Maloney v. Commonwealth

• Decision Date: 17 March 2016
• Docket Number: 2014–SC–000339–DG
• Citation: 489 S.W.3d 235
• Parties: Anthony Maloney, Appellant v. Commonwealth of Kentucky, Appellee
• Court: United States State Supreme Court — District of Kentucky

489 S.W.3d 235

Anthony Maloney, Appellant

v.Commonwealth of Kentucky, Appellee

2014–SC–000339–DG

Supreme Court of Kentucky.

RENDERED: MARCH 17, 2016

Rehearing Denied June 16, 2016

COUNSEL FOR APPELLANT: John Gerhart Landon, Assistant Public Advocate, Department of Public Advocacy

COUNSEL FOR APPELLEE: Andy Beshear, Attorney General of Kentucky, Courtney J. Hightower, Assistant Attorney General, Office of the Attorney General

OPINION OF THE COURT BY JUSTICE VENTERS

After the Montgomery Circuit Court denied his motion to suppress evidence, Appellant Anthony Maloney entered a conditional guilty plea to being a convicted felon in possession of a firearm, carrying a concealed deadly weapon, and alcohol intoxication in a public place. He was sentenced to five years' imprisonment. The motion to suppress evidence was based upon the argument that Appellant's initial arrest for alcohol intoxication was improper and, therefore, the evidence obtained during the search incident to his arrest must be suppressed as the tainted fruit of an improper arrest. After entering the conditional plea, Maloney appealed. The Court of Appeals upheld the validity of the arrest and affirmed his conviction. We granted discretionary review to consider the validity of the arrest and the evidence thus obtained. Upon review, we reverse the Court of Appeals.

FACTUAL AND PROCEDURAL BACKGROUND

The Mount Sterling Police Department received a report from an identified caller that an intoxicated person was staggering in traffic on a city street. The caller described the subject as a white male wearing a blue t-shirt and green shorts. Officer Vernon Rogers went to the area to investigate, and near the location reported by the caller, he saw Appellant lying in a state of complete repose on the front porch of his residence. Appellant's torso was partially concealed by the porch railing, but his legs were visibly extended toward the front steps. His clothing matched the description given by the caller. Officer Rogers went onto the front porch, and after awakening Appellant, he detected the odor of alcohol on his breath. Rogers then arrested Appellant for alcohol intoxication in a public place pursuant to KRS 222.202(1)

. During the routine search incident to the arrest, Appellant, a convicted felon, admitted that he had an unloaded handgun in his pocket.

A Montgomery County grand jury indicted Appellant for being a convicted felon in possession of a handgun, carrying a concealed deadly weapon, and alcohol intoxication in a public place, third or greater offense. Appellant then moved to suppress the weapon seized at his arrest. In support of the motion, he argued that Officer Rogers lacked sufficient cause to arrest Appellant for alcohol intoxication and that the search of Appellant's person incident to the unauthorized arrest violated his Fourth Amendment protections. Consequently, Appellant asserted that any incriminating items or statements derived from the improper arrest were inadmissible. The trial court denied the motion. Appellant then entered a conditional guilty plea reserving the right to appeal the circuit court's denial of his motion to suppress.

At the Court of Appeals, Appellant reiterated his argument that the arrest was unlawful because at the time of arrest he was not committing a violation of KRS 222.202(1)

in the presence of Officer Rogers. He also argued in the Court of Appeals that Officer Rogers' entry onto the porch violated his Fourth Amendment rights as enunciated by the United States Supreme Court in Florida v. Jardines, ––– U.S. ––––, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013). The Court of Appeals affirmed the trial court's ruling. We granted discretionary review to consider the validity of Appellant's arrest.

ANALYSIS

Our standard for appellate review of rulings on pretrial motions to suppress evidence remains unchanged despite the recent repeal of RCr 9.78

and its reformulation under RCr 8.27. Simpson v. Commonwealth, 474 S.W.3d 544, 546–47 (Ky.2015). We apply the same two-step process adopted in Adcock v. Commonwealth, 967 S.W.2d 6, 8 (Ky.1998). First, we review the trial court's findings of fact, which are deemed to be conclusive, if they are supported by substantial evidence. Next, we review de novo the trial court's application of the law to the facts to determine whether its decision is correct as a matter of law. In this instance, the applicable facts are not disputed, and so our task is limited to a de novo review to determine whether the law governing arrests and searches incident to arrests was correctly applied.

I. APPELLANT'S WARRANTLESS ARREST FOR ALCOHOL INTOXICATION IN A PUBLIC PLACE WAS IMPROPER BECAUSE THE OFFENSE WAS NOT COMMITTED IN THE PRESENCE OF THE ARRESTING OFFICER.

