MARK COLLINS V. COMMONWEALTH OF KENTUCKY
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2002-SC-0926-DG
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MARK COLLINS
V.
APPELLANT
ON REVIEW FROM COURT OF APPEALS
2000-CA-1890-MR
GRANT CIRCUIT COURT NO. 1999-CR-0093
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE JOHNSTONE
REVERSING AND REMANDING
The Appellant, Mark Collins, appeals from an order of the Grant Circuit Court
denying his motion to suppress evidence obtained during a vehicular stop. The Court
of Appeals affirmed . This Court granted discretionary review. For the reasons set forth
below, we reverse and remand .
The material facts of this case are not disputed . An unidentified person called
911 around 8 :00 p .m . from a gas station located in Grant County . The caller
complained that the white, male driver of a white Chevrolet Blazer was seen throwing
liquid from a bottle toward another vehicle at the Ezy-Stop gas station in Williamstown.
The caller did not see the male throw the actual bottle, but identified the liquid as
alcohol . Further, the caller indicated that he or she perceived that there was a dispute
between the two drivers. The driver of the Blazer then pulled out of the gas station,
proceeding southbound on I-75 . The caller was able to give the license plate number of
the Blazer.
This information was then passed on to Kentucky State Trooper Oliver, who
thereafter located the vehicle approximately two to three miles from the Williamstown
exit heading south . Because traffic along that portion of I-75 was slowed due to
construction, Trooper Oliver was able to verify the description and the license plate
number of the vehicle . While following the vehicle for about two miles, Trooper Oliver
did not observe any unusual behavior or erratic driving . Upon stopping the vehicle,
Trooper Oliver detected a smell of alcohol on the driver and, consequently, performed a
field sobriety test. Thereafter, Appellant was arrested and taken to the Grant County
Detention Facility where a blood alcohol test revealed an alcohol concentration level of
.186.
Appellant moved to suppress the results of the blood alcohol test, arguing that
the investigatory stop of Appellant's vehicle was not based upon reasonable and
articulable suspicion . After a hearing, the trial court denied the motion. Appellant
thereafter entered a conditional guilty plea to DUI third offense and operating a vehicle
on a suspended license, but appealed the trial court's ruling as to his motion to
suppress . The Court of Appeals affirmed, determining that the anonymous tip provided
a reasonable basis to perform the investigatory stop. This Court granted discretionary
review.
In order to perform an investigatory stop of an automobile, there must exist a
reasonable and articulable suspicion that a violation of the law is occurring . Delaware
v. Prouse , 440 U .S. 648, 663, 99 S . Ct. 1391, 1401, 59 L. Ed . 2d 660, 673 (1979) .
Complications arise when, as here, the information serving as the sole basis of the
officer's suspicion is provided by an anonymous informant, whose veracity, reputation,
and basis of knowledge cannot be readily assessed . In situations such as these, we
are required to examine the totality of the circumstances, and to determine whether the
tip, once suitably corroborated, provides sufficient indicia of reliability to justify an
investigatory stop . Alabama v. White, 496 U .S . 325, 332, 110 S. Ct. 2412, 2417, 110 L .
Ed . 2d 301, 310 (1990).
In White , the police received an anonymous telephone tip stating that a woman
would leave a specified apartment in a certain vehicle at a particular time. The tipster
further indicated that the woman would be carrying cocaine, and would be going to a
designated motel. The police proceeded to the apartment complex and observed the
described woman leaving the apartment building, getting into the vehicle, and heading
toward the motel . The police stopped the vehicle and performed a consensual search,
which revealed marijuana and cocaine in the woman's purse . The Supreme Court
concluded that the anonymous tip had been sufficiently corroborated to provide
reasonable and articulable suspicion to stop the woman's vehicle . The Court relied
heavily on the fact that the anonymous tip not only provided information readily
available to a third party, but also predicted the future behavior of the woman . White ,
496 U .S. at 332, 110 S. Ct. at 2417, 110 L. Ed . 2d at 310. That is, the caller not only
accurately described the woman and her car, but also that she would leave the
apartment at a certain time and drive to a specified location . These predictions,
corroborated by the investigating officers, demonstrated the informant's intimate
knowledge of the woman's conduct and lent credence to the incriminating portion of the
tip - that she would be carrying illegal narcotics.
