RICHARDS (TERRENCE) VS. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: OCTOBER 31, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE JAMES D. ISHMAEL, JR., JUDGE
ACTION NO. 06-CR-01160
COMMONWEALTH OF KENTUCKY
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BEFORE: NICKELL AND THOMPSON, JUDGES; ROSENBLUM,1 SPECIAL
THOMPSON, JUDGE: Terrence Richards appeals from a judgment of the Fayette
Circuit Court following a conditional guilty plea. Pursuant to his plea, Richards
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.
reserved the right to appeal the denial of his suppression motion. For the reasons
stated herein, we affirm.
On the afternoon of July 12, 2006, Lexington Police Officer Anthony
Miranda observed two people kissing inside a parked car on a public street. Aware
of neighborhood complaints about drugs and prostitution, Officer Miranda
approached the car and asked the driver and passenger what they were doing.
After they responded that they were waiting for someone, Officer Miranda asked
them to produce identification.
Although the passenger produced a license, the driver was unable to
produce identification but stated his address, date of birth, and that his name was
“Lance Smith.” After dispatch found no record of this name, Officer Miranda
returned to the parked car and informed the driver that providing false information
to police was a crime. The driver then identified himself as Terrence Richards and
stated that he had two outstanding warrants against him.
Dispatch confirmed that Richards had two outstanding warrants and
revealed he was wanted for a parole violation. Richards was asked to exit his
vehicle and was taken into custody. The passenger was then asked to exit the
vehicle. Without being read his Miranda rights, Richards was asked if there was
anything in the vehicle that police should know about before it was searched.
After Richards was non-responsive, Officer Miranda searched the vehicle and
discovered 1.7 grams of crack cocaine in the driver’s seat. As Officer Miranda
began handcuffing the passenger, Richards informed him that the crack cocaine
belonged to him rather than his passenger.
Subsequently, Richards was indicted for possession of a controlled
substance, first-degree; fleeing and evading, first-degree; giving a false name or
address to police; and being a persistent felony offender, first-degree. On
November 16, 2006, the trial court held a suppression hearing where Officer
Miranda was the lone witness. Following the hearing, the trial court issued its
findings of fact and conclusions of law from the bench.
The trial court ruled that Richards was not in custody until his arrest
and that the search was validly conducted incident to Richards’ arrest. After his
suppression motion was denied, Richards entered a conditional guilty plea to firstdegree possession of a controlled substance and for being a first-degree persistent
felony offender (PFO I). He was sentenced to ten-years’ imprisonment pursuant to
the PFO I enhancement. This appeal followed.
Richards contends that Officer Miranda could not approach his
vehicle and ask questions without reasonable suspicion that Richards was engaging
in criminal activity. Contending that Officer Miranda had no reasonable suspicion,
Richards argues that all evidence obtained after his vehicle was approached should
have been suppressed as the fruits of an unlawful search. We disagree.
Our standard of review of a trial court's denial of a motion to suppress
is two-fold as set out in Ornelas v. U.S., 517 U.S. 690, 116 S.Ct. 1657, 134
L.Ed.2d 911 (1996), and adopted by Kentucky in Adcock v. Commonwealth, 967
S.W.2d 6 (Ky. 1998). We first determine whether the findings of fact are
supported by substantial evidence. Id. at 8. If a trial court’s findings are supported
by substantial evidence, they are conclusive and will not be disturbed. Drake v.
Commonwealth, 222 S.W.3d 254, 256 (Ky.App. 2007).
An appellate court then conducts a de novo review of the trial court's
application of the law to the facts to determine whether its ruling was correct as a
matter of law. Adcock, 967 S.W.2d at 8. Under de novo review, we afford no
deference to the trial court’s application of the law to the established facts. Cinelli
v. Ward, 997 S.W.2d 474, 476 (Ky.App. 1998).
Citizens and police may engage in three types of interactions: (1)
consensual encounters; (2) temporary detentions, often called Terry stops; and (3)
arrests. Fletcher v. Commonwealth, 182 S.W.3d 556, 559 (Ky.App. 2005).
Although Terry stops and arrests trigger constitutional protections, consensual
encounters between police and citizens do not implicate the Fourth Amendment.
Id. To exceed the level of a consensual encounter, police must restrain an
individual’s liberty by means of physical force or show of authority to an extent
that a reasonable person would believe that he was not free to leave. Baker v.
Commonwealth, 5 S.W.3d 142, 145 (Ky. 1999).
In this case, the Fourth Amendment was not implicated when Officer
Miranda approached Richards’ vehicle, asked him general questions, and requested
identification. Generally, even without reasonable suspicion, police may approach
citizens in a public place and ask them questions and request identification. U.S. v.
Drayton, 536 U.S. 194, 201, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002).
Furthermore, Officer Miranda testified that he did not activate his cruiser’s lights,
did not brandish his weapon, and did not assume an intimidating posture when he
approached Richards. Thus, Officer Miranda’s conduct would not have caused a
reasonable person to believe that he was not free to terminate the encounter.
Richards next contends that the trial court erred by not ruling that
Officer Miranda’s prolonged detention of him was unreasonable. According to
Richards, after Officer Miranda cleared him through a call to dispatch, Officer
Miranda was not permitted to further inquire into any criminal activities absent
reasonable suspicion. Thus, Richards contends that Officer Miranda’s continued
detention of him, without reasonable suspicion, violated his constitutional rights.
All searches without a warrant are unreasonable unless they are within
one of the exceptions to the rule that a search must be made pursuant to a valid
warrant. Cook v. Commonwealth, 826 S.W.2d 329, 331 (Ky. 1992). A warrantless
search incident to an arrest is an exception to the warrant requirement whereby
police may search the area within the arrestee's immediate control. Davis v.
Commonwealth, 120 S.W.3d 185, 191 (Ky.App. 2003).
Applying these principles to this case, Officer Miranda properly asked
Richards and his passenger for identification and was justified in his follow-up
questioning after the name “Lance Smith” was not found by dispatch. Kentucky
law requires that drivers present identification to police upon request. Kentucky
Revised Statutes (KRS) 186.510. When Officer Miranda began his second attempt
to ascertain the driver’s identification, Richards notified Officer Miranda that he
had outstanding warrants against him. At this time, Officer Miranda had probable
cause to arrest Richards.
Notwithstanding the existence of probable cause, instead of
immediately retraining Richards, Officer Miranda exercised discretion and chose
to confirm the existence of the warrants before proceeding any further. After the
warrants were confirmed, Richards was placed under arrest. Accordingly, based
on the facts of this case, Officer Miranda properly arrested Richards and conducted
a valid search incident to the arrest. Williams v. Commonwealth, 147 S.W.3d 1, 8
Richards next contends that Officer Miranda’s failure to Mirandize
him immediately following his arrest violated his constitutional right against
compelled self-incrimination. Under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct.
1602, 16 L.Ed.2d 694 (1966), police are required to inform defendants of various
constitutional rights, including the right to remain silent. Richards contends that
the police improperly obtained an incriminating statement from him before he was
informed of his right to remain silent. We disagree.
Officer Miranda did not violate Richard’s constitutional rights when
Richards claimed ownership of the crack cocaine. While Richards made the
incriminating statement while in custody, he was not being interrogated at the time
so a Miranda warning was not necessary. “A Miranda warning is not required
when a suspect is merely taken into custody, but rather when a suspect in custody
is subject to interrogation.” Watkins v. Commonwealth, 105 S.W.3d 449, 451 (Ky.
2003). Accordingly, under these circumstances, the failure to Mirandize Richards
did not violate his constitutional rights.
For the foregoing reasons, the judgment of conviction of the Fayette
Circuit Court is affirmed.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Susan Jackson Balliet
Assistant Public Advocate
Department of Public Advocacy
Attorney General of Kentucky
Julie R. Scott
Assistant Attorney General