Charles Hupp v. Commonwealth of Kentucky

• Court: Court of Appeals of Kentucky
• Decided: March 4, 2021
• Docket: 2018 CA 001291
• Status: Unknown

Opinion

RENDERED: MARCH 5, 2021; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2018-CA-1291-MR

CHARLES HUPP APPELLANT

APPEAL FROM MADISON CIRCUIT COURT v. HONORABLE WILLIAM G. CLOUSE, JR., JUDGE ACTION NO. 16-CR-00405-001

COMMONWEALTH OF KENTUCKY APPELLEE

AND NO. 2019-CA-0697-MR

KATELYN SMITH APPELLANT

APPEAL FROM MADISON CIRCUIT COURT v. HONORABLE BRANDY O. BROWN, JUDGE ACTION NO. 16-CR-00405-002

OPINION AFFIRMING APPEAL NO. 2018-CA-1291-MR AND AFFIRMING IN PART, REVERSING IN PART, AND REMANDING APPEAL NO. 2019-CA-0697-MR

** ** ** ** **

BEFORE: ACREE, KRAMER, AND TAYLOR, JUDGES. TAYLOR, JUDGE: Charles Hupp brings Appeal No. 2018-CA-1291-MR from a

Final Judgment and Sentence of Imprisonment by the Madison Circuit Court

entered June 6, 2018, upon a conditional plea of guilty to various felony offenses.

Katelyn Smith brings Appeal No. 2019-CA-0697-MR from a Final Judgment and

Sentence of Imprisonment by the Madison Circuit Court entered April 1, 2019,

upon a conditional plea of guilty to various misdemeanor and felony offenses.1 For

the reasons stated, we affirm Appeal No. 2018-CA-1291-MR, and affirm in part,

reverse in part, and remand Appeal No. 2019-CA-0697-MR.

BACKGROUND

At approximately 12:44 a.m. on June 6, 2016, Officer Carl Roark of

the Richmond Police Department was contacted on his radio by dispatch regarding

a tip received from Smith’s mother. According to the tip, Hupp and Smith both

had current arrest warrants and were departing the Blue Moon Bar in Richmond in

a black Mercedes automobile. Furthermore, the tip indicated that Hupp was a

convicted felon, a drug dealer, and was believed to be armed with a handgun.

Smith’s mother also told dispatch she wished to remain anonymous because she

was afraid of Hupp. Based on the direction the Mercedes was said to be traveling,

Officer Roark knew the vehicle would be coming toward his location. A few

1 Charles Hupp and Katelyn Smith were arrested together on the morning of June 6, 2016, for the various offenses charged. They were indicted together by the Madison County Grand Jury on August 10, 2016.

-2- minutes later, Officer Roark observed a black Mercedes traveling toward him.

Reasoning that this must be the vehicle described by dispatch and that it contained

individuals with active warrants, Officer Roark initiated a traffic stop.

After stopping the vehicle, Officer Roark made contact with the

driver, who provided identification confirming he was Charles Hupp. He admitted

having a warrant out of Florida but claimed it was not extraditable. Another

officer, Stephen Madden, arrived on the scene and began to question the adult

female passenger. She did not present identification, but she asserted her name

was Allison Tye and provided a social security number. When he checked the

information, Officer Madden did not believe this name or social security number

belonged to her because “Allison Tye” was a juvenile, and the woman in the

vehicle appeared to be older. As Hupp was asked to step out of the vehicle and

escorted toward the cruiser, he told his passenger, “Katie, don’t let anybody touch

this car,” which further indicated the woman was not who she claimed to be. At

some point, Sergeant Brian Eaves of the Richmond Police Department arrived on

the scene, and he appeared to know the woman. A photograph confirmed her

name was actually Katelyn Smith. Officer Madden testified that Smith also had an

outstanding arrest warrant.

When Officer Roark removed Hupp from the vehicle, he asked if he

had drugs or firearms inside the vehicle. Hupp denied there was any contraband.

-3- Officer Roark then performed a Terry2 pat down of Hupp and discovered a pistol

magazine in the pocket of the shorts he was wearing. When the officer asked

Hupp about the pistol magazine, Hupp became noncompliant, although he told

Officer Roark that the shorts he was wearing belonged to the owner of the

Mercedes. Officer Roark then described what happened next in his testimony at

the suppression hearing:

Commonwealth: “And, at this time, did you ask Mr. Hupp if he was a convicted felon?”

Ofc. Roark: “At some point in time in that exchange, I did, yes.”

