RENDERED: SEPTEMBER 4, 2020; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-000482-MR
ANTHONY CHAMBERS APPELLANT
APPEAL FROM MADISON CIRCUIT COURT
v. HONORABLE BRANDY OLIVER BROWN, JUDGE
ACTION NO. 18-CR-00150
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
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BEFORE: CLAYTON, CHIEF JUDGE; DIXON AND MAZE, JUDGES.
MAZE, JUDGE: Anthony Chambers appeals from a judgment of conviction by
the Madison Circuit Court following a conditional guilty plea pursuant to RCr1
8.09. He argues that the trial court erred by denying his motion to suppress
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Kentucky Rules of Criminal Procedure.
evidence obtained during a traffic stop and pat-down search. We conclude that the
officers had a reasonable and articulable suspicion of criminal activity sufficient to
warrant both the stop and pat-down search. We further conclude that the evidence
was properly subject to seizure under the plain-feel and plain-view exceptions.
Hence, we affirm.
On February 21, 2018, a Madison County grand jury returned an
indictment charging Chambers with first-degree trafficking in a controlled
substance, less than four grams cocaine, and being a persistent felony offender in
the first degree (PFO I). Thereafter, Chambers filed a motion to suppress evidence
seized from him during a traffic stop. The trial court then conducted a suppression
hearing at which the following evidence was presented.
During the afternoon of January 17, 2018, deputies from the Madison
County Sheriff’s Office were investigating complaints of drug activity at an
apartment on Turpin Drive in Richmond. Deputy Kevin Crutcher observed a high
volume of traffic in and out of the apartment. At one point, Deputy Crutcher saw a
white female pull up in a car, get out, and enter the apartment. A few minutes
later, he saw the female leave the residence with a black male. The two got into
the female’s car and left.
Deputy Crutcher followed the car and decided to stop the vehicle. As
soon as the vehicle came to a stop, the passenger door opened and the male ran.
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Deputy Crutcher pursued the male on foot, but lost sight of him after a short chase.
Deputy Crutcher returned to the vehicle and spoke to the female driver, who told
him that the male’s name was D’Anthony Chambers. The female also advised that
the male did not have a firearm. Deputy Crutcher radioed in his description of the
subject as “Anthony Chambers,” a black male in his early-to-mid twenties, wearing
loose grey sweatpants and a grey sweatshirt. He further reported that the suspect
was heading in the direction of the Eastern Hills neighborhood. A few minutes
later, Deputy Crutcher corrected the name to “D’Anthony Chambers.”
Deputy Mike Carmen was at the Sheriff’s Office when he heard the
call from Deputy Crutcher. He drove out toward Eastern Hills, where he met up
with Sergeant Devin Thomas of the Richmond Police Department. While
patrolling the area, Deputy Carmen noticed a silver Cadillac pull up to an
intersection and stop at a stop sign. The driver looked at Deputy Carmen, then
made a right-hand turn back into Eastern Hills. Both Deputy Carmen and Sgt.
Thomas believed that the right-hand turn was unusual because the street was a loop
leading back to the same intersection. The Cadillac returned to the stop sign and
made a left turn toward the exit of the Eastern Hills neighborhood. As the vehicle
passed his position, Deputy Carmen saw two black males, one wearing a grey
sweatsuit jacket.
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At 3:27 p.m., approximately twenty-two minutes after receiving the
initial report, Deputy Carmen activated his emergency lights and stopped the
Cadillac. He and Sgt. Thomas approached the vehicle. Deputy Carmen again
noticed that the driver was wearing a grey sweatsuit. He asked the driver if his
name was Anthony Chambers. The driver was initially hesitant to answer and
refused to turn off the vehicle until directed by the officers. After turning off the
ignition, the driver answered that his name was Anthony Chambers. The officers
directed the men to get out of the vehicle. The officers noted that Chambers was
wearing grey sweatpants.
Sgt. Thomas then handcuffed Chambers and conducted a pat-down
search. He observed several items in Chambers’ pocket and felt a large bulge.
Upon extracting the items, Sgt. Thomas found $1,420 in cash, mostly in $20 bills,
and a bag containing a white, powdery substance. The substance later tested
positive as 20 grams of cocaine. Deputy Crutcher arrived at the scene and advised
the officers that Chambers was not the person he had seen fleeing the earlier scene.
After considering the evidence presented at the hearing, the trial court
denied the motion to suppress. The court noted that the driver of the vehicle
matched the general description of the suspect who fled the earlier stop. In
addition, the officers spotted the vehicle in the vicinity where the suspect was
heading. The court also relied upon the officers’ observations that the driver was
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acting oddly, turning back onto a subdivision loop after seeing the police cars.
And the court also noted the driver’s lack of cooperation once the vehicle was
stopped. Based on the totality of the circumstances, the court concluded that the
officers had a reasonable and articulable suspicion for the investigatory stop. For
the same reasons, the court found that the officers were justified in conducting the
pat-down search of Chambers.
Thereafter, Chambers entered a conditional guilty plea to trafficking
in a controlled substance and an amended count of PFO II, reserving his right to
appeal the denial of his suppression motion. The trial court sentenced Chambers to
a total of ten years’ imprisonment. This appeal followed.
RCr 8.27 sets out the procedure for conducting a suppression hearing.
When the trial court conducts a hearing, our standard of review is two-fold. “First,
the factual findings of the court are conclusive if they are supported by substantial
evidence[;]” and second, this Court conducts “a de novo review to determine
whether the [trial] court’s decision is correct as a matter of law.” Stewart v.
