COMMONWEALTH OF KENTUCKY V. RONALD D. MARR
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2003-SC-000564-DG
COMMONWEALTH OF KENTUCKY
V.
ON REVIEW FROM COURT OF APPEALS
CASE NUMBER 2002-CA-001774
JEFFERSON CIRCUIT COURT NO. 01-CR-002251
RONALD D . MARR
APPELLEE
OPINION OF THE COURT BY JUSTICE CUNNINGHAM
REVERSING
The Commonwealth appeals from an opinion of the Court of Appeals affirming a
judgment of the Jefferson Circuit Court . The defendant in that case, Ronald D . Marr,
was indicted on one count of manufacturing methamphetamine while in possession of a
firearm, one count of trafficking in a controlled substance (methamphetamine) in the first
degree while in possession of a firearm, one count of illegal use or possession of drug
paraphernalia while in possession of a firearm, and one count of illegal possession of a
controlled substance (marijuana) while in possession of a firearm . Prior to trial, the
Jefferson Circuit Court suppressed certain evidence seized following a pat-down search
of Marr. The Commonwealth filed an interlocutory appeal, and the Court of Appeals
affirmed the judgment of the trial court. This Court granted discretionary review.
The sole witness at the suppression hearing was Officer Bailey, a Louisville
police officer, who testified to the following facts. In April 2001, police received an
anonymous tip that methamphetamine was being sold from a body shop in Louisville .
The tip included a description of the seller as an older "biker looking" man. Based on
this information, officers began surveillance of the body shop. They observed people
coming into the shop for short periods of time who did not appear to be bringing in cars
for body work . The police concluded that these brief visits were consistent with drug
activity.
To further the investigation, the police pulled over one vehicle leaving the
business. The individual in the vehicle possessed two pounds of marijuana. Fearing
that this arrest would compromise their undercover surveillance of the body shop, the
police decided to enter the business and speak with the owner.
Upon their arrival, the police announced themselves to the shop owner and
informed him that they were conducting a narcotics investigation . The officers heard a
noise from the back of the business and inquired whether anyone else was present .
Officer Bailey testified that the shop owner seemed nervous as he replied that no one
else was present.
Nonetheless, Officer Bailey called for the person in the back to come out. Marr,
who is an older, bearded, "biker looking" man, emerged . Officer Bailey testified that
Marr also appeared nervous. Based on these circumstances, Officer Bailey performed
a pat-down search of Marr. During this pat-down search, the officer felt "hitters" used to
ingest drugs, and two small, plastic bags of methamphetamine . The officer also found a
large amount of cash . Following the pat-down, the officers received verbal and written
consent from Marr to search his residence. At the residence, they found weapons,
additional methamphetamine, and a methamphetamine lab.
Following the suppression hearing, the trial court concluded that Officer Bailey
lacked a reasonable and articulable suspicion that Marr was engaged in criminal activity
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to justify the pat-down search . The trial court further suppressed the evidence seized
from Marr's residence, determining that the improper pat-down search vitiated Marr's
consent to search the residence . The Court of Appeals affirmed the judgment.
When reviewing a trial court's judgment with respect to a suppression hearing,
the court's findings of facts are conclusive if they are supported by substantial evidence .
RCr 9.78 . The trial court's legal conclusions are reviewed de novo . Adcock v.
Commonwealth , 967 S.W.2d 6, 8 (Ky. 1998) . In this case, it should be noted that the
evidence presented by the Commonwealth was uncontroverted, and therefore, we
assume that these are the facts upon which the trial court based its judgment.
A police officer may, for his protection, conduct a pat-down search of a person
when that officer has a reasonable and articulable suspicion that criminal activity is
afoot . Terry v . Ohio , 392 U .S . 1, 30, 88 S. Ct. 1868, 1885, 20 L . Ed. 2d 889 (1968). In
determining whether the requisite reasonable and articulable suspicion exists, the
reviewing court must examine the totality of the circumstances to see whether the
officer had a particularized and objective basis for the suspicion . While a "mere `hunch'
is insufficient to justify a stop, the likelihood of criminal activity need not rise to the level
required for probable cause, and it falls considerably short of satisfying a
preponderance of the evidence standard ." United States v . Arvizu, 534 U .S. 266, 274,
122 S . Ct. 744, 751, 151 L. Ed . 2d 740 (2002) (internal citations omitted) .
Marr relies heavily on those cases involving anonymous tips, particularly the
seminal case of Florida v. J.L. , 529 U.S . 266, 120 S . Ct . 1375, 146 L . Ed. 2d 254
(2000). The Supreme Court in J .L. explained that "reasonable suspicion . . . requires
that a tip be reliable in its assertion of illegality, not just in its tendency to identify a
determinate person ." 529 U.S . at 272, 120 S . Ct . at 1379. Judged against this
3
standard, the anonymous tip in J .L . - which stated simply that a male wearing a certain
shirt at a bus station was carrying a gun - was insufficient to justify an investigatory
stop .