Commonwealth: “And is he a convicted felon?”

Ofc. Roark: “He is.”

Notably, during this exchange, Officer Roark did not specify when he learned

Hupp was a convicted felon, and this ambiguity was not clarified by Hupp’s or

Smith’s defense attorneys on cross-examination.

The discovery of the pistol magazine led Officer Roark to believe

Hupp was not telling the truth when he denied there was a firearm inside the

vehicle. He then initiated a search of the vehicle for evidence of a convicted felon

being in possession of a handgun. In the process of searching for the firearm,

Officer Roark observed white residue on the driver’s side floorboard and what he

2 Terry v. Ohio, 392 U.S. 1 (1968).

-4- described as “glassy shards” of what appeared to be methamphetamine crystals on

the driver’s seat. Upon searching the vehicle, the officers discovered a .40 caliber

handgun in the glove compartment, 21.7 grams of methamphetamine in a

headphones case, and 2.8 grams of heroin, spoons with burn marks, and syringes

inside a purse. They also found a safe in the trunk, which unlocked with a key

found on Hupp’s car key ring. Inside the safe, the officers found 134.6 grams of

methamphetamine, 18.9 grams of heroin, .40 caliber ammunition, plastic bags, and

syringes. A search of Hupp’s wallet, found in the driver’s seat of the vehicle,

revealed he was carrying $1,705 in cash. Later, after getting a search warrant, the

police conducted a more thorough search of the vehicle and found additional

contraband in the form of multiple cell phones and electronic devices, a burned

spoon with residue, syringe caps, a syringe, plastic bags containing 6.6 grams of

methamphetamine, prescription bottles, and a filled syringe which was suspected

to contain heroin.

As a result of this incident, Hupp and Smith were jointly indicted on

the following charges: second-degree possession of a controlled substance;

possession of drug paraphernalia; first-degree trafficking in a controlled substance

(more than two grams of methamphetamine, enhanced by possession of a firearm);

and first-degree trafficking in a controlled substance (more than two grams of

heroin, enhanced by possession of a firearm). Additionally, the indictment charged

-5- Hupp with being a convicted felon in possession of a handgun and being a first-

degree persistent felony offender, while Smith faced an additional charge of

identity theft.

Hupp subsequently moved the Madison Circuit Court to suppress

evidence resulting from an unlawful investigative traffic stop, which he asserted

violated his rights under the Fourth Amendment of the United States Constitution

and Section 10 of the Kentucky Constitution.3 During the suppression hearing, the

circuit court heard testimony conforming to the aforementioned narrative from the

three police officers on the scene. Hupp argued the search of the vehicle after his

traffic stop violated principles announced by the United States Supreme Court in

Arizona v. Gant, 556 U.S. 332 (2009). Smith argued there was an insufficient

basis for the traffic stop, reasoning that the call to dispatch could not be verified as

coming from Smith’s mother, and, thus, it should be considered an anonymous tip.

Ultimately, the circuit court denied the motion to suppress, finding the tip was not

anonymous and there was reasonable articulable suspicion to stop the vehicle. The

court also found that the discovery of a loaded magazine on Hupp, a convicted

felon, gave probable cause to search the vehicle for evidence of a felon in

possession of a firearm.

3 Katelyn Smith joined in the motion to suppress and a joint hearing on the motion was conducted with both defendants present before Judge William G. Clouse, Jr., of the Madison Circuit Court on February 21, 2017. The circuit court denied the motion by order entered February 21, 2017.

-6- Appellants subsequently entered conditional guilty pleas preserving

their rights to appeal the denial of the suppression motion. On June 6, 2018, the

circuit court sentenced Hupp to a total of ten-years’ imprisonment based on two

counts of trafficking in a controlled substance and one count of being a convicted

felon in possession of a handgun. On April 1, 2019, the circuit court sentenced

Smith to a total of eight-years’ imprisonment based on one count of possession of a

controlled substance, one count of possession of drug paraphernalia, two counts of

trafficking in a controlled substance, and one count of identity theft. These appeals

followed.4

ISSUES

The sole joint issue raised by appellants in this appeal is whether the

circuit court erroneously denied their motion to suppress, arguing: (1) Officer

Roark did not have reasonable articulable suspicion to initiate a traffic stop of the

vehicle; and (2) the officers did not have probable cause to search the vehicle for

evidence of a convicted felon in possession of a firearm because there was no

evidence presented at the suppression hearing that established the officers knew

Hupp was a convicted felon at the time of the search. Smith also argues on appeal

that court costs were improperly assessed against her.

