LEROY HAMPTON V. COMMONWEALTH OF KENTUCKY
Annotate this Case
Download PDF
AS MODIFIED : OCTOBER 4, 2007
RENDERED : AUGUST 23, 2007
TO BE PUBLISHED
'.$UyrrMr (~Vurf
of
2006-SC-000122-MR
LEROY HAMPTON
APPELLANT
ON APPEAL FROM WARREN CIRCUIT COURT
HONORABLE JOHN GRISE, JUDGE
NO. 05-CR-000536
V.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE NOBLE
AFFIRMING
Appellant, Leroy Hampton, was convicted of multiple drug charges; found to be a
first-degree persistent felony offender (PFO), and was sentenced to twenty years in
prison . On appeal, he argues that his conviction should be reversed because (1) the
police improperly searched him and seized evidence from his person in violation of his
Fourth Amendment rights, (2) he was entitled to a directed verdict as to the drug
charges, and (3) his prosecution for possession of both a controlled substance and drug
paraphernalia on which the controlled substance was found violated the constitutional
proscription against double jeopardy . Finding no reversible error, Appellant's conviction
is affirmed .
I. Background
On April 30, 2005, Police Officer Erik Woodward received a tip around 4:00 a .m .
of possible drug activity at a house in Bowling Green. Officer Woodward, along with
Officer Jeff Eversoll and several other officers from the Bowling Green Police
Department, proceeded to the home to investigate the tip. Officers Woodward and
Eversoll parked a block from the residence and proceeded to the house on foot. At this
time, eight to ten people came out of the house and began getting into their cars .
Appellant had just gotten into the rear passenger seat of one of the cars when
Officer Eversoll walked up to it and opened the passenger-side door. He saw Appellant
put something in his shoe, though he could not identify the object. Officer Eversoll
ordered Appellant out of the car. After several minutes, Appellant consented to a
search of his person, which led to the ,discovery of a pipe in Appellant's shoe. He was
arrested and taken to jail .
At the jail, Appellant was asked if he had any contraband on his person, and
answered that he did not. A subsequent search of Appellant revealed a second pipe in
one of Appellant's pockets. Scientific tests of the two pipes indicated that both had
cocaine residue on them.
Appellant was charged with first-degree possession of a controlled substance
(second offense) for the cocaine residue on the pipes, first-degree promoting
contraband for attempting to bring the second pipe with residue into the jail, possession
of drug paraphernalia, and being a first-degree persistent felony offender (PFO). At
trial, he presented no evidence in his own defense, and was found guilty on all counts.
The jury recommended ten years for the possession of a controlled substance charge
(enhanced to twenty years for the PFO), five years for the contraband charge (also
enhanced to twenty years for the PFO), and twelve months and a $500 fine for the
possession of drug paraphernalia charge . The sentences were ordered to run
concurrently for a total of twenty years . Appellant now appeals to this Court as a matter
of right . Ky. Const. ยง 110(2)(b) .
II. Analysis
A. Suppression of the Cocaine and Pipe Evidence
Appellant first claims that the pipes should have been suppressed as the product
of an illegal search and seizure . Specifically, he argues that the police had no
reasonable, articulable suspicion that criminal activity was afoot, as required by Terry v.
Ohio , 392 U .S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and its progeny, when they
had him get out of the car to be searched . He also argues that the officer's opening of
the car door without first asking him to step out of the car exceeded his authority during
the Terry stop . Finally, he claims that his consent to the search of his person was
involuntary and coerced.
1 . Reasonable and Articulable Suspicion
Officers must have a reasonable and articulable suspicion that a crime is
occuring before they may perform a temporary investigative stop of a person on foot, id .
at 21, 88 S .Ct. at 1879-80, or driving a car. Delaware v. Prouse , 440 U.S . 648, 663, 99
S.Ct. 1391, 1401, 59 L.Ed .2d 660, 673 (1979). Whether the information the police have
is sufficient to give rise to such a suspicion is evaluated under the totality of the
circumstances . Illinois v. Gates, 462 U .S . 213, 241-42, 103 S .Ct . 2317, 2334 (1983).
Appellant claims the officers in this case had no such suspicion because the tip on
which they relied in initially approaching the house was unreliable and uncorroborated,
and because the additional evidence of people running from the house and prior reports
of drug activity at the house were insufficient .
The tip that Appellant complains about came from a man riding a bike in the
neighborhood . The man told the officers that drug activity was going on at a nearby
house, though he did not say whether he had been inside it. He did not give an
address, but he described the appearance of the house and its specific location in
relation to a nearby intersection . The man did not describe Appellant, nor did he
describe any of the vehicles at the house.
The officers did not know the name of the man, though they were familiar with
him, having spoken with him previously and having received tips from him on several
occasions . They also testified that they knew the man rode his bike at such an odd
hour because he claimed to have insomnia . Officer Woodward testified that he had
talked with the man on a regular basis and that he had given three to five tips that had
proven reliable . Officer Eversoll, however, testified that he had not been able to followup on the man's tips in the past.
In light of this testimony, the trial court made specific factual findings about the
tip:
THE COURT FINDS that on April 30, 2005, Officer Woodward
received a tip from a man with whom he was familiar and who had
provided reliable information regarding illegal activity on several occasions
over the past year. The man, according to Officer Woodward's
testimony[,] rides his bike at night because of insomnia and provided
Officer Woodward on theh night in question with a tip that drug activity was
occurring at 741 East 11 Street . Based on this tip, Officers Woodward
and Eversoll, as well as other police officers, approached the house within
15 minutes of receiving the tip.
Appellant complains that the "tip" was tantamount to one from an anonymous
informant, and that it was unreliable because it was not corroborated, and therefore
could not serve as the basis of a reasonable and articulable suspicion . A truly
anonymous tip must bear some increased indicia of reliability such as independent
verification before the police may rely on it. See Florida v. J.L. , 529 U.S . 266, 276, 120
S.Ct. 1375, 1381, 146 L.Ed .2d 254 (2000) (holding that anonymous tip corroborated
only as to the readily observable location and appearance of a suspect was insufficient
to give reasonable, articulable suspicion) ; Alabama v. White, 496 U .S . 325, 332, 110
S.Ct. 2412, 2417, 110 L.Ed .2d 301 (1990) (noting that corroboration of details in an
anonymous informant's tip gave it sufficient indicia of reliability to support a reasonable,
articulable suspicion) ; Illinois v. Gates, 462 U.S . 213, 241, 103 S.Ct. 2317, 2334, 76
L .Ed.2d 527 (1983) (noting that corroboration of details about future acts in an
anonymous informant's tip made it reliable enough to support a finding of probable
cause).
The anonymous tipster cases, however, are of limited applicability in this case .
Though his name was unknown, the man who gave the tip to the police was not truly
anonymous . The officers were familiar with him, having spoken with him on several
previous occasions. One of the officers had previously received reliable tips from the
man about criminal activity. Rather than being an anonymous tipster, whose
information would need significant verification in order to support even a reasonable,
articulable suspicion, the man on the bike was more akin to a citizen informant, whose
tip inherently bears more indicia of reliability than that of a purely anonymous informant.
Citizen informants are tipters who have face-to-face contact with the police or
whose identity may be readily ascertained . Their tips "are generally competent to
support a finding of reasonable suspicion (and in some cases, probable cause) whereas
the same tip from a truly anonymous source would likely not have supported such a
finding ." Commonwealth v. Kelly , 180 S .W.3d 474, 478 (Ky. 2005) . In Kelly, the
unnamed tipsters claimed to be employees of a local restaurant . They called in a report
that a patron had just left the restaurant in a car and appeared to be intoxicated. They
described the defendant and his car. When the officer arrived at the restaurant, two
people who the officer assumed were employees of the restaurant were standing
outside pointing across the street to a car that matched the description given on the
phone. The officer followed the car to a nearby hotel parking lot and performed a Terry
stop, which this Court upheld as the result of the tip from a citizen informant . Similarly,
in Commonwealth v. Priddv, 184 S .W.3d 501 (Ky. 2005), this Court upheld an
investigatory stop resulting from a tip from a man who flagged down a police officer on
the street . The unnamed man described in detail a suspect and his truck, and stated
that the suspect was about to engage in a drug deal in the parking lot of a local
department store . The officer went to the parking lot and saw a truck and man matching
the description given by the tipster . The officer performed an investigative stop that was
upheld on appeal .
