Michael Lee Giles v. Commonwealth of Kentucky

• Court: Court of Appeals of Kentucky
• Decided: March 25, 2021
• Docket: 2020 CA 000131
• Status: Unknown

Opinion

RENDERED: MARCH 26, 2021; 10:00 A.M. TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2020-CA-0131-MR

MICHAEL LEE GILES APPELLANT

APPEAL FROM FAYETTE CIRCUIT COURT v. HONORABLE LUCY ANNE VANMETER, JUDGE ACTION NO. 19-CR-00337

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION REVERSING AND REMANDING

** ** ** ** **

BEFORE: CALDWELL, MCNEILL, AND TAYLOR, JUDGES.

TAYLOR, JUDGE: Michael Lee Giles brings this appeal from a January 15,

2020, Amended Final Judgment and Sentence of Imprisonment of the Fayette

Circuit Court sentencing him to a total of ten-years’ imprisonment. We reverse

and remand.

In March of 2019, Giles was indicted by a Fayette County Grand Jury

upon trafficking in a controlled substance in the first degree, promoting contraband in the first degree, possession of a controlled substance in the first degree,

possession of drug paraphernalia, and with being a persistent felony offender in the

first degree. Following the indictment, Giles filed a motion to suppress evidence

seized from the vehicle that he was a passenger in, which formed the basis for his

indictment.

The circuit court conducted an evidentiary hearing upon Giles’ motion

to suppress. The only witness to testify at the hearing was Officer Alec Hood. In

its October 22, 2019, order denying the motion to suppress, the circuit court

determined that Hood had prolonged the traffic stop beyond the time reasonably

necessary to complete the stop. However, the circuit court ultimately determined

Hood had reasonable suspicion of criminal activity to prolong the traffic stop based

upon a radio call from a narcotics detective that a white Nissan Altima had just left

a known drug house after being there for only five minutes. Regarding Hood’s

reliance on the information from the narcotics detective, the circuit court stated the

following:

The Court may consider factual information observed by, and told to, Officer Hood. See Commonwealth v. Smith, 542 S.W.3d 276, 281 (Ky. 2018) (. . . holding the collective knowledge doctrine applies to traffic stops, the Court noted, “‘[u]nder the collective knowledge doctrine, an arresting officer is entitled to act on the strength of the knowledge communicated from a fellow officer and he may assume its reliability provided he is not otherwise aware of circumstances sufficient to materially impeach the information received.’” ([C]itations omitted[.]))

-2- October 22, 2019, order at 6.

Following the circuit court’s denial of his motion to suppress, Giles

reached a plea agreement with the Commonwealth. Pursuant to the plea

agreement, Giles entered a conditional guilty plea to possession of a controlled

substance in the first degree, promoting contraband in the first degree, and being a

persistent felony offender in the first degree. Kentucky Rules of Criminal

Procedure (RCr) 8.09. Giles preserved the right to appeal the denial of his motion

to suppress. Giles was sentenced to a total of ten-years’ imprisonment. This

appeal follows.

The events leading to Giles’ arrest and subsequent indictment

occurred on the afternoon of January 8, 2019. A narcotics detective put out a radio

call asking officers to stop a white Nissan Altima that just left a house known for

drug activity on Locust Avenue. Officer Hood was on Locust Avenue and spotted

a white Nissan Altima. Hood began to follow the Altima and noticed the tag on

the license plate was expired. Hood initiated a traffic stop of the Altima around

1:41 p.m. Before exiting his police cruiser to approach the Altima, Hood turned on

his body camera. Unfortunately, the quality of sound on the video recording is

often poor.

When Hood approached the Altima on the passenger’s side where

Giles was seated, Hood asked the driver for his driver’s license. The driver

-3- responded that he did not have his license with him, but the driver provided his

social security number. Officer Hood did not ask for the driver’s name, and he did

not provide it. The passenger, Giles, said he did not have a driver’s license, but he

provided a state-issued identification card. Hood also asked for the vehicle

registration and proof of insurance. Giles responded that the vehicle belonged to

his aunt, Karen, and he provided the insurance card. Giles could not locate the

vehicle registration.

