Henry Boshart v. Commonwealth of Kentucky ( 2021 )

RENDERED: SEPTEMBER 10, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0199-DG
HENRY BOSHART APPELLANT
ON DISCRETIONARY REVIEW FROM
v. HARDIN CIRCUIT COURT
HONORABLE KEN M. HOWARD, JUDGE
ACTION NO. 19-XX-00005
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: DIXON, GOODWINE, AND TAYLOR, JUDGES.
DIXON, JUDGE: Henry Boshart appeals from the order affirming the Hardin
District Court’s denial of his suppression motion, entered on January 10, 2020, by
the Hardin Circuit Court. Following a careful review of the record, briefs, and law,
we affirm.
FACTS AND PROCEDURAL BACKGROUND
On August 22, 2018, Boshart was operating his vehicle on the wrong
side of a divided highway in Hardin County, Kentucky. He was observed by
Officer Richardson of the Hodgenville Police Department (HPD), who was on his
way to work in Larue County, Kentucky, in his cruiser. Officer Richardson
activated his emergency lights1 with the intention of getting the driver’s attention
and alerting him that he was traveling against the flow of traffic so that he could
self-correct this behavior. However, the driver pulled over and stopped the
vehicle–at an angle–in the left-hand median of the highway.
Officer Richardson parked behind the vehicle with his lights on to
alert other motorists. He approached the vehicle on the passenger side to speak
with the driver and smelled the strong odor of alcohol. The driver seemed
confused but told Officer Richardson his name and that he did not have his
operator’s license with him.
Officer Richardson contacted the Elizabethtown Police Department
(EPD), relayed the information about his encounter with Boshart, and requested
they dispatch an officer to his location. Officer Slaubaugh of the EPD responded,
1
Defense counsel made and continues to make arguments concerning whether Officer
Richardson activated his lights and left them on during the entire encounter or whether–as
Officer Richardson testified–the lights were activated briefly initially and then left on while
parked behind Boshart’s vehicle. As noted by the court, this issue is immaterial to the crux of
whether the suppression motion was properly granted.
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and Officer Richardson left the scene. Officer Slaubaugh conducted standard field
sobriety tests, all of which Boshart failed. He was taken into custody and, at the
EPD station, blew a 0.190.
Boshart was charged in the Hardin District Court with careless
driving; operating a motor vehicle under the influence of alcohol with an
aggravator, first offense; and failure to have his operator’s license in his possession
while operating a motor vehicle. Boshart moved to suppress all evidence against
him, asserting that Officer Richardson was acting outside his jurisdiction of Larue
County when he pulled Boshart over. After the matter was briefed and a pretrial
conference held, the motion was denied, and Boshart appealed to the Hardin
Circuit Court, which affirmed the lower court. Boshart subsequently moved our
Court for discretionary review, and the motion was granted.
STANDARD OF REVIEW
The standard of review of a denial of a motion to suppress is two-fold:
“[f]irst, the trial court’s findings of fact are conclusive if they are supported by
substantial evidence; and second, the trial court’s legal conclusions are reviewed
de novo.” Milam v. Commonwealth, 483 S.W.3d 347, 349 (Ky. 2015) (citing
Commonwealth v. Marr, 250 S.W.3d 624, 626 (Ky. 2008); RCr2 9.78). “At a
suppression hearing, the ability to assess the credibility of witnesses and to draw
2
Kentucky Rules of Criminal Procedure.
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reasonable inferences from the testimony is vested in the discretion of the trial
court.” Pitcock v. Commonwealth, 295 S.W.3d 130, 132 (Ky. App. 2009) (citing
Commonwealth v. Whitmore, 92 S.W.3d 76, 79 (Ky. 2002)). “In conducting our
review, our proper role is to review findings of fact only for clear error while
giving due deference to the inferences drawn from those facts by the trial judge.”
Perkins v. Commonwealth, 237 S.W.3d 215, 218 (Ky. App. 2007) (citing
Whitmore, 92 S.W.3d at 79).
