Michael Lee Giles v. Commonwealth of Kentucky ( 2021 )

RENDERED: MARCH 26, 2021; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0131-MR
MICHAEL LEE GILES APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
v. HONORABLE LUCY ANNE VANMETER, JUDGE
ACTION NO. 19-CR-00337
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
REVERSING AND REMANDING
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BEFORE: CALDWELL, MCNEILL, AND TAYLOR, JUDGES.
TAYLOR, JUDGE: Michael Lee Giles brings this appeal from a January 15,
2020, Amended Final Judgment and Sentence of Imprisonment of the Fayette
Circuit Court sentencing him to a total of ten-years’ imprisonment. We reverse
and remand.
In March of 2019, Giles was indicted by a Fayette County Grand Jury
upon trafficking in a controlled substance in the first degree, promoting contraband
in the first degree, possession of a controlled substance in the first degree,
possession of drug paraphernalia, and with being a persistent felony offender in the
first degree. Following the indictment, Giles filed a motion to suppress evidence
seized from the vehicle that he was a passenger in, which formed the basis for his
indictment.
The circuit court conducted an evidentiary hearing upon Giles’ motion
to suppress. The only witness to testify at the hearing was Officer Alec Hood. In
its October 22, 2019, order denying the motion to suppress, the circuit court
determined that Hood had prolonged the traffic stop beyond the time reasonably
necessary to complete the stop. However, the circuit court ultimately determined
Hood had reasonable suspicion of criminal activity to prolong the traffic stop based
upon a radio call from a narcotics detective that a white Nissan Altima had just left
a known drug house after being there for only five minutes. Regarding Hood’s
reliance on the information from the narcotics detective, the circuit court stated the
following:
The Court may consider factual information observed by,
and told to, Officer Hood. See Commonwealth v. Smith,
542 S.W.3d 276, 281 (Ky. 2018) (. . . holding the
collective knowledge doctrine applies to traffic stops, the
Court noted, “‘[u]nder the collective knowledge doctrine,
an arresting officer is entitled to act on the strength of the
knowledge communicated from a fellow officer and he
may assume its reliability provided he is not otherwise
aware of circumstances sufficient to materially impeach
the information received.’” ([C]itations omitted[.]))
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October 22, 2019, order at 6.
Following the circuit court’s denial of his motion to suppress, Giles
reached a plea agreement with the Commonwealth. Pursuant to the plea
agreement, Giles entered a conditional guilty plea to possession of a controlled
substance in the first degree, promoting contraband in the first degree, and being a
persistent felony offender in the first degree. Kentucky Rules of Criminal
Procedure (RCr) 8.09. Giles preserved the right to appeal the denial of his motion
to suppress. Giles was sentenced to a total of ten-years’ imprisonment. This
appeal follows.
The events leading to Giles’ arrest and subsequent indictment
occurred on the afternoon of January 8, 2019. A narcotics detective put out a radio
call asking officers to stop a white Nissan Altima that just left a house known for
drug activity on Locust Avenue. Officer Hood was on Locust Avenue and spotted
a white Nissan Altima. Hood began to follow the Altima and noticed the tag on
the license plate was expired. Hood initiated a traffic stop of the Altima around
1:41 p.m. Before exiting his police cruiser to approach the Altima, Hood turned on
his body camera. Unfortunately, the quality of sound on the video recording is
often poor.
When Hood approached the Altima on the passenger’s side where
Giles was seated, Hood asked the driver for his driver’s license. The driver
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responded that he did not have his license with him, but the driver provided his
social security number. Officer Hood did not ask for the driver’s name, and he did
not provide it. The passenger, Giles, said he did not have a driver’s license, but he
provided a state-issued identification card. Hood also asked for the vehicle
registration and proof of insurance. Giles responded that the vehicle belonged to
his aunt, Karen, and he provided the insurance card. Giles could not locate the
vehicle registration.
Officer Hood returned to his cruiser and radioed the narcotics
detective to inform him that a traffic stop of the Altima had been effectuated based
upon an expired license plate tag. Upon running a search of the social security
number, the driver was identified as Diangela Santana. Hood then informed the
narcotics detective that Giles and Santana were the individuals in the Altima. The
narcotics detective asked if there was reasonable suspicion of criminal activity or
any basis for sending a canine unit. Officer Hood responded “possibly” and stated
that he had spotted a plastic baggie in the console area. Hood also told the
narcotics detective that he intended to ask for consent to search the vehicle. Before
Hood exited his cruiser to investigate the plastic baggie, another officer who had
arrived on the scene approached Hood’s cruiser. Hood informed the officer of the
situation, and the officer approached the Altima. Hood also asked dispatch to run a
check for warrants on both occupants of the Altima.
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Officer Hood then exited the cruiser and approached the Altima on the
passenger’s side. Hood again asked for the vehicle registration, but Giles was
unable to locate it. Hood further questioned Giles and Santana about where they
had been and where they were going. The response was that they had come from
Frankfort to visit a nephew or cousin that lived on Locust Avenue and were now
returning to Frankfort. Hood asked Giles and Santana if anything was in the
vehicle to “worry about,” and the response was “no.” Hood then asked for consent
to search the vehicle. Santana denied the request to search and stated the vehicle
was not his. Hood and the other officer on the scene then stepped away and
discussed whether there was anything illegal in plain view inside the Altima.
Hood said, “What do you think? Did you see anything?” The other officer
responded in the negative. Both officers concluded the baggie in the console was
one for plastic silverware. The other officer can then be heard saying, “You got
nothing, man. I don’t see anything.” Hood responded, “I don’t either.”
Officer Hood returned to his cruiser and was informed by dispatch
that neither Giles nor Santana had any outstanding warrants for their arrest and that
Santana had an active driver’s license. Hood then reported to the narcotics
detective that the plastic baggie was for silverware and that consent to search the
vehicle was denied. The narcotics officer could then be heard on the radio
responding, “Ten-four. Should we start a canine?” Hood responded, “Ten-four.
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Start canine my way.” A few minutes later dispatch informed Hood there was not
a canine available to send. There was some chatter on the radio, and then the
narcotics detective asked Hood if he had “plain smell or anything else.” Hood said
he did not have “plain smell” nor did he visualize any “shake.”1
For the next several minutes, Hood could be seen and heard
continuing to work on his computer. Shortly thereafter, the narcotics detective said
he had a canine unit in route. The narcotics detective also advised Hood to start
writing the citation for the expired license plate tag; Hood responded he had
already started.
An officer on the scene walked up to Hood’s passenger window, and
they engaged in small talk while Hood worked on his computer. Approximately
thirty minutes after the initial traffic stop, Hood printed the citation out at about the
same time that the canine unit arrived. Hood did not deliver the citation to Santana
before the other officers asked Santana and Giles to exit the vehicle.2 A sniff by
the canine led to discovery of cocaine, a baggie with residue, and scales.
Our review of a circuit court’s denial of a motion to suppress evidence
is pursuant to a two-prong test. Commonwealth v. Mitchell, 610 S.W.3d 263, 268
1
Shake is apparently a term used to refer to small pieces of marijuana.
2
As the body camera video only recorded a thirty minute segment, the video recording cuts off
at this point.
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(Ky. 2020). Under the first prong, we review the circuit court’s findings of fact
pursuant to the clearly erroneous standard. Id. Pursuant to this standard, the
circuit court’s “findings of fact will be conclusive if they are supported by
substantial evidence.” Id. Under the second prong, we review the circuit court’s
application of law to the facts de novo. Id. In the case sub judice, neither party has
challenged the circuit court’s findings of fact, so we will proceed to review the
court’s application of law to the facts.
Giles asserts the circuit court improperly denied his motion to
suppress evidence. More particularly, Giles contends that although the circuit
court properly determined the traffic stop was prolonged beyond the time
necessary to complete the traffic citation, the circuit court improperly determined
that Hood had reasonable suspicion of criminal activity to justify prolonging the
traffic stop for a canine unit to arrive.
It is uncontroverted that the initial stop of the Altima was a lawful
traffic stop based upon the vehicle’s expired license plate tag. However, even a
lawful traffic stop may “become unlawful if it is prolonged beyond the time
reasonably required to issue a traffic citation.” Commonwealth v. Smith, 542
S.W.3d 276, 281 (Ky. 2018) (citing Illinois v. Caballes, 543 U.S. 405, 407 (2005)).
