DEJUAN BARGER v. COMMONWEALTH OF KENTUCKY
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RENDERED: AUGUST 4, 2006; 10:00 A.M.
ORDERED NOT PUBLISHED BY KY. SUPREME COURT: DECEMBER 13, 2006
(2006-SC-000647-D)
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-002604-MR
DEJUAN BARGER
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE LISABETH HUGHES ABRAMSON, JUDGE
ACTION NO. 03-CR-003316
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JOHNSON AND TAYLOR, JUDGES; BUCKINGHAM,1 SENIOR JUDGE.
JOHNSON, JUDGE:
DeJuan Barger has appealed from the judgment of
conviction and sentence of the Jefferson Circuit Court entered
on November 30, 2004, following his conditional guilty plea to
operating a motor vehicle under the influence of intoxicants2 and
operating a motor vehicle on a suspended or revoked operator’s
1
Senior Judge David C. Buckingham sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and Kentucky Revised Statutes (KRS) 21.580.
2
KRS 189A.010(1)(d).
license.3
Having concluded that the trial court’s factual
findings are not clearly erroneous and that it correctly applied
the law to those facts in denying Barger’s motion to suppress
evidence, we affirm.
At the suppression hearing, Sergeant Mike Redmond of
the Louisville Metro Police Department4 testified that on October
18, 2003, at around 4:30 p.m. he was making a routine patrol of
the area around 21st Street and Duncan Street in Louisville,
Jefferson County, Kentucky, which included a Speedway gas
station.
This area was receiving extra patrol due to several
“snatch and grab”5 incidents at the Speedway in prior weeks.
Apparently, Sgt. Redmon was not aware of any description of a
perpetrator or any vehicle that might have been involved in the
“snatch and grab” incidents.
As Sgt. Redmond drove by the Speedway, he observed a
vehicle “full of people” in the front parking lot.6
Approximately 30 minutes later when Sgt. Redmond was responding
to a call and passed the Speedway again, he observed the same
vehicle in the parking lot.
On this second occasion the vehicle
3
KRS 186.620(2).
4
Sgt. Redmond had been employed by the LMPD for 16 years.
5
Sgt. Redmond testified that a “snatch and grab” occurs when a cashier opens
a cash register drawer and a person grabs money from the open drawer and runs
away.
6
Sgt. Redmond testified that there were two people in the front seat and
either two or three people in the back seat.
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was parked on the other side of the store near the gas pumps.
Sgt. Redmond became suspicious that the occupants of the vehicle
might have been involved in the recent “snatch and grab”
incidents, and he radioed Officer Kevin Hamlin to be on the
lookout for the vehicle.
When Sgt. Redmond passed the Speedway for the third
time approximately one hour later, he observed the same vehicle
leaving the parking lot.
Acting upon his previous suspicion,
Sgt. Redmond began to follow the vehicle.7
Sgt. Redmond ran a
check on the license plate and the vehicle owner’s address was
in another part of Louisville.
As the suspicious car approached a four-way stop on
Duncan Street, the driver signaled a turn.
The driver then
turned off the signal and continued driving west on Duncan
Street.
At one point, the driver stopped in front of a house
and the front passenger door opened.
However, no one exited the
vehicle and approximately 30 seconds later the door was closed
and the vehicle continued down Duncan Street.
As the vehicle
turned north onto 26th Street, Sgt. Redmond radioed that he was
going to stop the vehicle, activated his emergency lights, and
attempted to stop the vehicle.8
The vehicle eventually stopped
7
Sgt. Redmond was in an unmarked police vehicle, but he was wearing his
police uniform.
8
Sgt. Redmond testified that he was not stopping the vehicle for any traffic
violations and the driver had not been driving carelessly. Sgt. Redmond
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on St. Cecilia Street.
As Sgt. Redmond approached the vehicle,
he smelled alcohol on the driver, who was later identified as
Barger.
Barger failed a number of field sobriety tests and was
unable to produce a driver’s license.9
Barger was arrested and
taken to the Jefferson County Detention Center where his bloodalcohol level was measured by a breathalyzer test and registered
.207.
Barger was indicted on December 16, 2003, by a
Jefferson County grand jury for operating a motor vehicle under
the influence of intoxicants, fourth offense, and operating a
motor vehicle on a suspended or revoked operator’s license.
On
September 2, 2004, Barger filed a motion to suppress evidence,
arguing the evidence had been obtained as a result of an illegal
stop.
A suppression hearing was held on September 24, 2004.
On
October 6, 2004, the trial court entered oral factual findings
and conclusions of law and ruled that an investigatory stop of
the vehicle was proper because under the totality of the
circumstances there was reasonable and articulable suspicion of
criminal activity.
The totality of the circumstances included
the recent thefts at the Speedway, the fact that the same
vehicle was in the parking lot three times in two hours in three
indicated he only wanted to get identification information from the occupants
of the vehicle so he could turn the information over to the detectives
working on the “snatch and grab” cases.
9
The uniform citation indicated that Barger had a suspended Georgia driver’s
license on the date of the incident.
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different locations, and the erratic driving. Subsequently,
Barger entered a conditional guilty plea to the charged offenses
on October 8, 2004.
On November 22, 2004, the trial court
sentenced Barger to two years’ imprisonment for operating a
motor vehicle under the influence and 90 days for operating a
motor vehicle without a license with the sentences to run
concurrently for a total of two years.
This appeal followed.
Our standard of review in reviewing a trial court’s
decision on a motion to suppress evidence is well-established in
that we must “first determine whether the trial court’s findings
of fact are supported by substantial evidence.
then they are conclusive.10
If they are,
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.”11
Under both the Fourth Amendment to the United States
Constitution and Section 10 of the Kentucky Constitution, a
police officer must have reasonable and articulable suspicion of
some violation of a law before stopping an automobile.12
In
determining the reasonableness of a police officer’s actions in
10
Kentucky Rules of Criminal Procedure (RCr) 9.78.
11
Commonwealth v. Neal, 84 S.W.3d 920, 923 (Ky.App. 2002) (citing Adcock v.
Commonwealth, 967 S.W.2d 6, 8 (Ky. 1998); and Commonwealth v. Opell, 3 S.W.3d
747, 751 (Ky.App. 1999)).
12
Delaware v. Prouse, 440 U.S. 648, 661, 99 S.Ct. 1391, 59 L.Ed.2d 660, 672
(1979); Creech v. Commonwealth, 812 S.W.2d 162, 163 (Ky.App. 1991).
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making an investigatory stop, the trial court must consider
whether the facts available to the officer at the time establish
that the officer had “reasonable, articulable suspicion that the
person has been, is, or is about to be engaged in criminal
activity.”13
The propriety of a traffic stop must be considered
based upon the totality of the circumstances as they existed at
the time including various objective observations, information
from police reports, if such are available, and consideration of
the modes or patterns of operation of certain kinds of
criminals.
From this information, a trained officer may draw
inferences and make deductions that might not occur to an
untrained person.
This process does not deal with hard
certainties, but with probabilities.
In the end, there must be
a particularized and objective basis for suspecting the
particular individual being stopped is, or is about to be,
engaged in criminal activity or is wanted for past criminal
conduct.14
“[T]he relevant inquiry is not whether particular
conduct is ‘innocent’ or ‘guilty,’ but the degree of suspicion
13
United States v. Hensley, 469 U.S. 221, 227, 105 S.Ct. 675, 83 L.Ed.2d 604
(1985) (quoting United States v. Place, 462 U.S. 696, 702, 103 S.Ct. 2637, 77
L.Ed.2d 110 (1983)). See also United States v. Cortez, 449 U.S. 411, 417-18,
101 S.Ct. 690, 66 L.Ed.2d 621, 628-29 (1981); and Docksteader v.
Commonwealth, 802 S.W.2d 149, 150 (Ky.App. 1991).
14
Hensley, 469 U.S. at 227; Cortez, 449 U.S. at 417-18.
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that attaches to particular types of noncriminal acts” [internal
quotations omitted].15
Barger contends the trial court erroneously denied the
motion to suppress evidence of his intoxication because the
initial stop of his vehicle was not based upon reasonable and
articulable suspicion of criminal activity.
The Commonwealth
contends that the traffic stop was justified because (1) the
Speedway had been the target of recent “snatch and grabs”
resulting in increased police patrol; (2) Sgt. Redmond observed
Barger’s vehicle in the Speedway parking lot over a period of
two hours in three different locations, which may have indicated
someone was “casing” the Speedway; (3) the occupants of the
vehicle did not appear to be engaged in any commercial activity
outside the vehicle; (4) the car was registered to an owner who
did not live in the immediate area around the Speedway; and (5)
Barger drove erratically after he left the Speedway parking
lot.16
Sgt. Redmond conceded that he had not seen Barger commit
any traffic offense, nor had he seen Barger weaving in traffic
or driving recklessly on the roadway.
Furthermore, Sgt. Redmond
had not been advised by store personnel that Barger or his
passengers were acting suspiciously, nor had Sgt. Redmond
15
United States v. Sokolow, 490 U.S. 1, 10, 109 S.Ct. 1581, 104 L.Ed.2d 1
(1989) (quoting Illinois v. Gates, 462 U.S. 213, 243-44, 103 S.Ct. 2317, 76
L.Ed.2d 527 (1983)).
16
Certainly, the assertion that Barger was driving erratically is debatable.
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witnessed anything suspicious or otherwise illegal from Barger
or any of the passengers in the vehicle while it was parked at
the Speedway.
In Hensley, the first case where the United States
Supreme Court addressed the police’s stopping a person because
he was a suspect in a completed crime, the Court stated as
follows:
In our previous decisions involving
investigatory stops on less than probable
cause, police stopped or seized a person
because they suspected he was about to
commit a crime, e.g., Terry [v. Ohio, 392
U.S. 1, 22-3, 88 S.Ct. 1868, 20 L.Ed.2d 889
(1968)], or was committing a crime at the
moment of the stop, e.g., Adams v. Williams,
407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612
(1972). Noting that Florida v. Royer, 460
U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229
(1983), struck down a particularly intrusive
detention of a person suspected of
committing an ongoing crime, the Court of
Appeals in this case concluded that we
clearly intended to restrict investigative
stops to the context of ongoing crimes. We
do not agree with the Court of Appeals that
our prior opinions contemplate an inflexible
rule that precludes police from stopping
persons they suspect of past criminal
activity unless they have probable cause for
arrest. To the extent previous opinions
have addressed the issue at all, they have
suggested that some investigative stops
based on reasonable suspicion of past
criminal activity could withstand Fourth
Amendment scrutiny. Thus United States v.
Cortez, 449 U.S. 411, 417, n.2, 101 S.Ct.
690, 695, n.2, 66 L.Ed.2d 621 (1981),
indicates in a footnote that “[o]f course,
an officer may stop and question a person if
there are reasonable grounds to believe that
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person is wanted for past criminal conduct.”
And in United States v. Place, 462 U.S. 696,
103 S.Ct. 2637, 77 L.Ed.2d 110 (1983),
decided barely a month before the Sixth
Circuit’s opinion, this Court stated that
its prior opinions acknowledged police
authority to stop a person “when the officer
has reasonable, articulable suspicion that
the person has been, is, or is about to be
engaged in criminal activity.” Id., at 702,
103 S.Ct. at 2642 (emphasis added). See
also Michigan v. Summers, 452 U.S. 692, 699,
and n.7, 101 S.Ct. 2587, 2592, and n. 7, 69
L.Ed.2d 340 (1981). Indeed, Florida v.
Royer itself suggests that certain seizures
are justifiable under the Fourth Amendment
even in the absence of probable cause “if
there is articulable suspicion that a person
has committed or is about to commit a
crime.” 460 U.S., at 498, 103 S.Ct., at
1324 (plurality opinion) (emphasis added).
At the least, these dicta suggest that
the police are not automatically shorn of
authority to stop a suspect in the absence
of probable cause merely because the
criminal has completed his crime and escaped
from the scene. The precise limits on
investigatory stops to investigate past
criminal activity are more difficult to
define. The proper way to identify the
limits is to apply the same test already
used to identify the proper bounds of
intrusions that further investigations of
imminent or ongoing crimes. That test,
which is grounded in the standard of
reasonableness embodied in the Fourth
Amendment, balances the nature and quality
of the intrusion on personal security
against the importance of the governmental
interests alleged to justify the intrusion.
United States v. Place, supra, 462 U.S., at
703, 103 S.Ct., at 2642; Michigan v.
