Jerry Lewis Thimes v. Commonwealth of Kentucky

RENDERED: DECEMBER 3, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-1649-MR
JERRY LEWIS THIMES APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
v. HONORABLE THOMAS L. TRAVIS, JUDGE
ACTION NO. 19-CR-00082
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
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BEFORE: CALDWELL, JONES, AND TAYLOR, JUDGES.
TAYLOR, JUDGE: Jerry Lewis Thimes brings this appeal from an October 10,
2019, judgment of the Fayette Circuit Court sentencing Thimes to five-years’
imprisonment. We affirm.
Detective Logan Stricker with Lexington Narcotics Enforcement Unit
received a phone call from a defense attorney. The defense attorney told Stricker
that a client would be contacting him by phone with information concerning illegal
drug activity but wished to remain anonymous.
On November 11, 2018, the anonymous informant contacted Stricker.
The informant told the detective that an older black male would be bringing
approximately 100 grams of fentanyl from Detroit, Michigan, to Lexington,
Kentucky. The informant specified that the older black male would be traveling by
Greyhound bus that was scheduled to leave Detroit that night at 10:30 p.m. and to
arrive in Lexington at 7:00 a.m., the next morning. The informant also described
the older black male as being about 6’2” in height, wearing a black jacket,
traveling alone, and carrying a small blue bag, which would contain the illegal
drugs. The informant told Stricker that he would call back to confirm that the
individual boarded the bus. Subsequently, the informant called Stricker and
informed him that the 10:30 p.m. bus had been cancelled. So, the older black male
would be taking the next scheduled Greyhound bus, leaving Detroit at 6:30 a.m.
the following day and arriving in Lexington at 2:55 p.m.
Stricker confirmed the informant’s information concerning the
Greyhound bus’s cancellation and the subsequent bus’s scheduled departure from
Detroit and arrival in Lexington. On November 12, 2018, Stricker tracked the bus
on Greyhound’s website. When it arrived in Lexington, several officers, including
Stricker, were discretely observing the departing passengers. Thimes exited the
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bus. Thimes was an older black male, traveled alone, 6’1” in height, and carried a
small blue bag. Thimes was observed using his cell phone to make a call and then
entered a taxicab.
The officers followed the taxicab and eventually effectuated an
“investigatory stop.” Thimes Brief at 3. According to Stricker, Thimes was asked
to step out of the taxicab and provide his identification. Thimes indicated that he
was from Detroit and traveled to Lexington for his aunt’s funeral. The officers
called a canine unit, and it gave a positive alert for narcotics in the taxicab. The
taxicab was then searched, and approximately 82 grams of suspected narcotics
were found in Thimes’ small blue bag.
Thimes was indicted by a Fayette County Grand Jury upon first-
degree trafficking in a controlled substance (Kentucky Revised Statutes (KRS)
218A.1412), importing heroin (KRS 218A.1410), and first-degree possession of a
controlled substance (KRS 218A.1415). Thimes filed a motion to suppress the 82
grams of heroin1 seized from his bag. Thimes argued that the anonymous tip was
insufficient to justify an investigatory stop of the taxicab and that the stop was
improperly extended to summon the canine unit. The circuit court held an
evidentiary hearing upon the motion to suppress, and Stricker was the only witness
to testify.
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The illegal drugs found in the bag proved to be heroin.
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By order entered May 20, 2019, the circuit court denied Stricker’s
motion to suppress. Given the totality of the circumstances, the circuit court
concluded that reasonable suspicion of criminal activity existed to justify the
investigatory stop of the taxicab and that the stop was not impermissibly prolonged
to allow the canine unit to conduct a sniff search.
Thereafter, in August of 2019, the Commonwealth and Thimes
entered into a plea agreement. Consistent therewith, Thimes entered a conditional
guilty plea pursuant to North Carolina v. Alford, 400 U.S. 25 (1970) to trafficking
in a controlled substance. The Commonwealth agreed to dismissal of the
remaining charges. By final judgment entered October 10, 2019, Thimes was
sentenced to five-years’ imprisonment. This appeal follows.
Thimes contends that the circuit court erroneously denied his motion
to suppress the heroin seized from his bag. Thimes initially argues that the police
lacked reasonable suspicion of criminal activity to justify an investigatory stop of
the taxicab. Thimes emphasizes that the tip was anonymous and believed it lacked
any indicia of reliability. In particular, Thimes maintains:
The officers performing the search of [Thimes’] car
did not have reasonable suspicion to make the initial
stop. Stricker testified that the first phone call was an
attorney known to him who informed him that a client of
his would be calling with information related to a crime.
Stricker knew the name of the attorney who was calling
him, and knew a client of his; however, he never
confirmed that the person he speculated was the tipster
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actually was the tipster. According to Stricker, the
attorney never told him the name of the client. Although
Stricker never even attempted to find out the identity of
the informant, he still could not have done so without
violating attorney-client privilege. Since the officers
could not readily ascertain the informant’s identity in
order to test his or her reliability, the informant was truly
anonymous. Thus, any tips the informant provided
would need to provide sufficient indicia of reliability
before the officers could have had reasonable suspicion
to make the stop.
