FROM OLDHAM CIRCUIT COURT HONORABLE KAREN A. CONRAD, JUDGE
ACTION NO. 16-CI-00589
FOR APPELLANT: John K. Carter Robert A. Riley Oldham County
Attorney LaGrange, Kentucky.
FOR APPELLEES: LaGrange, Kentucky.
BEFORE: COMBS, JONES, AND NICKELL, JUDGES.
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,
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 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.
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.
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.
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.