Deshawn Howard v. Commonwealth of Kentucky

RENDERED: APRIL 16, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0002-MR
DESHAWN HOWARD APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
v. HONORABLE ERNESTO M. SCORSONE, JUDGE
ACTION NO. 19-CR-00225
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
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BEFORE: GOODWINE, MAZE, AND MCNEILL, JUDGES
MAZE, JUDGE: Appellant, Deshawn Howard, appeals the Fayette Circuit Court’s
order denying his motion to suppress evidence. For the following reasons, we
affirm.
BACKGROUND
On November 3, 2018, Officer Quinn Chandler of the Lexington
Police Department, received an anonymous tip. The anonymous informant advised
that a person named “D” sold cocaine and methamphetamine out of a house on
Winterberry Drive in Lexington, Kentucky. Officer Chandler coordinated
surveillance efforts on that location. Also, using a police database, he learned that
Deshawn Howard lived in the home being surveilled. Officer Chandler concluded
that Deshawn Howard was likely “D.” Ultimately, undercover police officers
could not find any evidence of drug trafficking while surveilling the residence.
However, on December 17, 2018, while working his regular patrol
shift around 11:30 p.m., Officer Chandler recognized a white Jeep, which he had
seen Deshawn Howard drive. Officer Chandler also saw a subject matching the
description of Deshawn Howard leave a Speedway store and enter the vehicle.
Officer Chandler followed the vehicle to 2308 Rocky Point Court and parked down
the block to avoid being seen. Another Lexington police officer, Sergeant
Thurman, was assisting. Sgt. Thurman saw a white Chevrolet pull up to the
residence at 2308 Rocky Point Court, enter, exit the home within five minutes, and
then drive away. Another assisting officer followed the white Chevrolet and pulled
it over for failing to use a turn signal. Three people were in the white Chevrolet.
A narcotics canine was called and alerted the officer of possible narcotics in the
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vehicle. After searching, officers found cocaine. The vehicle occupants told
officers they purchased the cocaine at 2308 Rocky Point Court from an individual
named Termite, but another person named “D” also sold drugs in the residence.
Officers then saw the white Jeep leave the residence at 2308 Rocky
Point Court with a white Buick. Officers conducted a Terry1 stop of the two
vehicles. Deshawn Howard operated the white Jeep. During the stop, a narcotics
canine positively alerted officers to possible drugs. After conducting a search,
officers found a handgun, a plastic bag containing sixteen grams of cocaine, and a
large amount of cash in the white Jeep. Officers arrested Deshawn Howard, and he
was indicted.
Before trial, Howard’s counsel moved to suppress the evidence
uncovered at the Terry stop. After an evidentiary hearing, the trial court denied
Howard’s motion, finding a reasonable, articulable suspicion existed for the stop.
Consequently, Howard entered a conditional guilty plea to the charges of
trafficking in a controlled substance in the first degree, being a convicted felon in
possession of a handgun, and being a persistent felony offender in the second
degree. The trial court sentenced Howard in accordance to the plea agreement on
December 20, 2019. This appeal followed.
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Referencing Terry v. Ohio, 392 U.S. 1 (1968), which allows officers to conduct a search if they
possess a reasonable suspicion of criminal activity.
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STANDARD OF REVIEW
When reviewing a trial court’s order to suppress evidence, we use a
two-pronged standard of review. First, “we review the trial court’s factual findings
for clear error, and deem conclusive the trial court’s factual findings if supported
by substantial evidence.” Williams v. Commonwealth, 364 S.W.3d 65, 68 (Ky.
2011). “Inherent in our review is the reality that police officers may draw
inferences of illegal activity from facts that may appear innocent to a lay person.
Accordingly, we must give due deference to the trial court in assessing the
credibility of the officers and the reasonableness of their inferences.” Fletcher v.
Commonwealth, 182 S.W.3d 556, 558 (Ky. App. 2005). Second, we review “[t]he
trial court’s application of the law to the facts” de novo. Williams, 364 S.W.3d at
68. Therefore, we use the clearly erroneous standard of review when analyzing the
trial court’s factual findings but perform a de novo review of the court’s
application of the law to the facts.
ANALYSIS
“A police officer may constitutionally conduct a brief, investigatory
stop when the officer has a reasonable, articulable suspicion that criminal activity
is afoot.” Bauder v. Commonwealth, 299 S.W.3d 588, 590-91 (Ky. 2009) (citing
Terry v. Ohio, 392 U.S. 1, 30 (1968)). A reasonable suspicion is more than an
“unparticularized suspicion or ‘hunch.’” Id. at 591 (quoting Terry, 392 U.S. at
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27)). “Reasonable suspicion, while requiring less of a showing than probable
cause, requires at least a minimal level of objective justification for making the
stop.” Id. (citing United States v. Sokolow, 490 U.S. 1, 7 (1989)). “Accordingly,
the stop of an automobile and the resulting detention of the driver are
unreasonable, under the Fourth Amendment, absent a reasonable, articulable
suspicion that the driver is unlicensed, or that the automobile is not registered, or
that either the vehicle or an occupant is otherwise subject to seizure for violation of
the law.” Id. (citing Delaware v. Prouse, 440 U.S. 648, 663 (1979)). 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.” Id. (citing United States v. Cortez, 449 U.S.
411, 417-18 (1981)).
Here, Howard argues the trial court erred by denying his motion to
suppress because the police lacked a reasonable suspicion to stop and search his
vehicle under the totality of the circumstances. Specifically, Howard claims the
officer’s suspicion was based on information from an anonymous informant whose
veracity, reputation, and basis of knowledge cannot be readily assessed. Also,
Howard claims the record does not state how the police deduced he was “D.”
Further, Howard argues the police followed him to a home that was not his
residence and made a traffic stop of individuals who admitted they bought drugs
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from Termite, not “D.” Thus, under the totality of the circumstances, Howard
argues the police did not have reasonable suspicion to stop and search his vehicle.
In his brief, Howard relies on two cases dealing with anonymous tips
to argue that the police did not have a reasonable suspicion to justify the stop and
seizure of him. In the first case, Alabama v. White, 496 U.S. 325 (1990), the police
received an anonymous tip that a woman would leave an apartment carrying drugs
to go to a designated motel. The police went to the apartment and followed the
woman heading toward the motel. The police stopped the vehicle and performed a
search, which revealed drugs. The Supreme Court held that the tip alone would
not be enough to create reasonable suspicion, yet the totality of the circumstances
provided enough to mend the gap in the officer’s reasonable suspicion. Id. at 329.
In the second case, Florida v. J.L., 529 U.S. 266 (2000), the police received an
anonymous tip that a black male wearing a plaid shirt and standing with two other
males at a bus stop was carrying a gun. The police arrived and performed a frisk,
which revealed a gun. The Supreme Court held that search was unlawful because
the tip lacked a sufficient indicia of reliability upon which to base reasonable
suspicion. Id. at 274.
While these two cases are informative for dealing with anonymous
tips, in Howard’s case, the police did not rely on the anonymous tip alone. Instead,
Officer Chandler testified that the police conducted an investigation and performed
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surveillance based on information received from the anonymous informant. When
Officer Chandler and the other officers stopped the white Jeep to determine if it
contained, or Howard had in his possession, illegal drugs, they had an objectively
reasonable and articulable suspicion that the individual in the Jeep was “D” and
had been involved in the trafficking of illegal drugs. Based on information from
the anonymous informant, Officer Chandler conducted an investigation and
surveillance, which identified Howard, the white Jeep he used, and his known
address. The totality of the circumstances from the night of the stop and search,
including the statements from the individuals in the white Chevrolet who identified
Howard as trafficking in illegal drugs, demonstrated a reasonable suspicion of
criminal activity.
The trial court had substantial evidence to support its findings.
Accordingly, we hold that the traffic stop and subsequent search and seizure were
constitutional because the totality of the circumstances alluded to a reasonable
suspicion of illegal activity.
CONCLUSION
For the above reasons, we affirm the circuit court’s order.
ALL CONCUR.
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BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Bradley Clark Daniel Cameron
Lexington, Kentucky Attorney General of Kentucky
Thomas A. Van De Rostyne
Assistant Attorney General
Frankfort, Kentucky
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