Nichols v. Com., No. 2004-CA-001426-MR.

• Decision Date: 21 October 2005
• Docket Number: No. 2004-CA-001426-MR.
• Citation: 186 S.W.3d 761
• Parties: David NICHOLS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: Kentucky Court of Appeals

186 S.W.3d 761

David NICHOLS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 2004-CA-001426-MR.

Court of Appeals of Kentucky.

October 21, 2005.

Kimberly Ann Brooks Tandy, Covington, KY, for appellant.

Gregory D. Stumbo, Attorney General of Kentucky, Ken W. Riggs, Assistant Attorney General, Frankfort, KY, for appellee.

Before COMBS, Chief Judge; HENRY and TACKETT, Judges.

OPINION

HENRY, Judge.

William Wells is a police officer with the City of Radcliff. When off duty, Wells works as a security guard in a Kroger store in Elizabethtown. Late at night on November 2, 2003, while working at Kroger, Wells noticed David Nichols purchasing what Wells considered an unusually large quantity of a cold remedy containing pseudoephedrine. Knowing that pseudoephedrine is an essential ingredient in the manufacture of methamphetamine, Wells notified the Elizabethtown Police Department. Officer Billy Boling was then dispatched to Kroger to investigate.

On his arrival at Kroger, Boling spoke to William Wells. Wells had observed Nichols getting into a black Camaro after exiting the store. Boling "conducted a traffic stop" on the Camaro as Nichols started to drive away. Boling told Nichols why he had stopped him and asked permission to search the vehicle, which Nichols granted. The search yielded a Marlboro cigarette pack containing a marijuana cigarette and three Kroger bags containing ten boxes of pseudoephedrine pills. Although some of the pills were missing, each box had originally contained 96 pills, each containing 30 milligrams of pseudoephedrine. During questioning Nichols admitted that he was to have been paid $200.00 for buying the pills and that he knew that the pills would be used in the manufacture of methamphetamine. An indictment was returned against Nichols charging him with one count of Unlawful Distribution of a Methamphetamine Precursor, a Class D felony proscribed by KRS¹ 218A.1438, one count of Unlawful Possession of a Methamphetamine Precursor, a Class D felony proscribed by KRS 218A.1437, and Possession of Marijuana, a Class A misdemeanor proscribed by KRS 218A.1422.

Nichols, through his counsel, filed a motion to suppress all the seized evidence on the ground that Officer Boling lacked a sufficient legal reason to make an investigatory stop. When the motion was overruled, Nichols entered a conditional plea of guilty pursuant to RCr² 8.09, reserving the right to appeal the ruling. The charge of Unlawful Possession of a Methamphetamine Precursor was dismissed, and Nichols pleaded guilty to one count of Unlawful Distribution of a Methamphetamine Precursor and one count of Possession of Marijuana. In exchange for Nichols' plea, the Commonwealth recommended a sentence of a total of three-years' imprisonment probated for five years. On appeal, Nichols urges us to reverse the order of the trial court overruling his motion to suppress all the seized evidence, arguing that Officer Boling stopped him without a reasonable and articulable suspicion of criminal activity in violation of the Fourth and Fourteenth Amendments to the United States Constitution and Section 10 of the Kentucky Constitution. We affirm.

We employ a two-step process in reviewing rulings on motions to suppress evidence. We review the factual findings of the trial court for clear error, but we review that court's application of the law to the facts de novo. Welch v. Commonwealth, 149 S.W.3d 407, 409 (Ky.2004), citing Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). There appears to be no dispute about the facts in this case. The facts as found by the trial court are supported by substantial evidence and are therefore not clearly erroneous. RCr 9.78; Taylor v. Commonwealth, 987 S.W.2d 302, 305 (Ky.1999).

We must answer this question: Does a tip by a store security guard alleging that a customer has just purchased a large quantity of pseudoephedrine, when considered together with the rational inferences from that act, create a "reasonable and articulable suspicion" of possible criminal activity sufficient to justify an investigatory stop? We believe that it does.

The seminal case analyzing the reasonableness of investigatory stops under the Fourth Amendment as applied to the states by the Fourteenth Amendment is Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). And the Kentucky Supreme Court has held that "Section 10 of the Kentucky Constitution provides no greater protection than does the federal Fourth Amendment." LaFollette v. Commonwealth, 915 S.W.2d 747, 748 (Ky.1996), citing Estep v. Commonwealth, 663 S.W.2d 213 (Ky.1983).

Although the issue is not discussed in the briefs or in the order overruling the motion to suppress, we are satisfied that when Officer Boling activated his flashing lights to stop Nichols in the Kroger parking lot, he effected a "seizure" of Nichols within the meaning of the Fourth and Fourteenth Amendments to the United States Constitution and Section 10 of the Kentucky Constitution. "Whenever a police officer accosts an individual and restrains his freedom to walk away, he has `seized' that person." Kotila v. Commonwealth, 114 S.W.3d 226, 232 (Ky.2003), citing Terry, 392 U.S. at 16, 88 S.Ct. at 1877. "Whether a seizure is reasonable requires a review of the totality of the circumstances, taking into consideration the level of police intrusion into the private matters of citizens and balancing it against the justification for such action." Id., citing Baker v. Commonwealth, 5 S.W.3d 142, 145 (Ky.1999). When reasonable circumstances exist for a brief investigatory stop, police may make the stop without probable cause that a crime has actually been committed. Id., citing Deberry v. Commonwealth, 500 S.W.2d 64, 66 (Ky. 1973); see also Simpson v. Commonwealth, 834 S.W.2d 686, 687 (Ky.App.1992). And "the level of articulable suspicion necessary to justify a stop is considerably less than proof of wrongdoing by preponderance of the evidence." Id., citing Commonwealth v. Banks, 68 S.W.3d 347, 351 (Ky.2001) (internal citation omitted).

At the suppression hearing Officer Wells testified that Nichols made the purchase of what he considered a large amount of pseudoephedrine late at night (around midnight), that it is commonly known that pseudoephedrine is used in the manufacture of methamphetamine, that Wells would sometimes get a "hunch" or feeling about customers who purchased pseudoephedrine that he admittedly was unable to articulate, and that Nichols's behavior in the store caused him to have such a feeling about Nichols. Wells could not remember specifically how many boxes of cold medicine Nichols purchased. He could only remember that it was "three or more boxes." Wells also admitted that cold remedies containing pseudoephedrine are legal to purchase and possess.

In Terry the United States Supreme Court recognized that, in determining whether the seizure and search of Terry was unreasonable under the Fourth Amendment, the Court...