BATES (ETHAN SAMUEL) VS. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: OCTOBER 29, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
ETHAN SAMUEL BATES
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE JAMES D. ISHMAEL, JR., JUDGE
ACTION NO. 08-CR-01142
COMMONWEALTH OF KENTUCKY
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BEFORE: CLAYTON AND LAMBERT, JUDGES; HENRY,1 SENIOR JUDGE.
HENRY, SENIOR JUDGE: Ethan Samuel Bates entered a conditional guilty plea
to possession of a controlled substance (cocaine) and possession of drug
paraphernalia, first offense. He was sentenced to serve four years, but that
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
sentence was probated for a period of five years. He reserved the right to appeal
the trial court’s denial of his motion to suppress certain evidence seized by the
police. After our review, we affirm the judgment of the trial court.
On a Friday evening in June 2008, Lexington police officers Schnelle,
McBride, and Thomas were patrolling the downtown area on bicycles. There had
been a series of thefts from parked vehicles and the officers were told to make their
presence known in an effort to diminish the thefts. Around 11:30 p.m. they noticed
Bates’ vehicle parked in a deserted area of a public parking lot. The vehicle was
backed in and parked up against a building bordering the lot. Based on prior
experience, the officers knew that patrons of local establishments would sometimes
go out to their vehicles and smoke marijuana or consume other drugs.
The three officers approached Bates. Officer Thomas went to the
passenger side of Bates’ vehicle and began examining the interior of the passenger
area. Officer McBride approached Bates and started to ask him a series of
questions. Officer Schnelle placed himself six to eight feet in front of Bates’
vehicle. Schnelle testified he believed Bates could have navigated around him.
Bates appeared to be very focused on Officer Thomas, who was
examining the interior of the vehicle with the flashlight. When first asked what he
was doing in the parking lot, Bates said he was meeting his friend Dave. Later, he
changed his answer and stated he was waiting for his girlfriend. When asked for
his driver’s license, he stated he had inadvertently left it at home. Officer McBride
detected the odor of alcohol coming from the vehicle. He was not able to tell if the
smell emanated from Bates or just the interior of the vehicle. He asked Bates to
exit the vehicle and Bates rolled up the car window and announced he was going to
call his lawyer. Bates then reached for his keys in the vehicle’s ignition. Officer
McBride drew his baton and appeared ready to break in the windshield of the car
before Bates complied and exited the vehicle. Officer Schnelle approached Bates
and began talking to him while Officer McBride went around to the passenger side
of the vehicle. He looked into the rear of the passenger area and saw what his
experience and training led him to believe was a bag containing an illegal
controlled substance partially sticking out from the map pocket on the back of the
passenger front seat. That item was removed along with a small set of digital
scales and Bates was placed under arrest.
Bates filed a motion to suppress the evidence seized from his vehicle
alleging he had been detained absent a reasonable articulable suspicion of criminal
activity and that the search of the vehicle was not based upon probable cause. The
trial court held a hearing on December 18, 2008, and issued an order entered
February 17, 2009, denying the motion to suppress the evidence.
Bates first argues that he was surrounded by the police from their
initial contact with him and was, therefore, illegally seized or detained. The trial
court specifically found that based on the evidence before it and the totality of the
circumstances “that at the initial phase of the interaction it would have been
unreasonable for this Defendant to have concluded that he was not free to leave.”
The trial court further determined the entire encounter up until Bates was ordered
out of the car and detained lasted “no more than five (5) minutes.”
The findings of the trial court are conclusive provided they are
supported by substantial evidence. Kentucky Rules of Criminal Procedure (RCr)
9.78; Harris v. Commonwealth, 793 S.W.2d 802, 804 (Ky. 1990). “Section 10 of
the Kentucky Constitution provides no greater protection than does the federal
Fourth Amendment.” LaFollette v. Commonwealth, 915 S.W.2d 747, 748 (Ky.
1996) (internal citation omitted). A simple interaction between a police officer and
a citizen does not reach the level of a seizure until, “in view of all of the
circumstances surrounding the incident, a reasonable person would have believed
that he was not free to leave.” U. S. v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct.
1870, 1877, 64 L.Ed.2d 497 (1980). Here, there was substantial evidence in the
form of the police officer’s testimony that had Bates wished to leave in the early
moments of the encounter, he was free to go.
Bates then argues that the officers lacked probable cause to further
detain him. We disagree. The trial court specifically found that an officer smelled
the odor of alcohol coming from either Bates or his vehicle. His answers were
inconsistent when he first stated he was waiting for his friend Dave and then later
stated he was waiting for his girlfriend. Bates was concentrating on the officer
who was shining the flashlight into the rear of the passenger compartment instead
of being focused on the officer talking to him. Bates then rolled up the car window
and appeared to begin to reach for the keys to start the ignition after being asked to
exit the vehicle. We agree that these facts, “viewed from the standpoint of an
objectively reasonable police officer, amount to reasonable suspicion or probable
cause.” See Ornelas v. U.S., 517 U.S. 690, 696, 116 S.Ct 1657, 1661-62, 134
L.Ed.2d 911 (1996).
The officers observed what they believed to be illegal drugs in Bates’
vehicle. Once probable cause was established, the warrantless search of the
vehicle was valid based on the automobile exception to the general search warrant
requirements. Chambers v. Maroney, 399 U.S. 42, 51, 90 S.Ct 1975, 1981, 26
L.Ed.2d 419 (1970); Morton v. Commonwealth, 232 S.W.3d 566, 569 (Ky. App.
Further, we agree with the trial court that the seizure was also
permissible under the “plain view” exception to the warrant requirement.
Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971);
Hazel v. Commonwealth, 833 S.W.2d 831 (Ky. 1992). We believe that the
officers observed the cocaine from a place where they were lawfully permitted to
be, that they had a lawful right of access to the cocaine and that the incriminating
character of the cocaine was immediately apparent to them. Id. at 833. Hence, the
seizure was justified under both the automobile exception and the plain view
exception to the warrant requirement.
The judgment and sentence of the Fayette Circuit Court is affirmed.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Russell J. Baldani
Attorney General Of Kentucky
Heather M. Fryman
Assistant Attorney General