THOMAS GILLESPIE v. COMMONWEALTH OF KENTUCKY
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RENDERED:
APRIL 14, 2006; 10:00 A.M.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 2004-CA-002343-MR
AND
NO. 2005-CA-000730-MR
THOMAS GILLESPIE
v.
APPELLANT
APPEALS FROM FAYETTE CIRCUIT COURT
HONORABLE PAMELA R. GOODWINE, JUDGE
INDICTMENT NOS. 03-CR-01226 & 03-CR-01241
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, CHIEF JUDGE; BUCKINGHAM AND KNOPF, JUDGES.
KNOPF, JUDGE:
On October 13, 2003, a Fayette County grand jury
returned Indictment No. 03-CR-1226, charging Thomas Gillespie
with trafficking in a controlled substance in the first degree1
and being a first-degree persistent felony offender.2
The
charges arose out of an arrest which occurred on August 2, 2003.
1
KRS 218A.1412. First-degree trafficking in a controlled
substance is a class C felony for the first offense, and a class
B felony for subsequent offenses. KRS 218A.1412(2).
2
KRS 532.080.
On October 14, 2003, the grand jury returned Indictment No. 03CR-01241, charging Gillespie with the same offenses but arising
out of another arrest on July 31, 2003.
On November 19, 2003, Gillespie filed a motion to
suppress evidence seized following the August 2 arrest.
Following an evidentiary hearing, the trial court denied the
motion.
The charges in Indictment No. 03-CR-1241 proceeded to
trial, but the jury was unable to reach a verdict and the trial
court declared a mistrial.
Thereafter, the charges in both
indictments were consolidated.
On September 10, 2004, Gillespie
entered a conditional guilty plea to the charges in Indictment
No. 03-CR-1226, and to an amended count of facilitation to firstdegree trafficking in a controlled substance in Indictment No.
03-CR-1241.
In Indictment No 03-CR-1226, the trial court
sentenced Gillespie to five years on the trafficking charge,
enhanced to ten years by virtue of his status as a PFO I.
In
Indictment No. 03-CR-1241, the court sentenced Gillespie to
twelve-months’ imprisonment, to be served concurrently with the
ten-year sentence in Indictment No. 03-CR-1226.
This appeal
followed.
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
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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.3
The facts surrounding Gillespie’s arrest on August 2,
2003, are not in dispute.
Lexington Police Officer Bart Morse
testified that at about 1:30 a.m., he observed a black Jeep
Cherokee begin to park on Charles Avenue.
Officer Morse
testified that this area, and this street in particular, were
known for heavy illegal drug trafficking.
Morse further
testified that he had made arrests in this area before.
Gillespie approached the Jeep on foot and spoke with
the passenger for a while.
As Officer Morse’s vehicle
approached, Gillespie started to walk away from the Jeep.
Officer Morse asked to speak with Gillespie.
Gillespie produced
his identification and agreed to allow Officer Morse to pat him
down for weapons.
During that pat-down search, Officer Morse felt what
appeared to be a small plastic bag containing a hard substance in
Gillespie’s right front pants pocket.
Officer Morse testified
that it was consistent with the packaging of cocaine, and he was
3
Commonwealth v. Whitmore, 92 S.W.3d 76, 79 (Ky. 2002)), citing
Ornelas v. United States, 517 U.S. 690, 116 S. Ct. 1657, 134 L.
Ed. 2d 911 (1996).
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“75 or 80 percent sure” that it was crack cocaine.
Officer Morse did not seize the bag at that time.
However,
Rather,
Officer Morse directed Gillespie to be seated so he could
investigate further.
As backup officers arrived, Morse asked the
driver of the Jeep to exit.
The driver told Officer Morse that
the passenger, later identified as Kenneth Hughes, had asked him
to stop the Jeep so he could talk to Gillespie.
not have a license.
The driver did
Questioned separately, Hughes told Officer
Morse that he did not know why the driver had stopped.
Hughes
also admitted that the Jeep belonged to him.
Officer Morse then asked Hughes for permission to frisk
him and to search the Jeep.
Officer Morse found a steak knife in
Hughes’s rear pants pocket.
The search of the Jeep revealed a
glass crack pipe in the passenger side map pocket and a plastic
bag containing marijuana in the console.
At that point Officer
Morse arrested Hughes and charged him with possession of drug
paraphernalia and marijuana.
Based upon this investigation, Officer Morse conducted
a second search of Gillespie.
He retrieved the plastic bag from
Gillespie’s front pants pocket, the contents of which tested
positive for crack cocaine.
