RENDERED: SEPTEMBER 23, 2010
TO BE PUBLISHED
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2007-SC-000123-DG
2007-SC-000603-DG
BAT [EL04_q_1bRNAa.l~c ks
HEATHER ROSE APPELLANT/ CROSS-APPELLEE
ON REVIEW FROM COURT OF APPEALS
V. CASE NO. 2005-CA-001211-MR
ESTILL CIRCUIT COURT NO . 04-CR-00003
COMMONWEALTH OF KENTUCKY APPELLEE/ CROSS-APPELLANT
OPINION OF THE COURT BY JUSTICE SCOTT
REVERSING
On May 17, 2005, the Estill Circuit Court entered an order suppressing
the fruits of a vehicle search conducted incident to the arrest of Heather Rose,
Appellant. The evidence directly implicated Appellant in four counts of
Possession of Stolen Mail Matter and three counts of Criminal Possession of a
Forged Instrument in the second degree . On direct appeal to the Kentucky
Court of Appeals, the Commonwealth successfully argued that the trial court's
order ran awry of established Fourth Amendment precedent of the United
States Supreme Court. The Court of Appeals issued an opinion reversing the
Estill Circuit Court's suppression order, finding the search reasonable as
incident to an arrest. We granted discretionary review to determine the
correctness of that opinion, and now reverse the Court of Appeals .l
Facts
On November 19, 2003, Estill County Deputy Sheriff, Kevin Hardy,
proceeded to Appellant's home, intending to arrest her pursuant to two arrest
warrans2 and to question her regarding certain stolen checks. En route,
Hardy noticed a vehicle driven by Danny Rose, Appellant's spouse, and
recognized the passenger in the vehicle as Appellant. As he observed the
vehicle, he witnessed Appellant's "head go down into the seat."
After stopping the vehicle, Hardy discovered that Appellant was no longer
in the passenger compartment and that "the back seats of the vehicle had a
little gap between them and the trunk ." Hardy further testified that he
"thought she probably had laid those seats down and climbed into the trunk."
Hardy's suspicions were confirmed when Appellant's spouse admitted that his
wife was in the trunk of the vehicle . Hardy then removed Appellant via the
back seat entrance to the trunk, and executed the two outstanding warrants
for her arrest.
Upon securing Appellant in the back of his cruiser, Hardy obtained Mr.
Rose's consent to search the vehicle where he found a purse, a little leather
1 After granting Appellant's motion for discretionary review to decide whether the
Court of Appeals correctly determined that the search was valid as a search
incident to arrest, the Commonwealth filed a cross-appeal which we also granted.
However, both address essentially the same issue disposed of herein.
2 Although there was testimony regarding one of the warrants (issued for traffic
fines), the record is unclear regarding the second warrant.
bag, and a change purse. A further search of these items yielded checks,
which Appellant admitted derived from stolen mail.
Subsequently, the Commonwealth charged Appellant with various counts
of Possession of Stolen Mail Matter and Criminal Possession of a Forged
Instrument in the second degree, violations of KRS 514.150 and KRS 516 .060.
After pleading not guilty, Appellant moved to suppress the contents of the
purse, bag, and change purse, arguing that they were the products of an
unconstitutional search under the Fourth Amendment of the United States
Constitution and under Section Ten of the Kentucky Constitution . Appellant
specifically asked the trial court to find the search unreasonable because,
among other reasons, Appellant was not near the vehicle at the time of the
search and because Hardy testified that he never felt that he was in danger.
The Commonwealth reasoned that the search was incident to an arrest and,
furthermore, was constitutional because Appellant's spouse consented to
Hardy's request to search the vehicle . 3
After ordering the parties to brief the issue, the trial court held the
search unreasonable and granted Appellant's motion to suppress . In support
of its decision, the trial court reasoned that the search was not incident to
arrest because "that is not what the Deputy testified to." The trial court
further found that although Mr. Rose consented to the search of the vehicle,
there was no evidence to support the notion that Mr. Rose possessed the
3 Although Appellant argued lack of consent before the trial court and it was
mentioned in the Court of Appeals' opinion, neither the Commonwealth nor the
Appellant raised this issue before this Court.
authority to, give Hardy permission to search his wife's possessions . The
Commonwealth sought review as a matter of right in the Kentucky Court of
Appeals .
Aptly relying on New York v. Belton, 453 U.S . 454 (1981), the Court of
Appeals reversed the Estill Circuit Court, reasoning that the search in this case
was incident to Appellant's lawful arrest because she was a recent occupant of
the vehicle . We subsequently granted discretionary review .
After we granted review, but before we decided the issue, the United
States Supreme Court granted a writ of certiorari in State v. Gant, 162 P.3d
640 (Ariz. 2007) . That case involved facts markedly similar to those here-the
search of a vehicle, allegedly incident to an arrest, after officers secured the
arrestees in the back of a patrol car. In light of the factual and legal
similarities, we ordered this matter held in abeyance pending a ruling from our
federal counterpart.
In the mean time, however, we rendered an opinion in Henry v.
Commonwealth, 275 S.W .3d 194 (Ky. 2008) . There, this Court, like the Court
of Appeals in this case, rejected the appellant's argument that because "he was
in the back of the police cruiser and could not reach into his vehicle either to
arm himself or to destroy evidence, the grounds for a Belton search did not
exist and the search of his vehicle was therefore unlawful." Henry, 275 S .W.3d
at 200-01 . Indeed, in Henry, we relied upon several previous decisions from
this Court which rejected identical arguments to those made here . See, e.g.,
Rainey v. Commonwealth, 197 S .W.3d 89 (Ky . 2006) ; Penman v.
Commonwealth, 194 S.W.3d 237 (Ky. 2006) .
Following Henry, the United States Supreme Court decided Arizona v.
Gant, 129 S .Ct. 1710 (2009), redefining the constitutional analysis
surrounding the search of a vehicle incident to the arrest of a recent occupant .
This approach, as discussed below, directly contradicts our existing
jurisprudence on the subject. Thus, we now find it necessary to bring the
jurisprudence of this Commonwealth into compliance with. that of our nation's
highest court.
In Chimel v. California, 395 U .S. 752 (1969), the United States Supreme
Court held "that a search incident to arrest may only include the arrestee's
person and the area within his immediate control-construing that phrase to
mean the area from within which he might gain possession of a weapon or
destructible evidence ." Gant, 129 S.Ct. at 1716 (citing Chimel, 395 U.S . at 763)
(internal quotations omitted) . Just over a decade later, the Supreme Court
expanded the scope of Chimel, reading it to encompass not only vehicle
searches incident to the arrest of a recent occupant, but searches of any
containers enclosed therein. Belton, 453 U.S . 454 . And in a more recent case,
the Supreme Court interpreted its Belton decision to mean: "when a police
officer makes a lawful custodial arrest of an automobile's occupant, the Fourth
Amendment allows the officer to search the vehicle's passenger compartment
as a contemporaneous incident of arrest." Thomton v. United States, 541 U .S.
at 615 (2004) . In Thornton, the Supreme Court, citing a need for a bright-line
rule, held that Belton applies even when the officers do not make contact with
the arrestee until after he has exited the vehicle . Id. at 617. As a result of
Chimel's progeny, a plethora of courts have now construed the Fourth
Amendment of the United States Constitution and Belton as allowing a vehicle
search incident to the arrest of a recent occupant "even if there is no possibility
the arrestee could gain access to the vehicle at the time of the search." Gant,
129 S.Ct. at 1718.
Concerned with the "clarity" of Belton and questioning its "fidelity to
Fourth Amendment principles," a chorus of voices, including many courts and
scholars, implored the Supreme Court to revisit the line of cases controlling
vehicle searches incident to arrest . Id. at 1716 . Among them was Arizona in
the matter of State v. Gant, 162 P .3d 640 .
In Gant, police officers arrested a defendant for driving on a suspended
license, handcuffed him, and placed him in the back of a patrol car. 129 S.Ct.
at 1714 . After securing Gant, the police searched his vehicle and discovered
incriminating evidence in the pocket of a jacket on the backseat. Id. Following
various lower court rulings, the Arizona Supreme Court ordered the evidence
suppressed, relying on the fact that Gant "could not have accessed his car to
retrieve weapons or evidence at the time of the search." Id. In support of its
decision, that court distinguished Belton "as a case concerning the permissible
scope of a vehicle search incident to arrest and concluded that it did not
answer the threshold question whether the police may conduct a search
incident to arrest at all once the scene is secure ." Id. at 1715 (internal
quotations and citations omitted) .
On certiorari, and agreeing with the Arizona court, the United States
Supreme Court noted Justice O'Connor's observation in Thomton that: "lower
court decisions seem now to treat the ability to search a vehicle incident to the
arrest of a recent occupant as a police entitlement rather than as an exception
justified by the twin rationales of Chimel." Gant, 129 S .Ct . at 1718 (citing
Thornton, 541 U.S . at 624 (O'Connor, J ., concurring in part)) . In rejecting the
notion that police possessed such entitlement, the Court noted that the central
concern of the Fourth Amendment was to prevent "giving police officers
unbridled discretion to rummage at will among a person's private effects."
Gant, 129 S.Ct. at 1720. With this concern in mind, the Court held that a
broad application of Belton, which allows vehicle searches incident to any
arrest, as "anathema to the Fourth Amendment ." Id. at 1722 . The Court
reasoned that the exceptions created in Belton were for "genuine [officer] safety
or evidentiary concerns encountered during the arrest of a vehicle's recent
occupant" and concluded that where "there is no possibility that an arrestee
could reach into the area that law enforcement officers seek to search, both
justifications for the search-incident-to-arrest exception are absent and the
rule does not apply." Id. at 1716.
However, just short of ending its analysis, the Court found it pertinent to
note that when considering the constitutionality of a vehicle search incident to
the arrest of a recent occupant, a court may find the search constitutional even
where the arrestee is secured if "it is reasonable to believe evidence relevant to
the crime of arrest might be found in the vehicle ." Id . at 1714 (emphasis added) .
With these principles in mind, we turn to the case at bar.
In this case, at the time of the search, Appellant was secured in the back
of Hardy's cruiser. As a result, there was no possibility Appellant could have
gained access to the vehicle to destroy evidence or to access a weapon .
Therefore, in light of the Supreme Court's ruling in Gant, we hold the search
unconstitutional. To the extent that our decisions in Rainey, Henry, Penman,
or any other cases promulgated by this Court conflict with Gant, they are
expressly overruled.
With regard to Gant's alternative rule-that an officer may search a
vehicle even when the arrestee is secured if he has a reasonable suspicion that
the vehicle harbors evidence of the crime of arrest-we are satisfied that Hardy
did not possess the requisite reasonable suspicion. As the record reveals,
Hardy directly testified that he was not searching the vehicle in an attempt to
locate evidence relating to the two warrants . Thus, we cannot conclude that
the search satisfies constitutional muster under Gant's alternative analysis.
Therefore, we hold that the search in this case was unconstitutional and the
evidence procured the fruit of a poisonous tree .
For the foregoing reasons, the opinion of the Court of Appeals is reversed
and the order suppressing the evidence is reinstated.
All sitting. All concur.
COUNSEL FOR APPELLANT/ CROSS-APPELLEE :
Joseph Brandon Pigg
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601
COUNSEL FOR APPELLEE/ CROSS-APPELLANT:
Jack Conway
Attorney General of Kentuc
Jeffrey Allan Cross
Criminal Appellate Division
Office of the' Attorney General
1024 Capital Center Drive
Frankfort, KY 40601
Heather Rose v. Commonwealth of Kentucky
Combined Opinion