Rassman v. Commonwealth, No. 2007-CA-001560-DG (Ky. App. 3/20/2009), 2007-CA-001560-DG.
| Decision Date | 20 March 2009 |
| Docket Number | No. 2007-CA-001560-DG.,2007-CA-001560-DG. |
| Parties | James RASSMAN, Appellant v. COMMONWEALTH of Kentucky, Appellee. |
| Court | Kentucky Court of Appeals |
Edward Bourne, Owenton, Kentucky, Brief for Appellant.
Jack Conway, Attorney General, Frankfort, Kentucky, James C. Monk, Special Assistant Attorney General, Carrollton, Kentucky, Brief for Appellee.
Before: CAPERTON and MOORE, Judges; GUIDUGLI,1 Senior Judge.
Not to be Published
James Rassman brings this appeal from the Carroll Circuit Court's affirmation of the district court's denial of his March 18, 2005, motion to suppress an alleged unconstitutional roadblock.
Rassman was arrested for driving under the influence after being stopped at a roadblock by the Kentucky State Police (KSP) on December 21, 2004. The Carroll District Court held a hearing on the matter and after testimony from the arresting officer, upheld the constitutionality of the roadblock, denying the motion to suppress. Rassman entered a conditional guilty plea. The Carroll Circuit Court affirmed the denial of the motion to suppress on appeal. After a thorough review of the arguments presented by counsel, the record, and the accompanying caselaw, we affirm the Carroll Circuit Court.
Rassman presents three arguments on appeal: (1) he asserts that the failure of the arresting officer to comply with the KSP's internal guidelines while conducting the roadblock invalidates the roadblock; (2) the roadblock designated as "Buckle up Kentucky" was not valid at the time of the stop; and (3) the circuit court erred when it determined that the burden of proof resided with the defendant in a motion to suppress a warrantless search.
In review of the trial court's decision on a motion to suppress, this Court must first determine whether the trial court's findings of fact are clearly erroneous. Under this standard, if the findings of fact are supported by substantial evidence, then they are conclusive. Lynn v. Commonwealth, 257 S.W.3d 596, 598 (Ky. App. 2008). "Based on those findings of fact, we must then conduct a de novo review of the trial court's application of the law to those facts to determine whether its decision is correct as a matter of law." Commonwealth v. Neal, 84 S.W.3d 920, 923 (Ky. App. 2002) (citing Adcock v. Commonwealth, 967 S.W.2d 6, 8 (Ky. 1998); Commonwealth v. Opell, 3 S.W.3d 747, 751 (Ky. App. 1999)). Thus, the factual findings of the trial court in regard to the suppression motion are reviewed under the clearly erroneous standard and "the ultimate legal question of whether there was reasonable suspicion to stop or probable cause to search is reviewed de novo." Commonwealth v. Banks, 68 S.W.3d 347, 349 (Ky. 2001).
It is well established that automobile checkpoints or roadblocks must be deemed reasonable in order to comply with the Fourth Amendment. Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 450, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990). The roadblock cannot be conducted for the primary purpose of uncovering evidence of ordinary criminal wrongdoing. City of Indianapolis v. Edmond, 531 U.S. 32, 41-42, 121 S.Ct. 447, 148 L.Ed.2d. 333 (2000). However, traffic safety checks ensuring the safety of our roadways are permissible. Id. Inherent in all constitutional checkpoints is the narrow discretion afforded officers at the scene, and that the checkpoint is established pursuant to a systematic plan. Commonwealth v. Buchanon, 122 S.W.3d 565 (Ky. 2003).
Rassman first argues that the arresting officer failed to comply with the systematic plan established by the KSP for roadblocks in General Order OM-E-4. Rassman asserts that the arresting officer did not have any knowledge of whether media announcements were made prior to the roadblock and thus violated General Order OM-E-4 (A)(8), which states that
Rassman also argues additional violations of the General Order OME—4 were that the arresting officer did not know: (1) which officer was in charge of the roadblock; (2) whether or not all cars were stopped; and (3) he was unable to articulate the relation of the roadblock to public safety or traffic violation problems at the roadblock location. Rassman argues that these violations of the general order are in direct contradiction to the established guidelines, thus invalidating the roadblock. We disagree with this conclusion.
The failure of officers conducting a roadblock to comply with technical precision to each roadblock guideline is not fatal to the constitutionality of the roadblock. As stated in Monin v. Commonwealth, 209 S.W.3d 471, 474 (Ky.App.2006):
Failure to comply perfectly with KSP guidelines is not necessarily fatal: [t]echnical noncompliance with OM-E4-, which does not have the force of law, does not inexorably lead to the conclusion that the establishment of the checkpoint was violative of the constitutions of the United States or of the Commonwealth. (citing Commonwealth v. Bothman, 941 S.W.2d 479, 481 (Ky. App. 1996). Rather, the guidelines "are to be applied on a case-by-case basis in order to determine the reasonableness of each roadblock." (citing Buchanon, 122 S.W.3d at 571).
Rassman's out of context quotations from the hearing cast the evidence in an unflattering light. However, a full reading of the transcript reveals a much different picture. First, it is clear that the roadblock was scheduled well in advance by KSP supervisors as evidenced by the "post schedule" in the record. Second, the arresting officer testified that Sergeant Tom Lilly was the ranking officer at the roadblock. Third, while the arresting officer could not testify as to whether any media advertisements were made, he did testify that the normal procedure was for a supervisor at the post to put the announcement in the newspaper. Fourth, the arresting officer also testified that he stopped every car that came to his position until Rassman came along but could not testify to the actions taken by the other officers as he was busy with Rassman. Finally, the arresting officer testified as to reasons why the location was selected by supervisors, which included safety of the officer and the public.2
From a full reading of the hearing transcript, it is apparent that the officer did not exercise unfettered discretion. To the contrary, he undertook a systematic plan initiated by KSP supervisors. Given the record, a possible noncompliance with the technical requirements of the guidelines does not render this roadblock unconstitutional. See Monin, 209 S.W. 3d 471. Based on the evidence presented, the court's factual findings that the roadblock did not violate General Order OM-E-4 are supported by substantial evidence.3 The court also correctly applied the law as stated in Monin to the facts. Therefore, we find no error in the court finding the roadblock constitutional, even in light of the possibility of technical noncompliance with the KSP guidelines.
Further, we find Rassman's second argument, that the roadblock designated as "Buckle up Kentucky" was not valid because at the time of the stop KRS 189.125(7) prohibited peace officers from stopping vehicles or issuing citations solely on the basis of a seatbelt violation, to be without merit. While the arresting officer testified that...
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