Gregory Fuller v. Commonwealth of Kentucky

• Court: Court of Appeals of Kentucky
• Decided: January 10, 2025
• Docket: 2023-CA-1212
• Status: Unpublished

Opinion

RENDERED: JANUARY 10, 2025; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2023-CA-1212-MR

GREGORY FULLER APPELLANT

APPEAL FROM KENTON CIRCUIT COURT v. HONORABLE PATRICIA M. SUMME, JUDGE ACTION NO. 23-CR-00465

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION VACATING AND REMANDING

** ** ** ** **

BEFORE: THOMPSON, CHIEF JUDGE; A. JONES AND LAMBERT, JUDGES.

LAMBERT, JUDGE: Gregory Fuller appeals his September 25, 2023, conviction

for possession of a controlled substance in the first degree. He challenges the

denial of his motion to suppress evidence and argues that the court erred by failing

to grant him probation. After careful review of the briefs, record, and law, we

vacate and remand for further consideration of Fuller’s motion to suppress. BACKGROUND FACTS AND PROCEDURAL HISTORY

In April 2023, the Kenton County grand jury indicted Fuller on a

charge of first-degree possession of a controlled substance, a class D felony. Fuller

subsequently sought to suppress the Commonwealth’s evidence, arguing that

Officers Williams and Igo of the Covington Police Narcotics Unit had unlawfully

detained and searched him without probable cause, reasonable suspicion, or any

other exception to the warrant requirement.

The court conducted a suppression hearing on July 17, 2023, where it

heard testimony from the officers and their body camera footage was entered into

evidence. The evidence established that on March 28, 2023, the officers were

conducting a proactive patrol on Howell Street in an unmarked vehicle. At

approximately 3:30 PM, they observed Fuller enter into a residence at 2113 Howell

Street and exit approximately a minute later. Fuller then crossed the street

diagonally outside of a crosswalk, committing a jaywalking1 violation, and headed

towards a nearby corner store.

The officers both asserted that the residence Fuller entered was a

known drug house, citing in support its inclusion on a community-based list posted

to all patrolmen due to multiple narcotic complaints. Officer Igo further testified

that the house had been a problem and under investigation for narcotics activity

1 Kentucky Revised Statutes (KRS) 189.570(6).

-2- since 2017, and that he had frequently stopped by the residence when on patrol and

that there were always drug users and traffickers present. He explained that the

residence had been added to the community-based list due to complaints from

residents of the area that drug users were going from the residence to a nearby

alley and shooting up and because there was a suspected methamphetamine dealer

at the residence, who Officer Igo named. Based on this knowledge as well as their

observations of Fuller’s brief visit to the residence and his jaywalking violation,

the officers decided to question Fuller.

The body camera footage showed Officer Williams exit the vehicle,

call to Fuller, identify himself as police, and instruct Fuller to have a seat. Fuller

denied any wrongdoing and refused to sit. Officer Williams rapidly repeated his

instructions multiple times while reaching for Fuller’s arm. Officer Williams

grabbed Fuller’s arm and physically sat him on the curb over protestations that his

rights were being violated. Officer Williams then performed a brief frisk of

Fuller’s outer clothing, which produced nothing. When Fuller attempted to stand

up, Officer Igo told Officer Williams to detain him. Fuller resisted being

handcuffed, yelling protestations of his innocence, screaming for help, and

attempting to pull his hands free, but was ultimately cuffed. In justification of his

response, Fuller claimed that he had thought the officers were going to kill him.

Officer Igo then announced that Fuller had dope in his hand. Fuller denied this and

-3- did not comply with the officers’ commands to open his hand. The officers

proceeded to pry Fuller’s fingers open and extracted a small baggie, identified by

Officer Igo as containing suspected methamphetamine. Approximately two

minutes elapsed between the time Officer Williams contacted Fuller to the time the

officers forced Fuller’s hand open. The officers arrested Fuller, who made

statements to police after being read his Miranda2 rights.

