Parker v. Commonwealth

• Decision Date: 18 September 2014
• Docket Number: No. 2011–SC–000662–DG.,2011–SC–000662–DG.
• Citation: 440 S.W.3d 381
• Court: United States State Supreme Court — District of Kentucky
• Parties: Robert Mason PARKER, Appellant v. COMMONWEALTH of Kentucky, Appellee.

440 S.W.3d 381

Robert Mason PARKER, Appellant

v.COMMONWEALTH of Kentucky, Appellee.

No. 2011–SC–000662–DG.

Supreme Court of Kentucky.

Sept. 18, 2014.

Daniel T. Goyette, Bruce P. Hackett, Office of the Louisville Metro Public Defender, Counsel for Appellant.

Jack Conway, Attorney General, Dorislee J. Gilbert, Special Assistant Attorney General, Counsel for Appellee.

Opinion

Opinion of the Court by Justice CUNNINGHAM.

On January 12, 2009, Louisville Metro Police Officer Brian Reccius observed a vehicle driven by Appellant, Robert Mason Parker, cross the center line of the road after leaving a bar. After stopping the vehicle, Officer Reccius discovered that Parker's driver's license had been suspended. Reccius asked Parker to step out of the car. Parker complied and walked to the rear of the vehicle where he was questioned by Officer Reccius. After another officer arrived on the scene, Reccius asked Parker if there was anything illegal in his car to which Parker responded in the negative. Parker stood at the rear of the car with the other officer while Officer Reccius searched the vehicle. Parker was not handcuffed at the time. As a result of the search, the officer discovered a loaded handgun and some marijuana. Parker was then taken into custody.

Parker was subsequently indicted by a Jefferson County grand jury for possession of a hand gun by a convicted felon; illegal possession of a controlled substance, schedule I hallucinogen, marijuana; and operating a motor vehicle while license is revoked or suspended for driving under the influence, first offense. Parker filed a motion to suppress the evidence recovered from his vehicle, which was granted by the trial court. The Commonwealth filed a motion, pursuant to CR 59.05, to alter, amend, or vacate the order suppressing, or in the alternative, to enter findings of fact and conclusions of law. In an opinion and order entered on May 27, 2010, the trial court issued additional findings and denied the CR 59.05 motion.

A Court of Appeals panel unanimously reversed the circuit court's order suppressing the evidence. The court found that the Commonwealth's appeal was timely filed because “the running of the time to file an appeal of any judgment is tolled by a timely filed CR 59.05 motion.” See CR 73.02. Regarding the suppression of the evidence, the Court of Appeals found that while the search was unlawful, the exclusionary rule did not require suppression because the police officer searching Parker's car followed existing precedent.

Timeliness of Appeal

The Commonwealth's notice of appeal was filed on June 24, 2010, which included the suppression order entered on March 19, 2010, and the order denying the Commonwealth's CR 59.05 motion entered on May 27, 2010. Parker argues that the Commonwealth had until April 18, 2010, to file its appeal because the suppression order was inappropriate for CR 59.05 review, as it was not a final judgment under that rule. Accordingly, Parker contends that the CR 59.05 motion and the resulting judgment failed to toll the time for filing a notice of appeal and that the Commonwealth's appeal is, therefore, untimely.

The suppression order entered on March 19, 2010, is interlocutory, not final. KRS 22A.020(4) provides the Commonwealth with a statutory right to appeal such interlocutory orders. See, e.g., Eaton v. Commonwealth, 562 S.W.2d 637 (Ky.1978) (recognizing that KRS 22A.020(4) permits an appeal of an interlocutory ruling only if the ruling “decides a matter vital to the Commonwealth's case[.]”); Ballard v. Commonwealth, 320 S.W.3d 69 (Ky.2010). It is therefore undisputed that suppression orders are appealable. However, suppression orders are inappropriate for CR 59.05 review.

CR 59.05 provides that “[a] motion to alter or amend a judgment, or to vacate a judgment and enter a new one, shall be served not later than 10 days after entry of the final judgment.” This rule only applies to final judgments. Pursley v. Pursley, 242 S.W.3d 346, 347 (Ky.App.2007) ; see also CR 54.01 (“A final or appealable judgment is a final order adjudicating all the rights of all the parties in an action or proceeding ...”). An order suppressing the Commonwealth's key evidence, such as the one at issue in the present case, may end the Commonwealth's case for all practical purposes.

However, it does not constitute an adjudication of “all rights of all of the parties” in the action, unless the trial judge dismisses the entire case for lack of probable cause or otherwise. The March 19, 2010, suppression order did not dismiss the entire case. Specifically, it appears that the driving on a suspended license charge continued and was not dependant on the suppressed evidence. As a result, the March 19, 2010, suppression order was not a final judgment and, thus, inappropriate for CR 59.05 review.

