COMMONWEALTH OF KENTUCKY v. RONALD D. MARR
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RENDERED: JUNE 27, 2003; 10:00 A.M.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2002-CA-001774-MR
COMMONWEALTH OF KENTUCKY
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE THOMAS B. WINE, JUDGE
ACTION NO. 01-CR-002251
v.
RONALD D. MARR
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BAKER, GUIDUGLI, AND KNOPF, JUDGES.
KNOPF, JUDGE:
On September 26, 2001, a Jefferson County grand
jury returned an indictment charging Ronald D. Marr with one
count each of manufacturing methamphetamine while in possession
of a firearm,1 trafficking in a controlled substance
(methamphetamine) in the first degree, while in possession of a
1
KRS 218A.1432, 218A.992, a class A felony.
firearm,2 possession of drug paraphernalia while in possession of
a firearm,3 and possession of a controlled substance (marijuana),
while in possession of a firearm.4
Thereafter, Marr moved to
suppress all evidence seized as a result of a pat-down search of
his person and a subsequent consensual search of his residence.
Following a hearing, the trial court granted the motion, finding
that the police officer did not have a reasonable suspicion
sufficient to warrant a pat-down search, and that Marr’s
subsequent consent to the search of his residence was not
voluntary.
The Commonwealth now brings an interlocutory appeal
from this order.
Finding that the trial court properly granted
the motion to suppress, we affirm.
On July 31, 2001, the trial court conducted a hearing
on Marr’s motion to suppress.
Officer Steven Bailey of the
Jefferson County Police Department was the only witness to
testify at the hearing.
According to Officer Bailey, on April
25, 2001, another officer had received information that
methamphetamine was being sold out of an auto-body shop located
at 7675 Dixie Highway in Jefferson County.
The informant
described the seller as an older, white, “biker-type” male.
2
KRS 218A.1412, KRS 218A.992, a class B felony.
3
KRS 218A.500, 218A.992, a class D felony.
4
KRS 218A.1422, KRS 218A.992, a class D felony.
2
Officer Bailey and several other police officers
conducted surveillance on the building located at that address.
They observed a number of vehicles coming and going from the
business during a short period of time.
Officer Bailey stated
that, in his experience, this pattern was consistent with drug
trafficking.
Officer Bailey further testified that he and the
other officers stopped several of the vehicles leaving the body
shop.
During one of the stops, an officer found two pounds of
marijuana in a vehicle.
However, Officer Bailey conceded that
this marijuana was not related to the suspected drug trafficking
at the body shop.
After further surveillance, the officers decided to go
into the business and speak to the owner.
Officer Bailey
testified that the owner acted “surprised”, “fidgety” and
“nervous.”
Officer Bailey testified that he heard noise coming
from another room, and he asked the owner if there was anyone
else in the building.
The owner replied “no”, but kept looking
at the area from where the noise had come.
Finally, Officer Bailey went over to the other room
and called for the person to come out.
Officer Bailey testified
that an older, white, bearded, “biker-looking” male, later
identified as Marr, came out.
Officer Bailey stated that Marr
appeared to be nervous and his voice cracked when he spoke to
the officers.
Officer Bailey testified that, based on the
3
suspicions of drug trafficking and the other circumstances, he
decided to perform a pat-down search of Marr to check for
weapons.
Officer Bailey testified that, during the pat-down, he
felt two baggies, two plastic tubes and a large amount of cash
in Marr’s pants pocket.
Based on his prior experience and the
circumstances, Officer Bailey suspected that the baggies
contained methamphetamine and that the plastic tubes were
“hitters”, which are used to ingest drugs.
After conducting the
search, Officer Bailey asked Marr what was in his pockets.
did not respond to the question.
Marr
At that, Officer Bailey
reached into Marr’s pocket and removed two large baggies
containing methamphetamine, two plastic “hitters”, and $4,150.00
in cash.
Following the seizure of this evidence, Officer Bailey
asked Marr if he had anything else at his residence, to which
Marr replied that he did not.
Officer Bailey then asked Marr if
he could search his residence, and Marr verbally agreed.
Thereupon, Officer Bailey drove to Marr’s residence, where Marr
executed a written consent to the search.5
5
Officer Bailey did not testify about the results of the search
of Marr’s residence. However, his arrest report states that in
the course of that search, the police officers found several
more baggies of methamphetamine, along with marijuana,
electronic scales, several handguns, and materials related to
the manufacture of methamphetamine.
