FRANCISCO GARCIA v. COMMONWEALTH OF KENTUCKY AND HEINRICH LETKEMAN v. COMMONWEALTH OF KENTUCKY
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RENDERED:
FEBRUARY 24, 2006; 2:00 P.M.
TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-002271-MR
FRANCISCO GARCIA
v.
APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE WILLIAM L. GRAHAM, JUDGE
ACTION NO. 04-CR-00045-001
COMMONWEALTH OF KENTUCKY
APPELLEE
AND
NO. 2004-CA-002283-MR
HEINRICH LETKEMAN
v.
APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE WILLIAM L. GRAHAM, JUDGE
ACTION NO. 04-CR-00045-002
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
(1)REVERSING AND REMANDING APPEAL NO. 2004-CA-002271-MR
(2) AFFIRMING APPEAL NO. 2004-CA-002283-MR
** ** ** ** **
BEFORE:
MINTON, SCHRODER, AND TAYLOR, JUDGES.
TAYLOR, JUDGE:
Francisco Garcia brings Appeal No. 2004-CA-
002271-MR from an October 4, 2004, judgment of the Franklin
Circuit Court entered upon a conditional plea of guilty to
trafficking in marijuana.
Heinrich Letkeman brings Appeal No.
2004-CA-002283-MR from an October 4, 2004, judgment of the
Franklin Circuit Court entered upon a conditional plea of guilty
to trafficking in marijuana.
2004-CA-002271-MR.
We reverse and remand Appeal No.
We affirm Appeal No. 2004-CA-002283-MR.
On March 6, 2004, Garcia and his passenger, Letkeman,
were traveling upon Interstate 64 in a 1993 Dodge Caravan.
Kentucky State Trooper Jeremy Devasher approached the vehicle
and noticed the vehicle quickly changed to the right lane.
The
trooper testified that he pulled his cruiser alongside the
vehicle.
Trooper Devasher thought that the driver, Garcia,
looked nervous because he avoided making eye contact with the
trooper and kept a “death grip” on the steering wheel of the
vehicle.
The trooper then observed cracks in the windshield of
Garcia’s vehicle and thought the cracks impaired Garcia’s
forward vision.
At this point, Trooper Devasher stopped the
vehicle for a traffic violation.
Trooper Devasher testified that he asked Garcia a
series of questions in both English and Spanish; consequently,
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the trooper believed Garcia spoke English very well.
Trooper
Devasher testified that Garcia and Letkeman’s stories concerning
their travel plans fell apart upon further questioning.
The
trooper also noted that neither had any luggage for a purported
trip to Virginia.
The trooper issued a citation for a cracked windshield
pursuant to Kentucky Revised Statutes (KRS) 189.110.
After
issuing the citation, the trooper informed Garcia the traffic
stop was complete and he was free to leave.
Trooper Devasher
then asked Garcia for permission to search the vehicle.
The
trooper testified that Garcia nodded affirmatively and pointed
to the vehicle.
A search was commenced, and ten bricks of
marijuana were seized from the vehicle.
Garcia and Letkeman were indicted by the Franklin
County Grand Jury upon the offense of trafficking in marijuana
over five pounds (KRS 218A.1421(4)).
Thereafter, Garcia and
Letkeman filed motions to suppress the evidence seized
(marijuana) from the search of the vehicle.
After an
evidentiary hearing, the circuit court denied both motions to
suppress.
Garcia and Letkeman entered conditional pleas of
guilty to the offenses of trafficking in marijuana.
Pursuant to
the conditional pleas, Garcia and Letkeman preserved the issue
of whether the circuit court properly denied their motions to
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suppress.
See Ky. R. Crim. P. 8.09.
On October 4, 2004, Garcia
and Letkeman were each sentenced to seven years’ imprisonment
with one year to serve and the remaining sentence probated for a
period of five years.
These appeals follow.
Appeal No. 2004-CA-002271-MR
Garcia contends the circuit court erroneously denied
the motion to suppress evidence seized from his vehicle.
