied the same principles expressed in Hensley to determine whether a Terry stop for completed non-felonies can survive constitutional scrutiny. Kentucky has yet to address the issue.3 K.H. first argues for adoption of the per se or bright-line rule prohibiting Terry stops for any completed non-felony. However, he does not persuade us.

Among the earliest courts to adopt the per se rule was the Minnesota Court of Appeals.

Blaisdell v. Commissioner of Public Safety , 375 N.W.2d 880 (Minn. Ct. App. 1985) ( Blaisdell I ). Blaisdell I held that "stops to investigate completed misdemeanors violate the fourth amendment of the United States Constitution." Id. at 884. Several state and federal courts have cited Blaisdell I but rarely have they followed it.4 The Minnesota Supreme Court itself affirmed Blaisdell I but did so on other grounds and was skeptical of the "per se " rule saying, "[I]t was ... unnecessary for the Court of Appeals to decide the broader issue of whether all stops to investigate completed misdemeanors are impermissible" and expressing "no opinion as to the correctness of the Court of Appeals’ holding." Blaisdell v. Commissioner of Public Safety , 381 N.W.2d 849, 849, 850 (Minn. 1986) ( Blaisdell II ). Since then, the Minnesota Court of Appeals has "repeatedly held that a stop to investigate a misdemeanor committed in ‘the very recent past’ is lawful." State v. Voss , No. A16-1753, 2017 WL 1833320, at *4 (Minn. Ct. App. May 8, 2017) (citing State v. Stich , 399 N.W.2d 198, 199 (Minn. Ct. App. 1987) ("No precedent holds that it is unlawful to make an immediate pursuit and stop of a person who has committed a misdemeanor in the very recent past, and we accordingly find no error in the trial court's ruling.")). "Accordingly," as said by the federal district court in Arizona, "it would appear that Blaisdell [I ] no longer constitutes a bright line rule, even in Minnesota." United States v. Cheek , 586 F. Supp. 2d 1099, 1105 (D. Ariz. 2008).

A similar evolution away from the per se rule occurred among the federal circuits. The Sixth Circuit was first to consider the question. In Gaddis ex rel. Gaddis v. Redford Township , the court described a bright-line prohibition against stops based on the reasonable suspicion of a "mere completed misdemeanor." 364 F.3d 763, 771 n.6 (6th Cir. 2004). Subsequent state and federal jurisprudence "prompted every other circuit to follow the Hensley facts-and-circumstances test in considering the misdemeanor side of the problem." United States v. Jones , 953 F.3d 433, 436 (6th Cir. 2020) (citations omitted).

In 2007, the Ninth Circuit declined to adopt the Sixth Circuit's per se rule. United States v. Grigg , 498 F.3d 1070 (9th Cir. 2007). That court said "a reviewing court must consider the nature of the misdemeanor offense in question, with particular attention to the potential for ongoing or repeated danger...

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