RENDERED: JUNE 20, 2025 TO BE PUBLISHED
Supreme Court of Kentucky 2024-SC-0166-DG
BOBBY RAY OSBORNE APPELLANT
ON REVIEW FROM COURT OF APPEALS V. NO. 2022-CA-1382 ESTILL CIRCUIT COURT NO. 21-CR-00006
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT BY JUSTICE NICKELL
AFFIRMING
Bobby Ray Osborne entered a conditional guilty plea to first-degree
trafficking in a controlled substance and possession of drug paraphernalia. He
received a total sentence of five years’ imprisonment. The Court of Appeals
affirmed. 1 We granted discretionary review to clarify the distinction between a
consensual encounter and an investigative detention in the Fourth Amendment
context. Following careful review of the law, briefs, and record, we affirm.
1 In the same opinion, the Court of Appeals heard two separate appeals arising
from Osborne’s four convictions upon two separate indictments. Osborne v. Commonwealth, No. 2022-CA-1382-MR, 2024 WL 501146 (Ky. App. Feb. 9, 2024). In No. 2022-CA-1383-MR, the Court of Appeals affirmed Osborne’s convictions for trafficking in a controlled substance and possession of drug paraphernalia which arose from Estill Circuit Court No. 21-CR-00008. We denied discretionary review of the Court of Appeals’ decision in No. 2022-CA-1383-MR and limit this opinion to matters arising from No. 2022-CA-1382-MR. FACTS AND PROCEDURAL HISTORY
The Clark County Sheriff’s Department received a tip that a stolen trailer
was located on Osborne’s property in Estill County, Kentucky, and relayed that
information to the Kentucky State Police and Estill County Sheriff’s
Department. On October 21, 2020, Kentucky State Trooper Ty Robinson,
accompanied by Estill County Sheriff Chris Flynn and Deputy Brad Smith,
went to investigate. When the officers arrived at the property, they saw the 81-
year-old Osborne walking from the driveway toward the front door of his
residence. They approached Osborne and informed him about the situation.
Osborne agreed to allow the officers to inspect his trailers and search his
property.
Trooper Robinson noticed Osborne kept placing his hands in the front
pockets of his pants which contained two large bulges. From previous
encounters, Trooper Robinson knew Osborne often carried a small handgun in
his front pocket. On two of those prior meetings, which occurred outside of
Osborne’s house, Trooper Robinson asked him to remove the weapon and place
it inside the residence before they talked.
On this occasion, Trooper Robinson asked Osborne what was in his
pockets. Osborne responded he did not have a gun on him. Osborne’s
response did not alleviate Trooper Robinson’s concerns and he asked if
Osborne would empty his pockets. Osborne said “yes” and removed a large
wad of cash from his left pocket. Trooper Robinson asked Osborne if he would
remove the object from his right pocket. Osborne agreed and removed a baggie
2 which Trooper Robinson could see contained a brown substance. As Osborne
attempted to hide the baggie behind his back, Trooper Robinson physically
restrained him and asked Deputy Smith to retrieve the baggie from Osborne’s
hand. Based on their training and experience, the officers believed the baggie
contained heroin.
The suspected heroin weighed 1.01 ounces and the cash from Osborne’s
pocket totaled $1,500.00. The officers did not locate the stolen trailer on the
property. Deputy Smith proceeded to apply for a search warrant, which was
granted and executed by the officers on the same day. The search of Osborne’s
residence yielded $73.00 in cash and a digital scale. Osborne was arrested and
subsequently indicted on charges of first-degree trafficking in a controlled
substance and possession of drug paraphernalia.
Osborne moved to suppress the heroin and cash which the officers
obtained from his person without a warrant. The trial court conducted a
hearing at which Trooper Robinson was the sole testifying witness. However,
Osborne produced several exhibits in support of his motion including
photographs of his property, Deputy Smith’s affidavit for the search warrant,
and Trooper Robinson’s report from the investigative file. On October 25,
2021, the trial court entered an order denying Osborne’s motion to suppress.
The trial court determined Osborne voluntarily consented to remove the objects
from his pockets and that the suspected contraband was thus placed into plain
view.
3 Osborne filed two separate motions to reconsider which both requested
various additional findings of fact. The trial court denied both motions in an
order entered on December 21, 2021. Osborne subsequently entered a
conditional guilty plea, reserving his right to appeal the denial of his motion to
suppress. He was sentenced to a total five years’ imprisonment. Additionally,
Osborne agreed to forfeit any seized cash while the Commonwealth agreed not
to oppose bond on appeal or otherwise oppose shock probation after Osborne
served six months of his sentence. The Court of Appeals affirmed. We granted
discretionary review.
