Adam Gray v. Commonwealth of Kentucky ( 2023 )

RENDERED: JULY 28, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-1085-MR
ADAM GRAY APPELLANT
APPEAL FROM HOPKINS CIRCUIT COURT
v. HONORABLE CHRISTOPHER BRYAN OGLESBY, JUDGE
ACTION NO. 21-CR-00262
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
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BEFORE: THOMPSON, CHIEF JUDGE; EASTON AND KAREM, JUDGES.
EASTON, JUDGE: The Appellant (“Gray”) entered a conditional guilty plea to
first-degree possession of a controlled substance (methamphetamine) and related
misdemeanor charges. He appeals the denial of his Motion to Suppress the
evidence found on him during a traffic stop. The circuit court correctly concluded
the officer conducting the traffic stop had a reasonable and articulable suspicion to
continue Gray’s detention to investigate possible driving under the influence of
drugs when Gray gave his voluntary consent to the search of his person. For this
and other reasons we will discuss, we affirm.
FACTUAL AND PROCEDURAL HISTORY
At 9:30 p.m. on the night of November 27, 2020, KSP1 Trooper Porter
(“Porter”) observed Gray, and another occupant of the vehicle driven by Gray were
not wearing seat belts. Porter pulled Gray over. Dispatch directed Porter to check
for insurance. Gray looked for but was unable to produce proof of insurance.
During this interaction, Porter was standing at the driver’s door and
about two feet from Gray while Gray was sitting in the vehicle. Porter observed
bloodshot eyes and erratic behavior and movements by Gray. When Porter went
back to his cruiser, dispatch first advised there was an indication of insurance and
then advised Gray had a prior DUI2 conviction.
Porter had already decided to have Gray exit his vehicle and conduct a
DUI investigation before he heard about the prior DUI. When Porter returned to
Gray’s vehicle, he directed Gray to exit the vehicle. When Gray exited the vehicle,
Porter asked if he had anything in his pockets. Porter then asked Gray for
permission to search his pockets. Gray said, “Go ahead.” Porter found
methamphetamine in Gray’s pocket.
1
Kentucky State Police.
2
Driving Under the Influence.
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Porter continued with a DUI investigation. Gray failed field sobriety
tests. Ultimately, Porter arrested Gray for possessing the methamphetamine as
well as DUI and failure to have proof of insurance.
The circuit court conducted a hearing on Gray’s Motion to Suppress
in November of 2021. The only evidence was the preceding summarized
testimony of Porter and a dashcam video from Porter’s cruiser. After the parties
had the opportunity to brief the issues presented, the circuit court denied the
suppression motion concluding the circumstances constituted reasonable and
articulable suspicion to continue Gray’s detention to investigate a DUI charge.
The circuit court also concluded the consent given by Gray was voluntary.
Gray entered a guilty plea to the possession of methamphetamine with
other misdemeanor charges. Gray was sentenced to serve two years in prison.
This appeal followed.
STANDARD OF REVIEW
A trial court’s denial of a motion to suppress is reviewed
under a two-prong test. First, we review the trial court’s
findings of fact under the clearly erroneous standard.
Under this standard, the trial court’s findings of fact will
be conclusive if they are supported by substantial
evidence. Second, we review de novo the trial court’s
application of the law to the facts.
Rhoton v. Commonwealth, 610 S.W.3d 273, 275-76 (Ky. 2020) (footnotes
omitted).
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ANALYSIS
“[T]he ultimate touchstone of the Fourth Amendment is
‘reasonableness[.]’” Brigham City, Utah v. Stuart, 547 U.S. 398, 403, 126 S. Ct.
1943, 1947, 164 L. Ed. 2d 650 (2006). Gray was seized subject to the
reasonableness protection of the Fourth Amendment from the time he was pulled
over. This appeal requires us to address detention permitted as a Terry3 stop. Such
detention may be sustained only while “a reasonable and articulable suspicion that
criminal activity is afoot” exists.
