CHANDLER (CARLOS OLEN) VS. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: DECEMBER 31, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
CARLOS OLEN CHANDLER
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE JAMES D. ISHMAEL, JR., JUDGE
ACTION NO. 07-CR-00261
COMMONWEALTH OF KENTUCKY
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BEFORE: NICKELL AND THOMPSON, JUDGES; ROSENBLUM,1 SPECIAL
NICKELL, JUDGE: Carlos Olen Chandler (Chandler) entered a conditional guilty
plea pursuant to Kentucky Rules of Criminal Procedure (RCr) 8.09 in the Fayette
Circuit Court on July 6, 2007, to the amended charges of possession of a controlled
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.
substance in the first degree,2 possession of marijuana,3 and being a persistent
felony offender in the second degree (PFO II).4 He received a sentence of three
years’ imprisonment on the possession of a controlled substance charge, enhanced
to five years by virtue of his PFO II conviction, and a sentence of twelve months
on the marijuana charge to run concurrently with his felony sentence, for a total
sentence of five years’ imprisonment. By agreement with the Commonwealth, a
charge of promoting contraband5 was dismissed. Within his guilty plea, Chandler
reserved the right to appeal from the trial court’s denial of his motion to suppress
the evidence seized upon his arrest. It is from this denial that he appeals to this
On January 19, 2007, officers from the Lexington Metro Police
Department (LMPD) were dispatched to investigate a 911 call regarding possible
narcotics activity at a home located at 339 Roosevelt Avenue in Lexington,
Kentucky. Upon arrival, the officers approached the home to investigate the
suspicious activity report. After a brief investigation, the officers determined no
drug activity was occurring on the premises. As the officers were leaving the
scene, they noticed a sports utility vehicle with two or three passengers inside
parked on the street near their cruisers. The officers decided to approach the
KRS 218A.1415, a Class D felony.
KRS 218A.020, a Class A misdemeanor.
KRS 532.080, a Class C felony.
KRS 520.050, a Class D felony.
vehicle to initiate “casual contact” with the occupants and talk with them about the
suspicious activity report.
One officer approached the driver’s side of the vehicle and requested
the driver to roll down the window. The driver instead opened the door and the
officer detected a strong odor of marijuana and saw smoke rolling from the
vehicle. Chandler, the front seat passenger, acted nervous, had difficulty
producing identification, and would not make eye contact with the officers. His
eyes were glassy and fixed, he smelled strongly of marijuana, he was lethargic, and
his speech was slurred. Based on these observations, Chandler was arrested for
public intoxication. Because of his nervous demeanor, once at the detention
center, officers requested a strip search of his person. The search revealed
quantities of cocaine and marijuana located in his underpants. Chandler was then
charged with the additional offenses of trafficking in a controlled substance in the
first degree,6 trafficking in a controlled substance in or near a school,7 and
promoting contraband in the first degree.
Chandler was indicted on February 26, 2007, by a Fayette County
grand jury on the charges of trafficking in a controlled substance in the first degree,
promoting contraband, possession of marijuana, and being a PFO II. The grand
jury did not act on the public intoxication charge8 for which Chandler was initially
KRS 218A.1412, a Class C felony.
KRS 218A.1411, a Class D felony.
We note the grand jury did not return a “No True Bill” or a recommendation of dismissal, but
rather was completely silent on the public intoxication charge.
arrested. Chandler subsequently moved the court to suppress the evidence seized
arguing that since the grand jury “dismissed” the charge underlying his arrest, the
officers lacked probable cause to arrest him thus rendering the search unlawful and
anything seized inadmissible. Following a hearing on June 12, 2007, the trial court
found the facts as related herein, concluded as a matter of law that the officers had
probable cause to arrest Chandler for public intoxication, and denied Chandler’s
suppression motion. Chandler subsequently entered his conditional guilty plea and
this appeal followed.
Chandler now contends the trial court erred in denying his motion to
suppress the evidence seized as a result of his arrest. He contends the arresting
officer lacked probable cause to believe he committed the offense of public
intoxication as evidenced by the grand jury’s “dismissal” of that charge. Thus, he
argues the search incident to that arrest was illegal and the fruits of the search
should have been suppressed. We disagree.
When reviewing the denial of a suppression motion, we first review
the factual findings of the trial court, which are deemed conclusive if supported by
substantial evidence; we then review the trial court’s legal conclusions de novo.
