ROUNTREE (MARK T.) VS. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: OCTOBER 17, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
MARK T. ROUNTREE
APPEAL FROM HARDIN CIRCUIT COURT
HONORABLE JANET P. COLEMAN, JUDGE
ACTION NO. 05-CR-00556
COMMONWEALTH OF KENTUCKY
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BEFORE: VANMETER AND WINE, JUDGES; LAMBERT,1 SENIOR JUDGE.
LAMBERT, SENIOR JUDGE: Mark Rountree appeals from a Hardin Circuit
Court judgment based upon his conditional guilty plea to charges of complicity to
commit manufacturing methamphetamine, complicity to commit first-degree
possession of a controlled substance, complicity to commit second-degree
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.
possession of a controlled substance, and complicity to commit possession of drug
paraphernalia. Rountree was sentenced to a total of fourteen years confinement
followed by five years of probation. His grounds for appeal are that the trial court
erred by denying his motion to suppress evidence seized from his automobile.
Upon our conclusion that the police had a reasonable suspicion that criminal
activity was afoot and therefore had authority to stop Rountree’s vehicle, and on
our further conclusion that the subsequent warrantless search was not
unreasonable, we affirm the judgment.
On August 28, 2005, at approximately 8:00 pm, Mark Rountree
purchased two packages of over-the-counter allergy medication containing
pseudoephedrine from Walgreens. Before the purchase was complete, Rountree
was required to present his drivers license and sign a Kentucky narcotics log.
Immediately after Rountree bought his allergy pills, another man attempted to
purchase an unknown quantity of similar allergy medication also containing
pseudoephedrine. However, the other man did not have a driver’s license so
Walgreens refused the sale.
After Rountree left the pharmacy, a Walgreens employee contacted
the Elizabethtown Police Department and reported that two men had attempted to
purchase pseudoephedrine, one successfully and the other unsuccessfully due to
lack of a driver’s license. The quantity of the successful purchase was reported to
be 96 pills containing 5.7 grams of pseudoephedrine. Kentucky law prohibits the
purchase of more than 9 grams of pseudoephedrine within 30 days. KRS2
218A.1437.3 In addition to Kentucky state law, at the time of the purchase
Walgreens policy prohibited sale of allergy pills containing a total of 6 grams or
more of pseudoephedrine at one time. Rountree’s purchase was within the legal
pseudoephedrine quantity limit and within Walgreens policy limit.
On being contacted by Walgreens, the Elizabethtown Police
conducted a record check on Rountree based upon information contained in the
driver’s license record and the narcotics log. From the information search, the
police learned that Rountree drove a maroon Dodge that was registered in Hart
County, and they began searching for Rountree at various pharmacies in
Elizabethtown. While searching for Rountree at Walmart, Detective Billy
Edwards located a maroon Dodge Intrepid automobile. On confirming that it was
registered to Rountree, Detective Edwards observed Rountree leave Walmart,
circle around the parking lot and adjust his wind-shield wipers. Detective Edwards
Kentucky Revised Statutes.
KRS 218A.1437 provides:
(1) A person is guilty of unlawful possession of a methamphetamine precursor
when he or she knowingly and unlawfully possesses a drug product or
combination of drug products containing ephedrine, pseudoephedrine, or
phenylpropanolamine, or their salts, isomers, or salts of isomers, with the intent to
use the drug product or combination of drug products as a precursor to
manufacturing methamphetamine or other controlled substance.
(2)(a) Except as provided in paragraph (b) of this subsection, possession of a drug
product or combination of drug products containing more than nine (9) grams of
ephedrine, pseudoephedrine, or phenylpropanolamine, or their salts, isomers, or
salts of isomers, within any thirty (30) day period shall constitute prima facie
evidence of the intent to use the drug product or combination of drug products as
a precursor to methamphetamine or other controlled substance.
then observed another man, later identified as Jon Lindsay, enter Rountree’s
automobile. Detective Edwards followed as Rountree and Lindsey drove out of the
parking lot, but Edwards did not know whether Rountree or Lindsay had purchased
allergy medication or anything else at Walmart.
The police followed Rountree onto the US 31-W Bypass, where they
initiated a traffic stop. Upon approaching the automobile, the police questioned
Rountree about the pseudoephedrine he had purchased at Walgreens. Rountree
admitted to the police that he had also purchased pseudoephedrine from other
pharmacies and that he used methamphetamine. While talking with Rountree,
Detective Edwards observed multiple packages of allergy pills in the car. Upon
seeing the pills, the police officers searched the automobile and the search revealed
numerous allergy pills containing a total of 94 grams of pseudoephedrine, lithium
batteries, solvents used in manufacturing methamphetamine, receipts detailing
pseudoephedrine purchases from Glasgow and Ohio, and receipts detailing
purchases of piping and a funnel. Police also searched a green eye glasses case
inside the automobile which was found to contain hydrocodone, aluminum foil,
and a small bag of a substance later identified as methamphetamine. Based upon
the evidence seized Rountree was arrested.
Following his October 28, 2005, indictment, a hearing was held on
Rountree’s motion to suppress evidence seized during the search of his automobile.
Rountree claimed that both the initial stop and the subsequent search of the
automobile were unlawful and that the evidence seized had to be suppressed.
The trial court denied Rountree’s motion to suppress, explaining
It is the finding of this Court based on the fact that
Rountree had purchased the maximum amount of
pseudoephedrine allowed by the Walgreens pharmacy
and that his passenger had also attempted to purchase
pseudoephedrine at the same pharmacy but had been
turned down because of lack of identification that an
articulable suspicion did exist for the stop in this case.
This appeal followed.
