Mash v. Com., 88-SC-76-MR

• Decision Date: 04 May 1989
• Docket Number: No. 88-SC-76-MR,88-SC-76-MR
• Citation: 769 S.W.2d 42
• Parties: William Casterdill MASH, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 42

769 S.W.2d 42

William Casterdill MASH, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 88-SC-76-MR.

Supreme Court of Kentucky.

May 4, 1989.

Larry H. Marshall, Asst. Public Advocate, Dept. of Public Advocacy, Frankfort, for appellant.

Frederic J. Cowan, Atty. Gen., Rickie L. Pearson, Asst. Atty. Gen., Frankfort, for appellee.

COMBS, Justice.

Appellant was tried and convicted by a McCracken Circuit Court jury for the offense of trafficking in LSD, and given a ten-year sentence. Thereafter, he was tried and found guilty as a second-degree persistent felony offender, and his sentence was enhanced to a term of twenty years.

Though various issues were raised in this appeal, we confine our discussion to the dispositive one, that is, the validity of appellant's initial arrest, and his subsequent searches and seizure.

Paducah Police Officer Clovis Lovelace was patrolling the north side of the city on the night of May 13, 1986. According to his testimony, Officer Lovelace had previously witnessed people gambling in the same vicinity on several occasions. On this particular night, as he turned the corner he saw two men hunched over on the street. The appellant remained on the sidewalk putting money in his pocket while the other man immediately left the scene, crossed the street and entered a nearby house. Believing the men had engaged in gambling, Officer Lovelace arrested appellant and later apprehended the other man. He searched both "down to their feet." No gambling paraphernalia or illegal drugs were recovered from either of the two men. Officer Lovelace then placed the men in his patrol car. Surprisingly, he took appellant to jail and charged him with disorderly conduct by gambling, but took the other man home and released him.

There are two versions as to what happened when appellant and the arresting officer arrived at the jail. The first version came to light at a suppression hearing. When asked as to whether or not he had seen twenty-two pills removed by the jailer from appellant he stated he did not see them nor did he know where the pills "came from".

The jailer testified that he searched appellant and found a small circular can concealed in one of appellant's socks and that the can contained twenty-two small pills which turned out to be LSD. ¹

The jailer testified that Officer Lovelace was present at this time and saw him remove the container with the pills. Officer Lovelace tended to corroborate the jailer's testimony on most of these points at the trial. Though Officer Lovelace was supposedly still present, the jailer testified that he called the police department and requested another officer be sent over to pick up the container and the pills. One or two other officers supposedly handled the container before they were finally turned over to a drug enforcement officer. Both of these officers felt that the suspect pills contained LSD and placed them in the police department's drug locker for later analysis. Appellant was released on bond the next day. No other charges were filed against him because the pills had not been analyzed.

Thereafter the gambling charge was tried before the court and dismissed for lack of evidence. A little over a year after the initial arrest and on April 2, 1987, the police department received the result of the analysis which confirmed their suspicions that the pills contained LSD. When asked about the delay, the officer testified that he had forgotten where he had placed the exhibit.

Sometime before the original twenty pills became twenty-two, and before the lab results had been known the appellant had obviously instituted some sort of civil action against one of the officers including the jailer. Thereafter the case was presented to the grand jury which resulted in the indictment charging him with trafficking in LSD.

At the suppression hearing and at trial appellant's counsel unsuccessfully argued that Lovelace's warrantless arrest of appellant was illegal because no misdemeanor was being committed in the officer's presence. The Commonwealth, relying upon the case of Cooper v. Commonwealth, Ky.App., 577 S.W.2d 34 (1979), successfully argued that the arrest and subsequent searches and seizure were valid because Officer Lovelace had probable cause for believing that appellant had committed a misdemeanor. The conviction in Cooper was affirmed. The Court of Appeals held:

Therefore, when Trooper Arnold approached the car and smelled marijuana smoke, he had probable cause to believe that a misdemeanor was being committed in his presence by Cooper, and the arrest without a warrant was proper. KRS 431.005.

Id. 577 S.W.2d 34 at 36.

There is a marked difference between Cooper and the instant case. Here, the only thing Officer Lovelace had seen was the appellant and another man stooped over on the sidewalk and later saw appellant putting money in his pocket. Such activity is as consistent with innocence as with guilt and certainly does not serve as a basis for holding that appellant was committing the offense of gambling in the presence of Officer Lovelace.

KRS 431.005(1)(d) provides, in part, that "a peace officer may make an arrest without a warrant when a misdemeanor ... has been committed in his presence." At argument it was virtually admitted by the Assistant Attorney General that there was insufficient evidence to authorize Officer Lovelace to arrest appellant for a misdemeanor. But he argued that under Cooper the arrest was valid as was the subsequent search and seizure. It is unfortunate for all concerned that the holding in Cooper ...