FROM MADISON CIRCUIT COURT HONORABLE WILLIAM G. CLOUSE, JR.,
JUDGE ACTION NO. 16-CR-00144
FOR APPELLANT: Andy Beshear Attorney General of Kentucky
Courtney J. Hightower Assistant Attorney General Frankfort,
FOR APPELLEE: Molly Mattingly Frankfort, Kentucky
BEFORE: COMBS, JONES, AND NICKELL, JUDGES.
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
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.
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
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 Mirandarights 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.
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).
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.
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.
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.
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 ...