In other words, detaining the driver, and by logical extension a passenger, becomes
unreasonable when the “tasks tied to the traffic infraction are – or reasonably
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should have been – completed . . . .” Id. at 281 (citation omitted). In this case, we
agree with the circuit court that the traffic stop was prolonged beyond the time
reasonably necessary to issue a citation for the expired license plate tag. Thus, the
pivotal question becomes whether there was reasonable and articulable suspicion
of criminal activity to justify prolonging the stop for a canine unit to arrive.
As an appellate court, we must determine whether the officer had a
reasonable and articulable suspicion that criminal activity was afoot to justify
prolonging the traffic stop. Commonwealth v. Blake, 540 S.W.3d 369, 373 (Ky.
2018) (citing Terry v. Ohio, 392 U.S. 1, 30 (1968)). Reasonable suspicion is
determined by examining the totality of the circumstances. Id. (citation omitted).
And, when determining whether reasonable suspicion of criminal activity exists,
“the collective knowledge of all the law enforcement officers involved in the stop
may be taken into consideration.” Id. at 373 (citation omitted). More particularly,
a police officer may properly rely upon a radio bulletin or other information shared
by another law enforcement officer or department to justify a Terry3 stop; however,
the bulletin or other information must be based upon reasonable suspicion of
criminal activity. U.S. v. Hensley, 469 U.S. 221, 232 (1985) (holding that “if a
[wanted] flyer or bulletin has been issued on the basis of articulable facts
3
Terry v. Ohio, 392 U.S. 1 (1968).
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supporting a reasonable suspicion that the wanted person has committed an
offense, then reliance on that flyer or bulletin justifies a stop”).
At the evidentiary hearing, Hood acknowledged there was no
contraband in plain view and there was no plain smell. Therefore, the basis for the
Terry stop had to derive from the narcotics detective’s radio call that a white
Nissan Altima left a house on Locust Avenue known for drug activity after making
only a five-minute stop. Terry, 392 U.S. 1 (1968). However, there was no
testimony or other evidence presented at the hearing regarding the basis for the
narcotic’s detective’s belief that the house on Locust Avenue was a known drug
house. The narcotics officer did not testify at the hearing.
To have properly relied upon the narcotics detective’s radio call, it
was incumbent upon the Commonwealth to have introduced evidence setting forth
the facts supporting the reasonable suspicion that the house on Locust Avenue was
indeed a known drug house. In the absence thereof, we can only conclude that
there was not reasonable suspicion of criminal activity to support the narcotics
detective’s radio call concerning the Altima leaving the known drug house on
Locust Avenue.4 In this respect, the circuit court committed an error of law.
4
We note that in U.S. v. Hensley, 469 U.S. 221, 232-34 (1985), a police officer testified
concerning the articulable suspension of criminal activity that lead to issuance of the “wanted
flyer.” In the case sub judice, the narcotics detective did not testify at the evidentiary hearing on
the motion to suppress.
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Additionally, the evidence established that Hood did not see the
Altima leave the house, the narcotics detective did not provide a license plate
number, and the narcotics detective did not supply a description of the individuals
in the Altima. A driver’s license check revealed that Santana had an active driver’s
license, and a search for outstanding warrants revealed that neither Santana nor
Giles had any outstanding warrants. And, there was no evidence that Giles or
Santana had a criminal history. While certainly a close call, in the absence of any
other evidence being presented at the suppression hearing, we must conclude that
Hood’s actions in prolonging the stop for an expired license plate tag to wait for a
canine unit were unreasonable and were in violation of Giles’ Fourth Amendment
right to be free from an unreasonable search and seizure. There was insufficient
evidence presented at the hearing to justify prolonging the stop.
In sum, we are of the opinion that the circuit court erroneously denied
Giles’ motion to suppress evidence seized from the automobile.
For the foregoing reasons, the January 15, 2020, Amended Final
Judgment and Sentence of Imprisonment of the Fayette Circuit Court is reversed
and remanded for proceedings consistent with this Opinion.
ALL CONCUR.
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BRIEFS AND ORAL ARGUMENT BRIEF FOR APPELLEE:
FOR APPELLANT:
Daniel Cameron
Emily Holt Rhorer Attorney General of Kentucky
Assistant Public Advocate Frankfort, Kentucky
Department of Public Advocacy
Frankfort, Kentucky Jenny L. Sanders
Assistant Attorney General
Frankfort, Kentucky
ORAL ARGUMENT FOR
APPELLEE:
Christopher Henry
Assistant Attorney General
Frankfort, Kentucky
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