Kleem v. Commonwealth

• Decision Date: 20 July 2018
• Docket Number: NO. 2017-CA-000363-MR,2017-CA-000363-MR
• Parties: KRISTA MARIE KLEEM APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
• Court: Court of Appeals of Kentucky

KRISTA MARIE KLEEM APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

NO. 2017-CA-000363-MR

Commonwealth of Kentucky Court of Appeals

JULY 20, 2018

NOT TO BE PUBLISHED

APPEAL FROM BOONE CIRCUIT COURT

HONORABLE JAMES R. SCHRAND II, JUDGE

ACTION NO. 16-CR-00094

OPINION

REVERSING AND REMANDING

** ** ** ** **

BEFORE: DIXON, D. LAMBERT AND SMALLWOOD, JUDGES.

DIXON, JUDGE: Appellant, Krista Kleem, appeals from a judgment of the Boone Circuit Court sentencing her to five years' imprisonment following her conditional guilty plea to one count of first-degree trafficking in a controlled substance, first offense, and one count of third-degree criminal mischief. Appellant challenges the trial court's denial of her motion to suppress evidence seized during a search of her purse. We agree that the search was constitutionally impermissible and, therefore, reverse the trial court.

On September 7, 2015, Boone County Sheriff's Deputy John Stidham responded to an automobile accident near Houston Road in Boone County, in which Appellant was the driver. When he arrived at the scene, Deputy Stidham found Appellant sitting in the grass in close proximity to her vehicle. She had a laceration on her forehead and Deputy Stidham noticed that there was hair embedded in the windshield of her vehicle. Deputy Stidham further observed that Appellant smelled of alcohol, had slurred speech and was unsteady on her feet. Based on his observations, Deputy Stidham requested EMS assistance. When the ambulance arrived, Appellant became aggressive, kicking and swinging at medical personnel. Deputy Stidham was advised by EMS personnel that Appellant's behavior was consistent with having suffered a head trauma. Appellant's uncooperativeness required EMS personnel to strap her legs to the backboard while officers held down her arms. After Appellant was loaded into the ambulance, she requested her purse. One of the EMS personnel retrieved it from her vehicle and placed it on her chest. Because of Appellant's aggressive and unpredictable behavior, Deputy Stidham immediately took the purse from Appellant and searched it for the stated purpose of ensuring she did not have a weapon. In the process, he discovered a bag of cocaine therein. Appellant was thereaftertransported to the hospital. Deputy Stidham did not arrest or charge her with any offense at that time.

On February 2, 2016, Appellant was indicted by a Boone County Grand Jury for first-degree trafficking in a controlled substance (cocaine), first offense, first-degree operating a motor vehicle under the influence of drugs or alcohol, and third-degree criminal mischief. Subsequently, on April 13, 2016, Appellant filed a motion to suppress the evidence of the cocaine, arguing that the search of her purse was unconstitutional because Deputy Stidham did not have probable cause or reasonable suspicion under the Fourth Amendment to conduct the search. Following a hearing, the trial court entered an order denying Appellant's motion. Therein, the trial court noted,

Upon contacting the Defendant, Deputy Stidham noted her forehead had a laceration and her hair was imbedded into the windshield of the wrecked vehicle. He smelled alcohol on her person and she had slurred speech and was unsteady on her feet. She became combative with medical personnel and had to have her lower extremities restrained. Although the deputies were holding her arms, her purse, which was on her chest and which she could have gained immediate access to, could have contained a hidden danger or weapon. Deputy Stidham took it and looked inside of it for safety reasons to look for weapons.

Appellant thereafter entered a conditional guilty plea to first-degree trafficking in a controlled substance, first offense, and third-degree criminal mischief. In exchange, the Commonwealth dismissed the DUI charge andrecommended a five-year sentence. Appellant reserved her right to appeal the trial court's denial of her suppression motion. The trial court entered a judgment and sentence in accordance with the plea agreement. This appeal ensued.