When the circumstances in this case are examined in their totality, the present
situation becomes readily distinguishable from J .L . Officers conducted surveillance of
the body shop prior to Marr being frisked, and noticed a traffic pattern consistent with
illegal drug activity . They arrested one visitor to the-body shop and found illegal drugs .
The police are permitted to take into account their surroundings - and whether a
particular location has a reputation for being a "known drug" area - when forming a
reasonable and articulable suspicion . See Minnesota v. Dickerson, 508 U .S. 366, 113
S . Ct. 2130, 124 L . Ed . 2d 334 (1993) (legitimate Terry stop based on suspect's
suspicious behavior coupled with his presence in notorious "crack house") . Likewise,
Officer Bailey's suspicion of Marr was legitimately raised once it became objectively
probable that drugs were being trafficked from the body shop.
In J .L . , it was particularly noted that the defendant made "no threatening or
otherwise unusual movements ." 529 U.S. at 268, 120 S. Ct. at 1377. The nervous
behavior of both Marr and the body shop owner raised the officer's suspicion in this
case. "Although nervousness alone is insufficient to give rise to reasonable suspicion, it
is an important factor in the analysis ." Adkins v. Commonwealth, 96 S.W.3d 779, 788
(Ky. 2003) . It was also reasonable for the officer to conclude that the body shop owner
had lied when he told him no one was present in the back room . Cf. Adkins , 96 S.W.3d
at 787 (where fact that suspect gave a false name and address was legitimate factor in
forming officer's suspicion).
Marr incorrectly argues that the anonymous tip formed the sole basis of Officer
Bailey's suspicion . Rather, the anonymous tip in this case was suitably corroborated by
the fact that the described "biker looking" man was present at the named body shop;
that the traffic flow to and from the shop suggested drug activity; that the owner of the
shop appeared nervous upon the officers' lawful entrance ; that the owner concealed
Marr's presence in the back room; and that Marr himself appeared nervous . Officers
are permitted to "draw on their own experience and specialized training to make
inferences from and deductions about the cumulative information available to them[ .]"
Arvizu , 534 U .S. at 273, 122 S. Ct. at 750-51 . Whether the tip provided basis to believe
criminal activity was afoot or not, the additional factors listed above clearly allowed the
officer the reasonable basis to do a pat-down search for his own safety at that point.
The confluence of facts and the suspicion of drug activity in this building made the
situation inherently dangerous . Accordingly, the officer was justified in conducting the
minimally invasive pat-down search of Marr. See Baker v. Commonwealth , 5 S.W.3d
142, 145 (Ky. 1999) ("Whether a seizure is reasonable requires a review of the totality
of the circumstances, taking into consideration the level of police intrusion into the
private matters of citizens and balancing it against the justification for such action .").
Based upon the foregoing, the opinion of the Court of Appeals affirming the
judgment of the Jefferson Circuit Court, is reversed .
All sitting . Minton, Noble, Scott, JJ ., concur. Abramson, J., dissents by separate
opinion in which Lambert, C.J . and Schroder, J ., join.
COUNSEL FOR APPELLANT :
Jack Conway
Attorney General
Teresa Young
Special Assistant Attorney General
514 W. Liberty Street
Louisville, KY 40202
COUNSEL FOR APPELLEE :
David A. Lambertus
600 West Main Street
Suite 300
Louisville, KY 40202
RENDERED : APRIL 24, 2008
TO BE PUBLISHED
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2003-SC-000564-DG
COMMONWEALTH OF KENTUCKY
APPELLANT
ON REVIEW FROM COURT OF APPEALS
CASE NUMBER 2002-CA-001774
JEFFERSON CIRCUIT COURT NO. 01-CR-002251
V.
