RENDERED: MARCH 28, 2025; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2023-CA-1264-MR
MARQUIS CHENAULT APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT v. HONORABLE LUCY A. VANMETER, JUDGE ACTION NO. 21-CR-01247
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: CETRULO, EASTON, AND TAYLOR, JUDGES.
TAYLOR, JUDGE: Marquis Chenault brings this appeal from the Fayette Circuit
Court’s Final Judgment and Sentence of Imprisonment entered on September 28,
2023. Chenault entered a conditional guilty plea on June 20, 2023, after the circuit
court had entered an order on September 15, 2022, denying his motion to suppress
evidence. The circuit court’s denial of Chenault’s motion to suppress is the sole
issue before this Court on appeal. For the reasons stated, we affirm. INTRODUCTION
On July 29, 2022, Marquis Chenault filed a motion to suppress
evidence obtained against him pursuant to the search of his vehicle as a result of an
investigatory stop on September 26, 2021, in Lexington, Kentucky. Chenault
alleged that the evidence was obtained in violation of the Fourth and Fourteenth
Amendments to the United States Constitution and Section 10 of the Kentucky
Constitution. The Fayette Circuit Court held a suppression hearing on August 9,
2022, wherein the Commonwealth presented the testimony of Officer David Smith
of the Lexington Police Department. Officer Smith’s testimony included the
presentation of body-worn camera footage taken during his encounter with the
defendant. Following the hearing, the Court denied the motion to suppress.
Chenault then entered a conditional guilty plea to the charge of trafficking in a
controlled substance, fentanyl, and now appeals the court’s ruling denying his
motion to suppress.
BACKGROUND
Officer Smith, as a part of a nightly patrol briefing on September 25,
2021, learned of a recent stolen vehicle report for a 2008 black Nissan Maxima
with tinted windows, reported stolen as of September 23, 2021. That evening, he
parked in his cruiser in a church parking lot on Price Road in Lexington. Just after
midnight, he saw a Nissan appearing to match the description of the stolen vehicle
-2- pass on Price Road. He pulled onto the road to follow the Nissan, but it was too
far ahead for him to read the license plate. The driver of the vehicle took the first
possible turn onto DePorres Avenue, then at the very next intersection, backed
onto Tibbs Lane.
Officer Smith continued past Tibbs Lane, but continued to watch the
Nissan in his rearview mirror. He observed the driver of the Nissan inch the nose
of the automobile forward toward DePorres Avenue, then reverse back onto Tibbs
Lane, at least two times. Officer Smith then turned his cruiser around and
continued to watch the entrance to Tibbs Lane for several minutes as he knew
Tibbs Lane was a dead-end street. Officer Smith then drove his cruiser toward
Tibbs Lane to see if the driver was still in the vehicle. Officer Smith parked his
cruiser on the opposite side of Tibbs Lane without blocking the Nissan. Because
of the tinted windows, he was unable to see if the Nissan was still occupied. He
illuminated the vehicle with overhead “white lights” which allowed him to observe
that the driver’s seat was reclined, as if the driver was trying to avoid detection.
Officer Smith then approached the Nissan. Upon approaching,
Chenault then immediately sat up and reached down toward the floorboard.
Officer Smith thought Chenault was manipulating something on the car floor for
several seconds. At that point, Officer Smith ordered Chenault to show his hands.
Chenault raised his hands into view whereupon Officer Smith asked him to roll
-3- down his window. Simultaneous therewith, Officer Smith opened the driver’s side
door. With the door open, Officer Smith observed a torn piece of plastic wrap on
the car floor at Chenault’s feet, and a loaded magazine in the vehicle door pocket.1
Officer Smith then inquired if Chenault owned the car, requested his
driver’s license, and asked Chenault if he lived in the area. Chenault replied that
he did not live near there and that his mother owned the car. Chenault further
explained that he had been at work and had driven to this part of town after work.
When Officer Smith opened the door, he got a whiff of marijuana which prompted
him to ask Chenault if he had been smoking marijuana. Chenault acknowledged
that he had been smoking and was going to sleep off the drug’s effects in his car at
that time.
At this point during their conversation, Officer Smith observed a
handgun at Chenault’s feet in the auto, which prompted Officer Smith to request
backup over his police radio. Smith then requested Chenault place his hands on
the steering wheel and had him exit the vehicle. He placed Chenault in handcuffs,
but explained that he removed him from the auto because of the presence of the
gun, and that Chenault was not under arrest. He explained that it was for
1 Based on Officer David Smith’s training, the torn piece of plastic was indicative of narcotics packaging.
-4- everyone’s safety because the officer was alone. Officer Smith retrieved the gun
and placed it on top of the auto.
Two additional police vehicles approached on DePorres Avenue
within five minutes of Smith’s request for backup. Officer Smith at that point
submitted the handgun serial number to determine if it was stolen, which was his
common practice. He learned the gun was not stolen. One of the backup officers,
Officer Owings, checked the license plate on the Nissan. Officer Owings advised
Smith that the car was registered to a female. Then Officer Owings asked if
Officer Smith had searched the vehicle based on the strong odor of marijuana from
the interior. Officer Smith noted that his sense of smell was impaired from a
recent case of Covid, although he thought he picked up some marijuana odor when
he first opened the car door. Based on the “plain smell” of marijuana, the officers
then searched the car.
The search by the officers turned up a clear plastic baggie containing
fentanyl, a plastic spoon, a digital scale, a mason jar containing marijuana residue,
and multiple portions of torn plastic baggies and wraps consistent with marijuana
use. On December 7, 2021, a grand jury charged Chenault with trafficking in a
controlled substance first degree, Fentanyl, enhanced by unlawful trafficking in
Fentanyl, and doing so while in possession of a handgun. On July 29, 2022,
Chenault filed a motion to suppress all evidence against him based on an alleged
-5- improper stop and search of his vehicle. The trial court held an evidentiary hearing
on August 9, 2022, and subsequently denied the motion to suppress.
After Chenault entered a conditional guilty plea in June of 2023, on
September 28, 2023, the Fayette Circuit Court entered final judgment. Thereon,
the court sentenced Chenault to five years for trafficking in a controlled substance,
first offense, Fentanyl. This appeal followed.
STANDARD OF REVIEW
This Court’s standard of review of a circuit court’s denial of a motion
to suppress requires a two-step analysis. First, the circuit court’s factual findings
are conclusive if supported by substantial evidence. Milam v. Commonwealth, 483
S.W.3d 347, 349 (Ky. 2015). Second, the court’s application of the law to those
facts is reviewed de novo. Simpson v. Commonwealth, 474 S.W.3d 544, 547 (Ky.
2015). Our review proceeds accordingly.
ANALYSIS
On appeal, appellant raises the following three arguments preserved
by his conditional plea: 1) Officer Smith did not have reasonable suspicion to
conduct an investigatory stop, 2) the officer’s opening of the car door of the
stopped vehicle constituted an unlawful search, and 3) the stop was unlawfully
extended by the police.
-6- Under Terry v. Ohio, 392 U.S. 1 (1968), “a police officer may briefly
detain a person for investigative purposes if the officer has a reasonable suspicion,
supported by articulable facts, that the person has engaged in or is about to engage
in criminal activity.” Williams v. Commonwealth, 364 S.W.3d 65, 66-67 (Ky.
2011). Terry, 392 U.S. 1 establishes that a law enforcement officer's brief
investigative detention of a person may constitute a seizure within the meaning of
the Fourth Amendment, and as such may nevertheless properly be undertaken only
if the police officer has a reasonable suspicion based upon objective, articulable
facts that criminal activity is afoot. Commonwealth v. Perry, 630 S.W.3d 671, 674
(Ky. 2021).
A reasonable suspicion to justify an investigatory stop need not rise to
the level of probable cause, though a mere “hunch” is not enough. Commonwealth
v. Marr, 250 S.W.3d 624, 627 (Ky. 2008) (quoting United States v. Arvizu, 534
U.S. 266, 274, (2002)). The totality of the circumstances is evaluated to determine
“the probability of criminal conduct, rather than the certainty.” Commonwealth v.
Banks, 68 S.W.3d 347, 351 (Ky. 2001) (citing United States v. Cortez, 449 U.S.
411, 417-18 (1981)). Reviewing courts must examine “‘whether the officer’s
action was justified at its inception, and whether it was reasonably related in scope
to the circumstances which justified the interference in the first place.’” United
-7- States v. Sharpe, 470 U.S. 675, 682 (1985) (quoting Terry, 392 U.S. at 20); Gray v.
Commonwealth, 150 S.W.3d 71, 74 (Ky. App. 2004).
In arguing that the officer did not possess sufficient reasonable
suspicion to conduct the investigatory stop, Chenault asserts that the court clearly
erred because it did not recognize that the officer conducted a “seizure” of
Chenault when he parked, shined his white lights into the vehicle, approached and
asked Chenault to show his hands. On the contrary, we conclude that the court
correctly assessed the facts and recognized that this was a “Terry stop” situation in
which a stop and temporary seizure of the subject was justified on less than
probable cause. See Terry v. Ohio, 392 U.S. 1.
The trial court found, and we agree, that Officer Smith was able to
articulate a reasonable suspicion that he may have encountered a stolen vehicle
whose driver was evading the officer’s efforts to learn more about the driver or the
vehicle. Initially, Officer Smith was following up on a specific stolen vehicle
report he had just been briefed on that evening. The vehicle Chenault was driving
was the same make, model and color, with window tint as the one reported stolen
just days before, albeit a different model year. Chenault argues on appeal that
these vehicles are not uncommon and the description relied on by the officer was
“not so unique.” Chenault’s Brief at 6. But we conclude the officer’s investigation
simply followed details of the briefing specific to the patrol area he worked. The
-8- Nissan stood out for closely matching the description of a stolen vehicle and being
observed in a high crime area with a driver who seemed to be avoiding observation
by police. Of course, Officer Smith did not rely on the stolen vehicle report alone
since he did not initiate a stop of the vehicle after pulling behind him. Rather, he
watched the behavior of the driver which only added to his articulable, reasonable
suspicion that criminal activity might be afoot.
Chenault argues on appeal that the officer manufactured his claims of
evasive movements because he knew the vehicle description alone was insufficient
to justify an investigatory stop. Chenault points out that his driving and parking
actions were not illegal driving maneuvers, as was admitted by Officer Smith at the
hearing. Evasive behavior has been held to be a pertinent factor in determining
reasonable suspicion. Illinois v. Wardlow, 528 U.S. 119, 124 (2000).
When assessing the totality of the circumstances, “there is a ‘demand for specificity in the information upon which police action is predicated.’” “We consider the information from which a trained officer makes inferences, such as objective observations and the method of operation of certain kinds of criminals, and whether that information yields a particularized suspicion that the particular individual being stopped is engaged in wrongdoing.” While this “process does not deal with hard certainties, but with probabilities,” reasonable suspicion is more than an “inarticulate hunch[.]”
Commonwealth v. Conner, 636 S.W.3d 464, 477 (Ky. 2021) (footnotes omitted).
-9- Officer Smith explained why the actions taken by Chenault appeared
to him to be evasive activity, and the circuit court accepted those explanations.
The officer noted that immediately upon pulling onto the road to follow Chenault,
Chenault took two immediate “first turns” which he recognized as an action taken
by drivers who do not want to be detected by police. The circuit court also agreed
with the officer that it was notable that Chenault backed his vehicle onto Tibbs
Lane rather than make a left-hand turn, “so as to face DePorres Ave[nue] and
obscure the license plate from Officer Smith’s view.” September 15, 2022, Order
at 1. Additionally, the court found that Chenault’s repeatedly “nos[ing] out’ and
“back[ing] up again” corresponded with the officer’s belief based on his
professional experience that Chenault was checking to see if the officer had moved
on. September 15, 2022, Order at 2. The court concluded that Officer Smith
adequately articulated a reasonable belief based on his training and experience that
Chenault was “taking action to avoid detection.” September 15, 2022, Order at 1.
