Owens v. Com.

• Citation: 291 S.W.3d 704
• Decision Date: 27 August 2009
• Docket Number: No. 2006-SC-000037-MR.,2006-SC-000037-MR.
• Parties: Keith A. OWENS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court (Kentucky)

291 S.W.3d 704

Keith A. OWENS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 2006-SC-000037-MR.

Supreme Court of Kentucky.

August 27, 2009.

Karen Shuff Maurer, Assistant Public Advocate, Department of Public Advocacy, Frankfort, KY, Counsel for Appellant.

Jack Conway, Attorney General of Kentucky, Perry Thomas Ryan, Assistant Attorney General, Office of Attorney General, Frankfort, KY, Counsel for Appellee.

Opinion of the Court by Chief Justice MINTON.

The United States Supreme Court has remanded this case to us for consideration in light of its recent opinion in Arizona v. Gant,¹ rendered after the issuance of our original opinion in this case.² This revised opinion contains our analysis of Gant, but we have concluded that Gant does not affect the ultimate outcome of this case.

This appeal requires us to decide whether a police officer working a traffic stop may exercise discretion to conduct a pat-down search for weapons of a vehicle's passenger, who exited the vehicle to accommodate a search of the vehicle incident to the driver's arrest, even if the officer has no independent suspicion that the passenger is guilty of criminal conduct. Analyzing the automatic companion rule as a matter of first impression in Kentucky, we conclude that officer safety and public safety demand that the police officer have discretion to frisk the passenger under these circumstances. This conclusion leads us to hold that the trial court properly denied the passenger's motion to suppress evidence of contraband seized from him and to affirm his conviction.

I. FACTUAL AND PROCEDURAL HISTORY.

Awaiting trial on charges of possession of marijuana, first-degree possession of a controlled substance, and of being a first-degree persistent felony offender (PFO 1), Keith Owens filed a pretrial motion to suppress evidence of illegal drugs seized during an allegedly improper search of his person. This prompted the trial court to hold a brief suppression hearing at which the Commonwealth presented the testimony of the arresting officer. Owens testified at the hearing in his own behalf.

According to the officer's testimony, he stopped a vehicle driven by Chris Thornton because he believed — correctly it turned out — that Thornton's driver's license had been suspended. Thornton was arrested on that charge. Once outside the vehicle, Thornton was searched incident to arrest. The search yielded a suspected crack pipe, and Thornton was placed in the police cruiser. Owens was a front-seat passenger in the vehicle.³

The officer decided to search the vehicle at the scene incident to Thornton's arrest and directed Owens to step out of the vehicle. The officer asked Owens if he had any weapons. The officer testified that Owens stated that he had nothing to hide and began removing money from his pockets. The officer saw a baggie fall out when Owens pulled money from one of his pockets. That baggie, which the officer testified he immediately suspected contained contraband as it landed at Owens's feet, contained a marijuana cigarette, some loose marijuana, and several pills. Two of the pills were later determined to contain methamphetamine, and three of them were later determined to contain ecstasy. The officer testified at the suppression hearing that Owens voluntarily emptied his own pockets and that he had fully completed a Terry⁴ pat-down when Owens emptied his pockets. But the officer also testified, seemingly contradictorily, that Owens began removing money from his pockets while the officer was conducting the pat-down. A later search of the vehicle and Owens's person revealed no other contraband.

At the suppression hearing, Owens's version of the events differed slightly from the officer's. Owens did not dispute the officer's testimony about the stop of the vehicle and Thornton's arrest. But Owens testified that the officer reached into his pockets to remove the money. Owens also denied that he possessed the baggie containing the illegal drugs.

The trial court denied the motion to suppress. At trial, the jury found Owens guilty of all charges and recommended a sentence of twelve months with a $500 fine for the possession of marijuana conviction, and a twenty-year sentence for the PFO 1 conviction.⁵ Owens was sentenced in accordance with the jury's recommendation,⁶ after which he filed this matter-of-right appeal.⁷

II. ANALYSIS.

Owens does not contest the stop of the vehicle. Nor does he contest the arrest and eventual search of Thornton. Owens contends that the officers overstepped constitutional bounds when they frisked him for weapons. We disagree.