More recently, in Florida v. J.L. , the U .S. Supreme Court again addressed the
issue of whether an anonymous tip can be the basis for reasonable and articulable
suspicion to conduct an investigatory stop. 529 U.S. 266, 120 S. Ct . 1375, 146 L. Ed .
2d 254 (2000). Florida officers received an anonymous tip stating that a young, black
male wearing a plaid shirt and standing with two other males at a particular bus stop
was carrying a gun. Minutes later, two officers arrived at the named bus stop and found
J.L ., wearing a plaid shirt and standing with two other males. Besides the information
provided in the tip, the police had no independent reason to suspect that J .L. was
engaged in any illegal conduct. The officers performed a frisk on J .L., which revealed a
gun . The U .S . Supreme Court determined that the search was unlawful, as the
anonymous tip lacked sufficient indicia of reliability upon which to base reasonable
suspicion . J .L. , 529 U.S . at 274, 120 S . Ct. at 1380, 146 L . Ed . 2d at 262 .
Returning to the factual scenario in the case before us, we conclude that the
information supplied by the anonymous tipster lacked sufficient indicia of reliability to
justify the investigatory stop performed on Appellant . Both White and J .L . emphasize
that predictive components are especially important to the reliability of an anonymous
tip because they provide the police with a means by which to test the knowledge of the
tipster. White, 496 U.S. at 332, 110 S . Ct. at 2417, 110 L. Ed. 2d at 310; J . L. , 529 U.S .
at 274, 120 S . Ct. at 1379, 146 L. Ed . 2d at 260 . As in J .L . , the tip provided in this
matter contained no predictive information ; rather, it consisted almost entirely of
information readily available to a casual bystander, such as Appellant's license plate
number, his direction of travel, and the make and model of his vehicle . Thus, Trooper
Oliver was left with no predictive information to corroborate, or other means by which to
verify that the tipster had intimate knowledge of any illegal behavior .
The reliability of this tip is further diminished because the investigating officer did
not independently observe any illegal activity, or any other indication that illegal conduct
was afoot. Anonymous descriptions of a person in a certain vehicle or location, though
accurate, do not carry sufficient indicia of reliability to justify an investigative stop;
however, when coupled with independent observations by police of suspicious conduct,
such tips do carry the requisite reliability . See Raglin v. Commonwealth , Ky., 812
S .W.2d 494, 495 (1991) (determining that an anonymous tip accurately identifying the
appellant's car and location did not in and of itself provide reasonable suspicion to
conduct an investigatory stop; an adequate basis for the stop was, however, created
once police also independently observed suspicious behavior) . Here, though, Trooper
Oliver testified at the suppression hearing that he did not observe anything suspicious
about Appellant, his vehicle, or his driving . In fact, he candidly admitted that the sole
basis for his suspicion was the tip . Like the officers in J .L. , Trooper Oliver merely
located Appellant in the location designated by the tipster but observed nothing unusual
or criminal. Prior to stopping Appellant and detecting the odor of alcohol, there was no
outward indication that Appellant was violating the law.
The Commonwealth argues that the tip nonetheless was reliable because nearly
every piece of information given was corroborated by Trooper Oliver's observations.
The accuracy of the tipster's description certainly aided Trooper Oliver in locating
Appellant on I-75 . However, the accuracy of the tipster's description did not make it any
more reliable because it did not reveal that the tipster was privy to any illegal conduct .
Nothing in the content of the tip indicates that the tipster either had witnessed or could
predict any illegal activity. The pouring of an unidentified liquid from a bottle toward
another person may signal a dispute, but it is neither criminal conduct nor a reliable
indication that criminal conduct is about to occur.