During his testimony, Officer Williams explained that he restrained

Fuller because his “thousand-yard glance” made him suspect that he would run,

and he frisked Fuller because of his unexplained reluctance to sit down. Officer

Williams also stated that he was not aware Fuller was holding anything in his hand

prior to Officer Igo’s statement that Fuller had drugs. Up to that point, Fuller was

only being detained, not arrested. Officer Igo testified that when Officer Williams

made contact, Fuller promptly balled something in his hand, tensed up, and tried to

enter the store. Officer Igo admitted that he could not see that the clenched item

was narcotics, but he knew it was not a gun. He inferred it was drugs because

Fuller had just left a known drug house.

The court orally denied the suppression motion on July 31, 2023, and

stated as follows:

My determination was that he was walking out of a known crack house, they were aware of it. As he was

2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

-4- crossing the street, he was in violation of an ordinance, local rule. Nothing too spectacular, but certainly enough for the police to be able to approach him without coming out [of] nowhere, just starting a casual conversation as if under Terry.3 So, when they got there, it’s my understanding from hearing the testimony that police officers saw his hand clenched and saw something in that. Based on that they had probable cause to order him to the ground. So, court overrules the suppression motion.

The case proceeded to trial. Immediately prior to trial, the

Commonwealth Attorney advised the court that the suppression hearing testimony

did not support the finding that Officer Williams saw drugs in Fuller’s hand before

directing him to sit on the curb. Although the court purported to agree with the

Commonwealth Attorney that the finding was not determinative, it reiterated that

its memory of the testimony was that the clenched hand “was what took it to the

next level.” The court continued to observe that the officer’s request for Fuller to

sit down was based on seeing the hand and being concerned, “so probable cause to

have him to stop, probable cause to talk to him, probable cause to then look at the

clenched hand because of the safety issues that then went to Terry, as opposed to

just a regular stop.”

Ultimately, Fuller was convicted as charged, and the jury

recommended a sentence of two years and six months. At sentencing, Fuller

3 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).

-5- sought presumptive probation under KRS 218A.1415, but the court elected to

sentence him in accords with the jury’s recommendation. This appeal challenging

the denial of his motion to suppress and his entitlement to presumptive probation

followed.

ANALYSIS

On appeal, Fuller first renews his claim that the officers violated his

rights to be free from unreasonable search and seizure guaranteed by the Fourth

Amendment of the United States Constitution and Section 10 of the Kentucky

Constitution.4 Specifically, Fuller argues that the court made erroneous findings of

fact, that he was illegally detained without probable cause, and that the officers

preformed an improper Terry frisk.

We employ the following two-step process when reviewing a

suppression motion ruling:

First, findings of fact are reviewed and will not be set aside unless they are clearly erroneous. CR[5] 52.01; Simpson v. Commonwealth, 474 S.W.3d 544, 547 (Ky. 2015). Findings of fact are not clearly erroneous if they are supported by substantial evidence. Commonwealth v. Deloney, 20 S.W.3d 471, 473 (Ky. 2000). Substantial evidence is “evidence of substance and relevant consequence having the fitness to induce conviction in the minds of reasonable men.” Owens-Corning

4 Our interpretation of Section 10 of the Kentucky Constitution is guided by federal Fourth Amendment law. Commonwealth v. Reed, 647 S.W.3d 237, 243 (Ky. 2022). 5 Kentucky Rules of Civil Procedure.

-6- Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky. 1998) (citation omitted). Also, due regard is given to the opportunity of the circuit court to judge the credibility of the testifying officer and to assess the reasonableness of the officer’s inferences. Commonwealth v. Whitmore, 92 S.W.3d 76, 79 (Ky. 2002). Second, the circuit court’s application of the law to conclusive facts is reviewed de novo. Simpson, 474 S.W.3d at 547.

Commonwealth v. Perry, 630 S.W.3d 671, 674 (Ky. 2021).

