MICHAEL ALLEN APPELLANT v. APPELLEE

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Court of Appeals of Kentucky.

MICHAEL W. ALLEN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

NO. 2011–CA–000108–MR

Decided: May 04, 2012

BEFORE:  TAYLOR, CHIEF JUDGE;  ACREE AND CAPERTON, JUDGES. BRIEFS FOR APPELLANT:  Susan Jackson Balliet Frankfort, Kentucky BRIEF FOR APPELLEE:  Jack Conway Attorney General of Kentucky Courtney J. Hightower Assistant Attorney General Frankfort, Kentucky

NOT TO BE PUBLISHED

OPINIONAFFIRMING

Michael Wayne Allen appeals from the Fayette Circuit Court's denial of his motion to suppress his statements and the corresponding conditional guilty plea to one count of first degree trafficking in a controlled substance, one count resisting arrest, and being a persistent felony offender, second degree.   After a thorough review of the parties' arguments, the record, and the applicable law, we find no error in the Fayette Circuit Court's order and accordingly, affirm.

The facts of this appeal were testified to at a suppression hearing and were set forth in the trial court's order of January 13, 2010.   On July 17, 2009, at approximately 3 a.m., Officer Nathan Williams was driving on Man of War Boulevard and turned onto Pimlico Drive.   He noticed that the vehicle in front of him had also turned onto Pimlico Drive but he was not alerted to any type of suspicious activity.   The vehicle then turned onto Custer Drive.   As Custer Drive is predominantly comprised of businesses, none of which were open so late, Officer Williams took notice. Double The officer followed the vehicle onto Custer Drive.   The vehicle turned into a parking lot and went behind a building that contained a dentist office which was clearly closed at that time of day.   Officer Williams testified that this area was not a high crime area and he was unsure if there was a “No Trespassing” sign posted.   Regardless, Officer Williams believed that the vehicle was taking evasive action and he became concerned that some type of criminal behavior was afoot.   Therefore, Officer Williams initiated his overhead lights.   The vehicle did a slow u-turn and the passenger, now known as Allen, jumped out of the car and ran. Double Officer Williams stopped his cruiser, exited and yelled “Stop, Police” and then proceeded to chase Allen.   According to Officer Williams, Allen slipped and fell on the grass.   Officer Williams jumped on top of Allen to secure him.   On cross-examination, Officer Williams was quite certain that Allen slipped instead of being tackled by Officer Williams.   Allen contends that he was tackled by Officer Williams.

While on the ground, the two struggled for a few minutes and Allen kept trying to reach into his waistband and groin area but was eventually placed in handcuffs and secured.   Officer Bowles arrived shortly thereafter as backup.   Officer Williams patted down Allen for weapons.   Officer Williams testified that he was informed that Officer Bowles had read Allen his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) but he was unsure at what point this occurred.

Officer Williams asked Allen why he ran and Allen stated that there was an outstanding warrant for his arrest because of a parole violation.   Officer Williams confirmed this and placed Allen under arrest and searched him.   Officer Williams discovered $1093 in cash in Allen's pocket.   Officer Williams asked Allen if he had missed anything in the search and Allen stated that he thought “it fell down my leg.”   Officer Williams asked “What fell?” to which Allen responded “nothing.”   Based on Allen's behavior and his statement that something fell down his pants leg, the police called for a canine unit to search the area.   The search uncovered one bag, with eight smaller baggies of cocaine inside, on top of a bush in close proximity to where Allen had been placed into custody.

Sergeant Lowe interviewed Allen and this interview was recorded on tape.   Sergeant Lowe began the interview by advising Allen of his rights pursuant to Miranda, supra.   When asked if he understood these warnings, Allen's response was not audible on the recording.   Sergeant Lowe proceeded with the interview as if Allen had responded affirmatively and Allen did not indicate that he did not wish to speak to the officer.

Allen was then transported to the hospital due to a spider bite on his foot.   Approximately 30–60 minutes after the first interview, Sergeant Lowe interviewed Allen again at the hospital.   He did not Mirandize Allen before the second interview.   This interview was also recorded.   Allen admitted that the bag of cocaine was his and that it was for personal use.   After being presented this evidence, the court ruled on Allen's motion to suppress.