Motions to suppress are governed by Kentucky Rules of Criminal Procedure (RCr) 9.78. That rule provides that a court facing a motion to suppress "shall conduct an evidentiary hearing outside the presence of the jury and at the conclusion thereof shall enter into the record findings resolving the essential issues of fact raised by the motion or objection and necessary to support the ruling" When reviewing an order on a motion to suppress, the trial court's findings of fact are "conclusive" if they are "supported by substantial evidence."⁸ Using those facts, this Court then reviews de novo the trial court's application of the law to those facts to determine whether its decision is correct as a matter of law.⁹

Under our settled jurisprudence, "[i]t is fundamental that all searches without a warrant are unreasonable unless it can be shown that they come within one of the exceptions to the rule that a search must be made pursuant to a valid warrant."¹⁰ Although the validity of the stop, arrest, and search of Thornton is not at issue in this appeal, we must address the rationale for that stop and search because the propriety of the frisk of Owens depends upon the preceding search and arrest of Thornton.

The officer had a right to stop the vehicle based on his reasonable suspicion that Thornton's driver's license had expired.¹¹ And the officer had the authority to arrest Thornton¹² and to conduct a search of Thornton incident to that arrest.¹³ Once Thornton was lawfully arrested, the officer had the authority under the facts of this case to search the passenger compartment of the vehicle Thornton had recently driven.

The Supreme Court previously afforded officers virtual carte blanche to search an automobile incident to the arrest of a recent occupant of a vehicle, holding that "[o]nce an officer determines that there is probable cause to make an arrest, it is reasonable to allow officers to ensure their safety and to preserve evidence by searching the entire passenger compartment."¹⁴ This carte blanche has been greatly reduced by Gant, however. According to the new, far more restrictive rule expressed in Gant, "[p]olice may search a vehicle incident to a recent occupant's arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest."¹⁵ Otherwise, "a search of an arrestee's vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies."¹⁶

This narrowing of the automobile search requirement will undoubtedly affect the propriety of the automobile searches incident to arrest in a great number of cases. But this case is not one of them.

Although Thornton was initially stopped and arrested because of his suspended driver's license, the search of Thornton incident to that arrest revealed the presence of a suspected crack pipe. His possession of the suspected crack pipe gave rise to another reason for Thornton to be arrested. It was then reasonable for the arresting officer to believe that the vehicle Thornton was driving contained evidence of the offense of the de facto second offense giving rise to the arrest (i.e., possession or trafficking in drugs). The search of the vehicle, therefore, was permissible, both before¹⁷ and after Gant.¹⁸

And an officer has the authority to order a passenger to exit a vehicle pending completion of a minor traffic stop.¹⁹ So it logically follows that an officer may order a passenger to exit a vehicle while that vehicle is searched incident to the lawful arrest of the driver. It appears that every important action taken up to the point where Owens was frisked was constitutionally permissible.

Here we arrive at the crux of this case: may an officer conduct a pat-down search for weapons of a passenger of a vehicle when the driver has been arrested and the driver possessed illegal narcotics even if there is no independent suspicion that the passenger is guilty of criminal conduct?²⁰ This precise factual scenario appears to be a matter of first impression in Kentucky. So we turn to other courts for guidance.

Two schools of thought have emerged around this subject. One, known as the automatic companion rule, holds that "[a]ll companions of the arrestee within the immediate vicinity, capable of accomplishing a harmful assault on the officer, are constitutionally subjected to the cursory `pat-down' reasonably necessary to give assurance that they are unarmed."²¹ Numerous state and federal courts have either expressly adopted the automatic companion rule or have issued decisions that seem to follow its contours.²² The other school of thought, also used by several courts, is the totality of the circumstances rule, in which the propriety of the frisk is determined considering the totality of the circumstances.²³ Some courts that have rejected the automatic companion rule appear to believe that it improperly creates a guilt-by-association scenario and obliterates the requirement that an officer have a particularized, reasonable, articulable suspicion that a person is engaging in criminal activity or is dangerous before subjecting that person to a frisk.²⁴ Legal scholars have also entered the debate.²⁵

We have given careful analysis to the well-reasoned thoughts...