LAW AND ANALYSIS
Osborne first argues the lower courts erred by concluding he voluntarily
consented to remove the items from his pockets. We disagree.
The Fourth Amendment protects “[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and
seizures.” A warrantless search is per se unreasonable under the Fourth
Amendment “unless an established exception applies.” Payne v.
Commonwealth, 681 S.W.3d 1, 3 (Ky. 2023). “Consent is a valid exception to
the warrant requirement under the Fourth Amendment.” Id. at 3-4 (citing
Commonwealth v. Neal, 84 S.W.3d 920, 923 (Ky. App. 2002)). Whether a
suspect voluntarily consented to a search is a question of fact, which the
Commonwealth bears the burden of proving “by a preponderance of the
evidence from the totality of all the circumstances.” Id. at 4 (quoting Neal, 84
S.W.3d at 925); see also Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973).
4 In reviewing a trial court’s decision on a motion to suppress, we apply a
familiar two-part standard. Payne, 681 S.W.3d at 4. First, we must accept the
trial court’s findings of fact as conclusive if they are supported by substantial
evidence. Id. Second, we review de novo the trial court’s application of the law
to the particular facts of the case. Id. Moreover, we may affirm the ruling of a
lower court for any reason supported by the record. Jarvis v. Commonwealth,
960 S.W.2d 466, 469 (Ky. 1998).
Osborne maintains the trial court’s finding of consent was clearly
erroneous because of several inconsistencies in Trooper Robinson’s testimony
at the suppression hearing and the description Deputy Smith provided in a
subsequent affidavit for a search warrant. Specifically, he notes Trooper
Robinson variously stated: (1) he told Osborne to empty his pockets; (2) he
asked Osborne what was in his pockets; (3) he asked Osborne to reveal his
hands; and (4) he told Osborne to quit putting his hands in his pockets.
Osborne further contrasts Trooper Robinson’s testimony with Deputy Smith’s
affidavit for the search warrant which stated in pertinent part:
Trooper Robinson of the Kentucky State Police approached Mr. Osborne to speak with him and it was observed that Mr. Osborne was manipulating something in his pants pocket. The Affiant and Trooper Robinson were aware that Mr. Osborne had previously carried firearms on his person. Trooper Robinson requested Mr. Osborne to reveal his hands. Mr. Osborne removed his hands and they were observed to contain large amounts of cash. Affiant observed a bulge in the right front pocket and Trooper Robinson questioned Osborne.
...
Affiant observed Mr. Osborne place his hands back into his pockets and remove them in an attempt to show nothing was in 5 them. Trooper Robinson indicated that he observed a baggie concealed in Mr. Robinson’s hand, restrained Mr. Osborne’s hands, and instructed the Affiant to retrieve the baggie.
“The test of substantiality of evidence is whether when taken alone or in
the light of all the evidence it has sufficient probative value to induce
conviction in the mind[]” of a reasonable person. Ky. State Racing Comm’n v.
Fuller, 481 S.W.2d 298, 308 (Ky. 1972). When confronted with inconsistent
testimony or other conflicting evidence at a suppression hearing, the trial
court, as factfinder, is entitled to weigh the evidence and judge the credibility of
the witnesses. Hampton v. Commonwealth, 231 S.W.3d 740, 749 (Ky. 2007).
This rule applies whether the inconsistencies arise from the testimony of a
single witness or within the context of the overall proof. See Nix v.
Commonwealth, 299 S.W.2d 609, 610-11 (Ky. 1957). Moreover, “the possibility
of drawing two inconsistent conclusions from the evidence does not prevent [a]
. . . finding from being supported by substantial evidence.” Fuller, 481 S.W.2d
at 307 (internal quotation omitted).
Relative to consent, the trial court specifically found, “[h]aving known of
Osborne’s [sic] carrying a handgun in his front pockets in the past, which he
had previously required Osborne to remove, Robinson asked Osborne to empty
his pockets, which he did.” The trial court further stated Osborne “consented
to remove the items from his pocket and that consent was freely and
voluntarily given.”
