Released for Publication May 8, 2014.
ON REVIEW FROM COURT OF APPEALS. CASE NO. 2012-CA-000185-MR. FAYETTE CIRCUIT COURT NO. 10-CR-00727.
FOR APPELLANT: Robert Chung-Hua Yang, Assistant Public Advocate.
FOR APPELLEE: Jack Conway, Attorney General, Courtney J. Hightower, Assistant Attorney General.
OPINION OF THE COURT BY JUSTICE CUNNINGHAM, All sitting. All concur.
At around 3:40 a.m., on March 6, 2010, Officer Richard Rice of the Lexington Police Department was in his cruiser patrolling a high crime area in Lexington. He came upon a vehicle parked on the side of the street with only its taillights on. Officer Rice drove past the vehicle, but did not initially see anyone inside. Nevertheless, he was concerned that the vehicle may have been stolen or otherwise involved in criminal activity. Officer Rice turned around and parked his cruiser behind the vehicle and radioed the police dispatcher the vehicle's license plate number. While awaiting a report, Officer Rice noticed two people sitting inside the vehicle.
Officer Rice exited his cruiser and approached the vehicle to investigate. He walked to the driver's side door and spoke with the driver, Faith Kimeli. He also observed Appellant, Pleas Lucian Kavanaugh, sitting in the passenger's seat. At this time, the officer explained that he was suspicious of the couple sitting in their vehicle with only the taillights on in a high crime area during the early morning hours. Ms. Kimeli explained that they had just dropped off a friend after returning from a club, and that she and Kavanaugh were just sitting in the car talking. The officer asked Ms. Kimeli for her identification and she willingly complied. During this exchange, Kavanaugh never made eye contact with the officer.
Officer Rice also asked Kavanaugh if he had identification, to which Kavanaugh answered that he did not. He then asked Kavanaugh for his name. Kavanaugh responded by inquiring as to why the officer wanted to know. Officer Rice explained that he needed to know because Kavanaugh had not presented any identification. Throughout this exchange, Kavanaugh never made eye contact with the officer and began reaching into his coat and digging in his pocket. Concerned that Kavanaugh might have a weapon, Rice asked him to step out of the vehicle.
After Kavanaugh exited the vehicle, he pulled a small black item from his pocket. Believing that the object could have been a weapon, Officer Rice ordered Kavanaugh to get his hands out of his pockets. Kavanaugh placed the object back in his pocket
and stepped towards the officer. Officer Rice explained to Kavanaugh that, due to his suspicious actions, he needed to frisk him for a weapon. Kavanaugh refused and then removed a small, black digital recording device from his pocket and spoke into it, saying something to the effect that he was being harassed. Kavanaugh continued to be non-compliant and refused to put the recorder down. Officer Rice eventually initiated a Terry frisk by having Kavanaugh place his hands behind his back, although Kavanaugh never relinquished the recorder.
Sometime during the search, Officer Rice removed Kavanaugh's wallet from his person in order to look for identification, to which Kavanaugh responded by yelling, " Get out of my wallet!" Kavanaugh then disengaged his hands, placed the recorder on the trunk of the car, spun around quickly, and grabbed Officer Rice in a " bear hug." As a result of the physical contact, Officer Rice arrested Kavanaugh and radioed for backup. When other officers arrived on the ...