Pulley v. Commonwealth

• Decision Date: 15 January 2016
• Docket Number: NO. 2013–CA–001740–DG,2013–CA–001740–DG
• Citation: 481 S.W.3d 520
• Parties: Charles Pulley, Appellant v. Commonwealth of Kentucky, Appellee
• Court: Kentucky Court of Appeals

481 S.W.3d 520

Charles Pulley, Appellant

v.Commonwealth of Kentucky, Appellee

NO. 2013–CA–001740–DG

Court of Appeals of Kentucky.

RENDERED: JANUARY 15, 2016; 10:00 A.M.

Briefs for Appellant: Samuel N. Potter, Assistant Public Advocate, Department of Public Advocacy, Frankfort, Kentucky.

Brief for Appellee: Billy N. Riley, Livingston County Attorney, Smithland, Kentucky.

BEFORE: DIXON, KRAMER AND THOMPSON, JUDGES.

OPINION

THOMPSON

, JUDGE:

Charles Pulley was charged with menacing and second-degree disorderly conduct. Pulley confronted police at a traffic safety checkpoint after an officer removed Pulley's firearm from his vehicle and checked the firearm's serial number. Following a jury trial in the Livingston District Court, Pulley was acquitted of menacing but convicted of second-degree disorderly conduct. He appealed to the Livingston Circuit Court arguing the district court erroneously denied his motion to suppress and his motion for a directed verdict. The circuit court affirmed. We granted discretionary review.

Pulley filed a motion to suppress all evidence acquired after the traffic safety checkpoint stop, arguing that the extension of the stop to check his firearm's serial number resulted in an illegal search and seizure where the officer lacked reasonable suspicion that a crime had been committed. After a hearing, the district court found the officer was entitled to remove the firearm from Pulley's possession for his own safety and the minimal extension of the stop to check its serial number in a crime database did not rise to the level of a constitutional violation and denied Pulley's motion to suppress.

At trial, the testimony established that on the evening of August 31, 2012, Kentucky State Police (KSP) officers were conducting a planned and announced traffic safety checkpoint on Highway 60, at the base of the Tennessee River Bridge in Livingston County, Kentucky. This portion of the highway is not situated near any homes, businesses or other places where people are likely to be present. Beginning at 9:34 p.m., officers began stopping all motorists to check their licenses, registration and insurance. Trooper Eric Fields was stopping traffic in one direction and Lieutenant Brent White was stopping traffic in the other direction.

Pulley was stopped shortly after the checkpoint began. His wife Kathy and their two-year-old son were also in the vehicle. Kathy testified they were stopped at about 9:30 or 9:35 p.m. According to Pulley and Kathy, Trp. Fields asked Pulley for his license, proof of insurance and registration, inspected these documents and returned them. According to Kathy, after Trp. Fields gave Pulley his documents back, he said "everything is good."

Trp. Fields then noticed Pulley's semi-automatic handgun on the vehicle's center console arm rest. He asked: "What is that?" When Pulley answered that it was his gun, Trp. Fields ordered Pulley out of the vehicle. After Pulley exited the vehicle, Trp. Fields reached in the vehicle and removed the firearm. Trp. Fields testified he had not finished his stop when he removed the firearm.

Pulley testified he had previous negative experiences with the police detaining him to check his firearm's registration and feared another lengthy delay. Therefore, he told Trp. Fields he would not consent to him running his firearm's registration. Trp. Fields ordered Pulley to drive his vehicle to the side of the road and Pulley complied.

Trp. Fields testified he removed and secured the firearm for his own safety. He testified Pulley had been fully cooperative with the traffic safety stop. He had no reason to be suspicious of Pulley or to suspect that the firearm was illegal. He would not have told Pulley to pull his vehicle over to the side of the highway if he had not seen the firearm.

Trp. Fields called dispatch and relayed Pulley's vehicle plate number, his driver's license number and the firearms's serial number. After Trp. Fields completed the checks and determined Pulley was fully in compliance with the law, he handed the then unloaded firearm to Kathy and requested it not be reloaded until they were down the road. Pulley and Kathy testified once the firearm was removed the stop lasted fifteen to twenty minutes, while Trp. Fields testified it took no more than six to seven minutes.

After Pulley was cleared to leave, he requested Trp. Fields provide him with his name and badge number. Pulley planned to make a formal complaint about the police running his firearm's serial number through the crime database and delaying him. Trp. Fields provided this information but also suggested Pulley talk to his supervisor, Lt. White. After Pulley stated he wanted to speak with Lt. White, Trp. Fields took the firearm back from Pulley, and crossed the highway to speak with Lt. White. The checkpoint was temporarily halted at this time. Both officers crossed back over. Lt. White approached and asked Pulley to exit the vehicle and they proceeded to talk by the trunk of the vehicle while Trp. Fields remained by Kathy on the passenger side.

