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Commonwealth v. Roden

Court of Appeals of Kentucky

June 1, 2018



          BRIEFS FOR APPELLANT: Andy Beshear Attorney General of Kentucky Courtney J. Hightower Assistant Attorney General Frankfort, Kentucky

          BRIEF FOR APPELLEE: Molly Mattingly Frankfort, Kentucky



          NICKELL, JUDGE.

         The Commonwealth of Kentucky appeals from an order of the Madison Circuit Court suppressing a lockbox and contents belonging to Steven Roden. The box was seized during a warrantless search of a stolen vehicle Roden was driving when stopped by police. It was opened during an inventory search of the entire vehicle prior to impoundment. Following review of the record, the briefs and the law, we reverse and remand for further proceedings.

         On January 21, 2016, as Richmond Police Officer Casey Scott drove to work in an unmarked vehicle, he spotted a car reported as being stolen weeks earlier. Officer Scott ran the vehicle's plate to confirm its status, called for backup, and followed the vehicle onto a parking lot. Officer Scott believed the driver sensed he was being pursued because the car took evasive steps to avoid contact. The stolen car then stopped, the driver exited the vehicle, and began walking toward Officer Scott, prompting him to believe the driver intended to flee on foot.

         Officer Scott exited his vehicle with his weapon drawn and told the driver-identified as Roden-to stop. Officer Josh Ernst arrived on scene about this same time. Officer Scott had no handcuffs, but Officer Ernst did, and cuffed Roden, placing him in custody. As Officer Ernst applied the cuffs, Roden reached down his left leg. Officer Scott grabbed Roden's hand and asked what he was trying to reach; Roden did not respond. Officer Scott told Roden he was going to conduct a safety patdown; a knife and cell phone were discovered. To protect himself from being stuck, Officer Scott asked Roden whether he had any contraband or needles on his person. Roden said he had nothing on him, but there were needles in a lockbox inside the car. Officer Scott asked no further questions.

         Because the stolen car was being impounded, Officer Scott completed an inventory search of the vehicle. As part of that search, Officer Scott opened the lockbox with a key acquired from either Roden or a keyring, revealing syringes and drugs. Officer Scott determined the lockbox belonged to Roden. Roden was transported to the Richmond Police Department where he was read his Miranda[1]rights and interviewed. Roden was indicted on multiple drug offenses, one count of receiving stolen property over $10, 000, and being a second-degree persistent felony offender.

         On September 9, 2016, defense counsel moved the trial court to suppress all items seized during the stop and any oral statements made by Roden as a result of the stop. The motion alleged Roden had been questioned at the scene without benefit of a Miranda warning, he was in custody when questioned about whether the vehicle contained contraband, and Roden had been subjected to what amounted to a two-stage interview prohibited by Oregon v. Elstad, 470 U.S. 298, 300, 105 S.Ct. 1285, 1288, 84 L.Ed.2d 222 (1985).

         The motion was heard October 25, 2016. Officer Scott, the sole witness, was called by the Commonwealth. Testifying to the above-stated facts, he said he did not recall whether he read Miranda rights to Roden at the scene, but he did at the police station. Defense counsel cross-examined Officer Scott, but offered no witnesses on Roden's behalf. At one point in the hearing, the Commonwealth asked Officer Scott whether he considered Roden's response about a lockbox inside the car containing syringes to be consent to search. The witness responded, "I guess." The trial court denied the motion to suppress, finding a proper inventory search of the vehicle-including the lockbox-had occurred, and all statements-regardless of when made-were admissible. The trial court further found: Officer Scott's questions about the presence of contraband were purely for his protection; a needle can be a weapon; Roden's responses may have been outside the scope of the officer's questions; and, a person should be Mirandized as soon as possible after arrest or at least when handcuffed. Finally, the trial court found because the contents of the stolen car would have been subject to an inventory search, items contained within the lockbox would have been seized through inevitable discovery.

         The next day, defense counsel filed a second motion to suppress. The motion contended when Roden was stopped, the Richmond Police Department had not adopted language specifying how officers are to handle closed containers during an inventory search as mandated by Florida v. Wells, 495 U.S. 1, 5, 110 S.Ct. 1632, 1635, 109 L.Ed.2d 1 (1990). Citing the noncompliant policy, defense counsel again moved the trial court to suppress the contents of the lockbox, and noticed the motion for a hearing. In response, the Commonwealth requested a hearing to offer "additional evidence" in light of Roden's no longer arguing a Miranda violation, but now attacking the trial court's finding of a proper inventory search.

         A second suppression hearing was convened on November 29, 2016. Over defense objection, the Commonwealth was permitted to recall Officer Scott to testify his initial question to Roden was, "Do you have contraband on your person?" The Commonwealth then sought the opportunity to argue Roden gave consent for the search of the lockbox. Citing United States v. Patane, 542 U.S. 630, 631, 124 S.Ct. 2620, 2622, 159 L.Ed.2d 667 (2004), the prosecutor argued no Miranda violation had occurred and Roden had no expectation of privacy in the vehicle he was driving at the time of the stop because it was stolen.

         Defense counsel introduced Richmond Police Department policies in effect both before and after Roden was stopped. Authenticity of the policies was stipulated. Defense counsel explained the policy in effect on January 21, 2016, the date Roden was stopped, said nothing about how officers were to handle closed containers during an inventory search-a violation of Wells. Not until March 2016, two months after Roden was stopped, did the Richmond ...

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