APPELLANT v. APPELLEE

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Court of Appeals of Kentucky.

bobby fields APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

NO. 2010–CA–001869–MR

Decided: January 13, 2012

BEFORE:  TAYLOR, CHIEF JUDGE;  DIXON AND LAMBERT, JUDGES. BRIEF FOR APPELLANT:  Jason Scott Kincer London, Kentucky BRIEF FOR APPELLEE:  Jack Conway Attorney General of Kentucky Courtney J. Hightower Assistant Attorney General Frankfort, Kentucky

NOT TO BE PUBLISHED

OPINIONAFFIRMING

Bobby Fields appeals from a judgment of the Fayette Circuit Court convicting him of first-degree trafficking in a controlled substance, following a conditional guilty plea.   Fields was sentenced to five years' imprisonment, probated for a period of five years.   Pursuant to the plea agreement, he reserved the right to appeal the denial of his motion to suppress evidence.   Finding no error, we affirm.

Just before midnight on June 1, 2009, Lexington Police Officer Shane Slark and his narcotics canine, Blitz, were on routine patrol.   Officer Slark was monitoring traffic on Interstate 75 when he initiated a traffic stop of Fields's vehicle for a speeding violation.   Officer Slark approached the passenger side of the vehicle, and Fields advised he was returning home to Detroit, Michigan, after visiting his sick mother in Alabama.   Fields presented a Michigan driver's license and paperwork from Avis car rental for the 2009 Chevrolet Camaro he was driving.   Officer Slark noted that Fields made a “turnaround” trip from Detroit to Alabama, as the paperwork indicated he rented the car on May 30, for $232.00 per day, and was supposed to return the vehicle in Detroit on May 31.   During the conversation, Officer Slark observed a bulge in Fields's pants pocket, which the officer suspected was a roll of money.   Officer Slark further observed a large CB antenna affixed to the Camaro's roof, and a CB radio in the passenger seat.

Officer Slark checked Fields's information, and he learned Fields had a criminal history from New Jersey where $26,000 was seized from Fields during a traffic stop. Double Officer Slark returned to Fields's vehicle and asked Fields to step to the rear of the Camaro.   Once Fields was out of the car, Officer Slark provided Fields with a warning notice for speeding.   Fields thanked the officer, and Officer Slark began to ask Fields for consent to search the car, just as a back-up patrol car approached with its lights and siren activated.   Upon seeing the second cruiser, Fields's demeanor changed and he backed away from Officer Slark, re-entering the Camaro.   Officer Slark followed, leaning in the window, as Fields put the car in gear and attempted to drive away with the door ajar and the officer in the window.   The engine stalled, and Officer Slark leaned further in the window to restrain Fields, at which point Fields grabbed the handle of Officer Slark's gun.   The second police officer approached and assisted Officer Slark in removing Fields from the vehicle.   After these events unfolded, Officer Slark retrieved Blitz from the cruiser and ran the dog around the Camaro.   Blitz gave a positive alert on the vehicle, and a search of the trunk revealed a bag containing approximately $30,000 in cash and nearly 2000 pills, suspected to be Oxycontin, Xanax, Lortab, Ecstasy, and Dilaudid.

Fields was arrested and subsequently indicted by a Fayette County Grand Jury on four counts of trafficking in a controlled substance.   Fields moved the trial court to suppress the evidence seized during the traffic stop, and an evidentiary hearing was held on November 12, 2009.   The court denied Fields's suppression motion;  thereafter, Fields entered a conditional guilty plea to one count of first-degree trafficking in a controlled substance.   This appeal followed.

Fields concedes Officer Slark properly initiated a traffic stop to investigate the speeding violation.   Fields contends Officer Slark impermissibly extended the scope and duration of the stop, warranting suppression of the contraband as the fruit of the poisonous tree.   Alternatively, Fields asserts, if the extended stop was permissible, the search of the trunk was unconstitutional because Officer Slark lacked probable cause.

