Boyd v. Commonwealth

357 S.W.3d 216, 2011 Ky. App. LEXIS 152, 2011 WL 4420794
CourtCourt of Appeals of Kentucky
DecidedSeptember 23, 2011
DocketNo. 2008-CA-001714-MR
StatusPublished
Cited by3 cases

This text of 357 S.W.3d 216 (Boyd v. Commonwealth) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Boyd v. Commonwealth, 357 S.W.3d 216, 2011 Ky. App. LEXIS 152, 2011 WL 4420794 (Ky. Ct. App. 2011).

Opinion

OPINION

VANMETER, Judge:

Donna Boyd appeals from the Fayette Circuit Court judgment convicting her of criminal possession of a forged instrument in the first degree (two counts), possession of drug paraphernalia, and of being a persistent felony offender (“PFO”) in the second degree. For the following reasons, we affirm.

Around 6:30 a.m. on July 8, 2007, a Lexington Police Officer, while on routine patrol in what he described as a high crime drug area, observed what appeared to be a vehicle driving without a license plate.2 Before the officer had an opportunity to pull the vehicle over, the vehicle stopped and a woman exited from the passenger’s side door and walked in the direction of a man standing on the corner. The officer approached the vehicle’s driver, later identified as Boyd, who told the officer that she was in the area looking for a relative. Boyd later said she was looking for a friend. Another female passenger was in the vehicle and the third passenger soon returned to the vehicle.

Based on the passengers’ suspicious and evasive behavior, the officer ordered the three women out of the vehicle and obtained their identification. An outstanding warrant existed for one of the passengers, who the officer arrested. During a search of the vehicle, the officer discovered what he described as two “obviously counterfeit” one-hundred-dollar bills in Boyd’s purse, which was lying open on the bench seat of the passenger compartment of the vehicle. The search also revealed a crack pipe under the driver’s side floor mat. Boyd was arrested and ultimately convicted of the charges set forth above. This appeal followed.

On appeal, Boyd raises several claims of error. She first argues that the trial court erred by denying her motion to suppress the counterfeit bills found in her purse since the officers did not have grounds to search the vehicle based on the arrest of one of her passengers. We disagree.

Since Boyd did not make this argument at the suppression hearing, we address her claim of error under the palpable error standard of RCr3 10.26, which provides:

A palpable error which affects the substantial rights of a party may be considered ... by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error.

Manifest injustice has been interpreted to mean that had the error not occurred, “a substantial possibility exists that the result of the trial would have been different.” Brock v. Commonwealth, 947 S.W.2d 24, 28 (Ky.1997) (citation omitted). To be considered palpable under RCr 10.26, “[a]n error must seriously affect the fairness, integrity, or public reputation of a judicial proceeding!)]” Page v. Common[220]*220wealth, 149 S.W.3d 416, 422 (Ky.2004) (citation omitted).

The standard for appellate review of a trial court’s decision on a motion to suppress is set forth in RCr 9.78, which provides that “[i]f supported by substantial evidence the factual findings of the trial court shall be conclusive.” If the findings are supported by substantial evidence, we then determine “whether the rule of law as applied to the established facts is or is not violated.” Adcock v. Commonwealth, 967 S.W.2d 6, 8 (Ky.1998) (citations omitted).

Warrantless searches are “per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967) (emphasis added) (citations omitted). One such exception is a search incident to a lawful arrest, which allows an officer to search an arrestee’s person and the area within the arrestee’s immediate control for weapons or concealed evidence. Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685 (1969) (abrogated by Davis v. United States, — U.S. -, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011)).

Relying on New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), the trial court held that the search of the vehicle, including Boyd’s purse, was a valid search incident to the arrest of her passenger. However, following the trial and after Boyd’s brief was filed with this court, the United States Supreme Court rendered Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), in which the Court clarified the search incident to arrest exception as it applies to vehicle searches.4

In Gant, the Court held that law enforcement may search a vehicle incident to the lawful arrest of a recent occupant of the vehicle “only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.” Id. at 1723. In the case at bar, neither party contends that the vehicle or Boyd’s purse was within the arrested passenger’s reach, within the reach of any of the recent vehicle occupants, or that any reasonable possibility existed that the vehicle or purse contained evidence relevant to the outstanding warrant arrest. Thus, applying Gant to the present case appears to render the search of the vehicle, including Boyd’s purse, unconstitutional.

That being said, the United States Supreme Court recently rendered Davis v. United States, — U.S. -, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011), in which it held that searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule. Id. at 2429. In Davis, the defendant was charged with unlawful possession of a firearm based on discovery of a revolver in a stopped vehicle in which he was a passenger. Id. at 2425-26. At the time of the search, the Supreme Court had not yet rendered Gant and the District Court denied Davis’s motion to suppress under Belton, which authorizes the search of a vehicle’s passenger compartment incident to a recent occupant’s arrest. Id. at 2426.

While Davis’s appeal from his conviction was pending with the Eleventh Circuit, [221]*221Gant was rendered. Id. at 2426. Thereafter, the Eleventh Circuit applied Gant and held that the search of the vehicle violated his Fourth Amendment rights, but nonetheless upheld the District Court’s decision not to suppress the revolver and affirmed Davis’s conviction. Id. The United States Supreme Court granted certiorari.

In its decision, the Supreme Court noted that:

The Fourth Amendment protects the right to be free from “unreasonable searches and seizures,” but it is silent about how this right is to be enforced.

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Bluebook (online)
357 S.W.3d 216, 2011 Ky. App. LEXIS 152, 2011 WL 4420794, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boyd-v-commonwealth-kyctapp-2011.