At first, the conversation between Pulley and Lt. White was calm. Pulley attempted to shake Lt. White's hand, but Lt. White refused to do so. After Lt. White asked him what the problem was, Pulley complained he had been detained for an unreasonable search. Lt. White told him the KSP's actions were entirely legal.

Meanwhile, Trp. Fields was talking with Kathy. He handed her the unloaded firearm and explained that he was pro-gun.

According to Pulley, his discussion with Lt. White became heated because he would not concede Lt. White was correct. According to Lt. White, Pulley was arguing, becoming agitated and did not understand the law. Trp. Fields testified Pulley was yelling about his rights, how this was not a proper traffic safety checkpoint and his gun rights. Pulley and Lt. White both testified that Lt. White told Pulley it was the KSP's practice to run checks on any firearm encountered to determine if it was stolen and such practice was proper. Pulley disagreed. While Pulley was loud, he did not use any obscenities.

Lt. White testified Pulley continued arguing and acting in an aggressive manner by trying to move into his personal space, "squaring off" and pointing his finger above and toward Lt. White's head in a threatening manner. Lt. White then ordered Pulley to place his hands on the trunk. Pulley complied but continued to argue and then removed his hands from the vehicle. Trp. Fields testified he saw Pulley remove his hands several times.

According to Lt. White, Pulley was handcuffed for Lt. White's protection and to calm him down. Lt. White told Pulley "you're not under arrest, you are detained." Pulley began yelling about being arrested. Lt. White repeated he was being detained and not arrested, but later told him he was arrested. His citation was issued at 9:50 p.m. After Pulley's arrest, the traffic safety checkpoint was halted for the evening.

Lt. White and Trp. Fields testified consistently that Pulley was agitated and arguing loudly while acting in an aggressive manner. Kathy testified she heard parts of the exchange through her cracked window, but when she heard them get louder and tried to open the vehicle door, Trp. Fields would not allow her. She heard Pulley ask why he was being detained and whether he was going to be arrested. Kathy testified Lt. White was much louder than Trp. Fields had been.

The only evidence of public alarm was that another motorist stopped and Pulley's family became upset. Lt. White testified that while Pulley was arguing with him, one vehicle stopped and looked but he waved the vehicle on.

Pulley moved for a directed verdict on both charges, which the district court denied. The jury acquitted Pulley of menacing but convicted him of disorderly conduct in the second degree and recommended a fine of fifty dollars. Sentence was imposed consistent with the recommendation.

Pulley argues his roadside detention was illegally extended because police had no reasonable suspicion that he was unlawfully possessing his firearm. He argues any extension of the stop to see if the firearm was listed in a crime database was unjustified and directly contributed to the disorderly conduct charge. Therefore, he argues the circuit court erred in affirming the district court's denial of his motion to suppress his conduct subsequent to the improper extension of his detention.

Under section one of the Kentucky Constitution, people are declared to "have certain inherent and inalienable rights[.]" These include: "Seventh: The right to bear arms in defense of themselves and of the State, subject to the power of the General Assembly to enact laws to prevent persons from carrying concealed weapons." Id. As interpreted by Kentucky Courts, this right "is an exemplification of the broadest expression of the right to bear arms." Holland v. Commonwealth, 294 S.W.2d 83, 85 (Ky.1956)

. In Kentucky, a person has the right to carry a firearm openly and, so long as the firearm is in full view, no one may question the person's right to do so. Id. Bearing an unconcealed weapon is not an offense. Skidmore v. Commonwealth, 311 Ky. 176, 178, 223 S.W.2d 739, 740 (1949). Vehicle owners may "transport weapons unconcealed in the front seat ... of the motor vehicle." Mohammad v. Commonwealth, 202 S.W.3d 589, 590 (Ky.2006). The presence of Pulley's unconcealed firearm on top of the center console inside his vehicle was entirely legal.

Under the Fourth Amendment, motorists may be validly stopped at traffic safety checkpoints to determine safe driving practices but such checkpoints cannot be used for general crime control. See City of Indianapolis v. Edmond, 531 U.S. 32, 37–38, 41–44, 121 S.Ct. 447, 452, 454–55, 148 L.Ed.2d 333 (2000)

; Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 1401, 59 L.Ed.2d 660 (1979) ; Singleton v. Commonwealth, 364 S.W.3d 97, 102–05 (Ky.2012). "For a checkpoint to be constitutional, it must be executed pursuant to a systematic plan, and...