FROM JEFFERSON CIRCUIT COURT HONORABLE ANN BAILEY SMITH,
JUDGE INDICTMENT NO. 16-CR-000275
FOR APPELLANT: Andy Beshear Attorney General of Kentucky
Dorislee Gilbert Special Assistant Attorney General
FOR APPELLEE: Rob Eggert Louisville, Kentucky.
BEFORE: JOHNSON,  D. LAMBERT, AND J. LAMBERT, JUDGES.
LAMBERT, J., JUDGE
Commonwealth of Kentucky appeals from the Jefferson Circuit
Court order granting Terrence Holt's motion to suppress.
was arrested on December 9, 2015, and indicted on February 3,
2016, on charges of trafficking in heroin (less than two
grams, subsequent offense) and wanton endangerment in the
first degree. He was arraigned in Jefferson Circuit
Court on February 8, 2016, when he entered a plea of not
guilty. Holt filed his motion to suppress on December 1,
2016. The hearing was held on May 12, 2017. Post-hearing
briefs were filed by the parties simultaneously. The circuit
court entered its ruling in Holt's favor on June 22,
2017, and the Commonwealth filed a timely
events leading to Holt's arrest are summarized in the
circuit court's findings in its order granting the motion
to suppress, which we repeat here:
[Officer Joe Nett of the Louisville Metro Police Department]
testified that on December 9, 2015, he was patrolling in an
unmarked police vehicle. He and his partner drove through the
BB&T Bank parking lot located at 3450 Taylor Boulevard at
5:30 p.m., which was after business hours. He observed a
white male standing by a vehicle; he described this area of
town as a high drug area. A car entered the parking lot and
backed into a parking space next to where the white male was
standing. Off. Nett observed the white male get into the
passenger side of the vehicle, remain for a short time, and
then saw him exit the vehicle. Off. Nett's partner
approached the white male while Off. Nett ordered the driver
of the car, who is the Defendant in this case, to exit the
vehicle. Off. Nett testified that the driver was not to leave
at that time. He searched the Defendant but did not find
guns, drugs, or money on him. The white male was observed
dropping an item which the officers believed to be
methamphetamine. After being read his rights the white male
stated that he was there to buy drugs and that he paid the
driver $120.00. After detaining the Defendant, Off. Nett
observed $120.00 in the center console of the Defendant's
car. Without advising the Defendant of his
Miranda rights, Off. Nett asked him what was going
on to which the Defendant replied that he was giving the
other person a ride. The Defendant was handcuffed and placed
in the backseat of the police car. The wanton endangerment
charge was brought against the Defendant because two young
children were in the backseat of his car at the time of this
alleged drug transaction.
granting Holt's motion, the circuit court held that
Officer Nett "could not see the Defendant who was
sitting in the car, that he did not witness a drug
transaction although he was watching the car, that he saw no
criminal activity, and that he detained the Defendant before
he saw him do anything." These things, the circuit court
ruled, were in "sharp contrast" to the facts in
Adkins v. Commonwealth, 96 S.W.3d 779 (Ky. 2003),
cited by the Commonwealth in its post-hearing brief. In
Adkins, the police, acting upon reliable information
in a homicide investigation, approached the suspect, who gave
a false name and, after being asked to produce
identification, began cursing and then attempted to flee. The
Adkins court found that the police officer "had
reason to believe he was dealing with the only suspect to a
brutal murder." Id. at 787. The facts in that
case supported the officer's belief that he had
sufficient cause to pat down the suspect for weapons pursuant
to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20
L.Ed.2d 889 (1968).
Commonwealth makes three arguments on appeal, namely, that
Officer Nett reasonably suspected that "criminal
activity was afoot," that the circuit court ignored the
totality of the circumstances, and that the circuit court
erroneously applied a higher standard for reasonable
suspicion. We disagree with all three arguments.
reviewing a trial court's ruling on a motion to suppress,
the findings of fact are reviewed under a clearly erroneous
standard, and the conclusions of law are reviewed de novo.
Davis v. Commonwealth, 484 S.W.3d 288, 290 (Ky.
2016) (citations omitted)." Moberly v.
Commonwealth, 551 S.W.3d 26, 29 (Ky. 2018).
a suppression hearing, the ability to assess the credibility
of witnesses and to draw reasonable inferences from the
testimony is vested in the discretion of the trial
court." Pitcock v. Commonwealth, 295 S.W.3d
130, 132 (Ky. App. 2009) (citing Commonwealth v.
Whitmore, 92 S.W.3d 76, 79 (Ky. 2002)). "On review,
the appellate court should not reevaluate the evidence or
substitute its judgment of the credibility of the witnesses
for that of the jury." Commonwealth v. Suttles,
80 S.W.3d 424, 426 (Ky. 2002) (citing Commonwealth v.
Jones, 880 S.W.2d 544 (Ky. 1994)). "In conducting
our review, our proper role is to review findings of fact
only for clear error while giving due deference to the
inferences drawn from those facts by the trial judge."
Perkins v. Commonwealth, 237 S.W.3d 215, 218 (Ky.
App. 2007) (citing Commonwealth v. Whitmore, 92
S.W.3d 76, 79 (Ky. 2002)).
circuit court was correct in its assessment of Officer
Nett's lack of reasonable suspicion. By the officer's
own testimony, there had been no complaints about this
particular public parking lot, and no tips had been received
concerning either Holt or the white male involved. The search
of Holt's person as well as his car revealed no weapons,
drugs, or contraband. Officer Nett "articulated nothing
about Appellant's behaviors, individually or
collectively, to connect him to criminal behavior[.]"
Moberly v. Commonwealth, 551 S.W.3d 26, 32 (Ky.
2018). The only evidence tying Holt to an alleged transaction
with the white male was the $120.00 found in Holt's