LOGAN (DERRICK L.) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: FEBRUARY 18, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-000580-MR
DERRICK L. LOGAN
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE A.C. MCKAY CHAUVIN, JUDGE
ACTION NO. 07-CR-004056
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, COMBS AND WINE, JUDGES.
ACREE, JUDGE: Appellant Derrick Logan appeals the Jefferson Circuit Court’s
decision denying his motion to suppress evidence obtained pursuant to a traffic
stop and subsequent frisk for weapons. Because there was probable cause for the
traffic stop and the subsequent frisk was based on reasonable articulable suspicion
that Logan might be armed, we affirm.
When determining if a motion to suppress was properly denied, this court
must first review the circuit court’s findings of fact. Those factual findings are
reviewed under the clearly erroneous standard and are deemed conclusive if they
are supported by substantial evidence. Commonwealth v. Banks, 68 S.W.3d 347,
349 (Ky. 2001). “However, the ultimate legal question of whether there was
reasonable suspicion to stop or probable cause to search is reviewed de novo.” Id.
The circuit court made the following findings:
On March 27, 2007, Captain Steve Thompson (“Capt.
Thompson) and Sgt. Stan Salyards of the Louisville
Metro Police Department witnessed the Defendant,
Derrick L. Logan (“Mr. Logan”), driving recklessly. Mr.
Logan’s car swerved across various east-bound lanes of
traffic on Broadway near 21st Street in downtown
Louisville. From his vantage point, Capt. Thompson
could see that Mr. Logan was focused on counting a large
sum of money spread out in his lap rather than paying
attention to where he was driving. Mr. Logan’s car
nearly collided with Capt. Thompson’s unmarked police
car/SUV as a result of his (Mr. Logan’s) careless driving.
Capt. Thompson turned on his emergency lights and siren
with the intent to stop Mr. Logan for the traffic violations
he had witnessed. Mr. Logan did not stop immediately.
Rather, he continued driving for approximately one and
one half (1 ½) blocks before pulling his car over to the
side of the road. Capt. Thompson saw Mr. Logan make
certain furtive gestures during the course of the traffic
stop to include reaching inside his right pocket with his
right hand in what Capt. Thompson believed to be an
attempt to either conceal or remove something therein.
Mr. Logan’s hand was still inside his pocket when Capt.
Thompson approached the car. Mr. Logan used his other
hand to brush a $50 bill off of his pants and onto the
floorboard of the car.
-2-
Mr. Logan was ordered out of the car by Capt. Thompson
whereupon he saw two (2) distinct “lumps” in Mr.
Logan’s right pant pocket. The top of a tied off plastic
baggie was protruding from that same pocket. Capt.
Thompson, a thirty-seven (37) year police veteran,
instantly recognized and associated the tied-off plastic
baggie with drug trafficking activity and was concerned
that the lump underneath the plastic baggie could be a
weapon. Capt. Thomson conducted a pat-down search
which immediately confirmed his suspicions that the
plastic bag (the top “lump”) contained drugs of some
kind. He removed the baggie (containing forty (40)
oxycontin pills) as well as the unidentified bottom
“lump” ($9,100 in cash) from Mr. Logan’s pocket. Mr.
Logan was placed under arrest and subsequently charged
with trafficking in a controlled substance in the first
degree.
Logan argues that the circuit court’s findings of fact are not supported by
substantial evidence. However, the testimony of Capt. Thompson and Logan
support the circuit court’s findings. Capt. Thompson’s testimony is directly in line
with the findings of the circuit court. Further, Logan testified that he was looking
down into his lap as he was driving and acknowledged that he was stuffing money
into his pocket as the officer’s pulled him over. Thus, the findings are supported
by substantial evidence and are not clearly erroneous.
Based on these findings, the circuit court concluded Capt. Thompson had
probable cause to stop Logan for the traffic violations he personally witnessed and
Logan’s pre-stop conduct created a reasonable, articulable suspicion that Logan
was engaged in criminal activity beyond those traffic violations. Thus, the circuit
court found that it was reasonable for Capt. Thompson to conclude that Logan
might be armed and to conduct a carefully limited search of Logan’s outer clothing
-3-
to ensure he was not concealing a weapon. Upon recognizing that the baggie
contained contraband, Capt. Thompson had probable cause to believe that Logan
was engaged in drug trafficking.
Logan argues to the contrary that the officers did not have a reasonable,
articulable suspicion sufficient to justify his removal from the vehicle and the
subsequent frisk. We review that determination de novo.
In Terry v. Ohio, the Court found that “[t]he officer need not be absolutely
certain that the individual is armed; the issue is whether a reasonably prudent man
in the circumstances would be warranted in the belief that his safety or that of
others was in danger.” 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The
Supreme Court of Kentucky recognized that the compelling concern for officer
safety is magnified when illegal drugs are involved. Owens v. Commonwealth, 291
S.W.3d 704, 710 (Ky. 2009). Indeed cases involving drugs bring into play “the
indisputable nexus between drugs and guns, which presumptively creates a
reasonable suspicion of danger to the officer.” Id. (quoting United States v. Sakyi,
160 F.3d 164, 169 (4th Cir. 1998)) (internal citations omitted).
As discussed above, substantial evidence supports the conclusion that Logan
was attempting to conceal something in his right pocket while the officers pulled
him over. The attempts to conceal continued after the stop occurred and the
officers approached the car. These gestures created a reasonable articulable
suspicion that Logan was concealing a weapon. Thus, they were justified in
removing him from the vehicle.
-4-
Once Logan was out of the vehicle, Capt. Thompson observed two distinct
lumps in Logan’s right pocket. Capt. Thompson believed that either lump could
have been a weapon. He soon noticed the top of a tied-off plastic baggie
protruding from the same pocket and, based on his experience, associated the
baggie with drug trafficking. Unsure of what the second lump might be, and
believing that the first lump was illegal drugs, Capt. Thompson proceeded to
conduct the frisk. Under the totality of the circumstances, the frisk was warranted
by the officer’s reasonable articulable suspicion that Logan’s pocket might contain
a weapon, and this suspicion was heightened by Capt. Thompson’s belief that the
first lump was drugs.
Without manipulating the baggie, the officer concluded that the baggie
contained illegal drugs. Under the “plain feel exception” to the requirement a
warrant be secured, contraband is appropriately seized when its identity is
immediately apparent by touch. Commonwealth v. Crowder, 884 S.W.2d 649 (Ky.
1994) (citing Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d
334 (1993)). The officer’s conclusion was substantiated once the baggie was
removed from the pocket. Probable cause to believe that Logan possessed illegal
drugs was then established and the arrest and subsequent vehicle search were
proper. Therefore, we see no error in the trial court’s decision to deny Logan’s
motion to suppress.
Accordingly, we affirm the judgment of the Jefferson Circuit Court.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Mark Hyatt Gaston
Louisville, Kentucky
Jack Conway
Attorney General of Kentucky
Todd D. Ferguson
Assistant Attorney General
Frankfort, Kentucky
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