4 Hupp filed a tardy notice of appeal on July 31, 2018. By order entered December 19, 2018, this Court granted Hupp a belated appeal. Smith’s appeal was timely filed on May 1, 2019. Upon completion of briefing, Hupp’s appeal was abated pending completion of Smith’s appeal, whereupon the cases were submitted together to be considered by the merits panel.

-7- STANDARD OF REVIEW

This Court’s standard of review of a trial court’s denial of a motion to

suppress requires a two-step analysis. First, the trial court’s factual findings are

conclusive if supported by substantial evidence. Milam v. Commonwealth, 483

S.W.3d 347, 349 (Ky. 2015). Second, the court’s application of the law to those

facts and legal conclusions is reviewed de novo. Id.; Simpson v. Commonwealth,

474 S.W.3d 544, 547 (Ky. 2015).

ANALYSIS

To determine whether an investigatory stop of an automobile is

lawful, the Kentucky Supreme Court has provided the following guidance:

In order to perform an investigatory stop of an automobile, there must exist a reasonable and articulable suspicion that a violation of the law is occurring. Delaware v. Prouse, 440 U.S. 648, 663, 99 S. Ct. 1391, 1401, 59 L. Ed. 2d 660, 673 (1979). Complications arise when, as here, the information serving as the sole basis of the officer’s suspicion is provided by an anonymous informant, whose veracity, reputation, and basis of knowledge cannot be readily assessed. In situations such as these, we are required to examine the totality of the circumstances, and to determine whether the tip, once suitably corroborated, provides sufficient indicia of reliability to justify an investigatory stop. Alabama v. White, 496 U.S. 325, 332, 110 S. Ct. 2412, 2417, 110 L. Ed. 2d 301, 310 (1990).

Collins v. Commonwealth, 142 S.W.3d 113, 115 (Ky. 2004). An anonymous tip,

even though accurate in its details, will not justify an investigatory stop unless “the

-8- investigating officer . . . independently observe[s] any illegal activity, or any other

indication that illegal conduct was afoot.” Brooks v. Commonwealth, 488 S.W.3d

18, 22 (Ky. App. 2016) (quoting Collins, 142 S.W.3d at 116); see also Florida v.

J.L., 529 U.S. 266, 269-70 (2000). However, tips from “citizen informants who

either (1) have face-to-face contact with the police; or (2) may be identified are

generally competent to support a finding of reasonable suspicion (and in some

cases, probable cause)[.]” Commonwealth v. Kelly, 180 S.W.3d 474, 478 (Ky.

2005).

Appellants argue the call from Smith’s mother to dispatch should be

considered an anonymous tip because there was no independent verification that

she was the caller. An examination of the case law, however, reflects that there is

no requirement for telephoned tips to police by named persons to be independently

verified before being considered reliable citizen tips. In Kelly, the Kentucky

Supreme Court cited a case from a sister jurisdiction, Frazer v. State, 80 Ark. App.

231, 94 S.W.3d 357, 361 (2002), for the proposition that a “telephone tip by a

citizen informant who gave his name was sufficient to support an investigatory

stop of a vehicle that the informant suspected was being operated by an intoxicated

person.” Kelly, 180 S.W.3d at 478.

Furthermore, upon examining the record, we conclude the circuit

court correctly found Officer Roark had reasonable articulable suspicion to make

-9- the traffic stop. “At a suppression hearing, the ability to assess the credibility of

witnesses and to draw reasonable inferences from the testimony is vested in the

discretion of the trial court.” Sowell v. Commonwealth, 168 S.W.3d 429, 431 (Ky.

App. 2005) (citing Commonwealth v. Whitmore, 92 S.W.3d 76, 79 (Ky. 2002)).

The circuit court heard the officer testify about how he received information that a

black Mercedes would be traveling in his direction. Officer Roark testified that

seeing a Mercedes at that time of night in that location would be “very rare.”

Additionally, consistent with the tip, the vehicle contained two individuals, a male

and a female, both of whom had current outstanding arrest warrants. Even though

corroboration of a citizen informant’s tip is not required to justify a stop, the other

information provided by the tip proved accurate. The circuit court did not err in

finding the stop was justified by reasonable articulable suspicion.

