PATTERSON (MARTY J.) VS. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: DECEMBER 31, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
MARTY J. PATTERSON
APPEAL FROM HARDIN CIRCUIT COURT
HONORABLE JANET P. COLEMAN, JUDGE
ACTION NO. 06-CR-00309
COMMONWEALTH OF KENTUCKY
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BEFORE: DIXON AND THOMPSON, JUDGES; LAMBERT,1 SENIOR JUDGE.
LAMBERT, SENIOR JUDGE: The issues presented are whether a search
conducted prior to arrest may constitute a search incident to arrest, and whether the
police had probable cause to arrest Marty Patterson although they had no
acquaintance with him or prior knowledge of his likely criminal conduct.
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.
On March 25, 2006, during a Hardin County Narcotics Task Force
investigation, a confidential informant (CI) told police that Henry Perkins was a
60-year-old Louisville drug dealer who delivered drugs to Elizabethtown. The CI
gave the police a physical description of Perkins and told them that Perkins drove a
tan Lincoln Town Car. The CI then placed a series of telephone calls to Perkins to
arrange a cocaine buy and delivery to the Fort Knox Inn, room number 115. Police
officers were present during these phone calls.
At approximately 9:45 p.m., a tan Lincoln Town Car entered the Fort
Knox Inn parking lot. The officer noted that the driver matched the CI’s
description of Perkins. Perkins, a female passenger riding in the front seat, and a
male passenger riding in the back seat, all exited the automobile. The three then
walked toward room number 115. Police officers approached Perkins and his
passengers with guns drawn, directed them to the ground, and handcuffed them.
The police identified Perkin’s female passenger as Alesha Quarrels and the male
passenger as Appellant Marty Patterson. The officers searched all three
individuals and seized 9 grams of cocaine from Appellant’s right sock. Twenty
minutes later, Patterson was charged with complicity to commit trafficking in a
At the evidence suppression hearing, a police detective admitted that
Patterson did not consent to the search. Further, the detective admitted that the CI
did not provide any information concerning Patterson and that police did not know
anything about Patterson until he arrived at the Fort Knox Inn with Perkins.
Patterson argued to the trial court that the police lacked probable cause to arrest
him because they had no information pertaining to him. The trial court found that
probable cause to arrest existed because Patterson accompanied Perkins to a
monitored drug transaction. The court emphasized that Patterson exited the car
with Perkins and began walking toward room number 115. The court reasoned
that as a result, there was probable cause to believe that Patterson was an active
participant in a drug transaction.
On November 6, 2007, Patterson entered a conditional guilty plea to
the charge of complicity to traffic in a controlled substance. On December 14,
2007, he was sentenced to 6 years’ imprisonment. This appeal followed.
As a reviewing Court we first examine the evidence to determine
whether the trial court’s findings were supported by substantial evidence. RCr
9.78; Adcock v. Commonwealth, 967 S.W.2d 6, 8 (Ky. 1998). If the trial court’s
findings were properly supported, we then conduct a de novo review of the
applicable law. Id. In this case, the trial court’s findings were based on the
following substantial evidence: Patterson arrived with Perkins, a known drug
dealer who was then engaged in a drug transaction. Patterson exited the car at the
Fort Knox Inn, and Patterson walked toward room number 115, the designated
The trial court provided an excellent analysis of the law applicable to
this case. Accordingly, we quote at length from her opinion:
The issue before the court is whether the officers
had probable cause to arrest and search Patterson.
Prerequisite to making a warrantless arrest for a felony
offense is the existence of probable cause. KRS
431.005(1)(c). A warrantless search is reasonable so
long as probable cause to arrest existed before the search,
and the arrest and search were substantially
contemporaneous. Williams v. Commonwealth, 147
S.W.3d 1(Ky. 2004)(internal citations omitted). Probable
cause cannot be precisely defined, but it is a nontechnical common sense standard that depends upon the
totality of the circumstances. Id. When probable cause
is based in part on a tip from an informant, the “totality
of the circumstances test requires a balancing of the
relative indicia of reliability accompanying an
informant’s tip.” Lovett v. Commonwealth, 103 S.W.3d
72, 78 (Ky. 2003). Furthermore, “probable cause for
search or seizure of a person must be particularized with
respect to that person.” Ybarra v. Illinois, 444 U.S. 85
(1979). The Ybarra Court also stated “this requirement
cannot be undercut or avoided by simply pointing to the
fact that coincidentally there exists probable cause to
search or seize another or to search the premises where
the person may happen to be.” Id. at 91. Additionally,
“a person’s mere presence in the same car with a criminal
offender does not authorize an inference of participation
in a conspiracy.” United States v. Di Re, 332 U.S. 581
The probable cause to arrest Patterson was
particularized because he was not an unwitting bystander
or passenger in the car. In Ybarra, the officers executed
a warrant during daylight that authorized them to search a
bar and the person of a bartender who allegedly sold
heroin there. They had no objective grounds to believe
that any patron then on the premises, including Ybarra,
had purchased heroin from the bartender or anyone else.
They did not recognize Ybarra or see him do anything
suspicious. Nevertheless, they searched him, along with
the other patrons, and found heroin on him. The
Supreme Court held the drug evidence should have been
suppressed because a person’s mere proximity to others
who were “independently suspected of criminal activity
does not, without more, give rise to probable cause to
search that person.” Id. Similarly in Di Ri, the defendant
was arrested because he was in the front seat of a car next
to the driver, who an informant sitting in the backseat
said had given him two gasoline ration coupons later
determined to be counterfeit. While in custody,
defendant was found to have a large number of
counterfeit gasoline and fuel ration coupons in his
possession. At the time of the defendant’s arrest,
however, the police had no information that he played
any role in the driver’s transaction with the informant.
The Supreme Court stated that the defendant’s mere
presence in the car was not sufficient to justify his arrest
and subsequent search. The Court held that a person’s
mere presence in a car does not authorize an inference of
a conspiracy. Id. In reaching that conclusion, the Court
noted the following factors: Di Re’s presence in the car,
the fact that the meeting was on a public street in a large
city in broad daylight and was not a suspicious hideout,
and the fact that the alleged substantive crime did not
necessarily involve any act visibly criminal. The Court
also focused on the fact that the informant did not single
out Di Re at the scene. Id.
In this case, when the tan town car pulled up, the
police had no knowledge of anything illegal regarding
Patterson. However, showing up at a monitored drug
transaction involving a confidential informant at 9:45
p.m. can clearly be distinguished from the warrantless
search of a bar patron. More important, though, is the
fact that Patterson exited the car with the other two
individuals and began walking toward Room #115. At
that point, Patterson became more than just a “mere
passenger” in the car, and instead an active participant.
The officers had probable cause to believe he was
involved in committing a felony. The Motion to
Suppress is overruled.
Accordingly, we affirm the decision of the Hardin Circuit Court.
DIXON, JUDGE, CONCURS.
THOMPSON, JUDGE, CONCURS IN RESULT ONLY.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Shane A. Young
Attorney General of Kentucky
Courtney J. Hightower
Assistant Attorney General