On appellate review of a suppression ruling, we review the findings of fact for clear error, bearing in mind the discretion vested in the trial court to assess witness credibility and draw reasonable inferences from the testimony.   Pitcock v. Commonwealth, 295 S.W.3d 130, 132 (Ky.App.2009).   Thereafter, we need not defer to the trial court's application of the law to the facts, as “the ultimate legal question of whether there was reasonable suspicion to stop or probable cause to search is reviewed de novo.”  Commonwealth v. Banks, 68 S.W.3d 347, 349 (Ky.2001), citing Ornelas v. United States, 517 U.S. 690, 691, 116 S.Ct. 1657, 1659, 134 L.Ed.2d 911 (1996).

I.

In Baltimore v. Commonwealth, 119 S.W.3d 532 (Ky.App.2003), this Court explained:

In the seminal case of Terry v. Ohio, [392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968),] the Supreme Court held that a brief investigative stop, detention and frisk for weapons short of a traditional arrest based on reasonable suspicion does not violate the Fourth Amendment.  Terry recognized that as an initial matter, there must be a seizure before the protections of the Fourth Amendment requiring the lesser standard of reasonable suspicion are triggered.   A police officer may approach a person, identify himself as a police officer and ask a few questions without implicating the Fourth Amendment.   A seizure occurs when the police detain an individual under circumstances where a reasonable person would feel that he or she is not at liberty to leave.   Where a seizure has occurred, if police have a reasonable suspicion grounded in specific and articulable facts, that a person they encounter was involved in or is wanted in connection with a completed felony, then they may make a Terry stop to investigate that suspicion.

Id. at 537–38 (footnotes and quotation marks omitted).

Although Fields does not challenge the legality of the initial traffic stop as to the speeding violation, Fields argues Officer Slark impermissibly extended the scope and duration of the initial traffic stop by requesting consent to search the vehicle.   Fields points out, “A seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission.”  Illinois v. Caballes, 543 U.S. 405, 407, 125 S.Ct. 834, 837, 160 L.Ed.2d 842 (2005).   Fields opines Officer Slark extended the duration of the stop as a “fishing expedition” because he wanted to search the vehicle.

The record indicates the events unfolded rapidly.   The trial court specifically found, “After delivering the warning citation, but before asking for permission to conduct a consensual search, a backup cruiser on the way to the scene passed in the opposite lanes of traffic with its lights and sirens activated.   Upon seeing the backup cruiser, the defendant attempted to flee the scene.”

We are not persuaded by Fields's characterization of the events as an extension of the traffic stop.   Under the totality of the circumstances, Officer Slark developed a reasonable and articulable suspicion – independent of the initial basis for the traffic stop – Fields was engaged in criminal activity, which warranted further investigation.   See Terry, 392 U.S. at 21–23, 88 S.Ct. at 1879–81.

“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.”  Commonwealth v. Marr, 250 S.W.3d 624, 627 (Ky.2008).   A court cannot evaluate the factors relied on by the officer in isolation;  rather, the court is obligated to consider the entirety of the officer's “observations and give due regard to inferences and deductions drawn by [him] from [his] experience and training.”  Baltimore, 119 S.W.3d at 539.   Furthermore, despite Fields's argument to the contrary, we view the conduct of the officer objectively, without regard to his subjective intentions.  Ohio v. Robinette, 519 U.S. 33, 38, 117 S.Ct. 417, 420–21, 136 L.Ed.2d 347 (1996).

The trial court made findings of fact, which stated in relevant part:

As the traffic stop progressed, the officer began to notice things that appeared suspicious based on the officers [sic] training and experience.   Such items included the fact that the defendant was driving a rented Chevrolet Camaro that rented for two-hundred dollars ($200) a day;  had a CB radio in the rental car;  had a large bulge in his pocket which the officer believed to be money;  and told Officer Slark he rented the car to drive to Alabama from Detroit to visit his sick mother.   Based on the defendant's stated departure time from Detroit and the time of the traffic stop, Officer Slark calculated the defendant would have only had time for a turnaround trip.   The officer also chose to run the defendant's information through the El Paso Interdiction Center (EPIC), a clearinghouse for DEA information.   This database indicated a large quantity of money had been seized from the defendant in the past.