4
At the conclusion of Officer Bailey’s testimony,
Marr’s counsel argued that the police lacked any reasonable,
articulable suspicion to justify the initial pat-down search of
Marr.
In the alternative, Marr argued that Officer Bailey
exceeded the reasonable scope of the pat-down search.
The court
recessed the hearing until the next day to allow Marr’s counsel
to brief the issues.
When the trial court reconvened, the court and parties
reviewed the testimony of Officer Bailey.
The trial judge then
stated that he was inclined to grant Marr’s motion to suppress.
The court found that none of the information available to
Officer Bailey at the time was sufficient to give rise to a
“reasonable, articulable suspicion” that Marr was engaged in
criminal activity to justify the pat-down.
Consequently, the
court ordered that the evidence seized as a result of the patdown search must be suppressed.
On Marr’s motion, the court
extended its ruling to include any evidence seized from the
residence, finding that the improper pat-down search vitiated
Marr’s consent to the search of his residence.
On August 6,
2002, the trial court entered an order granting the motion to
suppress based on its oral findings at the August 1 hearing.
The Commonwealth now appeals from that order.6
6
The Commonwealth’s appeal from this ruling is designated as
interlocutory pursuant to RCr 12.04 and KRS 22A.020(4). Two
5
RCr 9.78 sets out the procedure for conducting
suppression hearings and establishes the standard of appellate
review of the determination of the trial court.
Our standard of
review of a circuit court's decision on a suppression motion
following a hearing is twofold:
First, the factual findings of
the court are conclusive if they are supported by substantial
evidence; and second, this Court conducts a de novo review to
determine whether the trial court’s decision is correct as a
matter of law.7
In this case, the evidence introduced by the
Commonwealth was uncontroverted.
Therefore, we must assume that
those were the facts upon which the trial court based its
order.
Thus, our task is to decide whether the trial court
properly applied the rule of law to the established facts.8
The Fourth Amendment of the United States Constitution
guarantees the “right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable
searches and seizures.”9
In Terry v. Ohio,10 the United States
days after the Commonwealth filed its notice of appeal, the
trial court entered an order dismissing the indictment without
prejudice. However, this appeal is from the trial court’s
August 6, 2002, order.
7
Adcock v. Commonwealth, Ky., 967 S.W.2d 6, 8 (1998).
8
Id. (citing Ornelas v. United States, 517 U.S. 690, 697, 134 L.
Ed. 2d 911, 919, 116 S. Ct. 1657 (1996)).
9
U.S. Const. amend. IV.
6
Supreme Court recognized an exception to the warrant requirement
by sanctioning both investigatory stops and limited pat-down
searches of suspects.
When there is a reasonable suspicion that
criminal activity is afoot, a police officer may briefly detain
an individual on the street, even though there is no probable
cause to arrest him.11
Terry also held that "[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.”12
Frisking a suspect during a Terry stop is strictly limited to
that which is necessary for the discovery of weapons which might
be used to harm the officer or others nearby.13
Furthermore, in
Ybarra v. Illinois,14 the United States Supreme Court cautioned
that the narrow scope of the Terry exception does not permit a
frisk for weapons on less than reasonable belief or suspicion
10
392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968).
11
Id. at 30-31, 20 L. Ed. 2d at 911.
12
Id. at 24, 20 L. Ed. 2d at 908.
13
Commonwealth v. Crowder, Ky., 884 S.W.2d 649 (1994), citing
Terry, supra.
14
444 U.S. 85, 62 L. Ed. 2d 238, 100 S. Ct. 338 (1979).
7
directed at the person to be frisked, even though that person
happens to be on premises where an authorized narcotics search
is taking place.
“Nothing in Terry can be understood to allow a
generalized 'cursory search for weapons' or indeed, any search
whatever for anything but weapons.”15
The Fourth Amendment requires some minimum level of
objective justification for the officer's actions measured in
light of the totality of the circumstances.16
When considering
the totality of the circumstances, a reviewing court should take
care not to view the factors upon which police officers rely to
create reasonable suspicion in isolation.
Rather, courts must
consider all of the officer’s observations, and give due weight
to inferences and deductions drawn by trained law enforcement
officers.17
The test for a Terry stop and frisk is not whether
an officer can conclude that an individual is engaging in
criminal activity, but rather whether the officer can articulate
15
Id. at 93-94, 62 L. Ed. 2d at 247.