For the second part of their suppression issue, appellants contend the

police officers did not have probable cause to search the vehicle for evidence of a

convicted felon in possession of a firearm because there was no evidence presented

at the suppression hearing that the officers knew Hupp was a convicted felon at the

time of the search. Appellants assert Officer Roark’s answer, “He is[,]” in

response to the Commonwealth’s question about Hupp’s status as a convicted

felon, does not necessarily mean the officers knew about his status at the time of

the search. Taking this as a starting point, appellants then argue the circuit court

-10- lacked substantial evidence to rule that Hupp was a convicted felon in order to

justify the search of the vehicle for evidence of a convicted felon in possession of a

firearm.

We begin by noting that, despite appellants’ claims to the contrary,

this particular sub-issue does not appear to have been preserved for appeal. The

arguments presented to the circuit court focused on (1) the reliability of the tip, (2)

whether the informant could be verified or was anonymous, and (3) whether the

subsequent search was valid under Arizona v. Gant. From our review, it does not

appear that the issue of whether the officers knew Hupp was a convicted felon at

the time of the search was ever specifically presented to the circuit court. Indeed,

our review of the hearing record reflects everyone present at the hearing appeared

to accept at face value Officer Roark’s response of “He is[,]” to the question of

whether Hupp was a convicted felon. This is further reflected in the circuit judge’s

handwritten finding that “Hupp is a convicted felon.” Record on Appeal at 73.

Defense counsel for Hupp and Smith could have cross-examined Officer Roark

regarding whether he knew at the time of the search that Hupp was a convicted

felon, and yet they did not take the opportunity to do so. Our review of both the

motion to suppress and the video record of the hearing, including counsels’ closing

arguments at the hearing, supports our conclusion that the issue was not properly

-11- preserved for appellate review.5 It has been a long-standing rule of appellate

practice in Kentucky that a party may only present those issues on appeal that were

presented to the trial court for consideration. Henderson v. Commonwealth, 438

SW.3d 335, 343-44 (Ky. 2014). The issue was not raised at the suppression

hearing.

However, an appellate court may consider an issue on appeal that was

not presented or otherwise insufficiently raised below for palpable error that affects

the substantial rights of a party. Kentucky Rules of Criminal Procedure 10.26. In

this case, palpable error review was not requested and given the totality of the

circumstances surrounding the search, we decline to consider this issue for the first

time on appeal. Thus, we find no error in the circuit court’s ruling that there was

sufficient probable cause to search the vehicle.

Finally, Smith individually appeals the circuit court’s order for her to

pay court costs as part of the judgment entered against her. She asserts the circuit

court erred when it ordered her to “pay court costs within six (6) months of release

from imprisonment[,]” arguing such an order is forbidden by Kentucky Revised

Statute (KRS) 23A.205(3). Smith’s Brief at 16. KRS 23A.205(3) allows a court to

5 Pursuant to Kentucky Rules of Civil Procedure 76.12(4)(c)(v), Smith states in her brief that the issue was preserved at the hearing, which the video record does not support. Smith’s Brief at 9. Hupp’s brief states that the issue was preserved at the hearing and in the motion to suppress. Neither the video record of the hearing nor the record on appeal supports this statement. Hupp’s Brief at 6.

-12- impose court costs by way of an “installment payment plan in accordance with

KRS 534.020.” However, KRS 534.020(2)(b) mandates “all court costs, fees, and

fines shall be paid within one (1) year of the date of sentencing[.]” The

Commonwealth concedes error on this point citing Applegate v. Commonwealth,

577 S.W.3d 83, 88 (Ky. App. 2018) (holding “the trial court erred in ordering

Applegate to pay court costs in installments beginning sixty days after his release,

as these necessarily could not be paid within one year of the date of sentencing as

required by KRS 23A.205(3)”). Accordingly, we reverse the assessment of court

costs against Smith and remand for entry of a new judgment consistent with KRS

534.020(2)(b).

For the foregoing reasons, we affirm the Madison Circuit Court’s

denial of Hupp and Smith’s joint motion to suppress, and final judgments entered

against Hupp and Smith, except as concerns the award of the court costs against

Smith, which we reverse in part and remand for the entry of a new judgment in

Smith’s case consistent with this Opinion.

ALL CONCUR.

-13- BRIEFS FOR APPELLANT BRIEFS FOR APPELLEE: CHARLES HUPP: Daniel Cameron Brandon Neil Jewell Attorney General of Kentucky Frankfort, Kentucky Kristin L. Conder BRIEFS FOR APPELLANT Assistant Attorney General KATELYN SMITH: Frankfort, Kentucky

Robert C. Yang Frankfort, Kentucky

-14-