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Court of Appeals of Kentucky.

Deborah L. AGEE, Appellant v. COMMONWEALTH of Kentucky, Appellee.

No. 2010–CA–001122–MR.

Decided: November 10, 2011

Before TAYLOR, Chief Judge; CAPERTON and WINE, Judges. John F. Lackey, Richmond, KY, for Appellant. Jack Conway, Attorney General of Kentucky, Courtney J. Hightower, Office of the Attorney General, Frankfort, KY, for Appellee.


Deborah L. Agee appeals from her conditional guilty plea in the Madison Circuit Court following the trial court's denial of her motion to suppress evidence seized following a stop by police. She argues that the police officers exceeded the scope of a reasonable Terry stop, and consequently the search of her backpack was not closely incident to her arrest. She further argues that the search of her backpack exceeded the scope of a valid search incident to arrest, and that the officers lacked probable cause for the arrest. Finding no error, we affirm.

On January 6, 2010, a Madison County grand jury indicted Agee on one count each of first-degree possession of a controlled substance, possession of drug paraphernalia, and public intoxication. The charges arose from events occurring on September 25, 2009, when Agee was stopped and searched by a police officer in a restaurant parking lot. After entering a plea of not guilty, Agee moved to suppress the evidence seized in the stop.

At the evidentiary hearing, Officer Jason Spalding, Patrolman Josh Petry, and Corporal Catherine Eaves testified regarding the circumstances surrounding Agee's arrest. Agee also testified at the hearing. At around 11:30 p.m. on September 25, 2009, Officer Spalding of the Richmond Police Department responded to a complaint from the manager of a Waffle House Restaurant about a woman smoking and possibly doing drugs in the bathroom. As Officer Spalding arrived at the Waffle House, he saw Agee leaving the bathroom. He approached Agee and asked if he could speak with her outside.

Patrolman Petry arrived as Officer Spalding and Agee were leaving the restaurant. While he was speaking with Agee, Officer Spalding noticed that Agee was very nervous, she was “fidgety” and “scratchy,” her pupils were constricted, and her speech was slurred. Agee admitted that she was taking Dilantin for seizures, and that she had smoked crack cocaine several days before. Agee testified that she told the officers that she had taken prescription Lortab, Tramadol, Valium, and Dilantin earlier in the day.

After observing Agee's behavior, the officers concluded that she was under the influence. Officer Spalding called his supervisor, Corporal Eaves, to the scene to conduct a pat-down search. Prior to that search, Officer Spalding asked Agee to empty her pockets. She complied with that request, but refused when he asked to search her purse and backpack. Corporal Eaves arrived on the scene about fifteen minutes after the initial stop and conducted the pat-down search. No contraband was found during any of these searches.

Agee testified that Corporal Eaves gave her several field sobriety tests, and she was able to perform all but one. However, Corporal Eaves testified that she recalled giving Agee only a horizontal gaze nystagmus (HGN) test, which Agee failed. After further questioning for about ten minutes, Agee stated that she wanted to leave and indicated that she planned to drive. Officer Spalding replied that he would not allow her to leave since she appeared to be intoxicated. At that point, he placed Agee under arrest for public intoxication. Corporal Eaves advised Agee of her Miranda rights, and Officer Petry searched Agee's purse and backpack. No contraband was found in her purse. But during the search of the backpack, Officer Petry found three individually wrapped bags of heroin, several pieces of currency containing heroin residue and several items of paraphernalia associated with heroin use.

Following the evidentiary hearing, the trial court denied the motion to suppress. The court found that Officer Spalding had a reasonable basis to stop Agee, that the duration of the stop was reasonable based on Agee's behavior and demeanor during the stop, that Officer Spalding had probable cause to arrest Agee for public intoxication, and that the drugs and paraphernalia were seized from Agee's backpack during a valid search incident to the arrest. Thereafter, Agee entered a conditional guilty plea to the three counts set out in the indictment. Pursuant to the terms of the plea agreement, the trial court sentenced Agee to a total sentence of one-year imprisonment, probated for two years. Agee now appeals.

Kentucky Rules of Criminal Procedure (“RCr”) 9.78 sets out the procedure for conducting suppression hearings and establishes the standard of appellate review of the determination of the trial court. Our standard of review of a circuit court's decision on a suppression motion following a hearing is twofold. “First, the factual findings of the court are conclusive if they are supported by substantial evidence[;]” and second, this Court conducts “a de novo review to determine whether the [trial] court's decision is correct as a matter of law.” Stewart v. Commonwealth, 44 S.W.3d 376, 380 (Ky.App.2001) citing Adcock v. Commonwealth, 967 S.W.2d 6, 8 (Ky.1998). Since the facts of this case are not at issue, we owe no deference to the trial court's ruling on the merits of the suppression issue.

Agee challenges the warrantless search of her backpack and the evidence seized as a result of that search. Warrantless searches are “per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.” Katz v. U.S., 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967)(footnotes omitted). Agee's appeal involves two of these exceptions: a Terry stop and a search incident to arrest.

In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (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 and the person may be armed, a police officer may briefly detain an individual on the street and conduct a pat-down of that person's outer clothing for weapons. Id. at 30–31, 88 S.Ct. at 1885. Agee concedes that the initial stop was valid, but argues that the stop exceeded the limited scope allowed for a Terry stop. As a result, she maintains that she was actually detained by the police long before she was formally arrested and therefore the later search of her backpack could not have been “incident” to her arrest.

In U S. v. Sharpe, 470 U.S. 675, 105 S.Ct. 1568, 84 L.Ed.2d 605, (1985), the Supreme Court addressed the difference between a de facto arrest and an investigative stop, noting that there is no rigid time limitation on Terry stops. Id. at 685, 105 S.Ct. at 1575. In determining whether a detention is too long, a court should consider, “whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant,” and that, “[a] court making this assessment should take care to consider whether the police are acting in a swiftly developing situation, and in such cases the court should not indulge in unrealistic second-guessing.” Id. at 686, 105 S.Ct. at 1575.

In this case, Officer Spalding and Patrolman Petry testified that they determined that Agee was under the influence within a short period after the initial stop. Officer Spalding testified that he called Corporal Eaves to the scene because he felt that it would be more appropriate to have a female officer conduct the pat-down search of Agee. As noted above, Corporal Eaves arrived about fifteen minutes after the initial stop. All three officers observed Agee for another ten minutes from that point. Furthermore, Officer Spalding arrested Agee after she indicated that she planned to drive home. Given this sequence of events, we cannot find that the duration of the detention exceeded the scope of a reasonable Terry stop. Therefore, the trial court did not clearly err in finding that the search of the backpack was incident to the arrest.

Agee next argues that the officers' search of her backpack exceeded the scope of a permissible search incident to an arrest. An officer is permitted to conduct a warrantless search of an arrestee's person and the area within the arrestee's immediate control for weapons or concealed evidence. Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685 (1969) (abrogated by Davis v. U.S., 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011)). Agee notes that she had been restrained for some time by the officers and that the backpack was some distance away from her, lying on top of the trunk of her vehicle. Since the backpack was outside of her area of immediate control, Agee argues that the officers were required to obtain a warrant to search it.

In challenging the search of her backpack, Agee relies heavily on Pitman v. Commonwealth, 896 S.W.2d 19 (Ky.App.1995). In that case, the police spotted the defendant, Pitman, standing by the roadway with two garbage bags sitting behind him on the other side of the guardrail. The officers stopped Pitman, asked what he was doing and what was in the bags, and then picked up the garbage bags and felt them. The officers determined that the feel of the contents of the bags did not match Pitman's description. The officers then opened the bags, revealing additional burlap bags containing fifteen pounds of marijuana.

This Court held that the search of the bags exceeded the scope of a reasonable Terry search. The Court noted that the bags were outside of Pitman's area of immediate control, and that the nature of the non-threatening contraband was not immediately apparent from touch. Id. at 20–21. The Court also held that there was no valid search incident to arrest, since Pitman was not under arrest at the time the search was conducted. Id. at 21.

Agee argues that the facts of Pitman are substantially similar to those in this case. But unlike in Pitman, the officers in this case did not search Agee's backpack as part of the Terry stop. Rather, the officers conducted the search only after she was arrested. Thus, the holding of Pitman is not controlling in this case.

