TERRY WAYNE JOHNSON APPELLANT v. APPELLEE

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Court of Appeals of Kentucky.

TERRY WAYNE JOHNSON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

NO. 2010–CA–002227–MR

Decided: January 13, 2012

BEFORE:  KELLER, STUMBO AND VANMETER, JUDGES. BRIEFS FOR APPELLANT:  Annie O'Connell J. David Niehaus Louisville, Kentucky BRIEF FOR APPELLEE:  Jack Conway Attorney General of Kentucky Todd D. Ferguson Assistant Attorney General Frankfort, Kentucky

NOT TO BE PUBLISHED

OPINIONAFFIRMING

Terry Wayne Johnson (Johnson) appeals from an order of the Jefferson Circuit Court denying his motion to suppress.   For the reasons set forth below, we affirm.

FACTS

On July 17, 2008, the Jefferson County Grand Jury indicted Johnson for manufacturing methamphetamine;  illegal possession of a controlled substance in the first degree (methamphetamine);  illegal possession of drug paraphernalia;  and operation of a motor vehicle by a person whose operator's license has been revoked, suspended, cancelled, or denied.   Johnson was later indicted for being a persistent felony offender in the first degree.   Johnson subsequently filed a motion to suppress, and a suppression hearing was held on July 20, 2009.

At the suppression hearing, Detective Steven Healey (Detective Healey) of the Louisville Metro Police Department was the sole witness.   Detective Healey testified that he has extensive training in investigating crimes involving methamphetamines and that 98% of his caseload involves crimes relating to methamphetamine trafficking or manufacturing.   According to Detective Healey, the police department received a tip from a reliable confidential informant that Johnson planned to meet someone at a Wal–Mart in Louisville to pick up pseudoephedrine, which is a precursor to manufacturing methamphetamine.

Based on this tip, Detective Healey and Detectives Lee and Sheehan of the Louisville Metro Police Department conducted a surveillance of the Wal–Mart parking lot on March 26, 2008.   Detective Healey conducted his surveillance from an undercover black Dodge Charger and Detectives Lee and Sheehan were in an undercover green Chevy Trailblazer.

At approximately 5:30 p.m., Detective Healey observed Johnson sitting in a vehicle in Wal–Mart's parking lot.   After ten to fifteen minutes, Johnson left the parking lot, turned out onto the Outer Loop in Louisville, and proceeded toward Preston Highway.   Detective Healey testified that he followed Johnson and was directly behind him.   While stopped at a traffic light and in the turn lane, Detective Healey observed a methamphetamine pipe in Johnson's hand and watched Johnson “hit” or puff on the methamphetamine pipe twice.   Detective Healey observed Johnson take another “hit” as he made the turn onto Preston Highway.   He further testified that Johnson lit the pipe with a lighter, put it to his lips, and inhaled.   Detective Healey later testified on cross-examination that he did not list a lighter as having been seized.

According to Detective Healey, he could see Johnson clearly, neither he nor Johnson had tinted windows, and the weather was clear.   Detective Healey further stated that he was 100% certain it was a methamphetamine pipe and that it was “immediately recognizable” to him.   He explained that he was able to determine that it was a methamphetamine pipe because it was glass and had a glass ball on the end.   According the Healey, the glass ball, which prevents the liquid methamphetamine from running out of the pipe, makes methamphetamine pipes different from tobacco pipes.   Additionally, Detective Healey described the size of a methamphetamine pipe as being half the size of a pen.

As soon as Johnson made the turn onto Preston Highway, Detective Healey stopped him.   When he approached Johnson's vehicle Detective Healey saw a bag of methamphetamine and a methamphetamine pipe on Johnson's lap.   Furthermore, he detected a heavy solvent odor commonly associated with a methamphetamine lab coming from Johnson's vehicle.   Detective Healey testified that he then placed Johnson in handcuffs, advised Johnson of his MirandaDouble rights, and determined that Johnson understood those rights.   Additionally, Detective Healey testified that he asked whether there was anything in Johnson's car that might cause harm to the officers.   Johnson stated that there was nothing harmful in the car but that there were inactive “one pots” (a form of a methamphetamine lab) in the trunk of the car.

