JERMAINE E . WILLIAMS V. COMMONWEALTH OF KENTUCKY
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RENDERED : AUGUST 26, 2004
TO BE PUBLISHED
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2002-SC-0445-DG
JERMAINE E . WILLIAMS
V.
r
DDAc
APPELLANT
ON REVIEW FROM COURT OF APPEALS
2000-CA-002669
JEFFERSON CIRCUIT COURT NOS . 99-CR-391 & 2000-CR-821
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE GRAVES
AFFIRMING
I . FACTS AND PROCEDURAL HISTORY.
On August 6, 1998, Detective James Thomas received a tip from a proven
reliable confidential informant concerning drug trafficking . Specifically, the informant
stated that a black male named Jermaine would be driving a blue El Camino with gray
primer spots, and that he would be picking up another black male named Jason
Burdette at a designated apartment complex in Jefferson County . According to the
informant, Jermaine was a known drug trafficker, and he would be carrying a large
quantity of crack cocaine in his buttocks .
Based on this information, but acting without a search warrant, Detective Thomas
and other detectives set up a surveillance of Burdette's apartment building . The officers
observed a black male, subsequently identified as Appellant, approach in a blue El
Camino with gray primer spots. When officers surrounded the vehicle, Appellant
consented to a search of his car. No contraband was found in the car.
Appellant was then handcuffed and taken into Burdette's apartment. Inside,
when questioned, Appellant denied having any drugs or weapons on his person. The
officers informed Appellant that they had received a tip that he was hiding drugs in his
buttocks . The officers thereafter took Appellant into a bathroom and conducted a body
search, which revealed a plastic bag containing crack cocaine .
Appellant was subsequently indicted for first-degree trafficking in a controlled
substance and for being a second-degree persistent felony offender. The trial court
denied Appellant's motion to suppress the evidence obtained as a result of the search
and seizure. Following a trial, the jury found Appellant guilty of both charges. The
recommended ten year sentence was enhanced to twelve years due to Appellant's
status as a persistent felony offender .
The Court of Appeals affirmed the conviction . Discretionary review was granted
by this Court. We affirm, and now hold that a corroborated tip from a known, reliable
informant concerning the possession of cocaine and drug trafficking may provide
probable cause for an arrest and search.
II . REASONABLE SUSPICION FOR AN INVESTIGATORY STOP
AND PROBABLE CAUSE FOR AN ARREST AND SEARCH.
Appellant first argues that police officers lacked the reasonable suspicion
necessary to justify a warrantless stop . He contends that his actions alone, i .e., driving
his car to an apartment building, do not meet the stringent requirements set forth in
2
Terry v. Ohio, 392 U.S . 1, 88 S.Ct. 1868, 20 L.Ed .2d 889 (1968), to justify a warrantless
stop. It is Appellant's position that the stop was based solely upon information obtained
from the informant, which Appellant argues lacked a sufficient indicia of reliability to
support the warrantless stop.
Both the Fourth Amendment to the United States Constitution and Section Ten of
the Kentucky Constitution guarantee "[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures ."
This prohibition on unreasonable searches and seizures ordinarily requires all such
encounters to be conducted pursuant to a judicially-issued warrant -- that is, the
criterion by which the reasonableness of a given search or seizure typically is measured
is whether it was authorized by a warrant .
In Terry , supra, the United States Supreme Court carved out a limited exception
to the warrant requirement, permitting brief investigatory stops in circumstances where
police officers have a reasonable articulable suspicion that "criminal activity may be
afoot ." Id . at 30, 88 S .Ct. at 1884 . Such encounters--"Terry stops," as they have come
to be known--need not proceed pursuant to a warrant, nor must they be supported by
probable cause . "The officer need not be absolutely certain that the individual" is
engaged in an unlawful enterprise; "the issue is whether a reasonably prudent man in
the circumstances would be warranted in his belief"that the suspect is breaking, or is
about to break, the law. Id . at 27, 88 S .Ct. at 1868 .
As the Supreme Court recently explained, reasonable suspicion "is a less
demanding standard than probable cause and requires a showing considerably less
than preponderance of the evidence ." Illinois v. Wardlow , 528 U .S. 119, 123, 120 S.Ct.
