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Lynem v. Commonwealth

Court of Appeals of Kentucky

December 7, 2018



          BRIEFS FOR APPELLANT: Karen Shuff Maurer Frankfort, Kentucky.

          BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky James P. Judge Assistant Attorney General Frankfort, Kentucky.




         Roy Lynem appeals from a Fayette Circuit Court judgment after pleading guilty to possession of a controlled substance in the first degree, tampering with physical evidence and fleeing/evading police in the second degree. Lynem entered the plea conditioned on his right to appeal the circuit court's denial of his motion to suppress evidence.

         The following evidence was elicited at the suppression hearing: Officer Todd Hart and Recruit Officer Head were on patrol in Lexington when they stopped at a Speedway to purchase fuel and drinks. Lynem was also at the Speedway. Officer Hart testified that he did not specifically remember seeing Lynem at the service station and did not know if Officer Head saw Lynem. He assumed they followed Lynem out of the Speedway because his vehicle was in front of theirs when they left and proceeded down New Circle Road.

         After following Lynem for a short distance, Officer Head checked Lynem's license plate number in the Automated Vehicle Information System (AVIS). According to Hart, part of the training of recruit officers like Head consisted of teaching them to check random license plates. In regard to Lynem's plate, AVIS indicated "verify proof of insurance." Hart testified that when a stop is made due to an AVIS alert, he generally finds the vehicle is not insured. He acknowledged that he had encountered false positives but that the system has a 90 to 95 percent accuracy rate. The officers followed Lynem briefly and then, when he turned onto Eastland Parkway, activated their lights to initiate a traffic stop. Lynem did not pull over immediately but proceeded at the speed limit for another three to four blocks. He then turned onto Martha Court, where he stopped, jumped out of his car and ran away. The officers separated to pursue him. Officer Head eventually caught Lynem, who told the officers he fled because he did not have a license. The police did not find any contraband in a search of his vehicle but when they retraced his path, they found a rock of crack cocaine. Later, they obtained video from a security camera on a nearby building that showed Lynem throwing an object away as he ran by. Lynem denied any knowledge of the cocaine.

         Lynem was taken to the Fayette County Detention Center. Michael McLaughlin, who was being booked at the same time for failure to pay child support, testified he overheard Officers Hart and Head talking and laughing with the deputy sheriff. According to McLaughlin, Officer Hart stated he had seen Lynem in the Speedway, did not like how he looked and knew he would run if they followed him. Lynem has a distinctive appearance: he is African-American with facial tattoos, gold teeth and long cornrows that are dyed blond.

         Lynem filed a motion to suppress the evidence recovered by the police, arguing that they lacked reasonable suspicion to justify the traffic stop.

         Following the suppression hearing, which was continued for additional briefing on issues raised by two unpublished opinions of this Court, Willoughby v. Commonwealth, 2012-CA-000776-MR, 2014 WL 92253 (Ky. App. Jan. 10, 2014) ("Willoughby I") and Willoughby v. Commonwealth, 2015-CA-000466-MR, 2017 WL 1290645 (Ky. App. Apr. 7, 2017), disc. review denied (Ky. Oct. 25, 2017) ("Willoughby II"), the trial court denied the motion to suppress. Lynem entered a conditional guilty plea to amended charges. He received a total sentence of two years and was placed on probation for three years. This appeal followed.

         Our standard when reviewing a suppression ruling is twofold: "we first determine whether the trial court's findings of fact are supported by substantial evidence. If they are, then they are conclusive. Based on those findings of fact, we must then conduct a de novo review of the trial court's application of the law to those facts to determine whether its decision is correct as a matter of law." Commonwealth v. Neal, 84 S.W.3d 920, 923 (Ky. App. 2002) (footnotes omitted).

         The Fourth Amendment to the United States Constitution secures our freedom from "unreasonable searches and seizures." See also Ky. Const. § 10. "A police officer may constitutionally conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot." Bauder v. Commonwealth, 299 S.W.3d 588, 590-91 (Ky. 2009) (citing Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). Traffic stops are similar to Terry stops and therefore must also be supported by reasonable, articulable suspicion, which is defined as "considerably less than proof of wrongdoing by preponderance of the evidence." Chavies v. Commonwealth, 354 S.W.3d 103, 108 (Ky. 2011) (citations omitted).

         Lynem argues that the traffic stop was pretextual based on McLaughlin's testimony regarding the officers' motives for pulling him over. He contends that the officers sought a reason to stop him simply because they did not like the way he looked. Relying on dicta in Willoughby II, he contends that before officers are permitted to ...

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