Specifically, Garcia contends the stop of his vehicle based upon
the cracked windshield was improper.
Garcia argues that the
cracked windshield was not a violation of KRS 189.110.
Thus, he
contends the initial stop of the vehicle was without reasonable
suspicion of criminal activity and the circuit court erred by
denying his motion to suppress evidence.
Our standard of review of a suppression determination
is succinctly set forth in Stewart v. Commonwealth, 44 S.W.3d
376, 380 (Ky.App. 2000)(footnote omitted):
First, the factual findings of the court are
conclusive if they are supported by
substantial evidence. The second prong
involves a de novo review to determine
whether the court's decision is correct as a
matter of law.
We observe that resolution of this appeal involves issues of
both fact and law.
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It is well-established that the stopping of a vehicle
and detaining of its occupants amounts to a seizure under the
Fourth Amendment of the United States Constitution and under
Section 10 of the Kentucky Constitution.
It is equally
axiomatic that a police officer may stop a motor vehicle if that
officer possesses reasonable suspicion that criminal activity
has occurred or is imminent.
(1979).
Delaware v. Prouse, 440 U.S. 648
The occurrence of a traffic violation is recognized as
sufficient justification to warrant a stop of a motor vehicle.
The initial stop of Garcia’s vehicle was originally
premised upon Trooper Devasher’s belief that the cracked
windshield constituted a violation of KRS 189.110.
This statute
provides as follows:
(1)
(2)
A windshield in a fixed and upright
position, that is equipped with safety
glazing as required by federal safetyglazing material standards, is required
on every motor vehicle which is
operated on the public highways, roads,
and streets, except on a motorcycle or
implement of husbandry.
A person shall not operate a motor
vehicle on a public highway, road, or
street with any sign, sunscreening
material, product, or covering attached
to, or located in or upon the
windshield, except the following:
(a) A certificate or other paper
required to be displayed by law;
(b) Sunscreening material along a
strip at the top of the
windshield, if the material is
transparent and does not encroach
upon the driver's direct forward
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(3)
(4)
viewing area as defined in Federal
Motor Vehicle Safety Standards No.
205 as the AS/1 portion of the
windshield.
A person shall not operate a motor
vehicle required to be registered in
the Commonwealth, on a public highway,
road, or street on which vehicle the
side wings and side windows on either
side forward of or adjacent to the
operator's seat are composed of,
covered by, or treated with any
sunscreening material or other product
or covering which has the effect of
making the window nontransparent or
which would alter the window's color,
increase its reflectivity, or reduce
its light transmittance, except as
expressly permitted by this section. A
sunscreening material may be applied to
the windows if, when tested on oneeighth (1/8) inch clear glass, the
material has a total solar reflectance
of visible light of not more than
twenty-five percent (25%) as measured
on the nonfilm side and a light
transmittance of at least thirty-five
percent (35%) in the visible light
range.
A person shall not operate a motor
vehicle required to be registered in
the Commonwealth, on a public highway,
road, or street on which vehicle any
windows behind the driver are composed
of, covered by, or treated with any
sunscreening material, or other product
or material which has the effect of
making the window nontransparent or
which would alter the window's color,
increase its reflectivity, or reduce
its light transmittance, except as
specified below:
(a) Sunscreen material consisting of
film which, when tested on oneeighth (1/8) inch clear glass, has
a total solar reflectance of
visible light of not more than
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(5)
(6)
thirty-five percent (35%) as
measured on the nonfilm side and a
light transmittance of at least
eighteen percent (18%) in the
visible light range; however,
sunscreen material which, when
tested on one-eighth (1/8) inch
clear glass, has a total solar
reflectance of visible light of
not more than thirty-five percent
(35%) as measured on the nonfilm
side and a light transmittance of
at least eight percent (8%) in the
visible light range may be used on
multipurpose passenger vehicles;
(b) Perforated sunscreening material
which, when tested in conjunction
with existing glazing or film
material, has a total reflectance
of visible light of not more than
thirty-five percent (35%) and a
light transmittance of no less
than thirty percent (30%). For
those products or materials having
different levels of reflectance,
the highest reflectance from the
product or material will be
measured by dividing the area into
sixteen (16) equal sections and
averaging the overall reflectance.