We agree.
As previously noted, in determining whether reasonable suspicion of
criminal activity was afoot, our review must focus on the totality of the
circumstances that existed facilitating the investigatory stop. Taking the totality,
and not each action separately, we conclude that the trial court correctly
determined that Officer Smith described the kind of evasive activity and conduct
-10- that one might take in operating a stolen vehicle or when otherwise trying to evade
police, while engaged in criminal activity, that would warrant an investigatory
stop.
Chenault contends, nevertheless, that the circuit court’s findings were
clearly erroneous because the judge “simply accepted” the officer’s factual
assertions. At a suppression hearing, the trial court is vested with discretion to
assess the credibility of witnesses and draw reasonable inferences from the facts; a
reviewing court should give due weight to those assessments. Sowell v.
Commonwealth, 168 S.W.3d 429, 431 (Ky. App. 2005); Commonwealth v.
Whitmore, 92 S.W.3d 76, 79 (Ky. 2002). The trial court’s acceptance of these
explanations by the officer based on his training and experience did not
demonstrate any error, particularly where substantial facts in the record supported
the conclusions of the court.
Next, Chenault argues that when the officer asked him to roll down
the car window and then, within seconds, opened the driver’s side door, revealing a
gun magazine and baggie, such action impermissibly converted the encounter from
an investigatory stop into a seizure. The trial court concluded that opening a car
door is no more intrusive than asking a driver to exit the vehicle for officer safety.
The circuit court noted that Officer Smith had observed Chenault reach for
-11- something in the floorboard and perceived a delay in Chenault’s obedience of his
commands to put his hands up.
“[A] car’s interior as a whole is . . . subject to Fourth Amendment
protection from unreasonable intrusions by the police.” New York v. Class, 475
U.S. 106, 114-15 (1986) (citing Mundy v. Commonwealth, 342 S.W.3d 878, 882
(Ky. App. 2011)). However, “the reality of the dangers encountered daily by
police officers dealing with on-the-street confrontations, mandate that an
individual's private interests be balanced against the protection of the officer.”
Docksteader v. Commonwealth, 802 S.W.2d 149, 150 (Ky. App. 1991). In
Hampton v. Commonwealth, 231 S.W.3d 740 (Ky. 2007), the Kentucky Supreme
Court concluded that what is deemed a permissible intrusion must take into
consideration the circumstance and the officer’s need for safety. Id. at 747-48. In
Hampton, the defendant exited a suspected drug house on foot and got into a
parked car. On appeal, he argued that officers were not permitted to open the car
door during an investigatory stop prior to asking him to exit the car. Id. at 747-48.
The Court agreed that officers are required to use the “least intrusive means
reasonably available to verify or dispel the officer’s suspicion in a short period of
time[,]” but further noted that the scope of what is a permissible intrusion will vary
with the facts and circumstances of each case. Id. at 747 (citing Florida v. Royer,
460 U.S. 491, 500 (1983)). Because the defendant had been seen running from a
-12- house suspected of accommodating drug sales, the Court said it was reasonable to
think he jumped in the car to dispose of evidence of a crime or perhaps to get a
weapon. The Court held that an emphasis on officer safety within the short time to
act rendered it appropriate for the officers to open the car door to see what the
defendant was doing and to have him step out. Id. at 748.
The facts of this case demonstrate similar circumstances entailing a
need to ensure officer safety within a short period of time. When Officer Smith
trained the white lights from his cruiser on Chenault’s vehicle, Officer Smith
observed Chenault lean forward and reach to the floorboard toward his feet.