Garcia v. Commonwealth, 185 S.W.3d 658, 661 (Ky.App. 2006) (citing Stewart v.
Commonwealth, 44 S.W.3d 376, 380 (Ky.App. 2000)). Having reviewed the trial
court’s determination regarding the relatively simple and undisputed facts of this
case, we hold the trial court’s findings were supported by substantial evidence and
are thus conclusive. Thus, we now turn to a review of the trial court’s legal
This case presents the interesting issue of the legal effect of a grand
jury failing to issue indictments on all charges presented to it. Chander believes
such failure represents a dismissal of the un-indicted charges. Additionally,
Chandler believes such failure indicates a finding by the grand jury that the
arresting officers lacked probable cause to initiate an arrest or sustain a criminal
charge, especially since in this case one of the two un-indicted acts is the one
which precipitated his initial arrest. We find Chandler’s arguments to be without
First, Chandler cites no authority for his position that a grand jury’s
failure to return an indictment on a charge constitutes a dismissal of that charge.
He also fails to cite any authority for the proposition that a grand jury has the
inherent power to dismiss a criminal charge. As such, we are convinced no such
authority exists and we will not now hold the failure of a grand jury to return an
indictment on a particular charge is tantamount to dismissal of that charge, nor that
a grand jury has such authority. In fact, under RCr9 5.22, the failure to indict acts
only to release a defendant from custody, exonerate any bail, or mandate a refund
of any bond posted, but “does not prevent the charge from being submitted to
another grand jury.” Additionally, under RCr 9.64, only the Commonwealth has
the authority to dismiss a criminal complaint prior to commencement of a trial. In
Kentucky Rules of Criminal Procedure.
Commonwealth v. Gonzales, 237, S.W.3d 575, 578 (Ky.App. 2007) (quoting
Commonwealth v. Isham, 98 S.W.3d 59, 62 (Ky. 2003)), a panel of this Court
noted “the authority to dismiss a criminal complaint before trial may only be
exercised by the Commonwealth, and the trial court may only dismiss via a
directed verdict following a trial.” Thus, the plain language of the criminal rules is
in direct opposition to Chandler’s argument.
Further, contrary to Chandler’s argument, the trial court did not take
judicial notice of a “dismissal” of any charges. Rather, the trial court merely took
judicial notice that the grand jury did not return an indictment on the public
intoxication charge. Therefore, we are unable to agree with Chandler that the
grand jury “dismissed” the public intoxication charge against him.
Next, although Chandler believes otherwise, our review of the
officers’ testimony at the suppression hearing clearly indicates a sufficiency of
probable cause to place him under arrest for the offense of public intoxication, as
correctly found by the trial court. The officers testified regarding their detection
and observation of a strong odor of marijuana, smoke coming from the vehicle
when the door opened, Chandler’s eyes being glassy and fixed, the strong smell of
marijuana about Chandler’s person, his slurred speech, difficulty producing
identification, nervous actions, and other signs the officers recognized from their
training and experience as indicative of a person being under the influence of a
controlled substance other than alcohol. Thus, we hold the trial court correctly
found the arresting officers had probable cause to initiate Chandler’s arrest and the
resulting search was proper.
Finally, we are unable to agree with Chandler’s premise that the grand
jury’s failure to indict indicates they believed the officers lacked probable cause to
arrest him on the initial charge. The record is completely silent on this point and
we will not engage in gratuitous speculation to invent support for Chandler’s
argument. Commonwealth v. Thompson, 697 S.W.2d 143, 145 (Ky. 1985).
Further, we do not believe the determination of probable cause to initiate an arrest
is a function of a grand jury, but rather one for the trial court. The proper function
of a grand jury is to determine whether “sufficient evidence” has been presented to
support an indictment. RCr 5.10. Chandler provides no authority to the contrary
and we are convinced none exists. Contrary to Chandler’s contention, the trial
court did not supplant its judgment for that of the grand jury by holding the officers
had probable cause to arrest Chandler, nor did the trial court engage in speculation
as to why the grand jury chose not to return an indictment on the public
intoxication charge. The trial court acted properly in making its legal
determinations in accordance with the law, and there was no error in denying the
motion to suppress.
Therefore, for the foregoing reasons, the judgment of the Fayette
Circuit Court is affirmed.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Jerry L. Wright
Attorney General of Kentucky
Julie R. Scott
Assistant Attorney General