Therefore, we conclude that the tip here lacked the moderate indicia of reliability
required by J .L . and White . Though accurate in its substance, the tip consisted entirely
of information available to any casual observer on the street, giving the police no
method of verifying that the tipster could be relied upon. The tip neither recounted nor
predicted any specific illegal conduct . Moreover, the investigating officer did not
independently observe any illegal activity or suspicious behavior . We do not believe
that reasonable suspicion can be predicated upon an unidentified person's accurate
description of another vehicle and driver, coupled with the bare assertion that the driver
had engaged in what might be considered offensive - though not criminal - conduct.
For the foregoing reasons, the decision of the Court of Appeals is hereby
reversed and this matter is remanded to the Grant Circuit Court for further proceedings
consistent with this opinion .
Lambert, C.J . ; Cooper, Keller, and Stumbo, JJ ., concur. Graves, J ., dissents by
separate opinion, with Wintersheimer, J ., joining. Wintersheimer, J ., dissents by
separate opinion, with Graves, J ., joining .
COUNSEL FOR APPELLANT :
Steven N . Howe
94 South Main Street
Dry Ridge, KY 41035
COUNSEL FOR APPELLEE:
Gregory D . Stumbo
Attorney General of Kentucky
James Havey
Matthew D . Nelson
Assistant Attorneys General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601-8204
COUNSEL FOR AMICUS CURIAE,
KENTUCKY ASSOCIATION OF
CRIMINAL DEFENSE LAWYERS :
Wilbur M . Zevely
226 Main Street
P. O. Box 6910
Florence, KY 41022-6910
Tasha K. Scott
211 East Fourth Street
Covington, KY 41011
RENDERED : AUGUST 26, 2004
TO BE PUBLISHED
,six~rr~at f~uixrf of ~~tfixxh~r
2002-SC-0926-DG
MARK COLLINS
V.
APPELLANT
ON REVIEW FROM COURT OF APPEALS
2000-CA-1890-MR
GRANT CIRCUIT COURT NO . 1999-CR-0093
COMMONWEALTH OF KENTUCKY
APPELLEE
DISSENTING OPINION BY JUSTICE GRAVES
I respectfully dissent because Trooper Oliver's investigatory stop was more
reasonable than the conclusions drawn by the Majority. The accurate tip from an
anonymous citizen, reporting dangerous behavior to the police for the immediate safety
of the highways, had more than sufficient indicia of reliability to justify an investigatory
stop.
Courts across the country evaluate the quality of the information based on
whether it was received from a "professional" or criminal informant, or a cooperative
citizen who was either a witness to or victim of a crime. Seven federal circuits and thirty
seven states recognize this distinction . 1-3
SEARCH AND SEIZURE
ยง 3.19 ; Pawloski v .
State, 380 N .E .2d 1230 (Ind . 1978) ; State v. Ronngren , 361 N .W.2d 224 (N .D. 1985) .
The courts in these jurisdictions make this distinction because, while criminal
informants' information may be suspect, when citizens altruistically report a crime in
progress, the law ought to presume their veracity. If trial courts make this distinction in
determining probable cause, the reasonability of a police officer's suspicion when
performing a "Terry" stop is further improved Terry v. United States , 392 U.S . 1, 88
S . Ct. 1868, 20 L . Ed .2d 889 (1968) .
The majority also seems to add a requirement that officers corroborate criminal
activity, even though the United States Supreme Court has never endorsed such a
requirement. Neither Florida v. J .L . , 529 U .S . 266, 120 S . Ct. 1375, 146 L. Ed . 2d 254
(2000), nor Alabama v. White, 496 U .S . 325, 110 S . Ct . 2412, 110 L. Ed . 2d 301 (1990),
suggest that the only acceptable indicium of reliability is criminal activity, as the majority
does today . In J .L. , supra , the Supreme Court emphasized the importance of the
predictive facets of a tip, but principally criticized the near total lack of any indicia of
reliability . The informant not only remained anonymous, but provided no information
regarding how he knew about the gun or why his information was reliable . Further, the
informant's bare description of J .L ., i.e., "a young black male standing at a particular bus
stop and wearing a plaid shirt," was a description any casual bystander could have
provided, and one that could have applied to a number of men in Miami who used that
bus stop. Finally, the description did not provide any context for how the informant
gained such information . 529 U .S . at 268, 120 S .Ct. at 1377. In the absence of any
minimal indicia of reliability, the Supreme Court held that the police officer did not have
a reasonable or reliable suspicion .