First, the court addressed Allen's contention that the police did not have reasonable and articulable suspicion to stop the vehicle from which he fled.   The trial court noted that while the driver of the vehicle could have observed the police following, there was no abrupt driving to indicate that the driver was trying to avoid the police.   The court further stated its appreciation of the officer investigating suspicious activity, but noted that he could have done so without initiating the stop.   The vehicle never stopped behind the closed business and there was no observation of the occupants to determine what they were doing.   Thus, the court concluded that there was no reasonable and articulable suspicion for the stop of the vehicle.   However, the court noted that its analysis must go beyond the initial stop and assess the constitutionality of the stop and seizure of Allen.

When Officer Williams initiated the stop of the vehicle and before the vehicle came to a complete stop, the passenger, Allen, alighted from the vehicle and began running.   Officer Williams stopped his car, chased Allen and ultimately secured him.   Once secured, Officer Williams discovered there was a warrant outstanding for Allen's arrest.   The court noted that other jurisdictions Double have held that the discovery of an outstanding warrant overcomes any taint of an impermissible initial encounter.   The court concluded that the evidence located did not come to light simply because of the illegal actions of the police, but instead arose due to the flight of Allen from a moving vehicle, which in itself gave the police an independent reason to stop Allen.

The court relied on Wilson v. Commonwealth, 37 S.W.3d 745, 748 (Ky.2001), wherein the Kentucky Supreme Court stated that “Evidence need not be excluded if the connection between the illegal conduct and the discovery and seizure of the evidence is highly attenuated, or when evidence has been obtained by means “sufficiently distinguishable” from the initial illegality so that the evidence is “purged of the primary taint.” '  Id. (internal citations omitted).   Thus, the court concluded that the stop and subsequent seizure of Allen did not require the evidence to be suppressed.

Next the court addressed Allen's contentions that his statements to Officer Williams should be suppressed.   The court noted that Officer Williams was extremely truthful when he testified that he was uncertain when Allen was advised of his Miranda rights by Officer Bowles.   Based on that uncertainty, the court sustained Allen's motion to suppress his statement concerning why he ran and whether any items fell down his pants leg.

The court then addressed Allen's statements when questioned by Sergeant Lowe based upon his inaudible response to whether he waived his Miranda rights.   The court concluded that while the waiver was not audible on tape, all of the statements on the interview tape indicated that Allen had voluntarily waived his rights and voluntarily answered questions posed to him by the police.   Additionally, the court found that it was unnecessary to repeat Allen's Miranda warnings at the hospital prior to questioning by Sergeant Lowe. Thus, the court overruled Allen's motion to suppress the statements made to the police following the Miranda warnings given by Sergeant Lowe. As such, the court overruled in part and sustained in part Allen's motion to suppress.   It is from this order and the corresponding conditional guilty plea that Allen now appeals.

On appeal Allen presents three arguments, namely, (1) the second Terry stop, of Allen himself, lacked reasonable suspicion and all evidence flowing from this stop must be suppressed;  (2) all of Allen's statements about the cocaine were obtained indirectly as a result of his un-Mirandized statement and must be suppressed;  and (3) court costs of $155 must be dismissed.   The Commonwealth disagrees and asserts three arguments, (1) the second Terry stop of Allen was based upon a reasonable suspicion that Allen was involved in criminal activity;  (2) the court correctly concluded that Allen's statements to Sergeant Lowe were admissible;  and (3) the court correctly imposed court costs in this case.   With these arguments in mind we turn to our applicable standard of review.