The measured reflectance of any of
those sections may not exceed
fifty percent (50%).
A person shall not operate a motor
vehicle required to be registered in
the Commonwealth, upon a public
highway, road, or street, on which
vehicle the rear window is composed of,
covered by, or treated with any
material which has the effect of making
the window nontransparent, unless the
vehicle is equipped with side mirrors
on both sides.
Each installer or seller of
sunscreening material shall provide a
pressure-sensitive, self-destructive,
nonremovable, vinyl-type film label to
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the purchaser stating that the material
complies with the provisions of KRS
189.010(20) to (23) and subsections (1)
to (5) of this section. Each installer
shall affix the required label to the
inside left door jamb of the motor
vehicle. In addition, the label shall
state the trade name of the material
and the installer's or seller's
business name. Labeling is not
required for factory glazing which
complies with Federal Motor Vehicle
Safety Standard No. 205.
(7) Every percentage measurement required
by subsections (3) and (4) of this
section is subject to a tolerance of
plus or minus three percent (3%).
(8) A person shall not install window
tinting materials on a vehicle that
fails to meet the minimum standards for
light transmission pursuant to
subsections (3) and (4) of this
section. Tinted material that fails to
meet the minimum standards for light
transmission pursuant to subsections
(3) and (4) of this section shall be
removed immediately.
(9) A person who applies sunscreening
materials in violation of this section
shall be guilty upon conviction of a
Class B misdemeanor.
(10) Nothing in this section shall prevent
the display of a representation of the
American flag on the rear window of any
motor vehicle, including any vehicle
owned by a local or state government,
provided that the representation does
not exceed a size of five (5) inches by
eight (8) inches and is placed in a
lower corner of the rear window.
(11) The windshield on every motor vehicle
shall be equipped with a device for
cleaning rain, snow or other moisture
from the windshield. The device shall
be so constructed as to be controlled
by the operator of the vehicle.
(12) Nothing in this section shall be
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construed to prevent the use of any
window which is composed of, covered
by, or treated with any material or
component in a manner approved by
federal statute or regulation if the
window was a component part of a
vehicle at the time of the vehicle
manufacture, or the replacement of any
window by a covering which meets these
requirements.
KRS 189.110.
A reading of KRS 189.110 reveals that it provides
requirements for window sunscreening and tinting.
It also sets
forth mandatory safety glazing of glass and windshield wiper
requirements.
It, however, does not set forth any express or
implied proscriptions against cracks in a vehicle’s windshield.
Based upon the plain language of KRS 189.110, a cracked
windshield simply does not constitute a violation of its
provisions.
As a cracked windshield is not a violation of KRS
189.110, we believe the Commonwealth cannot justify the stop of
Garcia’s vehicle upon same.
Alternatively, the Commonwealth argues the traffic
stop was lawful because the cracked windshield was a violation
of KRS 189.020, which states as follows:
Every vehicle when on a highway shall be so
equipped as to make a minimum of noise,
smoke or other nuisance, to protect the
rights of other traffic, and to promote the
public safety.
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The interpretation of a statute is a matter of law for
the court.
City of Worthington Hills v. Worthington Fire Prot.
Dist., 140 S.W.3d 584 (Ky.App. 2004).
When interpreting a
statute, a word is to be afforded its ordinary meaning unless it
has acquired a technical meaning.
Id.
Upon examination of KRS
189.020, we must initially decide whether a cracked windshield
constitutes an “other nuisance” within its meaning.
