RENDERED: FEBRUARY 18, 2021 TO BE PUBLISHED
Supreme Court of Kentucky 2019-SC-0522-MR
CHRISTOPHER ALEXANDER POPE APPELLANT
ON APPEAL FROM LINCOLN CIRCUIT COURT v. HONORABLE DAVID A. TAPP, JUDGE NO. 18-CR-00152
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT BY JUSTICE HUGHES
AFFIRMING
After a Lincoln County jury found Appellant Christopher Pope guilty of
trafficking in a controlled substance (heroin) in the first degree, he pled guilty
to being a persistent felony offender in the first degree (PFO I). The jury
recommended a twenty-year prison sentence and the trial court sentenced him
accordingly. Pope argues on appeal that the circuit court erred in two ways: 1)
by denying his pretrial motion to either suppress the evidence from an
undercover drug buy or dismiss the indictment for lack of jurisdiction, and 2)
by admitting into evidence clearer copies of Snapchat messages than the ones
provided to him in discovery. Upon review, we affirm the Lincoln Circuit
Court’s judgment. FACTUAL AND PROCEDURAL BACKGROUND
Pope was indicted by a Lincoln County grand jury for trafficking in a
controlled substance and being a first-degree PFO. The charges stemmed from
Pope selling heroin to a confidential informant during a controlled buy. The
controlled buy was arranged by deputies from the Boyle County Sheriff’s
Department who apparently anticipated that it would occur in Boyle County.
However, when the buy was set in motion Pope told the confidential informant
that he would not make the sale in Boyle County. Instead Pope instructed the
informant to meet him at a fast-food restaurant in adjoining Lincoln County.
The Boyle County deputies followed the informant to that location and
surveilled the drug transaction. Notably, the deputies received prior verbal
approval from the Lincoln County Sheriff’s Department for their investigative
activities in Lincoln County.
Pope communicated with the confidential informant via Snapchat. At
one point, Pope instructed the informant to leave his vehicle unlocked when he
went into the restaurant. When the informant met with Pope inside the
restaurant, Pope told him that the heroin had already been placed in the glove
compartment of his vehicle. The informant then paid Pope and returned to
Boyle County.
The Boyle County deputies later testified that they surveilled the entire
transaction. One officer observed Pope arrive, approach the passenger door of
the informant’s vehicle, and then enter the restaurant where he had a
2 discussion with the informant. Afterward, the officers met the confidential
informant in Boyle County where he gave them the purchased heroin.
Following the Lincoln County grand jury’s indictment of Pope, a Boyle
County officer arrested him in Boyle County. As noted, a Lincoln County jury
found Pope guilty of trafficking in a controlled substance, first degree and,
following his guilty plea to the charge of PFO I, recommended a sentence of
twenty years. The trial court sentenced Pope accordingly and entered
judgment. Pope appeals as a matter of right.
Other facts pertinent to Pope’s claims of error are set forth below.
ANALYSIS
I. The Circuit Court Properly Denied the Motion to Suppress and Motion to Dismiss Indictment.
Pope moved the circuit court to suppress the deputies’ testimony and
any evidence gathered by the Boyle County Sheriff’s Department or,
alternatively, to dismiss the indictment altogether on the grounds that the
Boyle County deputies lacked jurisdiction to conduct an investigation in
Lincoln County. The circuit court denied both motions. Generally, when
reviewing a denial of a suppression motion, “we first review the trial court’s
findings of fact under the clearly erroneous standard.” Davis v.
Commonwealth, 484 S.W.3d 288, 290 (Ky. 2016). Here, Pope does not
challenge the circuit court’s findings of fact, so we proceed directly to a de novo
review of the circuit court’s application of the law to the facts. Id. Upon
review, we agree with the circuit court’s ultimate conclusion of law that Pope’s
3 jurisdictional argument fails and thus cannot be a legal basis for either
suppression of the evidence or dismissal of the indictment. Moreover, even if
Pope’s jurisdictional challenge had merit, a motion to suppress, excluding the
evidence, would not be the proper remedy.
