Morton v. Com., No. 2006-CA-001756-MR.

CourtKentucky Court of Appeals
Writing for the CourtThompson
Citation232 S.W.3d 566
Docket NumberNo. 2006-CA-001756-MR.
Decision Date24 August 2007
PartiesMarkus MORTON, Appellant v. COMMONWEALTH of Kentucky, Appellee.
232 S.W.3d 566
Markus MORTON, Appellant
v.
COMMONWEALTH of Kentucky, Appellee.
No. 2006-CA-001756-MR.
Court of Appeals of Kentucky.
August 24, 2007.

[232 S.W.3d 567]

Roy Alyette Durham II, Assistant Public Advocate, Department of Public Advocacy, Frankfort, KY, for appellant.

Gregory D. Stumbo, Attorney General of Kentucky, Kristin N. Logan, Assistant Attorney General, Frankfort, KY, for appellee.

Before THOMPSON and WINE, Judges; HENRY,1 Senior Judge.

OPINION

THOMPSON, Judge.


Markus Morton appeals from a judgment of the Mason Circuit Court following his conditional guilty plea to possession of a controlled substance in the first degree. Pursuant to his plea, Morton reserved the right to appeal the denial of his suppression motion. Concluding that the trial court did not err, we affirm.

At Morton's suppression hearing, Maysville Police Officer Jeff Hord testified that he was driving behind Morton on East Fourth Street. When Morton came to a stop at the end of the street, without engaging his turn signal, he turned right onto U.S. Highway 68. After following Morton for approximately one mile and observing his car weave side-to-side, Hord initiated a traffic stop.

After he left his vehicle, Hord approached Morton's car and requested his

232 S.W.3d 568

driver's license and proof of insurance. Morton was able to produce his license but not his proof of insurance. While Morton remained in his car, Hord returned to his patrol vehicle and radioed a request to conduct a check of Morton's license. As they waited for the results of this check, Hord approached Morton's car with his drug-sniffing dog which had been in the back of his patrol vehicle. As the dog circled the exterior of the car, it alerted Hord to the trunk of the car and the driver's side door. From prior training, Hord testified that he knew this meant that the dog had detected the odor of drugs or recently removed drugs from the two locations.

Following these alerts, Hord placed the dog back in his patrol vehicle and then returned to Morton's car where he told Morton that the dog had detected the presence of drugs inside his car. He then asked Morton if he would consent to a search of the vehicle. After Morton refused to consent, Hord asked him to exit the car.

When he exited the car, Hord conducted a search of Morton which Hord characterized as a pat down search. During the search, Hord felt something in Morton's pants pocket. After removing the object, he discovered that it was a folded ten dollar bill with crack cocaine inside. Morton was then arrested.

After he was indicted, Morton moved to suppress the drug evidence found on his person alleging that it was the fruit of an unlawful search. Based on Hord's testimony at the suppression hearing, the trial court denied Morton's motion to suppress the drug evidence. In its written order, the trial court ruled that:

The fact that certified drug-sniffing dog "alerted" on defendant's car gave officer probable cause to search the defendant's car, which included the right to search the defendant who was in the car when the dog alerted. Fact that officer termed the search a "pat down" is of no significance.

After the denial of his motion, Morton entered a conditional guilty plea to first-degree possession of a controlled substance and was sentenced to one year's imprisonment. This appeal followed.

On appeal, Morton's sole assignment of error is that the trial court erred when it denied his motion to suppress the evidence obtained as a result of the search of his person. Specifically, he alleges that Hord's search was conducted in violation of the Fourth Amendment to the United States Constitution because it was unsupported by reasonable suspicion of a weapon nor justified as a search pursuant to the automobile exception.

On appellate review of a trial court's denial of a motion to suppress, we must apply the two-step process set out in Ornelas v. U.S., 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996), and adopted by Kentucky in Adcock v. Commonwealth, 967 S.W.2d 6 (Ky.1998). First, we review the trial court's findings of fact under the substantial evidence standard. Id. at 8. Under this standard, an appellate court will not disturb a trial court's findings of fact if they are supported by substantial evidence. Commonwealth v. Harrelson, 14 S.W.3d 541, 549 (Ky.2000). Substantial evidence has been defined as facts of substance and relative consequence having the fitness to induce conviction in the minds of reasonable persons. Kentucky Unemployment Ins. Com'n v. Landmark Community Newspapers of Kentucky, Inc., 91 S.W.3d 575, 579 (Ky.2002).