At the suppression hearing, the Commonwealth questioned Trooper
Robinson as follows:
6 Com.: Did you order him to remove the objects from his pocket or had you asked him to remove them?
Robinson: I asked him if he would remove the items from his pocket.
Com.: And what was his response when you asked him to remove the items?
Robinson: He said yes because he didn’t have any weapons on him, but he said yes.
We perceive the trial court to have properly exercised its factfinding
discretion in accepting this testimony despite the existence of contrary evidence
in the record. 2 As a reviewing court, we cannot simply substitute our view of
the evidence for that of the factfinder. Payne, 681 S.W.3d at 4.
Additionally, we may briefly dispose of Osborne’s claim that the trial
court’s findings were clearly erroneous based upon its oral remark that Trooper
Robinson’s testimony was consistent. During Osborne’s cross-examination of
Trooper Robinson, the following exchange occurred:
Osborne: Okay. . . You and Mr. Smith have different versions of what happened.
Tpr. Robinson: No.
Osborne: Okay. What was your version of how he was asked to pull his hands out?
Trial Court: Well, [defense counsel], we’ve heard his version multiple times.
Osborne: Okay, well, he’s given multiple answers, and he and Mr. . . . Smith give different . . .
2 In its brief, the Commonwealth acknowledges Trooper Robinson’s testimony
was inconsistent but contends any such inconsistencies are immaterial.
7 Trial Court: Well, I’ve heard him. He was consistent each time.
Osborne: He what?
Trial Court: He was consistent each time.
Osborne: Okay, do you [Trooper Robinson], do you agree that Mr. Smith says he requested that you pull them out, and you said that Mr. Smith, you didn’t ask him to pull them out?
Tpr. Robinson: When I got on the scene, and Mr. Osborne kept putting his hands in his pockets, I asked him to reveal, I told him to stop putting his hands in his pockets. That’s what I did.
Osborne: Okay.
We perceive no indication the trial court intended these oral remarks to
constitute an official finding of fact. Further, the trial court did not reduce its
statements to writing in the order denying the motion to suppress. We have
long held a court’s written orders must prevail over any inconsistent oral
statements. Commonwealth v. Taber, 941 S.W.2d 463, 464 (Ky. 1997),
overruled on other grounds by Keeling v. Commonwealth, 381 S.W.3d 248 (Ky.
2012). Thus, we deem the written finding of consent to be conclusive and
proceed to examine the trial court’s application of the law to the facts.
In this regard, Osborne contends any purported consent was involuntary
and otherwise tainted by police coercion. He points specifically to the physical
restraint imposed by Trooper Robinson after he had emptied his pockets. We
disagree.
The United States Supreme Court has identified three broad categories of
interaction between citizens and police: (1) the consensual encounter whereby
police may approach a citizen in a public place for any reason without any
8 objective level of suspicion, United States v. Mendenhall, 446 U.S. 544 (1980);
(2) the investigative detention, which, if non-consensual, must be supported by
a reasonable, articulable suspicion of criminal activity, Florida v. Royer, 460
U.S. 491 (1983); and (3) the arrest, which is only valid when supported by
probable cause, Illinois v. Gates, 462 U.S. 213 (1983). See also Baltimore v.
Commonwealth, 119 S.W.3d 532, 537 (Ky. App. 2003). Investigative detentions
and arrests constitute seizures which trigger the application of Fourth
Amendment protections. Baltimore, 119 S.W.3d at 537. A consensual
encounter, however, is not a seizure to which the Fourth Amendment applies,
provided the officer’s actions do not convert it into an investigative detention.
Florida v. Bostick, 501 U.S. 429, 433 (1991).
Indeed, it is well-established that law enforcement officers “may pose
questions, ask for identification, and request consent to search” personal items
without any degree of objective justification, provided they are where they have
a right to be and “do not induce cooperation by coercive means.” United States
v. Drayton, 536 U.S. 194, 201 (2002). Thus, while safety concerns may inform
an officer’s request for consent to search, a consent request does not depend
on a credible threat to safety. The line of demarcation between a consensual
encounter and an investigative detention is a police officer’s use of physical
force, show of authority, or other application of explicit or implicit means of
coercion “which . . . would compel a reasonable person to believe he was not
9 free to leave.” 3 Baker v. Commonwealth, 5 S.W.3d 142, 145 (Ky. 1999). The
standard governing this determination is objective and does not depend on the
suspect’s subjective beliefs regarding the nature of the encounter. Mendenhall,
446 U.S. at 554. Similarly, a police officer’s subjective intent “is irrelevant
except insofar as that may have been” communicated to the suspect. Id. at
555 n.6.
