Commonwealth v. Jones

KENTUCKY, COMMONWEALTH OF

Appellant, JONES, Appellee.

Charles

No. 2004-SC-001017-DG. of Kentucky. 22, 2006.

Nov.

As Dec. Corrected

Rehearing April Denied Stumbo,

Gregory D. Esq., Attorney Harned, Kentucky, General of Michael L. General, Esq., Attorney Assistant Office of Frankfort, Criminal Appeals, Counsel for Appellant. Dupree, Esq.,

Shannon Assistant Public Advocate, Advocacy, Department of Public Advocate, May, Euva D. Assistant Public Division, Appellate Department of Public Frankfort, Advocacy, Appel- Counsel for lee.

Opinion of the Court Justice MINTON. granted

We the Commonwealth of Ken- tucky’s motion discretionary review of decision, of Appeals’s which held pat-down that a search of Charles Jones exceeded proper “plain bounds exception to the Fourth Amend- feel” requirement. ment’s warrant Because the incriminating nature of thе contents of a pill produced pants bottle from Jones’s apparent was not until the bot- pocket, agree tle was removed from the and, thus, affirm. struggle, Teagle nearby ditch. After a

I. FACTS & PROCEDURAL HISTORY. arrested Jones. Teagle arrested Jones and Officer John after read- suppression hearing, At the first-degree possession him charged and into the ing Teagle’s report record substance, with tampering of a controlled the facts of the making comments about evidence, resisting and arrest. physical Jones, report- as other against case as well pretrial suppress a motion to Jones filed cases, trial court an- plain fеel the ed by Teagle before the the evidence seized suppress motion to nounced that Jones’s contending that the and sei- arrest called witnesses was denied. Neither side fall the feel ex- zure did not within impor- More argument. made oral nor hearing, At both ception. suppression videotape tantly, a close review acquiesced and Jones the Commonwealth hearing reveals that al- suppression that there suggestion in the trial court’s spoke about though the trial court Teagle call as a live witness

was no need to thirty for over feel and about Jones’s case testimony be in accor- because his would minutes, any the trial court never made only report. with his So the dance written findings support its denial Jones’s from this simply in the record derive facts did not later And the trial court motion. report. containing findings. order issue written Teagle went to According report, emergency an Jones’s residence to serve was de- suppress After his motion to (EPO) order on Jones. When protective nied, guilty entered a conditional Jones arrived, leaning a man into the he he saw him. charges against plea to all of the window of a vehicle. The driver’s side a maxi- ultimately sentenced to Jones was away Teagle. he noticed man walked when for the year рrison each mum of one approach. him to and to Teagle stop asked substance of a controlled possession request, kept walking ignored Teagle’s He physical with charge tampering and the resi- away, attempted to enter Jones’s and months for charge, and to twelve evidence door of Teagle put his hand on the dence. posses- charge. The resisting arrest closing. The keep it from the residence sentence substance sion of a controlled and, porch man returned to the front then evidence tampering physical with and the asked, himself as Charles when identified be served con- orderеd to sentences were informed Jones that Teagle Jones. then but concurrent- secutively with each other him, an he was there to serve EPO sentence, for a resisting arrest ly bulge Teagle which time noticed of a maximum of total effective sentence Teagle pants pocket. front right Jones’s Additionally, years’ imprisonment. ‍​‌‌​‌‌‌‌​‌​‌‌​​​‌​‌‌​​‌​​‌​‌​​‌​‌​‌​‌‌‌‌​​​​​​​‌‍two pocket and what was asked Jones ordered to be two-year sentence was Because the replied, “nothing.” Jones consecutively one-year sen- served his that Jones had assaulted EPO stated of- for an unrelated received tence Jones pro- made a handgun, Teagle wife with to thе Court appealed Jones then fense. bulge The felt pat tective down of Jones. the trial court contending that Appeals Teagle medicine bottle. prescription like a suppress. his motion to by denying erred remove it from the “asked” Jones to then of the Court of panel A divided reluctantly did so. pocket, and Jones majority found that The reversed. to see the bot- Teagle asked Jones When pat when he conducted properly acted tle, porch; opened off the stepped Jones the EPO stated of Jones because contents, down bottle; which flung- its handgun against his had used a into a that Jones Oxycontin рills, be turned out to evidentiary majority hearing conduct an outside wife. But the concluded be- immediately apparent jury cause it was not and at the conclusion presence of the pill bottle in Jones’s contained findings into record thereof shall enter contraband, Teagle permissi- exceeded fact raised resolving the essential issues of scope Terry1 stop ble of a and frisk when objection necessary by the motion or he ordered Jones to remove the bottle reviewing support ruling.” When pocket. opined his dissent sup- that decides a motion to order Teagle’s search of Jones was a valid war- press, findings the trial court’s of fact are rantless search under the they “supported by if are sub- “conclusive” fact Despite circumstances. facts, the Using stantial evidence.”3 those issue of whether Jones consented to the a de novo reviewing court then conducts argued upon search was neither nor ruled application review of the trial court’s of the court,2 by the trial the dissent also con- law to those facts to determine whether cluded that the warrantless search of of law.4 the decision is correct as a matter proper Jones was because Jones had con- suppression hearing The truncated in hаving sented to the search virtue of hampers Although this case our review. Teagle’s request assented to to remove the parties or the Court mentioned pocket. granted bottle from his We Appeals, suppression our review of the discretionary Commonwealth’s motion for a dearth hearing pre- revealed of evidence review. sented about the search. There were no argument live called and no oral witnesses II. ANALYSIS. presented. importantly, although Most argues Commonwealth before this spoke length the trial court about the (a) Court that of the circum- in presented Fourth Amendment issues provided Teagle probable stances cause to perceived to be Jones’s case and what believe that the pill bottle contained con- the similarities and dissimilarities to re- traband, though even Teagle could not decisions, ported plain feel the trial court alone; readily ascertain that fact touch orally any findings, failed to make either (b) or, alternative, in the the warrantless writing, required by or in as is RCr 9.78. search was valid because Jones consented Rather, the trial court ended its discourse disagree to it. We with the Common- by stating suppress that the motion to argument, wealth’s first and we find the court has ex- denied “for the reasons argument pre- thе second has not been ruling from the bench.” pressed this served for our review. requires a trial court to RCr 9.78 A. Standard of Review. re “evidentiary hearing” hold an before Therefore, solving suppress. a motion to suppress governed Motions to are by Kentucky Rules of both Jones and the Commonwealth had Criminal Procedure (RCr) for or provides right 9.78. That rule that a to introduce evidence facing court But has suppress against motion to “shall Jones’s motion.5 Jones Ohio, See, Terry e.g., 1. Adcock L.Ed.2d 889 fact, only one sentence Common- (8th 5. See BLACK’S LAW DICTIONARY738 thirteen-page wealth’s brief to the Court of ed.2004) (defining evidentiary hearing “[a] Appeals is devoted to the issuе of consent. hearing presented, as at which evidence is 3. RCr 9.78. cult to the basis for a trial resulting

not claimed error from the trial discern him: permit ruling court’s failure to to introduce from on-the-record free- court’s support sup of his motion to evidence analysis, form we do not believe this is a stipulated press. And Jones we are “left in the dark” as case where testify in accordance with his writ would ruling. the trial court’s to the basis for objection report ten and made no to contradict offered no evidence [Jones] proceedings. we are adequacy of the So evidence at the Commonwealth’s constrained to find that Jones has waived Court, and, hearing, in his to this brief issue, to rule on our this and we decline factual does not contest the tes- [Jones] failed to have a own motion Jones Furthermore, timony hearing. evidentiary proper hearing.6 context of the when considered evidentiary

But before we can address the merits of hear- immediately preceding arguments, we must Commonwealth’s ing, the trial court’s oral comments suffi- lack of specific first decide whether the findings.... ciently display its factual prevents trial us findings by the court argu- the nature of [Jones’s] Given meaningful undertaking review of primary issue here appeal, ment on reviewing this case. Because courts are factual one.... legal, is a rather than a required give great to deference to the comments on the The trial court’s oral court, findings factual made the trial it legal sufficiently record documented its discharge is essential that the trial court Thus, the rec- conclusion.... we believe responsibility express findings its to make adequately to review ord below allows us sufficiently legal that resolve the issues ruling the trial court’s mo- [Jones’s] presented by suppress.7 a motion to Nev- suppress.9 tion to ertheless, given parties’ the lack of dis- facts, pertinent as to the agreement on its Accordingly, based comments stipulation Teagle’s evidenced the to that the trial court’s hearing, we discern that case report, we do not believe this Teagle have been that had findings would entry findings. of requires remand for the weapons for right pat to down Jones Fur- allegations in the EPO. based on the it findings The lack of in this case makes doctrine, thermore, plain on the feel based similar to Coleman v. Commonwealth.8 Coleman, cause to believe Teagle had also lamented the lack of we court; pat in the pill bottle he discovered findings by pro the trial but we issues, the merits of the based on the ceeded to review down was contraband holding that: Those circum- of the сircumstances. (1) seeing leaning Jones into stances were agree findings we that written