In both Priddy and Kelly , the tips were less corroborated than the anonymous
ones in Alabama v. White and Illinois v. Gates. The investigative stops in those cases
were nevertheless upheld because they were premised on tips from citizen informants
whose information carried more indicia of reliability than those from purely anonymous
sources, which was the case in White and Gates. While such citizen-informant tips are
not always sufficient, given that the situation is evaluated under the totality of the
circumstances, they are more likely to be so than anonymous tips (absent extensive
corroboration) .
When applied to this case ; however, it is not as clear as in Priddy and Kelly that
the informant's tip alone was sufficient . Like the tips in those cases, the man on the
bike in this case described in some detail the nature of the alleged criminal activity,
namely that several people were in the house buying or using drugs. Unlike those
cases, however, the man did not even mention Appellant, much less describe him or his
vehicle. And ultimately, nothing in the man's information connected Appellant to a
crime . Thus, while the tip from the man on the bike enjoyed greater indicia of reliability
as to its content than a purely anonymous tip, absent other information, its content
alone would have been insufficient to allow police to perform an investigative stop of
Appellant .
The police, however, had other information that justified their stop of Appellant
when combined with the tip. The officers testified that they went to the house to perform
a so-called "knock and talk," wherein they would knock on the front door of the house,
ask some questions, and request consent to look in the house. They had received
previous reports of drug activity at the house, so it was not unknown to them as a
possible site of ongoing crime. In fact, the house had been the subject of some
surveillance by the local Drug Task Force.
As the officers approached the house, eight to ten people left and got into their
cars. Officer Eversoll testified that some of the people were walking and that others
were running . Officer Woodward, however, testified that all the people were running
and that all the people were hurrying . The trial court apparently believed the testimony
of Officer Woodward because its findings of fact note, "As they approached, Officers
Woodward and Eversoll observed 8-10 people run out of the house and into cars
parked outside . This occurred at approximately 4:00 a.m ." (Emphasis added.)
The trial court found in its order denying Appellant's suppression motion that this
evidence considered together was sufficient to allow the officers to perform an
investigatory stop:
In this case, the investigative stop was initiated because [the police
officers] observed 8-10 people running from the house at 4:00 a.m., after
[they] received a tip of drug activity at that house from a person who had
previously provided reliable information . Furthermore, the officers had
received, on previous occasions, information that drug activity had
occurred at this house . Considering all of these factors, THE COURT
7
FINDS that the officers have presented a reasonable, articulable suspicion
of criminal activity justifying investigation . . . .
Police officers, who had just received a tip, from a reliable source,
that drug activity was occurring at a certain location and who then
observed the occupants of the location fleeing the house at 4:00 a .m . as
the police approached were justified to initiate the detention of the
defendant, one of the suspicious individuals, in order to investigate further.
The trial court is correct . Despite Appellant's protestations to the contrary, it is
unusual for a large number of people to run out of a house to their cars at 4 :00 a .m.
Though unusual, such an event alone would not necessarily justify the officers' belief.
But innocent behavior, combined with other circumstances, can "amount to reasonable
suspicion . . . . Indeed, Terry itself involved `a series of acts, each of them perhaps
innocent' if viewed separately, `but which taken together warranted further
investigation ."' United States v. Sokolow, 490 U .S . 1, 9-10,109 S.Ct. 1581,
1586 (1989) (quoting Terry v. Ohio, 392 U.S . 1, 22, 88 S .Ct. 1868, 1881, 20 L.Ed .2d
889 (1968)); see also Reid v. Georgia , 448 U .S . 438, 441,100 S .Ct. 2752, 2754, 65
L.Ed .2d 890 (1980) (per curiam) ("[T]there could, of course, be circumstances in which
wholly lawful conduct might justify the suspicion that criminal activity was afoot.") .