Pertinently, the circuit court’s findings of fact and conclusions of law
stated:
On or about September 1, 2018, the Boyle County Sheriff’s Office conducted a controlled buy from the Defendant. The buy occurred in Lincoln County through the use of a confidential informant. The confidential informant was recording the transactions and the events were observed by the officers with the Boyle County Sheriff’s Office. The Boyle County Officers received verbal authorization from [the Lincoln County Sheriff] before the transaction occurred to conduct an investigation. The Defendant was not arrested after the transaction but was instead directly indicted by the Lincoln County Grand Jury in January 2019.
The defendant claims KRS 431.007 applies in this case. Since the Defendant was not arrested during the investigation, it does not apply.
To the extent that any authority is need[ed] [by the Boyle County Officers] to act outside their jurisdiction . . . , it was granted by the Sheriff of Lincoln County. . . .
The Kentucky Court of Appeals has held that officers have a right to be or act as any other private citizen. Fischer v. Commonwealth, 506 S.W.3d 329 (Ky. App. 2016). The jurisdictional issue is not an issue since all the actions performed by law enforcement and their proxy were the same actions any citizen could lawfully perform.
Pope primarily relies on Kentucky Revised Statute (KRS) 431.007(1) to
support his argument that the Boyle County deputies did not have authority to
conduct the investigation in Lincoln County which led to his indictment and
arrest. KRS 431.007(1) provides:
4 [A] sheriff, or deputy sheriff . . . who is officially requested by a law enforcement agency in another county in Kentucky to assist in any matter within the jurisdiction of the requesting agency shall possess, while responding to and for the duration of the matter for which the request was made, the same powers of arrest in the requesting county as he possesses in the county in which he is a police officer.
Pope stresses that pursuant to this statute’s plain language and statutory
interpretation principles, the Lincoln County Sheriff must have “requested” the
Boyle County officers’ assistance, not vice versa, in order for the Boyle County
officers to have investigatory jurisdiction in Lincoln County. He contends the
investigation and the evidence obtained from it are unlawful because they
contravene the statute, regardless of the fact that the Boyle County officers
requested permission from the Lincoln County Sheriff to pursue the undercover
heroin buy in Lincoln County. He also argues Fischer, a case relied on by the
circuit court, is distinguishable from his case because in contrast to the police
officers’ out-of-county “knock and talk” at issue in that case, an undercover
drug buy is not an action that any private citizen can lawfully undertake.
The Commonwealth counters Pope’s statutory interpretation argument
by pointing to other plain language in the statute. On its face, KRS 431.007
simply grants a deputy the powers of arrest in a different county after that
county has requested his assistance, making it inapplicable to this case since
the Boyle County officers did not arrest Pope in Lincoln County. The
Commonwealth also argues that the statute places no limitations on
investigations conducted in other counties. Lastly, the Commonwealth
contends that just as the officers’ actions in Fischer–driving to an adjacent
5 county, knocking on a door and talking to a suspect–did not go beyond what a
general member of the public might do, neither did the Boyle County officers’
actions in this case. Citing Commonwealth v. Johnson, 423 S.W.3d 718, 725-
26 (Ky. 2014), the Commonwealth emphasizes that the Boyle County deputies
did not perform any active police work like stopping, searching, or arresting
Pope while in Lincoln County. Instead, they simply followed the confidential
informant to the exchange location and observed him with Pope, actions any
private citizen could have taken. Even their subsequent testimony to the grand
jury was nothing beyond what a private citizen could do, i.e., testifying to
factual observations.
We agree with the circuit court’s conclusion of law that KRS 431.007
does not apply in this case. KRS 431.007 grants an out-of-county assisting
officer the authority to arrest. It does not bestow any right on a defendant to
be prosecuted for breaking the law only when the investigation leading to his
arrest was performed by an officer of the jurisdiction within which that
defendant committed the crime. Further, to the extent the Boyle County
officers needed permission for their out-of-county surveillance activities, the
Lincoln County Sheriff’s Department granted authority for that investigation.
