Simmons v. Commonwealth, 2021-CA-0859-MR

• Court: Court of Appeals of Kentucky
• Writing for the Court: ACREE, JUDGE
• Parties: LYPRENTISS SIMMONS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
• Docket Number: 2021-CA-0859-MR
• Decision Date: 09 December 2022

LYPRENTISS SIMMONS APPELLANT
v.
COMMONWEALTH OF KENTUCKY APPELLEE

No. 2021-CA-0859-MR

Court of Appeals of Kentucky

December 9, 2022

NOT TO BE PUBLISHED

APPEAL FROM FAYETTE CIRCUIT COURT HONORABLE KIMBERLY N. BUNNELL, JUDGE ACTION NO. 20-CR-00998

BRIEFS FOR APPELLANT: Roy Alyette Durham II

BRIEF FOR APPELLEE: Daniel Cameron Attorney General of Kentucky Melissa A. Pile Assistant Attorney General

BEFORE: CLAYTON, CHIEF JUDGE; ACREE AND TAYLOR, JUDGES.

OPINION

ACREE, JUDGE

Lyprentiss Simmons, Appellant, appeals the Fayette Circuit Court's denial of his motion to suppress evidence. Appellant asserts the circuit court erred in determining the police had probable cause to search his vehicle without a warrant. Finding no error, we affirm.

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BACKGROUND

Shortly after 1:00 a.m. on August 10, 2020, Officer Crane of the Lexington Police Department noticed a vehicle turn from Delcamp Drive - a side street - onto North Broadway in a manner that caused the vehicle's tires to squeal. This prompted Officer Crane to follow and observe the vehicle, which turned into the parking lot of a nearby Thornton's gas station. The driver, Appellant, exited and reentered the vehicle, and then drove away from the Thornton's.

Noticing the vehicle's registration was expired, Officer Crane stopped the vehicle. Officer Andrews arrived moments later, and both Officers Crane and Andrews approached the vehicle together. Officer Crane observed the occupants of the vehicle - Appellant and a female passenger named Hutsell - were acting nervously. Appellant told Officer Crane he was returning from visiting his aunt in Versailles. Officer Crane asked whether they had stopped anywhere on their way or had been on any side streets, and Appellant answered in the negative to both. Officer Crane told Appellant he observed him turning from Delcamp Drive, a side street.

Based on Appellant's deception about not being on any side streets and Officer Crane's belief that Appellant was trying to evade him by turning into the Thornton's gas station, Officer Crane decided to communicate with police dispatch to confirm Appellant's information. Because Appellant did not have his

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driver's license with him, Officer Crane gathered identifying information by asking Appellant questions. The police database revealed Appellant had an outstanding warrant for strangulation. Officer Crane requested backup from K-9 Officer Hallock.

Officer Crane waited for Officer Hallock to arrive, and then Officers Hallock and Crane approached the vehicle together. They advised Appellant he had an active warrant, ordered him to exit the vehicle, and placed him under arrest. Officer Crane took Appellant to his police cruiser and searched Appellant incident to the arrest. Officer Crane found 0.4 grams of cocaine and 294 dollars in Appellant's pockets.

Officer Crane asked Appellant whether he had anything else on him, and Appellant replied he did not. Officer Hallock asked Appellant whether he had any other narcotics on him, warning him to be honest so that Appellant could avoid a charge of promoting contraband. In response, Appellant stated he smokes marijuana. Officer Hallock again asked Appellant whether he had any narcotics on his person, and Appellant stated he had some marijuana in a book bag in the vehicle. Appellant never provided consent for the police to search his vehicle.

Based on Appellant's statement that narcotics were in a bag in his car and that narcotics were found on Appellant's person, Officer Crane believed probable cause existed to support a warrantless search of Appellant's entire

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vehicle. Officer Crane directed Hutsell to exit the vehicle and proceeded with the search. Inside, Officer Crane found a black bag on the floor. The bag contained marijuana in plastic baggies, as well as several empty plastic baggies. Several of these baggies had their corners ripped off, a common practice when using plastic baggies to package drugs. Officer Hallock found a brown bag in the vehicle which contained more plastic baggies, a Mason jar with marijuana residue, a disposable "Solo" brand cup with marijuana residue, a vacuum-sealed bag with marijuana residue, a digital scale, and a marijuana grinder. Officer Crane also found a stolen .40 caliber handgun in the glove box.

Appellant filed a motion to suppress the evidence uncovered from the warrantless search of his vehicle. The circuit court held a hearing on the motion on February 3, 2021, where Officers Crane and Hallock testified. Following the hearing, the court made oral findings of fact and conclusions of law that the officers had probable cause to search the vehicle. The court entered a written order denying Appellant's motion on February 7, 2021.

Appellant entered a conditional guilty plea to several offenses, reserving his right to withdraw his plea should he prevail on appeal of the denial of his suppression motion. He now so appeals.

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STANDARD OF REVIEW

When reviewing the denial of a motion to suppress, an appellate court considers a trial court's findings of fact to be "conclusive if supported by substantial evidence." Bauder v. Commonwealth, 299 S.W.3d 588, 591 (Ky. 2009) (citing Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996)). "Substantial evidence is 'that which, when taken alone or in light of all the evidence, has sufficient probative value to induce conviction in the mind of a reasonable person.'" Hunter v. Mena, 302 S.W.3d 93, 97 (Ky. App. 2010) (citing Bowling v. Nat. Res. & Env't Prot. Cabinet, 891 S.W.2d 406, 409 (Ky. App. 1994)). However, the appellate court conducts a de novo review of the trial court's application of law to its factual findings. Commonwealth v. Jones, 217 S.W.3d 190, 193 (Ky. 2006) (citing Adcock v. Commonwealth, 967 S.W.2d 6, 8 (Ky. 1998)).

ANALYSIS

Appellant argues the officers lacked probable cause for a warrantless search of the entire vehicle for evidence related to either strangulation - the offense for which Appellant had an outstanding warrant - or for offenses related to drugs. We conclude the circuit court did not err in determining probable cause existed to search Appellant's vehicle without a warrant.

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"'[S]earches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment - subject only to a few specifically established and well delineated exceptions.'" Thompson v. Louisiana, 469 U.S. 17, 19-20, 105 S.Ct 409, 410, 83 L.Ed.2d 246 (1984) (quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967)). Kentucky jurisprudence explicitly recognizes this principle. See Cook v. Commonwealth, 826 S.W.2d 329, 331 (Ky. 1992) ("It is fundamental that all searches without a warrant are unreasonable unless it can be shown that they come within one of the exceptions to the rule that a search must be made pursuant to a valid warrant.") (citing Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971)).

One exception to the warrant requirement allows warrantless searches of automobiles when probable cause supports such search; "a search is not unreasonable...