When
interpreting the term “other nuisance” in KRS 189.020, we are
guided by the rule of statutory interpretation called ejusdem
generis:
[W]here, in a statute, general words follow
or precede a designation of particular
subjects or classes of persons, the meaning
of the general words ordinarily will be
presumed to be restricted by the particular
designation, and to include only things or
persons of the same kind, class, or nature
as those specifically enumerated, unless
there is a clear manifestation of a contrary
purpose.
Steinfeld v. Jefferson County Fiscal Court, 312 Ky. 614, 229
S.W.2d 319, 320 (1950)(citations omitted).
Applying the rule of
ejusdem generis to KRS 189.020, the term “other nuisance” is
preceded by the particular designation of “noise” and “smoke.”
To effectuate legislative intent, we believe “other nuisance”
should be interpreted as including only those nuisances of a
similar kind as noise and smoke.
Accordingly, we do not
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interpret the term “other nuisance” in KRS 189.020 as
encompassing a cracked windshield.
KRS 189.020 also requires a vehicle to be equipped so
as “to protect the rights of other traffic, and to promote the
public safety.”
A cracked windshield that unreasonably impairs
the vision of a driver certainly increases the risk and
likelihood of an accident.
The increased risk would undoubtedly
present a significant threat to public safety and would
adversely affect the rights of other traffic.
Therefore, we
hold that a cracked windshield must unreasonably impair the
vision of a vehicle’s driver to constitute a violation of KRS
189.020.
We emphasize that a cracked windshield is a violation
of KRS 189.020 only if it is of sufficient severity to
unreasonably reduce the driver’s visibility.
In the case at hand, Trooper Devasher testified that
he believed the cracked windshield impaired Garcia’s forward
vision.
The circuit court concluded:
Courts hold that stopping a vehicle for a
traffic law violation is constitutionally
permissible under the Terry test. Whren v.
United States, 517 U.S. 806 (1996);
Commonwealth v. Fox, Ky., 48 S.W.3d 24
(2001). That is the situation here. Before
stopping the Defendants’ vehicle, the
officer observed two cracks in the vehicle’s
windshield. The officer believed the cracks
impaired the driver’s vision and violated
KRS 189.110. The officer subsequently
stopped the vehicle and issued Defendant
Garcia a citation for this violation. The
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vehicle stop, therefore, did not contravene
the Constitution.
In the record, there exists a photograph of Garcia’s vehicle,
which provides a full view of the windshield.
Upon examination
of the photograph, the cracks do not appear to be of sufficient
severity to unreasonably impair Garcia’s forward vision.
We
observe that mere hairline cracks of a vehicle’s windshield are
not typically of sufficient severity to constitute a violation
of KRS 189.020.
Hence, we are of the opinion that the cracks in
the windshield of Garcia’s vehicle were not of sufficient
severity to constitute a violation of KRS 189.020.
We also reject the Commonwealth’s attempt to justify
the stop as an investigatory stop based upon reasonable
suspicion of criminal activity under Terry v. Ohio, 392 U.S. 1
(1968).
The Commonwealth particularly argues:
Furthermore, given the training and
experience of this officer, other indicia
were present that suggested criminal
activity might be afoot. The nervousness
displayed by the driver, the erratic lane
change upon observing that the officer was
near, the failure to make eye contact, the
“death grip” on the steering wheel, and the
foreign license plate (knowing that the drug
interdiction training indicated that illegal
drugs typically travel east to west) led to
further suspicion.
Commonwealth’s Brief at 12.
In Commonwealth v. Banks, 68 S.W.3d 347, 350-351 (Ky.
2001), the Supreme Court emphasized:
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[T]he test for a Terry stop . . . is not
whether an officer can conclude that an
individual is engaging in criminal activity,
but rather whether the officer can
articulate reasonable facts to suspect that
criminal activity may be afoot . . . . The
totality of the circumstances must be
evaluated to determine the probability of
criminal conduct, rather than the certainty.
In the case sub judice, the articulated facts set forth by
Trooper Devasher were Garcia’s nervousness, lane change, failure
to make eye contact, “death grip” on the steering wheel, and
out-of-state license plate.
