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Commonwealth v. Garrett

Court of Appeals of Kentucky

September 27, 2019

COMMONWEALTH OF KENTUCKY APPELLANT
v.
ANTHONY GARRETT APPELLEE

          APPEAL FROM MONTGOMERY CIRCUIT COURT HONORABLE BETH LEWIS MAZE, JUDGE ACTION NO. 16-CR-00230

          BRIEF FOR APPELLANT: Andy Beshear Attorney General of Kentucky Ashton M. McKenzie Spec. Assistant Attorney General Frankfort, Kentucky.

          BRIEF FOR APPELLEE: Molly Mattingly Frankfort, Kentucky.

          BEFORE: ACREE, DIXON, AND SPALDING, JUDGES.

          OPINION

          ACREE, JUDGE

         The Commonwealth appeals the June 17, 2017 order of the Montgomery Circuit Court suppressing evidence obtained in a search of Appellant Anthony Garrett's vehicle. Because the police conducted the search without a warrant under circumstances that did not justify any exception to the Fourth Amendment's warrant requirements, we affirm.

         FACTS AND PROCEDURE

         The evidence supporting the circuit court's findings of fact was introduced through testimony of the arresting officer, Joshua Smith, the only witness to testify. That evidence is as follows.

         After dark on Labor Day, September 5, 2016, Officer Smith saw a "suspicious vehicle" parked near a Mount Sterling intersection. When counsel asked what was particularly suspicious about the vehicle, Officer Smith said, "None other than being parked in the area with the headlights off." (Video Transcript (VT) 3/21/17; 1:51:30). That area is an unpaved but partially graveled strip of land, about the width of two cars, adjacent to the road surface at the intersection. Although there were two street lights in this area, only one was working. (Record (R.) at 73; VT 3/21/17; 1:52:22 (Officer Smith: "To the best of my knowledge, one of those lights was off." (emphasis added))).[1]

         The officer did not know whether the area was public or private property but said it was common for vehicles to park there during the day. However, during his two months working for the Mount Sterling Police Department, Officer Smith had never seen vehicles park there at night. He explained his decision to approach the vehicle was based on his belief it was parked in a high crime area. The Uniform Citation states the time as 10:02 PM. From his police cruiser, Officer Smith contacted dispatch to "run the tags for that vehicle." (VT 03/21/17; 1:23:20).

         The officer testified that, "to be perfectly honest, ma'am, I had no idea what Mr. Garrett was up to . . ."; he said, "I made contact with him to see what he was, to see what his activities were." (VT 03/21/17; 1:26:08). After running the vehicle's license plate, Officer Smith approached the vehicle's driver side on foot. Although Garrett's vehicle was parked closer to the creek than to the parallel roadway, there was still sufficient room for Officer Smith's partner, Officer Aaron Roberts, to approach the vehicle's passenger side where Stephanie Hendrix was seated. While Officer Roberts observed Hendrix, Officer Smith spoke with Garrett and asked him for identification. Garrett fully cooperated and handed the officer his driver's license. (VT 03/21/17; 1:27:00).

         Officer Smith then returned to his vehicle with Garrett's license and "ran Mr. Garrett's name over the radio through dispatch." (VT 3/21/17; 1:57:20). The time would have been approximately 10:14 PM.[2] Officer Smith said he "was advised Mr. Garrett possibly had a warrant."[3] The record does not indicate how much time elapsed before Officer Smith returned to Garrett's car and "detained Mr. Garrett for, to, until dispatch could confirm his warrant"; he asked Garrett to "step out of the vehicle and I [Officer Smith] placed him in handcuffs." (VT 3/21/17; 1:27:30). Again, Garrett was fully cooperative.

         Some twenty minutes after contacting dispatch, Officer Smith "was pulling him [Garrett] to the back of the vehicle attempting to talk to him, [when] she [Hendrix] started to make those erratic moves." (VT 3/21/17; 1:43:27). Officer Smith did not observe Hendrix's movements himself but testified to what he had been told – that "Officer Roberts observed the passenger attempting to conceal or reach for an item between the seats[, ]" but he did not see or identify the item. (VT 3/21/17; 1:27:55). As noted earlier, Officer Roberts did not testify.

         Although Officer Smith earlier testified that he placed Garrett in handcuffs upon removing him from his vehicle because of a possible warrant, he later offered an alternative scenario. He testified that he and Garrett were talking and walking to the rear of Garrett's vehicle when Hendrix began moving suspiciously. The circuit court was persuaded by this second account, finding that "because of the erratic movements of . . . Hendrix, he [Officer Smith] placed . . . Garrett in handcuffs to ensure officer safety and assist Officer Roberts; simultaneously, Officer Smith learned that there was no warrant for [Garrett's] arrest." (Order of Suppression, R. at 74). These three events were so close in time that Officer Smith called them "simultaneous" and "one continuum."