Officer Hood returned to his cruiser and radioed the narcotics

detective to inform him that a traffic stop of the Altima had been effectuated based

upon an expired license plate tag. Upon running a search of the social security

number, the driver was identified as Diangela Santana. Hood then informed the

narcotics detective that Giles and Santana were the individuals in the Altima. The

narcotics detective asked if there was reasonable suspicion of criminal activity or

any basis for sending a canine unit. Officer Hood responded “possibly” and stated

that he had spotted a plastic baggie in the console area. Hood also told the

narcotics detective that he intended to ask for consent to search the vehicle. Before

Hood exited his cruiser to investigate the plastic baggie, another officer who had

arrived on the scene approached Hood’s cruiser. Hood informed the officer of the

situation, and the officer approached the Altima. Hood also asked dispatch to run a

check for warrants on both occupants of the Altima.

-4- Officer Hood then exited the cruiser and approached the Altima on the

passenger’s side. Hood again asked for the vehicle registration, but Giles was

unable to locate it. Hood further questioned Giles and Santana about where they

had been and where they were going. The response was that they had come from

Frankfort to visit a nephew or cousin that lived on Locust Avenue and were now

returning to Frankfort. Hood asked Giles and Santana if anything was in the

vehicle to “worry about,” and the response was “no.” Hood then asked for consent

to search the vehicle. Santana denied the request to search and stated the vehicle

was not his. Hood and the other officer on the scene then stepped away and

discussed whether there was anything illegal in plain view inside the Altima.

Hood said, “What do you think? Did you see anything?” The other officer

responded in the negative. Both officers concluded the baggie in the console was

one for plastic silverware. The other officer can then be heard saying, “You got

nothing, man. I don’t see anything.” Hood responded, “I don’t either.”

Officer Hood returned to his cruiser and was informed by dispatch

that neither Giles nor Santana had any outstanding warrants for their arrest and that

Santana had an active driver’s license. Hood then reported to the narcotics

detective that the plastic baggie was for silverware and that consent to search the

vehicle was denied. The narcotics officer could then be heard on the radio

responding, “Ten-four. Should we start a canine?” Hood responded, “Ten-four.

-5- Start canine my way.” A few minutes later dispatch informed Hood there was not

a canine available to send. There was some chatter on the radio, and then the

narcotics detective asked Hood if he had “plain smell or anything else.” Hood said

he did not have “plain smell” nor did he visualize any “shake.”1

For the next several minutes, Hood could be seen and heard

continuing to work on his computer. Shortly thereafter, the narcotics detective said

he had a canine unit in route. The narcotics detective also advised Hood to start

writing the citation for the expired license plate tag; Hood responded he had

already started.

An officer on the scene walked up to Hood’s passenger window, and

they engaged in small talk while Hood worked on his computer. Approximately

thirty minutes after the initial traffic stop, Hood printed the citation out at about the

same time that the canine unit arrived. Hood did not deliver the citation to Santana

before the other officers asked Santana and Giles to exit the vehicle.2 A sniff by

the canine led to discovery of cocaine, a baggie with residue, and scales.

Our review of a circuit court’s denial of a motion to suppress evidence

is pursuant to a two-prong test. Commonwealth v. Mitchell, 610 S.W.3d 263, 268

1 Shake is apparently a term used to refer to small pieces of marijuana. 2 As the body camera video only recorded a thirty minute segment, the video recording cuts off at this point.

-6- (Ky. 2020). Under the first prong, we review the circuit court’s findings of fact

pursuant to the clearly erroneous standard. Id. Pursuant to this standard, the

circuit court’s “findings of fact will be conclusive if they are supported by

substantial evidence.” Id. Under the second prong, we review the circuit court’s

application of law to the facts de novo. Id. In the case sub judice, neither party has

challenged the circuit court’s findings of fact, so we will proceed to review the

court’s application of law to the facts.

Giles asserts the circuit court improperly denied his motion to

suppress evidence. More particularly, Giles contends that although the circuit

court properly determined the traffic stop was prolonged beyond the time

necessary to complete the traffic citation, the circuit court improperly determined

that Hood had reasonable suspicion of criminal activity to justify prolonging the

traffic stop for a canine unit to arrive.

It is uncontroverted that the initial stop of the Altima was a lawful

traffic stop based upon the vehicle’s expired license plate tag. However, even a

lawful traffic stop may “become unlawful if it is prolonged beyond the time

reasonably required to issue a traffic citation.” Commonwealth v. Smith, 542

S.W.3d 276, 281 (Ky. 2018) (citing Illinois v. Caballes, 543 U.S. 405, 407 (2005)).

