COMMONWEALTH OF KENTUCKY VS. MCKINNEY (BRITTANY), ET AL.Annotate this Case
RENDERED: SEPTEMBER 5, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
COMMONWEALTH OF KENTUCKY
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE PAMELA R. GOODWINE, JUDGE
INDICTMENT NO. 06-CR-01212-01 AND 06-CR-01212-02
BRITTANY MCKINNEY and
AFFIRMING IN PART,
REVERSING IN PART AND
VACATING AND REMANDING IN PART
** ** ** ** **
BEFORE: NICKELL AND THOMSON, JUDGES; ROSENBLUM,1 SPECIAL
ROSENBLUM, SPECIAL JUDGE: The Commonwealth of Kentucky appeals the
May 7, 2007, opinion and order of the Fayette Circuit Court granting Brittany
McKinney’s and James Prater’s motions to suppress evidence seized from their
Retired Judge Paul W. Rosenblum sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution.
vehicle as well as any statements made by McKinney and Prater.2 We affirm in
part, reverse in part and vacate and remand in part.
On April 27, 2006, Detective David Bradley, a police officer with the
University of Kentucky police department, was contacted by an anonymous caller
regarding possible drug activity at some apartments on campus. A few hours later
the caller, David Wickstrom, called Bradley again and made arrangements to meet
him to discuss the allegations. Wickstrom and his girlfriend, Angelica Lea, met
with Bradley and provided him with the following information: Lea lived with
McKinney; Lea knew McKinney and her boyfriend used drugs; Lea and
Wickstrom had observed McKinney possessing plastic baggies earlier in the day;
Lea and Wickstrom had observed a high volume of traffic in and out of the
apartment; Lea and Wickstrom saw McKinney and Prater exchange duffel bags
earlier that day and Lea and Wickstrom suspected McKinney and Prater of drug
trafficking; and Prater and McKinney drove a blue vehicle.
After Lea gave Bradley permission to search her bedroom and the
apartment common areas, Bradley contacted Detective McPhearson to meet him at
the apartment. McPherson is a narcotics investigator and drug dog handler. When
Bradley arrived at the apartment complex, he saw Wickstrom pointing to a blue car
containing a man and a woman. Wickstrom then told Bradley “that’s the vehicle
there.” Bradley decided to follow the vehicle. Bradley would later testify that he
Although Prater contends that he made no statements that would warrant suppression,
we note that the trial court’s order suppressed the statements, if any, made by both
McKinney and Prater.
believed the driver of the blue vehicle recognized his vehicle as a police vehicle
because it sped through the parking lot at a high rate of speed, approximately 30
miles per hour, despite speed bumps and the posted speed limit of 15 miles per
hour. When McPhearson approached the apartment complex, he saw Bradley’s
vehicle following another vehicle and saw Bradley point to the blue vehicle.
McPhearson then turned his vehicle around and attempted to catch up to Bradley.
Bradley would later testify that he initiated his car’s emergency
equipment and cut off the blue car being driven by Prater because he felt that
Prater was trying to get away from him. Bradley got out of his vehicle and
displayed his badge. Bradley testified that Prater was making “furtive movements”
with his hands.3 Concerned that Prater might have a weapon, Bradley drew his gun
and ordered Prater and McKinney out of the car. Bradley testified that he
conducted a pat down for weapons4 and placed them on the side of the road. The
testimony of the parties is conflicting as to whether or not Prater or McKinney
were handcuffed. Bradley also visually checked the front seat and the front
console area for weapons.
A few moments after the vehicle was stopped, Detective McPherson
arrived. He ran “Gus” the drug dog around the car and Gus alerted at the
passenger side of the car. The vehicle was searched and McPherson discovered
cocaine in McKinney’s purse, which was located on the floor of the vehicle.
McKinney claimed that the cocaine was not hers and had been placed in her purse
McKinney would later testify that Prater was hiding drugs in McKinney’s purse.
It is unclear whether Bradley conducted the pat down on both parties or only on Prater.
by Prater. McPherson also found marijuana in the vehicle. McKinney and Prater
were then arrested and taken to the University of Kentucky police headquarters.
McPherson testified that he read McKinney her Miranda rights from a card that he
carried and that she waived them. Bradley also testified that before he interviewed
McKinney he inquired if she remembered her rights and she stated that she did.
McKinney testified the police never read her rights to her.
McKinney and Prater each filed motions to suppress evidence
obtained from the search of the car they were traveling in at the time of their arrest
and any statements taken from them after their arrest.5 Both parties argued that the
search of the vehicle was made without a warrant, without probable cause, without
consent and therefore in violation of their constitutional rights. The trial court
found that the search was unlawful and suppressed the evidence seized from the
vehicle as well as any statements made by both Prater and McKinney, if any,
following their arrest. This appeal followed.
