VIRGINIA KUPPER v. COMMONWEALTH OF KENTUCKY
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RENDERED:
DECEMBER 22, 2006; 10:00 A.M.
ORDERED NOT PUBLISHED BY KENTUCKY SUPREME COURT:
(2007-SC-0070-D)
JUNE 13, 2007
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-000852-MR
VIRGINIA KUPPER
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE STEPHEN K. MERSHON, JUDGE
ACTION NO. 03-CR-002917
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JOHNSON AND TAYLOR, JUDGES; HUDDLESTON,1 SENIOR JUDGE.
JOHNSON, JUDGE:
Virginia Kupper has appealed from a judgment of
the Jefferson Circuit Court entered on March 29, 2005, following
a jury trial convicting her of 14 counts of criminal possession
of a forged instrument in the second degree,2 14 counts of
possession of stolen mail matter,3 four counts of fraudulent use
1
Senior Judge Joseph R. Huddleston 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 516.060.
3
KRS 514.150.
of a credit card,4 and four counts of receipt of a stolen credit
card.5
Having concluded that the trial court did not err in
denying Kupper’s motion to suppress evidence, we affirm.
On November 5, 2003, Kupper was indicted by a
Jefferson County grand jury on 14 counts of criminal possession
of a forged instrument in the second degree, seven counts of
fraudulent use of a credit card, 14 counts of possession of
stolen mail matter, six counts of receipt of a stolen credit
card, one count of theft of mail matter,6 and ten counts of theft
of identity.7
Prior to trial, the Commonwealth dismissed two
counts of fraudulent use of a credit card, two counts of receipt
of a stolen credit card and all ten counts of theft of identity.
The jury convicted Kupper on the counts noted above and found
her not guilty on one count of theft of mail matter.
After the jury rendered its verdict, the Commonwealth
and Kupper reached an agreement as to the penalty.
Kupper was
sentenced to five years’ imprisonment for each conviction for
criminal possession of a forged instrument in the second degree
with the sentences to run concurrently with each other, five
years’ imprisonment for each conviction for fraudulent use of a
credit card with the sentences to run concurrently with each
4
KRS 434.650.
5
KRS 434.620.
6
KRS 514.140.
7
KRS 514.160.
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other, five years’ imprisonment for each conviction for receipt
of stolen credit card with the sentences to run concurrently
with each other, and five years’ imprisonment for each
conviction for possession of stolen mail matter with the
sentences to run concurrently with each other.
The trial court
ordered the sentences for fraudulent use of a credit card
convictions and receipt of stolen credit card convictions to run
concurrently with each other, but to run consecutively to the
five-year sentences on the criminal possession of a forged
instrument in the second degree convictions and the five-year
sentences on the possession of stolen mail matter convictions
for a total of 15 years’ imprisonment.
The Commonwealth
recommended that the sentences be probated.
On March 29, 2005, the trial court entered a judgment
granting probation for a period of five years.
As part of the
plea agreement and judgment, Kupper reserved her right to appeal
the trial court’s denial of her motion to suppress evidence
seized by the police during a stop of her vehicle.
Kupper
contends in her appeal that information the police received from
Charlie Cardwell did not constitute reasonable suspicion for the
police to stop her vehicle.
The facts of the case regarding the stop of Kupper’s
vehicle by the police are not disputed.
On May 1, 2003,
Cardwell was in his driveway and noticed a gray vehicle pull
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over at his mailbox and stop.
Cardwell stated that he went to
the mailbox after the vehicle pulled away, and discovered that
mail his wife had placed in the mailbox was missing.
Cardwell
then noticed the gray vehicle slow down at a neighbor’s
driveway, and he noticed that the gray vehicle had a tail light
out.
Cardwell then went to his house, got his truck keys, and
began to follow the gray vehicle.
During his pursuit of the gray vehicle, Cardwell
called his wife and was given a telephone number for the
Louisville Metro Police Department.
Cardwell called the police
dispatch and informed them that he was following a gray BMW with
a tail light out, and he believed the occupant of the vehicle
had stolen mail from his mailbox.
Cardwell stayed on the
telephone with the dispatcher relaying the location of the
vehicle he was following until a Louisville Metro Police officer
arrived and stopped the BMW.
Officer Brian Thompson testified that, after he
stopped Kupper’s vehicle, he asked Kupper for identification and
informed her that Cardwell believed she had taken mail from his
mailbox.