Furthermore, in White, supra, the Supreme Court upheld an investigatory stop
without corroboration of criminal activity. As the majority has already related, the police
in White received an anonymous phone call explaining that a woman would be leaving a
specific apartment in a certain vehicle at a particular time, and that she would be
transporting cocaine to a designated motel . The tipster further specified that the woman
would be carrying the cocaine in a brown attache case. However, when she left, she
did not have a brown attache case . Even though the police did not corroborate the only
criminal detail of the tip, the Supreme Court nevertheless found the investigatory stop
reasonable, based on the accuracy of the other information .
Examining the case decided today, the information provided to Trooper Oliver
sufficiently verified the anonymous citizen's tip. The caller identified a white, male
driving a white Chevrolet Blazer with a specific license plate number. Calling from the
gas station where he had personally witnessed the driver throw what appeared to be
alcohol, argue with another driver, and exhibit behavior suggestive of intoxication, he
not only provided accurate and detailed information, but also explained his means of
such . The caller predicted that the drunk driver would proceed south on I-75. Trooper
Oliver thereafter located the white Chevrolet Blazer traveling south on I-75 just a few
miles from the gas station, precisely where the caller predicted . Trooper Oliver verified
every detail of the tip except the drunken behavior of the driver. Although aberrant
driving would have made a stop more reasonable, considering the veracity and detail of
the citizen's tip, Trooper Oliver's investigatory stop hardly seems unreasonable .
Other factors contributing to the conclusion that Trooper Oliver's suspicion was
reasonable include the United States Supreme Court's expressed fears about the
dangers of drunk driving, as well as some philosophical reflections on probability and
reasonableness.
In Michigan Department of State Police v. Sitz, 496 U .S. 444, 110 S.Ct. 2481,
110 L.Ed .2d 412 (1990), the Supreme Court drew attention to the annual death toll in
accidents involving drunk drivers, pointing out that over 25,000 deaths, one million
injuries, and $5 billion worth of property damage is caused by drunk driving every year .
Id.at 451 . Sitz dealt specially with the constitutionality of police checkpoints in
administering sobriety tests . Although the issue in that case differs from the issue
herein, it illustrates not only the state's interest in preventing drunk driving, but also the
minimal invasiveness of an automobile stop .
Furthermore, Probable cause and reasonable suspicion are both assertions
reflecting a state of mind similar to opinion . More certain than a possibility, they reflect
probabilities rather than certainty . According to Max Black, Probabilities, THE
ENCYCLOPEDIA OF PHILOSOPHY 6,465 (The Macmillan Co . & Free Press, 1967),
"The point of making a probability assertion is to make a prediction that is both sound
(justified by the evidence) and successful (true) ; if it is the first it may be called
warranted, if the second, fulfilled ." The difference between the two remains
fundamentally a difference between probabilities . Although the meanings of probable
cause and reasonable suspicion are inexorably connected to their legal origins, a
common sense philosophical reflection on the two can clarify the distinction .
"Probable cause" emphasizes the objective character of the assertion ; while
"reasonable suspicion" focuses on the state of mind of the subject making the assertion .
This conclusion finds support in the legal focus on the entirety of the circumstances
surrounding a reasonable suspicion, while the law remains slightly less malleable when
discerning probable cause. Although we cannot expect courts to thoroughly investigate
the subjective value of an officer's suspicion, the subjectivity of the standard allows
more room for one's personal inarticulable insight drawn from years of experience in law
enforcement. The best way to account for the imprecise measurement of probabilities
that trial courts encounter in these matters is to simply ask whether a conclusion is
unreasonable .
