MOORE (LAMONT) VS. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: NOVEMBER 26, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
(DISCRETIONARY REVIEW DENIED AND OPINION ORDERED NOT
PUBLISHED BY SUPREME COURT OCTOBER 21, 2009
(FILE NO. 2008-SC-0943-D)
Commonwealth of Kentucky
Court of Appeals
APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE R. JEFFREY HINES, JUDGE
ACTION NO. 06-CR-00443
COMMONWEALTH OF KENTUCKY
REVERSING AND REMANDING
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BEFORE: KELLER AND WINE, JUDGES; LAMBERT,1 SENIOR JUDGE.
KELLER, JUDGE: Lamont Moore appeals from the Final Judgment and Sentence
of Probation entered by the McCracken Circuit Court pursuant to a guilty plea
Senior Judge Joseph E. Lambert, sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
conditioned on Moore’s right to appeal the circuit court’s denial of his motion to
suppress. We reverse and remand.
On June 30, 2006, the McCracken County Sheriff’s Department set up
a roadblock on Cairo Road in Paducah. Early in the morning on July 1, 2006,
Moore was a passenger in a car driven by Erica Monique Jackson (Jackson), when
Jackson was stopped at the roadblock. Jackson, who did not have a driver’s
license, was eventually picked up by a third party, leaving Moore with the car.
At some point in time, Officer Eric Fields (Fields) of the Tennessee
Valley Authority (TVA) approached the passenger side of the car and began a
conversation with Moore. Officer Fields asked Moore where they had been and
where they were going. Moore responded that they were going to get food.
Officer Fields noticed that Moore smelled of alcohol and that he acted nervous and
evasive. Accordingly, Officer Fields asked Moore to get out of the car. Officer
Fields then asked Moore if he had any weapons, and Moore responded that he had
a pocket knife. Based upon this response, Officer Fields performed a Terry2 patdown search and felt baggies in Moore’s right front pocket. Officer Fields
removed the baggies from Moore’s pocket, and subsequent testing revealed that
the baggies contained marijuana, crack cocaine, and ecstasy. A search of the
vehicle uncovered additional baggies of marijuana. Deputy Elton Ray Smith
Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
(Smith) of the McCracken County Sheriff’s Department (the sheriff’s department)
then arrested Moore on charges of trafficking.
The grand jury indicted Moore with First-Degree Possession of a
Controlled Substance, Cocaine, First Offense; First-Degree Possession of a
Controlled Substance, Ecstasy; and Possession of Marijuana.
Moore initially filed a series of pro se motions to suppress, arguing it
was not a crime for him to be a passenger in a car while smelling like alcohol.
Therefore, the stop, search, seizure, and arrest were unlawful. The court denied
Moore’s motions. Through counsel, Moore filed a third motion to suppress, this
time arguing that the arrest was made following an illegal roadblock, that he was
illegally seized by a TVA officer, and that there was no reasonable suspicion
supporting Officer Fields’ request for Moore to get out of the car.
The circuit court held a suppression hearing on March 9, 2007.
Kentucky State Police (KSP) Sergeant Louis Dodd initially testified that the
roadblock was a joint venture, but he could not provide any specifics regarding the
roadblock as it was not part of a KSP operation. When asked whether the officers
at the scene followed the policy of KSP or the sheriff’s department’s, Sergeant
Dodd answered that “we follow our own policy, I can’t really speak to the
McCracken County, our officers follow our policy.” He was unaware of any
sheriff’s department policy regarding the roadblock nor was he familiar with TVA
Officer Fields. Sergeant Dodd further testified that if there were multiple officers
“maybe different agency’s policies” would come into play. He commented that if
he witnessed a sheriff’s department officer and “he’s doing his thing, I leave him to
do it his way.”