Commonwealth, 44 S.W.3d 376, 380 (Ky. App. 2000) (citing Adcock v.
Commonwealth, 967 S.W.2d 6, 8 (Ky. 1998) and Commonwealth v. Opell, 3
S.W.3d 747, 751 (Ky. App. 1999)).
Chambers first argues that the police lacked a reasonable and
articulable suspicion to stop his vehicle. In Terry v. Ohio, 392 U.S. 1, 88 S. Ct.
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1868, 20 L. Ed. 2d 889 (1968), the United States Supreme Court recognized an
exception to the warrant requirement by sanctioning both investigatory stops and
limited pat-down searches of suspects. When there is a reasonable suspicion that
criminal activity is afoot, a police officer may briefly detain an individual on the
street, even though there is no probable cause to arrest him. Id., 392 U.S. at 30-31,
88 S. Ct. at 1884-85. But to justify a stop, the officer must be able to articulate
more than a mere “inchoate and unparticularized suspicion or ‘hunch[.]’” Id., 392
U.S. at 27, 88 S. Ct. at 1883.
Rather, the objective justification for the officer’s actions must be
measured in light of the totality of the circumstances. See United States v.
Sokolow, 490 U.S. 1, 8, 109 S. Ct. 1581, 1585-86, 104 L. Ed. 2d 1 (1989). When
considering the totality of the circumstances, a reviewing court should take care
not to view the factors upon which police officers rely to create reasonable
suspicion in isolation. Courts must consider all of the officers’ observations and
give due weight to the inferences and deductions drawn by trained law
enforcement officers. United States v. Arvizu, 534 U.S. 266, 273-74, 122 S. Ct.
744, 750-51, 151 L. Ed. 2d 740 (2002). Furthermore, the likelihood of criminal
activity need not rise to the level required for probable cause and “it falls
considerably short of satisfying a preponderance of the evidence standard.”
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Commonwealth v. Marr, 250 S.W.3d 624, 627 (Ky. 2008) (quoting Arvizu, 534
U.S. at 274, 122 S. Ct. at 751).
Chambers argues that the vague and general description provided by
Deputy Crutcher was insufficient to provide Deputy Carmen reasonable suspicion
that the driver of the Cadillac was the person who fled the earlier stop. We agree
that the mere similarity in clothing worn by Chambers and the fleeing suspect was
not sufficient, standing alone, to support a Terry stop. See Collins v.
Commonwealth, 142 S.W.3d 113, 116 (Ky. 2004). However, Deputy Carmen and
Sgt. Thomas noted additional factors to support their decision to stop the vehicle.
Most notably, Deputy Carmen observed Chambers turn onto a closed
loop back into the Eastern Hills subdivision after seeing the police car. This
conduct could be interpreted as either an attempt to avoid the police or a lack of
familiarity with the area. Either interpretation would be consistent with the
description of a suspect who had fled toward the Eastern Hills neighborhood. The
fact that this behavior may have an innocent explanation did not deprive the police
of the ability to entertain a reasonable suspicion that criminal activity had occurred.
Simpson v. Commonwealth, 834 S.W.2d 686, 688 (Ky. App. 1992). When
considered with the close time frame and the similar clothing, we conclude that the
officers based the stop on more than a hunch.
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We also agree with the trial court that Chambers’ behavior following
the stop justified the pat-down search. Chambers appeared to be nervous, refused
to turn the car off, and was hesitant to give his name. In addition, he identified
himself as “Anthony Chambers,” which was the name of the fleeing suspect that
Deputy Crutcher initially reported. Although Deputy Crutcher reported that his
suspect did not have a weapon, the fact that Chambers was driving a vehicle with a
passenger supported an inference that he may have acquired one. In light of the
totality of the circumstances, we conclude that Sgt. Thomas had a reasonable and
articulable suspicion to warrant the pat-down search.
Finally, Chambers argues that the pat-down search exceeded the
reasonable scope necessary to determine whether he had a weapon. Frisking a
suspect during a Terry stop is strictly limited to that which is necessary for the
discovery of weapons which might be used to harm the officer or others nearby.
Commonwealth v. Crowder, 884 S.W.2d 649, 651 (Ky. 1994). Chambers contends
that the lump in his pocket felt by Sgt. Thomas was plainly not a weapon.
Consequently, Chambers argues that Sgt. Thomas’ removal of the items from his
pocket was unreasonable and requires suppression of the evidence.
However, “[w]hen a police officer lawfully pats down the outer
clothing of a suspect and feels an object whose contour or mass makes its identity
immediately apparent, there is no violation of privacy beyond that already
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permitted by the patdown search for weapons.” Commonwealth v. Whitmore, 92
S.W.3d 76, 80 (Ky. 2002) (citing Minnesota v. Dickerson, 508 U.S. 366, 113 S. Ct.
2130, 124 L. Ed. 2d 334 (1993)). In this case, Sgt. Thomas testified that he could
see the cash and bag of cocaine through the loose opening in Chambers’ pocket. In
light of his plain feel and view of the items, Sgt. Thomas did not exceed the scope
of a Terry pat-down by removing the items once he could clearly identify them as
contraband. Therefore, the trial court did not err by denying the motion to
suppress the evidence seized.
Accordingly, we affirm the judgment of the Madison Circuit Court.
DIXON, JUDGE, CONCURS.
CLAYTON, CHIEF JUDGE, CONCURS IN RESULT ONLY.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Aaron Reed Baker Daniel Cameron
Frankfort, Kentucky Attorney General of Kentucky
M. Brandon Roberts
Assistant Attorney General
Frankfort, Kentucky
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