In Mendenhall, the Supreme Court identified several factors to determine
whether the seizure of a person has occurred, such that a consent to search
may be deemed involuntary: “the threatening presence of several officers, the
display of a weapon by an officer, some physical touching of the person of the
citizen, or the use of language or tone of voice indicating that compliance with
the officer’s request might be compelled.” Id. at 555. Applying these factors,
we have consistently distinguished between a police officer’s mere request,
which a suspect may freely accept or refuse, and a direct order, which “must be
interpreted as a show of authority” sufficient to overcome the will of the
suspect. Baker, 5 S.W.3d at 145; Payne, 681 S.W.3d at 4.
Here, Osborne has failed to demonstrative sufficient objective indicia of
coercion to refute the trial court’s findings relative to Trooper Robinson’s
request for him to empty his pockets. Trooper Robinson and the other officers
were entitled to approach Osborne outside the front of his residence, the same
3 Thus, we disavow the Court of Appeals’ statement that a police officer may
order a suspect to empty his or her pockets as a safety precaution without implicating the Fourth Amendment.
10 as any other member of the general public. Quintana v. Commonwealth, 276
S.W.3d 753, 758 (Ky. 2008). We reject Osborne’s contention that Quintana is
inapplicable because “the officers were not there for a knock and talk but to
search allegedly for a trailer and had just asked . . . for consent which he had
already given outside his house.”
In Quintana, we described “[t]he knock and talk procedure” as ‘involv[ing]
law enforcement officers approaching a home for the purpose of obtaining
information about a crime that has been committed, a pending investigation, or
matters of public welfare.” Id. at 756. Reviewing pertinent federal authority,
we held “certain areas such as driveways, walkways, or the front door and
windows of a home frequently do not carry a reasonable expectation of privacy
because they are open to plain view and are properly approachable by any
member of the public,” including police officers, “unless obvious steps are
taken to bar the public from the door.” Id. at 758. There is no indication in
the present record that Trooper Robinson and the other officers invaded any
portion of Osborne’s property that was not impliedly open to public approach.
Additionally, we cannot accept and need not further belabor Osborne’s
argument that the use of the consensual knock and talk procedure literally
requires the police to knock on the suspect’s front door. Id.
Likewise, the fact that Osborne already consented to a search for the
stolen trailer does not necessarily create an inherently coercive situation or
otherwise preclude law enforcement from requesting consent to enlarge the
scope of an ongoing search or conduct an additional search of a person or
11 property. Absent objective evidence of duress or coercion, this Court has
directly held a person in custody may voluntarily consent to a search. Talbott
v. Commonwealth, 968 S.W.2d 76, 82 (Ky. 1998). Certainly, the logic of Talbott
applies with equal force to the present appeal.
Moreover, Osborne’s reliance on Krause v. Commonwealth, 206 S.W.3d
922 (Ky. 2006), is misplaced. In Krause, we held police cannot utilize a ruse to
manufacture a suspect’s consent by “exploit[ing] a citizen’s civic desire to assist
police in their official duties for the express purpose of incriminating that
citizen.” Id. at 927.
We hasten to observe that Krause is a far cry from the present appeal.
The officer in Krause was conducting a drug investigation and, by his own
admission, knew the suspects would not ordinarily consent to a search of their
residence. Id. at 926. At the unusual hour of 4:00 a.m., the officer arrived at
the suspects’ residence and falsely informed them “a young girl had just been
raped and he needed to look around the house in order to determine if it was
the place that she had described to police.” Id. Upon entering the residence
under this pretext, the officer found illegal drugs in plain view. Id. at 924.
Here, beyond Osborne’s own conclusory allegations and speculation as to what
Trooper Robinson could have done differently, there is simply no evidence
Trooper Robinson procured Osborne’s consent through illegal trickery or
malicious falsehood of the extreme and fundamentally unfair nature
contemplated by Krause. Id. at 926 (“We are careful to note that our holding is
limited and narrow.”).
12 Returning to the Mendenhall analysis, we recognize two other officers
accompanied Trooper Robinson to Osborne’s property. However, we discern no
indication their collective presence was threatening or intimidating to the
extent of overbearing Osborne’s will. Specifically, the officers did not draw
their weapons, raise their voices, or touch Osborne’s person at the time of
Trooper Robinson’s request for consent.
