Lyprentiss Jermol Simmons v. Commonwealth of Kentucky

• Court: Court of Appeals of Kentucky
• Decided: December 8, 2022
• Docket: 2021 CA 000859
• Status: Unknown

Opinion

RENDERED: DECEMBER 9, 2022; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2021-CA-0859-MR

LYPRENTISS SIMMONS APPELLANT

APPEAL FROM FAYETTE CIRCUIT COURT v. HONORABLE KIMBERLY N. BUNNELL, JUDGE ACTION NO. 20-CR-00998

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION AFFIRMING

** ** ** ** **

BEFORE: CLAYTON, CHIEF JUDGE; ACREE AND TAYLOR, JUDGES.

ACREE, JUDGE: Lyprentiss Simmons, Appellant, appeals the Fayette Circuit

Court’s denial of his motion to suppress evidence. Appellant asserts the circuit

court erred in determining the police had probable cause to search his vehicle

without a warrant. Finding no error, we affirm. BACKGROUND

Shortly after 1:00 a.m. on August 10, 2020, Officer Crane of the

Lexington Police Department noticed a vehicle turn from Delcamp Drive – a side

street – onto North Broadway in a manner that caused the vehicle’s tires to squeal.

This prompted Officer Crane to follow and observe the vehicle, which turned into

the parking lot of a nearby Thornton’s gas station. The driver, Appellant, exited

and reentered the vehicle, and then drove away from the Thornton’s.

Noticing the vehicle’s registration was expired, Officer Crane stopped

the vehicle. Officer Andrews arrived moments later, and both Officers Crane and

Andrews approached the vehicle together. Officer Crane observed the occupants

of the vehicle – Appellant and a female passenger named Hutsell – were acting

nervously. Appellant told Officer Crane he was returning from visiting his aunt in

Versailles. Officer Crane asked whether they had stopped anywhere on their way

or had been on any side streets, and Appellant answered in the negative to both.

Officer Crane told Appellant he observed him turning from Delcamp Drive, a side

street.

Based on Appellant’s deception about not being on any side streets

and Officer Crane’s belief that Appellant was trying to evade him by turning into

the Thornton’s gas station, Officer Crane decided to communicate with police

dispatch to confirm Appellant’s information. Because Appellant did not have his

-2- driver’s license with him, Officer Crane gathered identifying information by asking

Appellant questions. The police database revealed Appellant had an outstanding

warrant for strangulation. Officer Crane requested backup from K-9 Officer

Hallock.

Officer Crane waited for Officer Hallock to arrive, and then Officers

Hallock and Crane approached the vehicle together. They advised Appellant he

had an active warrant, ordered him to exit the vehicle, and placed him under arrest.

Officer Crane took Appellant to his police cruiser and searched Appellant incident

to the arrest. Officer Crane found 0.4 grams of cocaine and 294 dollars in

Appellant’s pockets.

Officer Crane asked Appellant whether he had anything else on him,

and Appellant replied he did not. Officer Hallock asked Appellant whether he had

any other narcotics on him, warning him to be honest so that Appellant could avoid

a charge of promoting contraband. In response, Appellant stated he smokes

marijuana. Officer Hallock again asked Appellant whether he had any narcotics on

his person, and Appellant stated he had some marijuana in a book bag in the

vehicle. Appellant never provided consent for the police to search his vehicle.

Based on Appellant’s statement that narcotics were in a bag in his car

and that narcotics were found on Appellant’s person, Officer Crane believed

probable cause existed to support a warrantless search of Appellant’s entire

-3- vehicle. Officer Crane directed Hutsell to exit the vehicle and proceeded with the

search. Inside, Officer Crane found a black bag on the floor. The bag contained

marijuana in plastic baggies, as well as several empty plastic baggies. Several of

these baggies had their corners ripped off, a common practice when using plastic

baggies to package drugs. Officer Hallock found a brown bag in the vehicle which

contained more plastic baggies, a Mason jar with marijuana residue, a disposable

“Solo” brand cup with marijuana residue, a vacuum-sealed bag with marijuana

residue, a digital scale, and a marijuana grinder. Officer Crane also found a stolen

.40 caliber handgun in the glove box.

Appellant filed a motion to suppress the evidence uncovered from the

warrantless search of his vehicle. The circuit court held a hearing on the motion on

February 3, 2021, where Officers Crane and Hallock testified. Following the

hearing, the court made oral findings of fact and conclusions of law that the

officers had probable cause to search the vehicle. The court entered a written order

denying Appellant’s motion on February 7, 2021.

Appellant entered a conditional guilty plea to several offenses,

reserving his right to withdraw his plea should he prevail on appeal of the denial of

his suppression motion. He now so appeals.

-4- STANDARD OF REVIEW

When reviewing the denial of a motion to suppress, an appellate court

considers a trial court’s findings of fact to be “conclusive if supported by

substantial evidence.” Bauder v. Commonwealth, 299 S.W.3d 588, 591 (Ky. 2009)

(citing Ornelas v. United States, 517 U.S. 690, 699, 116 S. Ct. 1657, 1663, 134 L.

Ed. 2d 911 (1996)). “Substantial evidence is ‘that which, when taken alone or in

light of all the evidence, has sufficient probative value to induce conviction in the

mind of a reasonable person.’” Hunter v. Mena, 302 S.W.3d 93, 97 (Ky. App.

2010) (citing Bowling v. Nat. Res. & Env’t Prot. Cabinet, 891 S.W.2d 406, 409

(Ky. App. 1994)). However, the appellate court conducts a de novo review of the

trial court’s application of law to its factual findings. Commonwealth v. Jones, 217

S.W.3d 190, 193 (Ky. 2006) (citing Adcock v. Commonwealth, 967 S.W.2d 6, 8

(Ky. 1998)).

ANALYSIS

Appellant argues the officers lacked probable cause for a warrantless

search of the entire vehicle for evidence related to either strangulation – the offense

for which Appellant had an outstanding warrant – or for offenses related to drugs.

We conclude the circuit court did not err in determining probable cause existed to

search Appellant’s vehicle without a warrant.

-5- “‘[S]earches conducted outside the judicial process, without prior

approval by judge or magistrate, are per se unreasonable under the Fourth

Amendment – subject only to a few specifically established and well delineated

exceptions.’” Thompson v. Louisiana, 469 U.S. 17, 19-20, 105 S. Ct 409, 410, 83

L. Ed. 2d 246 (1984) (quoting Katz v. United States, 389 U.S. 347, 357, 88 S. Ct.

507, 514, 19 L. Ed. 2d 576 (1967)). Kentucky jurisprudence explicitly recognizes

this principle. See Cook v. Commonwealth, 826 S.W.2d 329, 331 (Ky. 1992) (“It is

fundamental that all searches without a warrant are unreasonable unless it can be

shown that they come within one of the exceptions to the rule that a search must be

made pursuant to a valid warrant.”) (citing Coolidge v. New Hampshire, 403 U.S.

443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971)).

One exception to the warrant requirement allows warrantless searches

of automobiles when probable cause supports such search; “a search is not

unreasonable if based on facts that would justify the issuance of a warrant, even

though a warrant has not actually been obtained.” United States v. Ross, 456 U.S.

798, 809, 102 S. Ct. 2157, 2164-65, 72 L. Ed. 2d 572 (1982). A police officer’s

good faith belief that evidence is present in a vehicle is not, on its own, enough to

support application of this exception, and instead the officer’s “‘faith must be

grounded on facts within knowledge of the [officer], which in the judgment of the

-6- court would make his faith reasonable.’” Id. (quoting Carroll v. United States, 267

U.S. 132, 161-62, 45 S. Ct. 280, 288, 69 L. Ed. 543 (1925)).

