MARSHALL (NABRYAN) VS. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: NOVEMBER 7, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
SUPREME COURT GRANTED DISCRETIONARY REVIEW:
FEBRUARY 11, 2009
(FILE NO. 2008-SC-0894-DG)
Commonwealth of Kentucky
Court of Appeals
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE KIMBERLY N. BUNNELL, JUDGE
ACTION NO. 07-CR-00242
COMMONWEALTH OF KENTUCKY
AFFIRMING IN PART,
VACATING IN PART, AND REMANDING
** ** ** ** **
BEFORE: COMBS, CHIEF JUDGE; STUMBO, JUDGE; GUIDUGLI,1 SENIOR
COMBS, CHIEF JUDGE: On October 15, 2007, Nabryan Marshall entered a
conditional guilty plea in Fayette Circuit Court to one count of trafficking in a
Senior Judge Daniel T. Guidugli sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
controlled substance and one count of bail jumping. He appeals an order of the
trial court denying a motion to suppress evidence that was obtained through a strip
search. He also contends that he should have received a competency hearing.
After carefully reviewing the record and examining the law, we vacate in part and
remand and affirm in part.
On January 2, 2007, Officer Schwartz of the Lexington Metro Police
Department was on patrol in the east side of Lexington when he saw Marshall
approach a convenience store. That area had been Officer Schwartz’s regular beat
for approximately one year, and he recognized Marshall from previous encounters.
Officer Schwartz was aware of an unconfirmed warrant for Marshall’s arrest2 and
had been told by residents of the area that Marshall was trafficking in drugs and
that at times he was carrying a firearm.
Because of the rumors that Marshall might be armed, Officer
Schwartz waited for backup (Officers Eden and Burns) before entering the
convenience store in order to approach Marshall. The clerk informed the officers
that Marshall did not enter the store but that he had run north upon seeing the
patrol car. Based upon prior knowledge that Marshall had been staying in some
apartments on Dalton Court, Officers Schwartz, Eden, and Burns approached the
apartments. They soon received a report from a resident that there was a
disturbance in Apartment #2 involving Marshall.
An “unconfirmed warrant” means that the officer had learned of the existence of a warrant at a
previous date but that he was not aware of whether it had been served in the interim. This
particular warrant related to traffic charges.
Officers Eden and Burns entered the apartment while Officer
Schwartz went around the back. He found two women leaving the apartment
through a window and ordered them back inside. Upon entering the apartment, he
heard a “verbal disorder” in the back of the apartment. Officer Schwartz found
Marshall in a back bedroom, facing the wall, with his hands inside the front of his
pants. A witness in the next room with Officer Burns yelled out, “It’s in his
Officer Schwartz testified that he handcuffed Marshall in order to
conduct a frisk for weapons. He confirmed at the suppression hearing that
Marshall was not under arrest at that time. During the frisk, Officer Schwartz felt a
round object in Marshall’s crotch. As he suspected that it was a rock of crack
cocaine, he unfastened Marshall’s pants and pulled them down just above knee
level and then pulled Marshall’s underwear below his buttocks. At that time, he
and Officer Eden observed a bag of crack cocaine hanging from the genital area.
Confusion ensued in the next few moments. Marshall managed to grab the crack
cocaine and went down on the ground, taking three police officers with him.3
After threatening him with a taser, they were able to get the crack cocaine from
him and complete the search. They placed Marshall under arrest and charged him
with trafficking in a controlled substance and tampering with evidence.
At some point, Officer Burns had joined Officers Eden and Schwartz in the room where they
conducted the search. Only Officers Eden and Schwartz were in the room when Marshall was
Prior to trial, Marshall filed a motion to suppress the crack cocaine
found during the search. The trial court denied his motion. Subsequently,
Marshall entered a conditional guilty plea, preserving the motion for appeal. As
part of the guilty plea, the count of tampering with physical evidence was dropped,
and a count of bail jumping was added because Marshall had missed a previous
trial date. He received a sentence of six years, which the judge probated.
Marshall first argues that his motion to suppress was improperly
denied because the strip search violated his right to privacy under the Fourth
Amendment. The Fourth Amendment of the United States Constitution (as well as
Section 10 of the Kentucky Constitution) guarantees “[t]he right of the people to be
secure in their persons . . . against unreasonable searches and seizures[.]” The trial
court admitted into evidence the crack cocaine found during the search of
Marshall, ruling that the search was reasonable because it “was not overly
intrusive.” Marshall disagrees and contends that the strip search conducted before
he was arrested was unreasonable.
The standard of a review for a motion to suppress evidence is twofold. First, Kentucky Rule(s) of Criminal Procedure (RCr) 9.78 provides that, “If
supported by substantial evidence the factual findings of the trial court shall be
conclusive.” If upon review of the factual findings under a clearly erroneous
standard, we conclude that they are supported by substantial evidence, we then
undertake a de novo review of the trial court’s application of the law to those
facts. Lynn v. Commonwealth, 257 S.W.3d 596, 598 (Ky. App. 2008).
The Supreme Court has authorized warrantless stop and frisks of
suspects under carefully defined circumstances. Terry v. Ohio, 392 U.S. 1, 88
S.Ct. 1868, 20 L.Ed.2d 889 (1968). However, these Terry frisks, or pat-downs,
must be reasonable and are generally restricted to searching for weapons and to
preventing destruction of evidence. Id. at 17 n.12, 19. In order to be reasonable,
the search must be justified from its inception, and it must be “reasonably related
in scope to the circumstances which justified the interference in the first place.”
Id. at 20.
In Minnesota v. Dickerson, 508 U.S. 366, 373, 113 S.Ct. 2130, 124
L.Ed.2d 334 (1993), the U.S. Supreme Court held that contraband seized in a Terry
pat-down is admissible evidence as long as the search was conducted within the
confines of Terry. The Court applied a plain-feel doctrine, analogizing it to the
plain-view warrant exception. It emphasized that touch is more intrusive than
sight; therefore, any unknown object that is not a weapon must be immediately
identifiable as contraband in order to be properly seized. Id. at 375. An object’s
identity is not immediately apparent for plain-feel purposes if it must be
determined by moving or manipulating the object. Commonwealth v. Jones, 217
S.W.3d 190, 197 (Ky. 2006). The result of Dickerson was the exclusion of a crack
cocaine rock found in the defendant’s pocket in the course of a Terry pat-down. In
Commonwealth v. Crowder, 884 S.W.2d 649 (Ky. 1994), our Supreme Court
applied Dickerson to exclude drugs found in the defendant’s pocket in the course
of a Terry pat-down.
This search was conducted as a Terry pat-down rather than a search
incident to an arrest. The record indicates that the arrest occurred after the search,
and Officer Schwartz testified that the outstanding warrant was unconfirmed at the
beginning of the encounter. Furthermore, he himself described the search as a
“Terry frisk.” Even if the search had been conducted incident to an arrest, we note
the reservation of the D.C. Circuit: “the bare fact that a person is validly arrested
does not mean that he is subject to any and all searches that the arresting officer
may wish to conduct.” U.S. v. Mills, 472 F.2d 1231, 1234 (D.C. Cir. 1972).
We agree with the parties that the Terry pat-down itself was justified.
Officer Schwartz had been told that Marshall sometimes carried a firearm, and he
certainly had a reasonable basis for performing a protective frisk. However, we
conclude that the strip search exceeded the scope of a Terry stop-and-frisk.
First, Officer Schwartz testified that he felt a crack cocaine rock in
Marshall’s pants while patting him down. Under the plain-feel doctrine, further
exploration was not proper. Officer Schwartz had already determined that there
was no weapon. He described the object merely as a hard, round object that could
“possibly be crack cocaine.” Marshall was wearing jeans, and a hard, round object
could have been numerous items other than contraband.
In Jones, a police officer could not ascertain that the defendant did not
have a prescription on a container until he removed it from the defendant’s pocket.
Our Supreme Court held that the pill bottle was improperly seized because it was
not immediately apparent that the bottle contained contraband. The extra,
impermissible element of exploration tainted the search. 217 S.W.3d at 197.
We are persuaded that the police officers exceeded the bounds of
propriety and reasonableness in pulling down Marshall’s pants and underwear,
leaving him exposed. Though some states have statutes that specifically govern
how strip searches should be conducted, Kentucky does not. Therefore, we must
apply Fourth Amendment principles of reasonableness, which the U.S. Supreme
Court has defined as:
a balancing of the need for the particular search against
the invasion of personal rights that the search entails.
Courts must consider the scope of the particular
intrusion, the manner in which it is conducted, the
justification for initiating it, and the place in which it is
Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), Masters
v. Crouch, 872 F.2d 1248, 1253 (6th Cir. 1989). We conclude that the search of
Marshall fails this test.
We shall first examine the scope and manner of the search. In a
venerable old case, the U.S. Supreme Court stressed the sanctity of one’s personal
privacy when it said:
The inviolability of the person is as much invaded by a
compulsory stripping and exposure as by a blow. To
compel any one . . . to lay bare the body, or to submit it
to the touch of a stranger, without lawful authority, is an
indignity, an assault, and a trespass[.]
Union Pac. Ry. Co. v. Botsford, 141 U.S. 250, 11 S.Ct. 1000, 35 L.Ed. 734 (1891)
(emphasis added). The Eighth Circuit reiterated this concept more recently when it
stated that: “a strip search, regardless how professionally and courteously
conducted, is an embarrassing and humiliating experience.” Hunter v. Auger, 672
F.2d 668, 674 (8th Cir. 1982).
The trial court made a finding that the search did not cause Marshall
embarrassment – contrary to Marshall’s direct assertion that he was “acutely
embarrassed.” Officer Schwartz testified that he pulled Marshall’s pants almost to
his knees; he pulled Marshall’s underwear down past his buttocks, leaving him
fully exposed. Marshall was in handcuffs at the time. Although Officer Schwartz
testified that he did not believe anyone could see into the room where the search
was conducted, he admitted that the door was open and that several people were in
the apartment. He also had told two women to stay inside the apartment. We are
not aware that he took any precautions to prevent them from viewing the scene of
By contrast, in U.S. v. Williams, 477 F.3d 974 (8th Cir. 2007), the
defendant was taken to a more private location for a search after police felt an
object under his clothing. Additionally, the statutes for Florida, Connecticut, and
New Jersey all require strip searches to be conducted in sanitary premises where
the search cannot be observed by anyone not necessarily involved in the
procedure; it must be approved in writing by a supervisor. Fla. Stat. Ann. §
901.211, Conn. Gen. Stat. Ann. § 54-33l, N.J. Stat. Ann. § 2A:161A-4. In the most
similar Kentucky case, a strip search at the scene of arrest was conducted in a
closed bathroom, and it was the result of an otherwise corroborated tip specifically
detailing that the suspect had drugs concealed in his buttocks. Williams v.
Commonwealth, 147 S.W.3d 1 (Ky. 2004).
Using the Bell factors, we recapitulate the sequence of events of the
search in this case. The police thought that there was an outstanding warrant for
traffic offenses for Marshall’s arrest. When they found him, his hands were inside
his pants. A witness was yelling, “It’s in his crotch.” The police handcuffed
Marshall and determined that he did not have a weapon on his body. Even though
Officer Schwartz detected an unknown object under Marshall’s clothes, it was not
immediately apparent by touch alone that the object was contraband. Because of
the handcuffs, Marshall could not have destroyed the evidence. In fact, Marshall
was not able to grab the bag of crack cocaine until the officers undressed him.
They could have placed him under arrest for the outstanding warrant and then have
proceeded to conduct such an intrusive search in a controlled environment.
The U.S. Supreme Court has reinforced heightened measures for
personal modesty, declaring that:
Police conduct that would be . . . embarrassingly
intrusive – on the street can more readily – and privately
– be performed at the station. . . . [T]he interests
supporting a search incident to arrest would hardly justify
disrobing an arrestee on the street, but the practical
necessities of routine jail administration may even justify
taking a prisoner’s clothes before confining him,
although that step would be rare.
Illinois v. Lafayette, 462 U.S. 640, 645, 103 S.Ct. 2605, 77 L.Ed.2d 65 (1983).
The North Carolina Court of Appeals has recently held that looking down a
suspect’s pants with a flashlight was unreasonable and exceeded the scope of a
Terry frisk. State v. Stone, 634 S.E.2d 244 (N.C. Ct. App. 2006).
Kentucky’s prison disciplinary manual, Kentucky Corrections Policies
and Procedures (KCPP) at § 9.8 provides very specific guidelines for how a strip
search of inmates should be conducted. Such a search is required to be logged and
performed “in a dignified manner” and in sanitary conditions. KCPP §
9.8(II)(A)(1)(g). The U.S. Supreme Court has consistently upheld the concept that
prison inmates have a diminished right of privacy due to institutional safety
interests. See Bell, supra; Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41
L.Ed.2d 935 (1974); Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d
393 (1984); Samson v. California, 547 U.S. 843, 126 S.Ct. 2193, 165 L.Ed.2d 250
(2006). At the time of this search, although Marshall was not in custody, he was
not afforded the level of dignity provided by our state’s procedures for inmates.
Forcefully disrobing an unarrested man in handcuffs in an apartment without even
closing the door falls far short of the standard “in a dignified manner.” We hold
that the search of Marshall exceeded the legitimate scope of a Terry frisk and that
it was, therefore, unreasonable.
Marshall also argues that the court erred by not ordering a
competency evaluation and hearing. Kentucky Revised Statute(s) (KRS) 504.100
directs a trial judge to order a competency evaluation and hearing if he “has
reasonable grounds to believe the defendant is incompetent to stand trial[.]”
In Kentucky, the standard of competency is “whether the defendant
has a substantial capacity to comprehend the nature and consequences of the
proceedings against him and to participate rationally in his defense.” Alley v.
Commonwealth, 160 S.W.3d 736, 739 (Ky. 2005). Our standard of review is
“[w]hether a reasonable judge, situated as was the trial court judge . . . should have
experienced doubt with respect to competency to stand trial.” Mills v.
Commonwealth, 996 S.W.2d 473, 486 (Ky. 1999) (citations omitted). Such
“reasonable grounds must be . . . so obvious that the trial court cannot fail to be
aware of them[.]” Via v. Commonwealth, 522 S.W.2d 848 (Ky. 1975).
During his guilty plea colloquy, Marshall informed the court that in
the past he had been diagnosed with post-traumatic stress disorder, bi-polar
disorder, and obsessive compulsive disorder and that he had not taken medication
for approximately two years. Marshall stated in court that neither the mental
conditions with which he had been diagnosed nor the lack of medication affected
his understanding of the proceedings. He displayed a thorough understanding of
the implications of his conditional guilty plea and what issue could be appealed
when asked if he knew what his plea meant. Additionally, his attorney indicated
that Marshall was “very bright and very articulate” and that they had engaged in
“very meaningful conversations” concerning his choices. There is no evidence of
any obvious implication of KRS 504.100.
Courts give substantial weight to a defendant’s statements, his
attorney’s statements, and the findings of the trial court judge during a guilty plea
colloquy. Blackledge v. Allison, 431 U.S. 63, 73-74, 97 S.Ct. 1621, 52 L.Ed.2d
136 (1977). In order to contradict the outcome of the colloquy, allegations must be
specific – not conclusory. Id.
Marshall has failed to provide specific examples of any adverse
effects of the bi-polar disorder, post-traumatic stress, or obsessive compulsive
disorder. He does not offer any reason that his particular illnesses should have
affected his ability to understand the proceedings and to participate in his defense.
In West v. Commonwealth, 161 S.W.3d 331, 335 (Ky. App. 2004), this court
rejected the defendant’s claim of incompetence because it was not based on “any
clear facts.” The record does not show any clear factual evidence to contradict
Marshall’s own statements asserting his competency. The trial court did not err by
not ordering a competency evaluation and hearing. We affirm this issue.
We conclude that the search of Marshall exceeded Fourth Amendment
principles of reasonableness. Therefore, we vacate the order of the Fayette Circuit
Court on the motion to suppress evidence and remand for a trial. We find no error
in the court’s failure to order a competency evaluation and hearing. We affirm on
Accordingly, we vacate in part and remand and affirm in part.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Linda Roberts Horsman
Department of Public Advocacy
Attorney General of Kentucky
Gregory C. Fuchs
Assistant Attorney General