COMMONWEALTH OF KENTUCKY VS. HOLMAN (LONNIE), ET AL.
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RENDERED: MARCH 11, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-001791-MR
COMMONWEALTH OF KENTUCKY
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE CHARLES L. CUNNINGHAM, JR., JUDGE
ACTION NO. 07-CR-002403
LONNIE HOLMAN AND
KEITH HOLMAN
APPELLEES
OPINION
REVERSING
** ** ** ** **
BEFORE: CAPERTON AND WINE, JUDGES; LAMBERT,1 SENIOR JUDGE.
LAMBERT, SENIOR JUDGE: The Commonwealth of Kentucky appeals from the
August 27, 2009, Jefferson Circuit Court order suppressing evidence. Because we
hold that the trial court applied an incorrect legal standard and erroneously ordered
suppression, we reverse.
1
Senior Judge Joseph E. Lambert sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
This case involves the search and seizure, by two police officers, of
Appellees Lonnie Holman and Keith Holman.2 On December 11, 2006, Detective
Mike Dixon and Detective Joel Phillips were on patrol in the area of the Guardian
Court Apartments in Louisville, Kentucky. According to Detective Dixon, the area
was known as a high narcotics area which generated many complaints and reports
of illegal drug activity. Detective Dixon also testified that the manager of the
apartment complex had requested assistance regarding drug dealing in the area.
While patrolling the area, the two officers parked their vehicle at a nearby adult
entertainment establishment and walked to the apartment complex where they
observed the Appellees sitting in a pick-up truck parked in front. Lonnie Holman
was sitting in the driver’s seat and Keith Holman was sitting in the passenger seat.
The two officers approached the truck and observed the occupants
passing a cigarette pack back and forth. The officers testified that the occupants
began making sudden frantic movements with their hands, which led the officers to
believe that the men might be armed or attempting to hide contraband. The
officers asked the two men to exit the vehicle, explaining that they were not being
arrested but detained for officer safety. While being patted down by Detective
Phillips, Keith Holman attempted to run and struggled with Detective Phillips.
Detective Dixon witnessed Lonnie Holman pitch something away from his body
with his hand. Appellants were secured and a K-9 unit was called to retrieve what
Lonnie Holman had thrown. The object was found and was identified as a black
2
Because the Appellants failed to file a brief, our account of the facts is based entirely on the
Commonwealth’s brief and the testimony presented at the suppression hearing.
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leather pouch containing crack cocaine and digital scales. The officers found
additional crack cocaine in a pack of cigarettes in the passenger compartment of
the vehicle.
Both Appellants were indicted for trafficking in a controlled
substance, tampering with physical evidence, and illegal possession of drug
paraphernalia, In addition, Keith Holman was indicted for criminal mischief, and
resisting arrest. Lonnie Holman, by counsel, filed a motion to suppress the fruits
of the search, seizure and/or stop. An evidentiary hearing was held and the trial
court granted the suppression motion in an order entered on August 27, 2009. This
appeal followed.
On appeal, the Commonwealth argues that the trial court erred in its
suppression ruling because its findings of fact were not supported by substantial
evidence and its application of law to the facts was incorrect. When reviewing a
trial court’s ruling on a suppression motion, we apply a de novo standard of review
to conclusions of law and review factual findings for clear error. See, e.g. Jackson
v. Commonwealth, 187 S.W.3d 300 (Ky. 2006). A trial court’s findings of fact are
deemed conclusive if they are supported by substantial evidence. RCr3 9.78;
Commonwealth v. Neal, 84 S.W.3d 920, 923 (Ky.App. 2002). The Commonwealth
further argues that the trial court applied the incorrect legal analysis to the search
of the Appellees.
3
Kentucky Rules of Criminal Procedure.
-3-
“There are three types of interaction between police and citizens:
consensual encounters, temporary detentions generally referred to as Terry stops,
and arrests.” Baltimore v. Commonwealth, 119 S.W.3d 532, 537 (citing Terry v.
Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). “Police officers are free
to approach anyone in public areas for any reason.” Commonwealth v. Banks, 68
S.W.3d 347, 350 (Ky.2001). In general, a warrant is required for searches and
seizures. However, brief investigatory stops and limited pat-down searches of
suspects have been continuously recognized as an exception to the warrant
requirement. Terry, 392 U.S. 1. More specific to the case at hand, “[w]hen an
officer is justified in believing that the individual whose suspicious behavior he is
investigating at close range is armed and presently dangerous to the officer or to
others,” the officer may conduct a pat-down search “to determine whether the
person is in fact carrying a weapon and to neutralize the threat of physical harm.”