The tip here did not show that the informant had
concealed knowledge of criminal activity. The informant
told Stricker that an unnamed, older black male, about six
feet, two inches tall, wearing a black jacket and carrying
a blue bag would be travelling from Detroit to Lexington
by Greyhound bus carrying 100 grams of suspected
fentanyl or heroin. This tip not only failed to identify
concealed knowledge of criminal activity, it failed to
identify a determinate person.
First, the tip did not provide an accurate
description of the subject’s location. The informant only
told that the suspect was coming to the City of Lexington
via Greyhound bus. Not only is there a bus stop in
Lexington there are Greyhound bus stops in relatively
close cities including Frankfort, Berea, London, and
Louisville. While the informant did specifically refer to
Lexington, they were anonymous so there was no way to
confirm with certainty that the suspect would not be
coming to one of the other Central Kentucky Greyhound
bus stops. Since the tip did not provide a location the
suspect was travelling to in Lexington, it is unclear that
the officers knew where [Thimes] was going as they
followed him.
[Thimes] did fit a general description provided by
the tip; however, the description of an older black man
travelling from Detroit, who is about six feet, two inches
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tall, wearing a black jacket and carrying a blue bag, is
generic enough that it could apply to countless people.
The anonymous informant never even confirmed that the
subject was from Detroit, only that he would be
travelling from there. Detroit is a large American city
with a population of 670,031 as of 2019. 13.3% of
Detroit residents are over the age of 65, 47.3% are male,
and 78.6% are black. Cincinnati, where the officers
believed the suspect transferred busses, has a population
of 303,940 with 12.2% being over 65, 48.2% male, and
42.7% black or African American.
Furthermore, the average height of a black male in
the United States is 5 ft 9 in (175.5 cm), not much shorter
than the 6 ft, 2 in provided by the informant or [Thimes’]
height of 6 ft, 1 in. In addition, Greyhound is a large bus
company, carrying more than 16 million passengers in a
year.
Like the physical description, a black jacket and a
blue bag are not highly descriptive. Any number of
persons might be wearing a black jacket in the cool
month of November, especially coming from the North.
A person who is travelling is likely going to need a bag,
and blue is a common color choice, especially for people
in Lexington. It is not surprising then, that a person who
matched the description got off the bus.
Since Greyhound operates nationally and between
Canada and Mexico, it is plausible that a person
matching the description getting off the bus described by
Stricker could have originated almost anywhere. Stricker
also testified that the bus he believed the suspect was on
did not go to Lexington but rather the suspect would have
had to transfer to another bus in Cincinnati. This transfer
was not watched by any officers, thus making it even
more difficult to use the tip to identify a determinate
person.
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The tip was not specific enough to be considered
predictive. No specific locations or addresses beyond the
city names of Detroit and Lexington were provided by
the tipster. The mode of travel was not a specified
vehicle, but rather a generic Greyhound bus. Just like
Stricker any casual bystander could have looked up the
information regarding a Greyhound bus’s route between
Detroit and Lexington. Furthermore, any person
[Thimes] encountered in the period before or during his
travel could have asked him where he might be going.
Finally, there is nothing especially predictive about a
person matching the description provided riding a bus
from Detroit to Lexington.
Thimes Brief at 12-15 (citations omitted).
An investigatory stop of a motor vehicle is constitutionally
permissible if the police possess a reasonable and articulable suspicion that
criminal activity is occurring when considering the totality of the circumstances.
Collins v. Commonwealth, 142 S.W.3d 113, 115 (Ky. 2004); see also Terry v.
Ohio, 392 U.S. 1 (1968). A reasonable suspicion of criminal activity may be based
upon information provided by an anonymous informant, when such information
carries a sufficient indicia of reliability. Stewart v. Commonwealth, 44 S.W.3d
376, 380-82 (Ky. App. 2000); Collins, 142 S.W.3d at 115. In determining whether
such information exhibits a sufficient indicia of reliability, “[t]he information must
be viewed based upon the personal observation and independent investigation of
the police that would tend to corroborate significant, but not necessarily all, of the
facts supplied by the informant. Another important factor involves whether the
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information contains facts and conditions as to future actions of third parties
ordinarily not easily predicted.” Stewart, 44 S.W.3d at 380-81 (citing Alabama v.
White, 496 U.S. 325, 332 (1990)).
Our review of the circuit court’s decision upon a motion to suppress is
two-fold:
First, factual findings of the court involving historical
facts are conclusive if they are not clearly erroneous and
are supported by substantial evidence. Second, the
ultimate issue of the existence of reasonable suspicion or
probable cause is a mixed question of law and fact
subject to de novo review.
Baltimore v. Commonwealth, 119 S.W.3d 532, 539 (Ky. 2003).
In the case sub judice, Stricker testified that he confirmed the
anonymous informant’s information concerning the Greyhound bus routes. After
the first phone conversation with the anonymous informant, Stricker accessed the
Greyhound bus schedule and verified that a bus would be leaving Detroit at 10:30
p.m. on November 11, 2018, and arriving in Lexington at 7:00 a.m. on November
12, 2018. Then, after the second conversation with the anonymous informant,
Stricker again accessed the Greyhound bus schedule. He confirmed that the initial
bus was cancelled and that another bus would be leaving Detroit at 6:30 a.m. on
November 12, 2018, and arriving later that day in Lexington at 2:55 p.m. Once the
bus arrived in Lexington, Thimes was observed exiting the bus, and he closely
matched the anonymous informant’s description. Thimes was an older black male
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and 6’1” in height. He was travelling alone, wearing a black jacket, and carrying a
small blue bag, as described by the informant.
Considering the totality of the circumstances, we conclude that the
police possessed reasonable suspicion that Thimes possessed illegal drugs to
justify an investigatory stop of the taxicab. The information supplied by the
anonymous informant was verified by Stricker as to the Greyhound bus routes and
by the observation of the police. The anonymous tip importantly included detailed
and predictive information, which the police verified through their observations.
Taken together, we believe the anonymous information possessed a sufficient
indicia of reliability upon which to base reasonable suspicion. For these reasons,
we cannot conclude that the circuit court erred by deciding that reasonable
suspicion existed to justify the investigatory stop of the taxicab.
Thimes next asserts that the circuit court erred by concluding that the
investigatory stop was not impermissibly extended to permit a police canine to
sniff the taxicab for illegal drugs. Thimes specifically maintains:
The officers did not observe any kind of traffic
infraction; therefore the stop would be best categorized
as an investigative or Terry stop with a purpose of
investigating whether [Thimes] was trafficking drugs.
The officers in this case should have ended the search
when they found out [Thimes] did not have any warrant
in Kentucky and found no physical evidence of drug
possession or other criminal activity. When the officers
found out [Thimes’] identity, and saw no evidence of
illegal activity, they effectuated the purpose of the stop.
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There was no “reasonable or articulable suspicion that
criminal activity was afoot.” Instead, the officers
extended the stop by making [Thimes] and the cab driver
wait until they could bring the dog to perform a sniff.
The canine was not present when the officers
initiated the stop but rather had to be called in. That fact
alone should indicate that the initial purpose of the stop
did not involve anything that would require a dog sniff.
They clearly expected to see evidence that would justify
continuing the search. When they did not, they called in
the canine anyway to test their baseless theory.
....
The officers should not have considered the
informant’s tip in their extension of the stop because
once they determined there were no visible drugs the stop
should have ended. The tip that there were drugs was the
only basis for stopping the car. Once the officers failed
to observe signs of the presence of drugs, they should
have stopped the search. . . .
Thimes Brief at 22-23 (citations omitted).
The law is well-established that an investigatory stop must be
“reasonably related in scope to the circumstances which justified the interference
in the first place.” Hiibel v. Sixth Jud. Dist. Court of Nevada, 542 U.S. 177, 185
(2004) (quoting United States v. Sharpe, 470 U.S. 675, 682 (1985)). So, an
investigatory stop may “last no longer than is necessary to carry out the purpose of
the stop[.]” United States v. Campbell, 549 F.3d 364, 372 (6th Cir. 2008).
Herein, the purpose of the stop of the taxicab was to investigate
whether Thimes was carrying illegal drugs in the blue bag. To do so, Stricker
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testified that a canine unit was put on standby earlier that day. Presumably, a
canine sniff of the taxicab would have been the least intrusive method to determine
if the blue bag contained illegal drugs. And, a valid investigatory stop for a
reasonable suspicion of drug trafficking could certainly contemplate a canine
search. Stricker further testified that after the taxicab was stopped by police, the
canine unit was called. While Thimes argues that the stop was unreasonably
prolonged for the canine search, we can find no testimony or evidence in the record
concerning the length of time that elapsed between the initial stop and the arrival
of the canine unit. In other words, there is no evidence that the length of the stop
was unreasonable to facilitate the purpose of the stop. Based upon these
circumstances, we conclude that the duration of the investigatory stop was not
unreasonable or longer than necessary to carry out the purpose of the stop.
In conclusion, we hold that the circuit court properly denied Thimes’
motion to suppress the illegal drugs seized from his bag in the taxicab.
For the foregoing reasons, the Judgment of the Fayette Circuit Court
is affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Karen Shuff Maurer Daniel Cameron
Assistant Public Advocate Attorney General of Kentucky
Department of Public Advocacy Frankfort, Kentucky
Frankfort, Kentucky
Lauren Lewis
Assistant Attorney General
Frankfort, Kentucky
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