Reed v. Commonwealth
| Decision Date | 07 February 2020 |
| Docket Number | NO. 2018-CA-001574-MR,2018-CA-001574-MR |
| Parties | DOVONTIA REED APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE |
| Court | Kentucky Court of Appeals |
TO BE PUBLISHED
APPEAL FROM WOODFORD CIRCUIT COURT
The underlying facts of the case are not in dispute. They were presented at the suppression hearing through the testimony of Officer Jordan Lyons of the Versailles Police Department. Late in the evening on April 26, 2017, Kirby Caldwell received a phone call from Reed asking for his assistance, claiming hehad run out of gas and did not have any money. Caldwell agreed to meet Reed at a gas station in Versailles, Kentucky. When Caldwell arrived at the gas station, he parked his car beside a dark Nissan Altima. Reed climbed from the front passenger side of the Altima and into the front passenger seat of Caldwell's car. He pulled out a black handgun and demanded Caldwell give him all his money. Caldwell initially gave Reed $100 but Reed insisted Caldwell had more money and demanded all of it. Caldwell eventually gave him a total of $500. Reed then forced Caldwell to throw his car keys out of the window and over a hillside. Reed then returned to the Altima and departed.
Caldwell reported the incident to the police. Officer Jordan Lyons of the Versailles Police Department received the report at approximately 12:35 a.m. and proceeded to the gas station where he interviewed Caldwell, who described Reed as a thin, light-skinned black male with long dreads and wearing a hoodie. Caldwell also told him that the Altima had distinctive grey plastic hubcaps. Officer Lyons watched surveillance video footage from the gas station and observed the Altima as described by Caldwell. Officer Lyons obtained Reed's cell phone number from Caldwell. Caldwell told him the number was the one Reed had called from to set up their meeting.
Officer Lyons relayed Reed's cell phone number to police dispatch. According to Lyons, dispatch contacted the cell phone carrier which "pinged" thephone. According to Lyons, the phone carrier needs only the number of the cell phone and for the cell phone to be turned on in order to "ping" it. The cell phone carrier relayed the information to dispatch which was able to track the phone and send its location to Lyons and other officers. Lyons did not obtain a warrant to "ping" the cell phone.
Police dispatch continued to relay the cell phone's location to Officer Lyons for an hour and a half. The cell phone traveled to Springfield and back. Officer Lyons waited on the road he anticipated Reed would take to return to Versailles. Lyons was easily able to identify the Altima when it passed by because it matched Caldwell's description and resembled the vehicle Lyons had observed on the surveillance footage.
Lyons pulled over the Altima at approximately 2:09 a.m. and waited for backup officers to conduct a "felony traffic stop." When the other officers arrived, they ordered the occupants of the Altima out of the car. An individual named Jamal Thomas exited from the driver's seat and Reed emerged from the front passenger's side. The officers patted the men down and placed them into custody. Lyons ran the license plate number of the Altima and discovered it belonged to Thomas's girlfriend. While performing an exterior visual search of the car, Lyons smelled marijuana by the open driver's side window. He searched theinterior and found marijuana and some cash on the driver's side of the car and a black handgun in the trunk.
Reed was charged with one count of first-degree robbery, one count of possession of a handgun by a convicted felon, and one count of receiving stolen property, firearm. He filed a motion to suppress the evidence recovered in the search of the vehicle. Following a hearing, the trial court denied the motion. Reed thereafter entered a plea of guilty to the charges as set forth in the indictment with the exception of the first-degree robbery charge which was amended to second-degree robbery. He received a total sentence of seven years. His plea was conditioned on the right to appeal the denial of the suppression motion.
Our standard when reviewing a trial court's denial of a motion to suppress Commonwealth v. Neal, 84 S.W.3d 920, 923 (Ky. App. 2002) (footnotes omitted).
The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures[.]" U.S. CONST. amend. IV. In Katz v. United States, 389 U.S. 347,88 S. Ct. 507, 19 L. Ed. 2d 576 (1967), the United States Supreme Court extended the protections of the Fourth Amendment beyond the realm of personal property rights "to protect certain expectations of privacy as well." Carpenter, 138 S. Ct. at 2213. "The Constitution's protection extends only to legitimate expectations of privacy, that is, those situations where the defendant has exhibited an actual (subjective) expectation of privacy, and where the expectation is one that society is prepared to recognize as reasonable." Easterling v. Commonwealth, 580 S.W.3d 496, 503 (Ky. 2019) (footnote omitted) (citing Katz, 389 U.S. at 361, 88 S. Ct. 507 (Harlan, J., concurring)). When such a reasonable expectation exists, the police may not execute a search unless they first obtain a warrant or meet one of several specific exceptions to the warrant requirement. See Bishop v. Commonwealth, 237 S.W.3d 567, 569 (Ky. App. 2007).
In Carpenter, the United States Supreme Court applied the Katz test to determine whether the acquisition of historic CSLI data by police constituted an intrusion upon an individual's legitimate expectation of privacy. The Court described the data-gathering process as follows: Carpenter, 138 S. Ct. at 2211. In Carpenter, the police sought historic CSLI records to establish that the defendant was near four robbery locations at the time they occurred. The records produced by the wireless carriers consisted of 12,898 historical location points for the defendant covering a period of 127 days. Id. at 2212.
In deciding whether a warrant was required to obtain these records, the Supreme Court observed that "requests for cell-site records lie at the intersection of two lines of cases, both of which inform our understanding of the privacy interests at stake." Id. at 2214-15. These two lines of cases address people's expectation of privacy in their physical location and movements, and in information they have turned over to a third party, i.e., a cell phone carrier.
Under the first line of cases, the United States Supreme Court concluded that police planting a beeper on a car in order to track its movements was not a search because a person traveling in a car in a public thoroughfare had no reasonable expectation of privacy in his movements, and the beeper merely augmented visual surveillance. See United States v. Knotts, 460 U.S. 276, 282, 103 S. Ct. 1081, 1085-86, 75 L. Ed. 2d 55 (1983).
Under the second line of cases, the Court held that individuals also have no reasonable expectation of privacy in information they voluntarily turn overto a third party, such as bank records, see United States v. Miller, 425 U.S. 435, 96 S. Ct. 1619, 48 L. Ed. 2d 71 (1976), or telephone numbers they have dialed, see Smith v. Maryland, 442 U.S. 735, 99 S. Ct. 2577, 61 L. Ed. 2d 220 (1979).
Carpenter concluded that historic CSLI does not fall neatly into either of these two...
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