         After refreshing his memory with his computer-aided dispatch ("CAD") report, [4] Officer Smith gave a specific time when he received the "no warrants" confirmation from dispatch. He testified that at "approximately 2234 [10:34 PM] is whenever they gave us a, what we call a '10-4 check' meaning that everything is okay, and then we continued on the scene." (VT 3/21/17; 1:29:30). That is to say, thirty-two (32) minutes had elapsed from the time given on the Uniform Citation as the start of the investigation, at 10:02 PM.

         Neither officer observed any weapons or contraband at this point; Hendrix's movements alone caused the officers to conclude she was trying "to conceal an item or reach for a weapon, um, [so] we [Officer Roberts and Officer Smith] pulled her out of the vehicle." (VT 3/21/17; 1:28:21).

          There is no evidence the officers patted down Hendrix or Garrett for weapons. Officer Smith said only that they conducted an "officer safety search" of the area around where Hendrix had been seated "to see if contraband is being hidden or a firearm being manipulated"[5] but "mainly [for] a weapon . . . ." (VT 3/21/17; 1:48:00). No evidence indicates either Garrett or Hendrix had drugs on their person.[6] The best evidence of the time offered by the officer for when the search began was, in effect, the same time he received word there was no warrant for Garrett's arrest. That would have been at or immediately after 10:34 PM.

         This "officer safety search" yielded contraband in the form of cannabis and scales, so the officers undertook a more thorough search of the vehicle and, in total, discovered 5.3 grams of marijuana, 1.96 grams of cocaine, and the aforementioned scales. In addition, the circuit court entered a finding that "[c]ash in the amount of $1, 234.95 was found on Defendant Anthony Garrett."[7] A quarter hour or so after beginning the vehicle search, at 2250, i.e., 10:50 PM, Officer Smith arrested Garrett and Hendrix. (VT 3/21/17; 1:29:40).

         On March 21, 2017, upon Garrett's motion to suppress, the circuit court conducted a hearing. On June 15, 2017, the circuit court entered an order suppressing all the evidence discovered in the warrantless search.

         The circuit court found as fact that when the search was conducted, neither Garrett nor Hendrix was under arrest; there was no evidence that either officer observed contraband or a weapon in plain view or plain smell; and "[t]here were no exigent circumstances." (R. 75). The search was not consensual. (R. 77; VT 3/21/17; 1:58:38).

         The circuit court then applied the law to these facts, stating:

The United States Supreme Court created an automobile exception with Carroll v. United States, 267 U.S. 132 (1925) and Chambers v. Maroney, 399 U.S. 42 (1970); however, in enforcing the Fourth Amendment's prohibition against unreasonable searches and seizures, that Court still insists upon probable cause as the minimum requirement for reasonable searches permitted by the United States Constitution.
However, there was no permission for the search, no evidence of a crime in plain view, and no exigent circumstances. Additionally, there was not probable cause to believe a crime had been, or was about to be, committed; nor had the Officers witnessed the Defendant commit any offenses. Therefore, once the Officers determined there was no active warrant for the Defendant's arrest, there was no basis for continued detention of Defendant Anthony Garrett and no basis for the warrantless search of his vehicle. Further, because the Officers knew there was no warrant for the Defendant's arrest prior to conducting the search, there can be no reasonable argument that the Officers were acting in good faith on what they believed to be a valid warrant of arrest under U.S. v. Leon, 468 U.S. 897, 921.

(R. at 76-77) (emphasis added; paragraph numbers omitted). Based on these conclusions, the circuit court ruled that "All evidence seized as a result of the September 5, 2016 search of Defendant Anthony Garrett's vehicle, shall be suppressed, as against Defendant Anthony Garrett, and may not be used in any trial of Defendant Anthony Garrett." (R. at 77). This appeal followed.

         STANDARD OF REVIEW

         Because CR[8] 52.01 applies, the standard of review of a pretrial motion to suppress "remains substantively unaffected" after the transition from RCr[9] 9.78 to RCr 8.27, the rule for conducting suppression hearings. Simpson v. Commonwealth, 474 S.W.3d 544, 547 (Ky. 2015). The review is twofold. "First, we review the trial court's findings of fact under a clearly erroneous standard. Under this standard, the trial court's findings of fact will be conclusive if they are supported by substantial evidence. We then conduct a de novo review of the trial court's application of the law to the facts to determine whether its decision is correct as a matter of law." Whitlow v. Commonwealth, 575 S.W.3d 663 (Ky. 2019) (quoting Simpson v. Commonwealth, 474 S.W.3d 544, 547 (Ky. 2015) (citations and internal quotation marks omitted)).

         ANALYSIS

         The Commonwealth argues the circuit court erred both in its factfinding and in applying the law. We consider the factfinding first.

         1. Substantial evidence supports circuit court's relevant findings of fact.

         The Commonwealth challenges certain of the circuit court's findings of fact as lacking the support of substantial evidence. "Specifically, " argues the Commonwealth, "the trial court's facts state in Paragraph 9 that after learning that there was no warrant for the Defendant the Officer's [sic] searched the vehicle. These facts, as stated by the Court, are clearly erroneous." (Commonwealth brief, p. 4). We are not persuaded.

         Before proceeding to consider the Commonwealth's specific challenge to the sequence of events found as fact by the circuit court, we acknowledge that some factfinding indeed does lack the support of substantial evidence. Those erroneous findings, however, favor the Commonwealth.

         An example is the circuit court's finding that the officers first noticed Garrett's vehicle "[a]t approximately 11:30 p.m.[, ]" (R. 73), when the Uniform Citation indicates, and Officer Smith testified clearly and consistently, that it was much earlier in the evening – 10:02 PM.[10] (VT 3/21/17; 1:23:15). The circuit court said the lateness of the hour was a factor affecting the officer's reasonable suspicion of criminal activity, but it was not as late as the court found.

         Another erroneous finding of fact cited as a factor supporting the officer's reasonable suspicion Garrett was engaged in criminal activity was that his car was parked "with the lights off, the motor running, " but this contradicts the only testimony on that point; Officer Smith said, "I don't recall if the car was on." (VT 3/21/17; 1:26:26). There was no other evidence that the motor was running.

         The circuit court also found, contrary to the officer's unrefuted testimony, that "[t]he entire event, from initial contact to charging Defendant Anthony Garrett with trafficking, and placing him in custody for transport to the MCRJ [Montgomery County Regional Jail] pursuant to same, took approximately twenty (20) minutes." (R. 75). Officer Smith's testimony was clear that "On 9/5 of 2016, at approximately 2202 hours [10:02 PM], I located a suspicious vehicle, " (VT 3/21/17; 1:23:15), and that the arrest occurred at 10:50 PM, forty-eight (48) minutes later.[11] (VT 3/21/17; 1:29:40). These erroneous findings advance the Commonwealth's argument rather than undercut it. We will address these erroneous findings in the context of the circuit court's legal conclusions below. For now, we return to the Commonwealth's challenge to the sequence of events.

         The Commonwealth appears to challenge the circuit court's finding that no part of the search was conducted before dispatch told Officer Smith that Garrett had no warrants. If so, the challenge must fail. As outlined above, there is no evidence otherwise.

         However, the Commonwealth also believes the circuit court improperly conflated the officers' actions after removing Hendrix from the vehicle by treating the "continuum" of events as a single thorough search. The Commonwealth says the search was conducted incrementally, as follows: (1) Officer Smith asked Garrett "to step out of the vehicle, so he could check the validity of the warrant"; (2) "Officer Roberts alerted Officer Smith of the erratic movements of the passenger"; (3) "Out of concern for officer safety, Officer Smith placed [Garrett] in handcuffs and went to the passenger side of the vehicle"; (4) The officers "then searched the area where Ms. Hendrix was reaching and located cannabis and scales"; (5) "[T]he Officer's [sic] then proceeded to search the remainder of the vehicle locating cocaine." (Commonwealth brief, p. 4).

         The Commonwealth's interpretation is drawn largely from Officer Smith's second description of the relevant events that had Garrett in handcuffs rather than his first version, and for a different reason. Whether the second version is contradictory to or complementary of the first was a decision for the circuit court to make. Simpson, 474 S.W.3d at 547 (citing CR 52.01 ("due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.")). In fact, the circuit court accepted the officer's second version of when and why he handcuffed Garrett. (R. 74).

         The Commonwealth wants to parse the search into two separate events and suggests a lesser standard for a warrantless search applies to what it calls an "officer safety search" than applies to the more thorough vehicle search. As we explain below, no such distinction exists given the facts of this case. There is only one standard applicable to a warrantless physical search of a vehicle – "officers may search an automobile without having obtained a warrant so long as they have probable cause to do so." Collins v. Virginia, U.S., 138 S.Ct. 1663, 1670, 201 L.Ed.2d 9 (2018) (citing California v. Carney, 471 U.S. 386, 392-93, 105 S.Ct. 2066 85 L.Ed.2d 406 (1985)). As we ...


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