16
See United States v. Sokolow, 490 U.S. 1, 104 L. Ed. 2d 1, 109
S. Ct. 1581 (1989); Eldred v. Commonwealth, Ky., 906 S.W.2d 694
(1994).
17
United States v. Arvizu, 534 U.S. 266, 272-75, 151 L. Ed. 2d
740, 749-51, 122 S. Ct. 744 (2002). See also United States v.
Martin, 289 F.3d 392, 398 (6th Cir., 2002).
8
reasonable facts to suspect that criminal activity may be afoot
and that the suspect may be armed and dangerous.18
The trial court compared the facts of the present case
to those presented in Florida v. J.L.19
In that case, the police
received information from an anonymous telephone caller that a
young black male standing at a particular bus stop and wearing a
plaid shirt was carrying a gun.
Upon arriving at the bus stop,
the police saw three black males "'just hanging out [there]'."20
When the police frisked J.L., who was a juvenile and was wearing
a plaid shirt, they discovered a handgun in his pocket.
J.L.
was charged with carrying a concealed firearm without a license
and possessing a firearm while under the age of 18.
Subsequently, the trial court granted J.L.'s motion to suppress
the gun as the fruit of an unlawful search in violation of the
Fourth Amendment, and the Florida Supreme Court affirmed the
trial court.
In agreeing with the state court, the United States
Supreme Court reaffirmed its decision in Alabama v. White,21 and
18
Commonwealth v. Banks, Ky., 68 S.W.3d 347, 351 (2001) (citing
Terry v. Ohio, 392 U.S. at 30, 20 L. Ed. 2d at 911).
19
529 U.S. 266, 146 L. Ed. 2d 254, 120 S. Ct. 1375 (2000).
20
Id. at 268, 146 L. Ed. 2d at 259.
21
496 U.S. 325, 110 L. Ed. 2d 301, 110 S. Ct. 2412 (1990). In
Alabama v. White, the Supreme Court discussed the standards
applicable to establishing reasonable articulable suspicion with
9
distinguished the situation in J.L. based on the facts.
The
Court relied in large part on the predictive aspects of the
information, rather than a particular physical description of
the suspect, as a major element in facilitating corroboration by
the police and creating "'sufficient indicia of reliability to
provide reasonable suspicion to make the investigatory stop.'”22
The Court stated:
The tip in the instant case lacked the
moderate indicia of reliability present in
White and essential to the Court's decision
in that case. The anonymous call concerning
J.L. provided no predictive information and
therefore left the police without means to
test the informant's knowledge or
credibility. That the allegation about the
respect to an anonymous telephone tip. The Court held that even
when an unverified tip would have been insufficient to establish
probable cause for an arrest or search warrant, where the
information supplied carries sufficient "indicia of
reliability," it would support a forcible investigatory stop
under Terry. Id. at 328, 110 L. Ed. 2d at 307. The Court held
that the "totality of the circumstances" approach adopted in
Illinois v. Gates, 462 U.S. 213, 76 L.Ed.2d 527, 103 S. Ct. 2317
(1983), applied to the reasonable-suspicion analysis for an
anonymous tip. "Reasonable suspicion ... is dependent upon both
the content of information possessed by police and its degree of
reliability." Alabama v. White, 496 U.S. at 330, 110 L. Ed. 2d
at 309. The information must be viewed based on the personal
observation and independent investigation of the police that
would tend to corroborate significant, but not necessarily all,
of the facts supplied by the informant. Another important
factor involves whether the information contains facts and
conditions as to future actions of third parties ordinarily not
easily predicted. Id. at 332, 110 L. Ed. 2d at 310.
22
Florida v. J.L., 529 U.S. at 270, 146 L. Ed. 2d at 260
(quoting Alabama v. White, 496 U.S. at 327, 110 L. Ed. 2d at
301).
10
gun turned out to be correct does not
suggest that the officers, prior to the
frisks, had a reasonable basis for
suspecting J.L. of engaging in unlawful
conduct: The reasonableness of official
suspicion must be measured by what the
officers knew before they conducted their
search. All the police had to go on in this
case was the bare report of an unknown,
unaccountable informant who neither
explained how he knew about the gun nor
supplied any basis for believing he had
inside information about J.L. If White was a
close case on the reliability of anonymous
tips, this one surely falls on the other
side of the line.23
The facts of the present case present a very close
question regarding whether Officer Bailey had a reasonable and
articulable suspicion to justify a pat-down search of Marr.
