Donna Warfield v. Commonwealth of Kentucky ( 2023 )

RENDERED: MARCH 31, 2023; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-1404-MR
DONNA WARFIELD APPELLANT
APPEAL FROM BOONE CIRCUIT COURT
v. HONORABLE JAMES R. SCHRAND, II, JUDGE
ACTION NO. 21-CR-00205
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
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BEFORE: ACREE, CETRULO, AND GOODWINE, JUDGES.
ACREE, JUDGE: Appellant, Donna Warfield, appeals her judgement of
conviction based on her conditional guilty plea, entered in the Boone Circuit Court
on October 13, 2021, reserving her right to appeal the court’s denial of her motion
to suppress evidence. We affirm.
BACKGROUND
On February 3, 2021, at 2:09 p.m., Boone County Deputy Sheriff
Teddy Melton observed a vehicle traveling a portion of interstate highway; neither
the driver nor the passenger was wearing seatbelts. Deputy Melton initiated a stop.
Susan Hulett was driving the vehicle. Warfield was the passenger and
the vehicle’s owner. Deputy Melton asked both for identification and for the
vehicle’s registration and proof of insurance.
The deputy observed both women as they searched for the requested
documentation. As Warfield looked in the glove compartment and her bags for the
vehicle registration and insurance card, the deputy noticed one of Warfield’s bags
was blue with a lockable zipper closure, which he perceived to be a methadone
bag. Such securable containers are used to facilitate “‘take-home’ use” of
methadone doses by an outpatient of an opioid treatment program in a manner that
will “limit the potential for diversion of opioid agonist treatment medications to the
illicit market . . . .” 42 C.F.R.1 § 8.12(i).
Deputy Melton asked where the women were going. Hulett explained
they had gone to a methadone clinic in Georgetown, Kentucky, but it was closed;
they then went to a methadone clinic in Northern Kentucky.
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Code of Federal Regulations.
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Both women produced identification, but Warfield could not find, at
first, proof of insurance for her vehicle. Deputy Melton returned to his cruiser to
prepare citations for each woman for failure to wear seat belts. Before he could
complete that task, he noticed Warfield holding documents out her window on the
vehicle’s passenger side. The deputy retrieved the documents, then returned to his
cruiser to check and confirm the identifications he was provided.
He also searched for outstanding warrants and found none as to either
Warfield or Hulett. Deputy Melton completed writing tickets for each of the
women for failure to wear a seatbelt at 2:18 p.m. However, before the deputy
finished writing the tickets and not later than 2:15 p.m., he contacted a City of
Florence K-9 officer for assistance. The deputy’s CourtNet search revealed
Warfield had a pending case for trafficking in a controlled substance.
Before the K-9 officer arrived with a drug-sniffing dog, Deputy
Melton finished writing and printing the tickets at 2:18 p.m. He then returned to
Warfield’s vehicle and asked Hulett to exit and step to the back of the vehicle for
safety reasons while he explained the tickets. Hulett complied. Warfield remained
in the vehicle. The deputy asked permission to search the vehicle but both Hulett
and Warfield declined permission to do so.
During the short time after printing the tickets, the K-9 officer arrived
with his dog. Thirteen minutes after Deputy Melton printed the tickets, and even
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less time after he explained the tickets to Hulett and asked permission to search the
vehicle, the canine alerted to the presence of drugs. It was 2:31 p.m.
Officers searched the vehicle and found a pill container Hulett owned
containing cash in the amount of $200.00 and eleven hydrocodone pills and, in a
coat pocket, a “bindle” – slang for a small package containing a narcotic – that
appeared to be heroin powder. In the unlocked blue methadone bag, officers found
a large quantity of fentanyl – approximately 88 grams of white powder, 5.5 grams
of brown powder, 12.5 grams of a white crystal substance, and a digital scale.
Warfield was arrested and soon indicted on several counts of trafficking and a
count of being in possession of drug paraphernalia.
Warfield moved to suppress all evidence discovered in the vehicle as
fruits of an illegally extended traffic stop. The motion was denied, and Warfield
entered a conditional guilty plea to multiple counts resulting in a sentence of five
years, probated for five years. By all accounts, after appealing the denial of her
suppression motion as a matter of right, Warfield absconded and remains out of
contact with her counsel and her probation officer. A probation violation warrant
has been outstanding since March 8, 2022.
STANDARD OF REVIEW
When reviewing the denial of a motion to suppress, an appellate court
considers a trial court’s findings of fact to be “conclusive if supported by
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substantial evidence.” Bauder v. Commonwealth, 299 S.W.3d 588, 591 (Ky. 2009)
(citing Ornelas v. United States, 517 U.S. 690, 699, 116 S. Ct. 1657, 134 L. Ed. 2d
911 (1996)). “Substantial evidence is ‘that which, when taken alone or in light of
all the evidence, has sufficient probative value to induce conviction in the mind of
a reasonable person.’” Hunter v. Mena, 302 S.W.3d 93, 97 (Ky. App. 2010)
(quoting Bowling v. Nat’l Res. & Env’t Prot. Cabinet, 891 S.W.2d 406, 409 (Ky.
App. 1994)). However, the appellate court conducts a de novo review of the trial
court’s application of law to its factual findings. Commonwealth v. Jones, 217
S.W.3d 190, 193 (Ky. 2006) (citation omitted).
ANALYSIS
First, we address the Commonwealth’s argument that the appeal
should be dismissed because Warfield has absconded from justice. Counsel for
Warfield addressed the argument in the reply brief as if addressing a motion to
dismiss. We decide the issue by this Opinion, and not by separate order. We are
not persuaded by the Commonwealth’s argument and decline to dismiss the appeal
for the following reasons.
Before 1976, neither the Kentucky Constitution nor the federal
Constitution guaranteed to criminal defendants the right of appeal to a higher court.
Our predecessor Court of Appeals made that clear in Lake v. Commonwealth when
a criminal defendant, citing KY. CONST. § 11, argued he was entitled to appeal the
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trial court’s decisions on his juror challenges. 209 Ky. 832, 273 S.W. 511 (Ky.
1925). “[T]he error at the foundation of that contention[,]” said the Court, “is that
it assumes that the constitutional guaranty [to ‘a speedy public trial by an impartial
jury of the vicinage[,]’ KY. CONST. § 11] includes the right of the defendant in a
criminal prosecution to an appeal . . . .” Id. at 835, 273 S.W. at 512. The Court
then pointed out that “[w]e do not have the latter in our Constitution, nor is it in the
federal Constitution . . . .” Id.
In 1976, the people of the Commonwealth amended the Kentucky
Constitution to guarantee the right to appeal civil and criminal judgments to a
second court, with certain exceptions inapplicable here. Hoskins v. Maricle, 150
S.W.3d 1, 6 n.1, 7 n.3 (Ky. 2004) (citing KY. CONST § 115).
Kentucky’s constitutional guarantee predominates. It is the reason
each of the Commonwealth’s citations to case law for dismissing this appeal are
inapplicable. The Commonwealth’s authority falls into three categories.
The first category is comprised of cases decided before Kentucky’s
constitutional guarantee existed. For example, in Wilson v. Commonwealth, a case
from 1874, Kentucky’s then-lone appellate court dismissed a criminal appeal after
the appellant escaped from confinement because there was no guarantee any
decision by the court could be enforceable against the absconded appellant. 73 Ky.
526, 527 (1874). No citation is necessary to support the axiom that when the voice
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and will of the people of the Commonwealth are expressed by their adoption of a
constitutional amendment, all preceding inconsistent common law is
constitutionally superseded.
In the second category of the Commonwealth’s inapplicable cases, we
find reference to federal case law expressing the “disentitlement theory” or
“fugitive disentitlement doctrine” stemming from the Supreme Court’s decision in
Molinaro v. New Jersey, 396 U.S. 365, 90 S. Ct. 498, 24 L. Ed. 2d 586 (1970).
This federal doctrine, “relies upon the theory that a fugitive from justice should not
be able to use the judicial system while at the same time avoiding it.” United
States v. Timbers Preserve, Routt Cnty., Colo., 999 F.2d 452, 453 (10th Cir. 1993).
The two paragraphs of the per curiam Molinaro decision is a succinct
example of the federal Supreme Court’s exercise of inherent authority to decline
further discretionary review of a state court judgment. Molinaro did not pursue
Supreme Court review as a matter of right guaranteed by any constitution because
no such right exists. The nation’s high court was reviewing Molinaro’s case
permissively upon its own writ of certiorari. Authority to manage its own docket
was not hindered in any way by any constitution. This Court, however, is not at
liberty to subordinate Section 115 of our Kentucky Constitution by reference to the
common law “fugitive disentitlement doctrine,” or as it is known, the “FDD.”
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Lastly, the Commonwealth notes Kentucky’s Supreme Court, in fact,
did apply the FDD in Commonwealth v. Hess, 628 S.W.3d 56 (Ky. 2021). But
Hess is not the review of a criminal conviction; rather, it is the appeal from an
order revoking probation.
Before her criminal trial, Hess was informed of “her constitutional
right to appeal. She expressly waived that right and did not seek appellate review
of her conviction. . . . With her constitutional right of appeal gone, any appeal
thereafter must be statutorily based.” Id. at 57, 60. “Hess’ right to appeal was
statutory under KRS[2] 22A.020(1),” said the Court and, therefore, “the issue of
whether the FDD would deprive Hess of a constitutional right is moot.” Id. at 60
(emphasis added).
The Commonwealth’s reliance on Hess suggests that the case, like
this Court’s opinion in Lemaster v. Commonwealth, 399 S.W.3d 34 (Ky. App.
2013), might have been clearer. Understandably, it would have been dicta to
answer the question Hess expressly declared moot. However, the question whether
the FDD can be applied to deprive a defendant of the right guaranteed by Section
115 is now squarely before this Court.
We hold that no Kentucky court, for its own convenience or
otherwise, has the authority to dispense with the constitutional right of appeal from
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Kentucky Revised Statute.
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a criminal conviction guaranteed by KY. CONST. § 115 by applying the common
law theory known as the fugitive disentitlement doctrine. If a criminal defendant
asserts that right, the courts must respect it unless and until the defendant/appellant
knowingly, voluntarily, and intelligently waives it.
Hess and Lemaster may have sown the seeds of doubt by citing
Kentucky decisions prior to the 1976 constitutional amendment.3 Although these
older cases still apply to appeals not guaranteed by Section 115 (as in both Hess
and Lemaster), those same older cases have been superseded to the extent they
conflict with the subsequently adopted constitutional amendment.
Warfield’s appeal of her criminal conviction was not waived. No
rules of procedure have been violated that might justify dismissal. Finally, in light
of KY. CONST. § 115, we cannot dispense with review based on the common law
FDD. We turn now to evaluate the merits of Warfield’s appeal.
Warfield argues the police improperly extended the stop beyond
completion of the stop’s purpose – to issue citations for failure to wear seatbelts.
Delaying Warfield and Hulett from proceeding on their way after delivering the
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Both Hess and Lemaster cite Molinaro as the origin of the FDD. Hess cites the following cases
rendered before the constitutional right existed in Kentucky: Wilson, supra; Jackson v.
Commonwealth, 247 S.W.2d 52 (Ky. 1952); Harris v. Commonwealth, 311 Ky. 429, 224 S.W.2d
427 (1949); Crum v. Commonwealth, 232 Ky. 331, 23 S.W.2d 550 (1930); Norton v.
Commonwealth, 78 Ky. 501 (1880). Lemaster cites: Harris, supra; and Crum, supra.-9-
tickets, says Warfield, violated their constitutional rights. We disagree and affirm
the denial of the suppression motion.
“Like a Terry[4] stop, the tolerable duration of police inquiries in the
traffic-stop context is determined by” both the time required to address the traffic
violation which resulted in the stop and the time required to “attend to related
safety concerns[.]” Rodriguez v. United States, 575 U.S. 348, 354, 135 S. Ct.
1609, 1614, 191 L. Ed. 2d 492 (2015) (citing Illinois v. Caballes, 543 U.S. 405,
407, 125 S. Ct. 834, 837, 160 L. Ed. 2d 842 (2005)). “Authority for the seizure
thus ends when tasks tied to the traffic infraction are – or reasonably should have
been – completed.” Id. Such tasks include “checking the driver’s license,
determining whether there are outstanding warrants against the driver, and
inspecting the automobile’s registration and proof of insurance.” Id. at 355, 135 S.
Ct. at 1615 (citing Delaware v. Prouse, 440 U.S. 648, 99 S. Ct. 1391, 59 L. Ed. 2d
660 (1979)). These inquiries do not include a canine drug sniff, which, “by
contrast, is a measure aimed at ‘detect[ing] evidence of ordinary criminal
wrongdoing.’” Id. (quoting Indianapolis v. Edmond, 531 U.S. 32, 40-41, 121 S.
Ct. 447, 454, 148 L. Ed. 2d 333 (2000)).
However, the evidence presented at the suppression hearing is that
Deputy Melton’s reasonable suspicions were raised when he saw the unlocked
4
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
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methadone bag and Warfield searching for her identification inside; Warfield’s
behavior caused him to believe she was under the influence of drugs or alcohol;
and Hulett exhibited a greater than expected level of nervousness.
Deputy Melton’s CourtNet search and drug dog search were not, per
se, an unlawful extension of the traffic stop. An officer may extend a traffic stop
beyond completion of its purpose when “‘something happen[s] during the stop to
cause the officer to have a reasonable and articulable suspicion that criminal
activity [is] afoot. ’” Davis v. Commonwealth, 484 S.W.3d 288, 292 (Ky. 2016)
(quoting Turley v. Commonwealth, 399 S.W.3d 412, 421 (Ky. 2013)). That is, the
suspected criminal activity must be independent of the reason for the traffic stop
and the officer’s suspicion must be sufficiently articulable and reasonable to
distinguish the two. If not, “the prolonging of a traffic stop solely to accommodate
a dog sniff is an illegal seizure . . . .” Conner, 636 S.W.3d 464, 474 (Ky. 2021)
(citing Rodriguez, 575 U.S. at 355-57, 135 S. Ct. at 1615).
Deputy Melton’s suspicion that drug-related criminal activity was
afoot goes beyond observations found insufficient in Moberly v. Commonwealth,
551 S.W.3d 26 (Ky. 2018), cited by Warfield. In Moberly, the Supreme Court of
Kentucky determined a police officer’s observations of a nervous, sweaty vehicle
operator did not give rise to a reasonable and articulable suspicion of illegal
activity beyond what justified the officer’s initial reason for the traffic stop. 551
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S.W.3d at 31-33. The officer’s delay in wrapping up the traffic stop was not
justified because he “articulated nothing about [Moberly’s] behaviors, individually
or collectively, to connect him to criminal behavior beyond what may be ordinarily
expected of a driver stopped for a traffic violation.” Id. at 32. The Supreme Court
noted that a driver is often nervous during a traffic stop. Id.
However, Deputy Melton’s suspicions in this case include his
observation of an unlocked and open methadone bag which his experience told him
must remain closed and locked. He also believed Warfield’s behavior was
consistent with someone who is under the influence of drugs. “We consider the
information from which a trained officer makes inferences, such as objective
observations and the method of operation of certain kinds of criminals, and
whether that information yields a particularized suspicion that the particular
individual being stopped is engaged in wrongdoing.” Id. at 31 (citing United
States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 695, 66 L. Ed. 2d 621(1981)). Melton articulated to the trial court that he inferred, based on these
observations and his experience and training, that drug-related activity was afoot
and convinced the trial court the inference was reasonable. This Court cannot find
error in the trial court’s determination.
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CONCLUSION
For the foregoing reasons, we affirm Warfield’s October 13, 2021
conditional guilty plea.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Adam Meyer Daniel Cameron
Frankfort, Kentucky Attorney General of Kentucky
Melissa A. Pile
Assistant Attorney General
Frankfort, Kentucky
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