Regarding the court’s findings of fact, Fuller argues that the court

erred when it found: (1) that he was seen leaving a known crack house and (2) that

the officers observed something clenched in his hand before they ordered him to

the ground. We agree that neither finding is supported by the evidence. The

testimony was that the residence was known for narcotics activity,

methamphetamine specifically, and no evidence supports that Officer Williams

either saw or was told about the item in Fuller’s hand until after Fuller was

restrained. Indeed, the Commonwealth admitted in the proceedings below that the

latter finding was inaccurate and has not asserted a contrary position on appeal.

Although the error in the first finding is nominal, the error in the

second finding is significant, especially in light of the court’s limited and imprecise

oral findings. When faced with incomplete and clearly erroneous findings, the

Kentucky Supreme Court instructs that, absent a dispute, we may “assume the

testimony from the suppression hearing is accurate and use the facts elicited during

-7- that testimony as the basis for our [Fourth Amendment] analysis.” Commonwealth

v. Clayborne, 635 S.W.3d 818, 824 (Ky. 2021).

Relying on the evidence, we will address Fuller’s claim that he was

illegally detained. Citing the Supreme Court’s explanation in California v. Hadari

D., 499 U.S. 621, 624-25, 111 S. Ct. 1547, 113 L. Ed. 2d 690 (1991), that the

common law considered the application of physical force to the body of a person

with the intent to restrain to be an arrest, Fuller reasons that he was arrested

without probable cause when Officer Williams grabbed his arm and forcibly sat

him on the curb based solely on a jaywalking violation and his brief visit to a

suspected drug house. Without conceding a lack of probable cause, the

Commonwealth argues Fuller was merely detained. We agree with the

Commonwealth.

Though the common law definition cited by Fuller continues to be

applicable when determining whether a seizure has occurred, the Supreme Court in

Terry, 392 U.S. at 30-31, 88 S. Ct. at 1885, carved out an exception to the probable

cause requirement. This exception permits police to conduct brief investigatory

detentions, or Terry stops, when the officer has a reasonable suspicion, based on

objective and articulable facts, that criminal activity has occurred, is occurring, or

is about to occur. Id.; see also Commonwealth v. Morgan, 248 S.W.3d 538, 540

(Ky. 2008).

-8- A Terry stop may ripen into an arrest requiring probable cause if the

detention is unreasonably in its use of force. Williams v. Commonwealth, 147

S.W.3d 1, 6 (Ky. 2004) (citing United States v. Sharpe, 470 U.S. 675, 685-86, 105

S. Ct. 1568, 84 L. Ed. 2d 605 (1985); Centanni v. Eight Unknown Officers, 15 F.3d

587, 590 (6th Cir. 1994), cert. denied, 512 U.S. 1236, 114 S. Ct. 2740, 129 L. Ed.

2d 860 (1994)). However, “the right to make an arrest or investigatory stop

necessarily carries with it the right to use some degree of physical coercion or

threat thereof to affect it.” Id. (citing Graham v. Connor, 490 U.S. 386, 396, 109

S. Ct. 1865, 1872, 104 L. Ed. 2d 443 (1989)). Here, the conduct that Fuller

complains of, his arm being grabbed and being made to sit down, is not inherently

unreasonable and is similar to the seizure approved of in Terry. 392 U.S. at 7, 16-

19, 88 S. Ct. at 1872, 1877-79. Accordingly, we disagree with Fuller’s

characterization of his initial seizure as an arrest requiring probable cause, but, as

we will explain below, we do not reach the issue of whether reasonable suspicion

supported the stop.

We now turn to Fuller’s claims that he was subjected to an improper

frisk.6 Unquestionably, during a valid Terry stop, an officer is permitted to

6 The Commonwealth challenged whether this claim was preserved since Fuller only questioned the validity of the Terry stop and the inapplicability of the search incident to arrest exception in the proceedings below. The Commonwealth is correct that Fuller did not specifically address Terry frisks before the trial court; however, contrary to the Commonwealth’s assertion otherwise, the court made a finding that a Terry search occurred. Before the trial on August 2, 2023, the court reiterated its conclusion that “officers had probable cause to then look at the clenched hand

-9- conduct a pat-down search or frisk for weapons if he has a reasonable belief that

the detained individual is armed and presently dangerous. Frazier v.

