THOMAS FRAZIER APPELLANT.
COMMONWEALTH OF KENTUCKY APPELLEE.
ON REVIEW FROM COURT OF APPEALS CASE NO. 2009-CA-000561-MR BOONE CIRCUIT COURT NO. 08-CR-00349
COUNSEL FOR APPELLANT: Katie L. Benward Assistant Public Advocate.
COUNSEL FOR APPELLEE: Jack Conway Attorney General of Kentucky Kenneth Wayne Riggs Assistant Attorney General.
A Boone County jury convicted Appellant Thomas Frazier of tampering with physical evidence, possession of drug paraphernalia, possession of marijuana, carrying a concealed deadly weapon, and criminal littering. Frazier appealed his convictions to the Court of Appeals which reversed and remanded his criminal littering conviction but affirmed the remaining convictions. Frazier sought discretionary review in this Court, arguing that evidence of his offenses was illegally obtained as a result of an unconstitutional pat-down and vehicle search. Agreeing that both the pat-down and vehicle search were constitutionally impermissible, we reverse.
On June 7, 2008, Boone County Sheriff Deputies Mike Moore and Nate Boggs were in an unmarked car in a fast-food drive-thru lane. After witnessing a passenger in the vehicle in front of them throw some trash out of the car window, they decided to follow the vehicle out of the parking lot. When the deputies observed the vehicle make a left-hand turn without using a turn signal, they activated their lights and stopped the vehicle.
The driver, Thomas Frazier, appeared nervous as he provided his license and proof of insurance to the officer. Deputy Moore asked Frazier who the passengers in the vehicle were and where they were going, to which Frazier initially replied, "Does it matter?" At that point, Deputy Moore asked Frazier to exit the vehicle. After moving to the rear of the car, Deputy Boggs conducted a pat-down search of Frazier. During the search, Deputy Boggs felt an object in Frazier's front jeans pocket which he described as "long, " "coarse, " and "suspicious." When Deputy Boggs asked Frazier what was in his pocket, Frazier replied, "Nothing." After asking Frazier two additional times to identify the object, and receiving the same response, Deputy Boggs pulled open the top of Frazier's pant pocket and observed a plastic bag filled with a leafy, green substance. Suspecting that the bag contained marijuana, Deputy Boggs arrested Frazier and placed him in the back seat of a police cruiser that had arrived during the pat-down search.
The deputies then commenced a search of Frazier's car where they discovered a "tire thumper, " a short wooden bat used to estimate tire pressure, beneath the driver's seat. At some point during the search an onlooker approached and notified the deputies that Frazier appeared to be eating something in the back seat of the cruiser. When the deputies reached Frazier, they observed what appeared to be marijuana crumbs on his mouth, shirt, and lap. An additional bag of marijuana was found on Frazier's person at that time. Although the vehicle search failed to yield more drugs or drug paraphernalia, two marijuana pipe screens were found in Frazier's wallet during his booking search at the jail.
A Boone County grand jury indicted Frazier for tampering with physical evidence, possession of drug paraphernalia, promoting contraband, possession of marijuana, carrying a concealed deadly weapon, and criminal littering. Frazier represented himself at trial, where, following denial of his suppression motion, a jury acquitted him of the promoting contraband charge but found him guilty of all of the remaining charges. At sentencing, Frazier was ordered to serve 150 days of a five-year sentence with the balance probated for five years and was assessed a $500.00 fine.
Frazier appealed his convictions to the Kentucky Court of Appeals, raising five issues on appeal. He challenged the constitutional validity of the initial traffic stop, the pat-down of his person and the vehicle search. Frazier also challenged the trial court's competency finding and argued there was insufficient proof relating to the littering charge. In a 2-1 decision, the Court of Appeals reversed Frazier's littering conviction and affirmed all of the other convictions. We granted discretionary review to determine whether the search of Frazier's person exceeded the scope of Terry v. Ohio, 392 U.S. 1 (1968), and whether the police had reasonable grounds for believing that evidence of the crime of arrest would be found in Frazier's vehicle at the time the vehicle search was conducted.
I. The Pat-Down Search Was Unconstitutional.
At the suppression hearing, Deputy Moore contended that Frazier's nervous and evasive demeanor prompted him to ask Frazier to exit the vehicle. Specifically, Deputy Moore stated that Frazier's hands were shaking and he refused to look the officer in the eye as he answered questions. Deputy Moore testified that Frazier was uncooperative when asked where he was going and who else was in the vehicle, replying: "Does it matter?" This caused Deputy Moore to suspect that Frazier "had something to hide, " and in the deputy's mind raised "red flags." Deputy Moore acknowledged that, once outside of the vehicle, Frazier explained that he was on his way to pick up his son for a concert, and that his passengers were friends of his son.
Deputy Boggs testified that after the initial traffic stop, he approached the passenger side of the vehicle while Deputy Moore spoke with Frazier. According to Deputy Boggs, Frazier was "verbally belligerent" upon exiting the vehicle, but he could not hear what Frazier was saying. When Deputy Boggs asked Frazier if he had anything illegal on his person, Frazier said he had "nothing" on him. Frazier refused to consent to a search of his person. Deputy Boggs testified that he believed an over-the-clothes frisk for weapons was warranted based on Frazier's nervous behavior and belligerent response to Deputy Moore's question about his destination and passengers. When he advised Frazier that he was going to conduct a frisk for weapons, Frazier was "adamant" that he not be frisked.
Despite Frazier's objection, Deputy Boggs began the pat-down and perceived a "long, " "coarse" object that was "hard in nature" in Frazier's front pant pocket. When he asked Frazier what was in his pocket, Frazier responded, "Nothing." Deputy Boggs explained that he clearly felt something in Frazier's pocket, again inquiring what it was. Frazier replied, "It's nothing." When Deputy Boggs asked Frazier to identify the object for a third time, Frazier again stated, "It's nothing." Deputy Boggs then opened Frazier's pant pocket where he observed a plastic bag containing what he believed to be marijuana. Frazier was placed under arrest for possession of marijuana, and Deputy Boggs conducted a more thorough search of Frazier's person. The ...