GARRY MCCLAIN v. COMMONWEALTH OF KENTUCKY
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RENDERED: NOVEMBER 30, 2007; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2006-CA-002016
GARRY MCCLAIN
v.
APPELLANT
APPEAL FROM SPENCER CIRCUIT COURT
HONORABLE REBECCA OVERSTREET, JUDGE
ACTION NO. 06-CR-00002
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE AND NICKELL, JUDGES; AND GUIDUGLI, SENIOR JUDGE.1
NICKELL, JUDGE: Garry McClain (“McClain”) entered a conditional guilty plea
pursuant to Kentucky Rules of Criminal Procedure (CR) 8.09 in the Spencer Circuit
Court to the charges of trafficking in a controlled substance, first degree, first offense
(methamphetamine);2 trafficking in marijuana, less than eight ounces, first offense;3
1
Senior Judge Daniel T. Guidugli sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5) (b) of the Kentucky Constitution and KRS 21.580.
2
Kentucky Revised Statutes (KRS) 218A.1412, a Class C felony.
3
KRS 218A.1421, a Class A misdemeanor.
operating a motor vehicle under the influence of drugs or alcohol, first offense;4 failure to
wear a seatbelt;5 and no insurance.6 He received a sentence of seven years. Within his
guilty plea, McClain reserved the right to appeal the circuit court's denial of his motion to
suppress evidence. It is from this denial that he appeals to this Court. For the following
reasons, we affirm.
On October 26, 2005, at approximately 7:02 p.m., troopers from the
Kentucky State Police7 established a traffic safety checkpoint on U.S. 31E at the
intersection of Max Rouse Road in Spencer County, Kentucky. The officers stopped
every vehicle approaching the roadblock for the stated purposes of reducing accidents,
detecting operators who were driving under the influence of drugs or alcohol, conducting
vehicle inspections, checking licensing compliance, and detecting any other attendant
violations.
McClain was stopped at the checkpoint at approximately 9:00 p.m.
Trooper Robert Mitchell Harris (“Trooper Harris”) testified he observed that McClain
had bloodshot eyes and detected a strong odor of marijuana emanating from McClain's
vehicle. Upon request, McClain and his female passenger exited the vehicle and Trooper
Harris observed a handgun between the front passenger seats.
4
KRS 189A.010, a Class B misdemeanor.
5
KRS 189.125, a violation.
6
KRS 304.39-080, a Class B misdemeanor.
7
A review of the record indicates two troopers were conducting the checkpoint. They were
accompanied by a deputy from the Spencer County Sheriff's Office.
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Upon exiting the vehicle, McClain was unsteady on his feet. He handed
Trooper Harris a container holding seven burnt marijuana cigarettes. The trooper then
searched McClain's vehicle and recovered a leather pouch containing seventeen
individually wrapped plastic baggies of methamphetamine and approximately two ounces
of marijuana. Based upon statements from McClain's passenger8 that she believed
McClain was “cooking” methamphetamine at his residence and that he had other
narcotics in his home, Trooper Harris requested and received from McClain, permission
to search his residence which was located a short distance away from the checkpoint on
Max Rouse Road. At that point, the officers closed the safety checkpoint and went to
McClain's residence to search the premises. No further contraband was located at
McClain's home.
A Spencer County grand jury returned an indictment naming McClain on
January 5, 2006, charging him with the aforementioned drug and traffic offenses. The
case was scheduled for a jury trial on July 19, 2006. However, on the morning of trial,
McClain filed a motion to suppress the evidence seized from him at the traffic safety
checkpoint. The motion was heard that same morning. McClain argued the traffic safety
checkpoint was improperly executed in that it failed to meet the visibility requirements
set forth in General Order OM-E-4.9 He further alleged a violation of General Order
8
McClain's passenger was found to have a quantity of marijuana in her possession and was
placed under arrest for same. The record is unclear as to whether her statements were made prior
to her arrest or subsequent thereto, but for purposes of this appeal, the timing is irrelevant.
9
General Order OM-E-4 is an internally created Kentucky State Police policy setting forth the
protocol for establishing and conducting traffic safety checkpoints. See Commonwealth v.
Bothman, 941 S.W.2d 479 (Ky.App. 1996). According to the written policy, checkpoints are to
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OM-B-19, a wholly separate policy statement, which requires that all “enforcement
activities” be videotaped if the police vehicles used in such activities are equipped with
video equipment.10
McClain, Trooper Harris, and a private investigator11 were the only
witnesses to testify at the suppression hearing. Following the testimony and argument of
counsel, the trial court denied the motion to suppress the evidence. McClain then entered
a conditional guilty plea to all counts of the indictment, reserving the right to appeal the
trial court's denial of his motion to suppress. On August 24, 2006, McClain was
sentenced to seven years' imprisonment, which was probated for a period of five years.
This appeal followed.
Before this Court, McClain first contends the trial court erred in finding the
traffic safety checkpoint was properly conducted because there was no media
announcement preceding establishment of the checkpoint as required under General
Order OM-E-4(A)(8).12 However, our review of the record convinces us that the traffic
be “established on roadways with clear visibility in all directions of travel.”
10
Trooper Harris testified his cruiser was equipped with video recording equipment. However,
he testified he manually turned off the equipment at the beginning of the traffic safety checkpoint
because the location of his cruiser did not afford a view of the vehicles being stopped and the
anticipated length of the checkpoint could exceed the recording capability of the videotape.
There was no dispute that traffic safety checkpoints are considered “enforcement actions.”
