MICHAEL L. SHILL v. COMMONWEALTH OF KENTUCKY
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RENDERED: December 4, 1998; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1996-CA-002903-MR
MICHAEL L. SHILL
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE LEWIS G. PAISLEY, JUDGE
ACTION NO. 1996-CR-000677
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
ABRAMSON, BUCKINGHAM, and COMBS, Judges.
ABRAMSON, JUDGE1:
Pursuant to RCr 8.09, Appellant Michael L.
Shill entered a conditional guilty plea to trafficking in
marijuana over eight ounces and possession of drug paraphernalia,
was sentenced to a two-year prison term, and placed on
conditional discharge for five years.
He has appealed the trial
court's denial of his motion to suppress evidence taken at the
time of his arrest.
Shill claims that the trial court erred when
it found (1) that there was reasonable suspicion to stop his car;
and (2) that his arrest for driving on a suspended license
1
This opinion was prepared and concurred in prior to the
departure of Judge Abramson from the Court on November 22, 1998.
justified the search of his car.
Having reviewed the evidence
presented at the suppression hearing and the applicable law, we
affirm.
At the suppression hearing, the following testimony was
heard by the trial court.
Officer Byron Smoot of the
On May 19, 1996, at about 8:45 p.m.,
Lexington-Fayette Urban County Police
Department was patrolling an area of Lexington known for its
heavy drug activity.
Smoot and his partner noticed Shill sitting
in front of a nightclub located in a shopping center.
The
businesses in the center were closed at the time, no other cars
or people were in the parking lot and “no loitering” signs were
clearly posted.
Smoot testified at the suppression hearing that
when he pulled his cruiser beside Shill’s vehicle Shill looked
“startled” and then started his car and turned right out of the
shopping center onto Georgetown Street.
Smoot attempted to catch
up with Shill’s vehicle, but Shill was eluding Smoot.
After
Shill turned left on Main Street, he made what Smoot testified
was a “blatant attempt to avoid” him by turning left into a gas
station.
Smoot made a U-turn on Main and returned to the gas
station where he saw Shill turn left from the gas station heading
east on Main Street.
Smoot followed Shill on Main toward the
downtown area to a point near the Radisson Hotel where Smoot
activated his emergency blue lights to stop Shill.
Smoot testified that at the time of the stop he could
have charged Shill with careless driving.
After Shill told Smoot
that he had no proof of insurance, Smoot conducted a computer
check on Shill’s driver’s license and discovered that it was
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suspended.
license.
Smoot then arrested Shill for driving on a suspended
Shill told Smoot that he had been waiting in the
shopping center parking lot “to buy some dope.”
Pursuant to a search of the interior of Shill’s car
incident to the arrest, Smoot found a tool kit containing drug
paraphernalia as well as a potato chip can with 45 grams of
marijuana.
After Smoot also found a black briefcase with a
combination lock on the back floorboard, Shill refused to
disclose the combination to Smoot, who then called for a drug
dog.
When the dog alerted on the briefcase, Smoot obtained a
search warrant for the briefcase which contained 618 grams of
marijuana and a pair of scales.
Shill was indicted for trafficking in over eight ounces
of marijuana, possession of drug paraphernalia, operating a motor
vehicle without insurance, and operating a motor vehicle while
his license was suspended.
He moved to suppress the drugs and
drug paraphernalia found in his car.
After a suppression hearing
on August 7, 1996, the trial court overruled the motion to
suppress.
On August 16, 1996, Shill entered a conditional guilty
plea under a plea agreement by which he would be sentenced to two
years for trafficking, twelve months for possession of drug
paraphernalia, with the remaining charges to be dismissed.
On
October 11, 1996, the court probated Shill’s sentence for five
years.
This appeal followed.
In denying the suppression motion, the trial judge
concluded that Smoot’s stop of Shill’s car was reasonable and
that the seizure of evidence from Shill’s car also was
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reasonable.
After a suppression hearing, when the trial judge's
factual findings are supported by substantial evidence, they are
deemed "conclusive."
RCr 9.78.
The defendant has the burden of
showing that the trial court's ruling was clearly erroneous.
Harper v. Commonwealth, Ky., 694 S.W.2d 665 (1985).
In Terry v. Ohio, 392 U.S. 1, 16, 88 S. Ct. 1868, 1877,
20 L. Ed. 2d 889 (1968), the leading United States Supreme Court
case on the issue of Fourth Amendment stops, the Supreme Court
recognized that police officers may make an investigatory stop
when specific, articulable facts and any reasonable inferences to
be drawn from those facts create a reasonable suspicion that
criminal activity is afoot.