We believe these facts describe a
substantial number of drivers on our highways and constitute an
innocuous mirage created in an attempt to retrospectively
justify the stop.
If we were to accept the Commonwealth’s
argument, ordinary law abiding citizens could be subjected to a
stop by police based upon routine driving habits.
Simply put,
such routine driving habits do not warrant a police stop under
Terry.
As such, we do not believe that Trooper Devasher
possessed the requisite reasonable suspicion to justify an
investigatory stop of Garcia’s vehicle.
In sum, we hold the initial stop of Garcia’s vehicle
was improper and the circuit court erred by denying Garcia’s
motion to suppress the marijuana subsequently seized from the
vehicle.
We view Garcia’s remaining contentions as moot.
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Appeal No. 2004-CA-002283-MR
Letkeman argues that the circuit court improperly
denied his motion to suppress the evidence seized from the
vehicle.1
Specifically, Letkeman contends that a cracked
windshield is not a violation of KRS 189.110; thus, the initial
stop was invalid.
Letkeman further maintains that Garcia did
not voluntarily consent to the search of the vehicle.
It has been recognized that the protection of the
Fourth Amendment against unreasonable search and seizure is a
personal right and cannot be vicariously asserted.
Rakas v.
Illinois, 439 U.S. 128 (1978)(citing Alderman v. United States,
394 U.S. 165 (1969)).
To have standing to contest a search and
seizure, an individual must possess a legitimate expectation of
privacy in the area searched or property seized.
U.S. 128.
Rakas, 439
The United States Supreme Court has developed a two-
step analysis for determining whether a legitimate expectation
of privacy exists:
[W]hether the individual has exhibited a
subjective expectation; and whether such
subjective expectation, viewed objectively,
is justifiable under the circumstances.
United States v. Thornley, 707 F.2d 622, 624 (1st Cir. 1983)
(citing Smith v. Maryland, 442 U.S. 735 (1979)).
1
After submitting the appellate brief, counsel for Heinrich Letkeman, Rodney
McDaniel, was suspended from the practice of law by order of the Kentucky
Supreme Court. Having failed to secure substitute counsel, Letkeman now
proceeds pro se in this appeal.
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In the case at hand, we cannot say that Letkeman
possessed a reasonable expectation of privacy in the vehicle.
The record indicates that Letkeman was a passenger in the
vehicle and did not assert an ownership or possessory interest
in the vehicle.
A mere passenger in a vehicle generally does
not have the requisite expectation of privacy to raise the issue
of the legality of the vehicle’s search.
Rakas v. Illinois, 439
U.S. 128 (1978).
Letkeman also claims ownership of the marijuana seized
from the vehicle and believes that such ownership in the
property seized confers standing.
The ownership and possession
of seized property is not dispositive upon the issue of
expectation of privacy; rather, such are simply factors to be
considered.
United States v. Salvucci, 448 U.S. 83 (1980).
In this case, the seized property was wrapped bricks
of marijuana.
These bricks were hidden in the vehicle’s rear
storage compartments.
Applying the two-part analysis for
determining whether an expectation of privacy existed, we
believe Letkeman satisfied the first part because it is
uncontroverted he possessed a subjective expectation of privacy
in the marijuana.
However, the second part of the test requires
that the subjective expectation of privacy be objectively
reasonable under the circumstances.
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The facts reveal that Letkeman was only a passenger in
the vehicle and did not have control over its contents.
Specifically, it appears that Letkeman did not possess the legal
right to exclude third parties from exercising possession or
control over the vehicle or its contents.
Moreover, the
marijuana bricks were not concealed by Letkeman in luggage or
other baggage.
Rather, the bricks were simply hidden in the
vehicle’s rear storage compartments.
Considering the unique
circumstances of this case, we cannot say Letkeman possessed an
objectively reasonable expectation of privacy in the seized
marijuana.
In sum, we are of the opinion that Letkeman did not
possess the requisite expectation of privacy to establish
standing to contest the legality of the vehicle’s stop or of the
marijuana’s seizure.