In review of the trial court's decision on a motion to suppress, this Court must first determine whether the trial court's findings of fact are clearly erroneous.   Under this standard, if the findings of fact are supported by substantial evidence, then they are conclusive.  RCr 9.78;  Welch v. Commonwealth, 149 S.W.3d 407, 409 (Ky.2004);  see also Lynn v. Commonwealth, 257 S.W.3d 596, 598 (Ky.App.2008).  “Based on those findings of fact, we must then conduct a de novo review of the trial court's application of the law to those facts to determine whether its decision is correct as a matter of law.”   Commonwealth v. Neal, 84 S.W.3d 920, 923 (Ky.App.2002) (citing Adcock v. Commonwealth, 967 S.W.2d 6, 8 (Ky.1998);  Commonwealth v. Opell, 3 S.W.3d 747, 751 (Ky.App.1999)).   We now turn to Allen's first argument, namely that the second Terry stop of Allen lacked reasonable suspicion and all evidence flowing from this stop must be suppressed.

Allen argues that Officer Williams did not have a reasonable and articulable suspicion for the Terry stop of Allen himself, and thus, all evidence flowing from this stop must be suppressed.   In support thereof, Allen argues (1) that the Terry stop of the vehicle was illegal and thus could not support the stop of Allen;  and (2) that Allen's flight alone did not provide a reasonable and articulable suspicion of criminal activity to justify the stop given the location, namely, the parking lot emptying into an apartment complex that was not crime-ridden.   We disagree.

Since the decision in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), it has been well-established that a brief detention by a police officer may constitute a seizure within the meaning of the Fourth Amendment of the United States Constitution, and thus may properly be undertaken only if the police officer has a reasonable suspicion based upon objective, articulable facts that criminal activity is afoot.   See Henson v. Commonwealth, 245 S.W.3d 745 (Ky.2008);  Fletcher v. Commonwealth, 182 S.W.3d 556 (Ky.App.2005);  Docksteader v. Commonwealth, 802 S.W.2d 149, 150 (Ky.App.1991).  “The court must consider the totality of the circumstances in determining whether a police officer had a particularized and objective basis for suspecting that a person stopped may be involved in criminal activity.”   Bauder v. Commonwealth, 299 S.W.3d 588, 591 (Ky.2009) (citing United States v. Cortez, 499 U.S. 411, 417–18, 101 S.Ct. 690, 66 L.Ed2d 621 (1981)).

We agree with the trial court's determination that the original stop of the vehicle which was initiated but never completed was not based on a reasonable and articulable suspicion of criminal activity. Double However, the facts sub judice support the trial court's finding that the stop of Allen was based on a reasonable and articulable suspicion of criminal activity, namely, the headlong flight from a moving vehicle in a direction away from Officer Williams.

The United States Supreme Court noted in Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 676, 145 L.Ed.2d 570 (2000), that “Headlong flight—wherever it occurs—is the consummate act of evasion:  It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such.”   We cannot escape the fact that Allen jumped out of a moving vehicle and ran.   Certainly such action gave Officer Williams a reasonable and articulable suspicion of criminal activity not by virtue of merely fleeing but by exiting a moving vehicle combined with fleeing. Double Moreover, whether the initial traffic stop of the vehicle would have been unwarranted, there were independent grounds to stop Allen that were attenuated from and independent of Officer Williams' initial approach of the vehicle.   See Taylor, infra.   Also, Allen was not seized until engaged with Officer Williams on the ground:

A seizure occurs when an officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.  California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991).   A seizure does not occur, however, if in response to a show of authority, the subject does not yield.   In that event, the seizure occurs only when the police physically subdue the subject.  Hodari D, supra.

Here, it is undisputed that when the officer turned on his lights, Taylor failed to yield to his authority.   Instead, he led police on a high-speed chase, which included driving in the wrong lane of traffic.   Taylor's seizure only occurred when the police physically apprehended him following the chase.   Thus, the police officer's justification for initially attempting to stop Taylor is immaterial and the trial judge's erroneous finding, i.e., that Taylor was not a licensed driver, is of no importance.

Taylor v. Commonwealth, 125 S.W.3d 216, 219–20 (Ky.2003).   Thus, we may consider all the conduct of Allen up to the point in time that he and Officer Williams were engaged on the ground to formulate a basis for the seizure of Allen.

Given that Allen's flight from a moving vehicle in a direction away from Officer Williams provided a reasonable and articulable suspicion of criminal activity, we find no error in the trial court's denial of Allen's motion to suppress the evidence flowing from the stop and seizure of Allen.   We now turn to Allen's second issue, his un-Mirandized statement.