When the fleeing is combined with the somewhat reliable tip that drug activity
was occurring at the house, along with previous reports of drug activity at the house and
the fact that the fleeing occurred just as police began approaching, the situation takes
on an entirely new-and suspicious--light . The convergence of those events gives rise
to more than a nebulous and inchoate suspicion of criminal activity, and would lead a
reasonable officer to conclude that the people had been involved in drug activity at the
house and were then attempting to leave the scene of the crime . That Appellant was
one of the fleeing people would justify the officers' belief that it was appropriate to
investigate him, stopping him temporarily in the process . In light of the totality of the
circumstances, it is clear that the officers had a reasonable and articulable suspicion
that Appellant was engaged in criminal activity, thereby justifying a brief investigatory
stop.
2. Opening the Car Door
Appellant also claims that even if an investigatory stop was justified, the officers'
decision to open the car door before asking him to exit the car was impermissible . He
does not challenge the officers' authority to require him to exit the car, as allowed in
Pennsylvania v. Mimms, 434 U .S. 106, 98 S.Ct. 330, 54 L .Ed.2d 331 (1977), at least if
done for safety purposes. In support of his narrow contention, Appellant notes that
officers are required to use the "least intrusive means reasonably available to verify or
dispel the officer's suspicion in a short period of time ." Florida v. Rover , 460 U .S . 491,
500, 103 S.Ct. 1319, 1325-26, 75 L.Ed .2d 229 (1983). He argues that the act of
opening the door was too much because the officers could have first asked him to step
out of the car.
Appellant is correct that officers are required to use the least intrusive means.
He fails to note, however, that "[t]he scope of the intrusion permitted will vary to some
extent with the particular facts and circumstances of each case." Id. at 500, 103 S.Ct at
1325. Thus, while it may be that opening a car door without first asking the suspect to
exit the car is inappropriate in some cases, it is not clear that such a wait-and-see
approach is always the best method. That approach seems particularly ill-suited in a
case like this one, where the suspect had just been seen running from a house
suspected of accommodating drug sales and use and getting into the rear seat of a car
whose door he now claims should have shielded him from the police . If Appellant was
fleeing a drug den (which he was) with several officers approaching, then it would not
be unreasonable to think he jumped in the car in order to dispose of evidence of his
crime or perhaps to get a weapon . Given the emphasis in investigatory stops on officer
safety and the short time in which the events in question unfolded in this case, it was
appropriate for the officers to open the car door to see what Appellant was doing and to
have him step out.
Given the circumstances, opening the car door is not so different from the
practice of ordering drivers to step out of their cars during short investigatory stops . As
the Supreme Court noted in Mimms :
[T]his additional intrusion can only be described as de minimis. The driver
is being asked to expose to view very little more of his person than is
already exposed . The police have already lawfully decided that the driver
shall be briefly detained ; the only question is whether he shall spend that
period sitting in the driver's seat of his car or standing alongside it. Not
only is the insistence of the police on the latter choice not a serious
intrusion upon the sanctity of the person, but it hardly rises to the level of a
petty indignity . What is at most a mere inconvenience cannot prevail when
balanced against legitimate concerns for the officer's safety.
434 U.S . at 111, 98 S.Ct at 333 (internal citation and quotation marks omitted) .
Appellant admits that it would have been acceptable for the officers to converse with
and observe him through an open window of the car or to have him exit it. Opening the
car door exposed little more of Appellant than would have been visible through an open
window, and certainly less than him standing outside the car. It is not a serious
intrusion on the sanctity of his person, nor even "a petty indignity" or inconvenience . In
light of the circumstances, the police did not exceed their lawful authority.
3. Voluntariness of the Consent to Search
Appellant also claims that his consent to the search of his person was involuntary
and coerced because he was in pain from the handcuffs at the time . He testified that he
10
had previously fallen and hurt his back, and that he was on his way to the hospital when
the officers stopped him . He also claimed to have a bad knee. He testified that he was
in pain and that Officer Eversoll refused to uncuff him unless he consented to a search.
He also claimed that he thought the search would consist only of a pat-down and
therefore would not reveal the crack pipe hidden in his shoe .
