Adam Gray v. Commonwealth of Kentucky

• Court: Court of Appeals of Kentucky
• Decided: July 27, 2023
• Docket: 2022 CA 001085
• Status: Unknown

Opinion

RENDERED: JULY 28, 2023; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2022-CA-1085-MR

ADAM GRAY APPELLANT

APPEAL FROM HOPKINS CIRCUIT COURT v. HONORABLE CHRISTOPHER BRYAN OGLESBY, JUDGE ACTION NO. 21-CR-00262

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION AFFIRMING

** ** ** ** **

BEFORE: THOMPSON, CHIEF JUDGE; EASTON AND KAREM, JUDGES.

EASTON, JUDGE: The Appellant (“Gray”) entered a conditional guilty plea to

first-degree possession of a controlled substance (methamphetamine) and related

misdemeanor charges. He appeals the denial of his Motion to Suppress the

evidence found on him during a traffic stop. The circuit court correctly concluded

the officer conducting the traffic stop had a reasonable and articulable suspicion to

continue Gray’s detention to investigate possible driving under the influence of drugs when Gray gave his voluntary consent to the search of his person. For this

and other reasons we will discuss, we affirm.

FACTUAL AND PROCEDURAL HISTORY

At 9:30 p.m. on the night of November 27, 2020, KSP1 Trooper Porter

(“Porter”) observed Gray, and another occupant of the vehicle driven by Gray were

not wearing seat belts. Porter pulled Gray over. Dispatch directed Porter to check

for insurance. Gray looked for but was unable to produce proof of insurance.

During this interaction, Porter was standing at the driver’s door and

about two feet from Gray while Gray was sitting in the vehicle. Porter observed

bloodshot eyes and erratic behavior and movements by Gray. When Porter went

back to his cruiser, dispatch first advised there was an indication of insurance and

then advised Gray had a prior DUI2 conviction.

Porter had already decided to have Gray exit his vehicle and conduct a

DUI investigation before he heard about the prior DUI. When Porter returned to

Gray’s vehicle, he directed Gray to exit the vehicle. When Gray exited the vehicle,

Porter asked if he had anything in his pockets. Porter then asked Gray for

permission to search his pockets. Gray said, “Go ahead.” Porter found

methamphetamine in Gray’s pocket.

1 Kentucky State Police. 2 Driving Under the Influence.

-2- Porter continued with a DUI investigation. Gray failed field sobriety

tests. Ultimately, Porter arrested Gray for possessing the methamphetamine as

well as DUI and failure to have proof of insurance.

The circuit court conducted a hearing on Gray’s Motion to Suppress

in November of 2021. The only evidence was the preceding summarized

testimony of Porter and a dashcam video from Porter’s cruiser. After the parties

had the opportunity to brief the issues presented, the circuit court denied the

suppression motion concluding the circumstances constituted reasonable and

articulable suspicion to continue Gray’s detention to investigate a DUI charge.

The circuit court also concluded the consent given by Gray was voluntary.

Gray entered a guilty plea to the possession of methamphetamine with

other misdemeanor charges. Gray was sentenced to serve two years in prison.

This appeal followed.

STANDARD OF REVIEW

A trial court’s denial of a motion to suppress is reviewed under a two-prong test. First, we review the trial court’s findings of fact under the clearly erroneous standard. Under this standard, the trial court’s findings of fact will be conclusive if they are supported by substantial evidence. Second, we review de novo the trial court’s application of the law to the facts.

Rhoton v. Commonwealth, 610 S.W.3d 273, 275-76 (Ky. 2020) (footnotes

omitted).

-3- ANALYSIS

“[T]he ultimate touchstone of the Fourth Amendment is

‘reasonableness[.]’” Brigham City, Utah v. Stuart, 547 U.S. 398, 403, 126 S. Ct.

1943, 1947, 164 L. Ed. 2d 650 (2006). Gray was seized subject to the

reasonableness protection of the Fourth Amendment from the time he was pulled

over. This appeal requires us to address detention permitted as a Terry3 stop. Such

detention may be sustained only while “a reasonable and articulable suspicion that

criminal activity is afoot” exists.