In other words, detaining the driver, and by logical extension a passenger, becomes

unreasonable when the “tasks tied to the traffic infraction are – or reasonably

-7- should have been – completed . . . .” Id. at 281 (citation omitted). In this case, we

agree with the circuit court that the traffic stop was prolonged beyond the time

reasonably necessary to issue a citation for the expired license plate tag. Thus, the

pivotal question becomes whether there was reasonable and articulable suspicion

of criminal activity to justify prolonging the stop for a canine unit to arrive.

As an appellate court, we must determine whether the officer had a

reasonable and articulable suspicion that criminal activity was afoot to justify

prolonging the traffic stop. Commonwealth v. Blake, 540 S.W.3d 369, 373 (Ky.

2018) (citing Terry v. Ohio, 392 U.S. 1, 30 (1968)). Reasonable suspicion is

determined by examining the totality of the circumstances. Id. (citation omitted).

And, when determining whether reasonable suspicion of criminal activity exists,

“the collective knowledge of all the law enforcement officers involved in the stop

may be taken into consideration.” Id. at 373 (citation omitted). More particularly,

a police officer may properly rely upon a radio bulletin or other information shared

by another law enforcement officer or department to justify a Terry3 stop; however,

the bulletin or other information must be based upon reasonable suspicion of

criminal activity. U.S. v. Hensley, 469 U.S. 221, 232 (1985) (holding that “if a

[wanted] flyer or bulletin has been issued on the basis of articulable facts

3 Terry v. Ohio, 392 U.S. 1 (1968).

-8- supporting a reasonable suspicion that the wanted person has committed an

offense, then reliance on that flyer or bulletin justifies a stop”).

At the evidentiary hearing, Hood acknowledged there was no

contraband in plain view and there was no plain smell. Therefore, the basis for the

Terry stop had to derive from the narcotics detective’s radio call that a white

Nissan Altima left a house on Locust Avenue known for drug activity after making

only a five-minute stop. Terry, 392 U.S. 1 (1968). However, there was no

testimony or other evidence presented at the hearing regarding the basis for the

narcotic’s detective’s belief that the house on Locust Avenue was a known drug

house. The narcotics officer did not testify at the hearing.

To have properly relied upon the narcotics detective’s radio call, it

was incumbent upon the Commonwealth to have introduced evidence setting forth

the facts supporting the reasonable suspicion that the house on Locust Avenue was

indeed a known drug house. In the absence thereof, we can only conclude that

there was not reasonable suspicion of criminal activity to support the narcotics

detective’s radio call concerning the Altima leaving the known drug house on

Locust Avenue.4 In this respect, the circuit court committed an error of law.

4 We note that in U.S. v. Hensley, 469 U.S. 221, 232-34 (1985), a police officer testified concerning the articulable suspension of criminal activity that lead to issuance of the “wanted flyer.” In the case sub judice, the narcotics detective did not testify at the evidentiary hearing on the motion to suppress.

-9- Additionally, the evidence established that Hood did not see the

Altima leave the house, the narcotics detective did not provide a license plate

number, and the narcotics detective did not supply a description of the individuals

in the Altima. A driver’s license check revealed that Santana had an active driver’s

license, and a search for outstanding warrants revealed that neither Santana nor

Giles had any outstanding warrants. And, there was no evidence that Giles or

Santana had a criminal history. While certainly a close call, in the absence of any

other evidence being presented at the suppression hearing, we must conclude that

Hood’s actions in prolonging the stop for an expired license plate tag to wait for a

canine unit were unreasonable and were in violation of Giles’ Fourth Amendment

right to be free from an unreasonable search and seizure. There was insufficient

evidence presented at the hearing to justify prolonging the stop.

In sum, we are of the opinion that the circuit court erroneously denied

Giles’ motion to suppress evidence seized from the automobile.

For the foregoing reasons, the January 15, 2020, Amended Final

Judgment and Sentence of Imprisonment of the Fayette Circuit Court is reversed

and remanded for proceedings consistent with this Opinion.

ALL CONCUR.

-10- BRIEFS AND ORAL ARGUMENT BRIEF FOR APPELLEE: FOR APPELLANT: Daniel Cameron Emily Holt Rhorer Attorney General of Kentucky Assistant Public Advocate Frankfort, Kentucky Department of Public Advocacy Frankfort, Kentucky Jenny L. Sanders Assistant Attorney General Frankfort, Kentucky

ORAL ARGUMENT FOR APPELLEE:

Christopher Henry Assistant Attorney General Frankfort, Kentucky

-11-