In this case, Trooper Oliver's probability assertion manifested in his investigatory
stop proved fulfilled, but we must still inquire as to its justification on the evidence
available to him . Nothing in the record indicates that Trooper Oliver had any reason to
suspect the veracity of the anonymous citizen-informant . He responded no differently
than he would have if the tip came from an anonymous eyewitness to a drug deal or
kidnapping . Ideally, a drunk driver would provide an officer with superabundant
evidence of intoxication . Even though some drunk drivers do not drive awkwardly, they
still present a danger to others because their motor skills and reaction time are
impaired . Drunk drivers remain a danger on the road and a threat to others even if they
may appear to drive competently .
Trooper Oliver acted quickly and relied on the evidence from a tipster, rather than
wait for the evidence from an accident . Thus, he kept the roads safer for everyone on
the highways of our Commonwealth . I see no reason to fault an officer discharging his
duties or a citizen who generously takes the time to report a crime . The tipster should
be commended for being a good citizen and doing more than is required or expected .
For these reasons, I would affirm the judgment of the trial court.
Wintersheimer, J ., joins in this dissent.
RENDERED : AUGUST 26, 2004
TO BE PUBLISHED
*uPrenze Caurf of ~rnfixrhv
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2002-SC-0926-DG
MARK COLLINS
APPELLANT
ON REVIEW FROM COURT OF APPEALS
2000-CA-1890-MR
GRANT CIRCUIT COURT NO. 1999-CR-0093
V.
COMMONWEALTH OF KENTUCKY
APPELLEE
DISSENTING OPINION BY JUSTICE WINTERSHEIMER
I respectfully dissent from the majority opinion because the circuit judge correctly
overruled the motion to suppress the evidence against the defendant based on the
totality of the circumstances . The anonymous tip carried with it an indicia of reliability
and the information provided to the arresting officer amounted to a reasonable
suspicion that the defendant was or was about to become involved in some kind of
criminal activity.
In October 1999, Collins was arrested and charged with driving under the
influence, third offense, and for driving while his license was suspended . A state
trooper made the arrest after stopping Collins on 1-75 in Grant County . Collins tested
for an alcohol level of 0.186 . The basis for the original stop was provided by a person
who called police to report conduct by Collins and the direction of his travel. The record
does not indicate that the caller was identified so the telephone call has been properly
treated as anonymous . Upon stopping the vehicle, the officer detected an odor of
alcohol on the person of the defendant and after a field sobriety test was given, Collins
was arrested .
The unnamed witness described the conduct of Collins at the gas station in
detail, claiming he was slinging what was thought to be alcohol at another vehicle .
There was no bottle or can thrown from the vehicle, only the liquid. The caller advised
that [he] thought it was some kind of dispute .
Illinois v. Gates , 462 U.S . 213, 103 S.Ct. 2317, 76 L .Ed .2d 527 (1983), adopted
a totality of the circumstances approach to determine whether information gained from
an anonymous informant and partially verified by police, as to innocent details,
amounted to probable cause for the issuance of a search warrant. In that case, the
U .S . Supreme Court rejected a strict two-prong test developed in Aquilar v. Texas , 378
U.S. 108, 84 S .Ct. 1509, 12 L.Ed .2d 723 (1964) and Spineili v. United States, 393 U.S .
410, 89 S .Ct. 584, 21 L.Ed .2d 637 (1969) .
In Alabama v . White , 496 U.S . 325, 110 S.Ct. 2412, 110 L.Ed .2d 301 (1990), the
United States Supreme Court applied the totality of circumstances approach to a stop
conducted pursuant to Terry v. Ohio , 392 U.S . 1, 88 S.Ct. 1868, 20 L.Ed .2d 889 (1968) .
In White , supra, the court held that under the totality of the circumstances, the
independent corroboration of the informant's prediction imparted sufficient indicia of
reliability.