673, 675-76, 145 L . Ed .2d 570 (2000) . The Court's decision in Alabama v. White, 496
U.S. 325, 110 S .Ct. 2412, 110 L.Ed .2d 301 (1990), offers a helpful analysis of the
quantum of proof needed to justify a Terry stop . In White , a police officer received a
telephone call from an anonymous person, stating that one Vanessa White would be
leaving a particular address at a particular time in a brown Plymouth station wagon with
the right taillight lens broken, that she would be going to Dobey's Motel, and that she
would be in possession of about an ounce of cocaine inside a brown attache case . The
officer and his partner proceeded to the address specified, where they observed a
brown Plymouth station wagon with a broken right taillight in front of the building . The
officers observed White leave the building, carrying nothing in her hands, and enter the
station wagon. They followed the vehicle as it drove the most direct route to Dobey's
Motel. Police stopped the vehicle just short of the motel . Following the stop, White
gave the officers permission to search the car. The officers discovered a brown attache
case and, upon request, White gave the officers the combination to the lock. The
officers discovered marijuana in the attache case and arrested White . During
processing at the police station, an officer also found cocaine in White's purse . Id . at
325-29, 110 S .Ct. at 2412-16 .
In holding that the stop was justified, the Court noted that "reasonable suspicion"
is less than probable cause, not only in the sense that reasonable suspicion can be
established with information that is different in quantity or content from that required to
establish probable cause, but also in the sense that reasonable suspicion can arise
from information that is less reliable than that required to show probable cause . Id . at
329, 110 S .Ct. at 2416.
In White, although not every detail provided by the informant was verified or even
correct, the Court noted that there was substantial corroboration of the informant's tip by
the police . This verification included details as to the particular apartment building, the
particular vehicle, the time frame, and the future actions of White, which could not have
been easily predicted, such as her trip to the motel . Id.
In the instant case, the police had reasonable suspicion to stop Appellant based
upon the tip from a proven reliable confidential informant known by name and reputation
to the officers. United States v. Pedro , 52 F .3d 120 (6th Cir. 1995)( identified informants
are to be given more weight than anonymous tips .) The key details of the tip were
independently corroborated by the police through their surveillance of Burdette's
apartment and Appellant's actions as well as from the description of Appellant's vehicle
to the officers . Further, the tip accurately provided future predictive acts (i.e.,
Appellant's arriving at Burdette's apartment to pick up Burdette) that were substantiated .
We conclude that, under the totality of the circumstances, the informant's tip "had been
sufficiently corroborated to furnish a reasonable suspicion the defendant was engaged
in criminal activity." White , supra . Thus, the tip also had the sufficient objective indicia
of reliability to be the sole basis for stopping Appellant .
Appellant also argues that once the police officers searched his car and did not
discover any contraband, they lacked the probable cause necessary to arrest him .
Despite the fact that the police officers testified that Appellant was not under arrest
when they took him into Burdette's apartment, and the Court of Appeals so concluded,
Appellant relies on the recent decision in Kaupp v. Texas , 538 U .S . 626, 123 S.Ct.
1843, 155 L .Ed .2d 814 (2003), wherein the United States Supreme Court held that the
defendant was arrested within the meaning of the Fourth Amendment where he was
handcuffed and taken to another location for questioning . Herein, Appellant was
handcuffed and taken into Burdette's apartment where he was searched .
An investigative Terry stop may indeed ripen into an arrest through the passage
of time or the use of force . See United States v. Sharpe , 470 U .S. 675, 685-86, 105
S .Ct . 1568, 84 L.Ed .2d 605 (1985) ; Centanni v. Eight Unknown Officers , 15 F.3d 587,
590 (6th Cir. 1994) cert. denied , 512 U .S. 1236 (1994) . When this occurs, the
continued detention of suspects must be based upon probable cause . United States v.
Avery, 137 F .3d 343, 349 (6th Cir. 1997) . Although there is no bright line that
distinguishes an investigative stop from a de facto arrest, Florida v. Royer , 460 U .S .
491, 506, 103 S.Ct. 1319, 75 L .Ed.2d 229 (1983), the length and manner of an
investigative stop should be reasonably related to the basis for the initial intrusion .