Opening the door to the car rather than waiting for defendant to comply with the
order to roll down the window was the least intrusive means for Officer Smith to
observe the area within Chenault’s control. As in Hampton, 231 S.W.3d at 747-48,
the investigating officer had some reason to believe that Chenault’s furtive
movements upon approach may have been related to placing a weapon within
reach. In fact, it appears Chenault was attempting to conceal the weapon found in
the Nissan. Accordingly, we conclude that the steps taken by Officer Smith
comported with the guidance in Hampton that a small intrusion into the vehicle by
opening the door is permissible under the Fourth Amendment where the officer
may have reason to believe that concealment of an object may hamper the
investigation or endanger officer safety. See Hampton, 231 S.W.3d at 747-48.
-13- Finally, Chenault argues that the stop was impermissibly extended by
Officer Smith upon calling for backup officers, rather than by immediately calling
in the license plate number to see if the vehicle was stolen. Chenault maintains
that this renders the evidence found due to “plain smell” by the backup officers
inadmissible. We initially note that the trial court correctly observed that the
investigatory stop in this case was not what is termed a “traffic stop,” since Officer
Smith determined that Chenault had not committed any traffic violations and he
encountered Chenault already parked. Thus, the cases cited by Chenault regarding
traffic stops extending past the time needed to give a citation are clearly
distinguishable as applied to the facts of this case.
Nevertheless, an investigatory stop, while it does not have a time
limit, cannot be extended indefinitely either. In Sharpe, the Supreme Court held
that there is no rigid time limitation on Terry stops. Sharpe, 470 U.S. at 685.
Instead, we are instructed that the courts should “examine whether the police
diligently pursued a means of investigation that was likely to confirm or dispel
their suspicions quickly, during which time it was necessary to detain the
defendant.” Id. at 686.
Chenault argues that Officer Smith failed to timely run the license
plate number, given that the stated reason for the stop was to investigate whether
the vehicle was stolen. However, we agree with the trial court that the officers
-14- sufficiently justified the time it took them to carry out the purpose for the
investigatory stop. As Officer Smith testified, the license plate was not
immediately readable when he first pulled onto Price Road to follow Chenault.
With Chenault then taking what appeared to be evasive actions, the license
remained out of view to the officer. Once Chenault’s vehicle was backed in on
Tibbs Lane, Officer Smith could not view the plate without approaching. Officer
Smith explained that it would not have been prudent for him to walk to the rear of
a vehicle he believed was possibly stolen without approaching and speaking to the
driver first.
After he approached the Nissan and observed furtive activity (and
seeing a weapon soon after), Officer Smith’s primary concern was securing his
safety. It was reasonable for him to wait a few minutes for backup rather than to
retreat to the rear of the car, even after Chenault was removed from the vehicle.
Officer Smith adequately explained that while he was stopped at the vehicle with
Chenault, running the license plate number would have required that he go back to
his cruiser to use his computer for an NCIC check or that he disconnect with
dispatch in order to use a separate channel to request someone to run an initial
license check. He stated that while alone with a suspect it was necessary to keep
the line of communication with dispatch connected for his own safety in case of an
-15- emergency. This clearly necessitated a delay in running the license plate number
until backup arrived.
The circuit court noted that Officer Smith observed the handgun on
the floor of the car within two minutes of initiating the stop, and he only had to
wait 4-5 minutes for the backup officers to arrive. This only added a few minutes
to the time Chenault was detained. Calling for backup was adequately explained to
be for valid reasons other than to extend the purpose of the stop. We agree with
the circuit court that the police officer pursued the purpose of the investigatory stop
with reasonable diligence under these circumstances and Chenault was not
unreasonably detained during this time. Thus, the detection by plain smell of
marijuana by Smith and the backup officers was a valid reason for the search of the
vehicle and the suppression motion was properly denied.
For the foregoing reasons, we affirm the Fayette Circuit Court’s order
denying the motion to suppress and final judgment thereon.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Russell J. Baldani Russell Coleman Whitney D. Rowe Attorney General of Kentucky Lexington, Kentucky James Havey Assistant Solicitor General Office of the Solicitor General Frankfort, Kentucky
-16-