The standard for determining whether
a person has been stopped or seized within the meaning of the
Fourth Amendment is whether "in view of all of the circumstances
surrounding the incident a reasonable person would have believed
that he was not free to leave."
United States v. Mendenhall, 446
U.S. 544, 554, 100 S. Ct. 1870, 1877, 64 L. Ed. 2d 497 (1980).
A
seizure occurs where the officer by force or by show of authority
restrains the liberty of a citizen.
Terry v. Ohio, 392 U.S. at
19 n. 16, 88 S. Ct. at 1879 n. 16, 20 L. Ed. 2d at n.16.
Where
no force is involved, the person must submit to the assertion of
authority in order for a seizure to occur.
California v. Hodari
D., 499 U.S. 621, 113 L. Ed. 2d 690, 111 S. Ct. 1547 (1991).
The
right to make a brief investigatory stop where reasonable
suspicion exists is not limited to officers on foot but also
extends to vehicle stops.
Delaware v. Prouse, 440 U.S. 648, 99
S. Ct. 1391, 59 L. Ed. 2d 660 (1979); Whren v. United States, 517
-4-
U.S. 806, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996); Creech v.
Commonwealth, Ky. App., 812 S.W.2d 162 (1991).
When Smoot flashed his blue emergency lights at Shill,
he was attempting to stop and detain Shill and his vehicle.
In
order to stop a person or a vehicle, the officer must have
observed unusual conduct which led him to conclude in light of
his experience that an offense had been or was about to be
committed.
United States v. Hensley, 469 U.S. 221, 105 S. Ct.
675, 83 L. Ed. 2d 604 (1985).
In this case, Smoot’s personal
observations supplied the necessary reasonable suspicion.
After Smoot first observed Shill in an otherwise
deserted shopping center parking lot in an area well-known for
drug activity, Shill was “startled” to see Smoot.
Shill then
engaged in irregular driving in an apparent effort to evade
Smoot.
As Smoot caught up with Shill, he turned on his blue
emergency lights.
The totality of the circumstances including
the location of Shill’s car, along with his demeanor and elusive
driving, provided reasonable and articulable suspicion of
criminal activity.
See Simpson v. Commonwealth, Ky. App., 834
S.W.2d 686 (1992) (upholding trial court's findings justifying
investigative stop).
The trial court’s conclusion that
reasonable suspicion existed under the Fourth Amendment for Smoot
to have stopped and detained Shill’s vehicle was not clearly
erroneous.
Shill’s second argument is that the search of the
interior of his car was constitutionally unreasonable because his
arrest for driving on a suspended license did not justify the
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search.
Pursuant to the stop of Shill’s vehicle, Smoot’s request
for proof of insurance was reasonable.
When Shill was unable to
produce evidence of insurance, Smoot’s computer check of Shill’s
driver’s license status revealed that his license had been
suspended.
Although the record does not indicate under which
statute Shill’s license had been revoked, both KRS 189A.100 and
KRS 186.620 authorize custodial arrests when a person is driving
on a suspended license.
As a contemporary incident of any lawful
custodial arrest, the officer automatically can search the entire
passenger compartment.
New York v. Belton, 453 U.S. 454, 101 S.
Ct. 2860, 69 L. Ed. 2d 768 (1981); Brown v. Commonwealth, Ky.,
890 S.W.2d 286 (1994).
Smoot’s authority to search Shill’s
vehicle incident to his arrest was not dependent upon the
officer’s observation of contraband in plain view.
Commonwealth, supra.
Brown v.
In short, Smoot’s search of the interior of
Shill’s vehicle was reasonable as a search incident to his
arrest.
Taken as a whole, the evidence adduced at the
suppression hearing supports the trial judge's finding that the
stop was preceded by a reasonable and articulable suspicion of
criminal activity and his conclusion that the search of Shill’s
car was reasonable and the resulting evidence therefore
admissible.
Shill has failed to demonstrate that the trial
court's ruling was clearly erroneous.
Finding no error in the trial court’s order, we affirm
the trial judge's denial of Shill's motion to suppress.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Jerry Anderson
Lexington, KY
A.B. Chandler III
Attorney General
Michael L. Harned
Assistant Attorney General
Frankfort, KY
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