United States v. Palomino , 100 F .3d 446, 449 (6th Cir. 1996) . And the right to make an
arrest or investigatory stop necessarily carries with it the right to use some degree of
physical coercion or threat thereof to affect it. Graham v. Connor, 490 U .S . 386, 396,
109 S.Ct . 1865, 104 L.Ed.2d 443 (1989) . This is because there is a substantial law
enforcement interest in preventing the flight of a suspect in the event that incriminating
evidence is found, in protecting the safety of the officers, and in the orderly completion
of the search which is facilitated by the presence of the suspects .
Appellant's reliance on Kaupp v. Texas , supra , is misplaced . In Kaupp , the
seventeen-year-old defendant was awakened at three in the morning by police officers
and taken from his home in handcuffs, wearing only underwear despite the fact that it
was January. He was thereafter transported to a police station for questioning . Here,
Appellant was taken only a few feet away into Burdette's apartment . Police officers
testified that he was handcuffed as a routine safety measure . Further, Appellant was
detained briefly and searched, after which he was arrested upon the discovery of drugs
in the location specified by the informant .
We are of the opinion that, even though the police did not discover any drugs or
contraband in Appellant's car, they still had sufficient probable cause at that time to
believe that Appellant was in the process of or about to commit a crime . At common
law, a peace officer was authorized to arrest without a warrant for a felony not
committed in his presence if there were reasonable grounds for making the arrest.
Wilgus, Arrest Without a Warrant , 22 Mich . L. Rev. 541 (1924) . This rule remains valid
in Kentucky through express statutory authorization under KRS 431 .005(1) (c), which
provides : "(1) A peace officer may make an arrest . . . (c) without a warrant when he
has probable cause to believe that the person being arrested has committed a felony."
Recently, in Maryland v. Pringle ,
U .S .
, 124 S.Ct. 795, 800, 157 L .Ed.2d
769 (2003), the United States Supreme Court again engaged in an in-depth analysis of
the concept of probable cause:
The long-prevailing standard of probable cause protects
"citizens from rash and unreasonable interferences with privacy
and from unfounded charges of crime," while giving "fair leeway
for enforcing the law in the community's protection ." Brine-gar v .
United States , 338 U .S. 160, 176, 69 S .Ct. 1302, 93 L.Ed . 1879
(1949). On many occasions, we have reiterated that the
probable-cause standard is a "'practical, nontechnical
conception' " that deals with " 'the factual and practical
considerations of everyday life on which reasonable and
prudent men, not legal technicians, act.'" Illinois v. Gates, 462
U .S . 213, 231, 103 S .Ct. 2317, 76 L.Ed .2d 527 (1983) (quoting
Brinegar , supra , at 175-176, 69 S .Ct. 1302) ; see , e .g ., Ornelas
v . United States , 517 U .S. 690, 695, 116 S . Ct. 1657, 134
L.Ed .2d 911 (1996) ; United States v. Sokolow , 490 U.S . 1, 7-8,
109 S .Ct. 1581, 104 L.Ed .2d 1 (1989) . "[P]robable cause is a
fluid concept--turning on the assessment of probabilities in
particular factual contexts--not readily, or even usefully, reduced
to a neat set of legal rules." Gates , 462 U .S., at 232, 103 S .Ct.
2317 .
The probable-cause standard is incapable of precise
definition or quantification into percentages because it deals
with probabilities and depends on the totality of the
circumstances . See ibid . Brinegar , 338 U .S., at 175, 69 S.Ct.
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1302 . We have stated, however, that "[t]he substance of all the
definitions of probable cause is a reasonable ground for belief of
guilt," ibid . (internal quotation marks and citations omitted), and
that the belief of guilt must be particularized with respect to the
person to be searched or seized, Ybarra v . Illinois , 444 U.S . 85,
91, 100 S .Ct. 338, 62 L.Ed .2d 238 (1979) . In Illinois v . Gates,
we noted :
"As early as Locke v . United States , 7 Cranch
339, 348; 3 L .Ed . 364 (1813), Chief Justice
Marshall observed, in a closely related context :
'[T]he term "probable cause," according to its
usual acceptation, means less than evidence
which would justify condemnation . . . . It imports a
seizure made under circumstances which warrant
suspicion .' More recently, we said that 'the quanta
. . . of proof' appropriate in ordinary judicial
proceedings are inapplicable to the decision to
issue a warrant. Brinegar, 338 U .S., at 173, 69
S .Ct. 1302 . Finely tuned standards such as proof
beyond a reasonable doubt or by a
preponderance of the evidence, useful in formal
trials, have no place in the [probable-cause]
decision ." 462 U .S., at 235, 103 S.Ct. 2317.