On appeal, the Commonwealth argues that the trial court erred in
suppressing the evidence because there was reasonable suspicion to make an
investigatory stop of the vehicle based upon the citizen informants’ and the
officer’s observations. The Commonwealth also argues that there were grounds
for a valid traffic stop and whether or not the stop was pretextual is irrelevant.
Because only McKinney’s record was submitted to this Court, we were only able to
confirm the requests made in McKinney’s motion to suppress. The information
regarding Prater’s motion to suppress is taken from the May 7, 2007, opinion and order
of the Fayette Circuit Court.
When reviewing a trial’s courts admission or suppression of evidence,
the Court utilizes a two-part evaluation. Factual findings are conclusive if they are
supported by substantial evidence. RCr 9.78.6 See also Morgan v. Commonwealth,
189 S.W.3d 91 (Ky. 2006). The trial court’s application of the law to the facts is
reviewed de novo. Commonwealth v. Neal, 84 S.W.3d 920, 923 (Ky. 2002).
The Commonwealth first argues that there was reasonable suspicion
to make an investigatory stop of the car based upon the citizen informants’ and the
officer’s observations. The Fourth Amendment to the United States Constitution
prohibits unreasonable searches and seizures. There are three types of interaction
between police officers and citizens: consensual encounters, temporary detentions
typically referred to as Terry stops, and arrests. Baltimore v. Commonwealth, 119
S.W.3d 532, 537 (Ky.App. 2003). A Terry stop is an investigatory stop which is
merely a temporary detention of the citizen so as to enable the police officer to
complete his investigation without fear of violence or physical harm.
Commonwealth v. Whitmore, 92 S.W.3d 76, 79. The purpose of the limited search
is to allow the officer to pursue the investigation without fear of violence, not to
discover evidence of a crime. Id. The protection against unreasonable search and
seizure, as provided by the Fourth Amendment, applies only to Terry stops and
arrests. Baltimore, 119 S.W.2d at 537.
Evaluation of the legitimacy of an investigative stop
involves a two-part analysis. First, whether there is a
proper basis for the stop based on the police officer's
awareness of specific and articulable facts giving rise to
Kentucky Rules of Criminal Procedure.
reasonable suspicion. Second, whether the degree of
intrusion was reasonably related in scope to the
justification for the stop.
Baltimore v. Commonwealth, 119 S.W.3d 532, 538 (Ky.App. 2003). Courts should
consider the totality of the circumstances in determining if police had such a
reasonable and articulable suspicion. United States v. Arvizu, 534 U.S. 266, 122
S.Ct. 744 (2002).
The Commonwealth outlines multiple factors which it claims gave
Bradley a reasonable and articulable suspicion that McKinney and Prater had
committed or were about to commit a crime. Those factors are: Lea said she knew
McKinney and Prater used cocaine; Bradley verified that Lea roomed with
McKinney; Lea and Wickstrom stated that there was a high volume of people in
and out of the apartment; Lea and Wickstrom stated that McKinney and Prater had
exchanged duffel bags that morning; Lea and Wickstrom witnessed McKinney and
Prater with plastic baggies the day of the arrest; Lea and Wickstrom had stated that
McKinney and Prater drove a blue car before Bradley encountered McKinney and
Prater; Wickstrom indicated to Bradley that the blue car leaving the apartment
parking lot was that belonging to McKinney and Prater, and the driver of the car
acted suspiciously, as if trying to avoid an encounter with the police, by leaving the
apartment parking lot at a high rate of speed.
The Commonwealth argues that an identified informant is entitled to a
greater presumption of reliability and thus provides a reliable basis for reasonable
suspicion to warrant an investigatory stop. In support of this argument, the
Commonwealth cites Commonwealth v. Kelly, which held, in relevant part:
[i]n cases involving identifiable informants who could be
subject to criminal liability if it is discovered that the tip
is unfounded or fabricated, such tips are entitled to a
greater “presumption of reliability” as opposed to the tips
of unknown “anonymous” informants (who theoretically
have “nothing to lose”).
Commonwealth v. Kelly, 180 S.W.3d 474, 477 (Ky. 2005) (citation omitted). In
the case at bar, Wickstrom and Lea were citizen informants who met in person
with Bradley. Furthermore, they were in a position to observe the activity which
they described to Bradley and they had also previously described the blue car that
Prater and McKinney were operating. Lastly, Bradley believed that his police
vehicle had been recognized by Prater and McKinney, resulting in them speeding
away. Based upon the totality of the circumstances, we hold that there was
reasonable suspicion to justify the investigative stop. See Kelly, Id. See also
Commonwealth v. Priddy, 184 S.W.3d 501 (Ky. 2005).