Our decision here does not affect proper CR 59.05 motions. To provide clarification, the time period for filing a notice of appeal is commenced upon the disposition of an appropriately filed motion that a final judgment be vacated, altered, or amended under CR 59.05. See Bates v. Connelly, 892 S.W.2d 586, 588 (Ky.1995) (“[A] judgment subject to a CR 59 motion cannot be final until the motion has been ruled on.”). To the extent that Commonwealth v. Cobb, 728 S.W.2d 540 (Ky.App.1987) and similar cases conflict, they are overruled.

However, resolution of the preceding issue is not dispositive. The record provides that the Commonwealth fortified its CR 59.05 motion before the trial court with an alternative request for findings of fact and conclusions of law, citing RCr. 9.78 in support. Although RCr. 9.78 requires that the court make essential findings, it is not the most appropriate device for requesting additional findings. See CR 52.02 (“[T]he court of its own initiative, or on the motion of a party ... may amend its findings or make additional findings and may amend the judgment accordingly.”) (Emphasis added); see also RCr 13.04 (“The Rules of Civil Procedure shall be applicable in criminal proceedings to the extent not superseded by or inconsistent with these Rules of Criminal Procedure.”); Vinson v. Sorrell, 136 S.W.3d 465, 471 (Ky.2004). Accordingly, we will review the Commonwealth's motion for additional findings pursuant to RCr. 9.78 as analogous to a motion properly filed under CR 52.02.

The trial court's initial findings in the present case were limited to a handwritten note on the original suppression order, where the trial judge wrote the following:

“The Defendant's vehicle was searched solely on the basis of a search incident to arrest for driving on a suspended license and as such, is invalid under Arizona v. Gant [556 U.S. 332], 129 S.Ct. 1710 [173 L.Ed.2d 485] (2009) as no broad good faith exception to the exclusionary rule applies in this case.”

In light of such sparse findings, the Commonwealth's motion for the trial court to enter additional findings was appropriate and, in fact, critical for appellate review.

CR 73.02(1)(e) provides that the running of the time for appeal is terminated by a timely motion pursuant to CR 52.02.' CR 73.02(l )(e) applies in criminal cases under RCr 12.02. As previously stated, the Commonwealth's motion for findings pursuant to RCr. 9.78 is treated as a CR 52.02 motion, thus tolling the appeal period provided by CR 73.02(l ) (e). A contrary determination would not only violate the civil rules made applicable in criminal proceedings, it would also create dueling jurisdictions—an absurd and untenable result. The Court of Appeals correctly noted that it is impossible for an appellate court to obtain jurisdiction over a judgment which is still pending further review in a lower court.

Moreover, we encourage a well-developed trial court record in all cases to the extent practical. An appeal by the Commonwealth of the original interlocutory suppression order in this case would have provided the Court of Appeals with an inadequate record. Neither justice nor the judicial economy would have been well-served as a result. Accordingly, we hold that the Commonwealth's notice of appeal was timely filed. We now turn to the merits of the case.

Suppression of the Evidence

In support of his argument, Parker offers a very thorough and intriguing analysis of the evolution of Kentucky's search and seizure jurisprudence. However, our decision in the present case turns on what the law was on the date of the search and whether the police officer conducting the search was objectively reasonable in his reliance on the law at that time.

The search at issue occurred on January 12, 2009. As of that date, the U.S. Supreme Court's ruling in New York v. Belton was the law of the land. 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981). Belton permitted law enforcement officers to search a vehicle incident to the arrest of the occupant, without probable cause and even if the occupant could not gain access to the vehicle at the time of search. Id.; see also Henry v. Commonwealth, 275 S.W.3d 194 (Ky.2008) (holding that a search of defendant's vehicle was a valid search incident to defendant's arrest, even though defendant was secured in the back of a police cruiser at the time of the search). Thus, at the time it was conducted, the search in the present case was lawful under Belton and Henry.

Although Henry became final only four days prior to the search in the present case, Belton had been in effect since 1981. However, in Clark v. Commonwealth , the Court of Appeals held that Belton did not apply where the arrest was for a traffic violation and the arrestee was secured in the police cruiser prior to the search. 868 S.W.2d 101 (Ky.App.1993). Yet, Clark was an outlier and did not comport with binding decisions from this Court that were in effect at the time of the search in the present case. See Penman v. Commonwealth, 194 S.W.3d 237 (Ky.2006) ; Rainey v. Commonwealth, 197 S.W.3d 89 (Ky.2006). To the extent that there was any conflict based on Kentucky Constitutional provisions,...