Rebecca Luken v. Commonwealth of Kentucky ( 2021 )

RENDERED: NOVEMBER 19, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0234-MR
REBECCA LUKEN APPELLANT
APPEAL FROM CAMPBELL CIRCUIT COURT
v. HONORABLE JULIE REINHARDT WARD, JUDGE
ACTION NO. 18-CR-00322
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
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BEFORE: CALDWELL, McNEILL, AND TAYLOR, JUDGES.
McNEILL, JUDGE: At approximately 6:00 p.m. on February 28, 2018, an
employee at the home department store, Lowe’s, in Highland Heights, Kentucky,
observed a red van with a trailer at the store’s location. Based on a notification by
another Lowe’s store in Ohio concerning a recent attempted theft involving a red
van pulling a trailer, the police were contacted. Highland Heights Police Officer
Blank responded to the scene later that evening. Shortly after 10:00 p.m., when the
store was closed, Officer Blank positioned his patrol car behind an elevated
location overlooking the store. While there, Officer Blank observed a black
flatbed pickup truck with an attached trailer drive behind the Lowe’s building.
There was no indication that the vehicle was performing business for Lowe’s or its
customers. Believing that this was suspicious based on his experience with the
Highland Heights Police Department, Officer Blank stopped the vehicle while it
was exiting the Lowe’s parking lot. Rebecca Luken (hereafter, “Appellant”), was a
passenger in the vehicle. During the stop, Officer Blank searched the vehicle and
discovered a pill bottle labeled with Appellant’s name. The bottle contained
suspected methamphetamine.1
Appellant was subsequently indicted on one count of first-degree
possession of a controlled substance. She filed a motion to suppress the evidence
based on lack of reasonable suspicion for the traffic stop, which was denied by the
trial court. Thereafter, Appellant entered a guilty plea upon the condition that her
suppression motion may be appealed. She now appeals as a matter of right and
specifically argues that the stop was not based on reasonable and articulable
suspicion that criminal activity was afoot.
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Appellant does not contest that the substance was illegal or anything that occurred after the
initial investigatory stop.
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I. ANALYSIS
Our standard of review of the trial court’s denial of a suppression
motion is twofold. First, the trial court’s findings of fact are conclusive if they are
supported by substantial evidence; and second, the trial court’s legal conclusions
are reviewed de novo. Commonwealth v. Marr, 250 S.W.3d 624, 626 (Ky. 2008).
We summarized the relevant Fourth Amendment law in Dunn v. Commonwealth:
All warrantless searches are presumed to be unreasonable
and unlawful, requiring the Commonwealth to bear the
burden of justifying the search and seizure under one of
the exceptions to the warrant requirement. Here, the
circuit court upheld the search . . . based on the
automobile exception, which allows police to search a
legitimately stopped automobile where probable cause
exists that contraband or evidence of a crime is in the
vehicle. This exception is premised upon the ready
mobility of automobiles as well as the reduced
expectation of privacy [one has] in an automobile, owing
to its pervasive regulation.
199 S.W.3d 775, 776 (Ky. App. 2006) (internal quotation marks and footnotes
omitted). See also United States v. Cortez, 449 U.S. 411, 417, 101 S. Ct. 690, 695,
66 L. Ed. 2d 621 (1981) (footnote omitted) (an investigatory stop must “be
justified by some objective manifestation that the person stopped is, or is about to
be, engaged in criminal activity.”). In ruling on a motion to suppress resulting
from such a stop, courts must consider the totality of the circumstances. Id.-3-
Cortez provides additional guidance that is particularly instructive in the present
case:
The [search and seizure] process does not deal with hard
certainties, but with probabilities. Long before the law of
probabilities was articulated as such, practical people
formulated certain common sense conclusions about
human behavior; jurors as factfinders are permitted to do
the same–and so are law enforcement officers. Finally,
the evidence thus collected must be seen and weighed not
in terms of library analysis by scholars, but as understood
by those versed in the field of law enforcement.
Id. at 418, 101 S. Ct. at 695. With these standards in mind, we conclude that the
record demonstrates that the Commonwealth presented sufficient evidence that
would justify the warrantless search and seizure at issue here. More precisely,
having considered the record and the law, including the non-binding case law cited
by Appellant, we are convinced that Officer Blank possessed reasonable and
articulable suspicion that criminal activity was afoot, thus justifying the
investigatory stop at issue.
The suppression hearing lasted less than half of an hour and the only
testimonial evidence presented was Officer Blank’s. Particularly relevant portions
of his testimony include, without limitation: 1) he was informed that someone in a
red van with a trailer recently attempted a theft at an Ohio Lowe’s, and that a
vehicle and trailer matching that description was reported being seen at the
Highland Heights Lowe’s on February 28, 2018; 2) in response to these
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complaints, Officer Blank observed from a position overlooking the store–after the
store had closed–a black truck pulling a trailer enter the parking lot and then
proceed behind the store where merchandise and materials were located. Some of
these materials, like cinder blocks, could be removed and placed inside of a
vehicle; 3) Officer Blank frequently patrolled that Lowe’s location and never
witnessed any vehicle enter the rear of the store that was not involved in the store’s
operation; and 4) there was no exit behind the store.
We recognize, however, that some of Officer Blank’s testimony
weighs at least somewhat in Appellant’s favor. For example, the black truck at
issue here did not match the description of the red van that was the subject of the
previous reports from Lowe’s employees. Officer Blank also testified that the
vehicle was only behind the store for between two and three minutes and that he
did not see anything on the trailer when the vehicle entered the Lowe’s parking lot
or when it attempted to exit the scene. Yet, based on this totality of the
circumstances, we believe that Officer Blank had reasonable and articulable
suspicion that criminal activity was afoot. Therefore, the trial court did not err in
denying Appellant’s motion to suppress.
II. CONCLUSION
For the foregoing reasons, we hereby affirm the judgment of the
Campbell Circuit Court.
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ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Julia K. Pearson Daniel Cameron
Frankfort, Kentucky Attorney General of Kentucky
Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky
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