Officer Thompson then stated that he spoke to Cardwell
who told him he was certain Kupper had removed mail that his
wife had put in their mailbox for pickup.
Officer Thompson then
approached Kupper again and requested permission to search her
vehicle and Kupper consented.
The search of the vehicle lead to
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the discovery of at least 34 items giving rise to the indictment
against Kupper.
Officer Thompson further testified that he did
not know Cardwell or Kupper, nor was there any ongoing
investigation of Kupper.
The only information Officer Thompson
received from the dispatcher was that Cardwell was following
Kupper and the location of the vehicles.
Officer Thompson did
not verify that mail was actually missing from Cardwell’s
mailbox nor did he personally observe Kupper do anything illegal
prior to the stop.
Kupper contends that the information Officer Thompson
received was not sufficient to form a reasonable suspicion that
Kupper was engaged in illegal activity at the time he stopped
her vehicle.
Thus, she argues that the stop and subsequent
search were unreasonable and the trial court erred by refusing
to suppress the evidence obtained as a result of the illegal
stop.
In determining the reasonableness of a police
officer’s actions in 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 [emphasis original].”8
8
The
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).
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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.9
“[T]he relevant inquiry is
not whether particular conduct is ‘innocent’ or ‘guilty,’ but
the degree of suspicion that attaches to particular types of
noncriminal acts.”10
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.11
9
If they are,
Based on those findings of fact, we
Hensley, 469 U.S. at 227; Cortez, 449 U.S. at 417-18.
10
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)).
11
Kentucky Rules of Criminal Procedure (RCr) 9.78.
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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.”12
As noted, there is no dispute regarding the facts
leading to the stop by Officer Thompson.
Rather, Kupper
contends that the facts do not constitute reasonable suspicion
sufficient to justify the stop.
Specifically, Kupper contends
that the information provided by Cardwell to the police lacked
any indication that it was reliable, was not verified or
corroborated by the police prior to the stop of Kupper’s
vehicle, and did not provide any predictive information.
As
such, Kupper contends that the information “lacked sufficient
indicia of reliability to justify the investigatory
stop . . . .”13
Kupper relies upon Collins as support for her
contention that the stop was unreasonable.
In Collins, an
unidentified person called 911 complaining that the driver of a
white Chevrolet was seen throwing liquid from a bottle toward
another vehicle at a gas station.
The caller identified the
liquid as alcohol and indicated that it appeared the two drivers
were in a dispute.
The driver of the Chevrolet then left the
12
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)).
13
Collins v. Commonwealth, 142 S.W.3d 113, 116 (Ky. 2004).
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gas station and went south on Interstate 75.
The caller
provided the license plate number of the Chevrolet and it was
located by a state trooper on the interstate.
The trooper
testified that he followed the vehicle for about two miles and
did not observe any unusual behavior or erratic driving.
The
trooper then stopped the vehicle and noted the smell of alcohol
on the driver and performed a field sobriety test.
Collins was
thereafter arrested for DUI.14
Our Supreme Court held that the stop was unreasonable
as the tip did not reveal that the tipster had either witnessed
or could predict any illegal activity which the trooper could
corroborate or verify.
Additionally, the trooper did not
observe anything suspicious about Collins while following his
vehicle to indicate that he was violating the law.
In regard to
the reliability of the tip, our Supreme Court stated as follows:
[t]hough accurate in its substance, the tip
consisted entirely of information available
to any casual observer on the street, giving
the police no method of verifying that the
tipster could be relied upon. The tip
neither recounted nor predicted any specific
illegal conduct. Moreover, the
investigating officer did not independently
observe any illegal activity or suspicious
behavior. We do not believe that reasonable
suspicion can be predicated upon an
unidentified person’s accurate description
of another vehicle and driver, coupled with
the bare assertion that the driver had
14
Collins, 142 S.W.3d at 115.
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engaged in what might be considered
offensive – though not criminal – conduct.15
Unlike Collins, however, the case before us does not
involve a stop based upon an anonymous tip but rather a stop
based upon information from an identified complainant.