The question presented by Gray is whether his continued detention
prior to his eventual arrest for DUI and possession of methamphetamine was
justified. Specifically, Gray argues Porter did not have a reasonable and
articulable suspicion of any crime beyond a traffic ticket offense when Porter
asked for consent to search Gray’s pockets. Gray then contends his detention was
impermissibly extended, and this taints any consent he may have given for the
search of his pockets.
Gray does not dispute his initial detention. Porter observed a traffic
violation (no seat belts) and was justified in stopping Gray. Failure to wear
seatbelts violates KRS 189.125. An officer may detain someone if he observes a
3
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
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traffic violation, even if the officer has a different motivation for the stop, such as
hoping to find evidence of other crimes. Wilson v. Commonwealth, 37 S.W.3d
745, 749 (Ky. 2001).
The detention time for the no seat belts violation was extended
because Gray could not provide proof of liability insurance. Kentucky has
mandatory financial responsibility laws governing such insurance. The law
requires carrying proof of such coverage. KRS 304.39-117(2). Failure to do so is
a violation subject to a $250 fine. KRS 534.040(2)(c).
This circumstance about insurance is significant. The evidence
presented at the suppression hearing included the amount of time Gray had to try to
find the insurance proof. In these several minutes, Porter was able to observe Gray
closely. Porter did not detect alcohol, yet he saw Gray’s bloodshot eyes and erratic
behavior, including Gray’s movements. Porter has training and experience in
detecting the effects of drugs, including, but not limited to, alcohol.
Dispatch was able to find an indication of insurance coverage, but this
did not excuse Gray’s failure to have proof of that insurance. Just before Porter
went back to the vehicle to have Gray exit the vehicle, dispatch also notified Porter
of Gray’s prior DUI conviction.4 While Porter had already decided to further
4
Gray had committed a prior DUI with possession of marijuana on May 21, 2018, Hopkins
District Court, Case No. 18-T-01255.
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detain Gray for a DUI investigation, the fact of the prior conviction was known to
Porter when he acted.
A detention may only last for as long as required to address the initial
reason for it unless something happens to provide a further suspicion of other
criminal activity. Commonwealth v. Connor, 636 S.W.3d 464, 473 (Ky. 2021).
When Porter stopped Gray for the lack of seat belts, Porter was justified in giving
Gray time to find the required proof of insurance. Id. When Porter observed signs
of a DUI, the detention could continue.
Whenever an officer interacts with a citizen during a traffic stop, the
officer may direct the driver to exit a vehicle without any violation of the
Constitution. Pennsylvania v. Mimms, 434 U.S. 106, 111, 98 S. Ct. 330, 333, 54 L.
Ed. 2d 331 (1977). Upon removal of Gray from the vehicle, Porter could have
patted Gray down for any weapons for officer safety. The pat down could only
seek weapons, but if “plain feel” during the pat down reveals to an officer the
criminal nature of something he feels, it could be seized. Commonwealth v. Banks,
68 S.W.3d 347, 351 (Ky. 2001).
In this case, we do not see Porter performing a pat down. Rather,
Porter asked for permission to search Gray’s pockets. Without hesitation, Gray
says: “Go ahead.” Porter then finds the methamphetamine.
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Before the discovery of the methamphetamine, Porter may have
chosen to simply write a ticket for the seat belt and proof of insurance violations.
In other words, there had been no completion of the processing of those violations
with a citation. Thus, with the time it took to address the insurance proof, there
does not appear to have been any improper extension of the detention, even if there
was no reasonable and articulable suspicion of a DUI. Regardless, Porter decided
to proceed with investigation of a DUI offense. We will evaluate separately the
presence of the sufficient suspicion for that detention.
Gray failed the field sobriety tests. A later blood test would confirm
the presence of drugs in Gray’s system. The Commonwealth decided it could not
proceed with the DUI charge in the plea negotiations, because the blood test had
been obtained without a warrant as now required by Commonwealth v. McCarthy,
628 S.W.3d 18 (Ky. 2021). In any event, what was found after the decision to
detain for a DUI investigation has no relevance to the analysis of the initial
decision to extend the detention for that investigation.
Interactions like those in this case are to be “analyzed sequentially.”
Connor, supra at 472. We are required to assess the reasonableness of Porter’s
suspicion of DUI considering the “totality of the circumstances.” Bauder v.
Commonwealth, 299 S.W.3d 588, 591 (Ky. 2009). The suspicion must be more
than a mere “hunch.” Connor, supra at 477.
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Contrary to Gray’s insinuation, an officer is not required to observe
impaired driving, such as swerving from side to side, to develop a suspicion of
impairment. See Hayden v. Commonwealth, 766 S.W.2d 956 (Ky. App. 1989).
Standing at the driver’s door, Porter observed bloodshot eyes. Porter observed
Gray’s “erratic” behavior and movements for several minutes. Although it did not
matter to Porter, he was also aware of Gray’s recent prior DUI.
The word “articulable” is not the same as articulated. Even though
Porter had already decided to continue the detention for a DUI investigation
without regard for the information about the prior DUI, this does not mean the
analysis must ignore that factor. It remains an articulable fact of record in the
overall analysis of the suspicion.
When viewed in isolation, any given circumstance may not constitute
sufficient suspicion. For example, nervous behavior alone will not support a
suspicion of criminal activity. Commonwealth v. Marr, 250 S.W.3d 624, 627 (Ky.
2008). But the law directs a consideration of all circumstances. When we do this,
we agree that the facts related by the circuit court, specifically bloodshot eyes,
erratic behavior, and the prior DUI constituted a reasonable and articulable
suspicion of DUI. See, e.g., Johnson v. Commonwealth, 522 S.W.3d 207 (Ky.
App. 2017).
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Whether to complete the process of the traffic ticket for no seat belts
and no proof of insurance or to continue detention for a DUI investigation, Porter
was justified in detaining Gray when he asked for consent to search. The only
remaining question then is whether Gray’s consent to search his pockets was
voluntary. The case relied upon by Gray at the trial court level noted an improper
detention tainted the consent to search. Strange v. Commonwealth, 269 S.W.3d
847, 852 (Ky. 2008). There is no such taint here to be evaluated for the consent.
See, e.g., Baltimore v. Commonwealth, 119 S.W.3d 532 (Ky. App. 2003).
The trial court then only needed to look at the circumstances of the
consent to determine if it was coerced. Gray relies upon Schneckloth v.
Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 136 L. Ed. 2d 854 (1973). This case
explained a citizen does not have to be advised of the right to refuse consent when
evaluating whether it is voluntary. The facts in Schneckloth are like those in the
present case. When asked if his car could be searched, the suspect in Schneckloth
simply responded: “Sure, go ahead.” 412 U.S. at 220, 93 S. Ct. at 2044. The U.S.
Supreme Court found voluntary consent in the circumstances of that case. Id. at
249, 93 S. Ct. at 2059.
In this case, while Porter held Gray’s hands when he asked for
consent, Gray was not handcuffed. The way the consent was sought and the
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casualness of the answer without hesitation indicated a voluntary consent. We
agree with the trial court on the voluntariness of the consent.
We also note the search of Gray’s pockets was inevitable as a search
incident to the valid arrest for a DUI. As in Baltimore, supra, this provides another
reason to affirm the result of the circuit court’s decision in this case. We are not
required to affirm only on the grounds argued by the parties when the record
reveals other reasons to affirm. Wells v. Commonwealth, 512 S.W.3d 720, 721-22
(Ky. 2017).
CONCLUSION
Gray’s detention when he gave consent to the search of his pockets
was supported by either an ongoing processing of the traffic stop or a reasonable
and articulable suspicion of a DUI offense. Gray’s consent to the search of his
pockets was voluntary. The search of Gray’s pockets would have been inevitable
upon his arrest for DUI. The Hopkins Circuit Court committed no error in denying
Gray’s Motion to Suppress and is AFFIRMED.
ALL CONCUR.
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BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Thresa Taylor Hinton Daniel Cameron
Madisonville, Kentucky Attorney General of Kentucky
Melissa A. Pile
Assistant Attorney General
Frankfort, Kentucky
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