ON REVIEW FROM COURT OF APPEALS. CASE NO. 2010-CA-001215-MR. JEFFERSON CIRCUIT COURT NO. 09-CR-001470.
COUNSEL FOR APPELLANT: Daniel T. Goyette, Bruce P. Hackett, Office of the Louisville Metro Public Defender.
COUNSEL FOR APPELLEE: Jack Conway, Attorney General, Dorislee J. Gilbert, Special Assistant Attorney General.
OPINION OF THE COURT BY JUSTICE CUNNINGHAM. All sitting. Minton, C.J.; Cunningham, Keller, Noble, Scott, and Venters, JJ., concur. Abramson, J., concurs in result only.
On January 12, 2009, Louisville Metro Police Officer Brian Reccius observed a vehicle driven by Appellant, Robert Mason Parker, cross the center line of the road after leaving a bar. After stopping the vehicle, Officer Reccius discovered that Parker's driver's license had been suspended. Reccius asked Parker to step out
of the car. Parker complied and walked to the rear of the vehicle where he was questioned by Officer Reccius. After another officer arrived on the scene, Reccius asked Parker if there was anything illegal in his car to which Parker responded in the negative. Parker stood at the rear of the car with the other officer while Officer Reccius searched the vehicle. Parker was not handcuffed at the time. As a result of the search, the officer discovered a loaded handgun and some marijuana. Parker was then taken into custody.
Parker was subsequently indicted by a Jefferson County grand jury for possession of a hand gun by a convicted felon; illegal possession of a controlled substance, schedule I hallucinogen, marijuana; and operating a motor vehicle while license is revoked or suspended for driving under the influence, first offense. Parker filed a motion to suppress the evidence recovered from his vehicle, which was granted by the trial court. The Commonwealth filed a motion, pursuant to CR 59.05, to alter, amend, or vacate the order suppressing, or in the alternative, to enter findings of fact and conclusions of law. In an opinion and order entered on May 27, 2010, the trial court issued additional findings and denied the CR 59.05 motion.
A Court of Appeals panel unanimously reversed the circuit court's order suppressing the evidence. The court found that the Commonwealth's appeal was timely filed because " the running of the time to file an appeal of any judgment is tolled by a timely filed CR 59.05 motion." See CR 73.02. Regarding the suppression of the evidence, the Court of Appeals found that while the search was unlawful, the exclusionary rule did not require suppression because the police officer searching Parker's car followed existing precedent.
Timeliness of Appeal
The Commonwealth's notice of appeal was filed on June 24, 2010, which included the suppression order entered on March 19, 2010, and the order denying the Commonwealth's CR 59.05 motion entered on May 27, 2010. Parker argues that the Commonwealth had until April 18, 2010, to file its appeal because the suppression order was inappropriate for CR 59.05 review, as it was not a final judgment under that rule. Accordingly, Parker contends that the CR 59.05 motion and the resulting judgment failed to toll the time for filing a notice of appeal and that the Commonwealth's appeal is, therefore, untimely.
The suppression order entered on March 19, 2010, is interlocutory, not final. KRS 22A.020(4) provides the Commonwealth with a statutory right to appeal such interlocutory orders. See, e.g., Eaton v. Commonwealth, 562 S.W.2d 637 (Ky. 1978) (recognizing that KRS 22A.020(4) permits an appeal of an interlocutory ruling only if the ruling " decides a matter vital to the Commonwealth's case[.]" ); Ballard v. Commonwealth, 320 S.W.3d 69 (Ky. 2010). It is therefore undisputed that suppression orders are appealable. However, suppression orders are inappropriate for CR 59.05 review.
CR 59.05 provides that " [a] motion to alter or amend a judgment, or to vacate a judgment and enter a new one, shall be served not later than 10 days after entry of the final judgment." This rule only applies to final judgments. Pursley v. Pursley, 242 S.W.3d 346, 347 (Ky. App. 2007); see also CR 54.01 (" A final or appealable judgment is a final order adjudicating all the rights of all the parties in an action or proceeding . . ." ). An order suppressing the Commonwealth's key evidence, ...