Agee also relies heavily on Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), in which the United States Supreme Court clarified the search incident to arrest exception as it applies to vehicle searches. In Gant, the Court held that a search incident to arrest can be justified only if the arrestee was unrestrained, and if it was reasonable for the arresting officers to believe that evidence relevant to the crime of arrest might be accessed or destroyed by the arrestee. Id., 129 S.Ct. at 1719. See also Davis, 131 S.Ct. at 2425. The rule set out in Gant and Davis specifically applies to searches of an automobile incident to the arrest of an occupant of that automobile, which is not involved in this case. Nevertheless, the Commonwealth concedes that the analysis of Gant may be relevant to any search incident to arrest.

Agee points out that the backpack was not on her person at the time at the time of her arrest. Rather, it was laying several feet away on the trunk on her car. However, the Court in Gant held that a search incident to arrest may include “the arrestee's person and the area within his immediate control—construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.” Gant, 129 S.Ct. at 1716 (internal citations and quotations omitted).

In this case, Agee was holding the backpack at the time she was stopped by the police and she placed the backpack on top of the trunk when she went outside to speak with Officer Spaulding. Although the backpack was not within her immediate reaching distance, it was in the open only a few feet away. Indeed, while the backpack was not on her person, she exercised sufficient control over it to deny Officer Spaulding's earlier request to search it. Furthermore, while Agee was placed under arrest, there was no evidence that she had been handcuffed, fully restrained or moved to the police cruiser at the time the officers searched her backpack. The trial court reasonably concluded that the backpack was within the area where she might gain access to a weapon or destructible evidence. Having conducted a search of her person and noting her intoxicated condition, it was not unreasonable for the arresting officers to believe evidence supporting the charge of public intoxication would be found in Agee's backpack. Therefore, the officers properly conducted a warrantless search of the backpack incident to her arrest.

Finally, Agee contends that the officers lacked probable cause to arrest her. Probable cause for arrest occurs when “a reasonable officer could conclude from all the facts [and circumstances] that [an offense] is being committed in his presence.” Commonwealth v.. Mobley, 160 S.W.3d 783, 787 (Ky.2005). The phrase “probable cause” is incapable of precise definition or quantification into percentages because the standard deals with probabilities and depends on the totality of the circumstances. “[T]o determine whether an officer had probable cause to arrest, [the Court must examine] the events leading to the arrest and the decision of the officer as to whether these facts, viewed from the standpoint of an objectively reasonable police officer amounts to probable cause.” Commonwealth v. Fields, 194 S.W.3d 255, 257 (Ky.2006), citing Maryland v. Pringle, 540 U.S. 366, 372, 124 S.Ct. 795, 800–01, 157 L.Ed.2d 769 (2003).

In this case, the officers received a credible complaint that a person was smoking and possibly doing drugs in the restaurant's bathroom. Officer Spaulding met Agee coming out of the bathroom. Several officers observed Agee's behavior for several minutes and concluded that it was consistent with intoxication. Corporal Eaves gave Agee an HGN test, which she did not pass. And finally, Agee indicated that she planned to drive home.

Agee maintains that the HGN test is not a reliable indicator of intoxication. However, she did not challenge the use of that test before the trial court and thus cannot raise the issue for the first time on appeal. Agee also notes that she had admitted to using legal prescription drugs, which is outside of the scope of the offense of public intoxication. KRS 525.100(1). Furthermore, she contends that she was not manifestly impaired and that she offered to walk or take a cab home. Given these circumstances, Agee contends that there was no probable cause to believe that she was manifestly under the influence or that she posed a danger to herself or others.

While Agee raises some potentially valid points concerning the circumstances leading up to her arrest, her arguments do not negate the trial court's conclusion regarding probable cause. Although the officers could have exercised discretion in deciding whether to arrest Agee, we cannot say that the officers lacked any reasonable, objective basis for concluding that she had committed the offense of public intoxication. Considering the totality of the circumstances, we agree with the trial court that the officers had probable cause to arrest Agee for public intoxication.

Accordingly, the judgment of conviction by the Madison Circuit Court is affirmed.

WINE, Judge.