Suggs v. Commonwealth, NO. 2002-CA-002318-MR (Ky. App. 11/14/2003)

Decision Date14 November 2003
Docket NumberNO. 2002-CA-002318-MR.,2002-CA-002318-MR.
CourtKentucky Court of Appeals

Morris Lowe, Dixie Satterfield, Bowling Green, Kentucky, BRIEF FOR APPELLANT.

Albert B. Chandler III, Attorney General, BRIEF FOR APPELLEE.

N. Susan Roncarti, Assistant Attorney General, Frankfort, Kentucky, BRIEF FOR APPELLEE.




Travis Suggs appeals from a final judgment of the Simpson Circuit Court sentencing him to seven years' imprisonment on a conviction for trafficking in a controlled substance (marijuana) within 1,000 yards of a school building and being a persistent felony offender in the second degree (PFO II) following a jury trial. Suggs challenges the trial court's denial of his motion to suppress evidence obtained in the execution of a search warrant. He also challenges an order of the trial court denying his motion for a new trial based on the failure of the Commonwealth to disclose the existence of an eye witness prior to trial. We conclude that his arguments are without merit and thus affirm.

In the late afternoon of August 6, 2001, Officers Scott Wade and Brian Smith of the Franklin Police Department were patrolling an area of high drug activity in Franklin, Kentucky. The officers saw Roscoe Clark approach a residence on Breckinridge Street on his bicycle and enter the residence. Officer Wade was familiar with Clark as a drug user from previous encounters with him. A few minutes later, Clark exited the residence.

The police officers stopped Clark when they observed him violate some traffic regulations. When Officer Wade approached him, Clark placed a small bag of marijuana in his mouth, which the officer recovered. When asked about the marijuana, Clark allegedly told Officer Wade that he had just purchased the item at the Breckinridge Street residence from a black male in a white tee shirt and a blue or black hat. After arresting Clark for possession of marijuana, Officer Wade decided to seek a search warrant.

A few hours later, a trial commissioner issued a search warrant based on an affidavit prepared by Officer Wade describing the incident and his discussion with Clark. In the affidavit, Officer Wade stated that Clark had given him reliable, truthful information in the past. The search warrant authorized a search of the residence for property or things of evidence tending to show crimes related to the sale of drugs and for an unknown black male wearing a white tee shirt and a blue or black hat.1

At approximately 9:00 p.m. the same night, Officer Wade and several other police officers executed the search warrant. A young woman answered and allowed them into the residence after Officer Wade knocked on the front door and told her of the search warrant. Upon entering, the police had their guns drawn. They encountered two persons in the kitchen and six persons, including Suggs, in a back entertainment room.

When Officer Wade and another officer entered the back room, Suggs was playing billiards. Officer Wade told the occupants that he had a search warrant and directed them to lie down on the floor and place both of their hands in front of them where they could be seen. Suggs did not lie down on the floor, but he did drop the pool stick and put his hands in front of him. Suggs then started repeatedly placing his right hand behind him and bringing it back in front of him.

After Officer Wade asked him several times to leave both of his hands in front of him, he allegedly saw Suggs take a large Ziploc plastic bag containing what appeared to be marijuana from behind his back as he was going down on the floor and throw it to his side. At that point, while pointing his gun at Suggs, Officer Wade again told Suggs to lie face down on the ground. Officer Wade then handcuffed Suggs, placed him under arrest, and performed a search of his person.

In the search, Office Wade discovered a small bag of marijuana, $6,072 mostly in $20 bills, and a vial containing several Viagra pills. Officer Wade also retrieved the large bag thrown by Suggs, which later analysis revealed contained 89 grams2 of marijuana. The search of the residence uncovered various items of drug paraphernalia, including scales and plastic baggies, and a police scanner.