Commonwealth, 406 S.W.3d 448, 453 (Ky. 2013) (citing Terry, 392 U.S. at 24, 88

S. Ct. 1868 and Commonwealth v. Crowder, 884 S.W.2d 649, 651 (Ky. 1994)). A

Terry search must be protective in nature, not investigative. Id. (citing Minnesota

v. Dickerson, 508 U.S. 366, 113 S. Ct. 2130, 124 L. Ed. 2d 334 (1993)). If the

search “goes beyond what is necessary to determine if the suspect is armed, it is no

longer valid and any evidence obtained will be suppressed” absent some

independent basis justifying the search. Id. (citing Adkins v. Commonwealth, 96

S.W.3d 779, 786-87 (Ky. 2003)).

Here, even if this court were to assume the validity of the stop and the

officer’s pat-down of Fuller’s outer clothing, it is incontrovertible that officer

safety was not the impetus when, in immediate response to Officer Igo’s conjecture

that Fuller was holding drugs, the officers pried his hand open. Because the

officers’ search was solely directed towards the discovery of evidence, the court’s

conclusion it was a valid Terry search is incorrect.

We cannot discern from the court’s oral ruling whether it additionally

determined that probable cause, presumably as a search incident to arrest, existed

because of the safety issues that then went to Terry[.]” Undoubtedly, Fuller is entitled to challenge the court’s conclusion, and there is no preservation issue.

-10- to justify this search.7 While we are permitted to affirm for any reason apparent on

the record, see Commonwealth v. Mitchell, 610 S.W.3d 263, 271 (Ky. 2020), it is

more prudent to remand the matter for additional proceedings. The parties did not

fully brief the probable cause issue8 and resolution will involve determinations of

credibility, which are within the discretion of the trial court. Kay v.

Commonwealth, 673 S.W.3d 448, 452 (Ky. App. 2023) (quoting Sowell v.

Commonwealth, 168 S.W.3d 429, 431 (Ky. App. 2005)).

Though likely to arise again on remand, for various reasons, we

choose not to address whether the officers had reasonable suspicion to conduct a

Terry stop. First, the court’s determination of probable cause could render the

question moot. Second, on remand the court can render written findings that will

aid our review. And third, the Commonwealth and the court both rely, at least in

part, on Fuller’s jaywalking violation as sufficient grounds for a Terry stop, and the

validity of that reliance is presently before the Supreme Court of Kentucky on

discretionary review in Buechele v. Commonwealth, No. 2024-SC-0007-DG.

7 The court uses the phrase probable cause routinely but does so with a misapprehension of the facts and seemingly in the context of its Terry analysis, which only requires reasonable suspicion. Terry, 392 U.S. at 30-31, 88 S. Ct. at 1885. 8 Complicating our review is the lack of a written order and the fact that the Commonwealth, despite bearing the burden of persuasion, never identified what exception to the warrant requirement applied to the search. See Gallman v. Commonwealth, 578 S.W.2d 47, 48 (Ky. 1979) (“All searches without a valid search warrant are unreasonable unless shown to be within one of the exceptions to the rule that a search must rest upon a valid warrant. The burden is on the prosecution to show the search comes within an exception.”).

-11- Finally, based upon our holding, we need not reach Fuller’s argument that the

“court erred in not following the ‘presumptive probation’ procedure outlined in

KRS 218A.010(44) and KRS 218A.1415.”

CONCLUSION

For the foregoing reasons, the order of the Kenton Circuit Court

denying Fuller’s motion to suppress is vacated, and the matter is remanded with

directions that the court enter a written order consistent with this Opinion.

ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

Robert C. Yang Russell Coleman Frankfort, Kentucky Attorney General of Kentucky

Courtney J. Hightower Assistant Attorney General Frankfort, Kentucky

-12-