Greer v. Commonwealth

514 S.W.3d 566, 2017 WL 943971, 2017 Ky. App. LEXIS 48
CourtCourt of Appeals of Kentucky
DecidedMarch 10, 2017
DocketNO. 2016-CA-001006-MR
StatusPublished
Cited by13 cases

This text of 514 S.W.3d 566 (Greer 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
Greer v. Commonwealth, 514 S.W.3d 566, 2017 WL 943971, 2017 Ky. App. LEXIS 48 (Ky. Ct. App. 2017).

Opinion

OPINION

CLAYTON, JUDGE:

Joshua Greer appeals from the Fayette Circuit Court’s amended judgment and sentence of conviction entered July 7, 2016, subsequent to the court’s order denying his motion to suppress. We affirm the circuit court.

On September 22, 2015, Officer Matthew Merker of the Lexington Police Department attended the routine roll call briefing for the evening shift. During this briefing, Officer Ryan Nichols informed the attending officers that they should be on the lookout for various persons believed to be engaging in drug-related activity in the Centre Parkway/Appian Way area of Lexington, Kentucky. The appellant, Joshua Greer, was mentioned by name during this briefing, and officers were also informed as to the description and license plate number of his vehicle.

Later that evening, at approximately 8:42 p.m., Officer Merker was patrolling the Centre Parkway area in his cruiser when he spotted Greer’s vehicle traveling on Appian Way. Officer Merker recognized the vehicle because it matched the description and license plate number provided during the roll call briefing. The officer also observed that the vehicle’s windows were tinted to such a degree that he could not identify the gender or features of the driver. After identifying the vehicle, Officer Merker telephoned Officer Nichols, who informed him that he needed to find a reason to stop Greer’s vehicle, if possible. Shortly afterward, Officer Merker initiated a traffic stop based upon what he perceived to be excessive window tinting of the vehicle, an equipment violation under Kentucky Revised Statutes (KRS) 189.110(4).

When the officer approached the vehicle, he immediately detected the odor of raw marijuana. As expected, the vehicle was being driven by the appellant, Joshua Greer. Officer Merker explained to Greer that he stopped the car based upon what he believed was excessive window tinting. The officer then attempted to use his tint meter to confirm his suspicions about the tinting, but the device malfunctioned. At some point, other officers, including Officer Nichols, arrived on the scene to assist. Officer Merker asked Greer if there was marijuana in the car, and he admitted there was a quantity of the drug located in the center console. In the subsequent search, Officer Merker not only discovered marijuana in the center console, but also a loaded .40 caliber handgun in the glove compartment. Finally, Officer Merker made another attempt to verify the degree of window tinting by using another officer’s tint meter, but this second device also failed.

In addition to the charge of excessive window tinting, Greer was placed under arrest for being a convicted felon in pos[568]*568session of a handgun,1 possession of marijuana,2 and for driving in violation of his instructional permit.3 The grand jury declined to charge Greer for excessive window tinting, but returned an indictment on all remaining charges stemming from the incident. On February 19, 2016, Greer filed a motion to suppress evidence in Fayette Circuit Court. Following a hearing held March 1, 2016, the circuit court denied the motion to suppress from the bench on March 11, 2016, and entered a written order to that effect on March 16, 2016. Greer subsequently entered a conditional guilty plea to amended charges of being a felon in possession of a firearm and possession of marijuana, reserving the right to appeal the denial of his suppression motion. The Fayette Circuit Court entered its amended final judgment on July 7, 2016, sentencing Greer to a concurrent term of four years’ incarceration with the Department of Corrections. This appeal follows.

Greer’s sole issue stems from the circuit court’s denial of his motion to suppress. “When reviewing a trial court’s denial of a motion to suppress, we utilize a clear error standard of review for factual findings and a de novo standard of review for conclusions of law.” Jackson v. Commonwealth, 187 S.W.3d 300, 305 (Ky. 2006) (citing Welch v. Commonwealth, 149 S.W.3d 407, 409 (Ky. 2004)). Greer argues the initial traffic stop was based on Officer Merker’s incorrect assessment of a vehicle equipment violation, which he contends was mere pretext to give police an opportunity to search his vehicle. He argues there was no substantial evidence that his vehicle was tinted in violation of KRS 189.110(4), and stresses that the grand jury refused to indict him on the charge. In further support of his argument, Greer called Kevin Turner as a witness during the suppression hearing. Mr. Turner operates Turner Tinting in Lexington, and he testified that he complied with KRS 189.110(4) when he tinted Greer’s vehicle. Greer asserts the traffic stop was therefore without a reasonable basis and the subsequent search should be suppressed.

Once the officer smelled the marijuana coming from the car, he had probable cause to search the vehicle and all of its contents. Dunn v. Commonwealth, 199 S.W.3d 775, 776 (Ky. App. 2006). Therefore, the circuit court correctly found that this case hinges on whether the initial stop was justified. Officer Merker testified for the Commonwealth during the suppression hearing, and stated that he was trained in identifying excessive window tinting from his time at the police academy, as well as from his field training. He testified that an overly-tinted window would obscure the gender, features, and clothing details of the driver, and he observed these factors regarding Greer’s vehicle prior to the stop. He also testified that he had stopped approximately ten to twenty people in his three and one-half years as an officer, and had never had his suspicions on excessive window tinting refuted by a tint meter. In its denial of the suppression motion, the circuit court found the vehicle windows were in fact tinted, the officer had a reasonable suspicion based on his training and experience that the tint was illegal, and the appellant did not ultimately need to be found guilty of improper tinting to justify the initial stop.

Greer strongly argues the initial stop was mere pretext, based upon the [569]*569information received by Officer Merker in the roll call briefing, as well as the telephone call to Officer Nichols in which Officer Merker was instructed to find a justification to stop Greer’s vehicle. The Commonwealth does not dispute Greer’s assertion regarding pretext, but instead correctly argues that the officer’s subjective intentions were irrelevant. “It should be noted with regard to the traffic stop, that an officer who has probable cause to believe a civil traffic violation has occurred may stop a vehicle regardless of his or her subjective motivation in doing so.” Wilson v. Commonwealth, 37 S.W.3d 745, 749 (Ky. 2001) cited with approval in Commonwealth v. Bucalo, 422 S.W.3d 253, 258 (Ky. 2013); see also Whren v. United States, 517 U.S. 806, 813, 116 S.Ct.

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Bluebook (online)
514 S.W.3d 566, 2017 WL 943971, 2017 Ky. App. LEXIS 48, Counsel Stack Legal Research, https://law.counselstack.com/opinion/greer-v-commonwealth-kyctapp-2017.