In this case, the unusual behavior coupled with an apparently aggressive act,
were both indicative of illegal activity and sufficiently predictive of future misconduct so
as to warrant a Terry stop . The behavior observed and reported by the informant was
predictive rather than speculative .
It gave rise to a reasonable suspicion that the driver
"hurling the projectile" and setting off to drive on public roadways might be a likely
candidate either for a DUI offense or potentially as a perpetrator of road rage .
At a pretrial hearing, the defense moved to suppress the evidence . The
argument was that the officer did not have sufficient reason to make the investigatory
stop based on Florida v. J .L . , 529 U .S. 266, 120 S .Ct . 1375, 146 L.Ed .2d 254 (2000).
In that case, the mere act of standing on a corner was in no way violative of any law per
se. The circuit judge denied the motion and later the motion for reconsideration stating
that there were more facts provided in this case, such as the movement and identity of
the vehicle, than were provided in J.L. Thus, the circuit judge reasoned that this
situation was closer to the facts of White . The Court of Appeals affirmed and discussed
J.L. and also found it distinguishable . This matter involves a decision by a panel of the
Court of Appeals which is different from an earlier decision of the Court of Appeals in
Commonwealth v. Priddy , 2003-SC-41-DG . Certainly, it is the responsibility of this
Court to reconcile such differences . In my view, the majority of this Court has endorsed
the decision in Priddy , rather than the decision in this case.
Gates, supra , J .L. and White , all involved investigations where an anonymous
informant alleged that the defendant was engaged in concealed criminal activity. In
none of these cases were the police aware of the veracity of the informant, and in none
of the three did the informant provide information to impart the basis of his or her
knowledge . In each case, the informant alleged present or future concealed criminal
activity and left the police without information as to how the caller knew about the crime .
The U .S. Supreme Court accepted this form of anonymous information as normal :
The opinion in Gates recognized that an anonymous tip
alone seldom demonstrates the informant's basis of
knowledge or veracity inasmuch as ordinary citizens
generally do not provide extensive recitations of the basis of
3
their everyday observations and given that the veracity of
persons supplying anonymous tips is by hypothesis largely
unknown, and unknowable.
White , 496 U .S . at 329, 110 S .Ct. at 2415 citing Gates , 426 U .S . at 237, 103 S .Ct. at
2332 .
Here, the anonymous informant described conduct of Collins at the gas station .
The caller was able to give a precise description of the automobile, including the license
number and its location and direction of travel. This was not a vague or inadequate
description . Under the totality of circumstances, the information provided by the caller
carried an indicia of reliability . As in every anonymous informant case, the veracity of
the caller was "by hypothesis largely unknown and unknowable." Gates . This is in
contrast to those informants who are known to the police and whose veracity can be
established by previous history.
It is of interest to note that a published Court of Appeals opinion, Stewart v.
Commonwealth , Ky.App., 44 S .W .3d 376 (2000), in which this Court denied
discretionary review, approved of a stop because the information from an informant
contained some "predictive" information about the movements of a suspect which could
be verified on observation . In Stewart, supra, a panel of the Court of Appeals
determined that an anonymous tip that a couple had just purchased crack cocaine and
were traveling in a described vehicle on a particular route had, when the travel was
corroborated by police, an indicia of reliability . It can be said that the level of
corroboration accepted by this Court when it denied discretionary review of Stewart was
sufficient here .
United States v. Wheat, 278 F .3d 722 (8 th Cir. 2001), provides an excellent
discussion of the difference between anonymous tips relating to "clandestine crimes
such as possessory offenses," and those relating to erratic driving in which the basis of
the informant's knowledge is likely to be apparent . It is recognized that there is no
erratic driving involved in this case .
This Court has applied the totality of circumstances approach in Lovett v.
Commonwealth , Ky., 103 S.W .3d 72 (2003), wherein an informant provided police with
a detailed description of the defendant's methamphetamine laboratory and
manufacturing operation . The Court noted that the level of detail provided and the fact
that the informant's knowledge was based on his own observation, lent significant
reliability to the information . Lovett, supra, involved a confidential informant rather than
an anonymous caller.