Furthermore, at the suppression hearing, Marr’s counsel
primarily focused on the argument that Officer Bailey’s seizure
of the drugs, paraphernalia, and money exceeded the scope of a
valid Terry pat-down.
Consequently, Officer Bailey failed to
testify about certain matters which would be relevant to
determining the validity of the Terry stop.
There was no
evidence regarding the identity or reliability of the initial
informant, whether the informant gave any predictive information
about Marr’s conduct, whether evidence seized from any of the
vehicles which were stopped after leaving the body shop
corroborated the information that drug activity was being
23
Id., 529 U.S. at 271, 146 L. Ed. 2d at 260-61.
11
conducted in the body shop, or whether any evidence seized from
the owner of the body shop would have implicated Marr in the
suspected drug trafficking.
Nevertheless, Marr did challenge the sufficiency of
the Terry pat-down, and the Commonwealth bore the burden of
proving the justification for a warrantless search and seizure.
Moreover, our review is confined to the evidence of record.
Even when the circumstances are considered in their entirety,
the evidence did not establish that Officer Bailey had a
reasonable and articulable suspicion to justify the pat-down
search of Marr.
The trial court found that, as was the case in Florida
v. J.L., there was no evidence concerning the source of the
original tip or the reliability of the informant.
The
informant’s tip merely advised the police that someone who
matched Marr’s description would be at the scene.
The informant
provided no predictive information about his conduct, nor did
the police surveillance corroborate the tip that Marr was
trafficking in methamphetamine.
Furthermore, there was no evidence that the body shop
was located in a high-crime area.
While the surveillance did
raise a legitimate suspicion of drug activity at the body shop,
none of the surveillance corroborated the information that Marr
was involved in the trafficking.
12
In addition, Officer Bailey
admitted that the marijuana seized from one of the vehicles
leaving the body shop was not connected to this investigation.
The events occurring inside the body-shop were no more
conclusive.
Although the owner lied about Marr’s presence in
the building, his denial of Marr’s presence in the building did
not directly implicate Marr.
hide from the officers.
Indeed, Marr made no attempt to
Furthermore, there was no evidence,
even from the unidentified informant, that Marr possessed a
weapon.
Thus, all that remained was Marr’s resemblance to the
very general description given by the informant, his presence at
the scene of suspected drug activity, and Officer Bailey’s
perception of Marr’s nervousness.
We agree with the trial court that these circumstances
were insufficient to justify the pat-down search of Marr.
Marr’s presence in an area of expected criminal activity,
standing alone, was not a sufficient basis for an investigatory
stop.24
And while an individual’s nervousness or suspicious
behavior can contribute to the establishment of an articulable
suspicion,25 Marr’s nervousness alone was not sufficient to
24
Simpson v. Commonwealth, Ky. App., 834 S.W.2d 686 (1992);
Illinois v. Wardlow, 528 U.S. 119, 124, 145 L. Ed. 2d 570, 576,
120 S. Ct. 673 (2000).
25
Simpson, 834 S.W.2d at 688. See also Arvizu, holding that a
pattern of suspicious behavior may justify a reasonable
inference that criminal activity is afoot. 534 U.S. at 27-28,
151 L. Ed. 2d 751-52.
13
create a reasonable inference that he was involved in criminal
activity.
Consequently, the trial court properly granted Marr’s
motion to suppress the evidence seized as a result of that
search.
Furthermore, because Marr’s consent to the search of
his residence flowed from the initial search of his person, the
trial court properly granted his motion to suppress that
evidence as well.
Accordingly, the August 6, 2002, order of the
Jefferson Circuit Court is affirmed.
GUIDUGLI, JUDGE, CONCURS.
BAKER, JUDGE, DISSENTS.
BAKER, JUDGE, DISSENTING:
Respectfully, I dissent.
I
perceive a clear distinction between the facts presented in the
matter before the Court and those in Florida v. J.L., 529 U.S.
266, 120 S. Ct. 1375, 146 L. Ed. 2d 254 (2000), upon which the
majority relies.
In the matter before us, the arresting officer
testified that he had received information that methamphetamine
was being sold at a body shop at a specific location on Dixie
Highway in Jefferson County.
Not only did the officer know the
location, he was also provided a description of the seller which
matched Marr.
In order to further his investigation, police
officers conducted surveillance and observed people coming and
going to the business and making short stays.
14
One of the
persons leaving the business was pulled over and was found to be
in possession of approximately two pounds of marijuana.
