CEDRIC LAMONT WALKER v. COMMONWEALTH OF KENTUCKY
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RENDERED: MAY 21, 2004; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-000938-MR
CEDRIC LAMONT WALKER
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE THOMAS L. CLARK, JUDGE
ACTION NO. 02-CR-00199
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JOHNSON, TAYLOR AND VANMETER, JUDGES.
JOHNSON, JUDGE:
Cedric Lamont Walker has appealed from a final
judgment and sentence of the Fayette Circuit Court entered on
April 3, 2003, which, following Walker’s conditional pleas of
guilty to trafficking in a controlled substance in the first
degree,1 and as being a persistent felony offender in the first
degree (PFO I),2 sentenced Walker to ten years’ imprisonment in
1
Kentucky Revised Statutes (KRS) 218A.1412.
2
KRS 532.080(3).
accordance with the Commonwealth’s recommendations.
Having
concluded that the trial court did not err by denying Walker’s
motion to suppress evidence against him, we affirm.
On February 19, 2002, a Fayette County grand jury
indicted Walker on one count of trafficking in a controlled
substance in the first degree, one count of endangering the
welfare of a minor,3 one count of possession of marijuana,4 and
for being a PFO I.
On February 27, 2002, Walker appeared in
Fayette Circuit Court and entered pleas of not guilty to all of
the charges in his indictment.
Approximately one month later, Walker filed a motion
to suppress all of the evidence that had been obtained against
him.
Walker argued that the traffic stop which led to his
arrest had been initiated “in violation of the search and
seizure provisions of the Kentucky and United States
Constitutions.”
On April 30, 2002, after a suppression hearing
had been held, the trial court entered an order denying Walker’s
motion to suppress, finding that the initial traffic stop was
not unconstitutional.
On June 7, 2002, counsel for Walker made
an oral motion to suppress the evidence against him.
suppression hearing was held on August 27, 2002.
the record of that hearing reveals the following.
3
KRS 530.060.
4
KRS 218A.1422.
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A second
Our review of
In late November 2001, officers from the Lexington
Police Department were attempting to execute a search warrant on
a house and a vehicle.
When the officers approached the
vehicle, which was parked near the house, and asked two men to
step out of the vehicle, the driver started the car and quickly
sped out of the driveway.
The officers took down the license
plate number of the vehicle and its general description, but
were unable to locate the vehicle on that particular evening.
On December 21, 2001, Detective Edward Hart and
Sergeant Shane Ensminger of the Lexington Police Department
stopped a vehicle matching the description of the car that had
been involved in the prior fleeing incident.
Demetric Thomas
was the driver of this vehicle, Walker was riding in the
passenger seat, and Walker’s son, who was eight-years-old at the
time, occupied the back seat of the car.
The officers soon
determined that Thomas was driving on a suspended license and
that he had two outstanding arrest warrants.
As a result,
Thomas was placed under arrest and was eventually transported
from the scene.
After asking Walker and his son to exit the vehicle,
Det. Hart and Sgt. Ensminger began a search of the automobile’s
passenger compartment incident to Thomas’s arrest.
Both Det.
Hart and Sgt. Ensminger testified that they discovered a
marijuana roach in the ashtray, near the front seat of the car.
-3-
Both officers also testified that as they were searching the
passenger compartment of the vehicle, they observed Walker
positioning his son in front of Walker’s person, in what
appeared to be an attempt to shield a portion of Walker’s body
from the officers’ line of sight.
Det. Hart and Sgt. Ensminger further stated that they
observed Walker placing a piece of wadded up tissue paper into
his son’s coat pocket.
The officers testified that Walker’s son
tried to prevent Walker from placing the tissue paper into his
coat pocket, and that both Walker and his son were acting
nervously.
Upon searching the coat pocket of Walker’s son, the
officers seized the tissue paper, which contained approximately
1.4 grams of crack cocaine.
arrest.
Walker was then placed under
A further search of Walker’s person revealed a small
amount of marijuana and $253.00 in cash.
After hearing the evidence and considering the
memoranda submitted by both parties, the trial court, on
November 5, 2002, entered an order denying Walker’s motion to
suppress.
Following the denial of his motion to suppress,
Walker elected to accept the Commonwealth’s plea offer, and
entered conditional pleas of guilty to one count of trafficking
in a controlled substance in the first degree and to being a
PFO I, while preserving his right to appeal the denial of his
motion to suppress.
-4-
In exchange for Walker’s conditional guilty pleas, the
Commonwealth agreed to recommend that the endangering the
welfare of a minor charge, and the possession of marijuana
charge be dismissed.
In addition, the Commonwealth agreed to
recommend that Walker be sentenced to five years’ imprisonment
on the trafficking in a controlled substance in the first degree
conviction, which would then be enhanced to ten years’
imprisonment pursuant to his PFO I conviction.
On April 3,
2003, the trial court followed the Commonwealth’s recommendation
and sentenced Walker to ten years’ imprisonment.
This appeal
followed.
Walker’s sole argument on appeal is that the search of
his son’s person was unconstitutional, and that the trial court
therefore erred by denying his motion to suppress.5
Walker
claims to have standing to challenge the constitutionality of
the search of his son’s person, and he further claims that the
arresting officers did not have probable cause to search his
son’s person.
We find Walker’s argument to be unpersuasive.
Assuming, arguendo, that Walker has standing to
challenge the constitutionality of the search in question, we
hold that Det. Hart and Sgt. Ensminger had probable cause to
conduct a full search of Walker’s son’s person.
A full,
warrantless search of an individual’s person must be supported
5
Walker has not challenged the trial court’s determination that the initial
traffic stop was not unconstitutional.
-5-
by probable cause.6
The test for probable cause is based on a
“totality of the circumstances” approach,7 which simply asks
whether “there is a fair probability that contraband or evidence
of a crime will be found in a particular place.”8
In Texas v.
Brown,9 the United States Supreme Court discussed the basic
principles and “flexible” nature of the probable cause standard:
As the Court frequently has remarked,
probable cause is a flexible, common-sense
standard. It merely requires that the facts
available to the officer would “warrant a
man of reasonable caution in the belief,”
that certain items may be contraband or
stolen property or useful as evidence of a
crime; it does not demand any showing that
such a belief be correct or more likely true
than false. A “practical, nontechnical”
probability that incriminating evidence is
involved is all that is required. Moreover,
our observation in United States v. Cortez,
449 U.S. 411, 418, 101 S.Ct. 690, 695, 66
L.Ed.2d 621 (1981), regarding
“particularized suspicion,” is equally
6
See Ybarra v. Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 342, 62 L.Ed.2d 238
(1979)(noting that even though the police had a valid warrant to search the
bar, since the warrant did not authorize a search of Ybarra’s person, the
police needed probable cause “particularized with respect to Ybarra” in order
to conduct a full search of his person).
7
Illinois v. Gates, 462 U.S. 213, 230, 103 S.Ct. 2317, 2328, 76 L.Ed.2d 527
(1983). Although the Gates decision discusses probable cause in the context
of search warrants issued by judges and/or magistrates, this Court has
recognized that the “totality of the circumstances” test also applies when
police officers conduct warrantless searches in the field. See Whisman v.
Commonwealth, Ky.App., 667 S.W.2d 394, 397 (1984)(holding that “[s]urely if a
judge may use the totality of circumstances approach to find probable cause
in a search warrant, the police should be able to use the same approach in
warrantless searches”).
8
Gates, supra at 238.
9
460 U.S. 730, 742, 103 S.Ct. 1535, 1543, 75 L.Ed.2d 502 (1983). See also
Dunn v. Commonwealth, Ky.App., 689 S.W.2d 23, 28 (1985)(quoting the above
discussion from Brown).
-6-
applicable to the probable cause requirement
[citations omitted]:
“The process does not deal
with hard certainties, but with
probabilities. Long before the
law of probabilities was
articulated as such, practical
people formulated certain commonsense conclusions about human
behavior; jurors as factfinders
are permitted to do the same--and
so are law enforcement officers.
Finally, the evidence thus
collected must be seen and weighed
not in terms of library analysis
by scholars, but as understood by
those versed in the field of law
enforcement.”
Under the facts of the case sub judice, Det. Hart and Sgt.
Ensminger clearly had probable cause to conduct a search of
Walker’s son’s person.
The relevant facts are not in dispute.
After Thomas
was arrested, Det. Hart and Sgt. Ensminger searched the
passenger compartment of the vehicle and discovered marijuana in
the ashtray near the front seat.
Both officers observed Walker
and his son acting nervously while standing outside of the
vehicle.
Both Det. Hart and Sgt. Ensminger also observed Walker
positioning his son in front of him, in what the officers
described as an attempt to shield Walker’s person from the
officers’ line of sight.
Both officers observed Walker placing
the tissue paper in his son’s coat pocket, which was apparently
against his son’s wishes.
Finally, Det. Hart testified that
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based on his experience as a narcotics detective, suspects will
often times place drugs on a child’s person in an attempt to
avoid detection.
Hence, based on the “totality of the circumstances,”
Det. Hart and Sgt. Ensminger were justified in their belief that
there was “a fair probability that contraband or evidence of a
crime [would] be found in” the coat pocket of Walker’s son.
Therefore, the officers had probable cause to conduct a full
search of Walker’s son’s person.
Accordingly, the trial court
did not err by denying Walker’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:
Alicia A. Sneed
Lexington, Kentucky
Albert B. Chandler III
Attorney General
John R. Tarter
Assistant Attorney General
Frankfort, Kentucky
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