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Commonwealth v. Wheeler

Court of Appeals of Kentucky

February 23, 2018



          BRIEFS FOR APPELLANT: John K. Carter Robert A. Riley Oldham County Attorney LaGrange, Kentucky.

          BRIEF FOR APPELLEES: LaGrange, Kentucky.



          JONES, JUDGE:

         The Commonwealth appeals from an order of the Oldham Circuit Court denying its motion for a writ of prohibition and mandamus. Following review of the record and applicable law, we affirm.

          I. Background

         In the early morning of March 22, 2015, Paul Brady was stopped at a traffic safety checkpoint set up on the northbound exit ramp of I-71 at its intersection with Highway 53 in Oldham County, Kentucky. As a result of this stop, Brady was arrested and charged with DUI. On Brady's motion, Oldham District Court Judge Diane Wheeler conducted a suppression hearing on May 11, 2016.

         KSP[1] Trooper Barrett Brewer was the sole testifying witness at the suppression hearing. Trooper Brewer testified that he set up the checkpoint at a preapproved location at 1:32 a.m. on March 22, 2015. The checkpoint had been approved to be conducted from 1:30 a.m. to 3:30 a.m.; however, Trooper Brewer stated that he shut the checkpoint down at 2:31 a.m. following Brady's arrest. Trooper Brewer testified that either he or the officer from the Oldham County Police Department working the checkpoint with him stopped every vehicle passing through the checkpoint and asked the drivers the same questions. He stated that weather conditions were favorable on the night in question. While Trooper Brewer acknowledged that he had not set up signs or cones warning drivers of the upcoming checkpoint, he and the officer working the checkpoint with him had the lights of their vehicles flashing and were both wearing traffic safety vests. Trooper Brewer acknowledged that it is department policy that media notices advising of traffic checkpoints in the area be sent out monthly; however, he was unaware if a media notice had been sent out in March of 2015. The Commonwealth offered as an exhibit a media notice sent out in May of 2015, which it stated was indicative of the notice that should have been sent out in March, but did not present any evidence showing that a media notice was sent out for March of 2015.

         On October 14, 2016, Judge Wheeler granted Brady's motion to suppress evidence obtained as a result of the checkpoint. In finding that the checkpoint did not meet constitutional muster, Judge Wheeler applied her findings of fact to the four factors set out by the Kentucky Supreme Court in Commonwealth v. Buchanon, 122 S.W.3d 565 (Ky. 2003), to determine the reasonableness of a traffic checkpoint: (1) whether "decisions regarding the location, time, and procedures" governing the checkpoint are determined by an officer in a supervisory position, as opposed to an officer in the field; (2) whether the law enforcement official working the checkpoint has complied with the procedures established by the superior officer "so that each motorist is dealt with in exactly the same manner"; (3) whether the nature of the checkpoint is readily apparent to approaching motorists; and (4) the length of the stop. Id. at 571. Judge Wheeler found that there had been no evidence presented calling the length or intrusiveness of the stop into question; therefore, the fourth Buchanon factor was satisfied. Additionally, while Judge Wheeler noted that Trooper Brewer's dual role as both a supervisor and an officer in the field weighed against the Commonwealth, she found that Trooper Brewer and the KSP had substantially complied with the first and second Buchanon factors. Judge Wheeler noted that, in a prior ruling of the Oldham District Court, the district court had found that the location of the checkpoint had been preapproved. Further, Judge Wheeler noted that Trooper Brewer's testimony that he and his accompanying officer had stopped each vehicle approaching the checkpoint and asked them the same questions was in accord with requirements from existing case law. As to the third factor, however, Judge Wheeler expressed "grave concerns" about the visibility and notice of the checkpoint. She noted that the Trooper Brewer had testified that he was unaware if a media notice was given for March of 2015, and that the Commonwealth had offered no evidence of the same. Further, she expressed concern that there had been no warnings, signs, or notices advising the public of the upcoming checkpoint. Accordingly, Judge Wheeler concluded that the traffic checkpoint had been unreasonable and infringed upon Brady's civil liberties.

         On October 17, 2016, the Commonwealth filed a petition for writ of prohibition and mandamus with the Oldham Circuit Court requesting that the circuit court direct Judge Wheeler to reverse her suppression order. The Commonwealth contended that, in granting Brady's motion to suppress, Judge Wheeler had acted within her jurisdiction but erroneously. Additionally, the Commonwealth alleged that it would suffer irreparable injury if its requested relief was not granted, as it would have insufficient evidence to prosecute Brady for DUI. The Commonwealth contended that Judge Wheeler's analysis of the reasonableness of the traffic checkpoint was erroneous as she had conclusively relied on the fact that there were no warning signs posted advising of the checkpoint and that there had been no media notice. Brady's response conceded that the Commonwealth had no adequate remedy by way of appeal, but contended that the Commonwealth's inability to successfully prosecute its case did not rise to the level of injury required to grant a writ of prohibition. Additionally, Brady contended that Judge Wheeler's order was legally and factually correct.

         The circuit court denied the Commonwealth's petition for a writ on February 28, 2017. First, addressing Brady's contention that the Commonwealth had failed to demonstrate that it would suffer irreparable injury without the grant of a writ, the circuit court concluded that a substantial miscarriage of justice may result if the Commonwealth was unable to use the evidence suppressed by the district court in its prosecution of Brady. Ultimately, however, the circuit court found that Judge Wheeler's findings of fact were supported by substantial evidence and that her decision to suppress the evidence was correct as a matter of law. The circuit court noted that the presence of signs and/or media notices advising the public of an impending checkpoint may not be mandatory. However, the circuit court found that Judge Wheeler was acting properly when she balanced the lack of notice against the other Buchanon factors and concluded that the checkpoint was unreasonable.

         This appeal followed.

         II. ...

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