Our
Supreme Court has held that “such tips are entitled to a greater
‘presumption of reliability’ as opposed to the tips of unknown
‘anonymous’ informants . . . .”16
A greater presumption of
reliability is justified because identifiable informants can be
subject to criminal liability themselves “if it is discovered
that the tip is unfounded or fabricated . . . .”17
In Kelly, two persons, who identified themselves as
Waffle House employees, called the Lexington police and reported
that a patron they suspected of being intoxicated was about to
drive away from the restaurant.
They advised the police of
their location and described the suspect as well as his vehicle.
A Lexington police officer went to the Waffle House location and
saw two persons outside the restaurant who were pointing him in
the direction of a night club across the street.
The officer
spotted the vehicle that had been described and followed it to a
hotel where the officer conducted an investigatory stop.
15
The
Collins, 142 S.W.3d at 117.
16
Commonwealth v. Kelly, 180 S.W.3d 474, 477 (Ky. 2005) (citing Florida v.
J.L., 529 U.S. 266, 276, 120 S.Ct. 1375, 1381, 146 L.Ed.2d 254
(2000)(Kennedy, J., concurring)).
17
Id.
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officer did not personally observe any criminal or suspicious
conduct on the part of Kelly.18
After stopping Kelly’s vehicle, the officer noted a
strong smell of alcohol and conducted several field sobriety
tests which Kelly failed.
A search of Kelly’s person and
vehicle revealed numerous Oxycontin pills, $2,800 in cash, and a
gun.
The trial court found that the stop was unlawful and
granted Kelly’s motion to suppress the evidence.19
Our Supreme
Court reversed the trial court’s decision on the basis that the
tip was provided by identifiable informants and was thus
entitled to the greater presumption of reliability than an
anonymous tip.
Further, the Court held that the tip in question
was entitled to an “even greater deference than it normally
might be accorded due to its status as a ‘citizen informant’
tip.”20
“What distinguishes a ‘citizen informant’ tip from other
types of tips is the fact that such tipsters are almost always
bystanders or eyewitness-victims of the alleged criminal
activity.”21
We conclude that the tip and information provided to
the police by Cardwell constitutes the same type of “citizen
18
Kelly, 180 S.W.3d at 476.
19
Id.
20
Id. at 477 (citing Illinois v. Gates, 462 U.S. 213, 233, 103 S.Ct. 2317,
2330, 76 L.Ed.2d 527 (1983) (stating that “rigorous scrutiny of the basis of
[a citizen informant’s] knowledge [is] unnecessary”)).
21
Kelly, 180 S.W.3d at 478 (citing United States v. Pasquarille, 20 F.3d 682,
689 (6th Cir. 1994)).
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informant” tip and is entitled to the greater presumption of
reliability found in Kelly.22
Cardwell provided information to
the police that he observed Kupper’s vehicle stop at his mailbox
and that mail was missing after the vehicle pulled away.
Cardwell described the vehicle he had seen and then began to
follow the vehicle advising the police dispatch of his location.
Once Officer Thompson stopped Kupper, he advised her that
Cardwell believed she had taken mail from his mailbox and
requested her identification.
Officer Thompson then talked
face-to-face with Cardwell before requesting consent to search
Kupper’s vehicle.
Based upon the totality of the circumstances,
we conclude that the information Cardwell provided Officer
Thompson was sufficient to establish reasonable suspicion to
support an investigatory stop of Kupper’s vehicle.
After she
was stopped, Kupper consented to the search of her vehicle which
produced the evidence giving rise to her indictment and the
trial court properly denied Kupper’s motion to suppress.
Based upon the foregoing, the judgment of the
Jefferson Circuit Court is affirmed.
ALL CONCUR.
22
We note that the tipsters in Kelly did not identify themselves beyond being
employees of Waffle House yet our Supreme Court found there was a strong
presumption that they could be located if it were determined the tip was
false or made for purposes of harassment. In this case Cardwell advised the
police of his identity and continually advised them of his location while
following Kupper. Additionally, he was present at the scene of the stop of
Kupper’s vehicle by Officer Thompson and spoke with the officer face-to-face.
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BRIEF AND ORAL ARGUMENT FOR
APPELLANT:
Franklin P. Jewell
Louisville, Kentucky
BRIEF FOR APPELLEE:
Gregory D. Stumbo
Attorney General
Kristin N. Logan
Assistant Attorney General
Frankfort, Kentucky
ORAL ARGUMENT FOR APPELLEE:
Kristin N. Logan
Assistant Attorney General
Frankfort, Kentucky
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