LLOYD A. PRIDDY v. COMMONWEALTH OF KENTUCKY
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RENDERED: OCTOBER 25, 2002; 10:00 a.m.
TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-001085-MR
LLOYD A. PRIDDY
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE LISABETH HUGHES ABRAMSON, JUDGE
ACTION NO. 99-CR-002681
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
GUDGEL, JOHNSON AND SCHRODER, JUDGES.
JOHNSON, JUDGE: Lloyd A. Priddy has appealed from a judgment of
conviction and sentence entered by the Jefferson Circuit Court on
April 30, 2001, following his conditional plea of guilty to the
charges of illegal possession of a controlled substance in the
first degree,1 illegal possession of drug paraphernalia,2 no
motor vehicle insurance,3 and being a persistent felony offender
1
Kentucky Revised Statutes (KRS) 218A.1415.
2
KRS 218A.500.
3
KRS 304.39-080.
in the second degree (PFO II).4
Having concluded that a critical
finding of fact relied upon by the trial court in denying the
motion to suppress was clearly erroneous, we must reverse and
remand.
This case arose on September 4, 1999, when Officer
Michael Koenig of the Jefferson County Police Department was
responding to a domestic violence call on Third Street in
Louisville, Jefferson County, Kentucky.
While Officer Koenig was
driving along Outer Loop Road en route to the disturbance, he was
waived over by an anonymous person.
The tipster informed Officer
Koenig that a narcotics transaction was occurring in the K-Mart
parking lot at 191 Outer Loop Road “as we spoke.”5
The tipster
told Officer Koenig a narcotics dealer would be selling drugs to
an unknown buyer; the dealer would be a white male approximately
6 feet tall, weighing approximately 150 to 170 pounds, with
curly, shoulder length, black hair and he would be driving a late
1970's, black, Ford, pickup truck with primer on the hood.
After receiving this information, Officer Koenig
proceeded approximately 1/2 mile to the K-Mart parking lot.
As
4
KRS 532.080(2). The judgment of conviction and sentence
erroneously states that Priddy’s sentence was enhanced as a PFO
I. The plea agreement, which was signed by the Assistant
Commonwealth’s Attorney, Officer Koenig, Priddy and his attorney,
calls for amending the PFO I charge to PFO II. The trial court
entered an order on January 30, 2001, approving this amended
charge.
5
This quote was from Officer Koenig’s testimony. “As we
spoke” constituted Officer Koenig’s summary of the time of the
drug sale. It was not a quote from the tipster.
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Officer Koenig drove through the K-Mart parking lot, he observed
a man driving a pickup truck; the man and the truck both fit the
description given by the tipster.
As the truck began to leave
the K-Mart parking lot, Officer Koenig followed the truck,
activated his emergency equipment, and called for a backup unit.
Officer Koenig testified that after he activated his emergency
equipment he observed Priddy “making frantic moves as if he was
trying to conceal something.”
Priddy immediately stopped his
pickup truck; but Officer Koenig waited for the backup unit to
arrive before he exited his patrol car.
Officer Steve Bailey
arrived in only ten to 20 seconds.
Officer Koenig and Officer Bailey approached Priddy's
vehicle and asked Priddy to exit the vehicle.
Upon Priddy
exiting the vehicle, the officers noticed a large bulge in
Priddy's front pants' pocket, in the groin area.
Officer Bailey
asked Priddy about the bulge, and Priddy advised that it was a
crack pipe.
Priddy was escorted by both police officers to a
nearby grassy area where Priddy unbuttoned his pants and gave the
officers the crack pipe, which was wrapped in a red cloth.
Officer Bailey then asked Priddy if he had any other drugs on
him, and Priddy stated that he had some crank.6
After the
officers examined the crack pipe and observed cocaine residue,
they arrested Priddy and informed him of his Miranda7 rights.
6
“Crank” is a slang term for the drug methamphetamine.
7
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d
(continued...)
-3-
Priddy was then transported to the police station where a
Marlboro cigarette box containing a large piece of crank was
seized.
