Shearer v. Commonwealth

• Decision Date: 14 April 2017
• Docket Number: NO. 2014-CA-001937-MR,2014-CA-001937-MR
• Parties: MIGUEL DWAYNE SHEARER APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
• Court: Kentucky Court of Appeals

MIGUEL DWAYNE SHEARER APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

NO. 2014-CA-001937-MR

Commonwealth of Kentucky Court of Appeals

APRIL 14, 2017

NOT TO BE PUBLISHED

APPEAL FROM FAYETTE CIRCUIT COURT

HONORABLE, KIMBERLY N. BUNNELL, JUDGE

ACTION NO. 13-CR-01185

OPINION

AFFIRMING

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BEFORE: ACREE, STUMBO AND TAYLOR, JUDGES.

ACREE, JUDGE: Miguel Dwayne Shearer entered a conditional plea of guilty to one count of first-degree criminal attempt to possess a controlled substance, reserving his right to appeal the trial court's denial of his motion to suppress statements he made as well as other physical evidence obtained during an encounter with police. After careful review, we affirm.

I. Factual and Procedural Background

At approximately 9:00 a.m. on September 1, 2013, Lexington police officer Thomas Richards was patrolling an area in the city's East End when he observed a vehicle sitting in front of a house on Elm Tree Lane. That particular house was known to police as a hub for drug dealers and prostitutes. As he passed, Officer Richards made note of the vehicle's license plate and proceeded down the one-way street in order to find a place where he could safely turn around and come back to the vehicle. However, when Officer Richards returned, the vehicle was gone.

Officer Richards continued driving and a few minutes later he noticed the vehicle pull to the left hand side of the road on Ohio Street and park in front of a home. The home was later discovered to be Miguel Shearer's residence. As the three occupants of the vehicle—Shearer and two female friends—exited the vehicle, Officer Richards pulled in behind them, without turning on his lights or siren, and exited his patrol car.

At the suppression hearing, Officer Richards testified that when the two female occupants exited the driver's side of the vehicle onto the sidewalk, he approached them. Officer Richards asked to see everyone's IDs, but did not recall if Shearer gave him his ID at that time.¹ Officer Richards did recall that Shearer had exited the vehicle on the passenger's side and was standing in the roadway asseveral cars passed.² Concerned for Shearer's safety, Officer Richards ordered Shearer to get out of the street. Shearer, however, did not respond to Officer Richards' request, but instead continued to stand in the roadway seemingly dazed. Officer Richards repeated his request several times to no avail.

Meanwhile, a second officer, Officer Burnett, pulled up. Officer Burnett testified that when he arrived at the scene, he observed his partner ask Shearer several times to get out of the road. Officer Burnett joined in Officer Richards' pleas to Shearer, but stated that Shearer was unresponsive and appeared to be a little unsteady on his feet. As he got closer to Shearer, Officer Burnett noticed open beer cans in the vehicle and could smell the odor of alcohol on Shearer's person. He also noticed that Shearer had a glazed-over look, and that his eyes were bloodshot and watery. In Burnett's opinion, the physical indicators coupled with Shearer's refusal to get out of an open roadway where there was traffic, indicated that Shearer was under the influence of some type of intoxicant.³ Officer Burnett decided to arrest Shearer for public intoxication as he presented a danger to himself and others by continuing to stand in the roadway.

As Officer Burnett and Officer Shearer moved to arrest Shearer, Officer Burnett observed that Shearer kept his hand clenched in a fist as if he were attempting to conceal something in it. When the officers handcuffed Shearer, Shearer refused to open his fist. After the officers forced Shearer's hand open,they located a crumpled one dollar bill with a white powdery substance inside of it that the officers suspected was cocaine. Officer Richards testified that when he and Officer Burnett found the cocaine, he heard Shearer mumble to himself "should have thrown it" and "shouldn't have held it for Lenora."

When Shearer was in custody, Officer Richards returned to his conversation with the two females. One of the women—the owner of the vehicle—confessed to possessing cocaine in her front pocket and gave the officers permission to search her vehicle. During the search of the vehicle, the officers located a small piece of paper containing drugs, which the owner of the vehicle admitted was hers. They also found a crack pipe in a purse in the car, which, according to Officer Burnett, Shearer admitted was his. Shearer was arrested and charged with first-degree possession of a controlled substance, possession of drug paraphernalia, and public intoxication.