The question presented by Gray is whether his continued detention

prior to his eventual arrest for DUI and possession of methamphetamine was

justified. Specifically, Gray argues Porter did not have a reasonable and

articulable suspicion of any crime beyond a traffic ticket offense when Porter

asked for consent to search Gray’s pockets. Gray then contends his detention was

impermissibly extended, and this taints any consent he may have given for the

search of his pockets.

Gray does not dispute his initial detention. Porter observed a traffic

violation (no seat belts) and was justified in stopping Gray. Failure to wear

seatbelts violates KRS 189.125. An officer may detain someone if he observes a

3 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).

-4- traffic violation, even if the officer has a different motivation for the stop, such as

hoping to find evidence of other crimes. Wilson v. Commonwealth, 37 S.W.3d

745, 749 (Ky. 2001).

The detention time for the no seat belts violation was extended

because Gray could not provide proof of liability insurance. Kentucky has

mandatory financial responsibility laws governing such insurance. The law

requires carrying proof of such coverage. KRS 304.39-117(2). Failure to do so is

a violation subject to a $250 fine. KRS 534.040(2)(c).

This circumstance about insurance is significant. The evidence

presented at the suppression hearing included the amount of time Gray had to try to

find the insurance proof. In these several minutes, Porter was able to observe Gray

closely. Porter did not detect alcohol, yet he saw Gray’s bloodshot eyes and erratic

behavior, including Gray’s movements. Porter has training and experience in

detecting the effects of drugs, including, but not limited to, alcohol.

Dispatch was able to find an indication of insurance coverage, but this

did not excuse Gray’s failure to have proof of that insurance. Just before Porter

went back to the vehicle to have Gray exit the vehicle, dispatch also notified Porter

of Gray’s prior DUI conviction.4 While Porter had already decided to further

4 Gray had committed a prior DUI with possession of marijuana on May 21, 2018, Hopkins District Court, Case No. 18-T-01255.

-5- detain Gray for a DUI investigation, the fact of the prior conviction was known to

Porter when he acted.

A detention may only last for as long as required to address the initial

reason for it unless something happens to provide a further suspicion of other

criminal activity. Commonwealth v. Connor, 636 S.W.3d 464, 473 (Ky. 2021).

When Porter stopped Gray for the lack of seat belts, Porter was justified in giving

Gray time to find the required proof of insurance. Id. When Porter observed signs

of a DUI, the detention could continue.

Whenever an officer interacts with a citizen during a traffic stop, the

officer may direct the driver to exit a vehicle without any violation of the

Constitution. Pennsylvania v. Mimms, 434 U.S. 106, 111, 98 S. Ct. 330, 333, 54 L.

Ed. 2d 331 (1977). Upon removal of Gray from the vehicle, Porter could have

patted Gray down for any weapons for officer safety. The pat down could only

seek weapons, but if “plain feel” during the pat down reveals to an officer the

criminal nature of something he feels, it could be seized. Commonwealth v. Banks,

68 S.W.3d 347, 351 (Ky. 2001).

In this case, we do not see Porter performing a pat down. Rather,

Porter asked for permission to search Gray’s pockets. Without hesitation, Gray

says: “Go ahead.” Porter then finds the methamphetamine.

-6- Before the discovery of the methamphetamine, Porter may have

chosen to simply write a ticket for the seat belt and proof of insurance violations.

In other words, there had been no completion of the processing of those violations

with a citation. Thus, with the time it took to address the insurance proof, there

does not appear to have been any improper extension of the detention, even if there

was no reasonable and articulable suspicion of a DUI. Regardless, Porter decided

to proceed with investigation of a DUI offense. We will evaluate separately the

presence of the sufficient suspicion for that detention.

Gray failed the field sobriety tests. A later blood test would confirm

the presence of drugs in Gray’s system. The Commonwealth decided it could not

proceed with the DUI charge in the plea negotiations, because the blood test had

been obtained without a warrant as now required by Commonwealth v. McCarthy,

628 S.W.3d 18 (Ky. 2021). In any event, what was found after the decision to

detain for a DUI investigation has no relevance to the analysis of the initial

decision to extend the detention for that investigation.