ANALYSIS
Boshart’s arguments on appeal hinge upon the premise that since
Officer Richardson pulled him over in Hardin County, he was without jurisdiction
and exceeded his authority, making all evidence of Boshart’s offenses
suppressible. Boshart relies on KRS3 95.019(1), which provides:
The chief of police and all members of the police force in
urban-county governments and cities shall possess all of
the common law and statutory powers of constables and
sheriffs. They may exercise those powers, including
the power of arrest for offenses against the state,
anywhere in the county in which the urban-county
government or city is located, but the chief of police
and members of the police force in a city shall not be
required to police any territory outside of the city limits.
3
Kentucky Revised Statutes.
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(Emphasis added.) There is not an abundance of case law interpreting this statute
and no case discussing the exact situation now before us. Accordingly, we turn to
the most similar cases for guidance.4
In Churchwell v. Commonwealth, 843 S.W.2d 336, 340 (Ky. App.
1992), another panel of our Court interpreted a similar statute conferring police
powers upon park rangers.5 In Churchwell, Officer Reed–a park ranger–observed
a vehicle slowly cruising the marina area of Kentucky Dam Village State Park,
which he deemed to be suspicious. Officer Reed followed the vehicle and stopped
it approximately four miles outside the park. Id. at 339. The Court noted that
while KRS 431.045 provides: “[a] peace officer in actual pursuit may continue
4
Although Boshart lists several cases with conclusory assertions that these cases support his
contentions, none of the cases he cites compel suppression in the case now before us.
5
The statute at issue in that case, KRS 148.056(1), provides:
The commissioner of parks, in his discretion, may employ and
commission park rangers as the commissioner deems necessary to
secure the parks and property of the Department of Parks and to
maintain law and order and such employees, when so
commissioned, shall have all of the powers of peace officers and
shall have on all parks property and on public highways
transversing such property in all parts of the state the same
powers with respect to criminal matters and enforcement of the
laws relating thereto as sheriffs, constables and police officers in
their respective jurisdictions, and shall possess all the immunities
and matters of defense now available or hereafter made available
to sheriffs, constables and police officers in any suit brought
against them in consequence of acts done in the course of their
employment.
(Emphasis added.)
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such pursuit across corporate or county lines for the purpose of making an
arrest[,]” Officer Reed was not in pursuit of someone who had committed a crime
within the park. Id. The Court ultimately held that since the stop occurred outside
the park ranger’s jurisdiction, it was improper. Churchwell, 843 S.W.2d at 399.
The Court found “[s]ince exigent circumstances did not exist, Officer Reed could
have radioed other law enforcement officials to continue the investigation outside
the park area.” Id. at 340. The Court also specifically noted, “If he had a
reasonable and articulable suspicion that the men were, or had been, engaged in
criminal activity, Reed could have made a brief investigatory stop inside the park
. . . [but t]here is no evidence that the men behaved more suspiciously once they
exited the park.” Id.Here, it is undisputed Officer Richardson was employed by the HPD
of Larue County, and this incident occurred solely in Hardin County. It is also
undisputed that Boshart’s driving on the wrong side of a divided highway clearly
constituted an exigent circumstance that required immediate action. Even so,
Officer Richardson used the least intrusive means possible to mitigate the threat to
public safety in hailing Boshart with his lights and staying with him until another
officer from within the proper jurisdiction arrived to investigate. Thus, the case
herein is distinguishable from Churchwell.
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In Pope v. Commonwealth, ___ S.W.3d ___, 2021 WL 1743575 (Ky.
Feb. 18, 2021), reh’g denied (Aug. 26, 2021), Pope moved the circuit court to
suppress the deputies’ testimony and any evidence gathered by the Boyle County
Sheriff’s Department or, alternatively, to dismiss the indictment altogether,
claiming Boyle County deputies lacked jurisdiction to investigate in Lincoln
County. On appeal, the Supreme Court of Kentucky agreed with the trial court’s
“ultimate conclusion of law that Pope’s jurisdictional argument fails and thus
cannot be a legal basis for either suppression of the evidence or dismissal of the
indictment.” Id. at *1. The Court observed: “even if Pope’s jurisdictional
challenge had merit, a motion to suppress, excluding the evidence, would not be
the proper remedy.” Id. Likewise, herein, Boshart’s jurisdictional argument does
not require suppression.
