COREY MALONE v. COMMONWEALTH OF KENTUCKY
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RENDERED: July 13, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-001332-MR
COREY MALONE
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE ANN O'MALLEY SHAKE, JUDGE
ACTION NO. 99-CR-002692
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
KNOPF, SCHRODER, AND TACKETT, JUDGES.
SCHRODER, JUDGE:
Appellant, Corey Malone, appeals from his
conviction of illegal possession of a controlled substance in the
first degree and carrying a concealed weapon, pursuant to a
conditional guilty plea reserving the right to appeal the trial
court’s denial of a suppression motion.
Having determined that
the police roadblock at issue had the constitutional purpose of
checking driver’s license, registration, and insurance, and not
the unconstitutional purpose of general crime control, we affirm.
A summary of the suppression hearing testimony is as
follows.
On September 9, 1999, a police roadblock was set up at
16th and Oak in Louisville, Kentucky.
Louisville police officer
Ozzie Gibson (Sgt. Gibson) testified that every car was stopped
at the roadblock, and checked for driver’s license, proof of
insurance, and registration.
If these documents were produced,
the car was sent on its way.
If these documents were not
produced, or if Sgt. Gibson observed any other signs of illegal
activity, the car was directed to pull over to the side of the
road where other officers would check further.
A car driven by
Cristobal Colon (Colon), in which appellant was the only
passenger, was stopped at the roadblock.
Sgt. Gibson testified
that he detected an odor of marijuana from Colon’s car, and
therefore did not ask for a license, but instructed Colon to pull
over to the side.
Sgt. Gibson then called Officer Jason Lainhart
over and told him he smelled marijuana.
Officer Lainhart testified that his duties in the
roadblock were to address any vehicles that had problems or
violations of the law.
Lainhart testified that as he approached
the passenger side of Colon’s car, he smelled marijuana coming
from the passenger side window, which was down.
Lainhart
testified that appellant reached under the seat, then Lainhart
pushed him back against the seat, then appellant reached under
the seat again, at which point Lainhart removed appellant from
the car.
Lainhart then handcuffed appellant and patted him down
for weapons, finding a rock of crack cocaine in appellant’s left
sock.
Appellant was placed under arrest, the vehicle searched,
and an automatic handgun found under the front passenger seat.
Cristobal Colon, the driver and owner of the car,
testified that upon approaching the roadblock, he was told to
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stop and was immediately “waved” over to the side of the road, at
which time his window was still up.
According to Colon, he
lowered his window as an officer approached the car, and then the
officer told him to step out of the car.
Colon got out of the
car, after which he was handcuffed and told he was being charged
with DUI.
Colon testified that the officer said he assumed Colon
had been drinking because he saw a cup containing alcohol in the
car, and also said that he smelled marijuana.
were conducted.
No sobriety tests
Colon stated that he asked for a breathalyzer
test, but the officer refused do so.
A breathalyzer test
conducted later at the police station registered 0.00.
Colon
testified that he had a valid driver’s license, insurance, and
registration, but was never asked for them.
Colon stated that he
had not been smoking marijuana.
Appellant testified that the officers at the roadblock
did not talk to him or Colon about driver’s licenses,
registration, or insurance, nor did they tell him why he was
supposed to get out of the car or say anything about marijuana.
Appellant testified that he and Colon had not been smoking
marijuana and that he did not reach under the seat.
Appellant
further stated that Colon had not rolled down his window until
after they had been pulled off to the side of the road.
Appellant testified that he (appellant) had been drinking, but
that the officers would not have been able to observe that prior
to the stop because the car had tinted windows.
On November 3, 1999, appellant was indicted by the
Jefferson County Grand Jury on one count of illegal possession of
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a controlled substance in the first degree (cocaine) while in
possession of a firearm, and one count of carrying a concealed
deadly weapon.
On March 20, 2000, appellant filed a motion to
suppress the evidence seized at the roadblock (cocaine and gun).
The court held a suppression hearing on April 11, 2000.
On
April 12, 2000, appellant entered a conditional guilty plea to
illegal possession of a controlled substance in the first degree
(cocaine) and carrying a concealed deadly weapon, reserving the
right to appeal the court’s ruling on the motion to suppress. On
April 17, 2000, the court entered an order denying the
suppression motion.
This appeal followed.
On appeal, appellant argues that the trial court erred
in overruling his motion to suppress as the evidence was seized
as a result of an unconstitutional vehicle stop.
Appellant
contends that the roadblock was constitutionally deficient, as
the officer’s purpose, to look for illegal activity, was
unconstitutionally broad and permitted the exercise of
unconstrained discretion by the officers to single out
individuals without adequate government purpose.
Appellant
contends that, in reality, the officers were more likely than not
attempting to detect drugs at the roadblock, using the facade of
checking for license, registration, and proof of insurance.
A motorist who has been stopped at a police checkpoint
has been seized within the meaning of the Fourth Amendment.
United States v. Martinez-Fuerte, 428 U.S. 543, 556, 96 S. Ct.
3074, 3082, 49 L. Ed. 2d 1116 (1976); Michigan Dept. of State
Police v. Sitz, 496 U.S. 444, 450, 110 S. Ct. 2481, 2485, 110 L.
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Ed. 2d 412 (1990).
"In order for a checkpoint seizure to satisfy
the constitutional requirements of the Fourth Amendment, it must
be reasonable under the circumstances."
United States v.
Huguenin, 154 F.3d 547, 551 (6th Cir. 1998), citing Whren v.
United States, 517 U.S. 806, 809, 116 S. Ct. 1769, 135 L. Ed. 2d
89 (1996).
Whether a particular checkpoint seizure is reasonable
is determined by the balancing test established in Brown v.
Texas, 443 U.S. 47, 50-51, 99 S. Ct. 2637, 61 L. Ed. 2d 357
(1979), which weighs the "gravity of the public concerns served
by the seizure, the degree to which the seizure advances the
public interest, and the severity of the interference with
individual liberty."
Huguenin, 154 F.3d at 551-552.
Applying this balancing analysis, the Supreme
Court has upheld the constitutionality of
government checkpoints set up to detect
drunken drivers, Sitz, 496 U.S. at 444, and
illegal immigrants, Martinez-Fuerte, 428 U.S.
at 543, as long as they involve no more than
an “initial stop . . . and the associated
preliminary questioning and observation by
checkpoint officers.” Sitz, 496 U.S. at 450451. In concluding that these checkpoint
stops do not violate the Fourth Amendment
even though the officers do not have probable
cause or a warrant for the seizure, the
Supreme Court has focused on the lack of
discretion afforded the individual officers,
the standardized procedures employed, and the
minimal intrusion imposed on motorists. Id.
at 453-54.
Id. at 552.
In Delaware v. Prouse, 440 U.S. 648, 99 S. Ct. 1391, 59
L. Ed. 2d 660 (1979), the United States Supreme Court held
unconstitutional a random stop of a vehicle for a spot check of
the driver’s license and registration, made without probable
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cause or reasonable suspicion of illegal activity.
The Court
stated:
When there is not probable cause to believe
that a driver is violating any one of the
multitude of applicable traffic and equipment
regulations [Footnote omitted.] — or other
articulable basis amounting to reasonable
suspicion that the driver is unlicensed or
his vehicle unregistered — we cannot conceive
of any legitimate basis upon which a
patrolman could decide that stopping a
particular driver for a spot check would be
more productive than stopping any other
driver. This kind of standardless and
unconstrained discretion is the evil the
Court has discerned when in previous cases it
has insisted that the discretion of the
official in the field be circumscribed, at
least to some extent. [Citations omitted.]
Prouse, 440 U.S. at 661.
However, the Prouse Court suggested
that a roadblock in which all oncoming traffic was questioned for
the purpose of checking driver’s licenses and vehicles would be
constitutionally permissible, recognizing a state’s "vital
interest in ensuring that only those qualified to do so are
permitted to operate motor vehicles, that these vehicles are fit
for safe operation, and hence that licensing, registration, and
vehicle inspection requirements are being observed.”
Id. at 658;
See also Commonwealth v. Mitchell, Ky., 355 S.W.2d 686 (1962)
(Holding that systematic and indiscriminate stopping of all motor
traffic at a police roadblock for the good faith purpose of
inspecting driver’s licenses was constitutional.)
The United States Supreme Court recently revisited the
issue of police roadblocks, holding that a police roadblock for
the purpose of general crime control is unconstitutional.
City
of Indianapolis v. Edmond, 531 U.S. 32, 121 S. Ct. 447, 148 L.
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Ed. 2d 333 (2000).1
In Edmond, the police set up checkpoints on
Indianapolis roads for the purpose of interdicting illegal
narcotics.
A predetermined number of vehicles were stopped at
each location, and, pursuant to written directives, the officers
had no discretion to stop a vehicle out of sequence, were
required to conduct each stop in the same manner until
particularized suspicion developed, and were permitted to conduct
a search only by consent or based upon the appropriate level of
particularized suspicion.
Edmond, 121 S. Ct. at 450.
