FROM MONTGOMERY CIRCUIT COURT HONORABLE BETH LEWIS MAZE,
JUDGE ACTION NO. 16-CR-00230
FOR APPELLANT: Andy Beshear Attorney General of Kentucky
Ashton M. McKenzie Spec. Assistant Attorney General
FOR APPELLEE: Molly Mattingly Frankfort, Kentucky.
BEFORE: ACREE, DIXON, AND SPALDING, JUDGES.
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.
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
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."
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
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).
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. Officer Smith said he "was
advised Mr. Garrett possibly had a
warrant." 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
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.
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."
refreshing his memory with his computer-aided dispatch
("CAD") report,  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.
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).
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" but "mainly
[for] a weapon . . . ." (VT 3/21/17; 1:48:00). No
evidence indicates either Garrett or Hendrix had drugs on
their person. 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.
"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." 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).
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.
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).
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
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.
52.01 applies, the standard of review of a pretrial motion to
suppress "remains substantively unaffected" after
the transition from RCr 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
Commonwealth argues the circuit court erred both in its
factfinding and in applying the law. We consider the
Substantial evidence supports circuit court's relevant
findings of fact.
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.
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.
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. (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.
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
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. (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.
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
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).
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).
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 ...