Kotila v. Commonwealth of Kentucky, 2000-SC-0341-MR.

• Decision Date: 12 June 2003
• Docket Number: 2000-SC-0341-MR.
• Citation: 114 S.W.3d 226
• Parties: RONALD KOTILA, APPELLANT v. COMMONWEALTH OF KENTUCKY, APPELLEE.
• Court: United States State Supreme Court — District of Kentucky

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RONALD KOTILA, APPELLANT v. COMMONWEALTH OF KENTUCKY, APPELLEE.

2000-SC-0341-MR.

Supreme Court of Kentucky.

June 12, 2003.

Original opinion rendered December 19, 2002.

Petition for rehearing and modification granted April 24, 2003.

Original opinion withdrawn April 24, 2003.

APPEAL FROM PULASKI CIRCUIT COURT HONORABLE DANIEL J. VENTERS, JUDGE 99-CR-68-2.

Richard Hoffman, Assistant Public Advocate, Frankfort, KY, for Appellant.

A. B. Chandler, III, Attorney General, Frankfort, KY and Gregory C. Fuchs, Assistant Attorney General, Frankfort, KY, for Appellee.

OPINION OF THE COURT

REVERSING AND REMANDING

Appellant Ronald Kotila was convicted in the Pulaski Circuit Court of manufacturing methamphetamine by "possess[ing] the chemicals or equipment for the manufacture of methamphetamine with the intent to manufacture methamphetamine," KRS 218A. 1432(1)(b), a Class B felony, KRS 218A.1432(2). The offense was enhanced to a Class A felony by the jury's additional finding that he was in possession of a firearm at the time the offense was committed, KRS 218A.992(1)(a). Appellant was sentenced to twenty-five years imprisonment and appeals to this Court as a matter of right, Ky. Const. § 110(2)(b), claiming (1) the trial judge should have suppressed evidence obtained during a consensual search and (2) statements he made during a custodial interrogation; (3) the evidence was insufficient to support his conviction; (4) the guilt phase instructions were erroneous; (5) the firearm enhancement evidence should have been reserved for the penalty phase; and (6) the statute under which he was convicted is unconstitutionally vague. Because we agree that Appellant was convicted under a prejudicially erroneous guilt phase instruction, we reverse his conviction and remand this case to the Pulaski Circuit Court for a new trial.

On May 14, 1999, an off-duty Somerset police officer, David Nelson, and his wife drove into the Wal-Mart parking lot and parked adjacent to a maroon Buick. Officer Nelson observed Appellant apparently placing something into or removing something from the Buick by reaching his arm through a slightly opened window, and noticed that Appellant was looking around in different directions as he did so, as if to see if anyone was watching. Suspecting that Appellant had either stolen something from the vehicle or placed possibly shoplifted items into the vehicle, and/or that Appellant was intoxicated, Officer Nelson sent his wife to find the Wal-Mart manager and a uniformed police officer while he kept Appellant under observation.

Appellant waited by the car for several minutes, then entered the Wal-Mart store. It was later determined that Appellant had been a passenger in the Buick and that the driver, Rita Newhouse, was inside the store during the events observed by Officer Nelson. Newhouse had the keys to the Buick which explained, in retrospect, why Appellant had not simply opened the car door.

Officer Nelson, now accompanied by two uniformed officers, Jason Griffith and Brad Stephens, approached the maroon Buick. Nelson had informed Griffith and Stephens of his suspicion that Appellant may have stolen items from or placed stolen items into the vehicle and that he appeared to be intoxicated. Looking through the windows of the vehicle, the officers observed a Wal-Mart bag laying on the front seat. Officer Griffith called in a request for a license plate check of the Buick and learned that the license plate was not registered to that vehicle. Officers Nelson and Griffith then proceeded toward the entrance of the store intending to question Appellant about his suspicious activity. When they encountered Appellant in the store's breezeway, Officer Griffith stopped him, informed him that he was suspected of shoplifting, and frisked him. Appellant was found to be unarmed and not in possession of any contraband.

Appellant identified himself to the officers and explained that he had purchased the items in the bag that was on the front seat of the Buick and offered to produce a receipt to prove it. Griffith recognized Appellant's name as being previously mentioned in connection with a methamphetamine investigation. Officers Nelson and Griffith returned with Appellant to the Buick while Officer Stephens called in a request for an NCIC check on Appellant. One of the officers was able to reach through the partially-opened window and unlock the door. Appellant then removed the bag from the front seat and produced a Wal-Mart receipt which did, in fact, coincide with the contents of the bag. Among other items in the bag were two lithium batteries and six boxes of 48-pack Equate antihistamine tablets, items the officers recognized as commonly used in the manufacture of methamphetamine.