An officer
would inform the driver that he was being stopped briefly at a
drug checkpoint, and ask the driver to produce a license and
registration.
The officer would look for signs of impairment,
conduct an open-view examination of the vehicle from the outside,
and a drug sniffing dog would walk around the outside of each
stopped vehicle.
Id. at 450-451.
In invalidating the narcotics
checkpoint as one having the unconstitutional purpose of general
crime control, the Court stated:
We have never approved a checkpoint program
whose primary purpose was to detect evidence
of ordinary criminal wrongdoing. Rather, our
checkpoint cases have recognized only limited
exceptions to the general rule that a seizure
must be accompanied by some measure of
individualized suspicion. We suggested in
Prouse that we would not credit the "general
interest in crime control" as justification
for a regime of suspicionless stops. 440
U.S. at 659, n. 18. Consistent with this
suggestion, each of the checkpoint programs
that we have approved was designed primarily
to serve purposes closely related to the
problems of policing the border or the
1
We note that appellant’s brief was filed November 8,
2000. Edmond was decided by the United States Supreme Court on
November 28, 2000.
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necessity of ensuring roadway safety.
Because the primary purpose of the
Indianapolis narcotics checkpoint program is
to uncover evidence of ordinary criminal
wrongdoing, the program contravenes the
Fourth Amendment.
. . . .
We decline to suspend the usual requirement
of individualized suspicion where the police
seek to employ a checkpoint primarily for the
ordinary enterprise of investigating crimes.
We cannot sanction stops justified only by
the generalized and ever-present possibility
that interrogation and inspection may reveal
that any given motorist has committed some
crime.
Id. at 454-455.
The Supreme Court reiterated, however, that a
properly conducted license checkpoint, as discussed in Prouse,
would be constitutionally permissible, stating:
It goes without saying that our holding today
does nothing to alter the constitutional
status of the sobriety and border checkpoints
that we approved in Sitz and Martinez-Fuerte,
or of the type of traffic checkpoint that we
suggested would be lawful in Prouse. The
constitutionality of such programs still
depends on a balancing of the competing
interests at stake and the effectiveness of
the program. [Citations omitted.] When law
enforcement authorities pursue primarily
general crime control purposes at checkpoints
. . . , however, stops can only be justified
by some quantum of individualized suspicion.
Id. at 457.
The evidence available to this court indicates that the
roadblock at issue had the constitutional purpose of license and
vehicle check.
Id; Prouse, 440 U.S. 648.
Although Sgt. Gibson
first testified that the purposes of the roadblock were to check
cars for license, registration, and proof of insurance, or “any
illegal activity that I would see right there", he later
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clarified in his testimony that the purpose of the roadblock was
to check for license, registration, and insurance, but that if he
saw anything which gave him probable cause to suspect illegal
activity, then the car would be investigated further.
Such
action does not transform the constitutional purpose of license
and vehicle check into the unconstitutional purpose of general
crime control.
Police officers may "act appropriately upon
information that they properly learn during a checkpoint stop
justified by a lawful primary purpose, even where such action may
result in the arrest of a motorist for an offense unrelated to
that purpose."
Edmond, 121 S. Ct. at 457.
Hence, the officer’s
were not required to ignore the smell of marijuana.
Cooper v.
Commonwealth, Ky. App., 577 S.W.2d 34 (1979), overruled on other
grounds by Mash v. Commonwealth, Ky., 769 S.W.2d 42 (1989);
Richardson v. Commonwealth, Ky. App., 975 S.W.2d 932 (1998).
Further, we believe Sgt. Gibson’s testimony provided substantial
evidence to support the trial court’s finding that every car was
being stopped at the checkpoint, hence, the “unconstrained
discretion” held unconstitutional in Prouse was not present at
the checkpoint.
See Kinslow v. Commonwealth, Ky. App., 660
S.W.2d 677 (1983); RCr 9.78.
Having determined that the
roadblock had the constitutional purpose of license and vehicle
check, and was conducted in a constitutional manner, we conclude
that the trial court did not err in denying the motion to
suppress.2
2
We note that appellant’s brief contests only the
constitutionality of the police roadblock, and not the subsequent
(continued...)
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For the aforementioned reasons, the judgment of the
Jefferson Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Kim Brooks
Covington, Kentucky
A. B. Chandler, III
Attorney General
Perry T. Ryan
Assistant Attorney General
Frankfort, Kentucky
2
(...continued)
search of appellant’s person or vehicle, which we nevertheless
conclude were proper. Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868,
20 L. Ed. 2d 889 (1968); Commonwealth v. Ramsey, Ky., 744 S.W.2d
418 (1987).
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