Rebecca Luken v. Commonwealth of Kentucky

• Court: Court of Appeals of Kentucky
• Decided: November 18, 2021
• Docket: 2020 CA 000234
• Status: Unknown

Opinion

RENDERED: NOVEMBER 19, 2021; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2020-CA-0234-MR

REBECCA LUKEN APPELLANT

APPEAL FROM CAMPBELL CIRCUIT COURT v. HONORABLE JULIE REINHARDT WARD, JUDGE ACTION NO. 18-CR-00322

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION AFFIRMING

** ** ** ** **

BEFORE: CALDWELL, McNEILL, AND TAYLOR, JUDGES.

McNEILL, JUDGE: At approximately 6:00 p.m. on February 28, 2018, an

employee at the home department store, Lowe’s, in Highland Heights, Kentucky,

observed a red van with a trailer at the store’s location. Based on a notification by

another Lowe’s store in Ohio concerning a recent attempted theft involving a red

van pulling a trailer, the police were contacted. Highland Heights Police Officer

Blank responded to the scene later that evening. Shortly after 10:00 p.m., when the store was closed, Officer Blank positioned his patrol car behind an elevated

location overlooking the store. While there, Officer Blank observed a black

flatbed pickup truck with an attached trailer drive behind the Lowe’s building.

There was no indication that the vehicle was performing business for Lowe’s or its

customers. Believing that this was suspicious based on his experience with the

Highland Heights Police Department, Officer Blank stopped the vehicle while it

was exiting the Lowe’s parking lot. Rebecca Luken (hereafter, “Appellant”), was a

passenger in the vehicle. During the stop, Officer Blank searched the vehicle and

discovered a pill bottle labeled with Appellant’s name. The bottle contained

suspected methamphetamine.1

Appellant was subsequently indicted on one count of first-degree

possession of a controlled substance. She filed a motion to suppress the evidence

based on lack of reasonable suspicion for the traffic stop, which was denied by the

trial court. Thereafter, Appellant entered a guilty plea upon the condition that her

suppression motion may be appealed. She now appeals as a matter of right and

specifically argues that the stop was not based on reasonable and articulable

suspicion that criminal activity was afoot.

1 Appellant does not contest that the substance was illegal or anything that occurred after the initial investigatory stop.

-2- I. ANALYSIS

Our standard of review of the trial court’s denial of a suppression

motion is twofold. First, 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. Commonwealth v. Marr, 250 S.W.3d 624, 626 (Ky. 2008).

We summarized the relevant Fourth Amendment law in Dunn v. Commonwealth:

All warrantless searches are presumed to be unreasonable and unlawful, requiring the Commonwealth to bear the burden of justifying the search and seizure under one of the exceptions to the warrant requirement. Here, the circuit court upheld the search . . . based on the automobile exception, which allows police to search a legitimately stopped automobile where probable cause exists that contraband or evidence of a crime is in the vehicle. This exception is premised upon the ready mobility of automobiles as well as the reduced expectation of privacy [one has] in an automobile, owing to its pervasive regulation.

199 S.W.3d 775, 776 (Ky. App. 2006) (internal quotation marks and footnotes

omitted). See also United States v. Cortez, 449 U.S. 411, 417, 101 S. Ct. 690, 695,

66 L. Ed. 2d 621 (1981) (footnote omitted) (an investigatory stop must “be

justified by some objective manifestation that the person stopped is, or is about to

be, engaged in criminal activity.”). In ruling on a motion to suppress resulting

from such a stop, courts must consider the totality of the circumstances. Id.

-3- Cortez provides additional guidance that is particularly instructive in the present

case:

The [search and seizure] process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common sense conclusions about human behavior; jurors as factfinders are permitted to do the same–and so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.

Id. at 418, 101 S. Ct. at 695. With these standards in mind, we conclude that the

record demonstrates that the Commonwealth presented sufficient evidence that

would justify the warrantless search and seizure at issue here. More precisely,

having considered the record and the law, including the non-binding case law cited

by Appellant, we are convinced that Officer Blank possessed reasonable and

articulable suspicion that criminal activity was afoot, thus justifying the

investigatory stop at issue.

The suppression hearing lasted less than half of an hour and the only

testimonial evidence presented was Officer Blank’s. Particularly relevant portions

of his testimony include, without limitation: 1) he was informed that someone in a

red van with a trailer recently attempted a theft at an Ohio Lowe’s, and that a

vehicle and trailer matching that description was reported being seen at the

Highland Heights Lowe’s on February 28, 2018; 2) in response to these

-4- complaints, Officer Blank observed from a position overlooking the store–after the

store had closed–a black truck pulling a trailer enter the parking lot and then

proceed behind the store where merchandise and materials were located. Some of

these materials, like cinder blocks, could be removed and placed inside of a

vehicle; 3) Officer Blank frequently patrolled that Lowe’s location and never

witnessed any vehicle enter the rear of the store that was not involved in the store’s

operation; and 4) there was no exit behind the store.

We recognize, however, that some of Officer Blank’s testimony

weighs at least somewhat in Appellant’s favor. For example, the black truck at

issue here did not match the description of the red van that was the subject of the

previous reports from Lowe’s employees. Officer Blank also testified that the

vehicle was only behind the store for between two and three minutes and that he

did not see anything on the trailer when the vehicle entered the Lowe’s parking lot

or when it attempted to exit the scene. Yet, based on this totality of the

circumstances, we believe that Officer Blank had reasonable and articulable

suspicion that criminal activity was afoot. Therefore, the trial court did not err in

denying Appellant’s motion to suppress.

II. CONCLUSION

For the foregoing reasons, we hereby affirm the judgment of the

Campbell Circuit Court.

-5- ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

Julia K. Pearson Daniel Cameron Frankfort, Kentucky Attorney General of Kentucky

Courtney J. Hightower Assistant Attorney General Frankfort, Kentucky

-6-