One of the most recent decisions in regard to the application of the Fourth
Amendment is Maryland v. Pringle , - U .S . -, 124 S .Ct. 795, 157 L .Ed .2d 769 (2003),
decided by the United States Supreme Court on December 15, 2003. In that case, a
jury convicted the defendant of possession with intent to distribute cocaine and
possession of cocaine . The drugs were recovered from a backseat armrest and
Pringle, who was a front seat passenger, was arrested along with the driver/owner of
the car who had been stopped for speeding and a third occupant who was in the back
seat. The three occupants denied that the drugs or the large sum of cash recovered
from the glove box was theirs. The U .S . Supreme Court held that the police officer had
probable cause to believe that the defendant committed the crime of possession of
cocaine and that his arrest did not contravene the Fourth or Fourteenth Amendment .
The court observed that the long prevailing standard of probable cause protects
citizens from unreasonable interferences with privacy and from unfounded charges of
crime, while at the same time, giving fair leeway to the enforcement of the law in the
protection of the community . Id . at 799. The probable cause standard is a practical,
nontechnical concept that deals with the factual and practical considerations of
everyday life on which reasonable and prudent men, not legal technicians, may act. Id.
The court noted that probable cause is a fluid concept, turning on the assessment of
probabilities in a particular factual context, not readily or even usefully reduced to any
neat set of legal rules. Id . at 800 . 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 . Id . In order to determine whether an
officer had probable cause to arrest an individual, a court will examine the events
leading up to the arrest and then decide whether these historical facts, viewed from the
standpoint of an objectively reasonable police officer, amount to probable cause . Id .
Also very instructive is an article in the Texas Law Review, which discusses in
great detail the reasonableness of probable cause, tracing it from a historical point of
view to the present day application of the Fourth Amendment of the U .S . Constitution .
Craig S . Lerner, The Reasonableness of Probable Cause , 81 Tex.L.Rev. 951 (2003).
The law review article concludes that the Fourth Amendment imposes limits on the
power of the state to search private citizens, and yet those limits are not absolute .
The first clause of the Fourth Amendment forecloses only unreasonable
searches and the second clause proscribes the issuance of warrants without probable
cause . Id. at 1025. The probable cause standard is a flexible one . The author
indicates that recasting probable cause within a reasonableness framework can open
the way for more creative thinking about accommodating law enforcement priorities and
observing civil liberties . Id . at 1029 . As the article indicates, certainly there is a need
for a sensible discussion of the importance of criminal procedural rules in striking an
appropriate balance between the protection of the public from violence and a protection
of its civil liberties .
The legal sanctity accorded to the Fourth Amendment is not offended by the
actions of the police in this case. Unfortunately and perhaps, an unintended
consequence of this decision will be to put a chill on citizen reports to police of
suspicious behavior. The all-too-common phrase, "Why get involved?" is often invoked.
The Fourth Amendment was not compromised by the decisions of this Court in Cra on
v. Commonwealth , Ky., 846 S .W .2d 684 (1992), which adopted the good faith exception
of United States v . Leon , 468 U .S. 897, 104 S .Ct. 3405, 82 L.Ed .2d 677 (1984) and
Commonwealth v. Litke , Ky., 873 S .W.2d 198 (1994) . Both cases involved different
circumstances both legally and factually.
The facts and law of this decision have demonstrated a legitimate difference of
legal opinions as reflected in the varying decisions of the Court of Appeals . In this
case, we were fortunate to have a very capable circuit judge and a very prudent
prosecutor . The people of Grant County, as well as all travelers on I-75, deserve
protection against drunk drivers. The Fourth Amendment prohibition against
unreasonable search and seizure is not present here because the stop, search and
arrest were based on reliable information as transmitted to the police dispatcher which
produced the stop of the driver . There was no Fourth Amendment violation . The cause
of justice was truly served . The judgment of conviction should be affirmed .
Graves, J., joins this dissent and also writes separately.
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