RONALD D. MARR
APPELLEE
DISSENTING OPINION BY JUSTICE ABRAMSON
I respectfully dissent because I believe that the trial court and the Court of
Appeals properly found that Officer Bailey lacked reasonable and articulable suspicion
that "criminal activity [was] afoot" and Marr posed a threat to the officers' safety. Terry
v. Ohio, 392 U.S. 1, 28-31, 20 L. Ed. 2d 889,. 911, 88 S . Ct . 1868 (1968). The following
portions of the Court of Appeals opinion reflect what I conclude is the proper analysis of
this case :
The Fourth Amendment of the United States
Constitution guarantees the "right of the people to be
secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures ." U .S. Const.
amend . IV. I n Terry v. Ohio, 392 U.S . 1, 20 L. Ed. 2d 889,
88 S . Ct. 1868 (1968), the United States Supreme Court
recognized an exception to the warrant requirement by
sanctioning both investigatory stops and limited pat-down
searches of suspects . When there is a reasonable
suspicion that criminal activity is afoot, a police officer may
briefly detain an individual on the street, even though there
is no probable cause to arrest him. Id . at 30-31, 20 L. Ed .
2d at 911 .
Ter also held that "[w]hen an officer is justified in
believing that the individual whose suspicious behavior he
is investigating at close range is armed and presently
dangerous to the officer or to others," the officer may
conduct a pat-down search "to determine whether the
person is in fact carrying a weapon and to neutralize the
threat of physical harm." _Id . at 24, 20 L. Ed . 2d at 908.
Frisking a suspect during a Terry stop is strictly limited to
that which is necessary for the discovery of weapons which
might be used to harm the officer or others nearby.
Commonwealth v. Crowder, Ky., 884 S.W .2d 649 (1994),
citing Terry, supra. Furthermore, in Ybarra v. Illinois , 444
U.S . 85, 62 L. Ed . 2d 238, 100 S. Ct. 338 (1979), the
United States Supreme Court cautioned that the narrow
scope of the Terry exception does not permit a frisk for
weapons on less than reasonable belief or suspicion
directed at the person to be frisked, even though that
person happens to be on premises where an authorized
narcotics search is taking place. "Nothing in Terry can be
understood to allow a generalized `cursory search for
weapons' or indeed, any search whatever for anything but
weapons." Id. at 93-94, 62 L. Ed . 2d at 247 .
The Fourth Amendment requires some minimum
level of objective justification for the officer's actions
measured in light of the totality of the circumstances . See
United States v. Sokolow, 490 U .S. 1, 104 L. Ed . 2d 1,
109 S . Ct. 1581 (1989) ; Eldred v. Commonwealth, Ky., 906
S .W.2d 694 (1994). When considering the totality of the
circumstances, a reviewing court should take care not to
view the factors upon which police officers rely to create
reasonable suspicion in isolation . Rather, courts must
consider all of the officer's observations, and give due
weight to inferences and deductions drawn by trained law
enforcement officers. United States v. Arvizu , 534 U.S .
266, 272-75,151 L. Ed . 2d 740, 749-51, 122 S. Ct. 744
(2002). See also United States v. Martin, 289 F.3d 392,
398 (6th Cir., 2002). The test for a Terry stop and frisk is
not whether an officer can conclude that an individual is
engaging in criminal activity, but rather whether the officer
can articulate facts [giving rise to a reasonable suspicion]
that criminal activity may be afoot and that the suspect may
be armed and dangerous . Commonwealth v. Banks, Ky.,
68 S .W . 3d 347, 351 (2001) citing Terry v. Ohio, 392 U .S .
at 30, 20 L. Ed . 2d at 911 .
The trial court compared the facts of the present
case to those presented in Florida v. J .L . , 529 U.S. 266,
146 L. Ed. 2d 254, 120 S . Ct. 1375 (2000). In that case,
the police received information from an anonymous
telephone caller that a young black male standing at a
particular bus stop and wearing a plaid shirt was carrying a
gun . Upon arriving at the bus stop, the police saw three
black males "'just hanging out [there]'." _Id . at 268, 146 L .
Ed. 2d at 259. When the police frisked J .L., who was a
juvenile and was wearing a plaid shirt, they discovered a
handgun in his pocket. J .L. was charged with carrying a
concealed firearm without a license and possessing a
firearm while under the age of 18 . Subsequently, the trial
court granted J.L .'s motion to suppress the gun as the fruit
of an unlawful search in violation of the Fourth
Amendment, and the Florida Supreme Court affirmed the
trial court .
