EDWARD LAMONT HARDY v. COMMONWEALTH OF KENTUCKY
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RENDERED:
MAY 21, 2004; 2:00 p.m.
TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-000584-MR
EDWARD LAMONT HARDY
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE SHEILA R. ISAAC, JUDGE
ACTION NO. 02-CR-01137
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JOHNSON, TAYLOR AND VANMETER, JUDGES.
JOHNSON, JUDGE:
Edward Lamont Hardy has appealed from a final
judgment and sentence of the Fayette Circuit Court entered on
February 24, 2003, which, following Hardy’s conditional plea of
guilty to trafficking in a controlled substance in the first
degree,1 sentenced him to five years’ imprisonment in accordance
with the Commonwealth’s recommendation.
Having concluded that
the trial court did not err by denying Hardy’s motion to
suppress evidence, we affirm.
1
Kentucky Revised Statutes (KRS) 218A.1412.
On November 4, 2002, a Fayette County grand jury
indicted Hardy on one count of trafficking in a controlled
substance in the first degree.
Three days later, Hardy entered
a plea of not guilty to the charge.
On November 25, 2002, Hardy
filed a written motion to suppress, arguing that the cocaine
found on his person was seized in an unconstitutional manner.
suppression hearing was held on that same day.
A
Our review of
the record of that hearing reveals the following facts, which
are not in dispute.
At approximately 1:00 a.m. on October 5, 2002, Hardy
was a passenger in a vehicle being driven by his girlfriend,2
when Officer Johnny Williams and Officer Cook3 of the Lexington
Police Department initiated a traffic stop on the automobile
after noticing that the vehicle’s taillights were not
functioning.
Officer Williams testified that when he conducted
traffic stops, it was his policy to ask for identification from
the driver and any and all passengers.
Officer Williams stated
that because it was around 1:00 a.m. on a weekend morning,
dispatch was at that time receiving a heavy volume of calls from
2
The name of Hardy’s girlfriend is not mentioned in the record. According to
Officer Williams’s testimony, Hardy’s girlfriend initially denied having
identification on her person and gave Officer Cook a false name. However,
after Hardy’s girlfriend surrendered her driver’s license, the background
check revealed five outstanding warrants for her arrest. She was then placed
under arrest. The disposition of her case is not clear from the record.
3
Officer Cook’s first name is not mentioned in the record.
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other officers.
As a result, it took approximately 20-30
minutes to run the background check on Hardy’s driver’s license.4
The background check of Hardy’s driver’s license
ultimately revealed an outstanding warrant for his arrest.5
Hardy was then handcuffed and placed into custody.
A search of
Hardy’s person incident to his arrest revealed approximately
35.4 grams of crack cocaine, which had been separated into
individual packages.
After hearing the evidence presented at the
suppression hearing and after giving both sides time to submit
written memoranda regarding the legality of the search and
seizure at issue, the trial court denied Hardy’s motion to
suppress at a status conference held on December 6, 2002.
Following the denial of his motion to suppress, Hardy
elected to accept the Commonwealth’s plea offer, and entered a
conditional plea of guilty to trafficking in a controlled
substance in the first degree, while preserving his right to
appeal the denial of his motion to suppress.
In exchange for
Hardy’s conditional guilty plea, the Commonwealth agreed to
recommend that Hardy be sentenced to five years’ imprisonment.
4
Officer Williams testified that it took approximately 10-20 minutes, or
“possibly longer” to complete the background check on Hardy’s driver’s
license. Hardy testified that approximately 20-30 minutes elapsed between
the time he was asked to surrender his driver’s license and the time he was
first informed there was an outstanding warrant for his arrest.
5
Hardy’s arrest warrant was a bench warrant for failure to appear.
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On February 24, 2003, the trial court followed the
Commonwealth’s recommendation and sentenced Hardy to five years’
imprisonment.
This appeal followed.
Hardy raises two claims of error in support of his
argument that the trial court erred by denying his motion to
suppress.
First, Hardy claims that he was unlawfully “seized”
when the officers refused to allow him to leave the scene while
waiting for dispatch to complete a background check of his
driver’s license.
According to Hardy, since the officers did
not have reasonable, articulable suspicion that he was engaged
in criminal activity, the officers unlawfully “seized” him by
denying his requests to leave the scene.6
Hence, Hardy claims
that this seizure “tainted” his arrest, i.e., if not for the
alleged unlawful detainment, the officers would not have learned
that Hardy had an outstanding warrant for his arrest, and if not
for his arrest pursuant to that warrant, the crack cocaine on
his person would not have been discovered.
Thus, Hardy argues
that the drug evidence should have been suppressed.
We find
this argument to be unpersuasive.
The Supreme Court of the United States has rejected a
“but for” test when determining whether an “intervening
circumstance” is sufficient to dissipate the taint caused by
6
See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)(holding
that a police officer is justified in making a brief investigatory stop if he
has reasonable, articulable suspicion that criminal activity is afoot).