As the United States Supreme Court has remarked, probable cause is a flexible,
common-sense standard . It merely requires that the facts available to the officer would
"warrant a man of reasonable caution in the belief," that certain items may be
contraband or stolen property or useful as evidence of a crime; it does not demand any
showing that such a belief be correct or more likely true than false. A "practical,
nontechnical" probability that incriminating evidence is involved is all that is required .
Furthermore, this Court has recently stated that 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 , Ky., 103 S .W .3d 72, 78 (2003) . And as noted in Gates, supra , an
informant's tip predicting future behavior, which is then corroborated by observations of
the investigating officers, can result in a finding of probable cause. Gates , supra at 24346 .
Applying these concepts herein, we conclude that the police officers had
probable cause to arrest Appellant, regardless of whether such did, in fact, occur . The
informant's information had accurately described the location of Burdette's apartment,
the description of Appellant and his vehicle, as well as future predictive acts by
Appellant . The informant stated that Appellant would be carrying the drugs on his
person, not in his car. Thus, the fact that officers did not discover anything during the
search of Appellant's car is irrelevant to the issue of whether there was probable cause
to believe Appellant was carrying cocaine on his person .
Finally, Appellant argues that the police lacked probable cause to conduct the
strip search . Having already discussed that police had probable cause to arrest
Appellant, his argument with regard to the search must fail as well.
Based upon the information provided by a reliable informant, officers had
probable cause to believe Appellant's body contained evidence of a crime and unlawful
drugs . Also, the officers had good reason to fear that, unless restrained, Appellant
would destroy the drugs before they could obtain a warrant. The probability of
destruction in anticipation of a warrant exemplifies the kind of present risk that
undergirds the accepted exigent circumstances exception to the general warrant
requirement . Schmerber v . California , 384 U .S . 757, 770-771, 86 S .Ct. 1826, 16
L.Ed.2d 98 (1966) . Thus, police imposed a restraint that was limited and tailored to
reasonably secure law enforcement need .
Even under the Court of Appeals' conclusion that Appellant was not under arrest
at the time of the search, such was still reasonable under the circumstances . A
warrantless search preceding arrest is reasonable under the Fourth Amendment so
long as probable cause to arrest existed before the search, and the arrest and search
were substantially contemporaneous . State v. Overby, 590 N .W.2d 703 (N .D . 1999) .
Once an officer has probable or reasonable cause, the officer may arrest the person
without a warrant, and in such situations it is immaterial that a search of the person
9
without a search warrant may precede his arrest. United States v. Torres , 740 F.2d
122 (2d Cir. 1984) .
In United States v. Watson, 423 U .S . 411, 96 S.Ct . 820, 46 L .Ed .2d 598 (1976),
the United States Supreme Court found that postal officers may make a warrantless
arrest for felonies if they have reasonable grounds to believe that a felony has been or
is being committed . The Court reasoned that information from a reliable informant that
the defendant possessed stolen credit cards created probable cause . In People v.
Champion , 549 N .W.2d 849 (Mich . 1996), cocaine found in a pill bottle in the
defendant's sweatpants during a pat-down search for weapons was properly seized
even though the arrest occurred after the police officer opened the pill bottle, since the
officer was authorized to open the bottle under the search incident to arrest exception to
warrant requirement . In State v . Murphy, 471 P .2d 863 (Or . App . 1970), a search
without arrest of the defendant's person by police when he arrived at an informer's
home was based on probable cause because the female informer advised police that
the defendant was coming to her home with marijuana and that she didn't want him to
come, and any delay to obtain a search warrant would have resulted in loss of the
evidence sought.
In Rawlings v . Kentucky , 448 U . S. 98, 111, 100 S .Ct. 2556, 65 L.Ed .2d 633
(1980), the defendant admitted ownership of drugs that police found in a companion's
purse. Id. at 101, 100 S.Ct. at 2558 . The police subsequently searched the defendant,
discovering a knife and $4,500 in cash, and arrested him . Id . The Court reasoned that
it was not "particularly important that the search preceded the arrest" when the police
had probable cause to arrest the defendant before the search and "the formal arrest
followed quickly on the heels of the challenged search." Id. at 111 ; see etc .., United
States v. Bizer, 1.11 F .3d 214, 219
0 st Cir.
