Commonwealth of Kentucky v. Jessica Skaggs

RENDERED: JANUARY 8, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0441-MR
COMMONWEALTH OF KENTUCKY APPELLANT
APPEAL FROM ROWAN CIRCUIT COURT
v. HONORABLE ROBERT W. MCGINNIS, JUDGE
ACTION NO. 19-CR-00149
JESSICA SKAGGS APPELLEE
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; GOODWINE AND KRAMER,
JUDGES.
KRAMER, JUDGE: The Commonwealth appeals from an order of the Rowan
Circuit Court suppressing all evidence from what it determined was an unlawful
seizure of Jessica Skaggs by Sergeant Chris Waltz of the Morehead Police
Department. Upon review, we vacate and remand.
Factual and Procedural Background
On the night of May 24, 2019, Sgt. Waltz received a dispatch that the
owner of the Valero gas station noticed a suspicious vehicle in front of the store
after hours. Although it is unclear from the record before us what time the store
closed, there were still employees inside cleaning when Sgt. Waltz arrived at 12:48
a.m. He saw a man at the front window of the store waving in what he assumed
was an attempt to get the attention of the employees.1 Sgt. Waltz instructed the
man to have a seat on the curb and asked for his identification. There was also a
vehicle parked in front of the doors at the entrance of the store. Skaggs was in the
driver’s seat with the window down and, according to Sgt. Waltz, appeared to be
scratching lottery tickets. The passenger’s side door of her vehicle was open. Sgt.
Waltz approached Skaggs. He testified that she appeared very nervous. He
instructed her to exit the vehicle. Sgt. Waltz further testified that Skaggs grabbed a
black velvet bag from the center console and placed it in her pocket prior to exiting
the vehicle. He then obtained Skaggs’ identification. After running her
information through dispatch, he discovered that Skaggs had an outstanding
warrant from Boyd Circuit Court.
Once Sgt. Waltz learned of the arrest warrant, he patted down Skaggs.
He removed the black velvet bag from her pocket, which held five smaller bags.
1
The man was later identified as Brian Nance, who had been a passenger in Skaggs’ vehicle.
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Skaggs eventually admitted the bag contained methamphetamine; twenty white
pills identified as gabapentin; a bag of marijuana; and numerous small, empty
baggies. Sgt. Waltz informed Skaggs that he was arresting her for trafficking
methamphetamine in addition to the warrant. At that time, Skaggs stated she sold
the drug only to support her own habit. Sgt. Waltz testified that Skaggs gave him
permission to search her vehicle and informed him that he would find a scale in the
center console, which he did.
Skaggs was indicted by a Rowan County grand jury on one count of
trafficking methamphetamine, first degree, two or more grams; one count of
trafficking in a controlled substance, third degree (gabapentin); possession of
marijuana; and being a persistent felony offender, first degree. Skaggs filed a
motion to suppress evidence resulting from the search of her person and vehicle as
well as the statements she made while in custody. The circuit court held a hearing
and subsequently entered an order suppressing all evidence seized and all
statements made by Skaggs. The Commonwealth filed the instant appeal.
Standard of Review
Our standard of review applicable to a decision on a motion to
suppress requires that we first determine whether the circuit court’s findings of fact
are supported by substantial evidence. If so, we must then conduct a de novo
review of the circuit court’s application of the law to determine whether its
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decision is correct as a matter of law. Commonwealth v. Neal, 84 S.W.3d 920, 923
(Ky. App. 2002). The presence or absence of “reasonable suspicion” is also
reviewed de novo on appeal. Gray v. Commonwealth, 150 S.W.3d 71, 74 (Ky.
App. 2004).
Analysis
The Fourth Amendment to the United States Constitution, made
applicable to the states via the Fourteenth Amendment,2 provides, in relevant part,
that “the right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated[.]” In
defining what constitutes a seizure under the Fourth Amendment, the United States
Supreme Court has ruled that “whenever a police officer accosts an individual and
restrains his freedom to walk away, he has ‘seized’ that person.” Terry v. Ohio,
392 U.S. 1, 16, 88 S. Ct. 1868, 1877, 20 L. Ed. 2d 889 (1968). A court must
examine the totality of circumstances surrounding the incident to determine
whether a reasonable person believed he was free to walk away, which includes,
but is not limited to, “the use of language or tone of voice indicating that
compliance with the officer’s request might be compelled.” United States v.
Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 1877, 64 L. Ed. 2d 497 (1980).
The exclusionary rule provides that “evidence obtained in violation of the Fourth
2
See also Section Ten of Kentucky’s Constitution (KY. CONST. §10).
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Amendment cannot be used in a criminal proceeding against the victim of the
illegal search and seizure.” United States v. Calandra, 414 U.S. 338, 347, 94 S.
Ct. 613, 619, 38 L. Ed. 2d 561 (1974) (citation omitted).
There are, however, exceptions to the exclusionary rule. The
attenuation doctrine is one of three such exceptions3 recognized by the United
States Supreme Court. It allows evidence to be admitted “when the connection
between unconstitutional police conduct and the evidence is remote or has been
interrupted by some intervening circumstance, so that the interest protected by the
constitutional guarantee that has been violated would not be served by suppression
of the evidence obtained.” Utah v. Strieff, ___U.S. ___, 136 S. Ct. 2056, 2061, 195
L. Ed. 2d 400 (2016) (internal quotations and citation omitted). In Strieff, the State
conceded that the officer did not have probable cause to seize Strieff; however,
once the officer discovered Strieff had an outstanding arrest warrant, the warrant
“broke the causal chain between the unconstitutional stop and the discovery of
evidence[.]” Id. at 2063.
Turning to the case at hand, we find no fault in the circuit court’s
determination that Sgt. Waltz’s initial seizure of Skaggs was not constitutionally
justified; indeed, the record contains evidence of substance supporting this
3
The other two exceptions are the independent source doctrine and the inevitable discovery
doctrine. See Warick v. Commonwealth, 592 S.W.3d 276, 281 (Ky. 2019).
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decision. Sgt. Waltz could have briefly detained Skaggs, even without probable
cause to arrest her, if there was a reasonable suspicion that criminal activity was
afoot. Gray, 150 S.W.3d at 74 (citing Terry, 392 U.S. at 20-23). Sgt. Waltz
testified only that he “asked [Skaggs] to step out [of her vehicle] because she was
nervous plus I already had one individual sitting on the curb to where I could keep
a visual on both of them better.”4 In order to justify the intrusion upon Skaggs’
personal security, the Commonwealth “must be able to point to specific and
articulable facts which, taken together with rational inferences from those facts,
reasonably warrant that intrusion.” Terry, 392 U.S. at 21, 88 S. Ct. at 1880. The
Commonwealth failed to do so. Sgt. Waltz did not, at any time, testify to any
specific and articulable facts to support the conclusion that criminal activity was
afoot or that a crime was being committed in his presence when he arrived at the
store.5 Although the Commonwealth now argues that Skaggs was trespassing, we
note that Sgt. Waltz never charged Skaggs with criminal trespass.6 Moreover, the
4
Skaggs testified that another officer showed up to the scene at some point to assist Sgt. Waltz.
5
See, e.g., Commonwealth v. Mobley, 160 S.W.3d 783 (Ky. 2005).
6
Although not determinative of the resolution of this appeal, we note that at no point in the
record before us did the Commonwealth argue that Sgt. Waltz believed Skaggs to be trespassing
on the premises as the basis for his actions. We have repeatedly stated that “[t]he Court of
Appeals is without authority to review issues not raised in or decided by the trial court.” Reg’l
Jail Auth. v. Tackett, 770 S.W.2d 225, 228 (Ky. 1989). “It goes without saying that errors to be
considered for appellate review must be precisely preserved and identified in the lower court.”
Elwell v. Stone, 799 S.W.2d 46, 48 (Ky. App. 1990) (citation omitted).
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record before us does not support any such inference.7 Thus, we agree with the
circuit court that the initial seizure does not survive constitutional scrutiny.
However, the inquiry into suppression of the evidence analysis does
not end there. We must now engage in a de novo review to determine if the circuit
court erred as a matter of law in its application of the facts to the law, and pursuant
to Strieff, 136 S. Ct. 2056, we conclude it did.
Under the mandates of Strieff, we must address “whether the
discovery of a valid arrest warrant was a sufficient intervening event to break the
causal chain between the unlawful stop and the discovery of drug-related
evidence[.]” Id. at 2061. To make that determination, we turn to the factors
enumerated in Brown v. Illinois, 422 U.S. 590, 95 S. Ct. 2254, 45 L. Ed. 2d 416(1975).
First, we look at the temporal proximity of the illegal seizure and the
discovery of the drug-related evidence. Id. at 603. This factor weighs in favor of
suppression because the record shows that Sgt. Waltz arrived at the Valero at 12:48
7
There is no evidence in the record before us that the Valero gas station was in a high crime area
or that the store had recently been the victim of criminal activity. Further, there is nothing in the
record before us that demonstrates the owner or employees had asked Skaggs to leave before
calling the police. The record is also devoid of any indication that there were “no trespassing” or
other signs to warn the public that it was impermissible to be in the parking lot after hours. See
Howard v. Spradlin, 562 S.W.3d 281, 285 (Ky. App. 2018).
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a.m. on May 24, 2019, and Skaggs was subsequently arrested at 1:31 a.m. Brown
instructs that a short time interval favors suppression. Id. at 604.
The second Brown factor asks whether there were intervening
circumstances involved. The facts in the instant case are very similar to those in
Strieff, wherein “the warrant was valid, it predated [the officer’s] investigation, and
it was entirely unconnected with the stop. And once [the officer] discovered the
warrant, he had an obligation to arrest Strieff.” Strieff, 136 S. Ct. at 2062. Further,
the officer’s “arrest of Strieff thus was a ministerial act that was independently
compelled by the pre-existing warrant. And once [the officer] was authorized to
arrest Strieff, it was undisputedly lawful to search Strieff as an incident of his
arrest to protect [the officer’s] safety.” Id. at 2063. The facts herein are virtually
indistinguishable. Therefore, this factor weighs in favor of admitting the evidence.
Finally, we turn to the third factor, which is “the purpose and
flagrancy of the official misconduct.” Brown, 422 U.S. at 604, 95 S. Ct. at 2262.
“For the violation to be flagrant, more severe police misconduct is required than
the mere absence of proper cause for the seizure.” Strieff, 136 S. Ct. at 2064. In
examining the record before us, there is no indication that Sgt. Waltz acted in what
can be described as anything other than good faith. He responded to a dispatch
regarding a suspicious vehicle after hours at the Valero gas station. While it is true
that he could have asked for Skaggs’ identification without ordering her from the
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vehicle, this hardly rises to a purposeful and flagrant violation of Skaggs’ Fourth
Amendment rights. This factor weighs in favor of admitting the evidence.
While Sgt. Waltz’s initial seizure of Skaggs was without reasonable
suspicion and was constitutionally unsound, Strieff compels us to conclude that his
conduct thereafter was lawful, including running Skaggs’ identification through
dispatch to check for outstanding warrants. Id. at 2063 (citation omitted). The
discovery of the arrest warrant broke the causal chain between the unconstitutional
stop and the discovery of the evidence of issue. Thus, any evidence located after
the discovery of the arrest warrant is not fruit of the poisonous tree and should not
be suppressed.
Regarding statements and admissions made by Skaggs (e.g., that she
sold methamphetamine to support her own habit and that there were scales in her
vehicle), we conclude that substantial evidence of record supports the circuit
court’s findings that those were voluntary and not made as a result of custodial
investigation in violation of Miranda v. Arizona, 384 U.S. 436, 440, 86 S. Ct.
1602, 1610, 16 L. Ed. 2d 694 (1966). However, the circuit court nevertheless
suppressed the statements because they were made in response to the “warrantless
and unreasonable detainment” of Skaggs and were fruit of the poisonous tree.
Under the strength of Strieff and the analysis undertaken herein, we hold that
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conclusion to be erroneous.8 Hence, the suppression of Skaggs’ admissions and
statements is not warranted.
Conclusion
The findings of fact of the circuit court regarding the initial seizure of
Skaggs were supported by substantial evidence. However, because the circuit
court failed to apply the doctrine of attenuation to its analysis of whether the search
and seizure was illegal under the Fourth Amendment to the United States
Constitution and Section 10 of the Kentucky Constitution, we conclude that
suppression of the evidence under review was not warranted. Accordingly, we
vacate the decision of the Rowan Circuit Court and remand for proceedings not
inconsistent with this opinion.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Daniel Cameron Erin Hoffman Yang
Attorney General of Kentucky Frankfort, Kentucky
Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky
8
In its brief to this Court, Skaggs argues that her statements occurred in violation of Miranda
and should be suppressed for that reason. However, Skaggs did not file a cross-appeal on the
issue; therefore, we shall not address it.
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