Commonwealth v. Fowler

409 S.W.3d 355, 2012 WL 4210110, 2012 Ky. App. LEXIS 187
CourtCourt of Appeals of Kentucky
DecidedSeptember 21, 2012
DocketNo. 2011-CA-001581-MR
StatusPublished

This text of 409 S.W.3d 355 (Commonwealth v. Fowler) 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. Fowler, 409 S.W.3d 355, 2012 WL 4210110, 2012 Ky. App. LEXIS 187 (Ky. Ct. App. 2012).

Opinion

OPINION

MOORE, Judge:

The Commonwealth of Kentucky appeals the Jefferson Circuit Court’s order granting Henry Lee Fowler, Jr.’s motion to suppress. After a careful review of the record, we reverse and remand for further proceedings because the circuit court’s interpretation of KRS1 189.380 was incorrect.

I. FACTUAL AND PROCEDURAL BACKGROUND

According to the uniform citation that was included in the record, Officer John White of the Louisville Metro Police Department observed the vehicle that Fowler was driving change lanes without using a turn signal. Officer White then stopped the vehicle and, during the stop, Officer White “smelled a strong odor of marijuana coming from inside the vehicle.” Fowler informed the officer that “he had some drugs in his pocket.” The uniform citation stated that “[i]n the subject[ ]s right pocket were two separate small plastic bags containing what the subject said to be crack cocaine (2 white rocks). Under the driver[ ]s seat four small bags of marijuana were found.” Fowler was indicted on charges of: (1) Illegal possession of a controlled substance in the first degree, schedule II cocaine; (2) Illegal possession of a controlled substance, schedule I hallucinogen marijuana; (3) Failure to give a proper traffic signal; and (4) Persistent [357]*357Felony Offender in the first degree (PFO-lst).

Fowler moved to suppress all counts of the indictment on the basis that Fowler believed the stop of his vehicle was pretex-tual and, therefore, unlawful. Accordingly, Fowler argued that the search and seizure were unconstitutional because there was no probable cause to support the search and seizure.

A suppression hearing was held, and the circuit court entered an order granting Fowler’s motion to suppress. In that order, the court included the following findings of fact:

Officer White testified that ... he observed a vehicle traveling eastbound on Jacob Street in Louisville, Kentucky. The vehicle made a right turn onto Shelby Street, and Officer White followed. Then, without using a signal, the vehicle entered the left lane and, also without signaling, turned left onto Mason Avenue. As a result of failing to use a signal before the lane change, not the left turn, Officer White initiated a traffic stop that culminated in the arrests of the Defendant and his passenger, Tara Edwards, for various drug[-]related offenses.

Regarding Officer White’s testimony, the circuit court noted as follows:

During cross examination, Officer White unequivocally testified that he stopped the vehicle because of the Defendant’s failure to use a signal during the lane change, not because the lane change was unsafe, the failure to signal the turn, or because the Defendant was driving through an area known for rampant crime. This is consistent with the account included in the uniform citation. Accordingly, the Court is compelled to conclude that this was the sole reason for the stop.

The circuit court continued with its findings of fact:

Although her testimony could result in the additional charge of complicity, Ms. Edwards took the stand for the defense. She testified that she owned the vehicle, and on the date of her arrest she was in a relationship with the Defendant. Earlier in the evening before starting work at approximately 6:00 p.m., she consumed a Lortab pill. She received a ride from the Defendant after her shift ended at approximately 2:00-2:30 a.m. Ms. Edwards asserted that the Defendant used his turn signals to change lanes and turn left onto Mason, and never drove in a manner she would describe as reckless. When asked why she would remember such specific details about the Defendant’s driving, Ms. Edwards stated that she has a habit of noticing such things. Once stopped, another officer, Mark Oerther, found an additional Lortab pill. Ms. Edwards was charged with possession of a controlled substance and subsequently pleaded guilty to a misdemeanor that has been diverted for two years.
After review, the Court believes Officer White’s account of events leading up to the stop and finds that the vehicle’s turn signal was not in use when making the lane change. Although the testimony presents a classic “he said/she said” scenario, on balance Ms. Edwards’ credibility is compromised for two reasons. First and foremost, it is difficult to believe that someone who admittedly consumed Lortab before a lengthy shift would remember with clarity whether the driver of her vehicle used the turn signal to change lanes. Additionally, Ms. Edwards would benefit from suppression by the foreclosure of additional charges or the possibility of being called to testify at trial. Conversely, Officer White is in the business of noticing traf-[358]*358fíe violations and suffered no issues with credibility. His testimony was consistent and precise throughout the hearing and he is simply more believable than Ms. Edwards.

(Footnotes omitted).

The court then interpreted KRS 189.380 and concluded that the statute did not require drivers to signal before making a lane change. Rather, the court held that the statute only required drivers to ensure that their lane changes could be completed with reasonable safety before changing lanes. Thus, because the circuit court concluded that no signal was required before changing lanes, the court reasoned that there was no probable cause for the stop of Fowler’s vehicle and, accordingly, that the drugs found following the stop had to be suppressed as fruit of the poisonous tree.

The Commonwealth now appeals, contending that: (a) KRS 189.380 requires a signal before making a lane change; and (b) even if we were to assume, for the sake of argument, that KRS 189.380 does not require a signal before changing lanes, the drug evidence at issue should not have been suppressed because the officer acted in good faith in stopping Fowler’s vehicle.

II. STANDARD OF REVIEW

The Kentucky Supreme Court has held that the test to use on appeal in reviewing a ruling concerning a warrant-less search is: “First, review the factual findings of the circuit judge to see if they are supported by substantial evidence, RCr[2] 9.78, and then review the ruling on the motion to suppress de novo to see whether the decision was correct as a matter of law.” Commonwealth v. Pride, 302 S.W.3d 43, 49 (Ky.2010). We review findings of fact for clear error, and we “give due weight to inferences drawn from those facts by resident judges and local law enforcement officers.” Stewart v. Commonwealth, 44 S.W.3d 376, 380 (Ky.App.2000) (internal quotation marks and citations omitted). We also “give due weight ... to the circuit court’s findings on the officers’ credibility.” Baltimore v. Commonwealth, 119 S.W.3d 532, 539 (Ky.App.2003).

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Related

Smith v. Sizemore
300 S.W.2d 225 (Court of Appeals of Kentucky (pre-1976), 1957)
Stewart v. Commonwealth
44 S.W.3d 376 (Court of Appeals of Kentucky, 2000)
Monumental Life Insurance Co. v. Department of Revenue
294 S.W.3d 10 (Court of Appeals of Kentucky, 2008)
Commonwealth v. Pride
302 S.W.3d 43 (Kentucky Supreme Court, 2010)
Baltimore v. Commonwealth
119 S.W.3d 532 (Court of Appeals of Kentucky, 2003)
McCoy v. Carter
323 S.W.2d 210 (Court of Appeals of Kentucky (pre-1976), 1959)
Ford v. Robinson
428 S.W.2d 772 (Court of Appeals of Kentucky, 1968)

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Bluebook (online)
409 S.W.3d 355, 2012 WL 4210110, 2012 Ky. App. LEXIS 187, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-fowler-kyctapp-2012.