Officer Eversoll testified differently. He claimed that when Appellant exited the
car, he became argumentative and belligerent. Only after a few minutes of this
behavior were the handcuffs employed to give the officer time to identify Appellant .
After a few questions, Officer Eversoll became concerned for his own safety and that of
others, thus he left the cuffs on Appellant and continued to detain him . Officer Eversoll
admitted that he had to ask Appellant for consent to search several times before it was
given.
The trial court found in its order denying the suppression motion that:
Officer Eversoll opened the door on the passenger side of the
vehicle in which the defendant was located and observed the defendant
placing something in his shoe that the officer could not identify. He,
therefore, asked the defendant to step out of the car and began talking to
him . The defendant became belligerent and argumentative, and would not
identify himself for the police officers. He also cursed them. Officer
Eversoll, therefore, handcuffed the defendant in order to secure the safety
of the officers and other persons at the scene . After being handcuffed, the
defendant consented to a search, and Officer Eversoll found a pipe
containing cocaine residue in the defendant's shoe.
The defendant also complains that there was not sufficient reason
to handcuff him, which he claims resulted in compelling him to give
consent. The stop, however, was reasonable, and the police officers then
had a right to identify him and search him for weapons in order to secure
the safety of all persons involved . The police, however, testified that the
defendant was belligerent, argumentative and refused to cooperate to any
extent . Therefore, THE COURT FINDS that it was prudent for the officer
to handcuff him in order to maintain order. Furthermore, the Court DOES
NOT FIND coercion from the testimony. The Court does not believe that
the defendant was ever told that the handcuffs would be removed in
exchange for consent to search . THE COURT FINDS that the officers did
not, in fact, promise the defendant anything . . . . THIS COURT BELIEVES
AND FINDS, from observing the witnesses' testimony, that Officer
Eversoll's testimony that he believed the handcuffs were necessary for
safety is credible . Furthermore, when the defendant complained that his
shoulder and knee hurt, Officer Eversoll allowed him to sit to relieve the
knee pain. The handcuffs did have their intended effect of calming the
defendant, who then, according to his own testimony, consented to the
search, believing Officer Eversoll would not find the crack pipe. This was
a voluntary, studied decision made without coercion by the police.
The trial court specifically found Appellant's claims of coercion and a deal to undo the
handcuffs were unbelievable and that his consent to the search was voluntary .
While it is fundamental that a consent must be free, voluntary, and without
coercion, it is also the case that "the question whether a consent to a search was in fact
`voluntary' or was the product of duress or coercion, express or implied, is a question of
fact to be determined from the totality of all the circumstances ." Schneckloth v.
Bustamonte , 412 U .S. 218, 227, 93 S.Ct . 2041, 2047-48, 36 L.Ed .2d 854 (1973).
Questions of fact are subject to review only for clear error, the most deferential standard
of review. Miller v. Eldridge , 146 S .W.3d 909, 915 (Ky. 2004). The trial court's findings
were based squarely in the evidence presented at the suppression hearing . While the
court was ultimately required to choose between various competing and inconsistent
versions of the events, that does not undermine the decision . In fact, that is the
essential function of the trial court as the trier of fact when presented with preliminary
questions such as whether consent was voluntarily given. Thus, the trial court's finding
that Appellant's consent to search was voluntary was not clearly erroneous . Moreover,
Appellant's consent did not limit the scope of the search to that of a pat-down, thus the
fact that the police also searched in his shoe was not improper.
The trial court also ruled that consent was unnecessary for the search because it
was part of the investigatory stop. Appellant claims this too was error. While the search
incident to an investigatory stop is usually limited to a superficial, unintrusive pat-down
of the outer clothing for obvious signs of weapons---part of the classic "stop and frisk"
the scope of such a search is not always so limited . As noted above, "[t]he scope of the
intrusion permitted will vary to some extent with the particular facts and circumstances
of each case ." Rover, 460 U.S. at 500, 103 S.Ct at 1325. When an officer sees a
suspect stow an object in an item of clothing, such as a shoe, where it could not be
revealed by a mere pat-down, a broader search may be allowed if concern about safety
is sufficiently high. The trial court specifically found that the item the officers observed
Appellant hiding in his shoe was unidentifiable and could have been a weapon
(specifically a knife) . In such a situation, it is not unreasonable for the officer to slightly
expand the scope of the pat-down to include reaching into the shoe to determine the
nature of the object hidden there .