It matters not that the items of evidence obtained from Appellant’s

vehicle were unrelated to his arrest pursuant to the strangulation warrant, nor does

it matter that the officers searched areas of the vehicle other than the book bag that

Appellant specifically mentioned. “Ross allows searches for evidence relevant to

offenses other than the offense of arrest, and the scope of the search authorized is

broader.” Arizona v. Gant, 556 U.S. 332, 347, 129 S. Ct. 1710, 1721, 173 L. Ed.

2d 485 (2009). That is, “[t]he scope of a warrantless search of an automobile thus

is not defined by the nature of the container in which it is secreted[,]” but “[r]ather,

it is defined by the object of the search and the places in which there is probable

cause to believe that it may be found.” Ross, 456 U.S. at 824, 102 S. Ct. at 2172.

Or, as the Kentucky Supreme Court has explained:

Police who have a legitimate reason to stop an automobile and who have probable cause to believe that the objects of the search are concealed somewhere within the vehicle may conduct a warrantless search of the vehicle and all the compartments and containers thereof as well as the contents thereof that are not in plain view.

Estep v. Commonwealth, 663 S.W.2d 213, 215 (Ky. 1983).

Accordingly, we must determine whether the circuit court erred in

concluding probable cause existed for the officers to search the whole of

Appellant’s car without a warrant. We conclude the circuit court did not err.

-7- Officer Crane stopped Appellant late at night, after Appellant, in Officer Crane’s

opinion, attempted to evade him. Both Appellant and his passenger acted

nervously, and Appellant lied about driving on a side street. Officer Crane found

cocaine and nearly 300 dollars in cash on Appellant’s person. Prior to the police

ever searching the car, there was probable cause to believe evidence of drugs could

be found within the car. In sum, ample evidence provided probable cause to

support a warrantless search of Appellant’s entire vehicle, even prior to

Appellant’s admission that more drugs were in a bag inside the vehicle.1

Appellant challenges the trial court’s reliance upon Chavies v.

Commonwealth, arguing it is factually distinguishable from the instant case. 354

S.W.3d 103 (2011), abrogated on other grounds by Roe v. Commonwealth, 493

S.W.3d 814 (Ky. 2015). In Chavies, police had probable cause to believe objects

sitting in plain view in a detainee’s automobile were stolen; “[o]nce police saw

these items, the police had probable cause to believe the car contained other

incriminating evidence.” Id. at 111. The Kentucky Supreme Court determined

that probable cause supported the warrantless search of the entire car, noting that

“[w]hen police have probable cause to believe a car contains evidence of criminal

1 As Appellant states in his brief, Appellant admitted to the police that additional drugs were inside his car prior to receiving the warning required by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1604, 16 L. Ed. 2d 694 (1966). Regardless, ample evidence existed to provide probable cause to search the vehicle, even if Miranda required suppression of Appellant’s admission.

-8- activity, they may search the entire vehicle, including areas that are not in plain

view.” Id. (emphasis supplied) (citing Estep, 663 S.W.2d at 215).

We find no error in the trial court’s application of Chavies. Appellant

points out that the stolen items in Chavies were in plain view of the officers who

searched the car, id. at 107, 111, while in the instant case none of the seized

evidence was in plain view. However, this distinction is irrelevant. Plain view

evidence in a vehicle gives rise to probable cause to search an entire vehicle, but

that is not the exclusive basis for finding probable cause. As previously discussed,

Appellant’s behavior, and possession of drugs and cash on his person, provide

sufficient probable cause to search his vehicle without a warrant for other

incriminating evidence.

Appellant argues that the automobile exception requires the vehicle to

be readily mobile, and that his vehicle was no longer readily mobile because the

officers would not have allowed a vehicle with expired registration to be driven on

the road. It is correct that the ready mobility of an automobile underpins the

automobile exception. As the Supreme Court observed in California v. Carney,

“our cases have consistently recognized ready mobility as one of the principal

bases of the automobile exception.” 471 U.S. 386, 391, 105 S. Ct. 2066, 2069, 85

L. Ed. 2d 406 (1985) (citations omitted). “The mobility of automobiles, we have

observed, ‘creates circumstances of such exigency that, as a practical necessity,

-9- rigorous enforcement of the warrant requirement is impossible.’” Id. at 391, 105 S.