Upon appellate review, this Court must affirm trial court findings of
fact if those findings are supported by substantial evidence. RCr 9.78. Our review
of the facts is for clear error and deference must be given to reasonable inferences
available from the evidence. Commonwealth v. Whitmore, 92 S.W.3d 76, 79 (Ky.
2002), quoting Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 1663,
134 L.Ed.2d 911 (1996). If the trial court’s findings of fact are determined to be
supported by substantial evidence, we then conduct a de novo review of the trial
court's application of the law to the facts found to determine whether the decision
on the law is correct. Commonwealth v. Neal, 84 S.W.3d 920, 923 (Ky. App.
We have no doubt that the trial court’s findings of fact are supported
by substantial evidence. While it is true that Rountree did not purchase the
absolute maximum amount of pseudoephedrine allowed by Walgreen’s policy, the
trial court’s finding in that respect is not without sufficient evidentiary support.
The minor factual discrepancy between the quantity purchased and Walgreens
policy is insignificant. Of greater significance, however, is precisely what
information was communicated by Walgreens employees to the Elizabethtown
police. Specifically, were the police informed that two men who were traveling
together had attempted to purchase pseudoephedrine, or was it merely a
coincidence that one man had successfully purchased pseudoephedrine and that
immediately thereafter another man had tried but failed to make a similar purchase
due to lack of identification? We have carefully reviewed the record of the
suppression hearing and the testimony appears to support the view that the police
could have reasonably inferred from information given by Walgreens employees
that the two men were together in Walgreens during the relevant time.
Accordingly, the trial court’s finding of fact with respect to the amount of
pseudoephedrine purchased by Rountree and its finding of fact that Rountree’s
companion had also attempted to purchase pseudoephedrine at the same pharmacy
are supported by substantial evidence. RCr 9.78.
On the basis of the trial court’s findings of fact, we must determine
whether the police had a “reasonable suspicion” to stop Rountree. For a lawful
automobile stop, police must have a reasonable suspicion of criminal activity afoot.
Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Police suspicion
need not rise to the level of probable cause, however the suspicion must be based
on “specific and articulable facts which, taken together with rational inferences
from those facts, reasonably warrant that intrusion.” Id. at 22. The relevant
inquiry in making a determination of reasonable suspicion is not whether particular
conduct is “innocent” or “guilty,” but the degree of suspicion that attaches to
particular types of even non-criminal conduct. Illinois v. Gates, 462 U.S. 213, 103
S.Ct. 2317, 76 L.Ed.2d 527 (1983). The distinction is whether the police have a
mere hunch or whether the facts give rise to a reasonable suspicion.
This Court considered a similar case in Nichols v. Commonwealth,
186 S.W.3d 761 (Ky. App. 2005). We held that reasonable suspicion existed when
Nicholas was observed buying three or four boxes of allergy pills containing
pseudoephedrine and exhibiting strange, nervous behavior. In Nichols, when the
police stopped the defendant they did not know exactly how many boxes of
pseudoephedrine he had purchased. However, an off-duty police officer working
as a security guard testified that he had contacted police because in addition to the
amount that the defendant purchased, the defendant also appeared to be nervous
and fit the profile, from his experience as a law enforcement officer, of a person
involved with methamphetamine.
As found by the trial court herein, when Rountree’s car was stopped,
the police had information that he had purchased two boxes of allergy pills and that
another man who appeared to be with him had unsuccessfully attempted to make a
similar purchase. The police did not know the identity of Rountree’s automobile
passenger but they could have reasonably inferred that the man with Rountree in
his car was the same man who had unsuccessfully attempted to purchase
pseudoephedrine a short while earlier from Walgreens. It is worth reiterating that
the decisive inquiry is whether the police possessed a reasonable suspicion at the
time they stopped Rountree’s vehicle. We conclude that the standard of reasonable
suspicion was met and that the automobile stop was justified.
Upon our determination that the police had an articulable suspicion
for stopping Rountree’s automobile, we must also determine whether his
constitutional rights were violated when his vehicle was searched without a
From the evidence presented at the suppression hearing, it appears
that multiple packages of allergy pills were visible when Detective Edwards
approached and looked inside Rountree’s automobile. Upon questioning, Rountree
admitted that he had also purchased pseudoephedrine from other pharmacies and
that he used methamphetamine. In response to this information, an automobile
search was conducted and it revealed numerous incriminating items.
Rountree now contends that the warrantless search of his vehicle was
in violation of the Fourth Amendment to the Constitution of the United States and
Section 110 of the Constitution of Kentucky. Our decision in Gray v.
Commonwealth, 28 S.W.3d 316 (Ky. App. 2000), answers and defeats this
It is well established that “automobiles . . . may be
searched without a warrant in circumstances that would
not justify the search without a warrant of a house or an
office, provided that there is probable cause to believe
that the car contains articles that the officers are entitled
to seize.” Thus, an officer may search a legitimately
stopped automobile where probable cause exists that
contraband or evidence of a crime is in the vehicle. The
search may be as thorough as a magistrate could
authorize via a search warrant, including all
compartments of the automobile and all containers in the
automobile which might contain the object of the search.
Id. at 319. (Citations omitted.)
When police officers have probable cause to believe
there is contraband inside an automobile that has been
stopped on the road, the officers may conduct a
warrantless search of the vehicle, even after it has been
impounded and is in police custody.
Id. (Emphasis added.)
Our view in this respect is consistent with the trial court’s conclusion
that “probable cause” and “exigent circumstances” were present justifying the
warrantless search of Rountree’s automobile.
For the foregoing reasons, the judgment of the trial court is affirmed.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Lisa Bridges Clare
Attorney General of Kentucky
Perry T. Ryan
Assistant Attorney General