In agreeing with the state court, the United States
Supreme Court reaffirmed its decision in Alabama v. White,
496 U.S . 325, 110 L . Ed. 2d 301, 110 S. Ct. 2412 (1990),
and distinguished the situation in J .L. based on the facts.
The Court relied in large part on the predictive aspects of
the information, rather than a particular physical description
of the suspect, as a major element in facilitating
corroboration by the police and creating "'sufficient indicia
of reliability to provide reasonable suspicion to make the
investigatory stop ."' Florida v. J .L. , 529 U .S. at 270, 146 L.
Ed . 2d at 260 (quoting Alabama v. White , 496 U.S. at 327,
110 L. Ed . 2d at 301). The Court stated :
The tip in the instant case lacked the
moderate indicia of reliability present in
White and essential to the Court's decision
in that case. The anonymous call concerning
J.L. provided no predictive information and
therefore left the police without means to
test the informant's knowledge or
credibility . That the allegation about the
gun turned out to be correct does not
suggest that the officers, prior to the frisk,
had a reasonable basis for suspecting J .L.
of engaging in unlawful conduct: The
reasonableness of official suspicion must be
measured by what the officers knew before
they conducted their search. All the police
had to go on in this case was the bare
report of an unknown, unaccountable informant
who neither explained how he knew about the
gun nor supplied any basis for believing he
3
had inside information about J .L. If White
was a close case on the reliability of
anonymous tips, this one surely falls on
the other side of the line. Id ., 529 U .S .
at 271, 146 L . Ed. 2d at 260-61 .
The facts of the present case present a very close
question regarding whether Officer Bailey had a
reasonable and articulable suspicion to justify a pat-down
search of Marr. . . .
The trial court found that, as was the case in Florida
v. J.L. , there was no evidence concerning the source of the
original tip or the reliability of the informant . The
informant's tip merely advised the police that someone who
matched Marr's description would be at the scene. The
informant provided no predictive information about his
conduct, nor did the police surveillance corroborate the tip
that Marr was trafficking in methamphetamine .
Furthermore, there was no evidence that the body
shop was located in a high-crime area . While the
surveillance did raise a legitimate suspicion of drug activity
at the body shop, none of the surveillance corroborated the
information that Marr was involved in the trafficking . In
addition, Officer Bailey admitted that the marijuana seized
from one of the vehicles leaving the body shop was not
connected to this investigation .
The events occurring inside the body shop were no
more conclusive. Although the owner lied about Marr's
presence in the building, his denial of Marr's presence in
the building did not directly implicate Marr. Indeed, Marr
made no attempt to hide from the officers. Furthermore,
there was no evidence, even from the unidentified
informant, that Marr possessed a weapon . Thus, all that
remained was Marr's resemblance to the very general
description given by the informant, his presence at the
scene of suspected drug activity, and Officer Bailey's
perception of Marr's nervousness.
We agree with the trial court that these
circumstances were insufficient to justify the pat-down
search of Marr. Marr's presence in an area of expected
criminal activity, standing alone, was not a sufficient basis
for an investigatory stop . Simpson v. Commonwealth , Ky.
4
App., 834 S.W .2d 686 (1992); Illinois v. Wardlow, 528 U.S .
119, 124, 145 L . Ed. 2d 570, 576, 120 S. Ct. 673 (2000) .
And while an individual's nervousness or suspicious
behavior can contribute to the establishment of an
articulable suspici on, Simpson, 834 S.W.2d at 688,
(footnote omitted) Marr's nervousness alone was not
sufficient to create a reasonable inference that he was
involved in criminal activity. Consequently, the trial court
properly granted Marr's motion to suppress the evidence
seized as a result of that search.
In any event, even if "reasonable and articulable suspicion" had existed, the
majority opinion is not dispositive of Marr's suppression motion. The case should be
remanded for the trial court to address whether the items found on Marr are admissible
under the "plain feel" doctrine . Minnesota v. Dickerson, 508 U .S . 366, 133 S . Ct. 2130,
124 L. Ed . 2d 334 (1993) ; Commonwealth v. Whitmore, 92 S .W.3d 76 (Ky. 2002).
Lambert, C.J. ; and Schroder, J ., join.
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