II . Directed Verdict
Appellant claims he was entitled to a directed verdict of acquittal on the
possession of a controlled substance, promoting contraband, and drug paraphernalia
charges. Before addressing the merits of those claims, however, it is necessary to first
determine whether they were preserved for appellate review .
Appellant notes that he made a directed verdict motion at the end of the
Commonwealth's proof, declined to put on any proof of his own, and then failed to
renew his motion for a directed verdict . He claims this means that the issue is only
partially preserved and thus must be addressed, if at all, under RCr 10 .26, the palpable
error rule. Despite his borderline concession, the fact that he put on no proof of his own
13
means that the motion at the end of the Commonwealth's proof was sufficient to
preserve the error for review. The preservation rule is simple: "A defendant must renew
his motion for a directed verdict, thus allowing the trial court the opportunity to pass on
the issue in light of all the evidence, in order to be preserved for our review ." Baker v.
Commonwealth , 973 S.W.2d 54, 55 (Ky. 1998) . Since the directed verdict motion was
not followed by more evidence, it did not need to be renewed because there was
nothing new for the trial court to consider in evaluating it. See also Schoenbachler v.
Commonwealth , 95 S.W.3d 830, 836 (Ky. 2003) ("[A] motion for directed verdict made
after the close of the Commonwealth's case-in-chief, but not renewed at the close of all
evidence-i.e ., after the defense presents its evidence (if it does so ) or after the
Commonwealth's rebuttal evidence-is insufficient to preserve an error based upon
insufficiency of the evidence." (emphasis added)) .
As for the merits of Appellant's claim, the test of a denial or grant of a directed
verdict on appeal is clear: "On appellate review, the test of a directed verdict is, if under
the evidence as a whole, it would be clearly unreasonable for a jury to find guilt, only
then the defendant is entitled to a directed verdict of acquittal." Commonwealth v.
Benham , 816 S.W.2d 186,187 (Ky . 1991) .
Appellant argues that the evidence of his possession of a controlled substance
was insufficient because it constituted only a residue, which he argues is less than "any
quantity" as required by KRS 218A.1415 . Appellant's proposed construction of the
statute has been expressly rejected by this Court in Commonwealth v. Shively , 814
S.W .2d 572, 573 (Ky. 1991), and Bolen v. Commonwealth , 31 S.W.3d 907, 909-10 (Ky.
2000), both of which held that the "any amount" language in the applicable controlled
substance statute applied to residue on a pipe. Therefore, because there was evidence
14
that the residue on the pipes found in Appellant's possession was cocaine, the motion
for a directed verdict on the controlled-substance possession charge was properly
denied.
Appellant also claims that he was entitled to a directed verdict on the contraband
charge . When taken to the jail, he was asked whether he had anything on him, to which
he replied in the negative . The second pipe, also with cocaine residue, was found in his
pocket at that time. A conviction for promoting contraband requires that a defendant
"knowingly introduce[] dangerous contraband into a detention facility or
penitentiary . . . ." KRS 520.050 . Appellant argues that there was no evidence that he
knowingly possessed the second pipe when he went to the jail. "Circumstantial
evidence is sufficient to support a criminal conviction as long as the evidence taken as a
whole shows that it was not clearly unreasonable for the jury
to find guilt."
Bussell v.
Commonwealth, 882 S.W.2d 111, 114 (Ky. 1994) . That Appellant knew he had the pipe
when he went into the jail is a reasonable inference from the fact that it was in his own
pocket. That he knew the pipe had cocaine on it was also a reasonable inference .
Thus, the directed verdict was properly denied as to the contraband charge .