11
The investigator was employed by the defense to photograph the location of the traffic safety
checkpoint. His testimony was limited to authentication of several photographs he had taken of
the scene on two different dates following the night of McClain's arrest.
12
General Order OM-E-4(A)(8) states as follows: “Media announcements shall be made
periodically to inform the public that traffic safety checkpoints would be established in the area.
The specific locations and times need not be announced.”
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safety checkpoint passed constitutional muster because it was established in such a
manner as to avoid unconstrained discretion by the police and was reasonably calculated
to protect public safety. Commonwealth v. Bothman, 941 S.W.2d 479 (Ky.App. 1996).
In Bothman, we held that technical noncompliance with departmental guidelines, such as
General Order OM-E-4, “does not inexorably lead to the conclusion that the
establishment of the checkpoint was violative of the constitutions of the United States or
of the Commonwealth.”
In support of his argument, McClain cites us to Monin v. Commonwealth,
209 S.W.3d 471 (Ky.App. 2006), discretionary review denied, and urges reversal of the
trial court's determination. In Monin, a panel of this Court found a traffic safety
checkpoint to have been conducted in violation on General Order OM-E-4, in small part
because there was no testimony given that a media announcement of possible checkpoints
preceded its establishment. However, our holding in Monin is clearly distinguishable in
that there was more than a mere technical noncompliance with a single departmental
guideline. In Monin, there was insufficient evidence to show the checkpoint had been
approved by a supervisor, the trooper who conducted the checkpoint could not identify
the officers who helped him conduct the checkpoint, there was no evidence regarding
who was in charge of the checkpoint, the trooper could not recall the time when the
checkpoint had been established, there was no evidence showing the primary purpose of
the checkpoint, and the log did not show any approval for a checkpoint at the time and
location.
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Even so, in the case sub judice we need not address McClain's contention
that the failure to provide a media announcement was fatal to the establishment of the
traffic safety checkpoint. At the suppression hearing, McClain urged only two
arguments: the checkpoint was not visible in all directions as required by General Order
OM-E-4 and no videotape was made of the “enforcement activity” as required by General
Order OM-B-19. McClain did not argue to the trial court, as he argues to this Court, that
the seized evidence should be suppressed because the checkpoint was not announced via
the media. “It is an elementary rule that trial courts should first be given the opportunity
to rule on questions before those issues are subject to appellate review. Akers v. Floyd
County Fiscal Court, 556 S.W.2d 146 (Ky. 1977); Pittsburg and Midway Coal Mining
Company v. Rushing, 456 S.W.2d 816 (Ky. 1969); Kaplon v. Chase, 690 S.W.2d 761
(Ky.App. 1985); Carr v. Cincinnati Bell, Inc., 651 S.W.2d 126 (Ky.App. 1983).”
Swatzell v. Natural Resources and Environmental Protection Cabinet, 962 S.W.2d 866,
868 (Ky. 1998), overruled on other grounds by Rapier v. Philpot, 130 S.W.3d 560 (Ky.
2004). “It is only to avert a manifest injustice that this court will entertain an argument
not first presented to the trial court.” Pittsburg, supra, 456 S.W.2d at 818. We perceive
no manifest injustice here. Therefore, we decline to entertain that argument and are
compelled to affirm the trial court's decision.
McClain next argues the traffic safety checkpoint was established solely to
target him. Although it is uncontroverted that the traffic safety checkpoint was
discontinued following his arrest, McClain fails to cite us to any location in the record
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supportive of his contention that he was the target of the roadblock. The traffic safety
checkpoint had been in operation for nearly two hours prior to McClain's arrest. Trooper
Harris produced records showing the location had been preapproved for the establishment
of a checkpoint and he had obtained a supervisor's approval before operating the
checkpoint that evening. The troopers activated their emergency equipment and wore
reflective vests identifying themselves as law enforcement officers. Every vehicle that
approached the roadblock was stopped, thus trooper discretion was eliminated. Further,
the strong odor of marijuana emanating from McClain's vehicle alerted Trooper Harris to
his illegal activities. Additionally, based upon the information from McClain's passenger
regarding the possibility of an active methamphetamine operation, Trooper Harris
obtained consent to search McClain's residence for further evidence of criminal activity.
Upon obtaining that consent, the traffic safety checkpoint was discontinued and all three
officers left the scene, along with McClain and his passenger, to search his home. The
troopers' closure of the traffic safety checkpoint was reasonable in light of these
overriding legitimate law enforcement interests.
Finally, McClain contends the trial court erred in allowing the
Commonwealth to introduce certain documents at the suppression hearing which had not
been provided to the defense during the discovery period. However, McClain did not
object to the introduction or use of these documents during the suppression hearing. In
the absence of a contemporaneous objection or a motion to strike the documents made
before the trial court, McClain cannot be heard to complain for the first time on appeal.
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Collett v. Commonwealth, 686 S.W.2d 822 (Ky.App. 1984); RCr 9.22. McClain's
request for a trial continuance to review the documents in question was insufficient to
preserve any alleged error for appellate review as the trial court did not rule on the
motion and he failed to insist on a ruling from the trial court. Bell v. Commonwealth, 473
S.W.2d 820 (Ky. 1971); Hatton v. Commonwealth, 409 S.W.2d 818 (Ky. 1966).
Therefore, this allegation of error is wholly unpreserved and warrants no further
discussion.
For the foregoing reasons, the judgment and sentence of the Spencer Circuit
Court is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Linda Roberts Horsman
Frankfort, Kentucky
Gregory D. Stumbo
Attorney General
Jason B. Moore
Assistant Attorney General
Frankfort, Kentucky
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