Furthermore, and contrary to Boshart’s argument, Fischer v.
Commonwealth, 506 S.W.3d 329 (Ky. App. 2016), a case relied upon by the circuit
court, is not legally distinguishable from the case herein, although the police
officers’ out-of-county “knock and talk” at issue in Fischer was an action which
any private citizen can lawfully undertake, and the undercover drug buy in Pope’s
case, as well as the use of a police vehicle’s lights in Boshart’s case, are not actions
any private citizen can lawfully undertake. Pope, ___ S.W.3d ___, 2021 WL
1743575, at *2. Whether the officer is conducting actions any private citizen can
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or cannot lawfully undertake is not the lynchpin of the legal analysis and did not
require suppression in Pope; nor does it here.
In Pope, Kentucky’s highest court noted: “KRS 431.007 grants an
out-of-county assisting officer the authority to arrest. It does not bestow any
right on a defendant to be prosecuted for breaking the law only when the
investigation leading to his arrest was performed by an officer of the
jurisdiction within which that defendant committed the crime.” Id. at *3.
(emphasis added). We find this logic applicable to the case herein and supportive
of the lower courts’ rulings. Although Officer Richardson was not investigating or
seeking out Boshart prior to observing him driving in Hardin County, when he
observed the hazardous driving, he was compelled–morally, if not legally–to do the
right thing and remedy the hazard. Even if Officer Richardson was technically
using his police powers outside his jurisdiction, this does not mean Boshart is to go
free, for the reasons discussed in Pope. Counter to Boshart’s assertions, this is not
a case where “[t]he criminal is to go free because the constable has blundered.”
People v. Defore, 242 N.Y. 13, 21, 150 N.E. 585, 587 (1926).
Moreover, in Elkins v. United States, 364 U.S. 206, 222, 80 S. Ct.
1437, 1446, 4 L. Ed. 2d 1669 (1960), and Terry v. Ohio, 392 U.S. 1, 9, 88 S. Ct.
1868, 1873, 20 L. Ed. 2d 889 (1968), the United States Supreme Court held “what
the Constitution forbids is not all searches and seizures, but unreasonable searches
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and seizures.” (Emphasis added.) When Officer Richardson used his emergency
lights, it led to what can only be deemed a seizure under the Fourth Amendment;
however, this was not an unreasonable seizure because Boshart was clearly
violating the law and posing a threat to public safety. Thus, the seizure did not
violate Boshart’s rights.
It is well-established: the purpose of the exclusionary rule is to deter
police misconduct. Crayton v. Commonwealth, 846 S.W.2d 684, 688 (Ky. 1992).
“Suppression of evidence pursuant to the exclusionary rule applies only to searches
that were carried out in violation of an individual’s constitutional rights.” Copley
v. Commonwealth, 361 S.W.3d 902, 905 (Ky. 2012). Here, there was no violation
of Boshart’s Fourth Amendment–or any other constitutional–rights. “Without a
constitutional right underpinning his motion to suppress, Appellant has no basis for
application of the exclusionary rule.” Bratcher v. Commonwealth, 424 S.W.3d
411, 415 (Ky. 2014). Consequently, the trial court did not err in denying Boshart’s
suppression motion.
CONCLUSION
Therefore, and for the foregoing reasons, the order of the Hardin
Circuit Court is AFFIRMED.
ALL CONCUR.
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BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Jeremy S. Aldridge Daniel Cameron
Elizabethtown, Kentucky Attorney General of Kentucky
Frankfort, Kentucky
Melanie Goff Biggers
Special Assistant Attorney General
Elizabethtown, Kentucky
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