Allen argues that all of his statements about the cocaine were obtained indirectly as a result of his un-Mirandized statement and must be suppressed.   In support thereof, Allen argues his statement that something fell down his pants leg, which was ultimately suppressed by the trial court, resulted in the canine unit being called, which led to the discovery of the cocaine, which then led to Allen's statements about the cocaine.   Thus, Allen argues that the trial court should have suppressed all evidence which flowed from his un-Mirandized statement that something fell down his leg.   The Commonwealth disagrees and asserts that Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985) is dispositive of this case and supports the trial court's denial of Allen's motion to suppress his statements. Double

In Oregon v. Elstad, the United States Supreme Court held that “a suspect who has once responded to unwarned yet uncoercive questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings.”  Id. at 470 U.S. 298, 318, 105 S.Ct. 1285, 1298.   In so holding, the Court determined that, “The relevant inquiry is whether, in fact, the second statement was also voluntarily made.   As in any such inquiry, the finder of fact must examine the surrounding circumstances and the entire course of police conduct with respect to the suspect in evaluating the voluntariness of his statements.  Id.

Subsequently, in United States v. Patane, 542 U.S. 630, 124 S.Ct. 2620, 159 L.Ed.2d 667 (2004), the Court explained that “the Self–Incrimination Clause contains its own exclusionary rule.”  Id. at 542 U.S. 630, 640, 124 S.Ct. 2620, 2628.   Thus, the Court noted that the difference between violations of the Fourth Amendment and the failure to advise of Miranda rights is that the remedy for the latter is “[t]he exclusion of unwarned statements [and it] ․ is a complete and sufficient remedy” for any perceived Miranda violation.”   Id. at 542 U.S. 630, 643, 124 S.Ct. 2620, 2630 citing Chavez v. Martinez, 538 U.S. 760, 790, 123 S.Ct. 1994, 155 L.Ed.2d 984 (2003) (KENNEDY, J., concurring in part and dissenting in part).   The Court ultimately held that an unwarned but voluntary statement is subject to the exclusionary rule, but that evidence obtained as a result of such a statement is not.   See Welch v. Commonwealth, 149 S.W.3d 407, 412 (Ky.2004) interpreting Patane at 542 U.S. 630, 643, 124 S.Ct. 2620, 2630.   Thus, the evidentiary exclusionary rule of Wong Sun 's Double “fruit of the poisonous tree” need not be applied in a failure to warn situation.  Patane, 542 U.S. 630, 642, 124 S.Ct. 2620, 2629.

In the case sub judice we agree with the trial court that Allen's un-Mirandized statement concerning something falling down his pants warranted exclusion.   We further agree with the trial court that the remainder of his statements did not warrant exclusion because under Elstad, once properly Mirandized by Sergeant Lowe, the statements that followed, including those that addressed the cocaine, were admissible.

Further, while Allen did not make an incriminating statement about the cocaine until his arrival at the hospital, we note that Sergeant Lowe, the officer that Mirandized Allen, was the officer questioning Allen and that a short amount of time had passed between the questioning at the hospital and when Allen had been Mirandized.   Thus, we agree with the trial court that the change of location did not require Allen to be re-Mirandized and that the statements made by Allen were voluntary and could be properly admitted.

As concerns the discovery of the cocaine, under Patane, the cocaine found by the canine unit could properly be admitted as physical evidence.   Finding no error, we affirm the trial court's denial of Allen's motion to suppress all statements about the cocaine.

Allen last argues that his court costs of $155 imposed in the judgment and sentence must be dismissed as he is an indigent.   We agree with the Commonwealth that the trial court did not err in imposing court costs sub judice.   Allen was represented by a private attorney for trial and was only granted in forma pauperis status on appeal.   As this issue is unpreserved, we do not find palpable error.   Accordingly, we affirm on this issue.

Finding no error, we hereby affirm the Fayette Circuit Court's order and the correspondingly entered conditional guilty plea.

ALL CONCUR.

CAPERTON, JUDGE: