Maurice Gasaway v. Commonwealth of Kentucky ( 2023 )

RENDERED: JUNE 15, 2023
TO BE PUBLISHED
Supreme Court of Kentucky
2021-SC-0457-DG
MAURICE GASAWAY APPELLANT
ON REVIEW FROM COURT OF APPEALS
V. NO. 2020-CA-0031
HARDIN CIRCUIT COURT NO. 18-CR-00927
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT BY JUSTICE NICKELL
AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
Maurice Gasaway was convicted of one count of possession of heroin in
Hardin Circuit Court. The Court of Appeals affirmed. We granted discretionary
review to consider three overarching issues.
First, we must consider the bounds under which the warrantless search
of a parolee’s vehicle is constitutionally permissible. We adopt the
reasonableness test for such searches under the Fourth Amendment1 as
announced by the United States Supreme Court in Samson v. California, 547
U.S. 843 (2006), and we overrule our decision in Bratcher v. Commonwealth,
424 S.W.3d 411 (Ky. 2014), to the extent it holds the conditions of parole
imposed by Kentucky law are immaterial to the Fourth Amendment analysis.
1 U.S. CONST. amend. IV.
The scope of Section 10 of the Kentucky Constitution2 is not properly before
this Court for review. We hold, albeit for different reasons, the Court of
Appeals properly affirmed the trial court’s denial of Gasaway’s motion to
suppress evidence obtained from a warrantless search of his truck.
Second, we must consider whether Kentucky should recognize a per se
rule prohibiting the Commonwealth from introducing, in a subsequent
proceeding, evidence of a crime for which the defendant has previously been
acquitted. We hold Kentucky does not recognize such a per se rule.
Nevertheless, we further hold the Court of Appeals erred by affirming the trial
court’s admission of evidence, under KRE3 404(b), of methamphetamine for
which Gasaway had been acquitted, and evidence of marijuana for which
Gasaway had been found guilty.
Finally, we must consider whether the trial court improperly permitted
three witnesses to interpret the contents of a video recording. We hold the
Court of Appeals erred by affirming the trial court’s decision allowing the first
witness to testify regarding events he did not perceive in real-time. Any
questions regarding the propriety of the other two witnesses’ testimony were
not properly preserved for review.
Therefore, for the following reasons, the decision of the Court of Appeals
is affirmed in part and reversed in part. We remand to the trial court for
further proceedings.
2 KY. CONST. § 10.
3 Kentucky Rules of Evidence.
2
I. FACTS AND PROCEDURAL HISTORY
Maurice Gasaway, a parolee under active supervision, was employed at
Knight’s Mechanical in Hardin County, Kentucky. On August 30, 2018,
Gasaway and two other employees were working in the sheet metal shop. At
some point, one of Gasaway’s co-workers, Austin McClanahan, noticed a small
plastic bag about the size of a thumbnail on the floor. McClanahan picked up
the bag just as his supervisor, Josh Bush, entered the room. Bush instructed
McClanahan to place the bag on the desk in Bush’s office. Bush covered the
bag with a few sheets of paper and notified his supervisor that he suspected
the bag contained illegal drugs. Bush’s supervisor informed his supervisor,
Jeremy Knight,4 about the situation.
After lunch, Knight went to Bush’s office and secured the bag in another
container. Knight also reviewed surveillance video from the area where the bag
was found. Based on the video, Knight suspected the bag fell from Gasaway’s
pocket when he reached in his pocket to retrieve his cellphone. Knight gave
the bag to another employee, Brian Tharpe, who then contacted Detective
Robert Dover of the Greater Hardin County Narcotics Task Force.
The next day, Det. Dover came to Knight’s Mechanical to investigate.
Det. Dover performed a field test and determined the substance contained in
the bag was heroin. After speaking with Tharpe and viewing the surveillance
video, Det. Dover also suspected Gasaway of possessing the heroin. Det. Dover
4 Jeremy Knight’s father, John Knight, is the owner of Knight’s Mechanical.
3
and two other officers confronted Gasaway inside the workplace. Gasaway
denied possessing the heroin. Det. Dover then handcuffed and Mirandized5
Gasaway before leading him outside.
Once outside the building, Gasaway realized parole officers were on the
scene. At this point, Gasaway launched into a sustained, vulgar tirade directed
at Det. Dover. Det. Dover then placed Gasaway in the back of a police cruiser.
Det. Dover searched Gasaway’s person, but did not discover any incriminating
evidence. However, Det. Dover retrieved a key fob from the search of
Gasaway’s person.
The key fob opened a truck in the parking lot. Det. Dover ascertained
the truck was registered to Gasaway’s wife and that Gasaway usually drove the
truck to work. Det. Dover requested consent to search the truck, which
Gasaway refused. Apparently, the parole officers commenced the search of the
truck and Det. Dover subsequently participated. In the console, Det. Dover
discovered two bags of marijuana and a pill which Det. Dover initially believed
to contain ecstasy, but was later determined to contain methamphetamine. He
also discovered a few marijuana “roaches” in a cupholder ashtray with
marijuana “shake” around it.6 The search also uncovered a Whizzinator—a
prosthetic penis which illegal drug users frequently use to store and pass clean
urine when drug testing is required.
5 See Miranda v. Arizona, 384 U.S. 436 (1966).
6 Det. Dover explained that “roaches” are marijuana cigarette butts, and
“shake” is little pieces of marijuana.
4
Gasaway was charged with first-degree possession of a controlled
substance, heroin; second-degree possession of a controlled substance,
ecstasy7; and possession of marijuana in Hardin Circuit Court. By
supplemental indictment, he was charged with first-degree possession of a
controlled substance, methamphetamine. Gasaway filed a motion to suppress
the evidence obtained from the search, which the trial court denied. Following
trial, Gasaway was found guilty of possession of marijuana, not guilty of
possession of methamphetamine, and the jury hung on the heroin charge.
The Commonwealth elected to retry Gasaway on the heroin charge and
the jury returned a guilty verdict. His conviction for possession of heroin
rested, in part, upon the evidence of methamphetamine for which he was
previously acquitted and the evidence of marijuana for which he was previously
convicted. The Court of Appeals affirmed the conviction. We granted
discretionary review and heard oral argument on April 19, 2023.
II. GASAWAY’S BRIEF DOES NOT COMPLY WITH RAP 32(A)(4)
At the outset, Gasaway’s opening brief to this Court does not comply
with RAP8 32(A)(4), which requires an appellant’s opening brief to “contain at
the beginning of the argument a statement with reference to the record
showing whether the issue was properly preserved for review and, if so, in what
manner.” We have strictly mandated compliance with this rule since its
inception under the prior Kentucky Rules of Civil Procedure. Skaggs v. Assad,
7 The ecstasy charge was later dismissed.
8 Kentucky Rules of Appellate Procedure.
5
By & Through Assad, 712 S.W.2d 947, 950 (Ky. 1986) (citing CR9 76.12(4)(c)(iv)
(“It goes without saying that errors to be considered for appellate review must
be precisely preserved and identified in the lower court.”). RAP 32(A)(4) does
not distinguish between this Court and the Court of Appeals when prescribing
the organization and contents of an appellant’s opening brief. The failure of an
appellant’s brief to conform to the appellate rules justifies the striking of the
brief under RAP 31(H)(1).
Regarding the suppression issue, Gasaway merely noted, “[t]he Court of
Appeals held it was ‘constrained’ to conclude that Section 10 of the Kentucky
Constitution would present no impediment against a warrantless and
suspicionless search of a parolee or his vehicle.” Gasaway then cited the Court
of Appeals’ opinion.10 This statement neither indicates the fact nor the manner
of preservation as contemplated by RAP 32(A)(4). It simply refers to an
observation made by the Court of Appeals.
Regarding the admissibility of the methamphetamine evidence,
Gasaway’s brief does not contain any statement of preservation. Regarding
the marijuana evidence, Gasaway simply quoted the holding of the Court of
Appeals and then cited to its opinion. Again, merely quoting the decision of the
Court of Appeals does not tell this Court whether the issue was preserved.
Regarding the interpretation of the surveillance video, Gasaway stated
“three witnesses were permitted to testify, over objection that they could see
9 Kentucky Rules of Civil Procedure.
10 Id.6
something drop from Maurice’s hand on the video.” However, while we are
directed to the allegedly improper testimony, Gasaway failed to specify where
the objection occurred. Regarding the first witness, there was a relevant
objection, which was not cited and occurred over ten minutes prior to
Gasaway’s cite. Regarding the second witness, we were not directed to an
objection, nor could we find one in the record. Regarding the third witness, we
were directed to an objection, which the trial court remedied by rephrasing the
Commonwealth’s question and no further relief was requested.
The purpose of the preservation statement rule is to assure the reviewing
court that “the issue was properly presented to the trial court, and therefore, is
appropriate for . . . consideration.” Cotton v. NCAA, 587 S.W.3d 356, 360 (Ky.
App. 2019) (quoting Oakley v. Oakley, 391 S.W.3d 377, 380 (Ky. App. 2012)).
While this procedural rule preserves judicial resources, it also serves an
important substantive purpose: the fact and manner of preservation generally
determines the applicable standard of review. Id. Furthermore, it is neither
the function nor the responsibility of this Court to scour the record to ensure
an issue has been properly preserved for appellate review. Phelps v. Louisville
Water Co., 103 S.W.3d 46, 53 (Ky. 2003).
The Court of Appeals addressed each of Gasaway’s claimed errors as if
they were properly preserved for review.11 Additionally, the Court of Appeals
urged this Court to consider the applicability of Section 10 of the Kentucky
11 We except from this statement the unpreserved issue concerning the
prosecutor’s statements at voir dire which is not presently before this Court.
7
Constitution. We note the Commonwealth has not challenged the preservation
of any issues before this Court except for the adequacy of the trial court’s
admonition concerning the admission of the methamphetamine and marijuana
evidence. Because preservation determines the appropriate standard of review,
an appellate court should determine for itself whether an issue is properly
preserved. We are not bound by the view of the parties.
Our review of the record indicates Gasaway’s first claim of error before
this Court regarding the warrantless search was partially preserved for review;
his claim regarding the admissibility of the methamphetamine and marijuana
evidence was properly preserved; and his claim regarding the improper
interpretation of the video recording was partially preserved: Gasaway properly
objected to the testimony of Jeremy Knight, but he did not properly preserve
any issues regarding the testimony of Brian Tharpe and Det. Dover. Given this
unusual situation, we elect to impose no sanction here and begin our analysis
by clarifying the general principles of the preservation rule before turning to
our review of Gasaway’s claimed errors.
A. GENERAL PRINCIPLES OF ERROR PRESERVATION
In the exercise of its inherent power, an appellate court may decide an
issue that was not presented by the parties so long as the appellate court
confines itself to the record. Priestley v. Priestley, 949 S.W.2d 594, 597 (Ky.
1997). This power derives from an appellate court’s supervisory authority over
8
lower courts. KY. CONST. § 110(2)(a)12; and KY. CONST. § 111(2).13 Appellate
jurisdiction “is the power and authority to review, revise, correct or affirm the
decisions of an inferior court, and, more particularly, to exercise the same
judicial power which has been executed in the court of original jurisdiction.”
Copley v. Craft, 341 S.W.2d 70, 72 (Ky. 1960).14 Additionally, KY. CONST. §
116 authorizes this Court to “to prescribe rules governing its appellate
jurisdiction . . . and rules of practice and procedure for the Court of Justice.”
KRS15 21.050 codifies our appellate jurisdiction and power to establish the
procedure for appellate review:
(1) A judgment, order or decree of a lower court may be reversed,
modified or set aside by the Supreme Court for errors appearing
in the record.
(2) The method of bringing a judgment, order or decree of a lower
court to the Supreme Court for review shall be established by
Supreme Court rule. The procedures for appellate review shall
be established by the Rules of Civil Procedure, Rules of
12 KY. CONST. § 110(2)(a) provides “[t]he Supreme Court shall have appellate
jurisdiction only, except it shall have the power to issue all writs necessary in aid of its
appellate jurisdiction, or the complete determination of any cause, or as may be
required to exercise control of the Court of Justice.”
13 KY. CONST. § 111(2) provides “[t]he Court of Appeals shall have appellate
jurisdiction only, except that it may be authorized by rules of the Supreme Court to
review directly decisions of administrative agencies of the Commonwealth, and it may
issue all writs necessary in aid of its appellate jurisdiction, or the complete
determination of any cause within its appellate jurisdiction. In all other cases, it shall
exercise appellate jurisdiction as provided by law.”
14 Justice Joseph Story, sitting as Circuit Justice, explained that the appellate
jurisdiction of American courts derives from the English common law writ of error
rather than the “appeal” procedure used in the English courts of chancery. See United
States v. Wonson, 28 F. Cas. 745, 750 (No. 16,750) (C.C. Mass. 1812). The common
law writ of error was limited to the trial court record while the equitable appeal
permitted the retrial of factual disputes on review. Id.15 Kentucky Revised Statutes.
9
Criminal Procedure and other rules promulgated by the
Supreme Court.
Under this authority, we generally require a party to properly preserve
allegations of error at the trial court level and upon every level of appellate
review. Personnel Bd. v. Heck, 725 S.W.2d 13, 18 (Ky. App. 1986).16 The
rationale for the preservation rule is that “a court or quasi-judicial body may
not be found to be in error where it has not been given an opportunity to (1)
rule on the issue or (2) correct any alleged error.” Id. Beyond the order and
efficiency imposed by the preservation requirement, the rule ensures the
essential fairness of appellate proceedings by preventing a party from being
unfairly surprised by a question upon which he had no prior opportunity to
develop evidence and argument. Hormel v. Helvering, 312 U.S. 552, 556
(1941). We would hasten to add the consistent enforcement of the preservation
rule promotes the equal application of our own decision-making authority.
While the preservation rule has been universally applied in American
law, many courts, including this Court, have used imprecise language to
delineate its contours. See Kontrick v. Ryan, 540 U.S. 443, 458 n.13 (2004).
Strictly speaking, a party preserves “[a]llegations of error . . . for appellate
review.” RCr 10.12; see also KRE 103(a), (e). In a criminal case, an allegation
of error is properly preserved when
16 There are certain situations, inapplicable here, where a party may raise an
issue before this Court that was not raised before the Court of Appeals. Fischer v.
Fischer, 197 S.W.3d 98, 103 (Ky. 2006). This Court will consider such an issue when:
(1) the party brought to the attention of the trial court; (2) the party was defending the
trial court’s ruling on direct appeal; and (3) the party included the issue in the motion
for discretionary review. Id.10
a party, at the time the ruling or order of the court is made or sought,
makes known to the court the action which that party desires the court
to take or any objection to the action of the court, and on request of the
court, the grounds therefor; and, if a party has no opportunity to object
to a ruling or order at the time it is made, the absence of an objection
does not thereafter prejudice that party.
RCr 9.22. Formal exceptions, as previously required under the former
Criminal Code of Practice, are unnecessary and appellate courts do not
demand the recitation of shibboleths before a preserved allegation of error will
be considered. Id.; Brewer v. Commonwealth, 478 S.W.3d 363, 368 n.2 (Ky.
2015). However, while the form of the objection does not control, the fact that
an issue was made known to the trial court is paramount: even if a trial court
lacks authority to grant immediate relief, such as the power to overrule binding
precedent, neither our criminal rules nor our caselaw supports a futility
exception to the preservation requirement.17 See Greer v. United States, 141
S.Ct. 2090, 2099 (2021).
This Court has long held that “appeals are taken from judgments, not
from unfavorable rulings as such.” Brown v. Barkley, 628 S.W.2d 616, 618
(Ky. 1982). When confronted with a claim of lower court error, appellate courts
“review issues, not arguments.” Brewer, 478 S.W.3d at 368 n.2. An “issue” is
legally defined as “[a] point in dispute between two or more parties.” Issue,
17We recognize our decisions applying a futility exception to exhaustion
requirements in appeals involving judicial review from administrative decisions.
Popplewell’s Alligator Dock No. 1, Inc. v. Revenue Cabinet, 133 S.W.3d 456, 470 (Ky.
2004). This exception is based on an administrative body’s lack of authority to rule
upon the constitutionality of a statute. Id. Such considerations are inapplicable to
ordinary judicial proceedings. City of Louisville v. Coalter, 171 Ky. 633, 188 S.W. 853,
854 (1916)(“the circuit court may first pass on the constitutionality of the statute if the
question is raised in that court.).
11
Black’s Law Dictionary (11th ed. 2019). For the purposes of appeal, “an issue
may take the form of a separate and discrete question of law or fact, or a
combination of both.” Id. By contrast, “argument” is defined as “[a] statement
that attempts to persuade by setting forth reasons why something is true or
untrue, right or wrong, better or worse, etc.; esp., the remarks of counsel in
analyzing and pointing out or repudiating a desired inference, made for the
assistance of a decision-maker.” Argument, Black’s Law Dictionary (11th ed.
2019).
Allegations of error (also known as issues, claims, or questions) are
supported by arguments. Yee v. City of Escondido, Cal., 503 U.S. 519, 534
(1992). “Once a . . . claim is properly presented, a party can make any
argument in support of that claim; parties are not limited to the precise
arguments they made below.” Id. Indeed, “[a] litigant seeking review in this
Court of a claim properly raised in the lower courts thus generally possesses the
ability to frame the question to be decided in any way he chooses, without
being limited to the manner in which the question was framed below.” Id. at
535 (emphasis added). Indeed, “appellate review. . . is to be conducted in light
of all relevant precedents, not simply those cited to, or discovered by” the trial
court. Elder v. Holloway, 510 U.S. 510, 512 (1994).
However, when a party fails to raise an issue or otherwise preserve an
allegation of error for review, the issue is forfeited. United States v. Olano, 507
U.S. 725, 731 (1993) (“No procedural principle is more familiar to this Court
than that a constitutional right, or a right of any other sort, may be forfeited in
12
criminal as well as civil cases by the failure to make timely assertion of the
right before a tribunal having jurisdiction to determine it.”) (cleaned up).
Again, while many courts, including this Court, have justified the refusal to
consider unpreserved errors under a waiver theory, the proper basis is
forfeiture. Kontrick, 540 U.S. at 458 n.13. “Although jurists often use the
words interchangeably, forfeiture is the failure to make the timely assertion of a
right, waiver is the intentional relinquishment or abandonment of a known
right.” Id. (internal quotations omitted) (cleaned up). The valid waiver of a
known right precludes appellate review while a forfeited claim of error may be
reviewed for palpable error. See Olano, 507 U.S. at 733.
In summation, we echo the wisdom of Justice Palmore on the necessity
of respecting the rules of procedure:
In the argument of this and other recent criminal appeals we
detect what appears to be a failure to appreciate the importance of
and necessity for procedural regularity in the conduct of trials.
Substantive rights, even of constitutional magnitude, do not
transcend procedural rules, because without such rules those
rights would smother in chaos and could not survive. There is a
simple and easy procedural avenue for the enforcement and
protection of every right and principle of substantive law at an
appropriate time and point during the course of any litigation, civil
or criminal. That is not to say that form may be exalted over
substance, because procedural requirements generally do not exist
for the mere sake of form and style. They are lights and buoys to
mark the channels of safe passage and assure an expeditious
voyage to the right destination. Their importance simply cannot be
disdained or denigrated. Without them every trial would end in a
shipwreck.
Brown v. Commonwealth, 551 S.W.2d 557, 559 (Ky. 1977). Like other
procedural rules, the preservation requirement serves the orderly
administration of justice. It cannot be said to elevate form over substance or
13
otherwise unfairly cut off the rights of litigants. Palpable error review under
RCr 10.26 and other exceptions18 exist to prevent manifest injustice in the
event a party fails to preserve an alleged error. We implore appellate litigants
to scrupulously adhere to the rules of procedure for the sake of their own cause
and to ensure the orderly disposition of court proceedings. We now turn to
Gasaway’s claims of error on the merits.
III. SEARCH OF TRUCK WAS CONSTITUTIONALLY PERMISSIBLE
For his first claim of error, Gasaway argues the warrantless search of
his truck violated Section 10 of the Kentucky Constitution. He specifically
urges this Court to interpret Section 10 to provide greater protection against
unreasonable searches and seizures than the Fourth Amendment. Gasaway
further asserts this Court’s decision in Bratcher erroneously applied federal
precedent. 424 S.W.3d at 411.
At this time, we will not consider whether Section 10 provides greater
protection than the Fourth Amendment because the issue was not properly
preserved for review. We further conclude the trial court erred by denying the
motion to suppress under the automobile exception to the warrant requirement
under the Fourth Amendment. Additionally, the Commonwealth’s reliance on
the search incident to arrest exception is without merit. Moreover, we agree
18For example, subject-matter jurisdiction, incomplete jury verdicts, and
sentencing errors may be considered for the first time on appeal. Privett v. Clendenin,
52 S.W.3d 530, 532 (Ky. 2001) (subject-matter jurisdiction); Smith v. Crenshaw, 344
S.W.2d 393, 395 (Ky. 1961) (incomplete jury verdicts); and Gaither v. Commonwealth,
963 S.W.2d 621, 622 (Ky. 1997) (sentencing errors).
14
that our decision in Bratcher was wrongly decided. Nevertheless, the search of
the truck was constitutionally permissible under the Fourth Amendment.
Therefore, we conclude the Court of Appeals properly affirmed the trial court’s
denial of the motion to suppress, albeit for different reasons.
A. SCOPE OF SECTION 10 IS NOT PROPERLY BEFORE THIS COURT
Our review of the record indicates the issue of whether Section 10 of the
Kentucky Constitution provides greater protection than the Fourth Amendment
against unreasonable searches and seizures was not raised before the trial
court. The sole issue before the trial court involved the question of whether the
warrantless search of Gasaway’s truck was reasonable under the Fourth
Amendment. These are discrete legal issues. Further, Gasaway did not raise
the issue of whether Section 10 provides greater protection than the Fourth
Amendment before the Court of Appeals.19
While the Court of Appeals encouraged this Court to consider the
application to Section 10 to parolees, this action does not necessarily preserve
the issue for further review by this Court. “Courts are not required to decide
constitutional questions whenever a party makes the suggestion.” Priestley,
949 S.W.2d at 599. This principle applies equally to suggestions made by
lower courts because “[c]onstitutional adjudication should be reserved for those
19 We note Gasaway cited Section 10 in his brief before the Court of Appeals for
the proposition “[s]ection 10 of the Kentucky Constitution also protects citizens from
unreasonable searches and seizures by government agents.” Gasaway’s opening
Court of Appeals brief at 4. This was the sole reference in Gasaway’s brief to Section
10.
15
cases in which the issue is well-defined and advanced by parties substantially
affected by the controversy.” Id. (emphasis added). While we acknowledge the
Court of Appeals’ invitation to consider this important issue,20 it is not properly
before us because Gasaway failed to raise the question before the trial court.
As such, Gasaway has failed to demonstrate a sufficient basis for this Court to
reconsider our precedent concerning the scope of Section 10. Therefore, we
decline to address the issue.
B. STANDARD OF REVIEW FOR WARRANTLESS SEARCH
The propriety of the trial court’s denial of Gasaway’s motion to suppress
on Fourth Amendment grounds is properly before this Court as the issue was
raised and decided by the lower courts. The trial court found the warrantless
search was justified under the automobile exception and, alternatively, under
our decision in Bratcher, which Gasaway now asks this Court to overrule.
The Fourth Amendment protects “[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and
seizures.” All warrantless searches are unreasonable, per se, under the Fourth
Amendment unless an established exception applies. Commonwealth v.
Hatcher, 199 S.W.3d 124, 126 (Ky. 2006). “The Commonwealth bears the
burden of establishing the constitutional validity” of a warrantless search.
20 We adhere to the principle that “[a]ny court, though required to follow
precedent established by a higher court, can set forth the reasons why, in its
judgment, the established precedent should be overruled but cannot, on its own,
overrule the established precedent set by a higher court.” Special Fund v. Francis, 708
S.W.2d 641, 642 (Ky. 1986).
16
Commonwealth v. Conner, 636 S.W.3d 464, 471 (Ky. 2021). Each of the
exceptions to the warrant requirement is “narrow and well-delineated.” Flippo
v. West Virginia, 528 U.S. 11, 13 (1999). In other words, each exception is
conceptually distinct. Id. Therefore, the Commonwealth must satisfy every
element of the claimed exception. Id.; Hatcher, 199 S.W.3d at 126.
The standard of review from the denial of a motion to suppress evidence
depends on whether the search or seizure was conducted pursuant to a
warrant. Commonwealth v. Pride, 302 S.W.3d 43, 48 (Ky. 2010). Because the
present appeal involves a warrantless search, we review the trial court’s: (1)
findings of fact for clear error and (2) determinations of reasonable suspicion
and probable cause de novo. Id. at 49 (citing Ornelas v. United States, 517 U.S.
690, 698-99 (1996)). The heightened de novo standard of review for probable
cause reflects this Court’s “preference for searches pursuant to a warrant.” Id.
at 48. Our review of the facts is generally limited to the evidence presented at
the suppression hearing. Conner, 636 S.W.3d at 472 (“we use the facts elicited
during [the suppression hearing] as the basis for our analysis.”). We note the
Commonwealth, throughout its response brief, refers to evidence presented at
trial to support the trial court’s denial of the motion to suppress. While the
evidence may have overlapped, the Commonwealth concedes there were “some
variations.” We have limited to our review of this issue to the evidence
presented at the suppression hearing.
Additionally, it is a fundamental precept of appellate review that “[w]hen
a judgment is based upon alternative grounds, the judgment must be affirmed
17
on appeal unless both grounds are erroneous.” Milby v. Mears, 580 S.W.2d
724, 727 (Ky. App. 1979). We have applied this rule in the Fourth Amendment
context by refusing to consider alternative bases to justify the denial of a
suppression motion after first determining the search at issue was supported
by probable cause. See Pride, 302 S.W.3d at 51. Accordingly, with the
foregoing standards in mind, we examine the alternative grounds for the denial
of the motion to suppress.
C. SEARCH WAS NOT JUSTIFIED UNDER AUTOMOBILE EXCEPTION FOR
LACK OF PROBABLE CAUSE
The trial court first determined the warrantless search of the vehicle was
proper under the automobile exception. The automobile exception to the
warrant requirement applies when the vehicle is readily mobile and probable
cause exists to believe evidence of criminal activity may be contained in the
vehicle. Hedgepath v. Commonwealth, 441 S.W.3d 119, 128 (Ky. 2014). A
vehicle is considered readily mobile even if it has been secured by law
enforcement or there is little to no risk a suspect or his accomplices could
access the vehicle. Id. An independent finding of exigent circumstances is not
required under the automobile exception because the exception is based upon
“reduced expectations of privacy” in vehicles. Id. The automobile exception
may be invoked “[w]hen a vehicle is being used on the highways, or if it is
readily capable of such use and is found stationary in a place not regularly
used for residential purposes—temporary or otherwise.” California v. Carney,
471 U.S. 386, 392 (1985).
18
Clearly, Gasaway’s truck was readily mobile and found in a non-
residential location. The question is whether probable cause existed at the
time the truck was searched. We conclude it did not. Specifically, the
Commonwealth failed to establish an objective nexus between Gasaway’s truck
and the information known to the officers at the time of the search.
The impossibility of precisely defining probable cause has often been
noted by appellate courts. Ornelas, 517 U.S. at 695. Reasonable suspicion
and probable cause are “commonsense, nontechnical conceptions that deal
with the factual and practical considerations of everyday life on which
reasonable and prudent men, not legal technicians, act.” Id. (citing Illinois v.
Gates, 462 U.S. 213, 231 (1983)). The Supreme Court described “probable
cause to search as existing where the known facts and circumstances are
sufficient to warrant a man of reasonable prudence in the belief that
contraband or evidence of a crime will be found” in a particular place. Id. at
696. In other words, “[t]here must be a fair probability that the specific place
that officers want to search will contain the specific things that they are looking
for.” United States v. Reed, 993 F.3d 441, 447 (6th Cir. 2021). Probable cause
is a “fluid concept,” rather than “a finely-tuned standard comparable to the
standards of proof beyond a reasonable doubt or of proof by a preponderance of
the evidence.” Ornelas, 517 U.S. at 696 (quotation omitted) (cleaned up).
Direct evidence of probable cause is not strictly required and reviewing courts
afford “due weight to inferences drawn from those facts by resident judges and
local law enforcement officers.” Conner, 636 S.W.3d at 471 (citation omitted).
19
The trial court determined probable cause existed based on three specific
findings of fact: (1) Gasaway drove the same vehicle to work on the previous
day when he was filmed on video having allegedly dropped the heroin; (2)
Gasaway was on parole for prior felony controlled substances cases, including
trafficking; and (3) Det. Dover observed marijuana roaches and shake in plain
view from outside the vehicle.
As in several other recent decisions, the trial court’s findings of fact are
contradicted by the record on a point essential to the court’s decision. Conner,
636 S.W.3d at 472; Commonwealth v. Clayborne, 635 S.W.3d 818, 823 (Ky.
2021); and Turley v. Commonwealth, 399 S.W.3d 412, 420 (Ky. 2013).
Specifically, the trial court’s finding regarding Det. Dover’s observation of
marijuana roaches and shake in plain view was clearly erroneous. On cross-
examination at the suppression hearing, Det. Dover admitted the roaches and
shake were not in plain view:
Defense Counsel: You also found in the ashtray several roaches,
is that correct?
Det. Dover: It was a cup ashtray, yes.
...
Counsel: Now, with regard to the marijuana and the pill, which
you believed to be ecstasy, was in the console of the truck?
Det. Dover: Yes.
Counsel: And therefore, they weren’t in plain view, were they?
Det. Dover: Uh no, there wasn’t. . .
Counsel: And the roaches that we are talking about, they were not
in plain view were they?
20
Det. Dover: They were in the ashtray, the ashtray was in plain
view, but there was a bunch of shake next to the ashtray, little
pieces of marijuana that was next to that.
Counsel: But you didn’t see those, did you, when you looked in
the window?
Det. Dover: If you look in the window, I believe, well, I don’t know.
Counsel: Ok. You don’t remember, is that correct?
Det. Dover: That’s correct.
The trial court also directly questioned Det. Dover concerning his observation
of the ashtray and the marijuana roaches. Det. Dover described the ashtray as
a cup with a lid on it that fit into the cupholder between the driver’s seat and
the front passenger seat. The trial court further inquired whether the ashtray
was easily observable from the outside of the vehicle. Det. Dover responded, “I
couldn’t observe the roaches, but the ashtray, yes.” Based on this record, we
cannot accept the finding that marijuana was observed in plain view.
While the trial court’s remaining factual findings are supported by
substantial evidence, we cannot conclude they amount to probable cause for a
warrantless search. The decision of the Eighth Circuit Court of Appeals in
United States v. Hogan, 25 F.3d 690 (8th Cir. 1994), is instructive.21
In Hogan, a confidential informant reported to federal Drug Enforcement
Administration (DEA) agents that the defendant was trafficking
21 We cite this federal decision only as a persuasive example, keeping in mind
that one court’s determination of probable cause “will seldom be a useful precedent for
another” given the fact-intensive analysis. Ornelas, 517 U.S. at 698 (citation omitted).
21
methamphetamine and marijuana at the Chrysler plant where the defendant
worked. Id. at 691. The informant named two employees who had told the
informant that the defendant had supplied them with drugs for a long period of
time. Id. The informant also claimed he had personally observed the
defendant engage in three hand-to-hand drug transactions. Id. According to
the informant, the defendant only drove a white Dodge truck to and from work
at the plant. Id. The informant predicted that the defendant would be bringing
methamphetamine to the plant when he arrived for his shift the next day at
3:00 p.m. Id.Based on this information, the agents obtained a warrant to search the
defendant’s truck and residence. Id. On the next day, the agents surveilled
the defendant’s residence and observed the defendant leave his residence in a
blue Oldsmobile car. Id. at 692. After the defendant travelled between 3-5
miles from his residence, a state trooper, who was assisting the investigation,
stopped the defendant’s car on the road. Id.When the DEA agents arrived at the scene, an agent told the defendant
he had a warrant to search the defendant’s residence and truck. Id. The agent
requested permission to search the defendant’s car, which the defendant
refused. Id. At this point, the agent impounded the car until he could obtain a
warrant. Id. The agent then handcuffed the defendant and placed the
defendant in the agent’s car before returning to the residence. Id. Another
agent drove the defendant’s car back to the residence. Id.22
After searching the residence and truck, the agents discovered a small
amount of marijuana, two scales, weapons, a carton of freezer bags, and
$5,600 in cash. Id. The state trooper then investigated the outside of the car
with a drug detection dog. Id. The dog alerted at the trunk of the car. Id. The
agents then formally arrested the defendant for possession of the marijuana
found in the house. Id. An agent drove the car to the DEA office until a
warrant could be obtained. Id. After obtaining a warrant, the subsequent
search of the car revealed a half pound of marijuana and a quarter pound of
methamphetamine. Id.The defendant was charged with possession with intent to distribute
marijuana and methamphetamine. Id. at 691. The defendant moved to
suppress the evidence obtained from the search, which the trial court denied.
Id. The defendant entered a conditional guilty plea. Id. On direct appeal, the
Eighth Circuit reversed. Id.The government argued the initial seizure of the car on the road was
justified, and further argued the agents could have properly searched the car at
that time under the automobile exception. Id. at 692. The Court rejected this
argument after concluding the agents lacked probable cause to stop and seize
the defendant’s vehicle on the road. Id. at 693. The information provided to
the agents indicated the defendant only used his truck to the transport drugs.
Id. Additionally, the agents did not possess sufficient information to determine
that the defendant was traveling to the plant when the car was stopped and
seized because of the time of day. Id. On these facts, the Court determined the
23
agents merely possessed “a hunch that the drugs from the house or truck”
would be found in the defendant’s car. Id. A hunch does not rise to the level of
probable cause. Id.In the present appeal, we acknowledge Gasaway’s criminal history, as
known by Det. Dover and found by the trial court, is a legitimate factor in the
probable cause analysis. See Risby v. Commonwealth, 284 S.W.2d 686, 687
(Ky. 1955). However, a person’s criminal history, taken alone, does not amount
to probable cause to conduct a warrantless search. Id. Moreover, the fact that
Gasaway drove the same vehicle the day before, even when considered in
tandem with Gasaway’s criminal history, does not establish an objective nexus
between the vehicle and illegal activity. There was no evidence that Gasaway
was involved in continuous or on-going drug activity or trafficking at the
workplace.
The heroin was discovered inside the workplace on the day prior to the
search. It was not discovered in Gasaway’s vehicle. Gasaway was confronted
and arrested inside the workplace. The search of Gasaway’s person prior to the
search of the vehicle did not reveal any incriminating evidence. Further,
Gasaway’s vulgar post-arrest tirade carries little weight in our analysis.
Indeed, this fact was apparently so insignificant that trial court did not make
any reference to it in its findings. Additionally, any inference linking the
suspected possession of heroin to Gasaway’s truck is especially tenuous given
the lack of any concrete evidence showing the truck was used to transport or
conceal any additional quantities of illegal drugs. Det. Dover testified the
24
reason he searched Gasaway’s truck was simply that he “believed there [were]
other drugs” located there. Given the lack of objective corroborating evidence
linking Gasaway’s truck to the heroin found in the workplace, we conclude Det.
Dover’s belief was based on suspicion, not probable cause. Therefore, the trial
court's reliance upon the automobile exception was in error.
Before turning to the trial court’s second ground for denying the motion
to suppress, we must consider the Commonwealth’s intervening claim that the
search was justified as a search incident to arrest.
D. SEARCH WAS NOT JUSTIFIED UNDER INCIDENT TO ARREST
EXCEPTION
The Commonwealth insists, as it did before the Court of Appeals, that
the warrantless search was justified under the incident to arrest exception.
This claim was not directly presented to the trial court.
The Commonwealth asserts that we may consider the issue because our
caselaw holds that an appellate court may affirm a lower court on any basis
supported by the record. Emberton v. GMRI, Inc., 299 S.W.3d 565, 576 (Ky.
2009). While the Commonwealth’s assertion is correct as a general matter, the
cited rule presumes the alternative basis of affirmance was properly raised
before the trial court. Commonwealth v. Andrews, 448 S.W.3d 773, 776 n.3
(Ky. 2014). When the prosecution fails to raise a claimed exception to the
warrant requirement before the trial court, the Supreme Court has explicitly
stated
The Government . . . may lose its right to raise factual issues of
this sort before this Court when it has made contrary assertions in
the courts below, when it has acquiesced in contrary findings by
25
those courts, or when it has failed to raise such questions in a
timely fashion during the litigation.
Steagald v. United States, 451 U.S. 204, 209 (1981).
The Commonwealth implicitly disclaimed reliance upon the search
incident to arrest exception in its memorandum filed after the suppression
hearing:
[t]he search of the defendant’s vehicle comes within two exceptions
to the warrant requirement. First, the search was proper under
the automobile exception. Second, the search was proper as the
defendant was on parole and therefore could be subjected to a
warrantless and suspicionless search.
However, while the Commonwealth did not initially claim the search incident to
arrest exception justified the search, we note that Gasaway asserted at the
suppression hearing that the search was improper under Arizona v. Gant, 556
U.S. 332 (2009), a decision dealing with the search incident to arrest exception.
In response, the Commonwealth stated:
Judge, I appreciate [defense counsel] citing Gant. I’m a big Gant
fan. Gant did not change. . . it changed you can’t search a vehicle
search [sic] incident to arrest carte blanche. Which used to be the
rule. Arrest somebody, search the vehicle. What Gant came out
and said was unless that person has access to that vehicle you can
no longer search it for your safety. If they are detained, you have
to get a warrant unless, you have probable cause because a vehicle
in and of itself, there is, it is well-established, an automobile
exception. It is exigent circumstances in and of itself and that if
you have probable cause to believe that the vehicle contains
contraband then you can still search the vehicle, you don’t need a
warrant, it is exigent circumstances, it doesn’t matter if the person
is detained. . . There are cases, Commonwealth v. Elliott,
Hedgepath, as well as Owens v. Commonwealth, all post-Gant
cases that say this was proper conduct.
26
The trial court ultimately limited its ruling to the automobile exception and,
alternatively, upon Gasaway’s status as a parolee.
The automobile exception, as set forth above in Hedgepath, 441 S.W.3d
at 128, is distinct from what this Court has previously described as “Gant’s
alternative rule” in the search incident to arrest context. See Rose v.
Commonwealth, 322 S.W.3d 76, 80 (Ky. 2010). Gant’s alternative rule is “that
an officer may search a vehicle even when the arrestee is secured if he has a
reasonable suspicion that the vehicle harbors evidence of the crime of arrest.”
Id. Regardless of how the claim was labeled, it is clear the Commonwealth
solely and substantively relied upon the automobile exception rather than the
search incident to arrest exception at the trial court level.
From the argument at the suppression hearing, it appears the parties
conflated the automobile exception and the search incident to arrest exception
to some extent. We are dubious the search incident to arrest claim was
properly raised before the trial court. Regardless, any claim concerning the
search incident to arrest exception may be swiftly rejected because Det. Dover
plainly testified that he searched Gasaway’s truck looking for “other drugs.”
This statement indicates the motive for the warrantless search was generally
investigative, rather than a specific search for evidence of the crime of arrest,
possession of heroin.
E. BRATCHER WAS WRONGLY DECIDED
As its second, alternative basis for denying Gasaway’s motion to
suppress, the trial court ruled that Gasaway was subject to a warrantless and
27
suspicionless search by virtue of his status as a parolee under our decision in
Bratcher. Gasaway urges this Court to reconsider Bratcher’s “unduly expansive
interpretation” of the Supreme Court’s decision in Samson v. California, 547
U.S. 843 (2006). We agree that Bratcher was wrongly decided.
a. DEVELOPMENT OF FOURTH AMENDMENT JURISPRUDENCE
RELATING TO PROBATIONERS AND PAROLEES
Before examining the question of whether Bratcher was wrongly decided,
we must place the decision in proper context by recounting the development of
Fourth Amendment jurisprudence relating to probationers and parolees.
i. Griffin v. Wisconsin, 483 U.S. 868 (1987)
In Griffin, 483 U.S. at 873, the Supreme Court held the warrantless
search of a probationer’s “home satisfied the demands of the Fourth
Amendment because it was carried out pursuant to a regulation that itself
satisfies the Fourth Amendment's reasonableness requirement under well-
established principles.” (Emphasis added). To properly frame the decision, we
will summarize the facts before summarizing the legal analysis.
The probationer was subject to a Wisconsin statute that subjects
probationers to conditions set by the sentencing court and rules and
regulations promulgated by the Department of Health and Social Services. Id.
at 870. The Department established a regulation that permitted any probation
officer to search a probationer’s home without a warrant upon approval by the
officer’s supervisor and reasonable suspicion the probationer’s home contains
contraband. Id. at 870-71. The regulation also set forth various factors that a
28
probation officer should consider in determining whether reasonable suspicion
for a warrantless search exists. Id. at 871. Notably, the statute at issue was
generally applicable and the regulation was established after the court order
placing the probationer on probation. Id. Additionally, under a separate
regulation, a probationer’s refusal to consent to a search was deemed to
constitute an independent probation violation. Id.A probation officer received information that the probationer possessed
firearms in his residence in violation of the conditions of probation. Id.Following a search, the probation officer discovered a handgun. Id. The
probationer was charged with possession of a firearm by a convicted felon. Id.He filed a motion to suppress the evidence obtained as a result of the
warrantless search, which the trial court denied. Id. The probationer was
convicted following a jury trial. Id. His conviction was affirmed on appeal. Id.The Supreme Court granted certiorari to “to consider whether this search
violated the Fourth Amendment.” Id. at 870.
The Supreme Court affirmed the conviction. Id. at 872. The Supreme
Court commenced its analysis by recognizing that “[a] probationer’s home, like
anyone else’s, is protected by the Fourth Amendment’s requirement that
searches be ‘reasonable.’” Id. at 873 (emphasis added). However, the “special
needs” exception allows for a warrantless search when “special needs, beyond
the normal need for law enforcement, make the warrant and probable-cause
requirement impracticable.” Id. (quoting New Jersey v. T.L.O., 469 U.S. 325,
351 (1985) (Blackmun, J., concurring)). The special needs exception permits
29
governmental employers to conduct warrantless searches of employees’ offices
and desks without probable cause. Id. Additionally, the exception allows
school officials to conduct warrantless searches of certain student property
without probable cause. Id.In the context of probationers, the Supreme Court held, “that in certain
circumstances government investigators conducting searches pursuant to a
regulatory scheme need not adhere to the usual warrant or probable-cause
requirements as long as their searches meet ‘reasonable legislative or
administrative standards.’” Id. (quoting Camara v. Municipal Court, 387 U.S.
523, 538 (1967)) (emphasis added). Application of the special needs exception
to probationers was justified because “probation is a form of criminal sanction
imposed. . . after verdict, finding, or plea of guilty.” Id. at 874 (citation
omitted). In other words, “[p]robation is simply one point (or, more accurately,
one set of points) on a continuum of possible punishments ranging from
solitary confinement in a maximum-security facility to a few hours of
mandatory community service.” Id. “To a greater or lesser degree, it is always
true of probationers (as we have said it to be true of parolees) that they do not
enjoy ‘the absolute liberty to which every citizen is entitled, but only. . .
conditional liberty properly dependent on observance of special [probation]
restrictions.’” Id. (quoting Morrissey v. Brewer, 408 U.S. 471, 480 (1972))
(alteration in original).
Restrictions upon the liberty of probationers are imposed “to assure that
the probation serves as a period of genuine rehabilitation and that the
30
community is not harmed by the probationer’s being at large.” Id. at 875.
“These same goals require and justify the exercise of supervision to assure that
the restrictions are in fact observed.” Id. As such, “[s]upervision, then, is a
‘special need’ of the State permitting a degree of impingement upon privacy
that would not be constitutional if applied to the public at large.” Id.
Ultimately, the Supreme Court concluded “[t]he search of [the probationer’s]
residence was ‘reasonable’ within the meaning of the Fourth Amendment
because it was conducted pursuant to a valid regulation governing
probationers.” Id. at 880. The validity and meaning of the probation regulation
is to be fixed by state law. Id. at 875.
ii. United States v. Knights, 534 U.S. 112 (2001)
In Knights, 534 U.S. at 122, the Supreme Court held that the official
purpose of the search of a probationer’s residence is immaterial under the
Fourth Amendment if the search was “supported by reasonable suspicion and
authorized by a condition of probation.” Again, we will briefly recount the facts
before summarizing the legal analysis.
A probationer agreed to a condition of probation that provided for a
warrantless search of the probationer’s residence at any time without cause.
Id. at 114. A police detective suspected the probationer and another individual
were involved in a series of arsons. Id. A week before the latest arson, a
sheriff’s deputy stopped the probationer and another individual on the road
near the scene and observed gasoline and pipes in the bed of the truck. Id. at
115. Subsequently, the detective began surveillance of the probationer’s
31
residence and observed the other individual exiting the residence what
appeared to be pipe bombs. Id. The individual walked across the street to the
banks of a river. Id. The detective heard a splash and observed the individual
return without the items. Id. The individual then drove away in his truck. Id.After the individual parked the truck in a driveway, the detective
observed a Molotov cocktail and other explosive materials in the bed of the
truck. Id. The detective then conducted a search of the probationer’s
residence. Id. The detective was aware of the probationer’s status and believed
he did not require a warrant. Id. The search of the probationer’s residence
revealed several incriminating items. Id.The probationer was charged in federal court with conspiracy to commit
arson and other charges. Id. at 116. He moved to suppress the evidence of the
search, which the district court granted. Id. Although the district court
concluded the officers had reasonable suspicion, the court nevertheless
suppressed the evidence because the purpose of the search was investigatory
rather than probationary. Id. The government filed an interlocutory appeal.
Id. The Ninth Circuit Court of Appeals affirmed the suppression of the
evidence. Id. The Supreme Court granted certiorari and reversed. Id. at 122.
At the outset of its analysis, the Supreme Court noted that California law
rejected any distinction between probationary and investigative searches when
considering the warrantless search of a probationer. Id. at 116. Nevertheless,
the probationer argued that the Griffin decision limited the special needs
32
exception to probationary rather than investigative searches. Id. at 117. The
Supreme Court rejected the “dubious logic” of the probationer’s argument. Id.The Supreme Court declined to rest its decision of the probationer’s
agreement to the conditions of his probation or even under the special needs
exception itself. Id. at 118. Rather, the Supreme Court examined the
reasonableness of the search under the familiar totality of the circumstances
standard, “with the probation search condition being a salient circumstance.”
Id. The test for reasonableness assesses “on the one hand, the degree to which
[the search] intrudes upon an individual’s privacy and, on the other, the degree
to which it is needed for the promotion of legitimate governmental interests.”
Id. at 119. A search condition attendant to probation “informs both sides of
that balance.” Id. The Court explained:
It was reasonable to conclude that the search condition would
further the two primary goals of probation-rehabilitation and
protecting society from future criminal violations. The probation
order clearly expressed the search condition and Knights was
unambiguously informed of it. The probation condition thus
significantly diminished Knights’ reasonable expectation of privacy.
Id. at 119-20 (footnotes omitted) (emphasis added).
The Court held “that the balance of these considerations requires no
more than reasonable suspicion to conduct a search of this probationer’s
house.” Id. at 121. “When an officer has reasonable suspicion that a
probationer subject to a search condition is engaged in criminal activity, there
is enough likelihood that criminal conduct is occurring that an intrusion on the
probationer’s significantly diminished privacy interests is reasonable.” Id. The
33
Supreme Court expressly left open the question of “whether the probation
condition so diminished, or completely eliminated, [the probationer’s]
reasonable expectation of privacy . . . that a search by a law enforcement officer
without any individualized suspicion would have satisfied the reasonableness
requirement of the Fourth Amendment.” Id. at 120 n.6.
iii. Samson v. California, 547 U.S. 843 (2006)
In Samson, 547 U.S. at 846, the Supreme Court held that a warrantless
search conducted pursuant to a state statute requiring parolees to consent to
warrantless and suspicionless searches at any time did not violate the Fourth
Amendment. Before summarizing the legal analysis of the decision, we will
briefly recount the facts.
A police officer observed the parolee was walking down the street with a
woman and child. Id. The officer was aware of the parolee’s status and
believed there was an outstanding warrant for a parole violation. Id. The
officer confronted the parolee and asked if there was an outstanding warrant.
Id. The parolee replied that he was in good standing with his parole officer. Id.The officer confirmed there was no outstanding warrant. Id. Nevertheless, the
officer searched the parolee’s person based solely on the parolee’s status and
discovered methamphetamine. Id. at 847.
The parolee was charged with possession of methamphetamine. Id. He
moved to suppress the evidence obtained from the warrantless search, which
the trial court denied. Id. The parolee was convicted. Id. The California Court
34
of Appeal affirmed the denial of the suppression motion. Id. The Supreme
Court granted to certiorari
to answer a variation of the question this Court left open in United
States v. Knights, 534 U.S. 112, 120, n. 6, 122 S.Ct. 587, 151
L.Ed.2d 497 (2001)—whether a condition of release can so diminish
or eliminate a released prisoner’s reasonable expectation of privacy
that a suspicionless search by a law enforcement officer would not
offend the Fourth Amendment. Answering that question in the
affirmative today, we affirm the judgment of the California Court of
Appeal.
Id. at 847 (footnote omitted) (emphasis added).
The Supreme Court noted the “Fourth Amendment imposes no
irreducible requirement” of individualized suspicion. Id. at 855 n.4 (quoting
United States v. Martinez–Fuerte, 428 U.S. 543, 561 (1976)). The Supreme
Court examined the reasonableness of the search under the balancing test set
forth in Knights. Id. at 848 (citing Knights, 534 U.S. at 118). Regarding the
defendant’s reasonable expectation of privacy, the Supreme Court recognized
“parolees have fewer expectations of privacy than probationers, because parole
is more akin to imprisonment than probation is to imprisonment.” Id. at 850.
In addition, California law imposed substantial restrictions on parolees such
that “[t]he extent and reach of these conditions clearly demonstrate that
parolees . . . have severely diminished expectations of privacy by virtue of their
status alone.” Id. at 852. The Supreme Court placed substantial weight on the
fact that the search condition was “clearly expressed” to the parolee and he was
“unambiguously” aware of it. Id. In sum, these circumstances indicated the
35
parolee “did not have an expectation of privacy that society would recognize as
legitimate.” Id.
Regarding the government’s interest, the Supreme Court determined “a
State has an overwhelming interest in supervising parolees because parolees. .
. are more likely to commit future criminal offenses.” Id. at 853 (quoting
Pennsylvania Bd. of Probation & Parole v. Scott, 524 U.S. 357, 365 (1998)).
Specifically, “California’s ability to conduct suspicionless searches of parolees
serves its interest in reducing recidivism, in a manner that aids, rather than
hinders, the reintegration of parolees into productive society.” Id. at 854. The
Supreme Court rejected the argument that California’s imposition of
suspicionless searches as a condition of parole was constitutionally infirm
because other jurisdictions required reasonable suspicion to search a parolee:
Petitioner observes that the majority of States and the Federal
Government have been able to further similar interests in reducing
recidivism and promoting reintegration, despite having systems
that permit parolee searches based upon some level of suspicion.
Thus, petitioner contends, California’s system is constitutionally
defective by comparison. Petitioner’s reliance on the practices of
jurisdictions other than California, however, is misplaced. That
some States and the Federal Government require a level of
individualized suspicion is of little relevance to our determination
whether California’s supervisory system is drawn to meet its needs
and is reasonable, taking into account a parolee’s substantially
diminished expectation of privacy.
Id. at 855 (emphasis added). Likewise, the Supreme Court determined
California law, rather than the Fourth Amendment, provided sufficient
safeguards to prevent abusive or harassing searches. Id. at 856. Therefore,
36
the Supreme Court concluded “the Fourth Amendment does not prohibit a
police officer from conducting a suspicionless search of a parolee.” Id. at 857.
b. BRATCHER MISINTERPRETED SAMSON
With the foregoing legal standards in mind, we will now examine the
soundness of our holding in Bratcher. In Bratcher, this Court applied Samson
to hold that the Fourth Amendment does not prohibit the warrantless and
suspicionless search of parolees despite the policy of the Kentucky Department
of Corrections requiring parole officers to have reasonable suspicion before
conducting a warrantless search upon a parolee. 424 S.W.3d at 415. Before
turning to our analysis, we will briefly summarize the facts.
Police suspected a parolee of manufacturing methamphetamine. Id. at
412. An informant reported to a police officer that the parolee possessed items
used to manufacture methamphetamine at the parolee’s residence and was
planning to “do a cook.” Id. Based on this information and the police officer’s
personal knowledge of the parolee’s criminal history, the police officer went to
the parolee’s residence and requested permission to search the premises. Id.
The parolee refused to the police officer’s request for consent. Id.
The police officer then contacted the parolee’s parole officer by phone. Id.
He informed the parole officer that he suspected the parolee was involved in
illegal activity and that the parolee had refused his request for consent to
search the residence. Id. The police officer then permitted the parolee to speak
to his parole officer. Id. The parole officer reminded the parolee of his
37
obligation to allow parole officers to search his residence and that the parolee
should consent to the search. Id. The defendant then consented. Id.
The police officer along with a different parole officer subsequently
searched the residence and “discovered various items used for the manufacture
of methamphetamine.” Id. at 412-13. The parolee was charged with
manufacturing methamphetamine and being a first-degree persistent felony
offender. Following the denial of his motion to suppress the evidence obtained
from the warrantless search, the parolee entered a conditional guilty plea and
was sentenced to twenty-one years’ imprisonment. Id. at 412.
On direct appeal, this Court affirmed. Id. At the outset, we determined
the trial court properly concluded the parolee consented to the search. Id. at
413. Consent to search is a valid and independent exception to the warrant
requirement. Id. Indeed, we concluded “[t]his finding alone would have been
sufficient to support the legality of the warrantless search.”22 Id.
Despite the sufficiency of the consent justification, this Court considered
the application of the Samson decision because the defendant’s “parole status
and the constitutional standards relating thereto” were the “focus of the trial
court’s analysis and the focal point of the parties’ arguments.” Id. Specifically,
22 The fact that Bratcher had a correct, alternative holding does not permit us to
disregard an incorrect holding as dicta or otherwise allow us to simply confine the
decision to its facts because alternative holdings of an appellate court are treated as
binding precedent in contrast to the rule that an appellate court may affirm a trial
court if either of alternative holdings are correct. Bryan A. Garner, et. al., The Law of
Judicial Precedent 122-23 (2016); compare with Milby, 580 S.W.2d at 727.
38
we addressed the issue “to highlight the impact of [Samson] on this aspect of
our Fourth Amendment jurisprudence.” Id.We began our analysis by examining the Knights decision. Id. This
Court recognized the Supreme Court held “a warrantless intrusion upon a
probationer's significantly diminished privacy interests is reasonable under the
Fourth Amendment only when an officer has reasonable suspicion that the
probationer is engaged in criminal activity.” Id. at 412 (quoting Knights, 534
U.S. at 121) (cleaned up). We recognized our decisions previously applied the
reasoning of Knights and its reasonable suspicion standard to cases involving
parolees. Id. at 414 (citing Riley v. Commonwealth, 120 S.W.3d 622 (Ky.
2003)).
This Court abandoned the reasonable suspicion requirement of Knights,
and applied the reasoning of Samson because Samson specifically dealt with
the search of a parolee rather than a probationer. Id. at 415. Relying upon
Samson, we concluded
it is immaterial whether the information available to the officers
who searched Appellant’s residence rose to the standard of
reasonable suspicion. The Fourth Amendment does not prohibit a
police officer from conducting a suspicionless search of a parolee.
Id. We further explained that the conditions imposed on Kentucky parolees
may be seen as more stringent than Samson, they do not alter the
Fourth Amendment analysis. It is fundamental that by
administrative rule or statute a state may impose upon its police
authorities more restrictive standards than the Fourth Amendment
requires. Such standards, however, cannot expand the scope of
the Fourth Amendment itself. Virginia v. Moore, 553 U.S. 164, 128
S.Ct. 1598, 170 L.Ed.2d 559 (2008).
39
Id. This Court ultimately held “the Fourth Amendment presents no
impediment against a warrantless and suspicionless search of a person on
parole.” Id. (citation omitted).
After careful consideration, we hold that Bratcher was decided in error.
While this Court correctly determined the Fourth Amendment does not
categorically forbid the warrantless, suspicionless search of a parolee, we
incorrectly determined that the conditions of parole imposed by state law were
immaterial to the analysis. Samson prescribed the application of the ordinary
Fourth Amendment balancing test to ascertain the reasonableness of the
search under the totality of the circumstances, including the conditions of
parole under state law. Samson, 547 U.S. at 848. While the Fourth
Amendment does not forbid a rule requiring parolees to submit to
suspicionless searches, neither does it demand one. In Bratcher, we erred by
failing to account for the conditions of parole.
Though the notion that state statutes and regulations impact the
permissibility of a search under the Fourth Amendment seems incongruous,
“[p]arolee searches are. . . an example of the rare instance in which the
contours of a federal constitutional right are determined, in part, by the
content of state law.” United States v. Freeman, 479 F.3d 743, 747-48 (10th
Cir. 2007). The view of the Tenth Circuit in Freeman prevails in the federal
courts and we think it sound. See United States v. Sharp, 40 F.4th 749, 756
(6th Cir. 2022) (“And our sister circuits have specifically rejected the notion
that Samson authorizes suspicionless parolee searches regardless of the search
40
condition or background state law.’’).23 Thus, our reliance on Moore, 553 U.S.
164, 171 (2008) to justify ignoring the conditions of parole and other
background Kentucky law as part of the Fourth Amendment analysis was
overbroad.
In Moore, the Supreme Court stated, “[o]ur decisions counsel against
changing the [Fourth Amendment] calculus when a State chooses to protect
privacy beyond the level that the Fourth Amendment requires.” Id. (emphasis
added). Indeed, one of the primary purposes of the uniformity rule in the
Fourth Amendment context is to avoid the situation where the actions of state
and federal officers are judged by different standards. Id. at 176. There is no
such danger here because federal courts account for parole conditions under
state law when conducting the balancing test under Samson. Sharp, 40 F.4th
at 756. Furthermore, the Samson decision itself commands consideration of
state law factors when determining the reasonableness of a parolee search.
547 U.S. at 852. In Sharp, the majority recognized the Supreme Court’s
Fourth Amendment jurisprudence has not always resulted in nationwide
uniformity. 40 F.3d at 757.
Having concluded Bratcher was wrongly decided, we must next consider
whether the decision should be preserved under the principles of stare decisis.
23We find the reasoning of the majority in Sharp persuasive and decline to
adopt the reasoning expressed in Judge Batchelder’s concurrence as urged by the
Commonwealth. 40 F.4th at 758.
41
F. STARE DECISIS DOES NOT REQUIRE RETENTION OF BRATCHER
This Court is aware of Kentucky’s strong and longstanding commitment
to stability in the law. Matheny v. Commonwealth, 191 S.W.3d 599, 622 (Ky.
2006) (Cooper, J., dissenting). A Kentucky precedent may not be overturned
merely because it was wrong, but because “the principle established . . . is
clearly erroneous.” Sibert v. Garrett, 197 Ky. 17, 246 S.W. 455, 458 (1922).
Justice Vance aptly and succinctly characterized our steadfast adherence to
stare decisis:
Appellate courts should follow established precedent unless there
is a compelling and urgent reason to depart therefrom which
destroys or completely overshadows the policy or purpose
established by the precedent.
Schilling v. Schoenle, 782 S.W.2d 630, 633 (Ky. 1990). Recently, this Court
reaffirmed that a court should not overrule its own decisions simply because it
disagrees with them: there must be some additional, special justification for
doing so. Jenkins v. Commonwealth, 496 S.W.3d 435, 451 (Ky. 2016).
Concomitant with a high court’s duty to “say what the law is,” is the duty
to maintain fidelity to the constitutional text as well as to maintain stability
and consistency in the law. Bryan A. Garner, et al., The Law of Judicial
Precedent 356-57 (2016) (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137(1803)). Importantly, the force of stare decisis “is at its weakest when we
interpret the Constitution because our interpretation can be altered only by
constitutional amendment or by overruling our prior decisions.” Agostini v.
42
Felton, 521 U.S. 203, 235 (1997). Stare decisis does not compel us to disfigure
the law or perpetuate error.
We acknowledge the direct criticism of Bratcher by the United States
District Court for the Eastern District of Kentucky in Jones v. Lafferty, 173 F.
Supp. 3d 493 (E.D. Ky. 2016), and the recognition of same by numerous panels
of the Kentucky Court of Appeals. Additionally, we note that Bratcher has been
cited in a leading Fourth Amendment treatise as an outlier. Wayne R. LaFave,
5 Search & Seizure § 10.10(c) n.116 (6th ed. 2022). Professor LaFave warned of
the flattening effect of the law into general rules based upon the imprecise
application of Supreme Court precedent. Id. (“While it would seem that a
balancing based upon California’s situation should not automatically convert
into a general rule applicable everywhere, experience regarding similar issues
suggests Samson may well end up being ‘flattened out’ into such a general
rule.”). Furthermore, any reliance upon the Bratcher decision appears to be
minimal. Not least because the Department of Corrections has consistently
maintained its policy requiring reasonable suspicion to justify a parolee search.
See KDOC24 27-16-01.
As Justice Jackson famously declared, “we are not final because we are
infallible, but we are infallible only because we are final.” Brown v. Allen, 344
U.S. 443, 540 (1953) (Jackson, J., concurring). Indeed, “[w]isdom too often
never comes, and so one ought not to reject it merely because it comes late.”
24 Kentucky Department of Corrections Policy.
43
Henslee v. Union Planters Bank, 335 U.S. 595, 600 (1949) (Frankfurter, J.,
dissenting). Because the freedom from unreasonable searches and seizures is
among the most cherished liberties of our people, we cannot permit a flawed
interpretation to stand. Therefore, we must overrule Bratcher to the extent it
holds that conditions of parole are immaterial to the Fourth Amendment
analysis.
G. SEARCH OF TRUCK SUPPORTED BY REASONABLE SUSPICION
With the proper application of Samson in mind, we must determine
whether the search of Gasaway’s truck was reasonable under the totality of the
circumstances. 547 U.S. at 852. This issue is properly before us based on the
Commonwealth’s reliance on Gasaway’s parolee status and Bratcher before the
trial court. We conclude the trial court properly denied the motion to suppress
because the search was reasonable under the totality of the circumstances.
When a parolee has been charged with a crime and moves to suppress
evidence obtained from a warrantless search pursuant to the Fourth
Amendment, a court must determine whether the search was reasonable under
the totality of the circumstances by balancing the parolee’s reasonable
expectation of privacy against the necessity of the search to the promote the
Commonwealth’s legitimate interests. Samson, 547 U.S. at 848. This is the
test under Samson and we adopt it here.
A parolee’s reasonable expectation of privacy should be determined by
considering the nature of parole itself, the conditions of parole, the place where
the search occurred, the circumstances giving rise to the search, the manner of
44
the search, and any other relevant information. Id. Without question, a
parolee enjoys a lesser expectation of privacy than an ordinary citizen. Id. at
850. On the continuum of state-sanctioned punishments, a parolee also
enjoys a lesser expectation of privacy than a probationer. Id. However, parole
is not tantamount to incarceration. Wayne R. LaFave, 5 Search & Seizure §
10.10(a) (6th ed.). The likeness of parole to imprisonment does not justify, in
itself, a parolee’s lessened expectations of privacy in the context of a parolee
search. Id. Rather, reliance upon the legitimate goals of the state in
connection with the parole supervision process provides a more coherent
doctrinal framework. Id. at § 10.10(c). This is where the conditions of parole
fit into the analysis under Samson. 547 U.S. at 851.
In the present case, it is undisputed that Gasaway was on active parole
at the time of the search. Gasaway was provided with a document setting forth
the specific conditions of his parole, which he signed. Gasaway explicitly
agreed that he would “be subject to search and seizure without a warrant if my
officer has reasonable suspicion that I may have illegal drugs, alcohol or other
contraband on my person or property.” We also note KDOC 27-16-01, which
sets forth the general procedure governing parolee searches.25 KDOC 27-16-01
25 We have not been directed to where a copy of this policy and the regulation
that incorporated it into law are included in the record. However, the Commonwealth
points out that they are publicly available on the KDOC website,
https://corrections.ky.gov/About/cpp/Pages/Chapter-27.aspx. Commonwealth’s
response brief at 16 n.9. While it is the duty of a court to determine the applicable
law, this appears to be a rare case where the content of administrative regulation and
policies constitutes an adjudicative fact. See Clay v. Commonwealth, 291 S.W.3d 210,
219-20 (Ky. 2008). In the present appeal, we are not specifically applying the KDOC
policies and regulations as law to fact. We are considering how the conditions of
45
carries the force of law as incorporated by refence into 501 KAR26 6:270 §
1(1).27 KDOC 27-16-01 II.A states “[a]n offender shall be subject to a search of
his person, residence, or other property under his control. The basis of any
search shall be consent, a search warrant, or reasonable suspicion that the
search will produce evidence of a violation of the offender’s conditions of
supervision.”
Under these facts, Gasaway’s reasonable expectation of privacy in his
person, residence, or property is minimal, but it does exist to the extent that
the minimum legal standard of reasonable suspicion is required to justify a
warrantless search. See Sharp, 40 F.4th at 753. To be clear, the reasonable
suspicion standard is generally the minimum standard imposed by courts to
uphold a warrantless search in the absence of a factual showing that a state’s
need to perform a suspicionless search outweighs a parolee’s reasonable
expectation of privacy.28 Samson, 547 U.S. at 851; Sharp, 40 F.4th at 753.
parole and related background law informs the Fourth Amendment analysis involving
Gasaway’s reasonable expectation of privacy and the degree of necessity for the search
to promote the Commonwealth’s legitimate interest. Therefore, we take judicial notice
of the content of the KDOC policies and associated regulations under the authoritative
source provision of KRE 201(b)(2).
26 Kentucky Administrative Regulations.
27 The Commonwealth’s argument concerning the validity of 501 KAR 6:270 §
1(1) and KDOC 27-16-01 are not properly before us.
28 Contrary to the Commonwealth’s argument, such a standard does not give
the Department of Corrections unrestrained policymaking authority. While the
conditions of parole imposed by the Department and Parole Board are relevant to the
analysis, it is solely within the province of a court to determine whether a search is
reasonable under the Fourth Amendment.
46
Once the suspect’s reasonable expectation of privacy has been
established, the extent to which the search is needed to promote the
Commonwealth’s legitimate interests must be determined. Id. In the parole
context, the state’s legitimate interests include the necessity of supervising
parolees because “parolees . . . are more likely to commit future criminal
offenses.” Id. at 853. Similarly, “a State’s interests in reducing recidivism and
thereby promoting reintegration and positive citizenship among probationers
and parolees warrant privacy intrusions that would not otherwise be tolerated
under the Fourth Amendment.” Id.
KRS 439.340(3)(b) requires the Parole Board to “adopt administrative
regulations with respect . . . to the conditions to be imposed upon parolees.”29
Effective December 4, 2015, the policy of the Board regarding the conditions of
parole is to “avoid unnecessary conditions of parole to reduce or minimize the
potential for failure by the offender based on technical violation of conditions
that are not substantially related to public safety or reduction of recidivism.”
KYPB30 11-01A.31 This policy carries the force of law through 501 KAR 1:080 §
1(1), which specifically incorporated KYPB 11-01 by reference. Clearly, the
policies concerning the conditions of parole as promulgated by the Parole
29 The Commonwealth’s claim that KRS 439.340(3)(b) is unconstitutional is not
properly before this Court.
30 Kentucky Parole Board Policies and Procedures.
31 As with KDOC 27-16-01, the content of administrative policies and
regulations is a question of adjudicative fact rather than a matter of applicable law.
We, therefore, take judicial notice of KYPB 11-01 under the authoritative source
provision of KRE 201(b)(2).
47
Board are reasonable and promote the legitimate goals of protecting public
safety and reducing recidivism.
On balance, we conclude the search of Gasaway’s truck was reasonable
under the totality of the circumstances. The Commonwealth clearly has a
legitimate and overwhelming interest in the supervision of parolees. Gasaway’s
reasonable expectation of privacy was minimal, requiring only reasonable
suspicion to justify a warrantless search on these facts. In the Fourth
Amendment context, reasonable suspicion exists when a police officer “has a
reasonable and articulable suspicion that criminal activity is afoot.”
Commonwealth v. Marr, 250 S.W.3d 624, 627 (Ky. 2008) (citing Terry v. Ohio,
392 U.S. 1, 30 (1968)). The basis of reasonable suspicion must be
particularized and objective, but “the likelihood of criminal activity need not
rise to the level required for probable cause, and it falls considerably short of
satisfying a preponderance of the evidence standard.” Id. (quoting United
States v. Arvizu, 534 U.S. 266, 274 (2002)).
Here, Det. Dover received a reliable report that drugs were found at
Knight’s Mechanical. Det. Dover determined the substance was heroin. Upon
reviewing the surveillance video and speaking with employees, Det. Dover
suspected Gasaway had possessed the heroin. Det. Dover was aware of
Gasaway’s criminal history involving controlled substances. It was also
reasonable for Det. Dover to suspect that Gasaway’s truck contained
contraband given the totality of the circumstances including Gasaway’s parole
status. Therefore, we conclude the trial court properly denied Gasaway’s
48
motion to suppress the evidence obtained from the warrantless search of his
truck.
IV. EVIDENCE OF METHAMPHETAMINE AND MARIJUANA WAS
INADMISSIBLE UNDER KRE 404(B).
For his second contention of error, Gasaway argues the trial court erred
by admitting the methamphetamine and marijuana evidence into evidence.32
Gasaway asserts it is fundamentally unfair to allow the use of the
methamphetamine evidence of which Gasaway was acquitted in the first trial.
Gasaway further argues the marijuana evidence should have been excluded as
improper character evidence under KRE 404(b). We hold there is no per se rule
prohibiting the Commonwealth from introducing, in a subsequent proceeding,
evidence of a crime for which the defendant was acquitted. Nevertheless, we
hold the Court of Appeals erred by affirming the admission of this evidence
under KRE 404(b).
A. EVIDENCE OF ACQUITTED CRIMES NOT PER SE INADMISSIBLE
Gasaway asks this Court to join our sister states in barring the
admission of evidence relating to crimes for which the defendant has been
acquitted. Contrary to the implication of Gasaway’s argument, we are not
starting from a clean slate on this issue.
In Hampton v. Commonwealth, 133 S.W.3d 438, 442 (Ky. 2004), this
Court held an acquittal in a criminal case does not preclude the
32 Any questions regarding the admissibility of the Whizzinator are not properly
before us.
49
Commonwealth from relitigating an issue in a subsequent proceeding that is
governed by a lower standard of proof, such as KRE 404(b). This decision
represented a change in Kentucky law, which had previously held “the
Commonwealth is precluded from introducing evidence of issues that must
have been decided against the Commonwealth at the previous trial.” Id. at 441
(citing Commonwealth v. Hillebrand, 536 S.W.2d 451 (Ky. 1976)) (quotations
omitted). The basis of the new rule was this Court’s application of the
reasoning of the Supreme Court in Dowling v. United States, 493 U.S. 342(1990). Id. at 442.
In Dowling, the Supreme Court held that neither the prohibition against
double jeopardy nor considerations of fundamental fairness under the due
process clause preclude the admission, in a subsequent proceeding, of
evidence from a prior proceeding that resulted in acquittal, when the evidence
is offered under a lower burden of proof. Id. at 354. The reason for the rule is
that an acquittal does not necessarily prove a defendant is innocent: an
acquittal merely proves the existence of reasonable doubt as to the defendant’s
guilt. Id. at 349. Therefore, the admission of such evidence in a subsequent
proceeding is simply a question of the applicable rules of evidence. Id. at 352.
Indeed, the Supreme Court held that non-constitutional sources such as a trial
court’s discretion to exclude unduly prejudicial evidence under FRE 403
constitute an adequate safeguard against the introduction of fundamentally
unfair evidence. Id.50
We are convinced our decision in Hampton was sound and adhere to the
reasoning of Dowling. The facts in Hampton demonstrate the prudence of
avoiding a per se rule prohibiting this type of evidence if offered under a lesser
standard in a subsequent proceeding. In Hampton, the defendant was charged
with murder, animal cruelty, and tampering with physical evidence. At her
first trial, the defendant was convicted of murder and tampering, but the trial
court granted a directed verdict of acquittal on the animal cruelty charge. Id.
at 441. This Court reversed the murder and tampering convictions on direct
appeal. Id. at 440. The defendant was again convicted of murder and
tampering after retrial. Id.On direct appeal, the defendant argued the trial court erred by allowing
the Commonwealth to introduce evidence that she shot the family cat, which
was the basis of the original animal cruelty charge. Id. at 441. This error was
unpreserved, and the defendant did not request a limiting instruction. Id. We
reviewed for palpable error and held the evidence was admissible under KRE
404(b) because it was offered to prove the defendant killed the cat “in an
attempt to confuse the crime scene and turn suspicion [for the murder] away
from herself.” Id. at 442. The evidence was admissible “as it related to [the
defendant’s] commission of the other offenses” and “was not error, palpable or
otherwise.” Id. However, the Court indicated “a limiting instruction or
admonition would have been proper if requested.” Id. An appropriate limiting
instruction in this context emphasizes the limited purpose of the evidence and
51
the fact that the defendant had been acquitted of the prior act.33 Dowling, 493
U.S. at 346, 353.
Gasaway relies upon several decisions of other state courts that do not
follow the rule as expressed in Dowling. However, these decisions predate our
decision in Hampton. State v. Perkins, 349 So. 2d 161, 163 (Fla. 1977); State v.
Wakefield, 278 N.W.2d 307, 308 (Minn. 1979); McMichael v. State, 577 P.2d
398 (Nev. 1978); State v. Scott, 413 S.E.2d 787, 789 (N.C. 1992), and Kerbyson
v. State, 711 S.W.2d 289, 290 (Tex. App. 1986). This Court was aware of the
state of the law in 2004 at the time it adopted the reasoning of the Dowling
majority. Therefore, we do not find these pre-Hampton decisions persuasive.
Additional post-Hampton authority is similarly unpersuasive. Gasaway
cites State v. Mundon, 292 P.3d 205, 226-27 (Ha. 2012). In Mundon, the
Supreme Court of Hawaii declined to follow Dowling in reliance on the double
jeopardy clause of the Hawaii Constitution, which it interprets more broadly
than the federal constitution. Id. By contrast, we have interpreted the double
jeopardy clause of the Kentucky Constitution as co-extensive with the federal
constitution. Commonwealth v. Burge, 947 S.W.2d 805, 811 (Ky. 1996).
Therefore, the reasoning of Mundon is not persuasive.
33 We note the parties agreed a limiting instruction was necessary. At the close
of the Commonwealth’s case, the trial court provided an oral admonition, but did not
reference Gasaway’s acquittal. However, Gasaway did not challenge the sufficiency of
the admonition until his motion for a new trial. A challenge to the adequacy of an
admonition may not be raised for the first time on a motion for new trial. Webster v.
Commonwealth, 508 S.W.2d 33, 36 (Ky. 1974).
52
Similarly, the Supreme Court of Massachusetts declined to follow
Dowling in reliance on the right to a fair trial under Article 12 of Massachusetts
Declaration of Rights, which the Court interprets more expansively than the
due process provisions of the federal constitution. Commonwealth v. Dorazio,
37 N.E.3d 566, 576 (Mass. 2015). The right to a fair trial is grounded in due
process considerations. United States v. Agurs, 427 U.S. 97, 107 (1976). This
Court has consistently construed due process under Section 11 of the
Kentucky as co-extensive with the due process provisions under the Fifth and
Fourteenth Amendments of the federal constitution. Brashars v.
Commonwealth, 25 S.W.3d 58, 61-62 (Ky. 2000). Therefore, we do not find the
Dorazio decision persuasive.
We adhere to our decision in Hampton. Although we determined there is
no per se rule prohibiting the introduction of evidence for which a defendant
has been acquitted, such evidence must be otherwise admissible under the
rules of evidence.
B. METHAMPHETAMINE AND MARIJUANA INADMISSIBLE AS
EVIDENCE OF INTENT UNDER KRE 404(B)
The trial court admitted the evidence of methamphetamine and
marijuana as relevant to intent under KRE 404(b). This was in error.
Under KRE 404(a), the general rule is that evidence of other crimes is not
admissible to show that a defendant is a person of criminal disposition. We
have explained the rule as follows:
The reasons for the rule are salutary. Ordinarily, such evidence
does not tend to establish the commission of the crime. It tends
53
instead to influence the jury, and the resulting prejudice often
outweighs its probative value. Ultimate fairness mandates that an
accused be tried only for the particular crime for which he is
charged. An accused is entitled to be tried for one offense at a
time, and evidence must be confined to that offense. The rule is
based on the fundamental demands of justice and fair play
O’Bryan v. Commonwealth, 634 S.W.2d 153, 156 (Ky. 1982). KRE 404(b)
provides an exception to this salutary rule and provides:
Other crimes, wrongs, or acts. Evidence of other crimes, wrongs,
or acts is not admissible to prove the character of a person in order
to show action in conformity therewith. It may, however, be
admissible:
(1) If offered for some other purpose, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident; or
(2) If so inextricably intertwined with other evidence essential to
the case that separation of the two (2) could not be
accomplished without serious adverse effect on the offering
party.
While KRE 404(b) is couched as an exception to the general rule prohibiting
improper propensity evidence, it is still “exclusionary in nature.” Bell v.
Commonwealth, 875 S.W.2d 882, 889 (Ky. 1994). This Court has long
recognized “the application of exceptions to the general rule that evidence of
prior bad acts is inadmissible should be closely watched and strictly enforced
because of the dangerous quality and prejudicial consequences of this kind of
evidence.” O’Bryan, 634 S.W.2d at 156. The admissibility of evidence under
KRE 404(b) is evaluated under a three-part test: (1) relevance; (2)
probativeness; and (3) prejudicial effect. Conley v. Commonwealth, 599 S.W.3d
54756, 772 (Ky. 2019). The appellate standard of review is for abuse of
discretion. Id.This Court has “found error in the admission of KRE 404(b) evidence for
an issue not in genuine dispute.” Minch v. Commonwealth, 630 S.W.3d 660,
667 (Ky. 2021). “Especially in drug cases like this one, other-act evidence is
too often admitted almost automatically, without consideration of the
‘legitimacy of the purpose for which the evidence is to be used and the need for
it.’” United States v. Gomez, 763 F.3d 845, 853 (7th Cir. 2014) (quoting United
States v. Miller, 673 F.3d 688, 692 (7th Cir. 2012)). The Seventh Circuit Court
of Appeals has explained it is “not enough for the proponent of the other-act
evidence simply to point to a purpose in the ‘permitted’ list and assert that the
other-act evidence is relevant to it.” Id. at 856. “Rule 404(b) excludes the
evidence if its relevance to ‘another purpose’ is established only through the
forbidden propensity inference.” Id. Trial courts are required to conduct the
full KRE 404(b) analysis.
Here, the trial court found the methamphetamine and marijuana
evidence was relevant to the issue of Gasaway’s intent to possess heroin.
Professor Lawson has warned, “there is a very fine line between the use of other
crimes evidence to prove intent and the use of such evidence to prove general
propensity to commit crime, and as a result there is a greater than normal
potential in this ‘other purpose’ category for abuse of the ‘other crimes’ law.”
Robert G. Lawson, Kentucky Evidence Law Handbook, § 2.30[4][b] (2022).
“Special precautions are critical, to minimize the naked propensity logic.” Id.
55
(quoting 1 Mueller & Kirkpatrick, Federal Evidence 827 (3d. 2007)). These
precautions include an assurance that “intent was genuinely in dispute, and
the uncharged crime was relevant to prove intent to commit the charged
crime.” Id. Indeed, the use of other crimes evidence to prove the defendant’s
knowledge or intent “should await the conclusion of the defendant’s case and
should be aimed at a specifically identified issue.” Id. at § 2.30[2][b][ii].
In his opening statement, Gasaway denied possessing the heroin and did
not offer any proof in this case. By offering the methamphetamine and
marijuana evidence during its case-in-chief, the Commonwealth was offering
such evidence as direct proof of his intent to possess heroin. However, intent
was not in genuine dispute because Gasaway denied possessing the heroin.
See Boyd v. Commonwealth, 357 S.W.3d 216, 224 (Ky. App. 2011).
Although intent may be an element of the crime of possession, “intent is
not placed in issue by a defense that the defendant did not do the charged act
at all.” See United States v. Ortiz, 857 F.2d 900, 904 (2nd Cir. 1988). “When a
defendant unequivocally relies on such a defense, evidence of other acts is not
admissible for the purpose of proving intent.” Id. In this context, intent with
regard to simple possession is distinct from a trafficking offense which requires
proof of possession and a specific intent to sell. See Walker v. Commonwealth,
52 S.W.3d 533, 536 (Ky. 2001). The situation where a defendant denies
possession is also distinct from situations where a defendant admits or does
not otherwise dispute the fact of possession, but asserts some innocent mental
state such as mere presence, accident, mistake, or lack of knowledge. See 2
56
Wigmore, Evidence § 302 (3d ed. 1940) (“The argument here is purely from the
point of view of the doctrine of chances—the instinctive recognition of that
logical process which eliminates the element of innocent intent by multiplying
instances of the same result until it is perceived that this element cannot
explain them all.”).
Because Gasaway’s intent to possess heroin was not genuinely in
dispute, we conclude the trial court erred by admitting the methamphetamine
and marijuana as evidence of such intent. Even if the methamphetamine and
marijuana could be viewed as relevant under the circumstances of this case,
there was insufficient similarity to justify the admission of the evidence as
direct proof of guilt of possession of heroin. Unlike possession cases where
different drugs were found contemporaneously in the same location, Gasaway
was found guilty of possession of heroin based in part upon evidence of
different drugs that were found in a different location on a different occasion.
This is precisely the type of propensity logic that our evidentiary rules are
designed to prevent.
C. METHAMPHETAMINE AND MARIJUANA NOT INEXTRICABLY
INTERTWINED WITH POSSESSION OF HEROIN CHARGE
The trial court alternatively determined the evidence of
methamphetamine and marijuana was admissible under KRE 404(b)(2)
because the evidence was inextricably intertwined with the possession of
heroin charge. This was also in error.
As cited above, KRE 404(b)(2) provides a separate exception to the
prohibition on improper character evidence when evidence of other crimes is
57
“so inextricably intertwined with other evidence essential to the case that
separation of the two (2) could not be accomplished without serious adverse
effect on the offering party.” “Two types of ‘other act’ evidence fit the
description: (1) evidence of part of the transaction on which the criminal charge
is based and (2) evidence required “to permit the prosecutor to offer a coherent
and comprehensible story regarding the commission of the crime.” Leslie W.
Abramson, 9 Kentucky Practice Series, Criminal Practice & Procedure § 27:168
(6th ed.).
Again, Professor Lawson warns of “the need for extraordinary caution” in
this use of this exception because the “expanded idea of contextual relevance
often paves the way to prove acts that are anything but inseparable from the
charged crime, and this label can become a catchall for admitting acts that are
far more prejudicial to the defendant than useful in determining guilt of the
charged offense.” Robert A. Lawson, The Kentucky Evidence Law Handbook §
2.30 [3][c] (quoting 1 Mueller & Kirkpatrick, Federal Evidence 809 (3d. ed.
2007)). “[T]he key to understanding this exception is the word ‘inextricably.’”
Metcalf v. Commonwealth, 158 S.W.3d 740, 743 (Ky. 2005) (quoting Funk v.
Commonwealth, 842 S.W.2d 476, 480 (Ky. 1992)). “The exception relates only
to evidence that must come in because it ‘is so interwoven with evidence of the
crime charged that its introduction is unavoidable.’” Id. (citation omitted).
Evidence is inextricably intertwined where “two or more crimes are so linked
together in point of time or circumstances that one cannot be fully shown
without proving the other.” Id. (quoting Fleming v. Commonwealth, 284 Ky.
58209, 144 S.W.2d 220, 221 (1940)). In other words, the test is whether by
excluding evidence of the prior offense, it would be necessary to suppress facts
and circumstances relevant to the commission of the charged offense. Id.(citation omitted).
The evidence of the methamphetamine and marijuana was simply not
inextricably intertwined with the charge of possession of heroin. See United
States v. Lightly, 616 F.3d 321, 354 (4th Cir. 2010) (“the events occurred at
different times, at different places, and involved completely different motives, so
there were no gaps in the government’s case without the evidence”). The
methamphetamine and marijuana are different substances than heroin, and
these other drugs were found in a different location on a different occasion.
Therefore, this other-crimes evidence was neither part of the same criminal
transaction nor essential to allowing the Commonwealth to offer a complete
and comprehensible account of the charged crime.
Further, we disagree with the trial court’s conclusion that the
methamphetamine and marijuana evidence was necessary to explain
Gasaway’s post-arrest statements to Det. Dover, “I’m not worried about the
weed or ecstasy and you damn sure didn’t find no three grams of heroin. And
in Louisville, that’s just a citation.” As in Metcalf, “it would have been a simple
matter” for Det. Dover to truthfully testify concerning Gasaway’s statements
about the heroin without mentioning the portion of the statement relating to
uncharged crimes. 158 S.W.3d at 744. The exclusion of Gasaway’s statements
regarding the methamphetamine and marijuana would not have required the
59
suppression of any facts bearing on whether Gasaway possessed heroin the
day before. Therefore, the evidence of methamphetamine and marijuana was
not inextricably intertwined with the heroin charge. The admission of this
evidence was in error.
We further conclude the improper admission of the methamphetamine
and marijuana evidence was highly prejudicial to Gasaway’s defense and
constitutes reversible error. The evidence of methamphetamine and marijuana
was referenced on multiple occasions throughout the guilt phase of the trial.
The direct evidence of heroin possession was not overwhelming. Moreover, the
impact of the methamphetamine and marijuana evidence clearly influenced the
jury’s verdict given its request, during deliberation, for the trial court to provide
a copy of the prior oral admonition in writing. Further, any question
concerning the adequacy of the trial court’s admonition is irrelevant because
the evidence of methamphetamine and marijuana was inadmissible for any
purpose. See KRE 105(a) (“When evidence which is admissible as to one (1)
party of for one (1) purpose but not admissible as to another party or for
another purpose is admitted, the court, upon request, shall restrict the
evidence to its proper scope and admonish the jury accordingly.”). Nor does
this case implicate the situation where an adequate admonition is given after a
defense objection to inadmissible evidence has been sustained. See Soto v.
Commonwealth, 139 S.W.3d 827, 861-62 (Ky. 2004). We cannot consider this
error harmless. Therefore, reversal for retrial is necessary.
60
V. INTERPRETATION OF VIDEO EVIDENCE WAS ERROR
For his third and final contention of error, Gasaway argues the trial court
improperly permitted three witnesses to interpret the contents of the
surveillance video. Although we have already determined reversible error
occurred, we will nevertheless address this issue because it is likely to recur
upon re-trial. We conclude that Knight was improperly permitted to interpret
the video and decline to review the other claimed errors because they were not
properly preserved for review.
The rule in Kentucky is that a witness may not interpret the contents of
a recording. Gordon v. Commonwealth, 916 S.W.2d 176, 180 (Ky. 1995).
Specifically, a witness is not permitted to testify concerning events the witness
did not perceive in real-time. Boyd v. Commonwealth, 439 S.W.3d 126, 131-
132 (Ky. 2014). In Morgan v. Commonwealth, 421 S.W.3d 388, 392 (Ky. 2014),
we explained:
[A] lay witness “may not interpret audio or video evidence, as such
testimony invades the province of the jury, whose job is to make
determinations of fact based upon the evidence.” “It is for the jury
to determine as best it can what is revealed in the tape recording
without embellishment or interpretation by a witness.”
(Internal citations omitted). This rule is based on KRE 701, which limits
opinion testimony to matters “rationally based on the perception of the
witness.” Id. Additionally, witnesses must testify based on personal
knowledge under KRE 602. Id. However, the identification of a person in a
video recording does not run afoul of the prohibition on interpreting a
recording because such matter is rationally within a witness’s perception. Id.61
Gasway first argues the trial court erred by allowing Jeremy Knight to
interpret the video. This error was properly preserved by objection.34 The
Court of Appeals held it was proper for Knight to identify Gasaway on the
video because he was familiar with Gasaway’s appearance. However, the
record reflects Knight’s testimony concerning the video went well beyond
identification. While the video clip of Gasaway was playing before the jury, the
following questioning occurred:
Com.: Now you said you viewed the video and saw him [Gasaway]
pull a phone out?
Knight: Correct.
Com.: And where was the item you were talking about falling out?
Knight: So, the white,
Com.: Go ahead.
Knight: Item there.
Com.: Is that that on the floor there?
Knight: Yes sir.
Com.: Now, that is eventually what you found, correct?
Knight: Yes.
Com.: You started with what?
Knight: I started with Austin when he found it.
Com.: Now is that video as well?
34Gasaway made a “prophylactic” objection to the line of questioning
concerning Knight’s interpretation of the video. At that time, he did not mention or
otherwise preemptively object to the testimony of any other witnesses.
62
(Video clip of Austin and Daniel plays).
Knight: Yes. So Austin and Daniel had just got off break and
walked in and he picked it up and was like, “huh what’s that?”.
After the video stopped playing, Knight continued to testify about what he
observed on the video. Knight was clearly interpreting the contents of the video
clip rather than testifying from personal knowledge, perception, or recollection.
Therefore, it was improper to allow this line of questioning over Gasaway’s
objection.
Gasaway also argues the lower courts erred by allowing Brian Tharpe to
interpret the video. However, we have not been cited to any specific objection
in the record concerning this allegedly improper testimony. Our review of the
record indicates that, following the questioning of Tharpe by the parties, the
jury raised a question concerning whether the video had been viewed in its
entirety from the time Gasaway dropped an item and the time the heroin was
found. The jury also posed a question concerning sequencing of the video
clips.
Gasaway objected to the question about how much of the video had been
viewed because it had already been testified to by Knight. Regarding the
sequencing of the video clips, the parties agreed the trial court could ask
Tharpe which parts of the video he had personally viewed. While Tharpe
continued testifying regarding his opinions of what occurred on the video, there
was no further objection. Gasaway did not request palpable error review of this
issue and we decline to address it further.
63
Gasaway finally argues Det. Dover was improperly permitted to interpret
the video. The Court of Appeals concluded Det. Dover’s testimony was
improper, but determined the error was harmless under Boyd, 439 S.W.3d at
132. Gasaway points to three instances where the trial court erred by allowing
Det. Dover to interpret the video. However, we are cited to only one instance
where Gasaway made an objection. And then, the objection was sustained and
Gasaway requested no additional relief.
Regarding the first instance of Det. Dover’s allegedly improper testimony,
Gasaway did not object. He has not requested palpable error and we decline to
review this issue further.
Regarding the second instance of allegedly improper testimony, the
Commonwealth approached the bench during its questioning of Det. Dover.
The Commonwealth apologized because the still photographs from the
surveillance video that it was intending to introduce had been altered and were
not ready for introduction into evidence. The Commonwealth asked for a brief
recess to obtain clean copies of the photographs. Gasaway agreed to allow Det.
Dover to reference the altered photographs during his testimony, and then
allow the Commonwealth to introduce the clean copies when they arrived. No
further objection was made. Gasaway has not requested palpable error review
and we decline to address this issue further.
Regarding the third and final instance of allegedly improper testimony,
the Commonwealth asked Det. Dover, “Do have any question at all that was
dropped by Mr. Gasaway was what was tested positive for heroin at the lab?”
64
Gasaway then objected to the question on the basis that it called for a legal
conclusion. Notably, Gasaway stated, “He can say what he saw on the video.”
The trial court then proposed an alternative wording of the question to which
both parties agreed. The Commonwealth then asked Det. Dover, “Do you have
any question whether the substance found on the floor by Austin McClanahan
at Knight’s Mechanical was the same substance tested at the Kentucky State
Police Lab?” Det. Dover answered, “There’s no question.” Gasaway did not
make any further objection or request additional relief. There was no request
for palpable error review and we decline to address the issue further.
VI. CONCLUSION
In conclusion, we overrule our decision in Bratcher and reaffirm the
reasoning of the Samson decision as stated above. We hold, albeit for different
reasons than the courts below, the trial court properly denied Gasaway’s
motion to suppress. However, the trial court erred by admitting evidence of
methamphetamine and marijuana under KRE 404(b) because intent was not at
issue and the evidence was not inextricably intertwined with the heroin charge.
Additionally, the trial court improperly allowed a witness to interpret the
contents of a video recording.
Accordingly, the decision of the Court of Appeals is affirmed in part and
reversed in part. We remand to the Hardin Circuit Court for further
proceedings consistent with this opinion.
All sitting. Conley, Lambert, and Thompson, JJ., concur. VanMeter,
C.J.; Bisig and Keller, JJ., concur in result only.
65
COUNSEL FOR APPELLANT:
Erin Hoffman Yang
Assistant Public Advocate
COUNSEL FOR APPELLEE:
Daniel Cameron
Attorney General of Kentucky
Christopher Henry
Assistant Attorney General
66