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prior unlawful conduct on the part of the police.7
In Baltimore
v. Commonwealth,8 this Court noted that “a valid arrest may
constitute an intervening event that cures the taint of an
illegal detention sufficient to rebut the application of the
exclusionary rule to evidence recovered in a search incident to
an arrest.”
In Green, the United States Court of Appeals for
the Seventh Circuit held that although the initial stop of the
vehicle in question was unlawful, the officers’ subsequent
determination that an occupant of the vehicle had an outstanding
arrest warrant constituted an “intervening circumstance” which
dissipated the taint caused by the unlawful stop:
The intervening circumstances of this case,
because they are not outweighed by flagrant
official misconduct, dissipate any taint
caused by the illegal stop of the Greens.
Specifically, after stopping the Green
brothers, the officers discovered there was
a warrant outstanding for Avery.
Accordingly, the officers arrested Avery.
With the right to arrest Avery came the
right to conduct a search incident to an
arrest. This included the right to search
the automobile’s passenger’s compartment to
ensure there were no weapons and to protect
the officers [citations omitted].
7
See United States v. Ceccolini, 435 U.S. 268, 276, 98 S.Ct. 1054, 1060, 55
L.Ed.2d 268 (1978)(stating that “[e]ven in situations where the exclusionary
rule is plainly applicable, we have declined to adopt a ‘per se or “but for”
rule’ that would make inadmissible any evidence, whether tangible or livewitness testimony, which somehow came to light through a chain of causation
that began with an illegal arrest”).
8
Ky.App., 119 S.W.3d 532, 541 n.37 (2003)(citing United States v. Green, 111
F.3d 515 (7th Cir. 1997)).
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It would be startling to suggest that
because the police illegally stopped an
automobile, they cannot arrest an occupant
who is found to be wanted on a warrant--in a
sense requiring an official call of “Olly,
Olly, Oxen Free.” Because the arrest is
lawful, a search incident to the arrest is
also lawful. The lawful arrest of Avery
constituted an intervening circumstance
sufficient to dissipate any taint caused by
the illegal automobile stop.9
Thus, assuming that Hardy had been unlawfully detained
while the officers conducted a background check of his driver’s
license, we hold that the discovery of the outstanding warrant
for his arrest was sufficient to dissipate any taint caused by
the alleged unlawful detainment.
First, it is undisputed that
the officers were justified in initially stopping the vehicle.
In addition, Officer Williams testified that the delay in
completing the background check was due to a heavy volume of
calls that dispatch was receiving from other police officers.
Therefore, considering the fact that Hardy was arrested pursuant
to a valid outstanding warrant,10 this “intervening circumstance”
outweighed any possible misconduct on the part of the officers
in detaining Hardy while waiting for the results of his
background check.
Therefore, since Hardy’s arrest was lawful,
the search of his person incident to that arrest was also
9
Green, 111 F.3d at 521. In Green, the Court determined that the initial
Terry stop of the vehicle in question was not justified.
10
The validity of Hardy’s arrest warrant has not been challenged on appeal.
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lawful.
Accordingly, the trial court did not err by denying
Hardy’s motion to suppress.
Next, Hardy, who is black, argues that the crack
cocaine should have been suppressed on grounds that he was a
victim of racial profiling.
Hardy claims that the officers
violated the Lexington Police Department’s policy against racial
profiling,11 and that the evidence seized from his person should
have been suppressed.
We disagree.
We first note that Hardy has failed to point to any
evidence whatsoever in support of his bald assertion that he was
a victim of racial profiling.
Simply stated, there is nothing
in the record to support Hardy’s allegation that he was profiled
because of his race.12
Moreover, even if it could be said that
Hardy was a victim of racial profiling, Hardy has failed to cite
to any authority stating that a violation of a racial profiling
policy requires the suppression of incriminating evidence.
“[T]he so-called ‘exclusionary rule’ applies only to evidence
obtained in violation of a constitutional right,”13 not to
11
See Lexington Fayette Urban County Division of Police, General Order 00-2A,
Profiling Policy. See also KRS 15A.195 (prohibiting racial profiling and
urging all law enforcement agencies to adopt formal, written policies
prohibiting the practice of racial profiling).
12
On the contrary, Officer Williams, who is also black, testified that he
followed the same police procedures with respect to traffic stops regardless
of the individual’s race.
13
Brock v. Commonwealth, Ky., 947 S.W.2d 24, 29 (1997).
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violations of internal police procedures.14
Accordingly, the
trial court did not err by denying Hardy’s motion to suppress.
Based on the foregoing, the judgment of the Fayette
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
John Rampulla
Lexington, Kentucky
Albert B. Chandler III
Attorney General
Tami Allen Stetler
Assistant Attorney General
Frankfort, Kentucky
14
According to General Order 00-2A, supra, police officers who violate the
Lexington Police Department’s profiling policy are subject to internal
disciplinary proceedings.
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