Hinchey v. Commonwealth

432 S.W.3d 710, 2014 WL 1765193, 2014 Ky. App. LEXIS 70
CourtCourt of Appeals of Kentucky
DecidedMay 2, 2014
DocketNo. 2012-CA-000561-MR
StatusPublished
Cited by3 cases

This text of 432 S.W.3d 710 (Hinchey 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
Hinchey v. Commonwealth, 432 S.W.3d 710, 2014 WL 1765193, 2014 Ky. App. LEXIS 70 (Ky. Ct. App. 2014).

Opinion

OPINION

MAZE, Judge:

Eric Hinchey appeals from a judgment of conviction by the Graves Circuit Court following a jury trial. He argues that the trial court erred by denying his motion to suppress evidence seized from his vehicle following his arrest, and by denying his motion to dismiss at least one of the charges of possession' of a handgun by a convicted felon. On the first issue, we agree with the trial court that the items were properly seized under a valid exception to the warrant requirement. But on the second issue, we conclude that double jeopardy and KRS 505.020(l)(c) prohibit Hinchey’s conviction for multiple counts of possession of a handgun by a convicted [712]*712felon which arise from a single course of conduct. Hence, we affirm in part, reverse in part, and remand for entry of a new judgment and sentence.

On August 24, 2010, a Graves County grand jury returned an indictment charging Hinchey with two counts of first-degree wanton endangerment, two counts of possession of a handgun by a convicted felon, and one count each of fleeing or evading police, resisting arrest, criminal trespassing, and being a persistent felony offender in the first degree (PFO I).1 Pri- or to trial, Hinchey filed a motion to suppress evidence seized from the warrantless search of his vehicle following his arrest. On February 3, 2011, the trial court conducted a hearing on the motion at which the following testimony was presented.

On July 10, 2010, Mayfield Police officers responded to a reported disturbance caused by Hinchey at the home of his parents. When the police arrived, Hin-chey was yelling at the people in the house. Upon seeing the police, Hinchey jumped in his car and sped off, nearly hitting two officers. His vehicle struck a curb and police heard a loud “bang” which sounded like a shot.

Police officers pursued Hinchey for several blocks at high speed. At several points, he appeared to drop out of sight, as if he were reaching for something. Finally, Hinchey pulled into a driveway of a house owned by his aunt. He got out of the car holding a large, fixed-blade knife. The police ordered Hinchey to the ground. When Hinchey refused, two officers used Tasers to attempt to subdue him. Hin-chey fell to the ground and dropped the knife. However, he still struggled with the officers as they arrested him and placed him in the police car.

Immediately following the arrest, the officers shone a light into the car. They saw a firearm, ammunition, and knives plainly visible in the car. They also observed a two-liter bottle which was partially deflated in a manner consistent with methamphetamine manufacturing. Upon searching the vehicle, the police recovered two firearms, loose ammunition, several knives, methamphetamine and two two-liter bottles. The vehicle was then towed from the scene.

After reviewing the evidence, the trial court found that several of the items were in plain view and that all of the items were seized through a proper inventory search. The matter then proceeded to trial. The court dismissed the trespassing and PFO I charges prior to trial. The trial court also severed the two handgun-possession charges, which were tried separately.

Following the first jury trial in September 2011, Hinchey was found guilty of second-degree wanton endangerment, first-degree wanton endangerment, fleeing and evading police, and resisting arrest. Following the second jury trial in January 2012, Hinchey was found guilty of two counts of possession of a handgun by a convicted felon. In accord with the jury’s verdict, the trial court fixed Hinchey’s sentence at a total of 12 years’ imprisonment. The trial court further directed that the sentence in the related indictment run con[713]*713secutively for a total of 15 years. This appeal followed.

Hinchey first argues that the search of his vehicle did not fall within any exception to the warrant requirement. Consequently, he asserts that the trial court erred by denying his motion to suppress all of evidence seized as a result of that search.2 Kentucky Rules of Criminal Procedure (RCr) 9.78 sets out the procedure for conducting suppression hearings and establishes the standard of appellate review of the determination of the trial court. Our standard of review of a circuit court’s decision on a suppression motion following a hearing is twofold. “First, the factual findings of the court are conclusive if they are supported by substantial evidenee[;]” and second, this Court conducts “a de novo review to determine whether the [trial] court’s decision is correct as a matter of law.” Stewart v. Commonwealth, 44 S.W.3d 376, 380 (Ky.App.2001) citing Adcock v. Commonwealth, 967 S.W.2d 6, 8 (Ky.1998).

Hinchey challenges the warrantless search of his vehicle and the evidence seized as a result of that search. War-rantless searches are “per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967) (footnotes omitted). The Commonwealth relies on two exceptions to the warrant requirement: search incident to arrest and inventory search. We conclude that the search was proper under each of these exceptions.

In Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), the United States Supreme Court clarified the search incident to arrest exception as it applies to vehicle searches. The Court held that a search incident to arrest can be justified only if the arrestee was unrestrained or if it was reasonable for the arresting officers to believe that evidence relevant to the crime of arrest might be accessed or destroyed by the arrestee. Id. at 343^4, 129 S.Ct. at 1719. See also Davis v. United States, — U.S. —, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011), and Rose v. Commonwealth, 322 S.W.3d 76, 79 (Ky.2010). Hinchey points out that he had already been restrained, arrested and placed in the police car at the time the police conducted the warrantless search of this vehicle. Consequently, he maintains that the police officers had no basis for a search of the vehicle incident to his arrest.

We agree with Hinchey that the first Gant exception was not met in this case. However, we conclude that the second Gant exception does apply. Hinchey used his vehicle to flee from the police. In addition, the police heard a sound like a shot coming from the vehicle as he fled his parents’ house. He was also seen reaching for something while he was driving. Based on the totality of the circumstances, the officers had a reasonable basis to conclude that the vehicle contained evidence of the crime for which Hinchey was arrested. Furthermore, the officers observed several of the items in plain view through the windows of the car. Commonwealth v. Hatcher, 199 S.W.3d 124, 126 (Ky.2006).

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Bluebook (online)
432 S.W.3d 710, 2014 WL 1765193, 2014 Ky. App. LEXIS 70, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hinchey-v-commonwealth-kyctapp-2014.