Moreover, we cannot accept Osborne’s contention that the situation was
inherently coercive because of his advanced age and the fact Trooper Robinson
had previously arrested him without a warrant at his home. While Osborne’s
age and history with Trooper Robinson are relevant considerations, they are
not outcome-determinative. Mendenhall, 446 U.S. at 558. Further, we will not
speculate on these matters and decline Osborne’s invitation to divine Trooper
Robinson’s subjective and unexpressed motivations. Id. at 555 n.6.
Considering the totality of the circumstances, we are firmly convinced the
evidence of record supports the trial court’s conclusion that Osborne’s consent
was voluntary. Id. at 558.
Next, Osborne argues the lower courts erred by determining the
contraband was found in plain view because the incriminating nature of the
item was not immediately apparent until after he removed it from his pocket.
He further contends the fact Trooper Robinson initially believed the bulge in his
pocket was a gun conclusively established the item was not in plain view. We
13 “The plain-view exception to the warrant requirement applies when the
object seized is plainly visible, the officer is lawfully in a position to view the
object, and the incriminating nature of the object is immediately apparent.”
Kerr v. Commonwealth, 400 S.W.3d 250, 266 (Ky. 2013) (citing Horton v.
California, 496 U.S. 128, 136–37 (1990)). This doctrine is founded “on the
proposition that once police are lawfully in a position to observe an item first-
hand, its owner’s privacy interest in that item is lost; the owner may retain the
incidents of title and possession but not privacy.” Commonwealth v. Bembury,
677 S.W.3d 385, 407 (Ky. 2023) (Nickell, J., concurring) (quoting Illinois v.
Andreas, 463 U.S. 765, 771 (1983)).
Osborne misapprehends the timing and application of the plain view
doctrine in this instance. As discussed above, Trooper Robinson’s request for
Osborne’s consent to empty his pockets did not depend on the incriminating
nature of the items, safety concerns, or otherwise require any reasonable,
articulable suspicion of criminal activity. See Drayton, 536 U.S. at 201;
Quintana, 276 S.W.3d at 758. In other words, because he was in a location
where he had the right to be, Trooper Robinson was entitled to ask for
Osborne’s consent. The law did not require Trooper Robinson to frisk Osborne
for weapons. Consequently, the plain view doctrine became operative once
Osborne pulled the baggie containing a brown substance from his pocket such
that Trooper Robinson could directly perceive its clearly incriminating nature.
At this point, we are satisfied the officers had probable cause to seize the
suspected contraband without a warrant. Posey v. Commonwealth, 185 S.W.3d
14 170, 173 (Ky. 2006). “Moreover, since the contraband was in plain view, it was
also reasonable for [the officers] to believe that the drugs were in imminent
danger of being destroyed in the absence of immediate action to secure the
evidence.” Id. Therefore, we conclude the trial court properly determined the
contraband was in plain view and lawfully subject to seizure once Osborne
voluntarily removed the baggie from his pocket.
For his third and final contention of error, Osborne argues the trial court
erred by denying his motion for additional findings of fact pertaining to the
voluntariness of his consent, the applicability of the plain view doctrine, the
officers’ reasonable and articulable suspicion for initiating an investigatory
detention under Terry v. Ohio, 392 U.S. 1 (1968), and the reasonableness of the
intrusion during his detention. 4 We disagree.
RCr 5 8.20(2) requires a trial court, “[w]hen factual issues are involved in
deciding a motion[]” to “state its essential findings on the record.” Considering
the critical importance of written factual findings to meaningful appellate
review, “it is essential that the trial court discharge its responsibility to make
express findings that sufficiently resolve the legal issues presented by a motion
to suppress.” Commonwealth v. Jones, 217 S.W.3d 190, 194 (Ky. 2006). While
4 This Court has long recognized “the seminal Terry v. Ohio decision,” where
“the United States Supreme Court held ‘when an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others,’ the officer may conduct a pat- down search, or a ‘frisk,’ of the individual in order to ‘determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm.’” Frazier v. Commonwealth, 406 S.W.3d 448, 454 (Ky. 2013) (quoting 392 U.S. at 24). 5 Kentucky Rules of Criminal Procedure.
15 the trial court’s written findings were admittedly terse, we are convinced the
order denying Osborne’s motion to suppress adequately documented the
relevant facts and resolved the disputed legal issues.
Moreover, the trial court was not required to make additional findings.