About $57 in cash was also seized
from Gillespie.
Under the Fourth and Fourteenth Amendments to the
United States Constitution and Section 10 of the Kentucky
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Constitution, unreasonable searches and seizures by the police
are unlawful and, as a general rule, warrantless searches and
seizures are unreasonable.4
Several exceptions to this general
rule have evolved, however.
In Terry v. Ohio,5 the United States
Supreme Court held that a brief investigative stop, detention,
and frisk for weapons do not violate the Fourth Amendment as long
as the initial stop was supported by reasonable suspicion, a far
lighter standard than probable cause.6
Furthermore, when a police officer lawfully pats down
the outer clothing of a suspect and feels an object whose contour
or mass makes its identity immediately apparent, there is no
violation of privacy beyond that already permitted by the patdown search for weapons.7
However, the plain feel rule is a
narrowly drawn exception to the warrant requirement, appropriate
only when the elements of Terry are otherwise met and the nonthreatening contraband is immediately apparent from a sense of
touch.8
4
Katz v. United States, 389 U.S. 347, 356-58, 88 S. Ct. 507,
514-15, 19 L.Ed.2d 576 (1967); Clark v. Commonwealth, 868 S.W.2d
101, 105 (Ky.App. 1993).
5
392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
6
Id. at 27, 88 S. Ct. at 1883.
7
Minnesota v. Dickerson, 508 U.S. 366, 274-75, 113 S. Ct. 2130,
2135-36, 124 L. Ed. 2d 334 (1993).
8
Commonwealth v. Whitmore, supra at 80.
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Gillespie conceded that Officer Morse’s initial patdown search was lawful.9
He notes, however, that Officer Morse
did not immediately seize the baggie.
Rather, Officer Morse left
Gillespie to focus on investigating the occupants of the Jeep.
Since that investigation did not reveal any evidence which
specifically incriminated him, Gillespie argues that Officer
Morse’s second search and seizure of the baggie exceeded the
bounds of Terry and was not otherwise supported by probable
cause.
Inherent in our review is the reality that police
officers may draw inferences of illegal activity from facts that
may appear innocent to a lay person.
Accordingly, we must give
due deference to the trial court in assessing the credibility of
the officers and the reasonableness of their inferences.10
The
trial court accepted Officer Morse’s testimony that he was
reasonably certain that the baggie in Gillespie’s pocket
contained crack cocaine.
Clearly then, Officer Morse could have
9
In his brief on appeal, Gillespie attempts to argue that the
initial Terry pat-down was without reasonable suspicion. But at
the suppression hearing Gillespie’s trial counsel admitted that
Gillespie was not challenging the validity of the stop or the
Terry pat-down. Rather, Gillespie only argued that the
subsequent seizure of the baggie was outside of the scope of the
plain feel exception. Consequently, any issue relating to the
first search is not preserved for appeal.
10
Ornelas supra at 699, 116 S. Ct. at 1663.
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immediately seized it.
Nevertheless, we agree with the trial
court that the brief delay following Officer Morse’s discovery of
the baggie does not take the seizure outside the scope of the
plain feel exception.
Furthermore, a warrantless search more extensive or
intrusive than a pat-down for weapons is permissible if it is
supported by probable cause.11
Probable cause involves whether
the known facts provide reasonable grounds or a fair probability
that a circumstance exists supported by less than prima facie
proof but more than mere suspicion.12
Probable cause for a
search exists when the facts are sufficient to warrant a man of
reasonable prudence in the belief that contraband or evidence of
a crime will be found.13
After Officer Morse identified the baggie in
Gillespie’s pocket, the further investigation confirmed his
suspicions that Gillespie was engaged in drug trafficking.
Consequently, Officer Morse had probable cause to conduct the
second search of Gillespie.
Therefore, even if the second search
exceeded the scope of the plain feel exception, the seizure of
11
Baltimore v. Commonwealth, 119 S.W.3d 532, 538 (Ky.App. 2003).
12
Id. citing Smith v. Thornburg, 136 F.3d 1070, 1074 (6th Cir.
1998); United States v. Padro, 52 F.3d 120, 122-23 (6th Cir.
1995).
13
Id. citing Ornelas supra at 695, 696, 116 S. Ct. at 1661.
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the baggie containing crack cocaine was justified under the
circumstances.
Accordingly, the judgment of conviction by the Fayette
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Herbert T. West
Fayette County Legal Aid
Lexington, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
Perry T. Ryan
Assistant Attorney General
Frankfort, Kentucky
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