PIERCY (STEPHEN) VS. COMMONWEALTH OF KENTUCKY
Annotate this Case
Download PDF
RENDERED: JANUARY 29, 2010; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-002068-MR
STEPHEN PIERCY, SR.
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE CHARLES L. CUNNINGHAM, JR., JUDGE
ACTION NO. 07-CR-003949
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, KELLER, AND LAMBERT, JUDGES.
LAMBERT, JUDGE: Stephen Piercy, Sr., entered a conditional guilty plea to
trafficking in marijuana (over 8 ounces but less than 5 pounds), trafficking in a
controlled substance II, illegal possession of drug paraphernalia, operating a motor
vehicle with expired plates, and being a persistent felony offender I (“PFO I”).
Piercy reserved the right to appeal the trial court’s denial of his suppression motion
and now appeals. After careful review, we affirm.
On February 19, 2007, Louisville Metro Police Department Detectives
Ronald Russ and Robert Coomer were working anonymous narcotics complaints
that Detective Coomer had received in December 2006, relative to Piercy and his
son, Stephen R. Piercy, Jr., who resided at the same residence in Louisville,
Kentucky. Detective Coomer indicated that surveillance had been conducted on
the residence on three separate occasions in the past and no suspicious activity had
been observed.
Detective Coomer indicated that on the date in question, he had seen
Piercy’s van in the alley behind Piercy’s home and that the vehicle had a cracked
windshield and an expired license plate. Detective Coomer testified that he
observed Piercy emerge from the residence and get into the van. Detective
Coomer further testified that Piercy backed out of his parking space and that he
stopped Piercy due to the expired license plate as well as the crack in the
windshield.
Detective Russ testified that Detective Coomer had already stopped
Piercy when Russ entered the alley from a side street. Detective Russ testified that
he believed Detective Coomer’s lights were on at the time he entered the alley.
Piercy, on the other hand, testified that he was not operating the vehicle at the time
of the stop and that instead he had been unloading materials from the van and when
-2-
he got into the van to move it, officers had already pulled in front of and behind his
vehicle and were approaching him.
Both Piercy and Detective Coomer testified that Detective Coomer
approached Piercy and told him of the anonymous complaints the officers were
investigating. Also at this time, Detective Coomer asked Piercy for his license and
registration. Piercy produced the items and Detective Coomer gave them to
Detective Russ, who performed a warrant check. Detective Coomer said he also
told Piercy he had been conducting surveillance on his residence and asked Piercy
to step out of the van to discuss the complaints with him. Detective Coomer
explained that the past surveillance had not revealed any illegal activity and
Coomer wanted to clear up any complaints. Detective Coomer then asked Piercy
for consent to search Piercy’s van and according to Detective Coomer, Piercy
refused, saying he was in a hurry and needed to leave.
Meanwhile, Detective Russ determined that there were no outstanding
warrants for Piercy and returned to the van, where Detective Coomer was still
speaking with Piercy. At this time Detective Coomer advised that he was going to
have his drug sniffing dog check the van. As Detective Coomer proceeded to walk
his dog towards the van, the dog “hit” on Piercy by sitting down next to him.
Detective Coomer checked Piercy and found marijuana “shake”1 in Piercy’s
pockets. Detective Coomer then took the dog around Piercy’s van. The dog
alerted on the driver’s side door of the van. Detective Coomer decided to take the
1
Marijuana shake is a term used to refer to small pieces of marijuana.
-3-
dog into the van, and the dog went over to a bucket and alerted by placing his nose
on a tin inside the bucket. Detective Coomer entered the van, searched the tin, and
found marijuana inside.
Detective Cooper testified that after the search of the van, he asked
Piercy if he could search his residence to clear up the prior complaints he’d been
investigating. According to Piercy, Detective Cooper asked if there was anything
inside the house, and Piercy stated that there was not. Piercy testified that he
wanted to call his attorney, and began walking toward the house to do so because
the officers had taken his cell phone. Piercy further testified that he left the door to
his residence open and the officers followed him inside, assuming that they had
permission to search the house. However, Detective Cooper testified that Piercy
granted them permission to enter the house by saying “that’s fine.”
Detectives Coomer and Russ smelled marijuana immediately upon
entering Piercy’s house. The three men sat down at the kitchen table and Detective
Coomer began filling out a consent to search form. Upon completing the form,
Detective Coomer presented it to Piercy for his review and signature. Piercy
declined to sign the authorization form and asked to speak with his attorney, whom
Detective Coomer allowed Piercy to call. According to Detective Coomer, Piercy
did not ask them to leave his residence.
Detective Coomer began completing the affidavit necessary to obtain
a search warrant while the parties waited for Piercy’s attorney to arrive. Piercy’s
counsel testified it took her around fifteen minutes to get to the residence. Upon
-4-
her arrival, she engaged the officers in casual conversation and did not ask the
officers to leave the residence. Other officers arrived at the residence, allowing
Detective Coomer to leave in order to seek a search warrant. Other than going in
and out the original entry door, all police, Piercy, and counsel congregated in the
open area around the table used to complete the consent form. After returning with
the search warrant, Detective Coomer and other officers found drugs and related
items inside the home.
Piercy was subsequently charged with trafficking in marijuana (more
than 8 ounces but less than 5 pounds), trafficking in a controlled substance in the
second degree, illegal use or possession of drug paraphernalia, operating a motor
vehicle with an expired license plate, and with being a PFO I. Piercy moved to
suppress the evidence found during the searches of his person, van, and residence,
as well as the statements made to the police. A suppression hearing was held on
March 7, 2008, and the trial court ultimately entered an order denying Piercy’s
motion. Piercy then entered a conditional guilty plea and was sentenced to ten
years’ imprisonment. The judgment was withheld and Piercy was placed on
probation for a five-year period. This appeal now follows.
This Court’s standard of review of a trial court’s decision on a motion
to suppress is two-fold. Adcock v. Commonwealth, 967 S.W.2d 6, 8 (Ky. 1998).
First, the Court must determine whether the trial court’s findings of fact are
supported by substantial evidence. Id. Substantial evidence means “[e]vidence
that a reasonable mind would accept as adequate to support a conclusion” and
-5-
evidence that, when “taken alone or in the light of all the evidence . . . has
sufficient probative value to induce conviction in the minds of reasonable men.”
Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003) (footnotes omitted). If the
findings are supported by substantial evidence, they are conclusive and will not be
disturbed. Adcock, supra at 8. Second, the Court will conduct a de novo review of
the trial court’s application of the law to the established facts to determine whether
the ruling was correct as a matter of law. Id.
Piercy concedes that with limited exceptions, the trial court’s findings
of fact were supported by substantial evidence. However, he argues that the trial
court erred as a matter of law in holding that he was not stopped when officers
approached his van. Piercy then argues that there was not reasonable suspicion
necessary to justify a stop, and thus all the subsequent evidence seized in this case
was illegally obtained as a result of the improper stop and must be suppressed.
Finally, Piercy argues that the trial court improperly determined that the officers
permissibly entered his residence and argues that any evidence seized within the
home must be suppressed as the fruit of the poisonous tree. For the reasons stated
below, we disagree with Piercy and thus affirm the trial court’s denial of Piercy’s
suppression motion.
A careful review of the record and the facts and testimony presented
at the hearing on Piercy’s motion to suppress evidence indicates that the trial
court’s factual findings were supported by substantial evidence. Accordingly,
-6-
under Adcock, supra, the question becomes whether the rule of law as applied to
these facts was violated.
In its order denying Piercy’s motion to suppress, the trial court
referenced Piercy’s testimony that he was loading the van—not driving it—at the
time the officers approached and found that Piercy’s movement was not impeded,
since he was confronted before he got underway. Thus, Piercy argues that the trial
court treated the encounter as consensual and found that Piercy was not subjected
to a traffic stop under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889
(1968), even though the trial court never specifically stated that Piercy was not
stopped and therefore entitled to Fourth Amendment protections. We agree with
Piercy that the encounter between him and the police was in fact a stop under
Terry.
“There are three types of interaction between police and citizens:
consensual encounters, temporary detentions generally referred to as Terry stops,
and arrests. The protection against search and seizure provided by the Fourth
Amendment to the United States Constitution applies only to the latter two types.”
Baltimore v. Commonwealth, 119 S.W.3d 532, 537 (Ky. App. 2003) (footnote
omitted). Consequently, a police officer may walk up to an individual, identify
himself as a police officer, and ask the individual questions without implicating the
Fourth Amendment. Id. Here, without explicitly saying so, the trial court
determined that Piercy’s encounter with the police was consensual. Thus, the court
-7-
did not address whether the Commonwealth had established that cause existed to
stop Piercy for a traffic violation or another permissible reason.
Under Terry, an investigative stop must be supported by reasonable,
articulable suspicion that an offense has been or is about to be committed. Terry,
supra, at 1884. Piercy argues that the trial court erroneously concluded that the
encounter in this case was consensual since Piercy was not driving his vehicle at
the time the officers approached him. Even if this is so, we find any such error to
be harmless since the investigating officers had a reasonable, articulable suspicion
that Piercy was about to drive a vehicle with expired tags, and thus that the officers
had grounds to conduct a Terry stop.
Piercy counters that the officers had no reason to suspect that criminal
activity was occurring or was about to occur because he was not in fact operating
his van at the time the officers stopped him. However, Detective Coomer testified
that he saw Piercy move the van and that Piercy was inside the van on the driver’s
side when he stopped him. Thus, it was reasonable for the officers to conclude that
criminal activity was occurring under KRS 186.170(1). That statute, in pertinent
part, states:
If the cabinet has prescribed that plates shall continue in
use, it shall each year, in addition to the registration
receipt, select and give to the owner as further evidence
of registration some insignia which may conveniently be
attached permanently and conspicuously to the motor
vehicle during each registration year. It shall be the duty
of the owner to attach the insignia in the prescribed
manner and no person may operate a motor vehicle
unless the insignia is affixed upon it.
-8-
KRS 186.010(6) defines “operator” as “any person in actual control of a motor
vehicle upon a highway.”
There appear to be no cases interpreting the meaning of “operating”
under KRS 186.010(6). However, the facts indicate that Piercy had moved the van
immediately prior to Detective Coomer stopping him. Furthermore, Piercy told
police officers that he could not stay and had to leave because he was in a hurry.
Terry only requires a reasonable suspicion that a crime is occurring or is about to
occur. In the instant case, it appears that Piercy was illegally driving a vehicle with
expired tags, or at the very least, that he was about to drive a vehicle with expired
tags, and was thus about to commit a crime. Accordingly, while we disagree with
the trial court that this encounter was consensual, we find that there were
reasonable grounds for Officer Coomer to initiate a stop and thus, that the evidence
obtained in the search of Piercy’s person and van was not improperly obtained.
Piercy next argues that he did not consent to the search of his
residence and that any evidence obtained therein should be suppressed. However,
Piercy uses the terms “entry” and “search” interchangeably in his brief. In this
case, the activities constituting the search occurred after Detective Coomer
obtained a search warrant. Piercy does not challenge the sufficiency of the search
warrant and instead argues that he did not give the officers consent to enter his
residence, where they immediately smelled marijuana. Further, he argues that the
-9-
trial court did not make any findings of fact regarding the issue, and thus this Court
cannot review the issue for error.
A careful review of the trial court’s order indicates that it did make
factual findings regarding Piercy’s consent for Officers Coomer and Russ to enter
his residence. The trial court’s order states:
Defendant was advised of what was found, and that the
complaints also mentioned methamphetamine. The
Defendant said there was nothing else. The Detective
asked to search Defendant’s house and Detective Coomer
testified that the Defendant consented. (The Defendant
later testified that he denied doing so).
The Defendant and the Detectives walked to his house
and he opened the door and went in. The Detectives
went in with him and sat down at a table inside to
complete a Consent to Search Authorization. The
Defendant declined to sign it when it was presented to
him, and wanted to call his attorney. The police allowed
Defendant to call Ms. Katie Brophy, his attorney, and
Ms. Brophy came to the house.
Both Detective Russ and Detective Coomer testified they
had smelled marijuana when they walked into
Defendant’s house, so Detective Coomer started
completing the affidavit for a search warrant while they
awaited counsel.
Thus, the trial court’s order indicates that it believed Detective
Coomer’s testimony that Piercy initially consented to the officers entering his
house. Further, the order also indicates that Piercy’s non-verbal conduct indicated
that the officers received consent to enter the house, based on Piercy opening the
door and allowing the officers to follow him inside and sit at his table. See United
States v. Carter, 378 F.3d 584, 587 (6th Cir. 2004) (Consent to search may also be
-10-
given by non-verbal means, such as gesture or conduct). In fact, there is nothing in
the record (other than Piercy’s testimony later at the suppression hearing)
indicating that Piercy ever refused entry into his residence. Piercy never attempted
to deny the officers’ entry or made any movements whatsoever to prevent them
from entering his residence. Thus, it appears that Piercy gave consent for the
officers to be inside his home.
Once inside the home, Officers Coomer and Russ immediately
smelled marijuana and began preparation for consent to search the rest of the
residence. At this point, Piercy refused consent and the officers proceeded with
obtaining a search warrant based on the smell of marijuana in the home. Objects
exposed to the plain view or smell of officers are not protected by the Fourth
Amendment. Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d
112 (1990); see also Bishop v. Commonwealth, 237 S.W.3d 567 (Ky. App. 2007);
Cooper v. Commonwealth, 577 S.W.2d 34 (Ky. App. 1979) (holding that the plain
view doctrine also applies to plain smells) (overruled on other grounds by Mash v.
Commonwealth, 769 S.W.2d 42 (Ky. 1989)).
There are three requirements for application of the plain view/smell
doctrine: (1) the viewer or person detecting the odor had the right to be in position
for the view or smell; (2) the viewer or person detecting the odor must have a
lawful right to access the object or odor; and (3) the incriminating nature of the
object or smell was immediately apparent to the viewer or the person detecting the
odor. Horton, 496 U.S. at 136-137. See also Hallum v. Commonwealth, 219
-11-
S.W.3d 216 (Ky. App. 2007). In the present case, the trial court found that the
officers were properly in the home, based on the testimony of Officer Coomer and
Piercy’s non-verbal conduct. Thus, the officers had a right to be in position to
observe the smell of marijuana and had a right to access the odor. Further, the
incriminating nature of the object or smell was immediately apparent to both
Detective Coomer and Detective Russ. Thus, all three requirements for the plain
view/smell doctrine were met and Piercy did not have a privacy interest in the
smell emanating from his residence. Therefore, the use of such evidence against
Piercy was permitted and the trial court’s denial of his suppression motion was
proper.
For the foregoing reasons, we hereby affirm the May 5, 2008, order of
the Jefferson Circuit Court denying Piercy’s motion to suppress evidence seized
during the search of his person, vehicle, and residence.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Rob Eggert
Louisville, Kentucky
Jack Conway
Attorney General
M. Brandon Roberts
Assistant Attorney General
Frankfort, Kentucky
-12-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.