Deputy Smith from the sheriff’s department testified the sheriff’s
department set up the roadblock, and he was the officer in charge. When
questioned whether or not the roadblock was coordinated with KSP, he testified
that all an officer was required to do to participate in the roadblock was to notify
dispatch. He produced no written sheriff’s department policy regarding the
roadblock. However, he noted that each car that passed through the checkpoint
According to Deputy Smith, Jackson’s car was stopped at 2:00 a.m.
and Moore was arrested at 3:24 a.m. Deputy Smith attributed the time delay to the
need to complete an investigation and to complete the necessary paperwork.
Furthermore, Deputy Smith testified that it was acceptable for TVA officers to
assist with roadblocks, despite the fact that the roadblock was not on TVA owned
or operated property. He testified that he had dealt with the driver of the
appellant’s vehicle, but had no suspicion of criminal activity on the part of Moore.
Officer Fields testified that he was present at the roadblock because of
a request for additional manpower. He went on to concede on the stand that he
was not aware of the sheriff’s department’s policy regarding the roadblock, but that
he had been asked to participate by Deputy Smith. Officer Fields testified that,
while the roadblock did not take place on TVA property, he was authorized to act
by the requesting agency, as any other peace officer would be.
Officer Fields stated that he approached the passenger side of the car
and noted that Moore smelled of alcohol and appeared reluctant to answer
questions. At that point, Officer Fields asked Moore to get out of the car, asked
Moore about weapons, and, when Moore indicated he had a pocket knife, Officer
Fields performed a pat-down search of Moore. As a result of his search, Officer
Fields recovered the pocket knife as well as baggies containing illegal drugs.
Following the hearing, Moore filed a memorandum in support of his
motion to suppress, arguing that Officer Fields, as a TVA officer, did not have
authority to search or seize him, making the search unreasonable. Moore also
argued that the length of time between the stop of the vehicle and his arrest was
unreasonable. The Commonwealth filed a response, arguing that the roadblock
was proper; that Officer Fields did not arrest Moore; that Officer Fields was acting
as a private citizen assisting law enforcement officers; and that Officer Fields’
observations of Moore provided reasonable suspicion to remove Moore from the
The circuit court denied Moore’s motion to suppress, finding that the
roadblock was properly conducted, the vehicle was lawfully stopped, and the
search of Moore was legal based on the inevitable discovery exception. The circuit
court also noted that time is only a factor to be considered in determining whether
a roadblock is intrusive. Following the denial of his motion to suppress, Moore
accepted the Commonwealth’s offer on a guilty plea,3 conditioned on his right to
As a part of the plea agreement, the Commonwealth agreed to dismiss the cocaine possession
appeal the suppression ruling. The circuit court accepted his plea and sentenced
Moore to a total of five years’ imprisonment, but withheld imposition of the
sentence pending completion of a two-year period of probation. This appeal
On appeal, Moore argues that the roadblock procedures did not pass
constitutional muster, that Officer Fields did not have reasonable suspicion to
remove him from the car and conduct a pat-down search, and that Officer Fields
did not have jurisdiction to detain him. Moore also asserts that the cumulative
effect of these irregularities mandates a reversal. In its brief, the Commonwealth
maintains that Moore failed to establish that the roadblock procedures were
unconstitutional, that Officer Fields had a reasonable suspicion to order him from
the car and frisk him for weapons, and that Moore was properly arrested by a
deputy of the sheriff’s department.
STANDARD OF REVIEW
In appeals addressing the denial of a motion to suppress following an
evidentiary hearing, our standard of review is two-fold. Our first determination is
whether the findings of fact are supported by substantial evidence. If so, those
findings are conclusive. Rules of Criminal Procedure (RCr) 9.78; Adcock v.
Commonwealth, 967 S.W.2d 6, 8 (Ky. 1998). If not, they must be overturned as
clearly erroneous. Farmer v. Commonwealth, 169 S.W.3d 50, 53 (Ky. App. 2005).
Second, the reviewing court must perform a de novo review of the factual findings
to determine whether the lower court's decision is correct as a matter of law.
Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996);
Commonwealth v. Banks, 68 S.W.3d 347, 349 (Ky. 2001); Stewart v.