The essential factual finding relative to the voluntariness of Osborne’s consent
was the trial court’s stated belief that Trooper Robinson merely requested, as
opposed to commanded, Osborne to empty his pockets. We concluded this
finding was supported by substantial evidence and will not invade the province
of the factfinder or otherwise second-guess credibility assessments and the
weight of the evidence by requiring extended explanations of these matters.
See Payne, 681 S.W.3d at 4. Similarly, the trial court’s finding on the plain
view doctrine logically followed from its finding on consent: after Osborne
consented to empty his pockets, he placed the contraband in plain view of the
officers.
We also agree with the Court of Appeals that additional findings on
reasonable suspicion and the degree of invasion under Terry were not required.
We have affirmed the trial court’s holding that a consensual encounter
escalated into a plain view seizure. This scenario is fundamentally
incompatible with that of an investigation detention. See Baltimore, 119
S.W.3d at 537. Again, though perhaps Trooper Robinson may have been
justified in frisking Osborne for weapons, the law did not require such a course
16 of action. 6 Indeed, so long as an officer’s conduct comports with the applicable
law, it is not for courts to question or second-guess his or her decision-making
in the field based on rank speculation about what the officer could have done
differently.
Further, Osborne’s assertion in his brief that “[t]he one thing the parties
agreed on was that this was an issue of a [Terry] stop in a sense” is simply not
accurate. During oral argument at the suppression hearing, the prosecutor
clearly stated it was not a Terry situation and instead claimed Trooper
Robinson merely requested Osborne to voluntarily remove the items from his
pocket. Because Osborne’s request for additional findings under Terry is
essentially an argument for reconsideration of the trial court’s findings and
conclusions relative to the consent and plain view issues, we conclude the
request was properly denied.
CONCLUSION
For the foregoing reasons, the decision of the Court of Appeals is
affirmed.
All sitting. Lambert, C.J.; Bisig, Conley, Goodwine, and Keller, JJ.,
concur. Thompson, J., dissents by separate opinion.
Thompson, DISSENTING. I write separately to express two concerns.
First, the Commonwealth presented four different versions of what occurred on
6 In its brief to this Court, the Commonwealth indicates it does not believe
Trooper Robinson would have had reasonable suspicion to initiate an investigatory detention under Terry at the time consent was requested.
17 the front yard (in an affidavit, at the preliminary hearing, on the arrest
warrant, and at the suppression hearing). How could the Commonwealth
establish that Bobby Ray Osborne consented to removing the contents of his
pockets with such inconsistent information? I would determine that the fact
finding which occurred here was not supported by substantial evidence.
My second concern is that this non-consensual encounter was a clear
violation of Bob Ray Osborne’s right to be free from unreasonable searches and
seizures under the Fourth Amendment to the United States Constitution and
Section Ten of the Kentucky Constitution. The safety pat-down authorized in
Terry v. Ohio, 392 U.S. 1 (1968), was not followed here. Facts matter and as the
majority opinion clearly states, the officer who knew that Osborne would carry
a gun, chose to order him to pull items out of his pockets. To be clear, such an
action is in violation of Terry.
In Terry, the United States Supreme Court concluded “that there must be
a narrowly drawn authority to permit a reasonable search for weapons for the
protection of the police officer, where he has reason to believe that he is dealing
with an armed and dangerous individual, regardless of whether he has
probable cause to arrest the individual for a crime.” Id. at 27. In Terry, the
officer “patted down the outer clothing of petitioner and his two companions.
He did not place his hands in their pockets or under the outer surface of their
garments until he had felt weapons, and then he merely reached for and
removed the guns.” Id. at 29–30 (emphasis added).
18 Therefore, Terry cannot support the officer’s actions in the case before
us. Terry provides the roadmap for how the officer should have addressed his
fear that Osborne had a weapon in his pocket. The officer should have patted
Osborne down, rather than asking him to empty his pockets.
Once that occurred, if the officer then felt an object in Osborne’s pocket
that was immediately identifiable as contraband, he would then have probable
cause to remove it. There is no justification for skipping ahead in this process
and running roughshod over Osborne’s clearly established constitutional
rights. Accordingly, I dissent.
COUNSEL FOR APPELLANT:
Thomas P. Jones Thomas P. Jones Law Office, PLLC
COUNSEL FOR APPELLEE:
Russell M. Coleman Attorney General of Kentucky
James Havey Assistant Solicitor General