See KRS 218A.240(1).1 In short, Pope’s jurisdiction argument is without any
apparent basis in Kentucky law.
1 Although KRS 218A.240(1)’s application is not directly at issue in this case, as Johnson states, “It is abundantly clear that KRS Chapter 218A is a comprehensive effort on behalf of the General Assembly to quell the drug epidemic plaguing our Commonwealth.” 423 S.W.3d at 722. Thus, KRS 218A.240(1) pertinently provides that the identified officers and agencies “within their respective jurisdictions, shall 6 In Johnson, we also dealt with law enforcement officers’ use of a
confidential informant to make a controlled drug buy and an ensuing motion to
suppress premised on a violation of a statute governing investigatory
jurisdiction. That case addressed the jurisdictional authority of state and local
officers enforcing controlled substances laws, KRS 218A.240(1), and its
intersection with the jurisdictional authority of the Attorney General under
KRS 15.200. In particular this Court addressed whether under KRS
218A.240(1) the Attorney General had statewide investigatory jurisdiction.
KRS 218A.240(1) provides:
All police officers and deputy sheriffs directly employed full-time by state, county, city, urban-county, or consolidated local governments, the Department of Kentucky State Police, the Cabinet for Health and Family Services, their officers and agents, and of all city, county, and Commonwealth’s attorneys, and the Attorney General, within their respective jurisdictions, shall enforce all provisions of this chapter and cooperate with all agencies charged with the enforcement of the laws of the United States, of this state, and of all other states relating to controlled substances.
In Johnson, the Attorney General (OAG) worked with Operation Unite, a
federally-funded task force that works closely with state and local law
enforcement personnel, to investigate drug-related crimes. The OAG and
Operation Unite investigators used a confidential informant to conduct
controlled buys from Johnson in Powell County. No local law enforcement
officer or entity participated in the investigation prior to initiating the grand
enforce all provisions of this chapter and cooperate with all agencies charged with the enforcement of the laws of the United States, of this state, and of all other states relating to controlled substances.” (Emphasis added.) Here, Pope was indicted and found guilty under KRS 218A.1412. 7 jury proceedings. In an appearance before the Powell County grand jury, the
OAG investigator presented testimony and video recordings detailing Johnson’s
involvement in drug buys in that county. The grand jury’s charges against
Johnson included three counts of first-degree trafficking in a controlled
substance (morphine and oxycodone), second offense. Like Pope in the instant
case, Johnson moved to suppress the evidence and to dismiss the indictments,
arguing that the OAG officers did not have jurisdiction to conduct the
investigation because local law enforcement in Powell County did not request
that the OAG participate in an investigation. Johnson relied upon KRS 15.200
to support this argument. 423 S.W.3d at 720.
KRS 15.200(1) provides:
Whenever requested in writing by the Governor, or by any of the courts or grand juries of the Commonwealth, or upon receiving a communication from a sheriff, mayor, or majority of a city legislative body stating that his participation in a given case is desirable to effect the administration of justice and the proper enforcement of the laws of the Commonwealth, the Attorney General may intervene, participate in, or direct any investigation or criminal action, or portions thereof, within the Commonwealth of Kentucky necessary to enforce the laws of the Commonwealth.
The trial court denied Johnson’s motions, having concluded that KRS
218A.240(1) provided the OAG–a statewide official with statewide jurisdiction–
clear authority to make arrests regarding controlled substances. 423 S.W.3d
at 720. The Court of Appeals reversed the trial court’s decision because it
concluded that KRS 15.200 was the controlling statute and its directives were
not met, i.e., the OAG had not been requested to participate in drug
enforcement activities by Powell County officials. Id. On discretionary review,
8 this Court reversed the Court of Appeals, holding that KRS 218A.240(1) vested
the OAG with statewide investigatory jurisdiction regarding enforcement of
controlled substances laws. Id. at 722, 726.
After concluding our statutory jurisdiction analysis in Johnson, we also
analyzed the OAG’s investigative authority as if they–the office and its
investigators–were private citizens. Id. at 725-26. Although arguably dicta
given that the issue was fully decided based on the statute, we further stated:
It is also noteworthy that the OAG investigators in this case merely did what a private citizen could have done. See, e.g., Commonwealth v. Adkins, 331 S.W.3d 260, 263-64 (Ky. 2011); Branzburg v. Hayes, 408 U.S. 665, 674, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972) (holding that grand juries have a right to “every man's evidence”). They collected evidence and then brought that evidence to the attention of the Commonwealth’s Attorney, resulting in an OAG officer testifying to that evidence under oath before a grand jury. However, the OAG officers did not arrest or otherwise detain Johnson, although they had the authority to do so.
Id. at 725.
This portion of Johnson comparing an officer’s activities to that of an
ordinary private citizen was cited in support of the Court of Appeals’ conclusion
in Fischer, 506 S.W.3d at 329. In that case, officers from the Lexington Police
Crimes Against Children Unit, went to the suspect’s home in adjoining Clark
County to conduct a “knock and talk.” The appellate court found that the
officers’ conduct fit within the contours of a proper “knock and talk” as
outlined in Quintana v. Commonwealth, 276 S.W.3d 753 (Ky. 2008),
emphasizing that officers were where any member of the public had a right to
be, the main entrance to the suspect’s home, and engaged in activity that any
9 citizen could, namely knocking on the door and asking questions. Fischer, 506
S.W.3d at 334-35. “Merely knocking on Fischer’s door does not exceed that
which a member of the public could do; the detectives did not take the type of
police action that would require jurisdiction such as searching Fischer or his
home, or arresting him.” Id. at 335. The Fischer Court quoted a portion of
Johnson that noted that it is irrelevant whether law enforcement officers are
acting “under the color of state law” if the activities they engage in are nothing
more than what an ordinary citizen could do. Id. (citing Johnson, 423 S.W.3d
at 725-26). In that vein, the Court of Appeals concluded: “When a police officer
is acting outside his jurisdiction, he becomes akin to a member of the public.”
Id.
We concur with the Fischer analysis but find the factual scenario before
us sufficiently different to merit further discussion. Whereas the officers in
Fischer simply engaged in an out-of-county conversation with a suspect, the
officers in this case set in motion an undercover drug buy that ultimately took
place outside their jurisdiction. The undercover operation was planned in
Boyle County and culminated there when the deputies met up with the
confidential informant to recover the heroin. While it could be argued that the
only activity the Boyle County deputies engaged in in Lincoln County was
observing two men interact at a restaurant, the kind of observation any private
citizen could make, it is undisputed that the confidential informant was at the
restaurant to conduct an illegal drug transaction solely because the Boyle
County deputies recruited him for that purpose. In short, there would have
10 been nothing for the deputies or a private citizen to observe but for the Boyle
County-based law enforcement investigatory activities that preceded the drug
transaction.2 So, the absence of overt police activity in Lincoln County, such
as a police search or arrest as referenced in Fischer, is less compelling in this
case.
Ultimately, we conclude that comparison of the deputies’ conduct to that
of a private citizen is unnecessary because their investigatory activity fits
squarely within the language of KRS 218A.240(1), the focus of our Johnson
holding. That statute instructs state and local law enforcement officials to
enforce within their respective jurisdictions all state and local laws relating to
controlled substances and “to cooperate with all agencies charged with the
enforcement of [those] laws.” That is precisely what occurred here. The sheriff
departments in Boyle and Lincoln Counties cooperated, with the Boyle County
deputies properly receiving verbal authorization from the Lincoln County
Sheriff’s Department before proceeding with the controlled buy at a Lincoln
County restaurant. Thus, Pope’s argument that the deputies’ activities were
2As noted above, Johnson similarly involved controlled buys and the Court found the OAG officers’ activity akin to that of a private citizen: “They collected evidence and then brought that evidence to the attention of the Commonwealth’s Attorney, resulting in an OAG officer testifying to that evidence under oath before a grand jury.” 423 S.W.3d at 725. While we agree with the principle that extra- jurisdictional activity by a law enforcement official may be assessed from the viewpoint of what a private citizen could do, the application of that principle to controlled buys is problematic. Those orchestrated criminal acts are qualitatively different from having a conversation on someone’s doorstep or collecting evidence that happens to come to a citizen’s attention, such as finding a discarded knife on the sidewalk or taking photographs of the constant traffic at a suspected drug house in the neighborhood. Controlled buys exceed the concept of simply collecting evidence.
11 extra-jurisdictional and unauthorized is legally wrong, leaving both his motion
to suppress and his motion to dismiss without a factual or legal foundation.
Given the all-too-often misuse of a motion to suppress as the procedural
vehicle to address an alleged statutory violation, we are compelled to reiterate
prior holdings. In Copley v. Commonwealth, 361 S.W.3d 902, 905 (Ky. 2012),
we stated: “Suppression of evidence pursuant to the exclusionary rule applies
only to searches that were carried out in violation of an individual’s
constitutional rights.”3 The Fourth Amendment to the United States
Constitution prohibits unreasonable searches and seizures and its application
“depends on whether the person invoking its protection can claim a ‘justifiable,’
a ‘reasonable,’ or a ‘legitimate expectation of privacy’ that has been invaded by
government action.” Smith v. Maryland, 442 U.S. 735, 740 (1979) (citations
omitted). “Official conduct that does not ‘compromise any legitimate interest in
privacy’ is not a search subject to the Fourth Amendment.” Illinois v. Caballes,
543 U.S. 405, 408–09 (2005). Furthermore, we have previously explained,
“evidence obtained in violation of a state statute will not be excluded unless it
involves a violation of constitutional rights or the legislature mandates
exclusion.” Easterling v. Commonwealth, 580 S.W.3d 496, 502 (Ky. 2019)
(citing Beach v. Commonwealth, 927 S.W.2d 826 (Ky. 1996)).
3 Copley, 361 S.W.3d at 907, recognized that evidence may be excluded when criminal procedure rules are violated, stating, “[W]hen a criminal procedure rule is violated but the defendant’s constitutional rights are not affected, suppression may still be warranted if there is (1) prejudice to the defendant, in the sense that the search might not have occurred or been so abusive if the rule had been followed or (2) if there is evidence of deliberate disregard of the rule.” 12 Pope’s motion to suppress and his argument before this Court are void of
any explanation as to how the Boyle County deputies violated his
constitutional rights. See Johnson, 423 S.W.3d at 725-26. Moreover, the
statute he relies on, KRS 431.007, even if applicable in this case (and we have
concluded it is not) contains no explicit directive for exclusion of evidence. See
Easterling, 580 S.W.3d at 502. As in Johnson, 423 S.W.3d at 726, “the issue
[here] is confined to jurisdiction,” an issue we have resolved in favor of the
Commonwealth. And because the facts before us “[do] not implicate any
independent constitutional principle or protected right,” id., the suppression
remedy Pope seeks is not available to him. For this additional reason, we
affirm the trial court’s denial of the motion to suppress.
II. The Circuit Court Properly Denied the Motion to Continue and Properly Admitted the Better-Quality Copies of the Snapchat Messages.
Prior to the controlled buy, Pope and the confidential informant
communicated via Snapchat messages. On the day of the drug buy, Pope
directed the informant to meet him inside the designated Lincoln County
restaurant, and to “unlock ur moms car.” The Commonwealth provided digital
black and white copies of these Snapchat messages to Pope during discovery.
At trial, before introduction of the messages into evidence, the Commonwealth
learned, and subsequently informed Pope, that color copies of the same
messages had just been obtained from the Boyle County deputy. These copies
were of better quality than the previously produced black and white copies.
Pope immediately complained about the last-minute production of the clearer
13 copies.4 Upon comparison of the black and white copies with the color copies,
only a one-word difference was apparent. Specifically, the word “unlock”
appeared in the clearer, color copy of the messages, but was illegible in the
copy Pope had received in discovery.
Pope moved the circuit court to continue the trial for three days,5 alleging
that the one-word difference in the Snapchat copies undermined his defense.
Because Pope could have requested a more legible copy before trial and was
unable to provide a meaningful explanation for how his defense was
undermined or how he was otherwise prejudiced, the circuit court denied the
three-day continuance. The court did, however, allow Pope and his counsel
extra time to discuss the matter before the trial resumed. Subsequently, when
the Commonwealth moved to admit the color copies of the messages, Pope
maintained his previous objection. The circuit court allowed the
Commonwealth to introduce the clearer copies of the Snapchat messages into
evidence.
Pope claims on appeal that the trial court erred by admitting into
evidence the color copies of the Snapchat messages. Citing Chestnut v.
Commonwealth, 250 S.W.3d 288 (Ky. 2008) and Grant v. Commonwealth, 244
S.W.3d 39 (Ky. 2008), he argues that the trial court abused its discretion
4He first moved for dismissal of the indictment based on prosecutorial misconduct due to the deputy withholding the clearer copy. That motion was denied.
5 Pope initially sought a one-day continuance but that was not possible with the trial court’s schedule, so he requested three days.
14 because his black and white copies from discovery did not contain the full
phrase “unlock ur moms car,” and his defense was prepared based upon those
documents, not the color copies produced “at the last minute.” Pope relies on
this rationale to support his claim that he was substantially prejudiced by the
trial court denying his motion to continue and later overruling his objection to
the introduction of the messages into evidence. The standard of review for both
claims of error is abuse of discretion. Snodgrass v. Commonwealth, 814
S.W.2d 579, 581 (Ky. 1991) (motion to continue); Lopez v. Commonwealth, 459
S.W.3d 867, 873 (Ky. 2015) (evidentiary ruling).
A trial court abuses its discretion when its decision is “arbitrary,
unreasonable, unfair, or unsupported by sound legal principles.”
Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). When considering
a motion to continue, the trial court should consider the totality of the
circumstances, which would include factors such as length of delay; previous
continuances; inconvenience to litigants, witnesses, counsel and the court;
whether the delay is purposeful or is caused by the accused; availability of
other competent counsel; complexity of the case; and whether denying the
continuance will lead to identifiable prejudice. Snodgrass, 814 S.W.2d at 581.
“Identifiable prejudice is especially important. Conclusory or speculative
contentions that additional time might prove helpful are insufficient. The
movant, rather, must be able to state with particularity how his or her case will
suffer if the motion to postpone is denied.” Bartley v. Commonwealth, 400
S.W.3d 714, 733 (Ky. 2013) (citation omitted).
15 Here, just as when queried by the circuit court, Pope offers no more than
a general argument that his defense strategy premised on the documents
provided in discovery was undermined by the last-minute production of the
clearer copies of those same Snapchat messages. Unlike the cases Pope cites,
this is not a case in which the Commonwealth withheld evidence. The
Commonwealth provided copies of the relevant messages in discovery. Later,
as soon as the Commonwealth learned that clearer copies of the messages were
available, Pope was informed and new copies were provided to him.
Furthermore, prior to the admission of the messages as exhibits, the jury heard
testimony from the confidential informant that Pope told him to leave the car
unlocked and testimony from a Boyle County deputy that that he observed
Pope approach the passenger side of the informant’s car before entering the
restaurant.
Pope does not articulate how the word “unlock” missing from the phrase
“unlock your moms car” gutted his defense, see Chestnut, 250 S.W.3d at 299,
or prevented him from making an informed decision as to trial strategy, see
Grant, 244 S.W.3d at 44. Given Pope’s failure to explain specifically how he
was prejudiced by the clearer copies of the messages being admitted into
evidence or why those copies necessitated a continuance, we must conclude
that the trial court did not abuse its discretion by denying his motion to
continue or overruling his objection to admission of the clearer copies into
16 CONCLUSION
For the foregoing reasons, we affirm the Lincoln Circuit Court’s
final judgment and sentence.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Cullen Cole Gault Gault Law Office
COUNSEL FOR APPELLEE:
Daniel Jay Cameron Attorney General of Kentucky
Kristin Leigh Conder Assistant Attorney General