Smith v. Commonwealth, 101317 KYCA, 2016-CA-000673-MR

Docket Nº:2016-CA-000673-MR, 2016-CA-000674-MR
Opinion Judge:STUMBO, JUDGE.
Party Name:JEREMY SMITH APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE AND DARRELL HANDLEY APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
Attorney:BRIEFS FOR APPELLANT JEREMY SMITH: Julia K. Pearson Assistant Public Advocate Frankfort, Kentucky. BRIEFS FOR APPELLEE: Andy Beshear Attorney General of Kentucky James Havey Assistant Attorney General Frankfort, Kentucky. BRIEFS FOR APPELLANT DARRELL HANDLEY: Shannon Dupree Assistant Public Advoc...
Judge Panel:BEFORE: JONES, STUMBO, AND TAYLOR, JUDGES.
Case Date:October 13, 2017
Court:Court of Appeals of Kentucky
 
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JEREMY SMITH APPELLANT

v.

COMMONWEALTH OF KENTUCKY APPELLEE

AND

DARRELL HANDLEY APPELLANT

v.

COMMONWEALTH OF KENTUCKY APPELLEE

Nos. 2016-CA-000673-MR, 2016-CA-000674-MR

Court of Appeals of Kentucky

October 13, 2017

NOT TO BE PUBLISHED

APPEAL FROM MCLEAN CIRCUIT COURT HON. BRIAN WIGGINS, JUDGE ACTION NOS. 16-CR-00011, 16-CR-00012

BRIEFS FOR APPELLANT JEREMY SMITH: Julia K. Pearson Assistant Public Advocate Frankfort, Kentucky.

BRIEFS FOR APPELLEE: Andy Beshear Attorney General of Kentucky James Havey Assistant Attorney General Frankfort, Kentucky.

BRIEFS FOR APPELLANT DARRELL HANDLEY: Shannon Dupree Assistant Public Advocate Frankfort, Kentucky.

BEFORE: JONES, STUMBO, AND TAYLOR, JUDGES.

OPINION

STUMBO, JUDGE.

Jeremy Smith and Darrell Handley appeal from their judgments and five-year sentences of imprisonment entered by the McLean Circuit Court on April 22, 2016. Smith and Handley were arrested following a police investigation into methamphetamine trafficking in McLean County, Kentucky. Following the circuit court's denial of a joint motion to suppress, the appellants entered conditional guilty pleas, reserving the right to appeal their suppression issues. After careful review of the record, we affirm.

On the morning of December 2, 2015, Detective Troy Gibson of the Pennyrile Narcotics Task Force was contacted by a confidential informant ("CI"). Detective Gibson had worked with this CI several times over the previous two years and had found her to be reliable. On this occasion, the CI related that she had been in contact with a woman named "Sara, " who was willing to sell a quantity of methamphetamine valued at approximately $150 to $200. Detective Gibson instructed the CI to set up a transaction with Sara and to maintain contact with him. Over the course of that morning, the CI kept Detective Gibson apprised of the situation by cellphone conversations and text messages. The CI also provided Detective Gibson copies of the text messages she had exchanged with Sara. Later that morning, the CI notified Detective Gibson of the particulars regarding the impending drug transaction. The CI had arranged to meet Sara that same day in the back seat of a maroon van which would be parked behind the Dairy Freeze restaurant in Island, Kentucky.

In the meantime, Detective Gibson contacted Chief Deputy Fred Coomes, of the McLean County Sheriff's Office, requesting assistance regarding a possible drug transaction. Deputy Coomes offered the assistance of himself and Deputy Roush. At some point between 11:00 a.m. and 12:00 p.m., the CI informed Detective Gibson that the maroon van was in the designated location. Detective Gibson asked the deputies to drive by and verify the information. The deputies confirmed the presence of a maroon van parked behind the Dairy Freeze. Detective Gibson then asked the deputies to "make contact" with the van and told them he was on his way.

Both deputies activated the lights on their cruisers as they pulled into the parking lot. Deputy Coomes placed his cruiser in front of the van, while Deputy Roush parked to the side of the vehicle. As he pulled in front of the van, Deputy Coomes observed the driver's eyes grow wide, then the driver dropped his right hand to the gear shift of the vehicle. Deputy Coomes believed the driver, later identified as Handley, was preparing to flee or ram his cruiser. Deputy Coomes drew his service weapon and told the driver to show his hands. The deputies ordered the driver and front seat passenger, later identified as Smith, to exit the van. The deputies also found a third person, a woman, sitting in the back seat. Deputy Coomes performed a patdown search of Handley and felt a hard object in Handley's side pocket, which he believed could be a weapon. The deputy removed the object, a set of digital scales. Deputy Coomes detained Handley, placing him the back of his cruiser, then proceeded to assist Deputy Roush.

In the meantime, Detective Gibson had arrived and performed a patdown of Smith. He felt a hard, round object in Smith's front pants pocket and removed it. Detective Gibson would testify later that, prior to its removal, he could not identify the item. Upon its removal, the detective discovered a pill bottle containing a quantity of methamphetamine. Detective Gibson then questioned the third person in the van, who identified herself as Sara Willyard. Sara said she was there to help a friend and granted the detective access to her cellphone. Text messages sent from the cellphone identified her as the "Sara" who had been in contact with Detective Gibson's informant earlier that day.

At some point after discovering the digital scales, Deputy Coomes contacted dispatch regarding Handley and discovered Handley had an outstanding arrest warrant. However, Detective Gibson did not check for outstanding warrants on Smith because he thought it was unnecessary; he discovered methamphetamine during Smith's patdown, which he believed gave him probable cause to arrest. Several days after the incident, Detective Gibson learned there may have been an outstanding warrant for Smith's arrest as well.

Upon securing the three suspects, the officers searched the van and recovered a marijuana grinder from the glove box in the front passenger compartment. The officers performed a more thorough search of Handley at the scene and found three plastic bags of methamphetamine in his sock. All three individuals were arrested as a result of the incident. Following his arrest, Smith was booked into the detention center where officers discovered another two bags of methamphetamine on his person.

Relevant to this appeal, the McLean County grand jury thereafter indicted Smith and Handley on the following charges: first-degree trafficking in a controlled substance; possession of drug paraphernalia; and for being first-degree persistent felony offenders (PFO). Smith faced an additional charge for first-degree possession of a controlled substance. The appellants filed a joint motion to suppress evidence as the fruit of an unlawful search, alleging that the officers lacked reasonable suspicion to stop the maroon van and improperly conducted their subsequent patdown searches. Following a hearing, the circuit court denied the suppression motion in a written order entered March 28, 2016.

Smith and Handley thereafter negotiated conditional guilty pleas with the Commonwealth, reserving the right to appeal their suppression issues. Under the negotiated pleas, identical for each appellant, the PFOs would be amended from first-degree to second-degree, and the appellants would each receive a concurrent sentence of four years' imprisonment on all charges, enhanced to five years by the PFO. The McLean Circuit Court entered final judgment pursuant to this plea agreement on April 22, 2016. This appeal follows.

The appellants' issues on appeal stem from the denial of their joint motion to suppress evidence as the result of an unlawful search. In reviewing a trial court's ruling on a suppression motion, an appellate court must first determine if the trial court's factual findings are not clearly erroneous and are supported by substantial evidence. . . . A de novo review of the trial court's application of the law to the facts completes the analysis.

Frazier v. Commonwealth, 406 S.W.3d 448, 452-53 (Ky. 2013) (citations omitted).

As a preliminary matter, the Commonwealth urges this Court to adopt the holding of State v. Walker-Stokes, 903 N.E.2d 1277 (Ohio Ct. App. 2008), and find the appellants to be without standing to contest the search of their persons, because Smith and Handley had outstanding arrest warrants. In Walker-Stokes, the Court of Appeals of Ohio held that because "an outstanding arrest warrant operates to deprive its subject of the reasonable expectation of privacy the Fourth Amendment protects, the exclusionary rule does not apply to a search and seizure of the subject that would otherwise be illegal because of a Terry violation." Id. at 1282-83. However, "any question regarding a lack of standing is waived if not timely pled." Harrison v. Leach, 323 S.W.3d 702, 708 (Ky. 2010) (footnote omitted). The Commonwealth does not identify where it addressed this issue before the circuit court and we did not find this argument in our examination of the record. We therefore find the standing issue to be waived and we need not consider it here.

Smith and Handley argue two core issues on appeal. The appellants first contend the evidence should have been suppressed because the officers lacked reasonable suspicion to stop...

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