In November 2001, Suggs was indicted on one felony count of trafficking in a controlled substance (marijuana) within 1,000 yards of a school building,3 one misdemeanor count of prescription drugs in improper container,4 one misdemeanor count of possession of drug paraphernalia,5 one misdemeanor count of possession of a police radio,6 and being a persistent felony offender in the first degree (PFO I).7 Suggs subsequently filed a motion to suppress the evidence seized by the police during the search.8 The trial court conducted a hearing on the motion with Officer Wade as the only witness.9 Suggs challenged the sufficiency of the description of the reliability of Clark in the affidavit submitted to support the search warrant and the validity of the search of Suggs's person. The trial court denied the motion holding that the search warrant was validly issued and that the search of Suggs was a valid search incident to arrest.

At the trial on August 15, 2002, Officers Wade and Smith testified about the events involving the search. Suggs testified and admitted having the small bag of marijuana and cash but denied ever possessing or handling the large bag of marijuana. During the defense case, Clark testified that he did not tell Officer Wade that he had purchased marijuana from a person at 528 Breckinridge Street and denied ever having been at that residence. Clark also stated that his girlfriend was with him on August 6 when he was stopped and arrested by Officer Wade. Prior to submitting the case to the jury, Suggs orally renewed his motion to suppress without stating the grounds for the motion, and the trial court summarily denied the request. The jury found Suggs guilty of trafficking in a controlled substance (marijuana) and being a PFO II and recommended a seven-year sentence.10

Suggs filed a motion for a new trial that included, among others things, alleged error in the denial of his earlier motion to suppress. The motion cited the trial testimony of Clark as support. On October 7, 2002, the trial court conducted a hearing on sentencing and the new trial motion. Suggs's attorney argued that the affidavit for the search warrant was insufficient, the Commonwealth should have given the defense information that Clark's girlfriend was with him when he was stopped, and the police used excessive force in executing the search warrant. The trial court denied the new trial motion stating the police had acted properly in executing the search warrant and the defense had not established that Clark's girlfriend would have provided exculpatory evidence. Suggs was sentenced to seven years' imprisonment on trafficking in a controlled substance (marijuana) and being a PFO II. This appeal followed.

On appeal, Suggs first contends the police officers violated his Fourth Amendment rights in the manner in which they executed the search warrant. Suggs questions the actions of the police in displaying their weapons and ordering the occupants to get down on the floor. He asserts that there was no threat or danger to the police to justify their actions and that their actions constituted an illegal arrest of him. With respect to denial of a motion to suppress, an appellate court reviews the trial court's factual findings for clear error and the legal issues de novo. See Commonwealth v. Whitmore, Ky., 92 S.W.3d 76, 79 (2002); United States v. Miller, 314 F.3d 265, 267 (6th Cir. 2002).

The Fourth Amendment of the United States Constitution prohibits unreasonable search and seizures. See United States v. Jacobsen, 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984) (Fourth Amendment protects against both illegal searches and seizures). A person whose liberty is restrained by means of physical force or show of authority and is not free to leave a residence while officers are conducting a search is "seized" for purposes of the Fourth Amendment. See Michigan v. Summers, 452 U.S. 692, 696, 101 S.Ct. 2587, 2590-91, 69 L.Ed.2d 340 (1981) (citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). Generally, a seizure amounting to an arrest must be supported by probable cause. See, e.g., Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979).

However, the Supreme Court has held that "a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted." Summers, 452 U.S. at 705, 101 S.Ct. at 2595. Justification for this incremental intrusion on personal liberty when a search of a home has been authorized by a valid warrant includes the substantial law enforcement interest in preventing the flight of a suspect in the event incriminating evidence is found, protecting the safety of the officers, and the orderly completion of the search. Id. at 703, 101 S.Ct. at 2594.

The Fourth Amendment also protects against the use of excessive force in the manner of executing a search warrant or making an arrest or investigatory detention. Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989); Ingram v. City of Columbus, 185 F.3d 579, 596 (6th Cir. 1999). The right to make an arrest or investigatory stop, however, necessarily carries with it the right to use some degree of physical coercion or threat to affect it. Graham, 490 U.S. at 396, 109 S.Ct. at 1872. In deciding whether the amount of force was excessive, courts examine the totality of the circumstances to determine whether the countervailing government interests...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT