RENDERED : NOVEMBER 26, 2008
TO BE PUBLISHED
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2007-SC-000328-DG
BRIAN STRANGE APPELLANT
ON REVIEW FROM COURT OF APPEALS
V. CASE NO . 2006-CA-000741-MR
FAYETTE CIRCUIT COURT NO . 05-CR-00815
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT BY JUSTICE VENTERS
REVERSING AND REMANDING
Appellant, Brian Colby Strange, entered a conditional guilty plea to one
count of possession of a controlled substance, first-degree and one count of
possession of a prescription controlled substance in an improper container. He
was sentenced to terms of imprisonment of five years and twelve months,
respectively, to be probated for five years . In so pleading, Appellant preserved
his right to appeal the ruling of the Fayette Circuit Court which overruled his
motion to suppress evidence obtained during a pat down search of his person.
The Court of Appeals affirmed the trial court's decision. We now reverse the
decision of the Court of Appeals .
Our review of a motion to suppress is conducted de novo to determine
whether the decisions of the trial court and the Court of Appeals are correct as
a matter of law, but we defer to the trial court's findings of fact to the extent
they are supported by substantial evidence . Commonwealth v. Welch, 149
S .W.3d 407, 409-410 (Ky. 2004); Commonwealth v. Whitmore, 92 S.W .3d 76,
79 (Ky. 2002) . Factual findings are reviewed under a "clearly erroneous"
standard. Tucker v. Commonwealth, 199 S.W.3d 754, 756 (Ky. App. 2006) .
RELEVANT FACTS
On the evening of April 11, 2005, Officers Hall and Olivares patrolled in
separate police cruisers an area of Lexington known to police for prostitution
and illegal drug activity . A few minutes after 11 :00 pm, the two officers,
traveling one behind the other at the corner of Etawah and Augusta Drive, saw
a van parked a few feet from a payphone . Standing between the phone and the
van was Appellant. Both officers testified that they routinely stopped to
question everyone out at that time of night in that neighborhood .
Therefore, they immediately turned around and returned to find
Appellant standing beside the van, conversing with the driver. Officer Hall
approached and immediately directed him to move away from the van . Officer
Hall testified, "We [Hall and Olivares] separated them," and "I moved him
[Appellant]" from beside the van to beside the police cruiser, which was parked
a few yards away. Officer Olivares approached the driver of the van to speak
with him. Once away from the van, Officer Hall noted that Appellant seemed
nervous . He asked Appellant for his name and what he was doing in that area.
Appellant replied that he was visiting a family friend who had been in the
hospital . Officer Hall noticed a bulge in Appellant's pants pocket. Concerned
that it may be a weapon, Officer Hall conducted a protective pat down of
Appellant's clothing. Satisfied that the bulge was not a weapon, Officer Hall
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asked Appellant to identify the object in his pocket. Appellant said he did not
know what the object was. Officer Hall received permission from Appellant to
remove the object, which turned out to be an unmarked prescription bottle
containing twelve Oxycontin and five Xanex pills. Officer Hall then formally
placed Appellant under arrest . The driver of the van was not charged .
Appellant moved to suppress the evidence taken from his pocket, on the
grounds that he had been stopped and frisked by the police without sufficient
cause . The trial court conducted an evidentiary hearing pursuant to RCr 9 .78 .
The only evidence presented at the hearing was the testimony of Officers Hall
and Olivares.
Immediately following the presentation of evidence, the trial judge made
two findings of fact which he concluded justified the detention of Appellant and
the pat down which led to the discovery of the drugs. Those facts are that
Appellant was in a neighborhood known for criminal activity late at night and
what the trial court referred to as Appellant's "initial reaction" to the arrival of
the police vehicles. The trial judge did not describe that "initial reaction" in
any detail, but it is obvious that the judge adopted as his finding the
descriptions of Appellant's behavior provided by the two officers . That is,
Appellant's movement from his position between the payphone and the van, to
the driver side window of the van as the police passed by.
The proper legal standard to analyze the detention of Appellant by the
police is whether from the totality of circumstances then apparent to the
officers, whether there was articulable reasonable suspicion that either
Appellant or the van driver had been or were about to be involved in criminal
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conduct. U .S . v. Cortez , 449 U .S . 411 (1981) . Using this appropriate
standard, the trial court concluded that such suspicion existed and overruled
the motion to suppress . The Court of Appeals affirmed the trial court's ruling,
and in doing so, added the following facts as relevant considerations : that
Appellant acted nervous during his conversation with Officer Hall ; that
Appellant's reason for being in the neighborhood differed from the reason given
by the driver of the van, and that Appellant's movement toward the van upon
seeing the police was done "evasively ."
Having carefully reviewed the evidence presented at the hearing, and
the trial court's oral findings of fact, we conclude that the overruling of the
motion to suppress must be reversed. We find that one of the two facts cited
by the trial court is not supported by substantial evidence and as a matter of
law, the other fact standing alone is insufficient to constitute articulable
reasonable suspicion .
ANALYSIS
Since the decision in Terry v. Ohio, 392 U .S . 1 (1968), it has been well
established that the brief detention of a person by a police officer may
constitute a seizure within the meaning of the Fourth Amendment of the
United States Constitution, and as such may properly be undertaken only if
the police officer has a reasonable suspicion based upon objective, articulable
facts that criminal activity is afoot. See Henson v . Commonwealth , 245 S.W.3d
745 (Ky. 2008) ; Fletch er v . Commonwealth, 182 S .W .3d 556 (Ky. App. 2005) ;
Docksteader v. Commonwealth 802 S .W.2d 149, 150 (Ky. App . 1991) . We
have recognized however, that not every interaction on the streets between a
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police officer and a private citizen rises to the level of an investigatory stop with
all of its Constitutional ramifications. We held in Commonwealth v. Banks, 68
S .W.3d 347, 350 (Ky. 2001), that "[p]olice- officers are free to approach anyone
in public areas for any reason," and that "[o]fficers are entitled to the same
freedom of movement that the rest of society enjoys ." Id . No "Terry" stop
occurs when police officers engage a person on the street in conversation by
asking questions . Florida v. Royer2 460 U .S . 491 (1983) . Thus, the decision of
the officers to approach and engage Appellant and the van driver cannot be
challenged .
However, the nature of the encounter between the Appellant and the
officers changed at the moment Officer Hall directed Appellant to move away
from the van and over to the police cruiser. At that point, Officer Hall exercised
substantial control over Appellant's person, and limited Appellant's freedom of
movement.
The Commonwealth argues that the officers merely asked Appellant to
walk away from the van, and that such a request cannot constitute a seizure.
The testimony, however, reveals otherwise, and it is clear that the trial court
recognized that moment as the point at which the seizure of Appellant
occurred . Officer Hall's assertion that "we separated them" and that "I moved
him [Appellant]" away from the van established beyond dispute that he took
control of Appellant and expected compliance .
When police officers, by means of physical force or show of authority, in
some way restrain the liberty of a citizen, a "seizure" of that person has
occurred . The United States Supreme Court in United States v . Mendenhall,
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446 U.S . 544 (1980), and this Court in Baker v. Commonwealth, 5 S .W . 3d 142
(Ky . 1999), held that a person has been seized in the constitutional sense
when, in view of all of the circumstances surrounding the incident, a
reasonable person would have believed that he or she was not free to leave.
See also Henson, 245 S .W.3d at 747 . A reasonable person, in a high crime
neighborhood late in the evening, would not and should not reasonably feel free
to resist a police officer's order to move . Citizens are encouraged to comply
with reasonable police directives, and the police should be permitted to expect
reasonable compliance with reasonable demands . Appellant was directed to
move over to the police cruiser, and he apparently did so promptly and
peacefully. His passive compliance with the policeman's order cannot convert
that order into a request which Appellant, or any citizen, should feel free to
resist.
Having determined that Appellant was seized for Fourth Amendment
purposes, we must decide whether the officers had an articulable reasonable
suspicion that criminal activity was afoot based upon the facts in existence at
that time. The only facts articulated by Officers Hall and Olivares as existing
prior to the seizure are those cited by the trial judge at the conclusion of the
hearing. Appellant was in a public area known for criminal activity, late at
night, standing near a pay phone that has sometimes been used in drug
transactions, and when he saw the officers, he walked quickly to the van
parked a few steps away. Additional factors cited by the Court of Appeals - his
apparent nervousness, that he and the van driver gave differing reasons for
being there, and the bulge in the pants - did not become known until after the
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seizure and cannot therefore be factors articulated to justify the
reasonableness of the seizure .
The trial court's finding that Appellant's "initial reaction" to the police
presence was suspicious is not supported by substantial evidence . Nor does
the evidence support the Court of Appeals' conclusion that Appellant had
"evasively turned" . The record indicates that the van was no more than a few
steps from the phone . Officer Hall testified that when he first saw Appellant, he
was walking toward the van. Later in his testimony, Officer Hall stated three
times that he first saw Appellant standing between the van and the phone a
few feet away. By the time he and Officer Olivares returned, Appellant was
standing beside the van's driver side window. Officer Hall never said that he
saw Appellant turn, and he never described Appellant's movement as "evasive."
Officer Olivares added only that when he first saw him, Appellant was
"standing" between the van and the payphone, and that as the officers passed
by, Appellant "walked real quickly" toward the driver side of the van, where he
was standing when they returned a few moments later. The officers articulated
nothing about Appellant's movement to explain why it seemed suspicious,
beyond the general suspicion they have for everyone out at that time of night in
that neighborhood . The movement described by the officers did not indicate
that Appellant intended to hide or to conceal his appearance . It did not
suggest an effort to run away or to elude the police. It did not indicate any
reason to suspect that evidence or contraband was being carried, discarded, or
hidden. The officers gave no explanation of Appellant's movement to
distinguish it from any other action he might have made, sinister or innocent.
Without the articulation of facts showing how the movement was suspicious,
or, as the Court of Appeals termed it, "evasive," the Terry requirement is not
satisfied . See Joshua v. DeWitt, 341 F.3d 430, 443-444 (6th Cir. 2003)
(concluding that simply characterizing conduct of a suspect as a "furtive
gesture" was mere opinion, insufficient to justify a Terry stop without specific,
articulable facts in the record to explain it) . Likewise, we must conclude that
the lack of evidence in the record to support a finding that Appellant's
movement was suspicious renders that movement unavailable as a factor to
support Appellant's seizure. We recognize that police officers have training and
experience that may enable them at times to see suspicious behavior that goes
unnoticed to the untrained eye . That training and experience, however, should
enable them to articulate the factors that aroused their suspicion. That has
simply not been done here .
Without conduct that can truly be deemed suspicious, the only factor
from which reasonable suspicion is articulated here is Appellant's presence in
a high crime area at night. That mere presence alone is not sufficient evidence
to justify an investigatory stop and seizure. Illinois v . Wardlow, 528 U .S. 119
(2000) . The officers acknowledged that in that area they stop and talk to
everyone they see out at that time of night. Doing so may be a good police
practice, and as stated above, they are free to do so. See Banks, 68 S .W.3d at
350 . Undoubtedly, that involvement with citizens deters some from committing
crimes and it surely on occasion enables the police to obtain information
helpful in the law enforcement effort . But, when the police take control over a
citizen's person, and limit the movement of that citizen, as they did with
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Appellant, the Fourth Amendment is involved and they must be able to
articulate the grounds for their suspicion .
CONCLUSION
Because the seizure of Appellant was not based on articulable reasonable
suspicion and it transgressed Appellant's rights under the Fourth Amendment,
the subsequent pat down and recovery of the prescription medications was
improper and the evidence so derived should have been suppressed,
notwithstanding Appellant's consent to the search of his pocket. Such an
unwarranted detention or seizure tainted the subsequent consent obtained for
searching his pocket, rendering inadmissible the evidence thereby obtained .
Royer , 460 U.S. 491 ; See also Matheney v. Commonwealth , 191 S.W .3d 599
(Ky. 2006) and Henson, 245 S .W.3d at 751 . We reverse the Court of Appeals
decision and remand this case for further proceedings consistent with this
opinion.
All sitting . All concur.
COUNSEL FOR APPELLANT:
V. Gene Lewter
Department Of Public Advocacy
100 Fair Oaks Lane
Frankfort, KY 40601
COUNSEL FOR APPELLEE:
Jack Conway
Attorney General
Room 118, Capitol Building
Frankfort, KY 40601
Michael Louis Harned
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601-8204