JACKSON (JAMES L.) VS. COMMONWEALTH OF KENTUCKY

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RENDERED: AUGUST 21, 2009; 10:00 A.M. NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO. 2008-CA-002262-MR JAMES L. JACKSON v. APPELLANT APPEAL FROM WARREN CIRCUIT COURT HONORABLE STEVE ALAN WILSON, JUDGE ACTION NO. 07-CR-00490-001 COMMONWEALTH OF KENTUCKY APPELLEE OPINION AFFIRMING ** ** ** ** ** BEFORE: COMBS, CHIEF JUDGE; THOMPSON, JUDGE; HARRIS,1 SENIOR JUDGE. HARRIS, SENIOR JUDGE: James Jackson appeals from a Warren Circuit Court judgment and sentence on a conditional guilty plea. Jackson claims that the trial court erred by denying his motion to suppress evidence seized as a result of an 1 Senior Judge William R. Harris sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes (KRS) 21.580. illegal stop. Finding that an improperly displayed license plate on the vehicle in which Jackson was a passenger provided the police with sufficient justification for the stop, we affirm the Warren Circuit Court’s denial of the suppression motion and its subsequent judgment and sentence. On March 29, 2007, Officer Davidson of the Bowling Green Police Department responded to a reported robbery in progress. Officer Davidson was informed that at least two black males had fled the scene. When he approached the location, Officer Davidson saw a vehicle containing three black males leaving the area. He followed the vehicle and noticed that the car did not have a license plate. After calling for backup, Officer Davidson stopped the car. As he approached the car, Officer Davidson saw that the vehicle had a license plate in the rear window, but it was so placed that the number was not visible. Officer Davidson informed the driver that he had been stopped for concealing the front of the license plate. Then another officer noticed a large bag of marijuana in the backseat of the vehicle. The driver was asked to step out of the vehicle and the car was searched.2 On May 30, 2007, Jackson was indicted by the Warren County grand jury on the following charges: one count of first-degree burglary, one count of trafficking in marijuana (less than 8 ounces), and one count of being a seconddegree persistent felony offender. On September 8, 2008, the Commonwealth dismissed the persistent felony offender charge, and Jackson pled guilty to the 2 At the suppression hearing, and in his appeal, Jackson limits the issue to the propriety of the vehicle stop. He does not raise any question regarding whether the bag was in plain view, or whether detention of the passengers, including Jackson, was proper. -2- remaining charges in exchange for the Commonwealth’s recommended sentence of eight years’ imprisonment. Jackson’s plea was conditioned upon his right to appeal the ruling on his suppression motion. Kentucky Rules of Criminal Procedure (RCr) 8.09. This appeal follows. It is well settled that police must have reasonable suspicion that criminal activity is afoot in order to effectuate a stop of an automobile. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). An officer’s suspicion must be based on “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Id. at 22. Jackson argues that the police officer acted on a mere hunch that the car may have contained individuals involved in the reported robbery rather than reasonable suspicion. Jackson maintains that Officer Davidson’s hunch was not enough to justify the intrusion of the stop. Although Officer Davidson may not have a reasonable suspicion that the people in the car were involved in the burglary, he had a reasonable suspicion that their vehicle had an improperly displayed license plate.3 Jackson also argues that the improperly displayed license plate was merely a pretext for determining if the occupants had been involved with the robbery. Although Officer Davidson admitted that he followed the car until he had a reason to pull the car over, the license plate nonetheless warranted the stop. Police are not required to ignore violations that occur in their presence if they are 3 KRS 186.170(1) requires that “[p]lates shall be kept legible at all times[.]” -3- involved in an investigation of another crime or have another intent or motivation behind the stop. Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 1774, 135 L.Ed.2d 89 (1996). “[A]n officer who has probable cause to believe a civil traffic violation has occurred may stop a vehicle regardless of his or her subjective motive in doing so.” Wilson v. Commonwealth, 37 S.W.3d 745, 749 (Ky. 2001). Jackson’s reliance on Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979), and Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), is misplaced. Unlike the case before us, neither of those cases involved a violation or crime committed in the presence of the police. Finally, we note that Jackson has cited cases from Delaware and Washington, and he urges us to follow the reasoning of those cases and readdress the constitutionality of pretextual vehicle stops. We decline to do so, noting that Wilson, supra, is binding precedent which we are obliged to follow. Rules of the Supreme Court (SCR) 1.030(8)(a). Accordingly, the Warren Circuit Court’s order, judgment, and sentence are affirmed. ALL CONCUR. -4- BRIEF FOR APPELLANT: BRIEF FOR APPELLEE: Gene Lewter Frankfort, Kentucky Jack Conway Attorney General of Kentucky Joshua D. Farley Assistant Attorney General Frankfort, Kentucky -5-

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