David M. Collins v. Commonwealth of Kentucky ( 2020 )

RENDERED: DECEMBER 18, 2020; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-1422-MR
DAVID M. COLLINS APPELLANT
APPEAL FROM KENTON CIRCUIT COURT
v. HONORABLE GREGORY M. BARTLETT, JUDGE
ACTION NO. 18-CR-00838
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
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BEFORE: CALDWELL, MAZE, AND MCNEILL, JUDGES.
MCNEILL, JUDGE: David Collins (“Collins”) appeals from an order of the
Kenton Circuit Court denying his motion to suppress evidence obtained during a
vehicular stop. Having reviewed the parties’ arguments, the record, and the
applicable law, we affirm.
Background
A few weeks prior to the incident in question, Officer Fields of the
Kenton County Police Department was contacted by an Independence city police
officer who had conducted a traffic stop on a white vehicle suspected of drug
trafficking on Bowman Road. Collins was identified as the driver of the vehicle, a
2007 Chevy HHR. The Independence officer had received a tip from a resident of
Bowman Road who reported seeing the white vehicle make short stops at a
neighboring house at random times and on random days. Officer Fields testified
the home was the subject of several drug complaints and the site of a recent drug
overdose. Officer Fields circulated this information to all Kenton County police
officers.
On May 10, 2018, sometime after 9 p.m., Officer Patton, also with the
Kenton County Police Department, received a report from dispatch concerning a
tip from an individual named “Ron” about possible drug trafficking. According to
dispatch, the caller stated Collins was currently at a residence on Bird Road in
Independence, Kentucky and would soon be traveling in a 2007 white Chevy HHR
to Collins’ apartment in Glencoe, Kentucky. The caller gave dispatch Collins’
address and the address of the residence Collins was currently at on Bird Road,
along with the license number of the vehicle. He further stated Collins concealed
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drugs in the bottom of a fake aerosol can and would have meth, scales, baggies,
and Xanax in the car. The caller provided dispatch his phone number and hung up.
After receiving the message, Officer Patton called the number and
spoke to Ron briefly before Ron handed the phone over to an anonymous woman.
She repeated the information Ron had given to dispatch and said Collins would be
leaving the Bird Road location soon and heading to Glencoe, Kentucky, where he
acquires the drugs he sells in Independence. She said Collins showed her the drugs
and had them on his person, hidden in the bottom of an air freshener can. The
woman also described the route Collins would be taking.
Based upon this information, Officer Patton set up surveillance across
from Bird Road. About ten minutes later, he observed a white Chevy HHR exit
Bird Road in the direction predicted by the caller. Officer Patton followed the
vehicle until he observed the driver fail to use a turn signal and initiated a traffic
stop. Officer Patton approached the vehicle and confirmed Collins was the driver.
Upon speaking with Collins, Officer Patton learned Collins had just
left his parents’ home on Bird Road and was heading to his home in Glencoe.
Officer Patton asked Collins for proof of insurance and radioed for a K-9 unit.
After Collins produced an expired insurance card, Officer Patton returned to his
vehicle to verify the insurance was valid.
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Officer Fields arrived on scene and confirmed the vehicle and driver
matched the information received from Independence police just weeks earlier.
Officer Fields testified that when he arrived, Officer Patton was attempting to
verify Collins’ insurance with the insurance company. At 10:18 p.m., twenty-six
minutes into the stop, Officer Best, a K-9 officer with the Fort Mitchell Police
Department, arrived to conduct a search of the vehicle. Both Officers Best and
Patton testified that Officer Patton was still filling out the traffic citation when
Officer Best arrived. The K-9 alerted on the vehicle and following a search,
officers recovered a meth pipe, digital scales, close to $1,500 in cash, and an air
freshener can with a false bottom containing over two grams of meth, 8 Xanax
pills, and baggies.
Following his arrest, Collins was indicted for first-degree trafficking
in a controlled substance. He moved to suppress the evidence recovered from the
search of his vehicle and the circuit court denied the motion. Thereafter, Collins
entered a conditional guilty plea to first-degree trafficking in a controlled substance
and was sentenced to five years in prison. This appeal followed.
Standard of Review
“When reviewing a trial court’s denial of a motion to suppress, we
utilize a clear error standard of review for factual findings and a de novo standard
of review for conclusions of law.” Jackson v. Commonwealth, 187 S.W.3d 300,
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305 (Ky. 2006) (citing Welch v. Commonwealth, 149 S.W.3d 407, 409 (Ky. 2004)).
The circuit court’s factual findings are not challenged on appeal. Therefore, our
review will consist only of the circuit court’s application of the relevant law to the
facts.
Analysis
Collins argues that the circuit court erroneously denied his motion to
suppress. He does not challenge the legality of the stop itself, but instead contends
that Officer Patton illegally extended the traffic stop beyond its original purpose to
conduct the K-9 search. In Davis v. Commonwealth, 484 S.W.3d 288 (Ky. 2016),
the Kentucky Supreme Court followed the United States Supreme Court’s decision
in Rodriguez v. United States, 575 U.S. 348 (2015), and held police may not extend
a traffic stop beyond its original purpose to conduct an unrelated K-9 search for
drugs. Davis, 484 S.W.3d at 293.
The Commonwealth contends, however, that Davis is not implicated
because the officers had reasonable suspicion of drug activity justifying the K-9
search. We agree. “A reviewing court must weigh the totality of the
circumstances in determining whether there was a reasonable articulable
suspicion.” Commonwealth v. Brown, 250 S.W.3d 631, 634 (Ky. 2008) (citing
Terry v. Ohio, 392 U.S. 1 (1968)).
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The Commonwealth points to five specific, articulable facts giving
Officer Patton reasonable suspicion of drug activity at the time he radioed for a K-
9 unit: 1) several weeks earlier, an Independence police officer reported that
Collins’ vehicle was spotted making frequent, brief stops at a house on Bowman
Road; 2) the house was known for drug activity; 3) the description of the vehicle
given by the Independence police officer matched the description given by Ron
and the anonymous tipster, including the license plate number; 4) Ron and the
anonymous tipster both told Officer Patton that methamphetamine, Xanax,
baggies, and scales were in the vehicle at that moment; and 5) the anonymous
tipster described the location of Collins’ vehicle and the route that it would be
taking when it left that location.
The bases for these facts were several tips: one from an Independence
police officer which was itself based upon another tip, one from a man named Ron,
and one from an anonymous female. As an initial matter, our Supreme Court has
distinguished anonymous from non-anonymous tips for purposes of analyzing
“reasonable suspicion.” Commonwealth v. Kelly, 180 S.W.3d 474, 477 (Ky. 2005).
Tips from “identifiable informants who could be subject to criminal liability if it is
discovered that the tip is unfounded or fabricated . . . are entitled to a greater
‘presumption of reliability’ as opposed to the tips of unknown ‘anonymous’
informants (who theoretically have ‘nothing to lose’).” Id. (quoting Florida v. J.L.,
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529 U.S. 266, 276 (2000)). Here, at least one tip was not from a truly anonymous
source and would thus be entitled to a greater presumption of reliability.1 See
Dorsey v. Barber, 517 F.3d 389, 398 n.3 (6th Cir. 2008) (tipster who identified
himself and left phone number not anonymous).
However, even assuming all the tips were from anonymous sources,
there was sufficient indicia of their reliability to provide reasonable suspicion
justifying the K-9 search. Commonwealth v. Morgan, 248 S.W.3d 538, 541 (Ky.
2008) (citation omitted) (“Before an investigating officer can rely on
an anonymous tip as part of his basis for reasonable suspicion, that tip must have
sufficient indicia of reliability.”).
In Alabama v. White, 496 U.S. 325 (1990), the United States Supreme
Court found an anonymous tip was sufficient to justify a Terry stop when
the tip accurately predicted the future behavior of the person to be searched. This
prediction of future behavior indicated the tipster possessed a level of intimate
knowledge of the individual to be searched, which the Court found to be sufficient
indicia of reliability. Id. at 332.
In the instant case, both Ron and the anonymous female provided
Collins’ current location and destination. But more importantly, the anonymous
1
It is unclear from the record whether the tip provided to the Independence Police Department
was from an “anonymous” source or a “citizen informant,” but for purposes of the reasonable
suspicion analysis, we will assume the former.
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female said Collins currently had drugs in his possession, had shown them to her,
was leaving soon, and accurately predicted the route Collins would be traveling.
“What was important was the caller’s ability to predict respondent’s future
behavior, because it demonstrated inside information—a special familiarity with
respondent’s affairs.” Id. (emphasis in original). “Because only a small number of
people are generally privy to an individual’s itinerary, it is reasonable for police to
believe that a person with access to such information is likely to also have access
to reliable information about that individual’s illegal activities.” Id. “When
significant aspects of the caller’s predictions were verified, there was reason to
believe not only that the caller was honest but also that he was well informed, at
least well enough to justify the stop.” Id.
Because Officer Patton was able to verify the anonymous female’s
prediction concerning the route Collins would take, it was reasonable for him to
believe her tip that Collins had drugs in the vehicle. Additionally, Officer Patton
was aware of the recent tip from an Independence police officer that Collins’
vehicle was seen making frequent, brief stops at a house known for drug activity.
An officer’s prior knowledge about a suspect can help to corroborate an
anonymous tip. Morgan, 248 S.W.3d at 541. Based upon the totality of the
circumstances, the tip contained sufficient indicia of reliability to justify
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prolonging the stop to conduct a K-9 search of the vehicle. Therefore, we hold the
circuit court properly denied Collins’ motion to suppress.
Conclusion
For the foregoing reasons, the judgment of the Kenton Circuit Court is
affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Nicholas J. Alig Daniel Cameron
Wilder, Kentucky Attorney General of Kentucky
M. Brandon Roberts
Assistant Attorney General
Frankfort, Kentucky
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