1997) (search of defendant before formal
10
arrest valid because police had probable cause to arrest based on controlled drug buys
four days earlier) ; United States v . Han , 74 F .3d 537, 541 (4th Cir . 1996) (search of
defendant's bag immediately before formal arrest was valid because police had
probable cause to arrest defendant before search based on informant's description and
officers' observation of suspect talking with known drug source) .
Examining the totality of the circumstances and information available to officers
at that time, we cannot conclude that the trial court's denial of Appellant's motion to
suppress the evidence obtained as a result of the search and seizure was clearly
erroneous .
III.
THE TRIAL COURT DID NOT COERCE A VERDICT.
The jury in this case conducted a combined persistent felony offender (PFO)
proceeding and penalty phase . During deliberations, the jury informed the trial court
that it was dead locked hung as to the PFO penalty instruction . When asked if further
deliberations would be helpful, the jury replied that it would not. The trial court then
read the elements of RCr 9 .57 and charged the jury to continue deliberations . No
objection was entered. Nonetheless, Appellant now asks this Court to review the matter
for palpable error under RCr 10 .26, on the grounds that the trial court manufactured a
verdict by reading RCr 9 .57 to the jury after having been informed that further
deliberations would not be fruitful, and by charging the jury to continue deliberations .
We conclude that it was permissible for the trial court to read RCr 9.57,
considering that the jury had only deliberated about two hours when the foreperson
informed the trial court that further deliberations would not be helpful . Furthermore, any
possibility of coercion was vitiated by the trial court's instruction to the jurors that they
should not relinquish honest convictions for the mere purpose of obtaining a verdict .
11
Commonwealth v. Mitchell , Ky ., 943 S.W.2d 625 (1997) . No error, palpable or
otherwise, occurred .
IV . THE VOIR DIRE ON RANGE OF PENALTIES.
Relying on Lawson v . Commonwealth , Ky., 53 S .W.3d 534 (2001), Appellant
argues that the trial court erroneously advised the jury that the possible range of
penalties for first-degree trafficking in a controlled substance was one to twenty years
imprisonment. He points out that the trafficking charge, a Class C felony, carries a
sentence of five to ten years, which would be enhanced to ten to twenty years pursuant
to the second-degree PFO charge . Nonetheless, the trial court permitted the
Commonwealth to advise the jury on a penalty range of one to twenty years due to the
possibility of a lesser-included offense instruction .
In Lawson , supra, this Court held that voir dire should be limited to "the jurors'
ability to consider only the penalty ranges for the individual indicted offenses" without
PFO enhancement and without the possibility of a lesser-included offense . Id . at 544
(emphasis added) . As such, under Lawson the trial court clearly erred in permitting the
Commonwealth to voir dire on a penalty range of one to twenty years.
Notwithstanding, the error was to Appellant's advantage because he was tried by
a jury that expressed its willingness to impose a one-year sentence. Furthermore, as
noted by the Court of Appeals, the jury was instructed on the lesser-included offense of
possession of a controlled substance, a Class D felony, which carries a penalty of one
to five years . Thus, any error during voir dire must be deemed harmless . RCr 9.24 .
V. CONTROL OF CROSS-EXAMINATION WAS PROPER.
Appellant contends that his right to confront and cross-examine Detective Green
was violated when the trial court, after the Commonwealth and defense counsel had
12
questioned Detective Green, allowed the jury to ask him questions without Appellant
being able to follow up . We disagree .
Trial courts retain broad discretion to regulate cross-examination . In
Commonwealth v . Maddox , Ky., 955 S.W.2d 718, 721 (1997), we noted, "Defendants
cannot run rough-shod, doing precisely as they please, simply because cross
examination is underway. So long as a reasonably complete picture of the witness'
veracity, bias and motivation is developed, the judge enjoys power and discretion to set
appropriate boundaries ." Appellant was able to reasonably complete the picture of
Detective Green's veracity, bias and motivation. Thus, the trial court did not abuse its
discretion in prohibiting defense questions after Detective Green was questioned by the
jury. Further, the trial court properly determined the duration of cross-examination .
Caldwell v. Commonwealth , Ky ., 503 S .W.2d 485 (1972) ; Stanford v . Commonwealth ,
Ky., 793 S .W.2d 112 (1990).
The judgment and sentence of the Jefferson Circuit Court are affirmed .
Lambert, C.J., Cooper, Graves, Keller and Wintersheimer, J .J ., concur.
Johnstone, J ., dissents in a separate opinion in which Stumbo, J ., joins .
COUNSEL FOR APPELLANT
Elizabeth B. McMahon
Daniel T. Goyette
200 Advocacy Plaza
719 West Jefferson St.
Louisville, KY 40202
COUNSEL FOR APPELLEE
Gregory D . Stumbo
Attorney General
Brian T. Judy
Assistant Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601
RENDERED : AUGUST 26, 2004
TO BE PUBLISHED
,*uyrrmt 0
.10urf of ~rufurhv
2002-SC-0445-DG
JERMAINE E . WILLIAMS
V.
APPELLANT
ON REVIEW FROM COURT OF APPEALS
2000-CA-002669
JEFFERSON CIRCUIT COURT NOS . 99-CR-391 & 2000-CR-821
COMMONWEALTH OF KENTUCKY
APPELLEE
DISSENTING OPINION BY JUSTICE JOHNSTONE
Because I do not believe that probable cause existed to arrest Appellant, I
respectfully dissent. Simply put, the majority's opinion flatly contradicts a principle that
lies at the heart of the Fourth Amendment : an arrest must be for an offense and not as
a pretext to search for incriminating evidence . United States v. Lefkowitz , 285 U .S .
452, 52 S. Ct. 420, 76 L. Ed. 877 (1932).
I agree with the majority opinion with respect to the validity of the initial stop of
Appellant . Based on the informant's tip, there existed a reasonable and articulable
suspicion to perform a Terry stop on Appellant . However, there was no probable cause
to arrest Appellant and, therefore, the search of Appellant's person was unlawful .
Detective Thomas received a confidential tip from a reliable informant that a
black male named Jermaine would arrive at Burdette's apartment in a blue El Camino
with gray primer spots. The tipster went on to advise that Appellant would be carrying a
large quantity of crack cocaine in his buttocks . While surveilling the apartment,
Detective Thomas observed Burdette leave his apartment and exit the premises in a
white Toyota . Burdette was arrested a short distance away and consented to a search
of his apartment. Upon their return to the apartment parking lot, Detective Thomas and
his fellow officers noticed Appellant in the blue El Camino with gray primer spots. The
three officers surrounded the car and ordered Appellant to exit the vehicle. After
informing Appellant that he was under investigation for trafficking in cocaine, he
confirmed that his name was Jermaine and he was at the location to visit Burdette .
Appellant consented to a search of his car; no drugs or weapons were found in the car.
At that point, Appellant was read his rights, handcuffed, and taken into Burdette's
apartment. The three officers first commenced a search of Burdette's apartment,
finding a partially consumed marijuana cigarette, but no cocaine. The officers then
began questioning Appellant, who again denied having any contraband on his person .
The officers replied that they were aware the cocaine was in his buttocks ; Appellant
continued to deny possessing any drugs . The officers then took Appellant into a small
bathroom ; due to its size, two officers were in the bathroom with Appellant while a third
watched from the doorway. The officers pulled back the waistband of Appellant's
sweatpants and underwear, and saw a plastic bag protruding from Appellant's buttocks .
Appellant then agreed to retrieve the drugs himself, which he did . He was formally
placed under arrest.
In determining whether a seizure within the meaning of the Fourth Amendment
has occurred, an objective standard is used . The reviewing court must look at the
totality of the circumstances and analyze whether the behavior of the police would
communicate to a reasonable person that he was not free to leave. Florida v. Bostick ,
501 U .S . 429, 437, 111 S. Ct. 2382, 2387, 115 L . Ed . 2d 389, 400 (1991). The U .S.
Supreme Court, in United States v. Mendenhall , enumerated certain circumstances that
indicate a seizure has occurred, including "the threatening presence of several officers,
the display of a weapon by an officer, some physical touching of the person of the
citizen, or the use of language or tone of voice indicating that compliance with the
officer's request might be compelled." 446 U.S . 544, 554, 100 S . Ct. 1870, 1877, 64 L.
Ed . 2d 497, 509 (1980).
