COMMONWEALTH OF KENTUCKY VS. ELLIOTT (THOMAS)
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RENDERED: SEPTEMBER 10, 2010; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-001603-MR
COMMONWEALTH OF KENTUCKY
v.
APPELLANT
APPEAL FROM LOGAN CIRCUIT COURT
HONORABLE TYLER L. GILL, JUDGE
ACTION NO. 09-CR-00096
THOMAS ELLIOTT
APPELLEE
OPINION
REVERSING
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BEFORE: CLAYTON AND LAMBERT, JUDGES; HENRY,1 SENIOR JUDGE.
LAMBERT, JUDGE: The Commonwealth appeals a July 8, 2009, Logan Circuit
Court order granting Thomas Elliott’s motion to suppress evidence of cocaine and
drug paraphernalia found in his automobile. The Commonwealth contends the trial
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Senior Judge Michael L. Henry sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
(KRS) 21.580.
court erred in holding that the evidence was seized in violation of Elliott’s Fourth
Amendment rights. After careful review, we reverse the trial court.
Despite being given several opportunities to do so, Elliott failed to file
a brief. Accordingly, we will set forth the Commonwealth’s statement of facts and
issues, presuming such to be correct. Kentucky Rules of Civil Procedure (CR)
76.12(8)(c).
In the early morning hours of March 15, 2009, Officer Roger Lindsey
of the Russellville Police Department observed Elliott park his vehicle in an empty
public parking lot. Officer Lindsey watched Elliott rummage through his vehicle
and then observed Elliott exit the vehicle and wander around the parking lot. Upon
initiating contact with Elliott, Officer Lindsey testified that he detected a strong
odor of alcohol.
Elliott informed Officer Lindsey that he had Parkinson’s disease.
Conscious of Elliott’s disability, Officer Lindsey proceeded to perform a select
series of field sobriety tests, which Elliott failed. Officer Lindsey then asked
Elliott for consent to search his vehicle. Elliott consented, but as Officer Lindsey
made the approach to Elliott’s vehicle, Elliott suddenly withdrew his consent.
Prior to this withdrawal, Officer Lindsey observed a white powder substance on
the middle console, driver’s seat, and gear shift of the vehicle. He also observed a
couple of torn clear plastic baggie corners lying on the seat.
At this point, more field sobriety tests were performed, and Elliott
failed each one. Officer Lindsey then placed Elliott under arrest for driving under
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the influence. Upon securing Elliott in the back of his cruiser, Officer Lindsey
searched Elliott’s vehicle. There, he found cocaine in a Marlboro pack and drug
paraphernalia located in the console.
On May 21, 2009, Elliott filed a motion to suppress the evidence
discovered during the search of his vehicle. In testifying during this hearing,
Officer Lindsey stated that at the time of arrest, he felt Elliott had more in his
system than just alcohol due to the results of his field sobriety tests. Officer
Lindsey also testified that he believed the white powder observed in Elliott’s
vehicle prior to Elliott’s arrest was a controlled substance. He formed this belief
because of Elliott’s behavior, the results of the field sobriety tests, and his
observation of the torn baggie corners. Laboratory results indicated that Elliott had
both alcohol and cocaine in his system.
Upon considering the testimony, the trial court determined as follows:
Concerning the search of the interior of the
automobile, the question is whether the search is justified
as a search incident to arrest. The court cannot find that
the observation of the plastic corners on the seat created
probable cause that drugs would be found elsewhere in
the interior of the car under the automobile exception to
the warrant requirement. Analysis of the facts of this
case involves the recent case of Arizona v. Gant, 129
S.Ct. 1710, 173 L.Ed.2d 485, [] decided on April 21,
2009. In this case, the United States Supreme Court
reversed (the majority did not characterize it as a reversal
– but that is what it was) the longstanding rule
established in New York v. Belton, 453 U.S. 454, which
allowed officers to search, incident to arrest, the interior
of a vehicle where a recent occupant had been subject to
arrest. Gant concluded that the safety and evidentiary
justifications underlying the “search incident to arrest”
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rationale apply only when there is a reasonable
possibility that the person under arrest might still gain
access to the vehicle.
The Gant Court recited that the purpose of the
search-incident-to-arrest exception to the warrant
requirement was 1) to protect officers from any weapons
in the area, and 2) to safeguard any evidence of the
offense of arrest. The Court reasoned that “if there is no
possibility that an arrestee could reach into the area that
law enforcement officers seek to search, both
justifications for the search-incident-to-arrest exception
are absent and the rule does not apply.” Id. Despite this
clear statement in the dicta of the opinion, the holding of
Gant states that police may search a vehicle incident to a
recent occupant’s arrest only if the arrestee is within
reaching distance of the passenger compartment at the
time of the search or it is reasonable to believe the
vehicle contains evidence of the offense of arrest. This
apparent conflict leaves open for legitimate argument
whether the search-incident-to-arrest exception still
applies where the arrestee no longer has access to the
area to be searched but it is still “reasonable to believe”
evidence might be found in the area. In interpreting
Gant, this Court will presume that the holding was
intended to be consistent with the stated reasoning of the
opinion. The holding is thus interpreted to mean that
where the arrestee no longer has access to the area to be
searched, the search-incident-to-arrest exception no
longer applies.
In this case the search took place after Elliott was
arrested and handcuffed in the back of the police cruiser.
Under Gant, the search-incident-to-arrest exception
cannot apply. This warrantless search must be found
unreasonable and the evidence must be suppressed. It is
recognized that the rules of search and seizure were
changed and that the officer in fact acted reasonably in
following what appeared to be the law at the time.
(Emphasis in original).
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On July 24, 2009, the Commonwealth filed a motion to reconsider. In
this motion, the Commonwealth pointed out relevant portions of Officer Lindsey’s
testimony in which he indicated he observed a white powder substance in plain
view of Elliott’s vehicle in addition to torn baggie corners, which the
Commonwealth argued gave Officer Lindsey probable cause to search the vehicle
for cocaine under the plain view exception. The Commonwealth further argued
that because the search of Elliott’s vehicle was premised on a plain view
observation of the white powder and torn baggies that it was not required to defend
the search as a search incident to arrest, and therefore Gant is not implicated.
On August 3, 2009, the trial court granted, in part, the
Commonwealth’s motion to reconsider by a hand written order stating, “[o]rder
suppressing modified so as not to exclude evidence of visible powder and 4 baggie
corners. Otherwise to remain as is.” (Emphasis added). In open court on that same
day, the court explained its decision to modify its original order was based on the
fact that the white powder on the console and the torn baggie corners were in plain
view. Thus, the trial court ultimately decided to suppress only the cocaine found in
the Marlboro pack found by Officer Lindsey in the console of Elliott’s vehicle.
The Commonwealth now appeals the trial court’s July 8, 2009, order
suppressing evidence and the August 3, 2009, order modifying the July 8, 2009,
order.
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On appeal to this Court, the Commonwealth argues that the above
ruling is erroneous as a matter of law. After careful review of controlling
precedent, we agree. Our standards of review in this case are as follows:
When reviewing an order on a motion to suppress, the
trial court's findings of fact are conclusive if they are
supported by substantial evidence. Using those facts, this
Court then reviews de novo the trial court's application of
the law to those facts to determine whether its decision is
correct as a matter of law.
Owens v. Commonwealth, 291 S.W.3d 704, 707 (Ky. 2009) (internal citations and
quotations omitted).
In Gant, the United States Supreme Court determined the scope of the
so-called “search-incident-to-arrest” rule. 129 S.Ct. at 1723. This rule is really an
exception. It is an exception to the well-settled constitutional tenet that “all
searches without a warrant are unreasonable . . . .” Owens, 291 S.W.3d at 707
(quoting Cook v. Commonwealth, 826 S.W.2d 329, 331 (Ky. 1992)).
In applying Gant, the Kentucky Supreme Court has directed as
follows:
The [United States] Supreme Court previously afforded
officers virtual carte blanche to search an automobile
incident to the arrest of a recent occupant of a vehicle,
holding that “[o]nce an officer determines that there is
probable cause to make an arrest, it is reasonable to allow
officers to ensure their safety and to preserve evidence by
searching the entire passenger compartment.” Thornton
v. United States, 541 U.S. 615, 623, 124 S.Ct. 2127, 158
L.Ed.2d 905 (2004). This carte blanche has been greatly
reduced by Gant, however. According to the new, far
more restrictive rule expressed in Gant, “[p]olice may
search a vehicle incident to a recent occupant's arrest
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only if the arrestee is within reaching distance of the
passenger compartment at the time of the search or it is
reasonable to believe the vehicle contains evidence of the
offense of arrest.” 129 S.Ct. at 1723.
Owens at 708 (emphasis added).
The Gant Court explained that permitting officers to search the
vehicle of an arrestee occupant without a warrant in circumstances where it is
reasonable to believe that the vehicle contains evidence of the offense of arrest is
necessary and legitimate due to “circumstances unique to the vehicle context[.]”
129 S.Ct. at 1719 (citing Justice Scalia’s concurrence in Thornton, 541 U.S. at
632). These circumstances include “the ready mobility of automobiles as well as
the reduced expectation of privacy [one has] in an automobile, owing to its
pervasive regulation.” Dunn v. Commonwealth, 199 S.W.3d 775, 776 (Ky. App.
2006) (citing Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S.Ct. 2485, 2487,
135 L.Ed.2d 1031 (1996)) (internal quotation omitted). Accordingly, we agree
with the Commonwealth that the trial court erred as a matter of law in ruling that
the search-incident-to-arrest exception to the warrant requirement was not
available unless the arrestee is within reaching distance of the passenger
compartment of the automobile. A reasonable reading of Gant, as set forth by our
Supreme Court in Owens, clearly holds that the exception is also available if it is
reasonable to believe the vehicle contains evidence of the offense of arrest.
The Commonwealth further argues that the trial court erred by
rejecting its argument that the search of Elliott’s automobile was permissible under
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the “automobile” exception to the warrant requirement. This exception “permits
an officer to search a legitimately stopped automobile [without a warrant] where
probable cause exists that contraband or evidence of a crime may be in the
vehicle.” Morton v. Commonwealth, 232 S.W.3d 566, 569 (Ky. App. 2007).
In reviewing a probable cause determination, we are guided as
follows:
[T]he ultimate issue of the existence of reasonable
suspicion or probable cause is a mixed question of law
and fact subject to de novo review. In conducting this
analysis, the reviewing court must give due weight to
inferences drawn from the facts by the trial court and law
enforcement officers and to the circuit court's findings on
the officers' credibility.
Baltimore v. Commonwealth, 119 S.W.3d 532, 539 (Ky. App. 2003) (internal
footnotes omitted).
In this case, the trial court found that Officer Lindsey acted reasonably
and made no findings questioning his credibility. According to Officer Lindsey, he
believed the white powder he observed on the middle console, driver’s seat, and
gear shift of Elliot’s vehicle was an illegal controlled substance based on the
following: (1) Elliott’s behavior; (2) the results of the field sobriety tests; and (3)
the existence of a couple of torn clear plastic baggie corners lying on the seat.
Based on the totality of these circumstances, we agree that this evidence compels a
conclusion that Officer Lindsey had probable cause to believe that contraband was
present in the vehicle. See McCloud v. Commonwealth, 279 S.W.3d 162, 167 (Ky.
App. 2007) (probable cause found where officers observed various items used in
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the manufacture of methamphetamine). The trial court’s contrary conclusion was
erroneous as a matter of law.
Pursuant to the above analysis, we hereby reverse the Logan Circuit
Court’s August 3, 2009 order, which modified the order entered on July 8, 2009,
granting Thomas Elliott’s motion to suppress evidence of cocaine and drug
paraphernalia found in his automobile. Officer Lindsey’s search of Elliott’s
vehicle was lawful under both the revised “search-incident-to-arrest” exception set
forth in Gant and the “automobile” exception.
ALL CONCUR.
BRIEF FOR APPELLANT:
NO BRIEF FOR APPELLEE
Jack Conway
Attorney General
Michael J. Marsch
Assistant Attorney General
Frankfort, Kentucky
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