With limited exceptions not applicable here, KRS 431.005(a)-(d)

sets forth the four circumstances in which a police officer is authorized to make an arrest. Those circumstances are:

(a) In obedience to a warrant; or

(b) Without a warrant when a felony is committed in his or her presence; or

(c) Without a warrant when he or she has probable cause to believe that the person being arrested has committed a felony; or

(d) Without a warrant when a misdemeanor, as defined in KRS 431.060

, has been committed in his or her presence [.]

Officer Rogers did not arrest Maloney “[i]n obedience to a warrant,” so subsection (a) is not applicable here. The Court of Appeals concluded that Rogers was authorized to make the arrest because the information relayed to him from the 911 caller, corroborated by his own personal observation of Appellant lying on the porch, provided ample probable cause to believe that Appellant was guilty of alcohol intoxication under KRS 222.202(1)

. Citing Faught v. Commonwealth, 656 S.W.2d 740, 741 (Ky.1983), and Williams v. Commonwealth, 147 S.W.3d 1 (Ky.2004), the Court of Appeals correctly recognized that probable cause for an arrest may be accumulated, not only from the officer's personal observations, but also from a corroborated tip of a known, reliable informant.

The problem with applying the Fraught

/Williams analysis to this case is that alcohol intoxication in a public place under KRS 222.202(1) is a misdemeanor, not a felony. Under KRS 431.005(d), a warrantless arrest for a misdemeanor is authorized only if the crime was committed in the officer's presence. Having probable cause to believe the offense was committed outside the officer's presence does not justify a warrantless arrest for a misdemeanor. Therefore, we must look closer at the circumstances of the actual arrest to determine if Appellant's conduct in the officer's presence constituted the offense of alcohol intoxication in a public place.

The relevant portion of KRS 222.202

defines the offense as follows: “A person is guilty of alcohol intoxication when he appears in a public place manifestly under the influence of alcohol to the degree that he may endanger himself or other persons or property, or unreasonably annoy persons in his vicinity.” Appellant makes two arguments in opposition to the Commonwealth's theory that his behavior in the presence of Officer Rogers amounted to alcohol intoxication under KRS 222.202(1).

First, he contends that his activity at the time of arrest did not manifest a state of intoxication “to the degree that he may endanger himself or other persons or property, or unreasonably annoy persons in his vicinity” as required by the statute. Second, he contends that the front porch on which he was seen was not “a public place” within the purview of KRS 222.202(1)

.

At the suppression hearing, Officer Rogers testified that he first observed Appellant “passed out” on the front porch of a residence.¹ Appellant prefers to describe his conduct as being “asleep” on the front porch. We understand the different perceptions generated by the different terms, but the difference is immaterial to our analysis. Regardless of the cause of his slumber, KRS 222.202(1)

requires conduct manifesting such a degree of intoxication that “he may endanger himself, or other persons, or property,” or that he may “unreasonably annoy persons in his vicinity.”

Appellant's only activity in the presence of Officer Rogers would more aptly be described as inactivity : lying flat on the floor of his front porch in a state of total repose. It is difficult to conceive of any behavior less likely to become a danger to persons or property, or less likely to unreasonably annoy others, than lying silent and motionless on one's front porch. Arguably, lying down at home and “sleeping it off” is the most socially responsible thing a drunk person could be doing.

In Commonwealth v. Mobley

we clarified that the applicable standard for a misdemeanor arrest is “whether a reasonable officer could conclude from all facts that a misdemeanor is being committed in his presence.” 160 S.W.3d 783, 787 (Ky.2005). Alcohol intoxication under KRS 222.202(1) requires much more than simply “being” drunk. It requires some behavior that “manifests,” meaning “exhibits” or “demonstrates,” alcohol intoxication “to the degree that he may endanger himself or other persons or property, or unreasonably annoy persons in his vicinity.” Appellant's pre-arrest conduct in Officer Rogers' presence had no propensity at all to endanger or unreasonably annoy anyone.

The Commonwealth points out that Appellant was “lying on the porch itself, not in a chair,” and that he “was not coherent and he did not want to wake up” when Officer Rogers placed him under arrest. To the extent they matter at all, those factors suggest even more convincingly that Appellant was doing nothing that may pose a danger to himself or others. The Commonwealth speculates that Appellant could have awakened at some later time and then “staggered back out into traffic,” thus later engaging in conduct that may be endangering or unreasonably annoying. We recognize from the plain language of KRS 222.202(1)

and from the word “may” in the phrase “may endanger himself or other...