In this Court, Appellant argues that the trial court erred in denying her suppression motion because there was no exception to the warrant requirement that justified Deputy Stidham's search of her purpose. Specifically, Appellant contends that the Commonwealth failed to prove that either probable cause and exigent circumstances existed, or that a search pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) was warranted. As such, Appellant argues that the search was unconstitutional, and the evidence obtained should have been suppressed as "fruit of the poisonous tree." See generally Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

For cases involving suppression issues, this Court uses the standard of review set forth by the United States Supreme Court in Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996), and adopted by the Kentucky Supreme Court in Adcock v. Commonwealth, 967 S.W.2d 6 (Ky. 1998). Under Ornelas, the decision of the trial court on a motion to suppress, which is based on an alleged illegal search, is subject to a two-part analysis. First, factual findings of the trial court are conclusive if they are not clearly erroneous and are supported by substantial evidence. Id. at 699, 116 S.Ct. at 1663. See alsoCommonwealth v. Neal, 84 S.W.3d 920, 923 (Ky. App. 2002). Second, we conduct a de novo review of the trial court's application of the law to the established facts to determine whether its ruling was correct as a matter of law. Id.; Welch v. Commonwealth, 149 S.W.3d 407, 409 (Ky. 2004).

"The Fourth Amendment to the United States Constitution, applicable to the states through the Fourteenth Amendment prohibits unreasonable searches and seizures." Commonwealth v. Patton, 430 S.W.3d 902, 906 (Ky. App. 2014) (footnotes omitted). "It is fundamental that all searches without a warrant are unreasonable unless it can be shown that they come within one of the exceptions to the rule that a search must be made pursuant to a valid warrant." Cook v. Commonwealth, 826 S.W.2d 329, 331 (Ky. 1992). See also Commonwealth v. Ousley, 393 S.W.3d 15, 23 (Ky. 2013). The Commonwealth bears the burden to demonstrate that the warrantless search of Appellant's purse falls within a recognized exception. Gallman v. Commonwealth, 578 S.W.2d 47, 48 (Ky. 1979).

The trial court herein, citing to King v. Commonwealth, 386 S.W.3d 119, 122 (Ky. 2012), noted that "[i]n the absence of consent, police may not conduct a warrantless search or seizure without probable cause and exigent circumstances." However, the trial court never made any findings that Deputy Stidham had probable cause that evidence of a crime was in Appellant's purse or that exigent circumstances existed. Rather, the trial court simply concluded thatsafety reasons justified the search. The Commonwealth, while implicitly conceding that probable cause and exigent circumstances did not exist, nevertheless argues that the search of Appellant's purse should be deemed constitutional under Terry.

In the seminal Terry decision, the United States Supreme Court stated,

[W]e cannot blind ourselves to the need for law enforcement officers to protect themselves and other prospective victims of violence in situations where they may lack probable cause for an arrest. When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm.

. . .

Our evaluation of the proper balance that has to be struck in this type of case leads us to conclude that there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. Cf. Beck v. State of Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 226, 13 L.Ed.2d 142 (1964); Brinegar v. United States, 338 U.S. 160, 174-176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949); Stacey v. Emery, 97 U.S. 642, 645, 24 L.Ed. 1035 (1878). And in determining whether the officer acted reasonably in suchcircumstances, due weight must be given, not to his inchoate and unparticularized suspicion or 'hunch,' but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience. Cf. Brinegar v. United States, supra.

392 U.S. at 24-27, 88 S.Ct. at 1881-83. (footnotes omitted). As explained by the Kentucky Supreme Court in Commonwealth v. Banks, 68 S.W.3d 347 (Ky. 2001), "the test for a Terry stop and frisk is not whether an officer can conclude that an individual is engaging in criminal activity, but rather whether the officer can articulate reasonable facts to suspect that criminal activity may be afoot and that the suspect may be armed and dangerous." Id. at 350-51 (emphasis in original). The purpose of a Terry search is not to discover evidence of a crime but to allow the officer to investigate "without fear of violence or physical harm." Baltimore v. Commonwealth, 119 S.W.3d 532, 538 (Ky. App. 2003) (footnotes omitted). Therefore, "[a] lawful stop does not necessarily carry with it the authority to conduct a pat-down search." Bennett v. City of Eastpointe, 410 F.3d 810, 822 (6th Cir. 2005).

Whether a pat-down is permitted depends upon whether the totality of the circumstances indicate there was reasonable suspicion the...