On July 29, 2009, the trial court denied Johnson's motion to suppress.   Following a jury trial, Johnson was convicted of possession of a controlled substance in the first degree (methamphetamine);  possession of drug paraphernalia;  operation of a motor vehicle by a person whose operator's license has been revoked, suspended, cancelled, or denied;  and of being a persistent felony offender in the first degree.   Johnson was sentenced to ten years of imprisonment.   This appeal followed.

Standard of Review

As provided in Commonwealth v. Jones, 217 S.W.3d 190, 193 (Ky.2006):

When reviewing an order that decides a motion to suppress, the trial court's findings of fact are “conclusive” if they are “supported by substantial evidence.”   Using those facts, the reviewing court then conducts a de novo review of the trial court's application of the law to those facts to determine whether the decision is correct as a matter of law.

(Footnotes omitted).

ANALYSIS

On appeal, Johnson argues that the trial court erred in denying his motion to suppress because Detective Healey did not have reasonable suspicion to make the investigatory stop.   We disagree.

As set forth in Johnson v. Commonwealth, 179 S.W.3d 882, 884 (Ky.App.2005),Double “It is well settled that an investigative stop of an automobile is constitutional as long as law enforcement officials have a reasonable suspicion—supported by specific and articulable facts—that the occupant of the vehicle has committed, is committing, or is about to commit an offense.”  (Citations omitted).   The objective justification for the officer's actions must be measured in light of the totality of the circumstances.   See United States v. Sokolow, 490 U.S. 1, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989).   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.   Courts must consider all of the officers' observations, and give due weight to the inferences and deductions drawn by trained law enforcement officers.  U.S. v. Arvizu, 534 U.S. 266, 272–75, 122 S.Ct. 744, 750, 151 L.Ed.2d 740 (2002).

Johnson argues that the trial court erred in relying on Detective Healey's testimony in determining that he had reasonable suspicion that criminal activity was afoot.   Specifically, Johnson argues that Detective Healey's testimony that he saw Johnson use a lighter to light the methamphetamine pipe and take a “hit” was not credible because no lighter was seized.   Additionally, Johnson argues that Detective Healey's testimony that a methamphetamine pipe is only half the size of pen further supports his argument that Detective Healey could not have seen him smoke methamphetamine.

As noted in Sowell v. Commonwealth, 168 S.W.3d 429, 431 (Ky.App.2005), “[a]t a suppression hearing, the ability to assess the credibility of witnesses and to draw reasonable inferences from the testimony is vested in the discretion of the trial court.”   Having carefully reviewed the suppression hearing, we cannot say that the trial court abused its discretion in concluding that Detective Healey's testimony that he saw Johnson light and smoke a methamphetamine pipe was credible.

Based on Detective Healey's testimony, we believe that he had a reasonable suspicion that criminal activity was afoot.   As noted above, Detective Healey testified that he has extensive training in investigating crimes involving methamphetamines and that 98% of his caseload involves crimes relating to methamphetamine trafficking or manufacturing.   Detective Healey further testified that he conducted a surveillance of the Wal–Mart parking lot based on a tip from a confidential informant who stated that Johnson planned to meet someone there to pick up pseudoephedrine, which is used to manufacture methamphetamine.   Additionally, Detective Healey testified that, while following Johnson, he observed him smoking a methamphetamine pipe three times.   Based on his training and experience, Detective Healey immediately recognized the methamphetamine pipe.   Thus, having considered the totality of the circumstances, we conclude that Officer Healey had a reasonable suspicion that criminal activity was afoot, thereby justifying the investigatory stop.

CONCLUSION

For the foregoing reasons, we affirm the order of the Jefferson Circuit Court denying Johnson's motion to suppress.

All Concur.

KELLER, JUDGE: