MARLENE JETT v. COMMONWEALTH OF KENTUCKY
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RENDERED:
OCTOBER 7, 2005; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-001470-MR
MARLENE JETT
APPELLANT
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE PATRICIA M. SUMME, JUDGE
ACTION NO. 04-CR-00072
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
HENRY, TACKETT, AND VANMETER, JUDGES.
VANMETER, JUDGE:
This is an appeal from the Kenton Circuit
Court’s judgment and order sentencing appellant, Marlene Jett,
to three years’ pretrial diversion, ninety days conditional
discharge for two years, and a $250 fine pursuant to Jett’s
conditional guilty plea to charges of possession of a controlled
substance in the first and third degrees.
On appeal, Jett
contends that the circuit court erred in not granting her motion
to suppress.
For the following reasons, we affirm.
Jett was indicted on February 13, 2004, of
first-degree and third-degree possession of a controlled
substance.
After entering a not guilty plea, Jett moved to
suppress evidence obtained from her person and car as fruits of
an unlawful search and seizure.
During a suppression hearing, Covington City police
officer Christopher Gangwish testified that he routinely
patrolled the alley behind Funny Farm Bar in Covington because
of complaints of narcotics use and trafficking there, but that
he had not received any complaints while patrolling the area on
the evening of August 29, 2003.
During one pass down the alley,
Gangwish noticed a group of six to eight people standing outside
of the bar but did not observe any illegal activity.
Nevertheless, Gangwish decided to circle around the block and
pass through the alley a second time.
By that time the group
was gone but Gangwish saw Jett and a companion walk to and enter
her car.
Gangwish testified that he then drove past Jett’s car,
got out of his police cruiser without turning on the lights or
siren, approached Jett’s car, and smelled burnt marijuana upon
reaching the open driver’s side window.
Gangwish asked Jett
whether she had any drugs or other contraband, and he asked her
to get out of her car.
He testified that when Jett got out of
her car, he requested and was given her consent to search her
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person.
Jett, on the other hand, denied giving consent to
Gangwish’s search request, and she testified instead that he
patted her down as soon as she stepped out of her car.
In any
event, Gangwish placed Jett under arrest after finding on her
person a tablet of what was later determined to be generic
Xanax.
Gangwish testified that upon searching Jett’s car
pursuant to her further consent, 1 he found a silver pipe with
cocaine residue as well as a cigarette pack containing a small
marijuana cigarette.
The circuit court overruled Jett’s motion to suppress,
finding that Gangwish did not err in his initial act of
approaching Jett’s car and that he did not “stop” Jett in doing
so.
The court further found that when Gangwish smelled burnt
marijuana, it is reasonable to believe that he asked for Jett’s
consent to search her person.
Ultimately, the circuit court
accepted Gangwish’s testimony that Jett consented to the search
of both her person and her car. 2
On June 16, 2004, Jett entered a conditional guilty
plea, reserving the right to appeal the circuit court’s denial
of her motion to suppress.
1
Jett was sentenced to three years’
Jett denied giving consent to the search of her car.
2
Despite Jett’s contention in her reply brief, RCr 9.78 does not require the
circuit court to make written findings of fact and conclusions of law.
Moreover, while the video of the suppression hearing stops while the circuit
judge is talking, the video captures the circuit court’s findings of fact and
conclusions of law and is adequate for our review. In any event, this issue
was not raised in Jett’s initial brief, so it is not properly preserved for
our review. Clark v. Clark, 601 S.W.2d 614, 616 (Ky.App. 1980).
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pretrial diversion as well as ninety days conditional discharge
for two years, and a $250 fine.
This appeal followed.
Jett proffers on appeal that the circuit court erred
in denying her suppression motion, because when Gangwish
initially approached her car, he “stopped” her without any
articulable suspicion.
Thus, Jett argues, the ensuing search
was illegal and any fruits must be suppressed.
We disagree.
Our role on appeal is set forth as follows:
An appellate court's standard of review of
the trial court's decision on a motion to
suppress requires that we first determine
whether the trial court's findings of fact
are supported by substantial evidence. If
they are, then they are conclusive. Based
on those findings of fact, we must then
conduct a de novo review of the trial
court's application of the law to those
facts to determine whether its decision is
correct as a matter of law. 3
The only disputed testimony at the suppression hearing regarded
whether Jett consented to the search of her person and car.
As
stated by our supreme court,
[w]hether a consent to search was
voluntarily given is a question of fact to
be determined by a preponderance of the
evidence from the totality of all the
circumstances. The issue is a preliminary
question to be decided by the trial judge,
KRE 104(a), whose factual findings are
3
Commonwealth v. Neal, 84 S.W.3d 920, 923 (Ky.App. 2002) (internal citations
omitted).
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conclusive if supported by substantial
evidence. 4
As Gangwish’s testimony substantially supported the circuit
court’s findings that Jett consented to both searches, those
findings are conclusive.
With regard to the law of this case, Jett’s brief
focuses almost entirely on whether Gangwish’s initial act of
exiting his cruiser and walking to her car was supported by a
reasonable, articulable suspicion.
However, since not all
encounters between police and citizens constitute seizures, 5 the
correct analysis is first to determine whether Gangwish’s
initial act may be characterized as a seizure for Fourth
Amendment purposes. 6
More specifically, “a person is ‘seized’
only when, by means of physical force or a show of authority,
his freedom of movement is restrained.” 7
Here, as there was no
application of physical force when Gangwish initially approached
Jett’s car, our analysis turns to whether Gangwish submitted a
show of authority which restrained Jett’s freedom of movement.
4
Talbott v. Commonwealth, 968 S.W.2d 76, 82 (Ky. 1998) (internal citations
omitted).
5
Terry v. Ohio, 392 U.S. 1, 19 n.16, 88 S.Ct. 1868, 1879 n.16, 20 L.Ed.2d 889
(1968).
6
Relford v. Lexington-Fayette Urban County Gov’t, 390 F.3d 452, 457 (6th Cir.
2004).
7
United States v. Mendenhall, 446 U.S. 544, 553, 100 S.Ct. 1870, 1877, 64
L.Ed.2d 497 (1980).
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In a show of authority case, a person is seized “only
if, in view of all of the circumstances surrounding the
incident, a reasonable person would have believed that he was
not free to leave.” 8
The Court in United States v. Mendenhall 9
set forth some indicators of when a seizure might occur,
including “the threatening presence of several officers, the
display of a weapon by an officer, some physical touching of the
person of the citizen, or the use of language or tone of voice
indicating that compliance with the officer’s request might be
compelled.”
With regard to Gangwish’s initial approach of Jett
in the matter now before us, there was no showing of these
factors or any other indicia of Jett having been seized.
Although it is true that the “[t]emporary detention of
individuals during the stop of an automobile by the police, even
if only for a brief period and for a limited purpose,
constitutes a ‘seizure’ of ‘persons’ within the meaning of” the
Fourth Amendment, 10 in the matter now before us Gangwish did not
stop Jett’s car.
Rather, he merely parked his police cruiser
near Jett’s already-parked car and approached it, without
8
Id., 446 U.S. at 554, 100 S.Ct. at 1877.
9
Id.
10
Whren v. U.S., 517 U.S. 806, 809-10, 116 S.Ct. 1769, 1772, 135 L.Ed.2d 89
(1996).
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turning on the cruiser’s sirens or lights. 11
Clearly, “law
enforcement officers do not violate the Fourth Amendment by
merely approaching an individual on the street or in another
public place[.]” 12
Further, “[e]ven when law enforcement officers have no
basis for suspecting a particular individual, they may pose
questions, ask for identification, and request consent to search
luggage--provided they do not induce cooperation by coercive
means.” 13
In the matter now before us, Gangwish lawfully
approached Jett’s car and asked for her consent to search her
person.
As discussed above, the circuit court believed that
Jett voluntarily consented to Gangwish’s request to search her
person and car.
Gangwish was not required to inform Jett of her
right to refuse his request to search her person. 14
Even if Gangwish’s act of asking Jett to step out of
her car may be characterized as a seizure, Gangwish gained a
reasonable, articulable suspicion of the possibility of criminal
activity when he lawfully approached Jett’s car and smelled
11
Contrary to Jett’s suggestion on appeal, the evidence does not show that
Gangwish’s cruiser may have blocked in Jett’s car. Rather, Gangwish
testified that he parked south of Jett’s north-facing car.
12
Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229
(1983).
13
U.S. v. Drayton, 536 U.S. 194, 201, 122 S.Ct. 2105, 2110, 153 L.Ed.2d 242
(2002).
14
Id., 536 U.S. at 206, 122 S.Ct. at 2113.
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burnt marijuana.
A police officer may “stop and briefly detain
a person for investigative purposes if the officer has a
reasonable suspicion supported by articulable facts that
criminal activity ‘may be afoot[.]’” 15
During such a stop, the
police officer may “make ‘reasonable inquiries’ aimed at
confirming or dispelling his suspicions.” 16
In the matter now
before us, when Gangwish lawfully approached Jett’s car and
smelled burnt marijuana, he could question Jett or ask for her
consent to search her person.
Once again, the evidence was
sufficient to support the circuit court’s conclusion that Jett
voluntarily consented to Gangwish’s request to search her person
and car.
The Kenton Circuit Court’s judgment is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Shelly R. Fears
Department of Public Advocacy
Frankfort, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
Gregory C. Fuchs
Assistant Attorney General
Frankfort, Kentucky
15
U.S. v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989).
16
Minnesota v. Dickerson, 508 U.S. 366, 373, 113 S.Ct. 2130, 2135, 124
L.Ed.2d 334 (1993) (internal citation omitted).
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