Commonwealth, 44 S.W.3d 376, 380 (Ky. App. 2000). Because we find the
roadblock to have been conducted in an unconstitutional manner, we will address
only that issue as the remaining questions are thereby moot.
In Commonwealth v. Bothman, 941 S.W.2d 479, 481 (Ky. App. 1996),
this Court recognized several factors important to the determination of whether a
roadblock violates the constitution.
In general, a [roadblock] must be established in such a
manner as to avoid the “unconstrained discretion”
inherent in random stops, and must be reasonably
calculated to protect public safety. Other factors to be
considered are whether the [roadblock] was conducted
pursuant to a systematic plan, and whether only some
vehicles were stopped or all vehicles were stopped.
Moreover, other jurisdictions have similarly held that a
police [roadblock] will pass constitutional muster without
strict compliance with the law enforcement agency’s
internal guidelines as long as supervisory control is
exercised over the establishment and operation of the
[roadblock], and as long as the officers do not exercise
unfettered discretion in stopping members of the general
public. [Citations omitted.]
More recently, the Supreme Court of Kentucky “suggest[ed] several
non-exclusive factors courts may consider in determining the reasonableness of a
particular roadblock.” Commonwealth v. Buchanon, 122 S.W.3d 565, 570 (Ky.
2003). Those factors include: (1) “that decisions regarding the location, time, and
procedures governing a particular roadblock should be determined by those law
enforcement officials in a supervisory position, rather than by the officers who are
out in the field[,]”; (2) that those officers working the roadblock comply with
procedures that have been established by superior officers “so that each motorist is
dealt with in exactly the same manner[,]”; (3) that “the nature of the roadblock
should be readily apparent to approaching motorists[,]”; and (4) the length of a
stop. Id. at 571.
As previously noted, the circuit court relied on the testimony of
Deputy Smith that he followed departmental procedures when he obtained prior
authorization to place the roadblock in an approved location. The court noted that
Deputy Smith was assigned to be in charge of the roadblock and was at the scene
the entire time. The circuit court found that the roadblock was properly conducted
because “McCracken County Sheriff’s Deputy Ray Smith, the officer in charge of
the roadblock, obtained prior permission and an approved location for the
roadblock as required by departmental policy.” Based on our review, the record
does not further support the circuit court’s findings, nor do we agree that the
findings support the conclusion that the roadblock was constitutionally sound.
The ultimate question of whether the facts of this case satisfy the
Buchanon standard is a mixed question of fact and law, which is subject to our
independent review. We note at the outset that the record shows no written policy
or even a coherent verbal policy regarding how the citizens stopped that evening
were to be treated. There is inadequate evidence of any systematic scheme
designed to prevent unconstrained discretion by the officers. Indeed, Officer
Fields was not only from a different jurisdiction, he was unaware of any agency
internal guidelines set forth by the sheriff’s department in McCracken County.
The supervisory control exercised over the operation of the roadblock did not
restrict other KSP officers present, nor did it confine the TVA officer. Moore was
not the driver of the vehicle, but a passenger; therefore, the implication is that the
TVA Officer was looking for evidence of ordinary criminal activity rather than
looking to prevent the immediate danger posed by otherwise impaired drivers.
Thus we hold this is in contravention of Moore’s Fourth Amendment rights as
condemned under Buchanon, supra.
The exclusionary rule mandates that the evidence collected and
consequently derived from constitutional violations may not be used at trial as it is
considered “fruit of the poisonous tree”. Wong Sun v. United States, 371 U.S. 471,
83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Because the stop of the car Moore was a
passenger in was unlawful, all evidence flowing from that stop should have been
suppressed. The trial court erred in denying the suppression motion; accordingly,
we remand this case for further proceedings not inconsistent with this opinion.
For the foregoing reasons, the judgment of the McCracken Circuit
Court is reversed.
BRIEFS AND ORAL ARGUMENT
Erin Hoffman Yang
BRIEF FOR APPELLEE:
Attorney General of Kentucky
Susan Roncarti Lenz
Assistant Attorney General
ORAL ARGUMENT FOR
Susan Roncarti Lenz