Davidson v. Commonwealth

613 S.W.2d 431, 1981 Ky. App. LEXIS 229
CourtCourt of Appeals of Kentucky
DecidedFebruary 27, 1981
StatusPublished
Cited by3 cases

This text of 613 S.W.2d 431 (Davidson v. Commonwealth) 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
Davidson v. Commonwealth, 613 S.W.2d 431, 1981 Ky. App. LEXIS 229 (Ky. Ct. App. 1981).

Opinion

HOWARD, Judge.

This is an appeal from a judgment in the Jefferson Circuit Court affirming a judgment in the Jefferson District Court, Juvenile Division. Scott Davidson, age 11, appeals his conviction for criminal mischief in the first degree and joins Brian Davidson, age 7, in appealing the court’s ruling that [433]*433probable cause existed to initially arrest both appellants.

The points on appeal in this troubling case are: 1) whether the arresting officer knew sufficient facts prior to taking the boys into custody to conclude there was probable cause for arrest; 2) whether appellants’ arrest or detention was in violation of K.R.S. 208.110 and K.R.S. 208.120; 3) whether the “confessions” obtained by the arresting officer were procured illegally and therefore should be suppressed; 4) whether the proof relied on in the court’s determination of guilt was improperly admitted or used and whether the proof shows guilt beyond a reasonable doubt; 5) whether appellants’ Fourth Amendment rights were violated by their warrantless arrest; and 6) whether appellants were misled by a trial court ruling which induced them not to put on witnesses.

Resolution of this case requires a rather detailed recital of the facts. On August 20, 1979, Mrs. Bilbrey discovered that a house she and her husband owned, located at 1006 Grade Lane in Louisville, Kentucky, had been vandalized. She had last visited the house, which they were preparing to lease, some five days previously. She called the police from the home of Mike McFarland and Terry Raisor, located two houses down from the Bilbrey house.

Officer Cissell responded to the call at approximately 7:30 P.M. and examined the house. Cissell, a part-time electrical contractor, estimated that the damage amounted to approximately $7,000.00 to $7,500.00, sufficient to make the vandalism a felony offense. He asked the Bilbreys if they had any idea who had done the damage. Mrs. Bilbrey told him that Ms. Raisor, the neighbor, had told her that “Scott and Brian” did it. Cissell testified that the Bilbreys volunteered this information without being asked.

Further, Cissell testified that Mrs. Bil-brey told him that Mr. Bilbrey had seen the Davidson boys tear up another empty house at some unspecified time. This evidence was objected to by the defense, first because it had nothing to do with the damage to the Bilbrey house and, in and of itself, shows no motive, plan or scheme and, second, because it was hearsay. The evidence was admitted by the trial court for identification purposes, a question not raised, and not for substantive purposes.

Cissell then went to speak to McFarland and Raisor. He testified that “I asked them if they knew and seen who had done it and they advised that they did. And they advised me it . was the two Davidson boys.”

McFarland testified that he only told Cis-sell that the day before he had heard glass breaking and upon investigation, less than two minutes, he saw Scott Davidson “leaving the backyard” of the Bilbrey house. The Davidson backyard adjoins the backyard of the Bilbrey house.

Ms. Raisor testified that she did not speak to Cissell at that time about the Davidson boys except to point out where they lived. She stated that she was not present when Cissell questioned McFarland and that later, apparently after the boys’ detention, she “didn’t tell him that I was for sure that I knew that they were the ones that did it.” She also testified at trial that she had seen the Davidson boys with some other children running through the Bilbrey yard on the nineteenth.

After obtaining the above information, Cissell proceeded to the Davidson home. He testified that he was admitted to the house by Cindy Davidson, the sixteen-year-old sister of the boys. He asked where the boys were and was told that they were in bed. It was then approximately 8:00 P.M. Upon his request to speak to the boys, she went to the bedroom and brought the boys back fully dressed except for shoes. Cissell told the boys to get their shoes on and they left the room. Cissell then asked Cindy how old she was and upon learning her age, told her “well, you’re old enough to understand, then, and to advise your parents that I’ll have them over at the substation on the Outer Loop.” He then asked for the Davidson phone number “so that I could call back and talk to the parents.”

[434]*434Cissell admits that he had not stated either to the boys or to Cindy that the boys were under arrest or detained or what the charges were. He also admits that Cindy told him that the parents would be back shortly and testified that he has “always made a practice that I just don’t wait.” He did not advise the boys or their sister of their Miranda rights.

Cissell then testified that shortly after the boys returned to the room with their shoes, Scott blurted out that “we weren’t the only ones that done it” and that as they left the house, Brian stated “we weren’t the only ones.” Cissell said he had not then, nor had he ever questioned the boys.

Appellants asserted at trial and again here that Officer Cissell lacked sufficient information to conclude that there was probable cause to arrest the Davidson boys. Probable cause, as we have stated in Shull v. Commonwealth, Ky., 475 S.W.2d 469, 471 (1972), “exists when the facts and circumstances within the arresting officer’s knowledge or of which they have reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution to believe that an offense has been committed or is being committed.” “Suspicion of the commission of a felony is insufficient to authorize an arrest.” Guthrie v. Commonwealth, Ky., 508 S.W.2d 40 (1974).

At the time Officer Cissell took the Davidsons into custody, he knew 1) that an estimated $7,000.00 to $7,500.00 worth of damage had been done to the Bilbrey house; 2)- that Scott Davidson had been seen in the Bilbrey backyard less than two minutes after glass-breaking had been heard; and 3) that Mrs. Bilbrey said Mr. Bilbrey had seen the Davidson boys tear up another vacant house at some unspecified previous time. It should also be pointed out that Officer Cis-sell testified at trial that he did not know McFarland, Raisor or Mrs. Bilbrey before this time and that he knew Mr. Bilbrey only slightly as a wrecker operator who sometimes worked for the police department.

Officer Cissell had no independent knowledge of the perpetrator of the vandalism. We agree with appellants that there was insufficient information to form a conclusion that there was probable cause for arrest of the Davidson boys. At most, Officer Cissell had grounds to suspect the boys and continue investigation.

Appellants also contend that they were arrested or detained in contravention of K.R.S. 208.110 and K.R.S. 208.120. K.R.S. 208.110 reads, in pertinent part, as follows:

(3)When a peace officer has taken or received a child into custody on a charge of committing an offense ... the officer shall immediately notify the parent, or if the parent is not available, then a relative, guardian, or custodian of the child, that the child has been detained; give an account of specific charges against the child, including the specific statute alleged to have been violated, and the reasons for the detention, and state the time and place of the detention hearing.

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Related

Murphy v. Commonwealth
50 S.W.3d 173 (Kentucky Supreme Court, 2001)

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Bluebook (online)
613 S.W.2d 431, 1981 Ky. App. LEXIS 229, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davidson-v-commonwealth-kyctapp-1981.