Henry Boshart v. Commonwealth of Kentucky

• Court: Court of Appeals of Kentucky
• Decided: September 9, 2021
• Docket: 2020 CA 000199
• Status: Unknown

Opinion

RENDERED: SEPTEMBER 10, 2021; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2020-CA-0199-DG

HENRY BOSHART APPELLANT

ON DISCRETIONARY REVIEW FROM v. HARDIN CIRCUIT COURT HONORABLE KEN M. HOWARD, JUDGE ACTION NO. 19-XX-00005

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION AFFIRMING

** ** ** ** **

BEFORE: DIXON, GOODWINE, AND TAYLOR, JUDGES.

DIXON, JUDGE: Henry Boshart appeals from the order affirming the Hardin

District Court’s denial of his suppression motion, entered on January 10, 2020, by

the Hardin Circuit Court. Following a careful review of the record, briefs, and law,

we affirm. FACTS AND PROCEDURAL BACKGROUND

On August 22, 2018, Boshart was operating his vehicle on the wrong

side of a divided highway in Hardin County, Kentucky. He was observed by

Officer Richardson of the Hodgenville Police Department (HPD), who was on his

way to work in Larue County, Kentucky, in his cruiser. Officer Richardson

activated his emergency lights1 with the intention of getting the driver’s attention

and alerting him that he was traveling against the flow of traffic so that he could

self-correct this behavior. However, the driver pulled over and stopped the

vehicle–at an angle–in the left-hand median of the highway.

Officer Richardson parked behind the vehicle with his lights on to

alert other motorists. He approached the vehicle on the passenger side to speak

with the driver and smelled the strong odor of alcohol. The driver seemed

confused but told Officer Richardson his name and that he did not have his

operator’s license with him.

Officer Richardson contacted the Elizabethtown Police Department

(EPD), relayed the information about his encounter with Boshart, and requested

they dispatch an officer to his location. Officer Slaubaugh of the EPD responded,

1 Defense counsel made and continues to make arguments concerning whether Officer Richardson activated his lights and left them on during the entire encounter or whether–as Officer Richardson testified–the lights were activated briefly initially and then left on while parked behind Boshart’s vehicle. As noted by the court, this issue is immaterial to the crux of whether the suppression motion was properly granted.

-2- and Officer Richardson left the scene. Officer Slaubaugh conducted standard field

sobriety tests, all of which Boshart failed. He was taken into custody and, at the

EPD station, blew a 0.190.

Boshart was charged in the Hardin District Court with careless

driving; operating a motor vehicle under the influence of alcohol with an

aggravator, first offense; and failure to have his operator’s license in his possession

while operating a motor vehicle. Boshart moved to suppress all evidence against

him, asserting that Officer Richardson was acting outside his jurisdiction of Larue

County when he pulled Boshart over. After the matter was briefed and a pretrial

conference held, the motion was denied, and Boshart appealed to the Hardin

Circuit Court, which affirmed the lower court. Boshart subsequently moved our

Court for discretionary review, and the motion was granted.

STANDARD OF REVIEW

The standard of review of a denial of a motion to suppress is two-fold:

“[f]irst, the trial court’s findings of fact are conclusive if they are supported by

substantial evidence; and second, the trial court’s legal conclusions are reviewed

de novo.” Milam v. Commonwealth, 483 S.W.3d 347, 349 (Ky. 2015) (citing

Commonwealth v. Marr, 250 S.W.3d 624, 626 (Ky. 2008); RCr2 9.78). “At a

suppression hearing, the ability to assess the credibility of witnesses and to draw

2 Kentucky Rules of Criminal Procedure.

-3- reasonable inferences from the testimony is vested in the discretion of the trial

court.” Pitcock v. Commonwealth, 295 S.W.3d 130, 132 (Ky. App. 2009) (citing

Commonwealth v. Whitmore, 92 S.W.3d 76, 79 (Ky. 2002)). “In conducting our

review, our proper role is to review findings of fact only for clear error while

giving due deference to the inferences drawn from those facts by the trial judge.”

Perkins v. Commonwealth, 237 S.W.3d 215, 218 (Ky. App. 2007) (citing

Whitmore, 92 S.W.3d at 79).

ANALYSIS

Boshart’s arguments on appeal hinge upon the premise that since

Officer Richardson pulled him over in Hardin County, he was without jurisdiction

and exceeded his authority, making all evidence of Boshart’s offenses

suppressible. Boshart relies on KRS3 95.019(1), which provides:

The chief of police and all members of the police force in urban-county governments and cities shall possess all of the common law and statutory powers of constables and sheriffs. They may exercise those powers, including the power of arrest for offenses against the state, anywhere in the county in which the urban-county government or city is located, but the chief of police and members of the police force in a city shall not be required to police any territory outside of the city limits.

3 Kentucky Revised Statutes.

-4- (Emphasis added.) There is not an abundance of case law interpreting this statute

and no case discussing the exact situation now before us. Accordingly, we turn to

the most similar cases for guidance.4

In Churchwell v. Commonwealth, 843 S.W.2d 336, 340 (Ky. App.

1992), another panel of our Court interpreted a similar statute conferring police

powers upon park rangers.5 In Churchwell, Officer Reed–a park ranger–observed

a vehicle slowly cruising the marina area of Kentucky Dam Village State Park,

which he deemed to be suspicious. Officer Reed followed the vehicle and stopped

it approximately four miles outside the park. Id. at 339. The Court noted that

while KRS 431.045 provides: “[a] peace officer in actual pursuit may continue

4 Although Boshart lists several cases with conclusory assertions that these cases support his contentions, none of the cases he cites compel suppression in the case now before us. 5 The statute at issue in that case, KRS 148.056(1), provides:

The commissioner of parks, in his discretion, may employ and commission park rangers as the commissioner deems necessary to secure the parks and property of the Department of Parks and to maintain law and order and such employees, when so commissioned, shall have all of the powers of peace officers and shall have on all parks property and on public highways transversing such property in all parts of the state the same powers with respect to criminal matters and enforcement of the laws relating thereto as sheriffs, constables and police officers in their respective jurisdictions, and shall possess all the immunities and matters of defense now available or hereafter made available to sheriffs, constables and police officers in any suit brought against them in consequence of acts done in the course of their employment.

(Emphasis added.)

-5- such pursuit across corporate or county lines for the purpose of making an

arrest[,]” Officer Reed was not in pursuit of someone who had committed a crime

within the park. Id. The Court ultimately held that since the stop occurred outside

the park ranger’s jurisdiction, it was improper. Churchwell, 843 S.W.2d at 399.

The Court found “[s]ince exigent circumstances did not exist, Officer Reed could

have radioed other law enforcement officials to continue the investigation outside

the park area.” Id. at 340. The Court also specifically noted, “If he had a

reasonable and articulable suspicion that the men were, or had been, engaged in

criminal activity, Reed could have made a brief investigatory stop inside the park

. . . [but t]here is no evidence that the men behaved more suspiciously once they

exited the park.” Id.

Here, it is undisputed Officer Richardson was employed by the HPD

of Larue County, and this incident occurred solely in Hardin County. It is also

undisputed that Boshart’s driving on the wrong side of a divided highway clearly

constituted an exigent circumstance that required immediate action. Even so,

Officer Richardson used the least intrusive means possible to mitigate the threat to

public safety in hailing Boshart with his lights and staying with him until another

officer from within the proper jurisdiction arrived to investigate. Thus, the case

herein is distinguishable from Churchwell.

-6- In Pope v. Commonwealth, ___ S.W.3d ___, 2021 WL 1743575 (Ky.

Feb. 18, 2021), reh’g denied (Aug. 26, 2021), Pope moved the circuit court to

suppress the deputies’ testimony and any evidence gathered by the Boyle County

Sheriff’s Department or, alternatively, to dismiss the indictment altogether,

claiming Boyle County deputies lacked jurisdiction to investigate in Lincoln

County. On appeal, the Supreme Court of Kentucky agreed with the trial court’s

“ultimate conclusion of law that Pope’s jurisdictional argument fails and thus

cannot be a legal basis for either suppression of the evidence or dismissal of the

indictment.” Id. at *1. The Court observed: “even if Pope’s jurisdictional

challenge had merit, a motion to suppress, excluding the evidence, would not be

the proper remedy.” Id. Likewise, herein, Boshart’s jurisdictional argument does

not require suppression.

Furthermore, and contrary to Boshart’s argument, Fischer v.

Commonwealth, 506 S.W.3d 329 (Ky. App. 2016), a case relied upon by the circuit

court, is not legally distinguishable from the case herein, although the police

officers’ out-of-county “knock and talk” at issue in Fischer was an action which

any private citizen can lawfully undertake, and the undercover drug buy in Pope’s

case, as well as the use of a police vehicle’s lights in Boshart’s case, are not actions

any private citizen can lawfully undertake. Pope, ___ S.W.3d ___, 2021 WL

1743575, at *2. Whether the officer is conducting actions any private citizen can

-7- or cannot lawfully undertake is not the lynchpin of the legal analysis and did not

require suppression in Pope; nor does it here.

In Pope, Kentucky’s highest court noted: “KRS 431.007 grants an

out-of-county assisting officer the authority to arrest. It does not bestow any

right on a defendant to be prosecuted for breaking the law only when the

investigation leading to his arrest was performed by an officer of the

jurisdiction within which that defendant committed the crime.” Id. at *3.

(emphasis added). We find this logic applicable to the case herein and supportive

of the lower courts’ rulings. Although Officer Richardson was not investigating or

seeking out Boshart prior to observing him driving in Hardin County, when he

observed the hazardous driving, he was compelled–morally, if not legally–to do the

right thing and remedy the hazard. Even if Officer Richardson was technically

using his police powers outside his jurisdiction, this does not mean Boshart is to go

free, for the reasons discussed in Pope. Counter to Boshart’s assertions, this is not

a case where “[t]he criminal is to go free because the constable has blundered.”

People v. Defore, 242 N.Y. 13, 21, 150 N.E. 585, 587 (1926).

Moreover, in Elkins v. United States, 364 U.S. 206, 222, 80 S. Ct.

1437, 1446, 4 L. Ed. 2d 1669 (1960), and Terry v. Ohio, 392 U.S. 1, 9, 88 S. Ct.

1868, 1873, 20 L. Ed. 2d 889 (1968), the United States Supreme Court held “what

the Constitution forbids is not all searches and seizures, but unreasonable searches

-8- and seizures.” (Emphasis added.) When Officer Richardson used his emergency

lights, it led to what can only be deemed a seizure under the Fourth Amendment;

however, this was not an unreasonable seizure because Boshart was clearly

violating the law and posing a threat to public safety. Thus, the seizure did not

violate Boshart’s rights.

It is well-established: the purpose of the exclusionary rule is to deter

police misconduct. Crayton v. Commonwealth, 846 S.W.2d 684, 688 (Ky. 1992).

“Suppression of evidence pursuant to the exclusionary rule applies only to searches

that were carried out in violation of an individual’s constitutional rights.” Copley

v. Commonwealth, 361 S.W.3d 902, 905 (Ky. 2012). Here, there was no violation

of Boshart’s Fourth Amendment–or any other constitutional–rights. “Without a

constitutional right underpinning his motion to suppress, Appellant has no basis for

application of the exclusionary rule.” Bratcher v. Commonwealth, 424 S.W.3d

411, 415 (Ky. 2014). Consequently, the trial court did not err in denying Boshart’s

suppression motion.

CONCLUSION

Therefore, and for the foregoing reasons, the order of the Hardin

Circuit Court is AFFIRMED.

ALL CONCUR.

-9- BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:

Jeremy S. Aldridge Daniel Cameron Elizabethtown, Kentucky Attorney General of Kentucky Frankfort, Kentucky

Melanie Goff Biggers Special Assistant Attorney General Elizabethtown, Kentucky

-10-