Kenneth Lamont Boone Jr v. Commonwealth of Kentucky ( 2021 )

RENDERED: AUGUST 13, 2021; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-0966-MR
KENNETH LAMONT BOONE, JR. APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
v. HONORABLE ERNESTO M. SCORSONE, JUDGE
ACTION NO. 16-CR-00383
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
** ** ** ** **
BEFORE: ACREE, DIXON, AND K. THOMPSON, JUDGES.
THOMPSON, K., JUDGE: A jury found Kenneth Lamont Boone, Jr. guilty of
theft of identity and being a persistent felony offender in the first degree (PFO I).
The jury recommended a one-year sentence, enhanced to ten years due to the PFO
I conviction. After the Fayette Circuit Court sentenced Boone in accordance with
the jury’s recommendation, he filed this appeal challenging the trial court’s
decisions to deny his two suppression motions and to decline to give a requested
lesser-included offense instruction. Boone also claims error regarding parole
eligibility information given to the jury in the penalty phase. We affirm in part,
reverse in part, and remand.
In April 2016, Boone was indicted for the felony offenses of
possession of a controlled substance in the first degree, theft of identity, and being
a PFO I, as well as the misdemeanor offense of operating on a suspended or
revoked license and not having an illuminated rear license plate, a violation. All of
those charges stemmed from a February 2016 traffic stop.
In early 2017, Boone filed his first motion to suppress, tersely
asserting the traffic stop was improperly extended. The trial court held an
evidentiary hearing at which the arresting officer, Detective Christopher Pope from
the narcotics enforcement unit of the Lexington Police Department, was the sole
witness. Detective Pope testified that he was conducting surveillance in an
unmarked vehicle at a Walmart when he observed a black Tahoe and a white
Trailblazer pull into the lot, whereupon people switched between the two vehicles
without having visited any stores. His suspicions aroused, Detective Pope
followed the white Trailblazer and pulled it over because its rear license plate was
unilluminated.
Boone was driving the Trailblazer. Detective Pope knew the
passenger, who had a criminal history, from previous investigations. Boone said
he did not have identification, stated his license was suspended, stated his name
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was Daniel Wharton, and provided Wharton’s birthdate. According to Detective
Pope, Boone was breathing heavily, would not make eye contact, and appeared to
be nervous (as did the passenger). Boone also told Detective Pope that the
Trailblazer belonged to his (Wharton’s) sister, but he did not know her last name.
Detective Pope requested a canine unit roughly four minutes after initiating the
stop.
While awaiting the canine unit, Detective Pope looked up the criminal
history of Wharton and the passenger. Detective Pope then began handwriting a
traffic citation but had to stop doing so at least twice to respond to questions from
Boone about whether he was going to jail. Detective Pope was still working on the
citation when the canine unit arrived, about nineteen minutes after being requested
(about twenty-three minutes after the stop began).
Detective Pope assisted the canine unit officer in removing Boone and
the passenger from the vehicle prior to the dog sniff. The dog alerted to the
presence of drugs at the driver’s side door. No drugs were found in the vehicle, so
Detective Pope searched Boone and found cocaine in his pants pocket. Jail
personnel ascertained that “Daniel Wharton” was really Kenneth Lamont Boone,
Jr., which led to Boone being charged with theft of identity.
Following the conclusion of the hearing, the trial court permitted the
parties to submit pleadings. The Commonwealth argued that the stop was not
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improperly extended or, alternatively, that there was reasonable suspicion to justify
the dog sniff.
In February 2017, the trial court issued an order denying Boone’s first
motion to suppress. In relevant part, the court concluded the initial stop was
justified since Boone’s vehicle’s rear license plate was not illuminated. The court
then found the stop was not improperly extended by the canine sniff because there
was no indication Detective Pope was dilatory in completing the citation, so the
stop was not extended longer than necessary to complete its original purpose. The
trial court did not address the Commonwealth’s reasonable suspicion argument
because it deemed the stop to have not been improperly extended.
A few months later, Boone filed a second motion to suppress, arguing
the search of his person was improper. The trial court dutifully held a hearing on
the second suppression motion at which Detective Pope reiterated much of his
testimony from the first hearing and Timothy Moore, the canine officer whose dog
alerted to the Trailblazer, testified about the dog sniff. Officer Moore testified that
narcotics dogs are trained to alert for the odor of narcotics, which can linger after
the narcotics themselves are no longer present, akin to how the smell of burned
popcorn can be detected by humans after the popcorn has been removed. The trial
court orally denied the motion, ruling that the dog’s alert gave the police authority
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to search the driver under our decision in Morton v. Commonwealth, 232 S.W.3d
566 (Ky.App. 2007).
The drug possession charge was severed, and the remaining charges
proceeded to a November 2018 jury trial. Boone unsuccessfully requested a jury
instruction on the misdemeanor offense of giving a peace officer false identifying
information as a lesser-included offense of theft of identity. The jury found Boone
guilty of all charges submitted to it and recommended a PFO I-enhanced sentence
of ten years’ imprisonment, which was the statutory minimum. Boone later
entered a conditional guilty plea to the possession of a controlled substance charge,
reserving the right to appeal the denial of his motions to suppress. In May 2019,
the trial court sentenced Boone to a total of ten years’ imprisonment, after which
he filed this appeal.
We begin with Boone’s contention that the trial court erred by
denying his motions to suppress. The scope of our review is familiar:
First, we review the trial court’s findings of fact under
the clearly erroneous standard. Under this standard, the
trial court’s findings of fact will be conclusive if they are
supported by substantial evidence. Second, we review de
novo the trial court’s application of the law to the facts.
Rhoton v. Commonwealth, 610 S.W.3d 273, 275-76 (Ky. 2020) (footnotes and
citations omitted).
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The core of Boone’s argument is that Detective Pope improperly
increased the duration of the traffic stop because he diverted working on the
citation to do other things including looking up the criminal history of Boone and
his passenger, calling the canine unit, explaining the situation to Officer Moore
upon his arrival, and assisting in removing Boone and his passenger from the
vehicle prior to the dog sniff. The Commonwealth maintains that Detective Pope
diligently worked on the citation and did not impermissibly extend the stop or,
alternately, that he had reasonable articulable suspicion that criminal activity was
afoot sufficient to justify the canine sniff.
Boone does not dispute that the vehicle’s rear license plate was not
illuminated, contrary to the requirements of Kentucky Revised Statute (KRS)
186.170(1). A failure to comply with KRS 186.170 is a violation under KRS
186.990(1). “[A]n officer who has probable cause to believe a civil traffic
violation has occurred may stop a vehicle regardless of his or her subjective
motivation in doing so.” Wilson v. Commonwealth, 37 S.W.3d 745, 749 (Ky.
2001). Consequently, the initial traffic stop was proper.
Generally, “a police stop exceeding the time needed to handle the
matter for which the stop was made violates the Constitution’s shield against
unreasonable seizures.” Rodriguez v. United States, 575 U.S. 348, 350, 135 S.Ct.
1609, 1612, 191 L.Ed.2d 492 (2015). Of course, an officer “may conduct certain
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unrelated checks during an otherwise lawful traffic stop. But . . . he may not do so
in a way that prolongs the stop, absent the reasonable suspicion ordinarily
demanded to justify detaining an individual.” Id. at 355, 135 S.Ct. at 1615. In
other words, “an officer cannot detain a vehicle’s occupants beyond completion of
the purpose of the initial traffic stop unless something happened during the stop to
cause the officer to have a reasonable and articulable suspicion that criminal
activity [is] afoot.” Turley v. Commonwealth, 399 S.W.3d 412, 421 (Ky. 2013)
(internal quotation marks and citations omitted).
We agree with Boone that the time which elapsed during his detention
for a minor traffic violation appears to be excessive. However, rather than parse
whether the delay constituted an unreasonable seizure, we affirm on the alternative
ground that Detective Pope had reasonable suspicion to detain Boone and his
passenger because Detective Pope suspected criminal activity was afoot based on
additional observations he made before the stop and during his initial encounter
with Boone and his passenger while investigating the traffic violation.1
A determination of whether an officer possessed reasonable suspicion
is based upon “the totality of the circumstances[.]” Commonwealth v. Morgan,
1
We may affirm the trial court’s decision to deny a motion to suppress on alternate grounds
supported by the record. See, e.g., McCloud v. Commonwealth, 286 S.W.3d 780, 786 n.19 (Ky.
2009).
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248 S.W.3d 538, 540 (Ky. 2008). Although not readily susceptible to a precise,
universal definition, “reasonable suspicion is more than an unparticularized
suspicion or hunch[,]” Bauder v. Commonwealth, 299 S.W.3d 588, 591 (Ky. 2009)
(internal quotation marks and citation omitted), but “is a significantly lower
standard than the probable-cause standard.” Boyle v. Commonwealth, 245 S.W.3d
219, 220 (Ky.App. 2007). Reasonable suspicion is a “relatively low” standard.
Yopp v. Commonwealth, 562 S.W.3d 290, 294 (Ky.App. 2018).
Our Supreme Court has stressed that “a police officer is not prevented
from entertaining a reasonable suspicion that criminal activity is afoot even when
the suspect’s conduct may have been as consistent with innocent activity as with
criminal activity.” Morgan, 248 S.W.3d at 542 (internal quotation marks and
citations omitted). Thus, we must “take care not to view the factors upon which
police officers rely to create reasonable suspicion in isolation” but instead “must
consider all of the officers’ observations, and give due weight to the inferences and
deductions drawn by trained law enforcement officers.” Greene v.
Commonwealth, 244 S.W.3d 128, 133-34 (Ky.App. 2008). As the Supreme Court
has remarked, “[t]his process allows officers to draw on their own experience and
specialized training to make inferences from and deductions about the cumulative
information available to them that might well elude an untrained person.” United
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States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 750-751, 151 L.Ed.2d 740(2002) (internal quotation marks and citation omitted).
The entire facts known to Detective Pope when he called for the
canine unit provided more than just a hunch that drug activity was afoot. First,
Detective Pope testified that the Walmart where he first saw the Trailblazer and
Tahoe has a history of being used for illegal activity, including drug trafficking.
As explained in Commonwealth v. Marr, 250 S.W.3d 624, 627 (Ky. 2008), “[t]he
police are permitted to take into account their surroundings - and whether a
particular location has a reputation for being a ‘known drug’ area - when forming a
reasonable and articulable suspicion.”
Second, Detective Pope testified that the fact that some occupants of
the Tahoe and Trailblazer changed vehicles without any occupants having visited
Walmart or nearby stores was consistent with drug trafficking. He is entitled to
use his training and experience to connect this observation to drug trafficking.
Third, Boone appeared nervous. “Although nervousness alone is
insufficient to give rise to reasonable suspicion, it is an important factor in the
analysis.” Id. (internal quotation marks and citation omitted).
Fourth, Detective Pope knew from previous experience that Boone’s
passenger had a criminal history. “This Court has held previously that an officer’s
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knowledge about a suspect’s prior record can be a relevant factor in the reasonable
suspicion analysis.” Morgan, 248 S.W.3d at 541.
Fifth, Boone was unable to provide a driver’s license. This provided
evidence of an additional violation and made verifying his identity more difficult.
Sixth, Boone said his sister owned the Trailblazer, but he did not
know her last name. It defies basic logic and rational human experience for
someone to not know his or her sister’s surname but have a close enough
relationship with said sister to be trusted with her vehicle.
Seventh, Detective Pope testified that Boone gave shifting final
destinations when asked, and Boone was traveling in a direction inconsistent with
the original destination he mentioned. Boone “changing his story” in this manner
provided an additional reason for suspicion.
None of those factors, standing alone, would have provided
reasonable suspicion since many are, in and of themselves, unremarkable. Many
people are nervous when encountering police officers, even if they are not engaged
in criminal activity, and every driver has inadvertently driven in the wrong
direction. However, when considered collectively, viewed through the eyes of an
experienced narcotics officer, the factors constitute reasonable suspicion.
Therefore, we affirm the denial of Boone’s first motion to suppress.
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We now turn to the denial of Boone’s second motion to suppress,
which focuses on the search of his person after no drugs were found in the vehicle.
The trial court held, correctly, that our decision in Morton, 232 S.W.3d 566, meant
that the drug dog’s alert to the vehicle gave the officers the ability to search Boone
as a matter of course.
Boone contends the facts here are materially distinguishable from
Morton because he, unlike Morton, was outside the vehicle during the sniff. Also,
Boone stresses that someone else had recently been driving the Trailblazer,
whereas there was no evidence of any other recent drivers in Morton. Obviously,
the facts do not perfectly mirror those in Morton. But the facts of any published
case are rarely precisely replicated in later cases, especially in the search and
seizure context. Nonetheless, the core legal principles in Morton apply here:
[W]e conclude that a positive canine alert, signifying the
presence of drugs inside a vehicle, provides law
enforcement with the authority to search the driver for
drugs but does not permit the search of the vehicle’s
passengers for drugs unless law enforcement can
articulate an independent showing of probable cause as to
each passenger searched.
Id. at 570. In sum, Morton sets forth a bright-line rule that officers may search the
driver of a vehicle upon a positive canine alert.
We disagree with Boone’s contention that bright-line rule is erased if
the driver is removed from the vehicle before the canine sniff occurs. As Officer
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Moore testified, a trained canine dog alerts to the smell of narcotics, not
necessarily the presence of narcotics, and the smell of narcotics lingers sufficiently
to be detected by the trained nose of a drug dog after the narcotics are removed.
Therefore, it is logical and proper to search the driver who was occupying the
vehicle shortly before the sniff as the dog’s alert provides probable cause for such
a search.
Finally, our conclusion is not impacted by the fact that another person
had recently driven the Trailblazer. Officer Moore testified he did not know about
the other driver before the canine sniff and, in any event, the dog’s alert gave
probable cause to search the person who was driving immediately before the dog
alerted. Probable cause is not absolute certainty and probable cause existed to
search Boone even if someone else had recently driven the vehicle. As we have
explained, probable cause exists when “the known facts provide reasonable
grounds or a fair probability that a circumstance exists[.]” Baltimore v.
Commonwealth, 119 S.W.3d 532, 538 (Ky.App. 2003). The existence of the prior
driver did not eliminate the “fair probability” that the drugs to which the dog
alerted were on Boone’s person since he had just driven the vehicle from which the
odor of narcotics emanated. In short, we affirm the trial court’s denial of Boone’s
second motion to suppress.
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Boone next contends the trial court erred by declining to give a
requested jury instruction on giving a peace officer false identifying information as
a lesser-included offense of theft of identity. We agree.
An offense is a lesser-included offense under KRS 505.020(2)(a) if
“[i]t is established by proof of the same or less than all the facts required to
establish the commission of the offense charged[.]” In other words, “if the lesser
offense requires proof of a fact not required to prove the greater offense, then the
lesser offense is not included in the greater offense, but is simply a separate,
uncharged offense.” Colwell v. Commonwealth, 37 S.W.3d 721, 726 (Ky. 2000).
We review claims that a court erred by declining to give a requested jury
instruction for abuse of discretion. Sargent v. Shaffer, 467 S.W.3d 198, 203 (Ky.
2015).
As it pertains to this case, Boone committed the felony offense of
theft of identity of another pursuant to KRS 514.160(1) if he:
knowingly possesse[d] or use[d] any current or former
identifying information of the other person or family
member or ancestor of the other person, such as that
person’s . . . name . . . birth date . . . and any other
information which could be used to identify the person . .
. with the intent to represent that he or she is the other
person for the purpose of:
...
(d) Avoiding detection[.]
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Alternatively, Boone committed the misdemeanor offense of giving a
peace officer false information pursuant to KRS 523.110(1) if he gave:
a false name, address, or date of birth to a peace officer
who has asked for the same in the lawful discharge of his
or her official duties with the intent to mislead the officer
as to his or her identity. The provisions of this section
shall not apply unless the peace officer has first warned
the person whose identification he or she is seeking that
giving a peace officer false identifying information is a
criminal offense.
Other than the requisite warning involved in giving a peace officer
false identifying information, the two offenses are strikingly similar. It is
surprising, therefore, that the parties have not cited, nor have we independently
located, any published authority definitively resolving whether giving a peace
officer false identifying information under similar facts as those at hand may be a
lesser-included offense of theft of identity.
The most potentially relevant published case is Crouch v.
Commonwealth, 323 S.W.3d 668 (Ky. 2010), but we agree with Boone that the
facts and issues here are materially distinguishable. In Crouch, a person gave an
officer an alias and matching social security number. The person was ultimately
convicted of theft of identity and argued that “he should have been prosecuted for
the misdemeanor offense of giving a false name to a police officer instead of the
felony offense of theft of identity.” Id. at 671. Our Supreme Court disagreed.
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First, the Court held that the trial court did not err in refusing to
amend the theft of identity charge to giving a peace officer false identifying
information because “changing the charge against Crouch from the felony offense
of theft of identity to the misdemeanor charge of giving a false name to a peace
officer would have resulted in Crouch being charged with an entirely different
offense.” Id. at 672. The Court also stressed that Crouch could not have been
prosecuted for providing false identifying information to an officer since the
officer had not given Crouch the statutorily mandated warning.
Boone, unlike Crouch, does not argue that the trial court should have
amended the indictment. And Crouch, unlike Boone, did not argue to our Supreme
Court that the trial court should have given a lesser-included offense instruction on
giving false identifying information to a peace officer. Indeed, Crouch had earlier
made that argument but had abandoned it by the time the case wound its way to the
Kentucky Supreme Court. Nonetheless, in dicta, our Supreme Court held that
Crouch was not entitled to the lesser-included offense instruction because the
officer had not issued the requisite warning. Id. at 672 n.6.
Of course, it is unquestioned here that Detective Pope warned Boone.
And that warning - without which Boone could not have been properly convicted
of providing a peace officer with false identifying information - is not required in
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the theft of identity statute. The question thus is whether the warning is an element
of the offense. We determine that it is not.
Generally, elements of a criminal offense mandate what conduct the
defendant must engage in to commit that offense. The warning requirement of
giving false identifying information to a peace officer mandates conduct which a
peace officer must engage in before a defendant may commit that offense - conduct
over which the defendant has utterly no control. Consequently, we conclude that
the warning is a prerequisite, not an element, of giving a police officer false
identifying information.2
Theft of identity and giving false identifying information to a police
officer are so remarkably similar, at least under facts like those at hand, that the
proper course for a trial court is to submit both charges to the jury, which then has
the discretion to determine which (if either) best applies to the defendant’s
conduct. “[T]he trial court’s failure to give a necessary lesser-included offense
instruction cannot be deemed a harmless error.” Commonwealth v. Swift, 237
S.W.3d 193, 196 (Ky. 2007). Therefore, because he was entitled to the requested
2
We note that a previous panel of our Court reached the identical conclusion in Stephenson v.
Commonwealth, No. 2016-CA-000013-MR, 2017 WL 5907976, at *3 (Ky.App. 2017)
(unpublished), which deemed the warning to be “a prerequisite to bringing the charge” rather
than an element of the crime.
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lesser-included offense instruction, we reverse Boone’s conviction for theft of
identity.
As this conviction was the basis for Boone’s being a PFO I and
receiving an enhanced sentence pursuant to that status, we also reverse his PFO I
conviction. We affirm his felony conviction for possession of a controlled
substance, misdemeanor conviction for operating on a suspended license, and
violation for not have an illuminated rear license plate because the failure to give
the lesser-included offense instruction “had no discernible bearing upon [those]
conviction[s].” Jones v. Commonwealth, 237 S.W.3d 153, 160 (Ky. 2007). See
Baker v. Commonwealth, 545 S.W.3d 267, 281 (Ky. 2018) (declining to reverse
other convictions based on an error limited to a tampering with physical evidence
charge).
Because we are reversing Boone’s PFO I conviction and sentence, this
then moots Boone’s unpreserved final argument that he is entitled to palpable error
relief for his PFO I sentence based on the Commonwealth’s having provided
misleading information regarding his parole eligibility. As this error could reoccur
on remand, we caution the Commonwealth that it is improper to provide the jury
with information as to parole eligibility and then mislead the jury by not clarifying
how this eligibility will change based upon conviction as a PFO I.
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For the foregoing reasons, we reverse Kenneth Boone’s convictions
for theft of identity and being a PFO I as imposed by the Fayette Circuit Court and
remand those charges for further proceedings consistent with this Opinion. We
affirm Boone’s convictions and sentences for possession of a controlled substance,
operating on a suspended or revoked license, and not having an illuminated rear
license plate.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Aaron Reed Baker Daniel Cameron
Frankfort, Kentucky Attorney General of Kentucky
Aspen Roberts
Assistant Attorney General
Frankfort, Kentucky
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