Id. at 24. Such a search is strictly limited to that which is necessary for the
discovery of weapons which might be used to harm the officer or others nearby.
Commonwealth v. Crowder, 884 S.W.2d 649 (Ky. 1994), citing Terry, supra.
The test for such a stop and frisk is whether there is a reasonable and
articulable suspicion that the suspect may be armed and dangerous. Banks, 68
S.W.3d at 351 (citing Terry, 392 U.S. at 30). Such a suspicion is based on the
officer’s objective justification for his actions, measured in light of the totality of
the circumstances. See Bauder v. Commonwealth, 299 S.W.3d 588 (Ky. 2009).
When considering the totality of the circumstances, “due deference must be given
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to the reasonableness of inferences made by police officers.” Id. at 592 (citation
omitted).
Officers may draw on their own experience and
specialized training to make inferences from, and
deductions about, the cumulative information available to
them that might well elude an untrained person. Police
officers are in an extraordinary position that requires
them to make split-second determinations of reasonable
suspicion, sometimes in dire and even dangerous
circumstances. This determination is generally made
through the prism of each officer's own training and
experience.
Id. (citations omitted).
In the case sub judice, the trial court’s findings of facts and conclusions of
law are as follows:
a) The ostensible basis for the police officers’ initial
inquiry of the Defendants on the night in question was
their observation of the Defendants passing of a
package of cigarettes between themselves in a vehicle
parked in an area where substantial drug activity was
known to occur;
b) No exigent circumstances existed which prevented the
officers from seeking a search warrant while
maintaining surveillance of the vehicle;
c) Probable cause did not exist to search the vehicle or
the Defendants and had a search warrant been sought,
it would not have been granted;
d) The search in this case was improper and all evidence
which is fruit of that search must be suppressed and
will not be allowed into evidence at trial.
Although subsequent events demonstrated the
officers were correct in their suspicions, if this search
was not improper, th[e]n Kentuckians who have the
misfortune of residing in areas plagued by significant
crimes, especially drug activity, would be subjected to
additional misery in the form of warrantless searches for
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nothing more than parking in the “wrong” block and
sharing a pack of smokes. The Constitution does not
allow this.
We disagree with the trial court’s view of the law as quoted
hereinabove. The trial court seems to be critical of the officers’ initial approach to
the Appellees due to their sharing a cigarette in a notoriously high crime area.
However, as already stated, “[p]olice officers are free to approach anyone in public
areas for any reason.” Banks, 68 S.W.3d at 350. Accordingly, the officers’ reasons
for their initial approach to the Appellees is irrelevant. The trial court seems also
to have relied heavily on its conclusion that the officers did not have probable
cause to search the vehicle or the Appellees, that the officers could have sought a
search warrant, and that a search warrant would have been denied. This too
appears irrelevant to the legal analysis. The appropriate legal analysis is whether
the officers had a reasonable suspicion, based on the totality of the circumstances,
that Appellees might be armed and dangerous. Terry, supra, 392 U.S. at 30. From
the officers’ testimony, it was revealed that the Appellees were parked in an area
notorious for high drug-trafficking, that the officers had specifically been asked to
patrol the area for drug-dealing, that the Appellees began making frantic
movements upon being approached by the officers, that is was dark, and visibility
was poor. From the totality of these circumstances, the officers were justified in a
reasonable suspicion that the Appellees might be armed. As such, they were
entitled to make a Terry pat-down search, to verify or disprove their suspicions.
Terry, 392 U.S. at 30. What transpired thereafter, attempted flight, resisting arrest
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and discovery of drugs, was a direct result of the lawful pat-down search. As there
was no constitutional violation when the officers approached the Appellees and the
initial contact with them, upon the occurrence of Appellees’ unlawful behavior, a
reasonable basis emerged for the arrest and subsequent search of the vehicle. Id.;
see also, e.g. Baltimore v. Commonwealth, 119 S.W.3d 532 (Ky.App. 2003).
For the foregoing reasons, the August 27, 2009, Jefferson Circuit
Court order suppressing evidence is reversed.
WINE, JUDGE, CONCURS.
CAPERTON, JUDGE, CONCURS AND FILES SEPARATE
OPINION.
CAPERTON, JUDGE, CONCURRING: I would vacate and remand
for the correct legal standards, as set forth in the majority opinion, to be applied by
the trial court.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEES:
Jack Conway
Attorney General of Kentucky
No brief was filed on behalf of the
appellees.
Samuel J. Floyd, Jr.
Special Assistant Attorney General
Louisville, Kentucky
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