As Shearer's case proceeded toward trial, Shearer requested a suppression hearing due to what he claims was an illegal stop and search. Specifically, Shearer claimed that Officer Richards lacked reasonable suspicion to seize his person, and that all evidence obtained as a product of the illegal seizure should be excluded as "fruit of the poisonous tree." He also requested that the court suppress all of his statements because they were obtained in violation of Miranda.⁴ A hearing was held on August 7, 2014, after which the trial court found that the initial approach and subsequent arrest of Shearer was proper, and that the mumbling statementsShearer made just after his arrest were not in response to any questioning. The court sustained Shearer's motion as to his statement that the crack pipe was his, but overruled the motion on the remaining evidence and statements. The trial court orally made the following factual findings based on the testimony at the hearing:

I think it was completely lawful for the police to come up and talk to these . . . folks—and ask them for their ID maybe. The officer's didn't make any notation of it, but I don't have reason to doubt that. Now, both of these officer's were, I would go, adamant, that they were directing Mr. Shearer to get out of the road. I think they gave a combined command though, "get out of the road and come here." Or, "come here, get out of the road." Or maybe just, "get out of the road." Or just, "come here." Now, Mr. Shearer did not have to "come here," I agree with that. Okay. However, they were both very clear in their testimony that Mr. Shearer was not responding to them so I'm not sure that Mr. Shearer's testimony that he in fact gave them his ID, that is completely inconsistent with the officer's testimony that he wasn't responding, that he was looking straight ahead. And they both had concern for his personal safety whether it was one foot or three feet of him being in the roadway and that he needed to get out of the roadway. And he was refusing to do so. And so, when the second officer arrives, and gets up closer to him and starts making those first impressions that I think Mr. Shearer even agrees that he was under the influence, he was drunk. And so the officer didn't want a drunk guy standing in the road, whether it's one foot, three feet, if he loses his balance and takes a step back, and if there is a vehicle coming by that happens to be close, bad things can happen and nobody wanted that to happen. And so he arrests him. He starts cuffing him, and the officer's own statement says he's got a fist, and they open up the fist, there's a crumpled dollar, and there's the cocaine. So I am going to overrule the motion to suppress the other issues, but I am going to suppress the statements regarding the possession of drug paraphernalia.

(VR: 08/07/2014; 3:40:35-43:08).

Following the denial of his motion to suppress, Shearer entered a conditional plea of guilty to one count of first-degree criminal attempt to possess a controlled substance, reserving his right to appeal the court's ruling. On October 31, 2014, the trial court sentenced Shearer to six-months' imprisonment, but probated the sentence for one year. Shearer now appeals the denial of his motion to suppress. Additional facts will be discussed as necessary.

II. Standard of Review

Our review of a trial court's decision on a motion to suppress is two-fold. First, we must determine whether the trial court's findings of fact are supported by substantial evidence. If so, then they are conclusive. Kentucky Rules of Criminal Procedure (RCr) 9.78. Second, we review de novo the trial court's application of the law to those facts. Brown v. Commonwealth, 416 S.W.3d 302, 307 (Ky. 2013).

III. Analysis

On appeal, Shearer first argues that because the initial seizure of his person was inconsistent with the requirements of the Fourth Amendment, the trial court erred by failing to suppress the cocaine evidence. We disagree.

The Fourth Amendment to the United States Constitution and Section 10 of the Kentucky Constitution provide protection from unreasonable searches andseizures by the government.⁵ Evidence obtained, either directly or indirectly, from an illegal seizure "is not admissible against the accused." Wilson v. Commonwealth, 37 S.W.3d 745, 748 (Ky. 2001). "The basic purpose of [the Fourth] Amendment, as recognized in countless decisions of [the United States Supreme Court] is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials." Singleton v. Commonwealth, 364 S.W.3d 97, 101 (Ky. 2012) (quoting Wolf v. Colorado, 338 U.S. 25, 27, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949); see also INS v. Delgado, 466 U.S. 210, 216, 104 S.Ct. 1758, 1762, 80 L.Ed.2d 247 (1984).

An arrest is not the only contact between police and citizens that implicates the Fourth Amendment. The United States Supreme Court, in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), observed that even a "brief detention of a person by a police officer may constitute a seizure within the meaning of the Fourth Amendment of the United States Constitution, and as such may properly be undertaken only if the police officer has a reasonable suspicion based upon objective, articulable facts that criminal activity is afoot." Strange v. Commonwealth, 269 S.W.3d 847,...