The police determined to speak to the owner of the
body shop and identified themselves as being on a narcotics
investigation. During this conversation, the officers heard a
noise in the back of the business and specifically asked the
owner if anyone else was on the premises.
The owner informed
the officers that there was not, and there is no question that
the owner was lying in his response.
By the officers’
observation, the owner was acting very nervous, kept looking in
the area from where the noise had come, and obviously lied about
another person not being on the premises.
The officers directed the person who was in hiding in
the back to come out, and Marr did so.
By the officers’
observation, Marr both appeared and sounded nervous when he
spoke to the officers.
Because the officers had reason to
believe that illegal drugs were being sold from the business,
the officers feared that Marr may be armed, and they conducted a
pat-down search.
They found drugs and drug paraphernalia, as
well as a large amount of cash in this pat-down search.
By comparison, Marr relies upon Florida v. J.L., 529
U.S. 266, a case in which the facts demonstrated that the police
received an anonymous tip that a young black male, wearing a
plaid shirt, was armed and standing at a certain bus stop.
15
The
police went to the bus stop and found a man matching that
description.
They conducted a pat-down search and retrieved a
gun.
Each case involving a suppression hearing certainly
must be decided on its own facts.
I respectfully believe,
however, that in the matter before the Court, the police
officers had ample evidence to conduct the pat-down search which
was in issue.
Not only did they know the specific location of
the alleged criminal activity along with a description of Marr,
they also were specifically aware that one of the patrons to
this location possessed a large amount of illegal drugs.
From
their own observations, they were able to detect nervous and
suspicious behavior and caught, first hand, the owner of the
premises in an obvious lie regarding Marr’s presence on the
property.
Considering the totality of the circumstances, I am of
the opinion that the police possessed a reasonable suspicion
that Marr was involved in criminal activity and was presently
armed and dangerous.
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868,
20 L. Ed. 2d 889 (1968).
Specifically, the informant’s tip that
methamphetamine was being sold at the body shop by someone
matching Marr’s description, the officers’ surveillance of the
body shop, and the Marr’s suspicious behavior at the body shop
together created a reasonable suspicion that Marr was, indeed,
16
involved in the sale of methamphetamine.
Additionally, it is
well-known that “narcotics investigations are fraught with
dangers . . . .”
Johantgen v. Commonwealth, Ky. App., 571
S.W.2d 110, 112 (1978).
Our Court has previously recognized
that “in some cases, the right to frisk for weapons will follow
automatically from the circumstances, such as where the stop is
for suspicion for a violent crime.”
Ky. App., 713 S.W.2d 827, 828 (1986).
Collier v. Commonwealth,
Similarly, the right to
frisk for weapons should be automatic when the suspect is
stopped upon a reasonable suspicion of trafficking in narcotics.
Id.
In sum, I would hold the Terry stop and frisk proper.
While the arresting officer did have a reasonable
suspicion justifying the stop and frisk of Marr, an issue
remains upon whether the police exceeded the scope of a Terry
frisk by seizing contraband from Marr’s person.
It is well-
established that an officer may properly seize contraband during
a Terry frisk if such contraband is readily identifiable or
immediately apparent.
See Minnesota v. Dickerson, 508 U.S. 366,
113 S. Ct. 2130, 124 L. Ed. 2d 334 (1993).
The record
illustrates that the circuit court did not reach the issue of
whether the police exceeded the scope of a Terry frisk.
Thus, I
would remand to the circuit court for a finding upon whether the
police exceeded the scope of a Terry frisk.
17
The circuit court also suppressed evidence seized from
a search of Marr’s residence.
Because the trial court held that
the Terry stop and frisk was not based upon a reasonable
suspicion, the circuit court concluded that Marr’s consent to
search his home was tainted and that the evidence seized
therefrom should be excluded under the “fruit of the poisonous
tree” doctrine.
As I view the stop and frisk valid, I would,
likewise, hold the ensuing consent and search of Marr’s
residence valid and constitutional.
Therefore, I dissent and would hold that (1) the
officer had a reasonable suspicion that Marr was involved in
criminal activity and was presently armed and dangerous; (2) the
stop and frisk of Marr was, therefore, proper under the
circumstances; (3) this matter should be remanded for further
findings by the circuit court regarding the scope of the Terry
frisk; and (4) the consent and search of Marr’s home was proper.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
A.B. Chandler III
Attorney General of Kentucky
David A. Lambertus
Louisville, Kentucky
Teresa Young
Special Assistant Attorney
General
Louisville, Kentucky
18
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