When Ms. Newhouse returned to the Buick, the officers requested a consent to search the vehicle. Both Newhouse and Appellant consented to the search which produced a quantity of methamphetamine, various chemicals and equipment associated with the manufacture of methamphetamine, and a loaded .22 caliber Ruger handgun. Meanwhile, the NCIC check revealed that there were outstanding fugitive warrants against Appellant from Wisconsin. Based on the warrants, Appellant was placed under arrest and transported to the police station where he was read his Miranda rights, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and interrogated. Although Appellant denied owning the maroon Buick, he admitted that he "lived" in it. He also admitted to possessing the methamphetamine found in the vehicle and, when questioned whether "it was something he had made a couple of days ago and that what was there was what was left over," he responded "[t]hat's what it is." (The indictment did not charge Appellant with the offense of possession of a controlled substance in the first degree, KRS 218A.1415, and the trial judge did not instruct the jury on the alternative theory of actually manufacturing methamphetamine under KRS 218A.1432(1)(a). Thus, these admissions by Appellant were relevant only as circumstantial evidence of Appellant's intent to manufacture methamphetamine, a necessary element of the offense of which he was convicted. KRS 218A.1432(1)(b).)

I. SEARCH AND SEIZURE.

Appellant made a motion in limine to suppress the evidence discovered during the search of the Buick. The motion was overruled and the evidence was admitted at trial. Appellant argues that the seizure of his person and subsequent search of the vehicle were unreasonable under the circumstances and, thus, the evidence stemming from that search should have been suppressed. He cites United States v. Sharpe, 470 U.S. 675, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985), for the proposition that the scope and duration of police activities permitted during an investigative stop depends largely on the purposes intended to be served by the stop. Id. at 685, 105 S.Ct. at 1575. Appellant reasons that because Officer Nelson only suspected him of shoplifting and intoxication, the resulting investigation should have been limited to resolving those suspicions. Since Appellant was, in fact, sober and had not stolen anything, he posits that any further investigation was impermissible. While Appellant correctly states the law, he misconstrues its application.

There was testimony during the suppression hearing that Appellant consented to the search of the vehicle and Appellant did not deny giving his consent. Generally speaking, any inculpatory evidence recovered during a consensual search will not be suppressed on grounds that it was obtained without a search warrant. United States v. Mendenhall, 446 U.S. 544, 558-60, 100 S.Ct. 1870, 1879-80, 64 L.Ed.2d 497 (1980); United States v. Watson, 423 U.S. 411, 424-25, 96 S.Ct. 820, 828, 46 L.Ed.2d 598 (1976); cf. Florida v. Royer, 460 U.S. 491, 505, 103 S.Ct. 1319, 1328, 75 L.Ed.2d 229 (1983) (plurality opinion). However, a consent given during an illegal seizure or detention can so "taint" the consequent search as to render its fruits inadmissible. Rover, 460 U.S. at 507-08, 103 S.Ct. at 1329 (evidence obtained by consensual search during illegal detention suppressed because defendant's consent was tainted by the illegality of the detention); cf. Brown v. Illinois, 422 U.S. 590, 604-05, 95 S.Ct. 2254, 2262, 45 L.Ed.2d 416 (1975) (confession obtained during illegal arrest suppressed even though Miranda warnings had been given).

The proper inquiry becomes whether stopping Appellant on the Wal-Mart premises was a seizure under the Fourth Amendment and, if so, whether that seizure was legally justified and reasonable. Per Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), "whenever a police officer accosts an individual and restrains his freedom to walk away, he has `seized' that person." Id. at 16, 88 S.Ct. at 1877. See also Davis v. Mississippi, 394 U.S. 721, 726-27, 89 S.Ct. 1394, 1397, 22 L.Ed.2d 676 (1969) (Fourth Amendment applies to all seizures of the person, including those involving only a brief detention short of traditional arrest). Thus, the stop in question was a seizure and we are left to determine whether it was reasonable and justified.

In Terry, supra, the hard and fast rule requiring probable cause for any seizure whatsoever of a person was replaced with a more flexible approach that allows brief investigative stops by officers who are "able to point to specific and articulable facts" to justify such a stop. Id. at 21, 88 S.Ct. at 1880. The Terry approach to seizures is commonly said to require "reasonable suspicion," the presence or absence of which is determined on appeal under a de novo standard of review. Ornelas v. United States, 517 U.S. 690, 698-99, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996); Commonwealth v. Banks, Ky., 68 S.W.3d 347, 349 (2001).

The articulable reasonable suspicion standard is lower than the traditional probable cause standard. In Baker v. Commonwealth, Ky., 5 S.W.3d 142 (1999), we...