We must next consider whether the degree of intrusion was
reasonably related in scope to the justification for the stop. For the following
reasons, we hold that it was. The use of a dog to sniff the outside of a vehicle for
drugs during a lawful stop that reveals no information other than the location of an
illegal substance does not violate the Fourth Amendment. Illinois v. Caballes, 543
U.S. 405,409, 125 S.Ct. 834, 838 (2005). When conducting an investigatory stop,
a court may consider “whether the police diligently pursued a means of
investigation that was likely to confirm or dispel their suspicions quickly.” United
States v. Sharpe, 470 U.S. 675, 686, 105 S.Ct. 1568, 1575 (1985). The lapse of
time between the stop of the vehicle and the utilization of the dog was no more
than two minutes. Longer detentions have been upheld when police have
performed a diligent investigation after a stop. Id. at 687 .
The Kentucky Supreme Court has also held:
the right to make an arrest or investigatory stop
necessarily carries with it the right to use some degree of
physical coercion or threat thereof to affect it. This is
because there is a substantial law enforcement interest in
preventing the flight of a suspect in the event that
incriminating evidence is found, in protecting the safety
of the officers, and in the orderly completion of the
search which is facilitated by the presence of the
Williams v. Commonwealth, 147 S.W.3d 1,6 (KY. 2004) (internal citation omitted).
See also Taylor v. Commonwealth, 182 S.W.3d 521 (Ky. 2006) (holding that
briefly handcuffing and detaining until the completion of an investigation
constituted a seizure but not an arrest). Bradley testified that he drew his gun
because he suspected that Prater and McKinney were trafficking drugs and also
because Prater moved suspiciously after being stopped. Thereafter Gus alerted to
the presence of narcotics, creating probable cause to search making a search
warrant unnecessary. Johnson v. Commonwealth, 179 S.W.3d 882, 886 (Ky.App.
2005). It was not until the vehicle was searched and the drugs were discovered
that Prater and McKinley were arrested. We find that Detective Bradley acted
reasonably during the brief time that it took for him to ensure his safety, prevent
the flight of Prater and McKinley and complete his search in an orderly fashion.
Accordingly we hold that the degree of intrusion was reasonably related in scope to
the justification for the stop.
The Commonwealth next argues that there were also grounds for a
valid traffic stop and that it does not matter whether the stop was pretexual. In
support of its finding that the traffic stop was not valid, the trial court cited several
reasons: the speed bumps in the apartment parking lot would have precluded
speeding; Bradley failed to initiate his vehicle’s emergency equipment at the time
he alleges that Prater sped away from him; the time of day and high volume of
traffic most likely made speeding difficult if not impossible; McPherson was
unable to get any closer to Bradley than five to six cars away due to the heavy
traffic; Bradley failed to request personal identification, registration or insurance
from Prater or McKinney; and Bradley failed to issue a citation for speeding,
fleeing or evading, or excessive window tinting (McKinney acknowledged
excessive window tinting). The trial court is vested with the discretion to
determine the credibility of witnesses and draw reasonable inferences from their
testimony. Commonwealth v. Whitmore, 92 S.W.3d 76, 78 (Ky. 2002) see also
RCr 9.78. We hold that substantial evidence supports the trial court’s findings that
this was not a valid traffic stop.
The trial court order further suppressed any statements made by either
Prater or McKinney. McKinney’s request to suppress these statements7 relied
Again, it is unclear to this Court whether Prater also moved to suppress any statements. If so,
then these instructions would be applicable to him as well.
heavily on her argument that she was never given her Miranda warnings. See
Miranda v. Arizona, 384 U.S. 436, 444-445, 16 L.Ed.2d 694, 707, 86 S.Ct. 1602
(1966). Our review of the trial court’s order reveals that the issue of whether or
not the Miranda warnings were ever issued was never resolved. Accordingly, this
portion of the trial court’s order is vacated and remanded for additional findings.
Should the trial court determine that Miranda warnings were given, there must also
be a determination made by the trial court as to the voluntariness of McKinney’s
For the foregoing reasons, the May 7, 2007, opinion and order of the
Fayette Circuit Court is affirmed in part, reversed in part, and vacated and
remanded in part in conformity with this opinion.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Attorney General of Kentucky
James C. Shackelford
Assistant Attorney General