The facts of record unequivocally support a finding that Appellant was under
arrest before being taken up to Burdette's apartment . According to the testimony of
Detective Thomas, Appellant's car was blocked in so that he was unable to leave by
vehicle . Three officers surrounded Appellant, who was alone . He was informed that he
was under investigation for drug trafficking, was read his Miranda rights, and was
handcuffed . Even more persuasive to a finding that Appellant was under arrest is the
testimony of Detective Thomas himself. During the suppression hearing, Detective
Thomas plainly conceded that Appellant was not free to go . In my opinion, any
reasonable person in Appellant's circumstances, especially one that has been read his
Miranda rights and handcuffed, would believe that he was not at liberty to leave .
Probable cause must exist at the time of the arrest . Whether probable cause
existed at the time Appellant was arrested - i .e. outside of Burdette's apartment
building - depends "upon whether, at the moment the arrest was made . . . . the facts
and circumstances within [the arresting officers'] knowledge and of which they had
reasonably trustworthy information were sufficient to warrant a prudent man in believing
that the [suspect] had committed or was committing an offense." Beck v. Ohio, 379
U .S. 89, 91, 85 S . Ct. 223, 225, 13 L . Ed . 2d 142, 145 (1964).
In other words, the
existence of probable cause must be determined by an examination of the totality of the
circumstances.
Returning to the case at bar, the facts as known by the officers at the time they
arrested Appellant were insufficient to establish probable cause . The officers' suspicion
that Appellant was carrying narcotics was based entirely on the information provided by
the confidential informant. "[T]he sufficiency of probable cause for a search and an
arrest without a warrant may be based upon information received through an informant
so long as the informant's statement is reasonably corroborated by other matters within
the officer's knowledge ." Waugh v. Commonwealth , Ky. App., 605 S .W .2d 43, 45
(1980) . Here, Detective Thomas had known the confidential informant for
approximately five years and this informant had provided accurate information in the
past . However, other factors severely undermine the reliability of the tip. First, the tip is
extremely basic . While one portion of the tip predicted the location of Appellant's
contraband, the remaining portions of the tip were completely innocuous: the make and
color of Appellant's car and the fact that he would visit a certain friend later in the
evening . The richness of detail provided by an informant increases the reliability of the
information . United States v. Sonagere , 30 F .3d 51, 53 (6th Cir. 1994), cert. denied ,
513 U .S . 1009, 115 S . Ct . 531, 130 L. Ed . 2d 434 (1994). Nor did the informant state
his or her basis of knowledge, which further undercuts the reliability of the tip. Illinois v.
Gates , 462 U .S . 213, 227, 103 S. Ct. 2317, 2326, 76 L . Ed . 2d 527, 541 (1983). Of
course, in examining the totality of the circumstances surrounding the arrest, any
deficiency in a tip's reliability can be supplemented by sufficient police corroboration.
United States v. Padro, 52 F .3d 120, 123 (6th Cir. 1995). However, that did not occur in
this case . The tip was so barren of predictive facts that the police had little information
to corroborate . That Appellant in fact arrived at a given location in a certain car is
simply not sufficient police corroboration upon which to root probable cause for an
arrest and invasive body search. Furthermore, it must be noted that the only behavior
corroborated by the police was completely lawful behavior that in no way evidenced
drug possession. Though the facts must be viewed in light of the totality of the
circumstances, courts are traditionally reluctant to ascribe criminal intent to otherwise
lawful behavior. United States v. Avery, 137 F .3d 343, 350 (6th Cir. 1997) . Having
corroborated nothing other than the make and color of Appellant's car and his presence
at the predicted location, and further having found no contraband after Appellant
consented to a search of his vehicle, the officers simply did not have enough
information upon which to establish probable cause to effectuate a warrantless arrest.
Accordingly, I believe Appellant was arrested in contravention of his Fourth Amendment
rights and the fruits of that illegal arrest should have been suppressed .
The officers here did not make a general investigation of Appellant's person ;
rather, they conducted a targeted and extremely humiliating search . Having absolutely
no independent indication of contraband or unlawful activity prior to the search or the
arrest, the officers' conduct cannot be accurately described as anything other than an
exploratory search for incriminating evidence . Appellant was arrested in violation of his
Fourth Amendment protections because his warrantless arrest was based on less than
probable cause. We cannot retrospectively adjudge this search lawful simply because
illegal contraband was eventually found . The protections of the Fourth Amendment
must extend to offenders as well as the law abiding .
Stumbo, J ., joins this dissenting opinion .
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