Interactions like those in this case are to be “analyzed sequentially.”

Connor, supra at 472. We are required to assess the reasonableness of Porter’s

suspicion of DUI considering the “totality of the circumstances.” Bauder v.

Commonwealth, 299 S.W.3d 588, 591 (Ky. 2009). The suspicion must be more

than a mere “hunch.” Connor, supra at 477.

-7- Contrary to Gray’s insinuation, an officer is not required to observe

impaired driving, such as swerving from side to side, to develop a suspicion of

impairment. See Hayden v. Commonwealth, 766 S.W.2d 956 (Ky. App. 1989).

Standing at the driver’s door, Porter observed bloodshot eyes. Porter observed

Gray’s “erratic” behavior and movements for several minutes. Although it did not

matter to Porter, he was also aware of Gray’s recent prior DUI.

The word “articulable” is not the same as articulated. Even though

Porter had already decided to continue the detention for a DUI investigation

without regard for the information about the prior DUI, this does not mean the

analysis must ignore that factor. It remains an articulable fact of record in the

overall analysis of the suspicion.

When viewed in isolation, any given circumstance may not constitute

sufficient suspicion. For example, nervous behavior alone will not support a

suspicion of criminal activity. Commonwealth v. Marr, 250 S.W.3d 624, 627 (Ky.

2008). But the law directs a consideration of all circumstances. When we do this,

we agree that the facts related by the circuit court, specifically bloodshot eyes,

erratic behavior, and the prior DUI constituted a reasonable and articulable

suspicion of DUI. See, e.g., Johnson v. Commonwealth, 522 S.W.3d 207 (Ky.

App. 2017).

-8- Whether to complete the process of the traffic ticket for no seat belts

and no proof of insurance or to continue detention for a DUI investigation, Porter

was justified in detaining Gray when he asked for consent to search. The only

remaining question then is whether Gray’s consent to search his pockets was

voluntary. The case relied upon by Gray at the trial court level noted an improper

detention tainted the consent to search. Strange v. Commonwealth, 269 S.W.3d

847, 852 (Ky. 2008). There is no such taint here to be evaluated for the consent.

See, e.g., Baltimore v. Commonwealth, 119 S.W.3d 532 (Ky. App. 2003).

The trial court then only needed to look at the circumstances of the

consent to determine if it was coerced. Gray relies upon Schneckloth v.

Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 136 L. Ed. 2d 854 (1973). This case

explained a citizen does not have to be advised of the right to refuse consent when

evaluating whether it is voluntary. The facts in Schneckloth are like those in the

present case. When asked if his car could be searched, the suspect in Schneckloth

simply responded: “Sure, go ahead.” 412 U.S. at 220, 93 S. Ct. at 2044. The U.S.

Supreme Court found voluntary consent in the circumstances of that case. Id. at

249, 93 S. Ct. at 2059.

In this case, while Porter held Gray’s hands when he asked for

consent, Gray was not handcuffed. The way the consent was sought and the

-9- casualness of the answer without hesitation indicated a voluntary consent. We

agree with the trial court on the voluntariness of the consent.

We also note the search of Gray’s pockets was inevitable as a search

incident to the valid arrest for a DUI. As in Baltimore, supra, this provides another

reason to affirm the result of the circuit court’s decision in this case. We are not

required to affirm only on the grounds argued by the parties when the record

reveals other reasons to affirm. Wells v. Commonwealth, 512 S.W.3d 720, 721-22

(Ky. 2017).

CONCLUSION

Gray’s detention when he gave consent to the search of his pockets

was supported by either an ongoing processing of the traffic stop or a reasonable

and articulable suspicion of a DUI offense. Gray’s consent to the search of his

pockets was voluntary. The search of Gray’s pockets would have been inevitable

upon his arrest for DUI. The Hopkins Circuit Court committed no error in denying

Gray’s Motion to Suppress and is AFFIRMED.

ALL CONCUR.

-10- BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

Thresa Taylor Hinton Daniel Cameron Madisonville, Kentucky Attorney General of Kentucky

Melissa A. Pile Assistant Attorney General Frankfort, Kentucky

-11-