RANDOLPH (TERRY S.) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: JULY 29, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-001504-MR
TERRY S. RANDOLPH
v.
APPELLANT
APPEAL FROM MUHLENBERG CIRCUIT COURT
HONORABLE DAVID H. JERNIGAN, JUDGE
ACTION NO. 09-CR-00114
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, LAMBERT AND THOMPSON, JUDGES.
THOMPSON, JUDGE: Terry Randolph was indicted by a Muhlenberg Grand Jury
and charged with one count each of first-degree possession of a controlled
substance methamphetamine, possession of drug paraphernalia, possession of
marijuana, and possession of a controlled substance. Randolph filed a motion to
suppress the evidence seized as a result of the stop of a vehicle based on
information conveyed to the police officer by a citizen. After the motion was
denied, she entered a conditional guilty plea to the charges contained in the
indictment. Following the entry of a judgment and final sentencing, Randolph
appealed.
Randolph and the Commonwealth agree that the circuit court’s
statement of the facts is accurate and, therefore, the material facts are not disputed.
On April 21, 2009, Officer McGehee was on patrol at the Hillside Manor
Apartments in Central City, Kentucky, when an unnamed individual approached
and informed him that three people had stolen a vacuum cleaner from an apartment
porch and placed it in the trunk of their vehicle. The informant pointed out the
vehicle as it was about to exit the parking lot. Officer McGehee then motioned the
vehicle to stop. After the vehicle stopped, Officer McGehee approached the driver
and asked his name as well as the two passengers’ names. Upon hearing the
driver’s name and realizing that the driver was wanted on an outstanding arrest
warrant, the driver was asked to exit the vehicle and placed under arrest. A search
of the driver revealed illegal drugs prompting Officer McGehee to request that
Randolph exit the vehicle.
When Randolph exited the vehicle, Officer McGehee requested to
search a fanny pack she was wearing. Randolph denied consent but, after Officer
McGehee asked if he should be concerned about its contents, she opened the fanny
pack and produced marijuana. She was then placed under arrest. Officer
McGehee’s search of the fanny pack revealed methamphetamine and two syringes.
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At some point during the encounter, another officer arrived at the
complex and questioned the owner of the vacuum cleaner who informed the officer
that the driver of the vehicle had permission to take the vacuum cleaner.
After the discovery of the illegal drugs, Randolph was transported to
the Muhlenberg Detention Center where she was Mirandized. She subsequently
informed Officer McGehee that she had purchased the methamphetamine for $25.
In her motion to suppress, Randolph argued that Officer McGehee
lacked a reasonable suspicion that criminal activity had occurred and that even if a
lawful investigatory stop of the vehicle occurred, she did not consent to the search
of her person or fanny pack. She further argued that her statement to the police
should be suppressed as fruit of the illegal search.
On appeal, Randolph admits that she voluntarily opened and displayed
the contents of her fanny pack and, therefore, the only issue she presents on appeal
is whether the stop of the vehicle in which she was a passenger was lawful. We
begin our analysis with the applicable standard of review.
The standard was aptly stated in Baltimore v. Commonwealth, 119
S.W.3d 532, 539 (Ky.App. 2003):
Kentucky has adopted the standard of review set out
by the United States Supreme Court in Ornelas v. United
States. Under that approach, the decision of the circuit
court on a motion to suppress based on an alleged illegal
search following a hearing is subject to a two-part
analysis. First, factual findings of the court involving
historical facts are conclusive if they are not clearly
erroneous and are supported by substantial evidence.
Second, the ultimate issue of the existence of reasonable
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suspicion or probable cause is a mixed question of law
and fact subject to de novo review. In conducting this
analysis, the reviewing court must give due weight to
inferences drawn from the facts by the trial court and law
enforcement officers and to the circuit court's findings on
the officers' credibility. (footnotes and citations omitted).
Because Randolph and the Commonwealth agree that the circuit court’s findings of
fact are accurate, our review is strictly de novo.
It is a basic premise of Constitutional law that unreasonable searches
and seizures by police officers are prohibited. Adcock v. Commonwealth, 967
S.W.2d 6, 8 (Ky. 1998). Interactions between police and citizens are characterized
as consensual encounters, temporary investigative detentions referred to as Terry
stops, and arrests. The Federal and State Constitutional prohibitions apply only to
the latter two. Baltimore, 119 S.W.3d at 537. In this case, we are concerned with
the parameters of a Terry stop which evolved from the pivotal U.S. Supreme Court
case of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
As Terry and its progeny have been interpreted, to effectuate a legal
Terry stop, the officer must have a reasonable, articulable suspicion that criminal
activity is afoot. In Green v. Commonwealth, 244 S.W.3d 128, 133-134 (Ky.App.
2008), the Court detailed the requisites of a Terry stop:
[T]o justify a stop under Terry v. Ohio, 392 U.S. 1, 88
S.Ct. 1868, 20 L.Ed.2d 889 (1968), the officer must be
able to articulate more than a mere “inchoate and
unparticularized suspicion or ‘hunch’” of criminal
activity. Id. at 27, 88 S.Ct. at 1883. Rather, a
warrantless stop of a vehicle is permissible if the officer
has an “articulable and reasonable suspicion” of criminal
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activity. Creech v. Commonwealth, 812 S.W.2d 162, 163
(Ky.App. 1991).
The objective justification for the officer's actions
must be measured in light of the totality of the
circumstances. See United States v. Sokolow, 490 U.S. 1,
109 S.Ct. 1581, 104 L.Ed.2d 1 (1989); Eldred v.
Commonwealth, 906 S.W.2d 694 (Ky. 1994). When
considering the totality of the circumstances, a reviewing
court should take care not to view the factors upon which
police officers rely to create reasonable suspicion in
isolation. Courts must consider all of the officers'
observations, and give due weight to the inferences and
deductions drawn by trained law enforcement officers.
United States v. Arvizu, 534 U.S. 266, 272–75, 122 S.Ct.
744, 750, 151 L.Ed.2d 740 (2002). See also United
States v. Martin, 289 F.3d 392, 398 (6th Cir. 2002).
Randolph contends that Officer McGehee had no articulable
reasonable suspicion because the tip on which he relied to stop the vehicle was
unreliable and uncorroborated. We have persuasive guidance on this precise issue
by our Supreme Court.
Our Supreme Court has made clear distinctions between anonymous
informants and citizen informants. An anonymous informant is one that provides a
tip without means of personal identification and with whom an officer has no face
to face contact. Because an officer lacks ability to determine the informant’s
credibility, there exists an increased likelihood that the information is given for the
purpose of harassment or vengeance, and corroboration is required. “A truly
anonymous tip must bear some increased indicia of reliability such as an
independent verification before the police may rely on it.” Hampton v.
Commonwealth, 231 S.W.3d 740, 745 (Ky. 2007). The inherent difficulty in
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relying on an anonymous informant was explained in Collins v. Commonwealth,
142 S.W.3d 113, 115 (Ky. 2004):
In order to perform an investigatory stop of an
automobile, there must exist a reasonable and articulable
suspicion that a violation of the law is occurring.
Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391,
1401, 59 L.Ed.2d 660, 673 (1979). Complications arise
when, as here, the information serving as the sole basis of
the officer's suspicion is provided by an anonymous
informant, whose veracity, reputation, and basis of
knowledge cannot be readily assessed. In situations such
as these, we are required to examine the totality of the
circumstances, and to determine whether the tip, once
suitably corroborated, provides sufficient indicia of
reliability to justify an investigatory stop. Alabama v.
White, 496 U.S. 325, 332, 110 S.Ct. 2412, 2417, 110
L.Ed.2d 301, 310 (1990).
In contrast to a truly anonymous informant, a tip provided by a citizen
informant does not suffer the same credibility deficiency. In the latter scenario,
emphasis is placed on the face to face contact between the citizen and an officer,
who has the opportunity to determine the citizen’s credibility. The case often cited
to distinguish the two types of informants is Commonwealth v. Kelly, 180 S.W.3d
474 (Ky. 2005).