Appellant also claims that he was entitled to a directed verdict on the drug
paraphernalia charge . He claims that the Commonwealth presented no evidence that
he "intended to use" the pipe to consume drugs, KRS 218A .500(2), or that the pipe itself
was "intended for use . . . in ingesting, inhaling, or otherwise introducing into the human
body a controlled substance," KRS 218A.500(1), since there was no direct evidence or
significant circumstantial evidence, such as a separate quantity of cocaine, of such
intent. However, the fact that the pipes had cocaine residue on them showed they had
been used to consume drugs in the past and were therefore not innocent, common
15
items. This supports a reasonable inference that the pipes were intended to be used
illegally in the future . The fact that Appellant possessed the pipes also suggests that he
intended to use them in that manner. See KRS 218A.510(5) (noting that the "existence
of any residue of controlled substances on the object" is a factor supporting a finding
that the object is drug paraphernalia) . The evidence was sufficient to support the
conviction and the directed pverdict was properly denied .
Ill. Double Jeopardy
Finally, Appellant claims that his prosecution and conviction for both possession
of a controlled substance and possession of drug paraphernalia violated his double
jeopardy rights. Appellant argues that possession of a controlled substance for
possessing the residue of cocaine on the pipes was an included offense of possession
of drug paraphernalia in this case because one of the factors in considering whether the
pipes were drug paraphernalia was whether there was "any residue of controlled
substances" on them . KRS 218A.510(5).
It is true some drug-related offenses merge into others, thus preventing multiple
convictions . See Johnson v. Commonwealth , 134 S .W.3d 563 (Ky . 2004) (holding that
defendant could not be convicted for both possession and manufacturing the same
quantity of methamphetamine because manufacturing necessarily included a certain
period of actual possession) . That principle does not apply in this case because the
elements of possession of a controlled substance are not contained in possession of
drug paraphernalia, and vice versa . The elements of possession of drug paraphernalia
are possession of an object that is drug paraphernalia with the intent to use it to
consume drugs. Possession of a controlled substance requires knowing and unlawful
possession of a controlled substance.
16
Appellant's theory only works if possession of a controlled substance (in the form
of cocaine residue on the alleged paraphernalia) is an element of the offense of
possession of drug paraphernalia . It is not. The presence of residue is merely one of a
nonexclusive list of factors found in KRS 218A .510 to be considered in determining
whether a given object is drug paraphernalia . While such residue on the pipes is
particularly compelling evidence that they were drug paraphernalia, the Commonwealth
was not required to prove this fact to secure a conviction for possession of
paraphernalia . Other evidence, whether of one of the other factors listed in KRS
218A.510 or any "other logically relevant factors," could have been presented and would
have been sufficient to prove the paraphernalia element of the crime .
The fact that proof of the presence of cocaine residue was the basis of the
possession of a controlled substance conviction, constituting one of the crucial elements
of that offense, does not change this . A single item of evidence may be used to support
proof of multiple crimes so long as each crime has an element that the other does not.
Because the crimes in this case had separate elements, and in fact had no common
elements, Appellant's convictions do not violate double jeopardy.
For the foregoing reasons, the judgment of the Warren Circuit Court is affirmed :
All sitting . Lambert, C.J . ; Cunningham, Minton, Noble, Schroder and Scott, ii.,
concur.
COUNSEL FOR APPELLANT :
Shannon Dupree
Assistant Public Advocate
Department of Public Advocacy
Suite 301, 100 Fair Oaks Lane
Frankfort, Kentucky 40601
COUNSEL FOR APPELLEE :
Gregory D . Stumbo
Attorney General
David W. Barr
Assistant Attorney General
Office of Attorney General
Office of Criminal Appeals
1024 Capital Center Drive
Frankfort, Kentucky 40601-8204
,$UyrrMr (~vurf of
2006-SC-000122-MR
rnfurhv
LEROY HAMPTON
V.
APPELLANT
ON APPEAL FROM WARREN CIRCUIT COURT
HONORABLE JOHN GRISE, JUDGE
NO. 05-CR-000536
COMMONWEALTH OF KENTUCKY
APPELLEE
ORDER
On the Court's own motion, the Opinion of the Court by Justice Noble rendered
August 23, 2007 shall be modified on page 9, line 9, and page 15, line 19. Pages 1, 9
and 15 shall be substituted, as attached hereto, in lieu of pages 1, 9 and 15 of the
Opinion as originally rendered . Said modification does not affect the holding .
Entered : October 4, 2007.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.