Summers, supra, 452 U.S., at 698-701, 101
S.Ct., at 2592-2594. When this balancing
test is applied to stops to investigate past
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crimes, we think that probable cause to
arrest need not always be required.
The factors in the balance may be
somewhat different when a stop to
investigate past criminal activity is
involved rather than a stop to investigate
ongoing criminal conduct. This is because
the governmental interests and the nature of
the intrusions involved in the two
situations may differ. As we noted in
Terry, one general interest present in the
context of ongoing or imminent criminal
activity is “that of effective crime
prevention and detection.” Terry, 392 U.S.,
at 22, 88 S.Ct., at 1880. A stop to
investigate an already completed crime does
not necessarily promote the interest of
crime prevention as directly as a stop to
investigate suspected ongoing criminal
activity. Similarly, the exigent
circumstances which require a police officer
to step in before a crime is committed or
completed are not necessarily as pressing
long afterwards. Public safety may be less
threatened by a suspect in a past crime who
now appears to be going about his lawful
business than it is by a suspect who is
currently in the process of violating the
law. Finally, officers making a stop to
investigate past crimes may have a wider
range of opportunity to choose the time and
circumstances of the stop. See Brown v.
Texas, 443 U.S. 47, 51, 99 S.Ct. 2637, 2640,
61 L.Ed.2d 357 (1979); ALI Model Code of
Pre-Arraignment Procedure 12 (Prop.Off.
Draft No. 1, 1972).
Despite these differences, where police
have been unable to locate a person
suspected of involvement in a past crime,
the ability to briefly stop that person, ask
questions, or check identification in the
absence of probable cause promotes the
strong government interest in solving crimes
and bringing offenders to justice.
Restraining police action until after
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probable cause is obtained would not only
hinder the investigation, but might also
enable the suspect to flee in the interim
and to remain at large. Particularly in the
context of felonies or crimes involving a
threat to public safety, it is in the public
interest that the crime be solved and the
suspect detained as promptly as possible.
The law enforcement interests at stake in
these circumstances outweigh the
individual’s interest to be free of a stop
and detention that is no more extensive than
permissible in the investigation of imminent
or ongoing crimes.
We need not and do not decide today
whether Terry stops to investigate all past
crimes, however serious, are permitted. It
is enough to say that, if police have a
reasonable suspicion, grounded in specific
and articulable facts, that a person they
encounter was involved in or is wanted in
connection with a completed felony, then a
Terry stop may be made to investigate that
suspicion.17
In determining that the investigatory stop in the case
before us was justified, we find foreign authority with similar
fact patterns to be persuasive.
In Brisbane v. State,18 the
Supreme Court of Georgia held that there were reasonable and
articulable grounds for suspicion of criminal activity when a
police officer at 3:45 a.m. observed a vehicle drive slowly by
an all-night service station which had been the scene of several
recent robberies.
The vehicle was observed slowing down in
front of the station twice.
17
Hensley, 469 U.s. at 227-29.
18
Additionally, the United States
211 S.E.2d 294, 297 (Ga. 1974).
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Court of Appeals for the Eighth Circuit in United States v.
Abokhai,19 affirmed the denial of a motion to suppress evidence
obtained pursuant to a Terry stop where Abokhai and a companion
were observed by a police officer at approximately 7:00 p.m.
walking toward a convenience store.
The store was near another
convenience store which had been the object of an armed robbery
only days before, but the suspects in the previous robbery were
white males and these two men were black.
Abokhai and his
companion were wearing only light jackets even though the
temperature was in the 30 to 40 degree range.
The police
officer observed the two men “acting very suspicious” and
watching people coming and going from the parking lot.
After
the men made a purchase, they left the store and proceeded in
the same direction before being stopped by the police.20
Similarly, in the case before us, the police officer as
justification for the investigatory stop articulated reasonable
suspicion that the occupants of Barger’s vehicle may have been
involved in the “snatch and grab” incidents at the Speedway.