After this analysis, we then 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

232 S.W.3d 569

matter of law. Adcock, 967 S.W.2d at 8. De novo review affords no deference to the trial court's application of the law to the established facts. Cinelli v. Ward, 997 S.W.2d 474, 476 (Ky.App.1998).

In this case, the only evidence presented was from the Commonwealth's witness, Officer Hord. During the suppression hearing, Hord's testimony was clear and uncontroverted. Accordingly, we conclude that the trial court's findings of fact were supported by substantial evidence because the evidence presented to the trial court could have induced belief in the minds of...

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23 practice notes
  • Yell v. Com., No. 2006-SC-000327-MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • December 20, 2007
    ...narcotic alert dogs, who again alert to the existence of contraband, the existence of which is soon evident. See Morton v. Commonwealth, 232 S.W.3d 566, 569 (Ky.App.2007) ("when the drug dog detected the odor of drugs inside Morton's vehicle . . . Hord was provided with probable cause"). It......
  • Lamb v. Commonwealth, 2015–SC–000255–MR
    • United States
    • United States State Supreme Court (Kentucky)
    • February 16, 2017
    ...driver's side door, the officer had probable cause to search Appellant's vehicle and person pursuant to Morton v. Commonwealth , 232 S.W.3d 566 (Ky. App. 2007), and the automobile exception to the constitutional warrant requirement. We review a trial court's ruling on a motion to suppress b......
  • Commonwealth v. Harris, NO. 2014-CA-000300-MR
    • United States
    • Court of Appeals of Kentucky
    • October 2, 2015
    ...permissible only if the officers had probable cause to believe that Harris's vehicle contained illegal drugs. Morton v. Commonwealth, 232 S.W.3d 566, 569 (Ky. App. 2007) ("The automobile exception [] permits an officer to search a legitimately stopped automobile where probable cause exists ......
  • Carlisle v. Commonwealth, 2018-SC-000680-MR
    • United States
    • United States State Supreme Court (Kentucky)
    • May 28, 2020
    ...must appear to exist in order for an officer to have probable cause to either search or arrest a passenger." Morton v. Commonwealth , 232 S.W.3d 566, 570 (Ky. App. 2007) (quoting State v. Wallace , 372 Md. 137, 812 A.2d 291, 304 (2002) ). In this case, however, the officers discovered much ......
  • Request a trial to view additional results
23 cases
  • Yell v. Com., No. 2006-SC-000327-MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • December 20, 2007
    ...narcotic alert dogs, who again alert to the existence of contraband, the existence of which is soon evident. See Morton v. Commonwealth, 232 S.W.3d 566, 569 (Ky.App.2007) ("when the drug dog detected the odor of drugs inside Morton's vehicle . . . Hord was provided with probable cause"). It......
  • Lamb v. Commonwealth, 2015–SC–000255–MR
    • United States
    • United States State Supreme Court (Kentucky)
    • February 16, 2017
    ...driver's side door, the officer had probable cause to search Appellant's vehicle and person pursuant to Morton v. Commonwealth , 232 S.W.3d 566 (Ky. App. 2007), and the automobile exception to the constitutional warrant requirement. We review a trial court's ruling on a motion to suppress b......
  • Commonwealth v. Harris, NO. 2014-CA-000300-MR
    • United States
    • Court of Appeals of Kentucky
    • October 2, 2015
    ...permissible only if the officers had probable cause to believe that Harris's vehicle contained illegal drugs. Morton v. Commonwealth, 232 S.W.3d 566, 569 (Ky. App. 2007) ("The automobile exception [] permits an officer to search a legitimately stopped automobile where probable cause exists ......
  • Carlisle v. Commonwealth, 2018-SC-000680-MR
    • United States
    • United States State Supreme Court (Kentucky)
    • May 28, 2020
    ...must appear to exist in order for an officer to have probable cause to either search or arrest a passenger." Morton v. Commonwealth , 232 S.W.3d 566, 570 (Ky. App. 2007) (quoting State v. Wallace , 372 Md. 137, 812 A.2d 291, 304 (2002) ). In this case, however, the officers discovered much ......
  • Request a trial to view additional results

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