FRESH (MARCUS DESHAWN) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: AUGUST 28, 2009; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-002016-MR
MARCUS DESHAWN FRESH
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE A. C. MCKAY CHAUVIN, JUDGE
ACTION NO. 06-CR-002255
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, MOORE, AND VANMETER, JUDGES.
MOORE, JUDGE: Marcus Deshawn Fresh appeals the Jefferson Circuit Court’s
judgment convicting him of first-degree illegal possession of a controlled
substance, i.e., cocaine; illegal possession of a controlled substance, i.e.,
marijuana; and second-degree criminal trespass. After a careful review of the
record, we affirm because Fresh’s rights against unreasonable searches and
seizures were not violated.
Fresh was arrested in the Iroquois Homes neighborhood of Jefferson
County after he was discovered by an officer with the Louisville Metro Police
Department to have marijuana and cocaine in his possession. In the circuit court,
he moved to suppress that evidence on the basis that it constituted fruits of an
unconstitutional search and seizure. The circuit court held an evidentiary hearing
on the motion to suppress and ultimately denied the motion. The court found that
Fresh was not seized or placed in custody during his initial encounter with officers
and, thus, Fresh’s statement to the officers informing them that he had marijuana in
his pocket was not the product of a custodial interrogation. The court held that this
statement then gave the officers probable cause to arrest Fresh for possession of
marijuana, and the search of Fresh, which revealed the cocaine in his pocket, was
made “contemporaneously with and incident to his lawful arrest for possession of
marijuana.” Alternatively, the circuit court held that, even if it considered Fresh to
have been seized at the time of the initial encounter, the officers had a reasonably
articulable suspicion justifying their stop of Fresh because they knew he did not
live in the Iroquois Homes neighborhood and through personal experience, at least
one of the officers knew Fresh’s reputation for trafficking in narcotics in that
neighborhood.
Fresh entered a guilty plea but reserved the right to appeal his search
and seizure issue. Fresh was sentenced to serve two years for the offense of first-2-
degree illegal possession of a controlled substance (cocaine); twelve months for the
offense of illegal possession of a controlled substance (marijuana); and credit for
time served for the offense of second-degree criminal trespass. The sentences were
ordered to run concurrently, for a total of two years of imprisonment.
Fresh now appeals, contending that the circuit court’s judgment must
be reversed because: (a) this Court cannot make a reasoned evaluation of the
circuit court’s ruling because the circuit court failed to enter specific findings of
fact concerning Fresh’s motion to suppress; (b) location and bad reputation are
insufficient to give rise to a reasonable and articulable suspicion of criminal
activity; and (c) Section 10 of the Kentucky Constitution does not allow stops like
those permissible under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889
(1968).
I. STANDARD OF REVIEW
If the trial court’s findings of fact are supported by
substantial evidence, then they are conclusive. We
conduct de novo review of the trial court’s application of
the law to the facts. We review findings of fact for clear
error, and we give due weight to inferences drawn from
those facts by resident judges and local law enforcement
officers.
Hallum v. Commonwealth, 219 S.W.3d 216, 220 (Ky. App. 2007) (internal
quotation marks and citations omitted).
II. ANALYSIS
A. CLAIM REGARDING CIRCUIT COURT’S FAILURE TO ENTER
SPECIFIC FINDINGS OF FACT
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Fresh first asserts that this Court cannot make a reasoned evaluation
of the circuit court’s ruling because the circuit court failed to enter specific
findings of fact concerning Fresh’s motion to suppress. Fresh notes that, pursuant
to RCr1 9.78, the circuit court was required to enter findings of fact following the
evidentiary hearing on his motion to suppress. Kentucky Rule of Criminal
Procedure 9.78 provides as follows:
If at any time before trial a defendant moves to suppress,
or during trial makes timely objection to the admission of
evidence consisting of (a) a confession or other
incriminating statements alleged to have been made by
the defendant to police authorities, (b) the fruits of a
search, or (c) witness identification, the trial court shall
conduct an evidentiary hearing outside the presence of
the jury and at the conclusion thereof shall enter into the
record findings resolving the essential issues of fact
raised by the motion or objection and necessary to
support the ruling. If supported by substantial
evidence[,] the factual findings of the trial court shall be
conclusive.
Fresh failed to move the court, after it entered its order denying his
motion to suppress, to render more specific factual findings. Pursuant to CR2
52.04,
[a] final judgment shall not be reversed or remanded
because of the failure of the trial court to make a finding
of fact on an issue essential to the judgment unless such
failure is brought to the attention of the trial court by a
written request for a finding on that issue. . . .
1
Kentucky Rule of Criminal Procedure.
2
Kentucky Rule of Civil Procedure.
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This Court has previously held that a criminal defendant waives the
right to raise an issue on appeal concerning the denial of a suppression motion
when the defendant failed to move the trial court, pursuant to CR 52.04 and RCr
13.04, for further findings following the trial court’s denial of the motion to
suppress. See Farmer v. Commonwealth, 169 S.W.3d 50, 53 (Ky. App. 2005).
Therefore, because Fresh failed to move the circuit court for further findings of
fact, he has waived the right to raise that issue here.
B. CLAIM REGARDING FRESH’S LOCATION AND BAD REPUTATION
AS BASES FOR THE OFFICER’S REASONABLE AND ARTICULABLE
SUSPICION OF CRIMINAL ACTIVITY
Fresh next contends that location and bad reputation are insufficient to
give rise to a reasonable and articulable suspicion of criminal activity to justify a
stop. Fresh notes that the circuit court, in paragraph number two of its findings in
its order denying Fresh’s motion to suppress, stated as follows:
Nevertheless, at the time of the encounter, police had
reason to believe that the Defendant did not live in
Iroquois Homes and were aware, through personal
experience, of his repute for trafficking in narcotics in the
Iroquois Homes neighborhood. This information and
belief provided the officers with sufficiently reasonable
articulable suspicion to stop the Defendant in order to
confirm or allay that suspicion. See Terry v. Ohio, 392
U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
The Commonwealth contends that Fresh’s encounter with the officers
did not amount to a Terry stop because the encounter was consensual. “There are
three types of interaction between police and citizens: consensual encounters,
temporary detentions generally referred to as Terry stops, and arrests.” Baltimore
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v. Commonwealth, 119 S.W.3d 532, 537 (Ky. App. 2003) (footnote omitted).
Regardless, even if the circuit court found that the encounter constituted a Terry
stop, there was nothing improper about the stop in this case.
“Police officers are free to approach anyone in public areas for any
reason.” Commonwealth v. Banks, 68 S.W.3d 347, 350 (Ky. 2001).
A “seizure” occurs when the police detain an individual
under circumstances where a reasonable person would
feel that he or she is not at liberty to leave. Where a
seizure has occurred, if police have a reasonable
suspicion grounded in specific and articulable facts, that
a person they encounter was involved in or is wanted in
connection with a completed felony, then they may make
a Terry stop to investigate that suspicion. Evaluation of
the legitimacy of an investigative stop involves a twopart analysis. First, whether there is a proper basis for
the stop based on the police officer’s awareness of
specific and articulable facts giving rise to reasonable
suspicion. Second, whether the degree of intrusion was
reasonably related in scope to the justification for the
stop.
Baltimore, 119 S.W.3d at 537-38 (internal quotation marks and footnotes omitted).
The officers in the present case had reason to believe that Fresh did
not reside in Iroquois Homes.3 They were permitted to use this information in
conjunction with other information they had to justify stopping Fresh. See Banks,
68 S.W.3d at 350 (noting that fact that “officers did not recognize [Banks] as a
resident of the complex with which they were familiar” was one of several factors
supporting officer’s reasonably articulable suspicion that Banks was engaging in
criminal activity).
3
One of the officers testified that he had a list of all of the people residing in Iroquois Homes, as
he was an officer assigned to the Iroquois Homes complex.
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Additionally, the circuit court found that the officers knew from
personal experience that Fresh had a reputation for trafficking in the Iroquois
Homes neighborhood. During the evidentiary hearing on Fresh’s motion to
suppress, one of the arresting officers testified that he had previously arrested
Fresh for possession of a controlled substance and that Fresh was a known “dope
dealer” in Iroquois Homes. Certainly, if officers are permitted to consider
“whether a particular location has a reputation for being a ‘known drug’ area –
when forming a reasonable and articulable suspicion,” Commonwealth v. Marr,
250 S.W.3d 624, 627 (Ky. 2008) (emphasis added), they should also be permitted
to take into account their personal knowledge that a person has a known history as
a drug dealer when forming a reasonable and articulable suspicion. When
considered together with the fact that the officers had a reasonable belief that Fresh
did not live in the Iroquois Homes neighborhood, Fresh’s prior drug arrest by the
same officer involved in this case and Fresh’s reputation as a drug dealer, as
known by the officers, provided sufficient bases for the officers to form a
reasonable and articulable suspicion that Fresh was engaging in criminal activity.
Thus, the stop was proper.
We note that Fresh makes no argument addressing the second part of
the Terry stop analysis, i.e., “whether the degree of intrusion was reasonably
related in scope to the justification for the stop.” Baltimore, 119 S.W.3d at 538.
We assume this is because Fresh apparently informed the officers almost as soon
as their encounter began that he had marijuana in his pocket. Thus, because he
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does not address this in his brief, there is no need for us to determine whether the
degree of intrusion was reasonable, as is typically done in analyzing Terry stop
claims. See Baltimore, 119 S.W.3d at 538. Consequently, Fresh’s second claim
lacks merit.
C. CLAIM THAT TERRY STOPS ARE NOT PERMITTED UNDER KY.
CONST. SECTION 10
Finally, Fresh alleges that Section 10 of the Kentucky Constitution
does not allow stops like those permissible under Terry. However, Terry was a
case interpreting the Fourth Amendment of the United States Constitution, and
“the Kentucky Supreme Court has held that Section 10 of the Kentucky
Constitution provides no greater protection than does the federal Fourth
Amendment.” Nichols v. Commonwealth, 186 S.W.3d 761, 763 (Ky. App. 2005)
(internal quotation marks omitted). Additionally, “Kentucky has expressly adopted
the language of Terry v. Ohio, permitting a forcible stop even where probable
cause for arrest is lacking.” Deberry v. Commonwealth, 500 S.W.2d 64, 66 (Ky.
1973). Thus, Fresh’s claim lacks merit.
Accordingly, the judgment of the Jefferson Circuit Court is affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
J. David Niehaus
Louisville, Kentucky
Jack Conway
Attorney General
Bryan D. Morrow
Assistant Attorney General
Frankfort, Kentucky
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