Ct. at 2066 (quoting South Dakota v. Opperman, 428 U.S. 364, 367, 96 S. Ct.

3092, 3096, 49 L. Ed. 2d 1000 (1976)). The Supreme Court subsequently included

mobility as a requirement, stating that “[i]f a car is readily mobile and probable

cause exists to believe it contains contraband, the Fourth Amendment thus permits

police to search the vehicle without more.” Pennsylvania v. Labron, 518 U.S. 938,

940, 116 S. Ct. 2485, 2487, 135 L. Ed. 2d 1031 (1996) (citing Carney, 471 U.S. at

391-92, 105 S. Ct. at 2069-70).

However, “readily mobile” refers to the “long-recognized distinction

between stationary structures and vehicles . . . .” Carney, 471 U.S. at 390, 105 S.

Ct. at 2068. The distinction is this: locomotion is not a characteristic of stationary

structures, but it is a characteristic of vehicles, when mechanically operable. The

fact that a vehicle is not “street legal” or not possessed of necessary government

permissions does not affect an operationally sound vehicle’s characteristic of

locomotion. See id. at 391, 105 S. Ct. at 2070 (“Even in cases where an

automobile was not immediately mobile, the lesser expectation of privacy resulting

from its use as a readily mobile vehicle justified application of the vehicular

exception.”).

In Michigan v. Thomas, the police had probable cause to perform a

warrantless search of an impounded vehicle while waiting for it to be towed away,

-10- and discovered a revolver hidden inside the dashboard. 458 U.S. 259, 260, 102 S.

Ct. 3079, 3080, 73 L. Ed. 2d 750 (1982). The Supreme Court rejected the

argument that a vehicle could no longer be searched without a warrant pursuant to

the automobile exception once the police have impounded it. Id. at 261-62, 102 S.

Ct. at 3080-81. “[W]hen police officers have probable cause to believe there is

contraband inside an automobile that has been stopped on the road, the officers

may conduct a warrantless search of the vehicle, even after it has been impounded

and is in police custody.” Id. at 261, 102 S. Ct. at 3080 (citing Chambers v.

Maroney, 399 U.S. 42, 90 S. Ct. 1975, 26 L. Ed. 2d 419 (1970); Texas v. White,

423 U.S. 67, 96 S. Ct. 304, 46 L. Ed. 2d 209 (1975)).

Despite Appellant’s assertion, it does not matter that Appellant would

not have been permitted to drive his vehicle away or that the vehicle was

presumably towed following Appellant’s arrest. Impoundment of the vehicle in

Thomas effectively deprived government permission to operate it on public roads,

but that did not deprive it of mechanical functionality as a mobile vehicle. It is the

vehicle’s operational capability that continues to distinguish it from stationary

structures, and it is that distinction that allows police to search a vehicle without a

warrant when there is probable cause otherwise. Neither Appellant’s lack of

access to the vehicle nor the lack of government permission to move the vehicle

-11- renders the search unconstitutional because the officers had probable cause to

search the vehicle for evidence related to narcotics.

Appellant also argues the exception permitting warrantless searches

incident to an arrest, as explained in Gant, 556 U.S. 332, 129 S. Ct. 1710, did not

permit the officers to search Appellant’s vehicle because he was already

handcuffed and seated in a police cruiser at the time of the search. Because we

conclude the police constitutionally searched Appellant’s vehicle subject to the

automobile exception to the warrant requirement, we need not determine whether

the search of Appellant’s vehicle was a constitutional application of the exception

to the warrant requirement for searches of automobiles incident to arrests.

CONCLUSION

For the foregoing reasons, we affirm the Fayette Circuit Court’s

February 7, 2021 order denying Appellant’s motion to suppress.

ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

Roy Alyette Durham II Daniel Cameron Frankfort, Kentucky Attorney General of Kentucky

Melissa A. Pile Assistant Attorney General Frankfort, Kentucky

-12-