On November 3, 1999, Priddy was indicted by a Jefferson
County grand jury for trafficking in methamphetamine in violation
of KRS 218A.1435, a Class C felony; illegal possession of drug
paraphernalia; no motor vehicle insurance; and being a persistent
felony offender in the first degree (PFO I).8
Priddy’s motion to
suppress the contraband as evidence was denied by the trial court
at the conclusion of a hearing held on November 17, 2000.
Priddy
subsequently entered a conditional guilty plea to the charges as
amended and a judgment of conviction and sentence was entered on
April 30, 2001.
Priddy received a prison sentence of one year on
his conviction for illegal possession of a controlled substance
in the first degree and 12 months on his conviction for illegal
possession of drug paraphernalia, with the sentences to run
concurrently.
The one-year felony sentence was enhanced to five
years as a result of the PFO II conviction.
Priddy was also
fined $1,000.00 on his conviction for not having motor vehicle
insurance.
This appeal followed.
Priddy claims that the trial court erred by denying his
motion to suppress because his constitutional rights under the
Fourth Amendment to the United States Constitution and Section 10
7
(...continued)
694 (1966).
8
KRS 532.080(3).
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of the Kentucky Constitution were violated when the police
officers searched him without having reasonable articulable
suspicion to support the investigatory stop of his vehicle and
that the search exceeded the narrow scope of a protective search
as authorized by Terry v. Ohio.9
10
Priddy argues that the police
did not have reasonable articulable suspicion to justify an
investigatory stop of him because the anonymous tip was so
lacking in specific details and predictive information that it
failed to rise to the level of reasonable suspicion.
This Court recently addressed this issue in Stewart v.
Commonwealth,11 as follows:
Generally, the police may not search an
individual without a warrant unless it can be
shown that the search falls within one of the
recognized exceptions to the rule. The
recognized exceptions include: (1) a
consensual search; (2) a plain view search;
(3) a search incident to an arrest; (4) a
probable cause search; (5) a search based on
exigent circumstances; and (6) an inventory
search. However, in Terry v. Ohio, the
United States Supreme Court balanced
individual liberty interests and the public
safety interest in recognizing a limited
exception to the warrant requirement by
sanctioning both investigatory stops and
9
392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
10
Priddy also argues that his right to not incriminate
himself under the Fifth Amendment to the United States
Constitution and Section 11 of the Kentucky Constitution was
violated when he was questioned by the police without being
advised of his rights. However, this issue was not raised before
the trial court and it was not preserved for appellate review
pursuant to the conditional guilty plea. See Kentucky Rules of
Criminal Procedure (RCr) 8.09.
11
Ky.App., 44 S.W.3d 376, 379-80 (2000).
-5-
restricted pat-down searches of suspects.
Police officers may briefly detain an
individual on the street, even though there
is no probable cause to arrest him, if there
is a reasonable suspicion that criminal
activity is afoot. The existence of a
reasonable articulable suspicion or probable
cause is based on an analysis of all the
facts and the totality of the circumstances.
The standard for reasonable suspicion is less
demanding than the grounds for probable
cause.
Our standard of review of a circuit
court’s decision on a suppression motion
following a hearing is twofold. First, the
factual findings of the court are conclusive
if they are supported by substantial
evidence. The second prong involves a de
novo review to determine whether the court’s
decision is correct as a matter of law.
Kentucky has adopted the standard of review
approach articulated by the Supreme Court in
Ornelas v. United States,12 where the Court
said that:
[A]s a general matter
determinations of reasonable
suspicion and probable cause
should be reviewed de novo on
appeal. Having said this, we
hasten to point out that a
reviewing court should take
care both to review findings of
historical fact only for clear
error and to give due weight to
inferences drawn from those facts
by resident judges and local law
enforcement officers [citations
omitted].13
Stewart involved a situation similar to the case before
us, but in Stewart this Court affirmed the trial court’s
determination that the specific details and predictive
12
517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996).
13
Stewart, supra at 379-80.
-6-
information provided by the tipster and corroborated by the
police “exhibited sufficient indicia of reliability to satisfy
the lesser reasonable suspicion standard to justify an
investigatory stop.”14
The tipster, an anonymous telephone
caller, had informed the police that Stewart and a female
companion, Barbara Grubbs, had just purchased crack cocaine and
that they would be arriving in Cadiz at approximately 10:00 p.m.
The caller stated that the pair would be traveling in Grubb's
vehicle from the direction of Hopkinsville, and that Stewart
would be carrying the cocaine in his mouth.
The police spotted Grubb's vehicle traveling westward
from the direction of Hopkinsville into Cadiz on Main Street.
Shortly after the police officers began to follow the suspects,
they pulled off the roadway into the parking lot of a convenience
grocery store.
The officers watched Stewart exit the car and
walk across the street to a motel.
The officers then drove their
vehicle into the parking lot of the motel and asked Stewart to
approach them.
One of the officers asked Stewart if he could
search him, but Stewart refused to consent.
An officer then
asked Stewart what he had in his waistband.
Stewart pulled out
an object, and as he handed it to the officer, he told him that
it was his pill bottle.
The officer then asked Stewart to open
his mouth, and he complied.
Because the officer had some
difficulty at first seeing inside Stewart's mouth, he asked him
14
Stewart, supra at 382.
-7-
to open his mouth again.
This time the officer saw an object he
believed to be crack cocaine sticking to the roof of Stewart's
mouth, but before the officer could retrieve it, Stewart had
swallowed the object.
object was cocaine.
Stewart later told the officers that the
The police officers arrested Stewart on
several drug charges; and he eventually pled guilty pursuant to a
conditional plea to three drug possession charges.
Stewart argued on appeal that the circuit court had
erred by denying his motion to suppress because the search was
conducted without reasonable suspicion or probable cause and that
it exceeded the narrow scope for a protective search.
In
affirming Stewart’s conviction, this Court concluded that a
substantial portion of the information supplied by the anonymous
caller was verified by the personal observations of the police
officers so as to create a reasonable suspicion that the suspect
was in possession of illegal drugs.
In its decision this Court
thoroughly discussed the differences in the two leading United
States Supreme Court cases of Alabama v. White,15 and Florida v.
J. L.16
The case before us also turns on the application of
White and J. L.
In J. L., the United States Supreme Court in
unanimously holding the search to be unconstitutional discussed
the lack of predictive information in that case as compared to
15
496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990).
16
529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000).
-8-
the police officers’ corroboration of predictive information in
White.
The Court stated:
In the instant case, the officers’
suspicion that J. L. was carrying a weapon
arose not from any observations of their own
but solely from a call made from an unknown
location by an unknown caller. Unlike a tip
from a known informant whose reputation can
be assessed and who can be held responsible
if her allegations turn out to be fabricated,
see Adams v. Williams, 407 U.S. 143, 146-147,
32 L.Ed.2d 612, 92 S.Ct. 1921 (1972), “an
anonymous tip alone seldom demonstrates the
informant’s basis of knowledge or veracity,”
Alabama v. White, 496 U.S., at 329, 110
L.Ed.2d 301, 110 S.Ct. 2412. As we have
recognized, however, there are situations in
which an anonymous tip, suitably
corroborated, exhibits “sufficient indicia of
reliability to provide reasonable suspicion
to make the investigatory stop.” Id., at
327, 110 L.Ed.2d 301, 110 S.Ct. 2412. The
question we here confront is whether the tip
pointing to J. L. had those indicia of
reliability.
In White, the police received an
anonymous tip asserting that a woman was
carrying cocaine and predicting that she
would leave an apartment building at a
specified time, get into a car matching a
particular description, and drive to a named
motel. Ibid. Standing alone, the tip would
not have justified a Terry stop. 496 U.S.,
at 329, 20 L.Ed.2d 889, 110 S.Ct. 2412. Only
after police observation showed that the
informant had accurately predicted the
woman’s movements, we explained, did it
become reasonable to think the tipster had
inside knowledge about the suspect and
therefore to credit his assertion about the
cocaine. Id., at 332, 20 L.Ed.2d 889, 110
S.Ct. 2412. Although the Court held that the
suspicion in White became reasonable after
police surveillance, we regarded the case as
borderline. Knowledge about a person’s
future movements indicates some familiarity
with that person’s affairs, but having such
knowledge does not necessarily imply that the
-9-
informant knows, in particular, whether that
person is carrying hidden contraband. We
accordingly classified White as a “close
case.” Ibid.
The tip in the instant case lacked the
moderate indicia of reliability present in
White and essential to the Court’s decision
in that case. The anonymous call concerning
J. L. provided no predictive information and
therefore left the police without means to
test the informant’s knowledge or
credibility. That the allegation about the
gun turned out to be correct does not suggest
that the officers, prior to the frisks, had a
reasonable basis for suspecting J. L. of
engaging in unlawful conduct: The
reasonableness of official suspicion must be
measured by what the officers knew before
they conducted their search. All the police
had to go on in this case was the bare report
of an unknown, unaccountable informant who
neither explained how he knew about the gun
nor supplied any basis for believing he had
inside information about J. L. If White was
a close case on the reliability of anonymous
tips, this one surely falls on the other side
of the line.
Florida contends that the tip was
reliable because its description of the
suspect’s visible attributes proved accurate:
There really was a young black male wearing a
plaid shirt at the bus stop. Brief for
Petitioner 20-21. The United States as
amicus curiae makes a similar argument,
proposing that a stop and frisk should be
permitted “when (1) an anonymous tip provides
a description of a particular person at a
particular location illegally carrying a
concealed firearm, (2) police promptly verify
the pertinent details of the tip except the
existence of the firearm, and (3) there are
no factors that cast doubt on the reliability
of the tip . . . .” Brief for United States
16. These contentions misapprehended the
reliability needed for a tip to justify a
Terry stop.
An accurate description of a subject’s
readily observable location and appearance is
-10-
of course reliable in this limited sense: It
will help the police correctly identify the
person whom the tipster means to accuse.
Such a tip, however, does not show that the
tipster has knowledge of concealed criminal
activity. The reasonable suspicion here at
issue requires that a tip be reliable in its
assertion of illegality, not just in its
tendency to identify a determinate person.
Cf. 4 W. LaFave, Search and Seizure § 9.4(h),
p. 213 (3d ed. 1996) (distinguishing
reliability as to identification, which is
often important in other criminal law
contexts, from reliability as to the
likelihood of criminal activity, which is
central in anonymous-tip cases).17
In the case sub judice, the trial court did not enter
any written findings of fact in support of its order denying the
motion to suppress, but instead it relied upon its oral findings
from the bench.
However, there was no evidence of record to
support one of the trial court’s critical findings of fact.
The
trial judge in distinguishing this case from J. L., erroneously
stated:
This case has more detail from the
beginning. First, it involves a vehicle that
was carefully described as a late 70's black
Ford truck, primer on the hood. There was a
description of the male as a white male
subject, six feet tall, I think 150 to 170
pounds is what you said, I didn’t get all the
poundage written down, but shoulder length
hair. That there would be a narcotics
transaction at the K-Mart parking lot at 191
Outer Loop. So this officer goes and is on
the Winn-Dixie parking lot and sees a vehicle
matching that description and also sees him
leaving the location after meeting up with
another subject. So by his own observation
he saw something that could indeed be the
narcotics transaction. I think that had he
17
J. L., 529 U.S. at 270-72, 146 L.Ed.2d at 260-61.
-11-
driven to the parking lot and simply seen the
truck, even though its more detailed that it
was in the Supreme Court case of Florida v.
J. L., I might be inclined to agree with you
Mr. Conkin if he just saw the truck and
followed the truck and stopped, but his
testimony was that he observed him leaving
the location after he had met up with another
person, and then he followed him and stopped
him and I think that that was appropriate
[emphases added].
The above factual finding that Officer Koenig observed
Priddy “leaving the location after meeting up with another
subject” was clearly erroneous.
The Commonwealth has conceded as
much in its brief when it states that Officer Koenig not only
“testified that he did not see any narcotics being sold” but also
that “he did not testify one way or the other about appellant
meeting up with another subject.”
Simply put, if Officer Koenig
did not testify that Priddy met with another person, then there
was not substantial evidence in the record to support the trial
court’s factual finding that such a meeting occurred, and such a
finding was clearly erroneous.18
Since it is obvious from the
18
The trial court made reference to a police citation that
had been filed in the record as support for its finding that
Officer Koenig saw Priddy “leaving the location after meeting up
with another subject.” Unfortunately, the citation was not filed
as an exhibit at the suppression hearing and Officer Koenig did
not testify concerning the citation’s reference to a meeting.
The citation, which apparently was completed and signed by
Officer Koenig, did make the following reference to a meeting,
“Officer went to above location and subject matching description
was just leaving that location after meeting up with another
subject.” The citation made no further reference to this other
subject such as a description of the other subject or the vehicle
the subject was using or if any questions were asked Priddy
concerning the identity of the other subject and the purpose of
their meeting. The information concerning the other subject that
(continued...)
-12-
trial court’s oral findings quoted above that the trial court
relied heavily on this clearly erroneous factual finding in
reaching its legal conclusion, we must hold that the trial court
erred by ruling that based upon an analysis of all the facts and
the totality of the circumstances that there was a reasonable
articulable suspicion that criminal activity was afoot.
Without Priddy having met with another person in the
parking lot where it would have been easy for a drug transaction
to have occurred, the remaining facts in this case fail to
support a reasonable articulable suspicion that a drug
transaction was about to occur or had just occurred.
The
remaining facts consist of nothing more than a detailed
description of Priddy and his vehicle at the K-Mart parking lot.
These facts did not constitute the type of specific details and
predictive information corroborated by the police that exhibited
sufficient indicia of reliability to constitute reasonable
articulable suspicion sufficient to justify an investigatory
stop.
Without Priddy having actually met with a potential drug
buyer in the parking lot, this case very well could have involved
18
(...continued)
was written on the citation raises more questions than it
answers. In the Commonwealth’s response to the order of
discovery, the Assistant Commonwealth’s Attorney in providing the
bill of particulars pursuant to RCr 6.22 and James v.
Commonwealth, Ky., 482 S.W.2d 92 (1972), included specific
details of the date, time, and location of the alleged offense
including many of the details provided by the tipster, the
actions taken by Officers Koenig and Bailey, the evidence seized,
and the names of all witnesses. Conspicuously absent from these
details is any reference to Priddy “meeting up with another
subject.”
-13-
nothing more than an unknown person telling the police of the
detailed description of a man who had been shopping at K-Mart and
the vehicle he was using.
As the trial court acknowledged in its
findings, a critical detail in support of Officer Koenig having
reasonable articulable suspicion that a drug sale had occurred at
the K-Mart parking lot was the suspected drug dealer meeting with
a potential buyer; without the meeting the anonymous tip lacked
the specific detail and predictive information sufficient to
support a reasonable articulable suspicion that a drug
transaction had occurred.
Accordingly, based on the evidence
presented at the suppression hearing, we must reverse the trial
court’s denial of the motion to suppress since the case before us
is more similar to J. L. than it is to White or Stewart.
To
paraphrase the United States Supreme Court in J. L., the case at
bar surely falls on the J. L. side of the line.
For the foregoing reasons, the judgment of the
Jefferson Circuit Court is reversed and this matter is remanded
to allow Priddy to withdraw his guilty plea and for entry of an
order suppressing the evidence seized pursuant to the
investigatory stop.
ALL CONCUR.
-14-
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Dennis Stutsman
Frankfort, Kentucky
Albert B. Chandler, III
Attorney General
Janine Coy Bowden
Assistant Attorney General
Frankfort, Kentucky
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