COMMONWEALTH OF KENTUCKY VS. SANDERS (MARY)
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RENDERED: JANUARY 14, 2011; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-002398-MR
COMMONWEALTH OF KENTUCKY
v.
APPELLANT
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE GREGORY M. BARTLETT, JUDGE
ACTION NO. 09-CR-00321
MARY SANDERS
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, COMBS, AND WINE, JUDGES.
COMBS, JUDGE: The Commonwealth of Kentucky appeals an order of the
Kenton Circuit Court granting Mary Sanders’s motion to suppress evidence. After
our review, we affirm.
On February 2, 2009, Covington Police Officer Justin Bradbury
observed Sanders walking on Greenup Street. A man walking in front of her
turned onto Pleasant Street, and then Sanders turned down Pleasant Street in the
same direction. Approximately two hours later, Officer Bradbury observed
Sanders walking down Greenup Street travelling in the opposite direction.
Officer Bradbury testified that he approached Sanders and asked her
name and why she was in the area. Sanders told him that she was on her way
home from the house of a family member. She also gave him the name “Cassandra
Baldwin.” Since Sanders did not have any form of Kentucky identification with
her, Officer Bradbury asked the dispatcher to search for it. No sort of
identification could be found for that name.
Officer Bradbury then asked Sanders for her Social Security Number
(SSN). The number that she gave was identified as a man who lived in Louisville.
At that point, Officer Bradbury advised Sanders that it is a crime to give the police
false information. She still insisted that her name was Cassandra Baldwin and that
she had provided the correct SSN. After Officer Bradbury told Sanders that she
was committing identity theft (a felony), she admitted that her name was Mary
Sanders. She claimed that she had lied because there was an outstanding warrant
for her arrest. Officer Bradbury confirmed the warrant and placed Sanders under
arrest.
Sanders was indicted on one count of theft of identity. In October
2009, she filed a motion to suppress evidence derived from her detention. The trial
court entered the order granting her motion on December 9, 2009. This appeal
follows.
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Our standard of review is dual in nature. While we may not disturb
the trial court’s findings of fact if they are supported by substantial evidence, we
review its legal conclusions de novo. Commonwealth v. Marr, 250 S.W.3d 624,
626 (Ky. 2008).
The trial court concluded that Sanders was illegally detained. We
agree. The Fourth Amendment of the federal Constitution and Section 10 of
Kentucky’s Constitution assure protection from unreasonable seizure of one’s
person. Seizure has been defined as detention of an individual in a situation where
a reasonable person would not feel that he had the option of leaving. Baltimore v.
Commonwealth, 119 S.W.3d 532, 537 (Ky. App. 2003). In order to conform to
Fourth Amendment protection, the United States Supreme Court has required a
“demand for specificity in the information upon which police action is
predicated.” Terry v. Ohio, 392 U.S. 1, 22, 88 S. Ct. 1868, 1880 n. 18, 20 L. Ed.
2d 889 (1968). (Emphasis added.) Terry holds that a seizure of a person must be
justifiable by “specific and articulable facts which, taken together with rational
inferences from those facts, reasonably warrant that intrusion.” Id. at 21, 1880.
The Supreme Court of the United States has discussed seizures for the
purpose of identification in Brown v. Texas, 443 U.S. 47, 99 S. Ct. 2637, 61 L. Ed.
357 (1979). While probable cause of a suspect’s participation in criminal activity
is required for an arrest, the lesser standard of reasonable suspicion is a sufficient
basis for a police officer to stop and question someone. Id. at 51, 2641. The Court
also clarified the nature of a seizure, holding that it:
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must be based on specific, objective facts indicating that
society’s legitimate interests require the seizure of the
particular individual, or that the seizure must be carried
out pursuant to a plan embodying explicit, neutral
limitations on the conduct of individual officers.
Id. at 51, 2640. The Court concluded that “stopping and demanding identification
from an individual without any specific basis for believing he is involved in
criminal activity” is not permitted by the Fourth Amendment. “When such a stop
is not based on objective criteria, the risk of arbitrary and abusive police practices
exceeds tolerable limits.” Id. at 52, 2641.
We are persuaded that the case before us falls squarely under Brown. The
Commonwealth recites several reasons to justify Officer Bradbury’s decision to
approach Sanders. Nonetheless, we cannot conclude that they rise to the level of
any reasonable suspicion that Sanders was involved in criminal activity by the
mere act of walking on a street. In this case, most of the factors offered by the
Commonwealth occurred after Officer Bradley detained Sanders. The Supreme
Court has clearly mandated that reasonable suspicion must be determined before
the stop occurs and not be justified in a boot-strap fashion of rationalization by
hindsight.
The Commonwealth also argues that Sanders was in a neighborhood that is
known for drug activity; that it was late at night; that she was seen following
someone; that she returned to the street; that she gave a false name (again, a fact
only known after the stop had occurred); and that she seemed nervous. These
factors simply do not constitute reasonable suspicion of criminal activity.
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As the trial court correctly observed, after Officer Bradbury did not find a
license for the name that Sanders initially provided, the encounter became a
detention. Officer Bradbury actually testified that at that point Sanders asked to
leave, and he refused her request. Therefore, we must determine whether the
reasons leading up to that detention were sufficient to provide reasonable suspicion
of criminal activity.
The Supreme Court of Kentucky has recently held that being in a high crime
area at night is not per se sufficient to provide reasonable suspicion justifying
police interference. Strange v. Commonwealth, 269 S.W.3d 847, 852 (Ky. 2008).
It has also held that nervousness is not a reason for detention (though it can be a
factor). Adkins v. Commonwealth, 96 S.W.3d 779, 788 (Ky. 2003). Officer
Bradbury testified that Sanders appeared nervous. She explained a possible – and
plausible – cause for her nervousness. As she walked alone in a bad neighborhood,
the police car slowly drove past her more than once before stopping. Also, when
questioned, Officer Bradbury was not able to articulate what specific signs of
nervousness Sanders exhibited—other than picking up her pace.1 She did not
attempt to flee the scene.
Contrary to the Commonwealth’s contention, Sanders testified that she was
not following someone when she passed through Greenup Street the first time.
Pedestrians walk through the same places and spaces. The Commonwealth offered
1
We note parenthetically that this encounter took place in the early morning hours during
February – a fact that could be a rational explanation for a quickened gait as easily as an
inference of guilt.
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no evidence to prove otherwise which would compel us to overrule the decision of
the trial court. Mere suspicion could not be inferred from the act of walking on a
street in conjunction with other passersby. To hold otherwise would truly raise the
pernicious specter of a police state.
Accordingly, pursuant to the clear precedent of the Supreme Court of the
United States in Brown, we affirm the order of the Kenton Circuit Court.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Jack Conway
Attorney General of Kentucky
Thomas M. Ransdell
Department of Public Advocacy
Frankfort, Kentucky
Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky
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