Commonwealth v. Alberhasky

497 S.W.3d 767, 2015 Ky. App. LEXIS 133, 2015 WL 5299613
CourtCourt of Appeals of Kentucky
DecidedSeptember 11, 2015
DocketNO. 2014-CA-001167-MR
StatusPublished

This text of 497 S.W.3d 767 (Commonwealth v. Alberhasky) 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
Commonwealth v. Alberhasky, 497 S.W.3d 767, 2015 Ky. App. LEXIS 133, 2015 WL 5299613 (Ky. Ct. App. 2015).

Opinion

OPINION

J. LAMBERT, JUDGE:

The Commonwealth of Kentucky appeals from the Jefferson Circuit Court’s order suppressing the evidence seized in this case. After careful review, we reverse and remand.

This case arose when Detective Kevin McKinney with the Louisville Metro Police Department received a tip that Mark Albe-rhasky, Joshua Goode, and Jeremy Travil-lian (Appellees) would be purchasing supplies to manufacture methamphetamine. While conducting surveillance, Detective McKinney witnessed a car pull into the Kroger parking lot and saw two individuals exit the vehicle and enter the store. As he watched, Detective McKinney observed that the vehicle, which was driven by Ap-pellee Goode, had an expired license plate. Subsequently, Detective McKinney witnessed Appellees Goode and Travillian exit Kroger, place something in the trunk of the automobile, and drive out of the parking lot. When the vehicle exited the parking lot, Goode failed to use a turn signal when completing a turn. Detective McKinney also observed that Goode’s expired temporary license plate was not illuminated properly. At this point, Detective McKinney initiated a stop.

After stopping the vehicle, Detective McKinney approached the driver’s side window and spoke to Goode. During this initial contact, Detective McKinney requested and was granted verbal consent from Goode to search the vehicle and its trunk. Detective McKinney testified he [769]*769did not force or threaten Goode in order to obtain that consent. He believed that Goode understood the request to search, and he did not detect the presence of any alcohol or drugs which would have affected Goode’s reasoning or judgment.

The Jefferson County Grand Jury indicted Appellees on one count of complicity to manufacturing methamphetamine. The charge was based upon Appellees’ possession of chemicals and equipment for the manufacture of methamphetamine. At the arraignment, a trial date was scheduled for January 30, 2013.

In November 2012, Appellee Goode filed a motion to suppress all evidence seized in the search of his vehicle. In his motion, Goode claimed that he was stopped, his vehicle was searched, and evidence was seized without a warrant, and that this was done without probable cause, reasonable suspicion, or valid consent.

On August 13, 2013, the trial court held a suppression hearing. At the hearing, the Commonwealth called Detective McKinney. McKinney testified to the above events, and on cross-examination, he confirmed that he did not obtain written consent to search Goode’s vehicle. Goode’s counsel then inquired about the Louisville Metro Police Department’s standard operating procedures regarding a consent search. Goode tendered a copy of the procedures, specifically § 8.24.4, which was admitted as an exhibit. This procedure states:

The use of the Consent to Search form (LMPD # 06-0036) is mandatory for all consent searches of premises or vehicles. An exception to this order would be situations where verbal consent is given to search a vehicle or home and consent is recorded using one (1) of the department’s in-car cameras or a tape recorder.

Goode did not testify at the suppression hearing, and neither did the other two defendants. At no time did Goode argue that he did not give consent to Detective McKinney.

On July 10, 2014, the trial court entered an order suppressing all evidence obtained or seized from the vehicle or from Appel-lees during the March 19, 2012, search. After stating that Goode gave consent for Detective McKinney to search, the court held, “[t]he decision by police in this case to. intentionally disregard the standard operating procedures of the Louisville Metro Police Department regarding consent searches renders the warrantless search invalid.” This appeal by the Commonwealth now follows.

On appeal, the Commonwealth argues that the circuit court erred when it suppressed evidence because of an alleged ■violation of internal police policy. In support of this argument, the Commonwealth argues that the search did not violate the Appellees’ Fourth Amendment rights, and therefore the exclusionary rule did not apply.

When evidence is suppressed under the Fourth Amendment, the standard of review of the circuit court’s decision is twofold. Stewart v. Commonwealth, 44 S.W.3d 376, 380 (Ky. App. 2000). First, the factual findings of the court are conclusive if those findings are supported by substantial evidence. Id. Second, the appellate court conducts a de novo review to determine whether the circuit court’s decision is correct as a matter of law. Id.

The Commonwealth argues that in suppressing the evidence seized from Goode’s vehicle, the court determined that the decision by police to intentionally disregard the standard operating procedures of the Louisville Metro Police Department regarding consent searches rendered the search invalid. In doing so, the Commonwealth argues that the circuit court misapplied the exclusionary rule. We agree.

[770]*770The exclusionary rule is only applicable to searches that violate an individual’s constitutional rights. Copley v. Commonwealth, 361 S.W.3d 902, 905 (Ky.2012) (citing Brock v. Commonwealth, 947 S.W.2d 24, 29 (Ky. 1997)). A review of the case law indicates that mere violation of a government regulation or internal policy is not sufficient grounds to trigger application of the exclusionary rule. In Whren v. United States, 517 U.S. 806, 808, 116 S.Ct. 1769, 1772, 135 L.Ed.2d 89 (1996), plainclothes police officers in an unmarked vehicle stopped the defendants’ vehicle for failing to signal and speeding. The stop violated police regulations, which limited the authority of plainclothes officers in unmarked vehicles. Whren, 517 U.S. at 815, 116 S.Ct. at 1775. The Court held that the officers acted reasonably in effecting the stop. Id. at 817-19, 116 S.Ct. at 1776-77. Further, the Court stated, “police enforcement practices, even if they could be practicably assessed by a judge, vary from place to place and from time to time. We cannot accept that the search and seizure protections of the Fourth Amendment are so variable[.]” Id. at 815, 116 S.Ct. at 1775.

Similarly, in Bratcher v. Commonwealth, 424 S.W.3d 411, 415 (Ky. 2014), the Supreme Court of Kentucky stated that evidence seized in violation of a Department of Corrections’ policy would not be subject to suppression by application of the exclusionary rule. In that case, a police officer made contact with the defendant’s probation officer to have the probation officer conduct a search of the defendant’s residence. Id. at 412. In affirming the denial of the defendant’s motion to suppress the evidence obtained in that search, the court explained:

It is fundamental that by administrative rule or statute a state may impose upon its police authorities more restrictive standards than the Fourth Amendment requires. Such standards, however, cannot expand the scope of the Fourth Amendment itself. Virginia v. Moore,

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Related

Whren v. United States
517 U.S. 806 (Supreme Court, 1996)
Virginia v. Moore
553 U.S. 164 (Supreme Court, 2008)
Commonwealth v. Erickson
132 S.W.3d 884 (Court of Appeals of Kentucky, 2004)
Stewart v. Commonwealth
44 S.W.3d 376 (Court of Appeals of Kentucky, 2000)
Commonwealth v. Bothman
941 S.W.2d 479 (Court of Appeals of Kentucky, 1997)
Brock v. Commonwealth
947 S.W.2d 24 (Kentucky Supreme Court, 1997)
Copley v. Commonwealth
361 S.W.3d 902 (Kentucky Supreme Court, 2012)
Bratcher v. Commonwealth
424 S.W.3d 411 (Kentucky Supreme Court, 2014)

Cite This Page — Counsel Stack

Bluebook (online)
497 S.W.3d 767, 2015 Ky. App. LEXIS 133, 2015 WL 5299613, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-alberhasky-kyctapp-2015.