In Kelly, two callers identifying themselves as Waffle House
employees called the police stating that a recent patron appeared intoxicated and
drove away. They identified the location of the restaurant, the vehicle and the
suspect. The officer arrived at the restaurant and observed two people pointing to a
vehicle across the street matching the informants’ description. The officer then
followed the vehicle to a nearby hotel and conducted a Terry stop. Id. at 476.
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Our Supreme Court held that the citizen informant’s tip was
sufficiently reliable to justify the stop and explained its reasoning as follows:
In cases involving identifiable informants who could
be subject to criminal liability if it is discovered that the
tip is unfounded or fabricated, such tips are entitled to a
greater “presumption of reliability” as opposed to the tips
of unknown “anonymous” informants (who theoretically
have “nothing to lose”). See Florida v. J.L., 529 U.S.
266, 276, 120 S.Ct. 1375, 1381, 146 L.Ed.2d 254 (2000)
(Kennedy, concurring) (“the ability of the police to trace
the identity of anonymous telephone informants may be a
factor which lends reliability to what, years earlier, might
have been considered unreliable anonymous tips”).
Moreover, the tip in this case is entitled to even greater
deference than it normally might be accorded due to its
status as a “citizen informant” tip. See Gates, supra at
233, 103 S.Ct. at 2330 (“rigorous scrutiny of the basis of
[a citizen informant's] knowledge [is] unnecessary”).
What distinguishes a “citizen informant” tip from other
types of tips is the fact that such tipsters are almost
always bystanders or eyewitness-victims of the alleged
criminal activity. Pasquarille, supra, at 689 (“Thus,
because the informant's account was based on firsthand
observations as opposed to idle rumor or irresponsible
conjecture, we presume that the statements are reliable.”)
(internal quotations and citations omitted); see also,
Gates, supra, at 233–35, 103 S.Ct. 2317 (“[E]ven if we
entertain some doubt as to an informant's motives, his
explicit and detailed description of wrongdoing, along
with a statement that the event was observed firsthand,
entitles his tip to greater weight than might otherwise be
the case.”). “Whereas other informants, who are often
intimately involved with the persons informed upon and
with the illegal conduct at hand, may have personal
reasons for giving shaded or otherwise inaccurate
information to law enforcement officials, such is not true
of bystanders or eyewitness-victims who have no
connection with the accused.” United States v. Phillips,
727 F.2d 392, 397 (5th Cir. 1984) (internal quotations
and citations omitted).
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Id. at 477-478.
In this case, Officer McGehee was approached by a citizen who,
although unidentified, was not anonymous. The officer had face to face contact
with the citizen who could be reasonably identified if needed. Similar to the facts
in Kelly, the informant was able to point directly to the vehicle that was exiting the
apartment complex. Based on the information conveyed and with the ability to
assess the credibility of the information conveyed, Officer McGehee motioned the
vehicle to stop and approached the driver to investigate. Although Randolph
suggests that the alternative and less intrusive approach would have been to
question the owner of vacuum cleaner first, at that point the vehicle, its occupants,
and the alleged stolen property would have departed the complex.
We conclude with the well established law that if the information
given is found to be erroneous, it does not vitiate an otherwise properly conducted
Terry stop. The reasonableness of the officer’s action is determined by the facts
available at the time. Docksteader v. Commonwealth, 802 S.W.2d 149, 150
(Ky.App. 1991). Although it was subsequently determined that the vacuum
cleaner was lawfully taken, it remains that the vehicle was legally stopped and,
upon the arrest of the driver, Randolph was properly asked to exit the vehicle. See
Owens v. Commonwealth, 291 S.W.3d 704 (Ky. 2009), (holding that following the
arrest of the driver, the remaining occupants may be requested to exit the vehicle).
Moreover, Randolph concedes that she voluntarily revealed the drugs in her fanny
pack and voluntarily stated that she had purchased the methamphetamine.
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Based on the foregoing, the judgment of the Muhlenberg Circuit
Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Steven J. Buck
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky
Jack Conway
Attorney General of Kentucky
Jason B. Moore
Assistant Attorney General
Frankfort, Kentucky
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