The factors cited by the trial court are supported by the testimony of Officer Slark.   The officer explained, based on his specialized training in narcotics investigations, his observation of these factors made him suspicious Fields was engaged in drug trafficking.

We believe the findings of fact are supported by substantial evidence;  consequently, those findings are conclusive.   Based on the totality of the circumstances, we are satisfied the investigatory detention of Fields was based on Officer Slark's reasonable articulable suspicion of criminal activity;  accordingly, there was no violation of Fields's constitutional rights.

II.

As an alternative basis for suppressing the evidence seized from the vehicle, Fields asserts the search of the trunk was not supported by probable cause because Blitz was not trained to detect the types of controlled substances that were ultimately seized. Double

The automobile exception to the warrant requirement “permits an officer to search a legitimately stopped automobile where probable cause exists that contraband or evidence of a crime may be in the vehicle.”  Morton v. Commonwealth, 232 S.W.3d 566, 569 (Ky.App.2007).  “[T]he test for probable cause is whether there is a fair probability that contraband or evidence of a crime will be found in a particular place.”  Moore v. Commonwealth, 159 S.W.3d 325, 329 (Ky.2005).   Furthermore, an alert by a trained narcotics-detection dog establishes probable cause to search a vehicle for contraband.   Johnson v. Commonwealth, 179 S.W.3d 882, 886 (Ky.App.2005).

In the case at bar, Officer Slark's testimony established that Blitz was trained to detect heroin, methamphetamine, cocaine, marijuana, and ecstasy.   The Commonwealth advised the trial court that, of the nearly 2000 pills recovered from Fields's trunk, only five items were sent to the state police crime lab for testing.   The test results indicated the presence of Oxycodone, Hydromorphone, BZP, and Promethazine.   In light of the test results, Fields contends Blitz's alert did not constitute probable cause to search the trunk, since Blitz was not trained to detect the substances that were ultimately seized.   Fields speculates that Blitz either gave a false alert or Officer Slark cued Blitz to alert on the trunk to justify the search.

Fields essentially contends Blitz was incapable of proving that contraband was located in the Camaro's trunk;  consequently, he asserts there was no probable cause to search.   We disagree, as Fields's argument misconstrues the probable cause standard.   In determining if probable cause exists, the Kentucky Supreme Court has explained:

As the United States Supreme Court has remarked, probable cause is a flexible, common-sense standard.

It merely requires that the facts available to the officer would ‘warrant a man of reasonable caution in the belief,’ that certain items may be contraband or stolen property or useful as evidence of a crime;  it does not demand any showing that such a belief be correct or more likely true than false.   A ‘practical, nontechnical’ probability that incriminating evidence is involved is all that is required.

Williams v. Commonwealth, 147 S.W.3d 1, 7–8 (Ky.2004).

Officer Slark testified regarding his training with Blitz, explaining that Blitz alerts to the odor of narcotics with a “passive response” by silently sitting in front of the location rather than scratching or barking.   Officer Slark testified that he observed Blitz alert to the presence of narcotics in the Camaro.   The trial court heard all of the testimony and concluded Officer Slark properly presented the vehicle to Blitz for inspection and that Blitz gave a positive response indicating the odor of narcotics.

In light of Officer Slark's training and experience, it was reasonable for him to believe that the trunk contained contraband based on Blitz's alert.   The Fourth Amendment does not require “absolute certainty”;  rather, it requires “a reasonable belief that a crime has been or is being committed.”  United States v. Johnson, 660 F.2d 21, 23 (2d Cir.1981).   We conclude the search of the trunk was constitutionally permissible pursuant to the automobile exception to the warrant requirement;  consequently, the trial court properly denied Fields's suppression motion.

For the reasons stated herein, we affirm the judgment of the Fayette Circuit Court.

ALL CONCUR.

DIXON, JUDGE: