RENDERED: JUNE 7, 2024; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2023-CA-0779-MR
COMMONWEALTH OF KENTUCKY APPELLANT
APPEAL FROM MCCRACKEN FAMILY COURT v. HONORABLE WILLIAM ANTHONY KITCHEN, JUDGE ACTION NO. 23-CR-00080
JOSE MANUEL SOTO ADAME APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: ECKERLE, KAREM, AND LAMBERT, JUDGES.
KAREM, JUDGE: The Commonwealth of Kentucky appeals from a McCracken
Circuit Court order granting a motion to suppress brought by Jose Manuel Soto
Adame. The Commonwealth argues that the circuit court applied the wrong legal
standard in suppressing evidence recovered in a warrantless search of Soto
Adame’s truck. Upon careful review, we affirm. FACTUAL AND PROCEDURAL BACKGROUND
After not hearing from him all day, Soto Adame’s wife called the
Paducah Police Department to request a welfare check. She was worried that he
was drunk and could possibly harm himself or others. She had pinged his phone
and located it at a gas station off Exit 3 in Paducah.
Officer Logan Barrow went to the gas station and found Soto Adame
sitting in his truck. Officer Noah Willett arrived at about the same time. While
speaking with Soto Adame to make sure he was okay, Officer Barrow noticed open
alcohol containers on the seat with him. Officer Barrow asked Soto Adame for
identification. Soto Adame produced a document that appeared to be a Florida
driver’s license. When Officer Barrow went back to his cruiser and checked the
license, he discovered it was invalid and that Soto Adame had an expired Florida
license with a different number. Officer Barrow asked Soto Adame to step out of
his vehicle and asked him about the license. Soto Adame admitted it was fake and
explained he had purchased it in the area because he needed it to obtain
employment. He stated he could not renew his license because his permanent
resident card had expired. He denied having any other forged documents in his
possession and gave the police an authentic Social Security card. Officer Barrow
decided to search Soto Adame’s truck for other evidence of forged materials such
as additional I.D. cards, forged documents, templates, or printers.
-2- Officer Barrow did not handcuff Soto Adame, who stood talking with
Officer Willett in front of Barrow’s car while Barrow searched his truck. Barrow
testified that he looked first at the driver’s side door compartment because it was
common for documents to be kept there. He found a glass pipe with suspected
methamphetamine residue. The officers handcuffed Soto Adame and put him in
the back of Officer Barrow’s cruiser. Officer Willett testified that at that point,
Soto Adame was under arrest on the charge of first-degree possession of a
controlled substance, methamphetamine. After the arrest, the search of the vehicle
continued. The officers found a bag containing a black digital scale with suspected
methamphetamine residue and a small baggy containing suspected
methamphetamine.
Soto Adame was charged with third-degree criminal possession of a
forged instrument, first-degree possession of a controlled substance
(methamphetamine), and possession of drug paraphernalia. He filed a motion to
suppress, arguing that the warrantless search of his truck was unlawful because the
police lacked probable cause to believe any further evidence related to the alleged
crime of criminal possession of a forged instrument would be found within the
vehicle. After conducting a hearing, the circuit court entered an order granting the
motion. This appeal by the Commonwealth followed.
-3- STANDARD OF REVIEW
“Because the present appeal involves a warrantless search, we review
the trial court’s: (1) findings of fact for clear error and (2) determinations of
reasonable suspicion and probable cause de novo.” Gasaway v. Commonwealth,
671 S.W.3d 298, 316 (Ky. 2023) (citations omitted).
ANALYSIS
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.” “All warrantless searches are unreasonable, per se, under the Fourth
Amendment unless an established exception applies.” Gasaway, 671 S.W.3d at
316. “The Commonwealth bears the burden of establishing the constitutional
validity of a warrantless search.” Id. (internal quotation marks omitted) (quoting
Commonwealth v. Conner, 636 S.W.3d 464, 471 (Ky. 2021)). “Each of the
exceptions to the warrant requirement is ‘narrow and well-delineated’” and “the
Commonwealth must satisfy every element of the claimed exception.” Id.
(citations omitted).
The longstanding “automobile exception” permits police to search a
vehicle without a warrant if it is readily mobile and probable cause exists to
believe it contains contraband or evidence of a crime. Hedgepath v.
Commonwealth, 441 S.W.3d 119, 127-28 (Ky. 2014) (citing Carroll v. United
-4- States, 267 U.S. 132, 153, 45 S. Ct. 280, 285, 69 L. Ed. 543 (1925); California v.
Acevedo, 500 U.S. 565, 569, 111 S. Ct. 1982, 114 L. Ed. 2d 619 (1991); Maryland
v. Dyson, 527 U.S. 465, 466-67, 119 S. Ct. 2013, 2014, 144 L. Ed. 2d 442 (1999)).
More recently, an exception to the warrant requirement was
recognized for searches incident to the arrest of a vehicle’s recent occupant.
Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009). Under
Gant, the police may conduct such a search only when (1) “the arrestee is
unsecured and within reaching distance of the passenger compartment at the time
of the search[,]” or (2) when “it is reasonable to believe [that] evidence relevant to
the crime of arrest might be found in the vehicle.” Id. at 343, 129 S. Ct. at 1719.
The parties agree that only the second prong is at issue here because Soto Adame
was not within reaching distance of his truck when Officer Barrow conducted the
search.
In its order granting the motion to suppress, the circuit court set forth
the Gant test for vehicular searches incident to arrest and held that there was
insufficient evidence to support a warrantless search of Soto Adame’s truck for
other forged documents or items used in creating the forged Florida I.D. card. The
court found that Soto Adame “provided the card to officers when asked for
identification and admitted to purchasing the card for employment purposes.
Although he knew it was fake, defendant stated it was ‘the only thing he had’ to
-5- give the officers when asked for identification.” The court concluded that “[t]here
was no probable cause to believe any other forged documents were in the
vehicle,” and it was “also highly unlikely that any materials used to manufacture
the forged ID would be located in the vehicle.” (Emphasis added.)
The Commonwealth argues that the trial court erred in applying the
“probable cause” standard because the second prong of Gant mandates a standard
of “reasonable belief” for vehicle searches incident to arrest. The Commonwealth
further contends that the Gant standard is unclear and confusing but is nonetheless
a lower standard than probable cause. Under this lower standard, it argues, the
search was proper.
As set forth above, Gant permits such a warrantless vehicular search
incident to arrest if it is “reasonable to believe the vehicle contains evidence of the
offense of arrest.” When Kentucky formally adopted Gant in Rose v.
Commonwealth, the Kentucky Supreme Court described the rule as allowing an
officer to “search a vehicle even when the arrestee is secured if he has a reasonable
suspicion that the vehicle harbors evidence of the crime of arrest.” Rose v.
Commonwealth, 322 S.W.3d 76, 80 (Ky. 2010). The Rose standard was recently
restated verbatim by the Kentucky Supreme Court. See Gasaway, 671 S.W.3d at
321. Thus, under Gant and Rose, the standard applicable to the warrantless search
of a recent arrestee’s vehicle is whether it was “reasonable to believe,” or whether
-6- there was “a reasonable suspicion,” that the vehicle contained evidence of the
crime of arrest.
Soto Adame has not disputed that he was under arrest at the time
Officer Barrow initiated the search of his vehicle, even though Officer Willett
testified that Soto Adame was formally arrested only after the discovery of the
suspected methamphetamine. Soto Adame agrees that Gant is the appropriate
standard and also agrees with the Commonwealth that it is a less exacting standard
than probable cause. As Colorado’s highest court succinctly stated, “[I]n light of
the automobile exception, which already provides an exception to the warrant
requirement whenever police have probable cause to believe an automobile
contains evidence of a crime, . . . a requirement of probable cause in this context
would render the entire second prong of the Gant search-incident-to-arrest
exception superfluous.” Colorado v. Chamberlain, 229 P.3d 1054, 1057 (Colo.
2010) (citation omitted).
Although the Commonwealth contends that the Gant standard is
unclear and confusing, numerous jurisdictions have concluded that it is akin to the
reasonable suspicion standard required to justify an investigatory stop under Terry
v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 1884, 20 L. Ed. 2d 889 (1968). “While the
Court [in Gant] did not flesh out the reasonable-to-believe standard, a number of
appellate courts have concluded that it appears to require a lesser quantum of
-7- suspicion than probable cause, and probably is akin to the reasonable suspicion
standard required to justify a Terry search.” United States v. Wynn, 2023 WL
7449849, at *18 (E.D. Ky. Aug. 25, 2023), report and recommendation adopted,
2023 WL 6878901 (E.D. Ky. Oct. 18, 2023) (cleaned up). For instance, the federal
Court of Appeals for the D.C. Circuit characterized the Gant “reasonable to
believe” standard as probably akin to the “reasonable suspicion” standard under
Terry, based on the identical language in Terry that a search is permissible if the
officer “has reason to believe that the suspect is armed and dangerous.” United
States v. Vinton, 594 F.3d 14, 25 (D.C. Cir. 2010) (emphasis added). The Court
concluded that under Gant, “the officer’s assessment of the likelihood that there
will be relevant evidence inside the car must be based on more than ‘a mere
hunch,’ but “falls considerably short of [needing to] satisfy[] a preponderance of
the evidence standard.” Id. (quoting United States v. Arvizu, 534 U.S. 266, 274,
122 S. Ct. 744, 751, 151 L. Ed. 2d 740 (2002)).
Although the circuit court used the more stringent probable cause
standard applicable to the general automobile exception to assess the
constitutionality of the search, its order denying the motion to suppress need not be
reversed because we “may affirm a lower court for any reason supported by the
record.” McCloud v. Commonwealth, 286 S.W.3d 780, 786 n.19 (Ky. 2009)
(citation omitted). Even under the laxer “reasonable suspicion” or “reasonable
-8- belief” Gant standard, the search of Soto Adame’s vehicle does not pass
constitutional muster. It was simply not reasonable to believe or suspect, on the
basis of the fake Florida license alone, that Soto Adame had equipment or supplies
for manufacturing counterfeit licenses or other documents in his truck. As the
circuit court found, Soto Adame provided a reasonable explanation for possessing
the fake I.D. and he produced a legitimate Social Security card. There was
absolutely no evidence to suggest he possessed or was manufacturing additional
counterfeit identity documents. The fake license, with nothing more, was
insufficient evidence to create a reasonable belief to support the warrantless search
of Soto Adame’s vehicle.
CONCLUSION
For the foregoing reasons, the order denying the motion to suppress is
affirmed.
LAMBERT, JUDGE, CONCURS.
ECKERLE, JUDGE, DISSENTS AND FILES SEPARATE OPINION.
ECKERLE, JUDGE, DISSENTING: Respectfully, I must dissent.
The central issue in this case is whether an officer’s search of a car
door pocket solely for additional evidence of the use or manufacture of forged
documents was lawful where officers, having been called lawfully to Jose Soto
Adame (“Defendant”) for a welfare check and having encountered him with open
-9- alcoholic beverages in his car, were confronted by him with demonstrably false
statements and a forged driver’s license. Because both federal and state law
unequivocally authorizes such searches, this case should be reversed and remanded
with instructions to deny the motion to suppress.
In every suppression hearing addressing the reasonableness of a
search, the Trial Judge shall always begin the analysis with the basic rule that all
warrantless searches are per se unreasonable under the Fourth Amendment to the
United States Constitution – 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). A search incident to arrest is one of those
exceptions. Weeks v. United States, 232 U.S. 383, 392, 34 S. Ct. 341, 344, 58 L.
Ed. 652 (1914), overruled on other grounds by Elkins v. United States, 364 U.S.
206, 80 S. Ct. 1437, 4 L. Ed. 2d 1669 (1960).
The United States Supreme Court has narrowed the definition of
“search incident to arrest” to the arrestee’s person and the area “within his
immediate control.” Chimel v. California, 395 U.S. 752, 763, 89 S. Ct. 2034,
2040, 23 L. Ed. 2d 685 (1969). The rationale behind this limited exception to the
warrant requirement is officer safety and evidence preservation. Id. Specifically
addressing the context of arrests of occupants of motor vehicles, the Court
previously held that the entire passenger compartment of the vehicle and any
-10- containers therein may be lawfully searched because that area is generally within
an arrestee’s reach and thus within his immediate control. New York vs. Belton,
453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981).
Such was the law for 40 years, until Arizona v. Gant, 556 U.S. 332,
129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009), which held that no valid search could
occur where, inter alia, a defendant was arrested for offenses for which his vehicle
could yield no evidence. Under Gant, if the search is for evidence, circumstances
unique to the automobile context justify a search when it is reasonable to believe
that evidence of the arresting offense might be found in the vehicle.
The Kentucky Supreme Court first addressed the Gant issue and
upheld the search in McCloud v. Commonwealth, 286 S.W.3d 780 (Ky. 2009).
There, the police saw the defendant in a vehicle holding narcotics, arrested and
searched him, and discovered more cocaine on his person. Officers then searched
the vehicle and found a loaded gun, scales, cocaine, marijuana, and a safe with
$6,450.00. Id. at 783. Our Supreme Court held that the evidence should not be
suppressed because the officers had a reasonable belief that the vehicle contained
evidence of the arresting charges for Trafficking in a Controlled Substance I
(cocaine), Trafficking in Marijuana, and Illegal Possession of Drug Paraphernalia.
Id. at 785.
-11- This law has remained unchanged and binding on all Kentucky
Courts. Many cases involve narcotics. See, e.g., Lindsey v. Commonwealth, 306
S.W.3d 522 (Ky. App. 2009) (no suppression where evidence of the arresting
offense for narcotics was plainly visible inside the vehicle, and defendants were
arrested on drug charges); Robbins v. Commonwealth, 336 S.W.3d 60 (Ky. 2011)
(because evidence relevant to the arresting drug offenses could reasonably be
expected to be found in the vehicle, search valid where defendant with an
outstanding bench warrant for failure to appear for sentencing in a drug trafficking
conviction ran from his vehicle and tossed narcotics; officers arrested him and
found cash; subsequent search of the vehicle yielded cocaine); Johnson v.
Commonwealth, No. 2010-CA-002037-MR, 2012 WL 1573517 (Ky. App. May 4,
2012)1 (search of vehicle permissible where a controlled buy of narcotics yielded
evidence of narcotics and police arrested and searched of the vehicle located more
narcotics because its purpose was to secure additional evidence relating to the
arrest on drug charges); Arnold v. Commonwealth, No. 2008-CA-001372-MR,
2009 WL 2475354 (Ky. App. Aug. 14, 2009) (then-Judge now-Justice Keller, with
Judges Clayton and Lambert concurring, found no suppression warranted where a
reliable, confidential informant caused police to record a defendant promising to
1 According to Kentucky’s Rules of Appellate Procedure (“RAP”), unpublished cases are not binding. These unpublished cases are solely referenced here to show commonality of appellate cases on the issue. RAP 41.
-12- deliver a specific quantity of cocaine for a specific price in a specific vehicle and
the arrest of the driver yielded cocaine because the police officer reasonably
believed that the vehicle contained cocaine, the evidence of the arresting offense);
Commonwealth v. Elliott, 322 S.W.3d 106 (Ky. App. 2010) (where defendant
smelled strongly of alcohol, failed the field sobriety test, and was arrested for
Driving Under the Influence of an Intoxicant, officer observed white powder on the
console, seat, and gear shift, as well as clear, torn baggies on the seat, all in plain
view, the search of the vehicle revealing drugs and drug paraphernalia, that search
was valid because officer had a reasonable belief that evidence of the arresting
offense, the intoxicant, was in the vehicle).
And many cases apply the exception for evidence-of-the-arresting-
offense when the crimes do not involve drugs. See, e.g., Owens v. Commonwealth,
291 S.W.3d 704 (Ky. 2009) (operating on a suspended license); Mucker v.
Commonwealth, No. 2010-SC-000009-MR, 2011 WL 1103359 (Ky. Mar. 24,
2011) (carrying a concealed deadly weapon); Hinchey v. Commonwealth, 432
S.W.3d 710, 713 (Ky. App. 2014) (first-degree wanton endangerment, fleeing or
evading police, resisting arrest, and criminal trespassing).
On the other hand, cases where Courts have decided to suppress
evidence of the arresting offense have done so where the officers cited other
reasons to support their searches or stated that they were performing merely
-13- general investigations for other evidence. See, e.g., Rose v. Commonwealth, 322
S.W.3d 76 (Ky. 2010) (the exception for vehicles harboring evidence of the crime
of arrest did not apply where officers saw defendant, who was wanted on two
outstanding, arrest warrants regarding stolen checks, arrested her and searched the
car finding stolen checks because the deputy testified directly that he did not search
the vehicle for the purpose of obtaining evidence relating to the two warrants);
Gasaway v. Commonwealth, 671 S.W.3d 298, 321 (Ky. 2023) (noting a search
incident to arrest must not be “generally investigative” but, rather, “a specific
search for evidence of the crime of arrest”); Turner v. Commonwealth, No. 2009-
CA-002141-MR, 2011 WL 3516298 (Ky. App. Jan. 6, 2011)2 (where no evidence
regarding the arresting offense of failure to have an operator’s license was the
subject of the search of a trunk that uncovered drugs, the evidence should be
suppressed; Court did not address uncharged issue of defendant’s criminal, visible,
open container of alcohol in the car that could have allowed valid search for other
open containers).
In an unpublished case analogous to this one, the Kentucky Supreme
Court declined suppression. In Mucker, supra, officers responded to calls
regarding a fight in the parking lot involving a gun, and an identification of
defendant as the one with the gun. They detained the defendant and found a
2 This case is likewise not cited as binding authority, but rather merely as illustrative. RAP 41.
-14- loaded gun on his person. They arrested him and performed a license plate check,
which revealed the defendant owned the car. They then conducted a search, during
which they discovered a modified, sawed-off shotgun, a holster, shells, and a
loaded magazine fitting the handgun found previously on the defendant. Id. at *1.
The Supreme Court held that the search was valid because it sought evidence
relevant to the crime of Carrying a Concealed Deadly Weapon, for which the
defendant had been arrested. Mucker had argued that no additional evidence could
reasonably be believed to exist in the car for the arresting charge because the
Commonwealth had already garnered from his person all of the evidence sufficient
to prove the charge. However, in rejecting that argument, the Court noted that it
had allowed searches of vehicles for weapons pursuant to Gant where drugs had
already been located on Defendants that would have supported convictions for
narcotics charges. The Court also noted that the search could lead to evidence
relevant to the Carrying a Concealed Deadly Weapon charge, for instance where
ammunition might be located to refute certain defenses to the charge.
Accordingly, the Court affirmed the denial of suppression.
Because the present appeal involves a warrantless search, we review
the Trial Court’s findings of fact for clear error, but we conduct a de novo review
of its legal determinations on the motion to suppress. Gasaway, 671 S.W.3d at 316
(citing Commonwealth v. Pride, 302 S.W.3d 43, 49 (Ky. 2010)). See also
-15- Commonwealth v. Marr, 250 S.W.3d 624, 626-27 (Ky. 2008) (citing Adcock v.
Commonwealth, 967 S.W.2d 6, 8 (Ky. 1998)). Our review must also be mindful
that exceptions to the warrant requirement must be narrowly drawn. Gasaway, 671
S.W.3d at 316 (citing Flippo v. West Virginia, 528 U.S. 11, 13, 120 S. Ct. 7, 8, 145
L. Ed. 2d 16 (1999)). In this case, it should be noted that the evidence presented
by the Commonwealth was uncontroverted; and therefore, we assume that these
are the facts upon which the Trial Court based its judgment.
Turning now to those undisputed facts of this case, Defendant was the
subject of a welfare check due to his wife’s report of his drunkenness and potential
danger to himself and others. Officers discovered him at the previously-pinged gas
station location, alone, in the driver’s side of the vehicle with open, alcoholic
beverage containers3 on the seat with him in the cabin. When they asked him for
his operator’s license, he produced a counterfeit license as if it were valid. He did
not merely fail to produce any license or even tender an expired license, but rather
he deliberately volunteered a simulated card that appeared to be legitimate.
Officers then asked him to step outside of his truck, but did not handcuff him, and
they continued the investigation. Only then, after officers informed Defendant that
their investigation determined that the license was invalid, and that Defendant had
an expired license in Florida with a different number, did Defendant finally admit
3 Police did not charge Defendant with crimes related to intoxicants.
-16- that he had attempted to pass a fake, manufactured license that he had purchased
from another.
Officer Barrow testified that he decided to search Defendant’s truck
for other evidence of forged materials such as additional identification cards,
documents, templates, or printers. He testified that he looked in the driver’s side
door compartment because in his experience, documents are commonly kept there.
To be clear, he averred with particularity that he searched for evidence specifically
and solely related to the crime of producing a false identification. Nonetheless,
instead of additional forgeries, he discovered a glass smoking pipe with suspected
methamphetamine residue in that location. Officers then arrested and handcuffed
Defendant. They then continued the search of the rest of the vehicle, which
contained more narcotics and paraphernalia. There is absolutely no testimony or
other evidence that police were initially searching for evidence other than that of
the original, arresting offense, Criminal Possession of a Forged Instrument in the
Third Degree, when they happened to discover narcotics leading to additional
charges of Possession of a Controlled Substance I (Methamphetamine) and
Possession of Drug Paraphernalia.
Upon hearing Defendant’s motion to suppress, the Trial Court ruled
that Defendant’s unsworn statement to officers was significant in that he explained
that the forgery was the only document in his possession, and that he needed it to
-17- obtain work. The Trial Court then concluded that “[t]here was no probable cause
to believe any other forged documents were in the vehicle,” and it was “also highly
unlikely that any materials used to manufacture the forged ID would be located in
the vehicle.” (Emphasis added.)
The Trial Court did not explain the credibility given to
uncorroborated, unsworn, self-serving statements made by a person then known to
have already engaged in fraud by his own admission to police officers. Likewise,
the Trial Court did not elaborate the reasons, or cite any caselaw, for using a
“probable cause” standard to review the officers’ uncontradicted statements.
Controlling precedent does not delineate a standard of probable cause
for assessing officers’ actions in making vehicle searches under Gant. The
majority Opinion does not hold that probable cause is the correct standard either.
It uses the lesser standards of “reasonable suspicion” and “reasonable belief,”
binding terms used by Kentucky Courts. See, e.g., Rose, 322 S.W.3d at 80 (“an
officer may search a vehicle even when the arrestee is secured if he has a
reasonable suspicion that the vehicle harbors evidence of the crime of arrest
. . . .”) (emphasis added and in original), and Commonwealth v. Bembury, 677
S.W.3d 385, 394-95 (Ky. 2023) (“police may search an arrestee’s vehicle . . . if the
officer has a reasonable belief that the vehicle may contain evidence of the crime
of arrest.”) (emphasis added). Using those lower standards, the majority finds that
-18- the officers’ search of Defendant’s vehicle was not reasonable because Defendant
himself provided reasons, albeit not under oath and subject to cross-examination,
for possessing this contraband. But he only proffered after he tried to pass off the
forged instrument and after officers determined the identification was forged and
after officers told him as much.
Under the totality of all of these circumstances, Defendant’s ex post
facto explanation serves to bolster the reasonable belief, not destroy it. Defendant
admitted to committing the crime. Thus, officers had probable cause to conclude
that Defendant committed the criminal act. Now, standing on a solid footing that a
crime had been committed, officers reasonably believed they might find additional
evidence of forged instruments in the driver’s door pocket. Indeed, one Officer
admitted he himself kept his own wallet in his driver’s door pocket.
Moreover, Defendant’s statement that he needed the forged
instrument to obtain employment is an admission that he intended to or already had
misled or been untruthful to others. Defendant’s admissions to deceptive practices,
and his prior untruthful statements, should have heightened the need for the
officers to search for additional evidence of the charged crime, both for evidence to
corroborate what was true and for evidence of other forged instruments.
Regardless, simply proffering a reason to disobey the law does not
negate the officers’ lawful right to search a vehicle for evidence of the admittedly
-19- broken law. If a defendant in a vehicle admittedly containing narcotics told
officers that he needed the narcotics to calm down enough to maintain
employment, that excuse would not disallow officers from searching the vehicle
for more narcotics, paraphernalia, evidence of trafficking, or even weapons.4
Likewise, it would not pass muster for a defendant in a car with a gun arrested for
carrying a concealed deadly weapon to offer the excuse that he needed the gun for
protection. Indeed, a search for ammunition would be appropriate to attempt to
counter an argument that the gun was not operable or that he did not own it. Here,
evidence of other forged documents or items used to manufacture such documents
could be used to thwart Defendant’s claims. But pursuant to Gant, the inquiry is
simply whether there was a reasonable belief that they would discover evidence of
the charged offense in their search. In these circumstances, the Officers had a
reasonable belief that the driver’s door pocket may contain additional forged
instruments.
Unlike the officers in Rose, who flatly stated that they were not
looking for evidence of the arresting offense (and had their evidence suppressed),
Officer Barrow clearly testified that such evidence was the only evidence for
4 Notably, guns may be connected to drug activity, and a key factor to their connection to drug activity is their location or proximity to the drug activity or evidence. See Goben v. Commonwealth, 503 S.W.3d 890, 918-20 (Ky. 2016) (detailing case law regarding the connection between weapons and substantial narcotics activity). Compare with Brewer v. Commonwealth, 206 S.W.3d 343 (Ky. 2006) (holding that the Commonwealth must prove a nexus between firearms and narcotics trafficking for the firearms to be subject to forfeiture).
-20- which he looked. There is zero evidence that he was looking for drugs or anything
else. In other words, Officer Barrow reasonably articulated a belief that evidence
of criminal activity that was the arresting offense might be found in the place
where he was searching. This search is precisely the type that Gant and its
progeny permit. It is reasonable to believe that another false identification might
be located in the door compartment where documents are kept. The officer would
have been entitled to search the glove box and the console as well, as those
compartments also tend to be used to store documents. Where there is one false
document produced from a vehicle, there is likely another; just as when there are
some drugs on a driver in a car, there are likely more. This is the very rationale of
the law.
Moreover, Officers charged Defendant with Criminal Possession of a
Forged Instrument in the Third Degree, a misdemeanor, which is defined a
possession of a known forged instrument “with intent to defraud, deceive or injure
another” while “utter[ing] or possess[ing] a forged instrument.” Kentucky Revised
Statute (KRS) 516.070. This statute is broad enough that an officer could be
looking for evidence of Defendant’s intent to “injure another” as the statute defines
the crime. Indeed, Defendant admitted he was defrauding, deceiving, or injuring
another because he was using the forged instrument to obtain employment.
-21- Perhaps Defendant kept pay stubs or work-related documents in the driver’s side
door pocket.
The fact that officers did not find any further evidence of forged
instruments is a red herring – just as is the argument that the officers had all of the
evidence that they needed to charge Defendant with the crime the evidence for
which they searched. Gant and its progeny have never focused on a result-driven
analysis. See, e.g., Gant, 556 U.S. 332, 129 S. Ct. 1710, and McCloud, 286
S.W.3d 780 (searches for drugs alone discovered guns and more drugs); Owens,
291 S.W.3d 704 (search for evidence relating solely to charge of operating on a
suspended license yielded drugs and paraphernalia).
Indeed, in Gant itself, the arrest was for the crime of driving on a
suspended license, an offense for which one would not expect to find any
additional evidence of the offense of arrest. And that charge is not as incriminating
as the one here. A suspended license is very different than a fake license. The
evidence of the former is self-contained – the license itself shows that it is expired.
See, e.g., Gant, 556 U.S. at 344, 129 S. Ct. at 1719 (“Whereas Belton and Thornton
were arrested for drug offenses, Gant was arrested for driving with a suspended
license – an offense for which police could not expect to find evidence in the
passenger compartment of Gant’s car.”). A false identification does not itself tell
the whole story; in fact, just the opposite, as it opens up a host of questions about
-22- what is true: are there other false documents; what is the real identity of this
person; does this person have other aliases or identifications (which would be
important for booking, putting into police databases for future incidents, etc.); are
the other documents the arrestee is giving the officer legitimate; is there additional
evidence of this person’s real identification in the vehicle; where did the false
identification come from, is there evidence in the vehicle of who manufactured this
false identification; and is there evidence of others who have been defrauded or
injured by Defendant’s use of this false identification?
The majority concludes that “[t]he fake license, with nothing more,
was insufficient evidence to create a reasonable belief to support the warrantless
search of Soto Adame’s vehicle.” But this conclusion is based on the credibility
given to Defendant’s ultimate confession at the scene, which was not an
evidentiary, sworn statement, that the false identification was only used to secure
employment. Taken to its logical conclusion, then, this holding means that
whenever any defendant says that there is no additional evidence of criminality in
his vehicle, the police cannot search it. In other words, under its ruling, where a
defendant is charged with an offense for which there is a reasonable belief that
other evidence of the charged offense could be found in the vehicle, and the
defendant makes a statement purporting to limit the impact of the charged offense,
-23- then the officers’ reasonable belief is destroyed, and police must stop their lawful
investigation for additional evidence of the offense of arrest.
This interpretation implicitly overrules existing precedent and creates
new law because all binding law, from Gant forward, holds that when officers have
evidence for an arrest and a reasonable belief that they may find additional
evidence of the offense of arrest – with nothing more – they are permitted to search
a vehicle for evidence of the arresting offense regardless of a defendant’s claim of
future innocence as to other crimes. The majority’s holding would create chaos for
police, lawyers, and Courts, forcing them to delineate separate structures under
which officers could search for each particular crime, and perhaps forbidding
officers to search for evidence in vehicles relating to certain crimes that were the
subject of an arrest. Such is not the state of the current law, and we do not have the
authority to up end it.
In light of the foregoing, I must conclude that the Trial Court clearly
erred by granting Defendant’s motion to suppress the evidence seized from his
vehicle following the search incident to arrest. As noted, the Trial Court
improperly applied the probable cause standard, rather than the reasonable
suspicion/belief standard required by Gant. Moreover, I cannot agree with the
majority that the evidence presented by the Commonwealth fails to meet Gant’s
requirements. To the contrary, the undisputed evidence clearly shows that the
-24- officers had a reasonable belief that Defendant’s vehicle would contain additional
evidence of the crime of Criminal Possession of a Forged Instrument. Therefore, I
would reverse the Trial Court’s order granting the motion to suppress, and remand
with directions to the Trial Court to deny the motion and proceed to the further
merits of the charged offenses.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE
Daniel Cameron Kayla Deatherage Attorney General of Kentucky Frankfort, Kentucky
Matthew F. Kuhn Solicitor General
Rachel Wright Assistant Solicitor General Frankfort, Kentucky
-25-