19
829 F.2d 666, 668 (8th Cir. 1987).
20
See also United States v. Dawdy, 46 F.3d 1427, 1430 (8th Cir. 1995)
(holding sufficient grounds for a Terry stop where car was “parked after
10:00 p.m. on a Sunday night at the back of the otherwise deserted pharmacy
parking lot and at some distance from the surrounding residences” and car
attempted to leave when police car approached); State v. Freeman, 414 N.E.2d
1044, 1045 (Ohio 1980) (holding sufficient grounds for a Terry stop where
defendant at 3:00 a.m. sat alone in a car at the rear of a motel for
approximately 20 minutes and officer was aware of recent criminal activity in
motel parking lot); and LaFave, Search & Seizure § 9.5(d) (4th ed. 2004).
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Accordingly, the trial court’s denial of Barger’s
suppression motion was proper as the totality of the
circumstances supported the police officer’s reasonable and
articulable suspicion of criminal activity thereby justifying
the investigatory stop.
For the foregoing reasons, the judgment
of the Jefferson Circuit Court is affirmed.
TAYLOR, JUDGE, CONCURS IN RESULT ONLY.
BUCKINGHAM, SENIOR JUDGE, DISSENTS AND FILES SEPARATE
OPINION.
BUCKINGHAM, SENIOR JUDGE, DISSENTING:
The standard
for determining what constitutes “reasonable suspicion” has not
been reduced to “a neat set of legal rules.”
See Ornelas v.
U.S., 517 U.S. 690, 695-96, 116 S.Ct. 1657, 134 L.Ed.2d 911
(1996), quoting Illinois v. Gates, 462 U.S. 213, 232, 103 S.Ct.
2317, 76 L.Ed.2d 527 (1983).
“[T]he concept of reasonable
suspicion is somewhat abstract.”
U.S. v. Arvizu, 534 U.S. 266,
274, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002).
For that reason, I
believe that the cases interpreting “reasonable suspicion” are
“all over the board” and that cases with similar facts sometimes
have different results.
The case sub judice is a close call.
Since we review the trial court’s order de novo, I must
respectfully dissent.
“An investigatory stop must be justified by some
objective manifestation that the person stopped is, or is about
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to be, engaged in criminal activity.”
United States v. Cortez,
449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981).
In
Collins v. Commonwealth, 142 S.W.3d 113 (Ky. 2004), the Kentucky
Supreme Court stated that “[i]n order to perform an
investigatory stop of an automobile, there must exist a
reasonable and articulable suspicion that a violation of the law
is occurring.”
Id. at 115.
In this case, Barger had actually
driven the vehicle away from the Speedway store.
In light of
that fact, I fail to see how the officer could conclude that
criminal activity was afoot.
Furthermore, the officer testified
that his only reason for stopping the vehicle was to get
identification information so that he could turn the information
over to the detectives who were working on the “snatch and grab”
cases.
Stopping a vehicle for a similar identification purposes
was held by the U.S. Supreme Court in Delaware v. Prouse, 440
U.S. 648, 662, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), to be an
unlawful investigatory stop.
Likewise, I conclude this stop was
unlawful.
In Fourth Amendment cases such as this, there is “a
balance between the public interest and the individual’s right
to personal security free from arbitrary interference by law
officers.”
U.S. v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct.
2574, 45 L.Ed.2d 607 (1975).
I conclude that the facts of this
case should weigh in favor of the individual’s rights rather
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than in favor of the public interest.
I conclude that one who
goes to a gas station or convenience store three times in a twohour period should not be subjected to an investigatory stop by
a law enforcement officer.
The additional facts that Barger did
not live in that part of Louisville, that Barger turned his
blinker on and then off before proceeding straight at an
intersection, and that the passenger door was opened for a 30second period still does not change my opinion under the
totality of the circumstances standard.
Finally, the majority relies on the Hensley case.
That case authorizes a Terry stop where law enforcement officers
have reasonable suspicion that the person was involved in or
wanted in connection with a completed felony.
469 U.S. at 228.
In Hensley, the defendant was wanted in connection with a
robbery investigation, and a flyer had been issued by a law
enforcement agency alerting other agencies to that fact and
requesting that Hensley be picked up and held.
The facts in the case now before this court are
distinguishable.
Here, Barger was not the focus of any
investigation in connection with the Speedway robberies, and I
conclude that the officer did not have reasonable suspicion to
stop him.
In short, I respectfully dissent.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Stephen Esselman
Louisville, Kentucky
Gregory D. Stumbo
Attorney General
Bryan D. Morrow
Assistant Attorney General
Frankfort, Kentucky
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