Letkeman also argues that his detention following the
vehicle’s stop was unreasonably long and constituted a violation
of the Fourth Amendment of the United States Constitution and
Section 10 of the Kentucky Constitution.
Letkeman particularly
maintains he was detained by Trooper Devasher for some thirty
minutes while waiting for another trooper to arrive.
Letkeman
contends that Trooper Devasher lacked reasonable suspicion of
criminal activity to warrant the thirty-minute detention and
that the citation took only a few minutes to issue.
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In Ohio v. Robinette, 519 U.S. 33 (1996), the Supreme
Court recognized that the legality of a continued detention
following a stop for a traffic violation is a question of
reasonableness.
It has been held:
Questions that hold potential for detecting
crime, yet create little or no
inconvenience, do not turn reasonable
detention into unreasonable detention. They
do not signal or facilitate oppressive
police tactics that may burden the public—
for all suspects (even the guilty ones) may
protect themselves fully by declining to
answer. Nor do the questions forcibly
invade any privacy interest or extract
information without the suspects’ consent.
United States v. Burton, 334 F.3d 514, 518 (6th Cir. 2003).
In the case sub judice, the record indicates that
Trooper Devasher questioned Letkeman and Garcia, checked the
vehicle’s registration and license plate, and checked Garcia’s
out-of-state driver’s license.
Upon the whole, we believe the
continued detention of Letkeman for some thirty minutes after
the initial traffic stop was reasonable.
Letkeman additionally maintains the statement he made
to police following his arrest should be suppressed.2
Specifically, Letkeman alleges he did not voluntarily and
knowingly waive his rights under Miranda v. Arizona, 384 U.S.
2
Letkeman also contends his statements to police following his arrest should
be suppressed because of the wrongful stop and warrantless search of the
vehicle and the prolonged detention following the traffic stop. As Letkeman
lacks standing to contest the stop and seizure and his detention was
reasonable, we summarily reject this contention.
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436 (1966).
Letkeman contends he was advised of his Miranda
rights in English but that he “did not understand English
sufficiently to make a valid waiver of these important rights.”
Letkeman Brief at 19.
Letkeman claims his primary language is
Spanish.
In its order denying Letkeman’s motion to suppress,
the circuit court found:
Detective Brennan testified that Letkeman
spoke English to him, answered everything
asked of him, and he and Letkeman could
communicate with each other.” (Comm. Br. at
13). Trooper Devasher testified that
Letkeman answered “yes” when Devasher asked
him if he understood his Miranda rights.
Devasher also testified that Letkeman knew
English better than he originally led the
trooper to believe. Though Letkeman
testified that he does not speak English and
did not understand everything that Trooper
Devasher said, the Court finds in favor of
the Commonwealth based on the testimony by
Brennan and Devasher.
Based upon the testimony of Detective Brennan and Trooper
Devasher, we conclude the circuit court’s findings that Letkeman
understood English and understood he was waiving his rights
under Miranda were not clearly erroneous.
See Stewart, 44
S.W.3d 376.
For the foregoing reasons, Appeal No. 2004-CA-002271MR is reversed and this cause remanded for proceedings not
inconsistent with this opinion, and Appeal No. 2004-CA-002283-MR
is affirmed.
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ALL CONCUR.
BRIEFS FOR APPELLANT
FRANCISCO GARCIA:
Jack W. Flynn
DARNELL & FLYNN
Frankfort, Kentucky
BRIEFS FOR APPELLANT
HEINRICH LETKEMAN:
Rodney McDaniel
Frankfort, Kentucky
BRIEF FOR APPELLEE:
Gregory D. Stumbo
Attorney General of Kentucky
Matthew R. Krygiel
Assistant Attorney General of
Kentucky
Frankfort, Kentucky
BRIEF FOR APPELLEE:
Gregory D. Stumbo
Attorney General of Kentucky
Robert E. Prather
Assistant Attorney General of
Kentucky
Frankfort, Kentucky
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