Although (2) car, seeing review, parked window of a appellate facilitate greatly (3) retreat, comply his refusal to sometimes diffi- Jones’s recognize litiga question stage only legal in the last of the opposed hearing at which fine to presented.”). tion.”). argument is Hadl, (Ky. 816 S.W.2d 6. Mitchell 7. Moore v. 634 S.W.2d 1991) rarely (holding Court (”[t]he provisions RCr of 9.78 by parties ”[o]r- not raised rules on issues mandatory.”). are dinarily, Court confines itself rather this closely deciding only issues which the those 8. 100 S.W.3d 745 parties present. We take the view that coun sufficiently and the courts below have sel omitted). issues; (internal Id. at 749 footnote need rede identified the that we (4) to the rule that hearing exceptions stop, request with the to a valid war- pursuant be made must “nothing” had in his say Jones that he exceptions Among recognized rant.” bulge in the pocket despite the visible is the doctrine requirement to the warrant question before us is pocket. So corollary, plain feel. and its plain view plain whether these facts fall within the doctrine, “[w]hen feel plain Under exception requirement. feel to the warrant lawfully down the outer pats officer Exception. The Plain Feel B. object and feels an clothing suspect of a identity its whose contоur or mass makes begin analysis by noting our We no violation immediately apparent, there is Teagle acted question that the of whether beyond already permitted privacy properly patting ‍​‌‌​‌‌‌‌​‌​‌‌​​​‌​‌‌​​‌​​‌​‌​​‌​‌​‌​‌‌‌‌​​​​​​​‌‍down Jones is not be weapons. pat down search Both the trial court and fore us. Court warrantless seizure of such materials right Appeals Teagle concluded that had ex- justified principles under the same go to Jones’s residence to serve doctrine.”13 pressed in the view right EPO and that had a to en Seizing upon “immediately apparent” gage protective pat in a down of Jones found requirement, the Court on the of viol allеgations based EPO’s exception inapplica- protec ence.10 Since Jones did not file a “[p]rior inspecting ble because discretionary tive cross-motion for review pocket, bottle removed from Jones’s Appeals’ ruling, propri of the or not way officer had no to know whether ety pat Teagle’s down itself and prescription Jones had a valid for the med- pat prop conduct before the are not down bottle, in the thus the contraband icine erly only question before us.11 The that is readily appar- nature of the item was not properly before us is whether the Court ent.” Appeals correctly concluded that the Appeals’s focus on the this case was not valid under the “immediately apparent” requirement was plain feel doctrine. the States proper because both United jurisprudence, Under our settled have held Supreme Court and this Court is fundamental that all searches with “[i]t object an incriminating nature of out a warrant are unreasonable unless and the plain seized under both the view “immediately they can must be exceptions be shown that come within one of feel 1, 1868; Terry, preserve right argue 10. 392 the to issues U.S. 88 S.Ct. Baker v. wishes to Commonwealth, 142, (Ky.1999) Ap- 5 S.W.3d 146 respondent lost in the Court of which ("[w]hen justified believing an officer is peals, Appeals decided or issues the Court of individual, unquestionably that an who is not party prevailing in the not to address. If the armed, cooperative, may be it would be Appeals wishes further consideration Court of clearly deny that officer the unreasonable to along with the issues for which of such issues authority necessary to take measures to de- discretionary granted, review has been the is, fact, termine whether the individual prevailing party must file a cross motion for carrying weapon, threat and to alleviate the review.”). discretionary harm.”). physical 329, 826 S.W.2d 12. Cook v. Williamson, 869, Perry v. 871 824 331 (“[o]ur (Ky.1992) specific rules are that if the by discretionary motiоn for review made the Whitmore, 92 S.W.3d 13. Commonwealth grant- losing party Appeals in the Court of is omitted). (internal ed, See 80 citations upon prevailing the it is then incumbent Dickerson, 508 U.S. also Minnesota v. party in the Court of file a cross- to respondent L.Ed.2d 334 discretionary if 113 S.Ct. 124 motion for review But, noted, apparent.”14 recently search, stop or the then decision interpretation facts, “[t]he of ‘immediately ap- whether these historical viewed parent’ presented reviewing has objectively courts standpoint the of an reasonable significant difficulty.”15 officer, And despite suspi- amount to reasonable inability the precisely Thus, courts’ to define “im- probable cion to or cause.”18 mediately apparent,” it is clear that evidenced of the adverb “imme- use phrase “immediately apparent” does diately” modify adjective “appar- to alter fundamental issue: whether an ent,” met probable cause must be probable contemporaneously officer has ques- touches item in time officer the object being cause believe that felt post-touching tion and cannot be conduct contraband, is taking account to- into retroactively probable used to find cause.19 tality of the circumstances.16 Although appellate court must defer court, findings a trial of fact made is a “[PJrobable cause fluid con general “as a matter determinations cept turning proba on assessment of — reasonable suspicion probable cause in particular bilities factual contexts —not appeal.”20 should be reviewed [de novo] readily, usefully, or even reduced a neat findings Since the trial court made no real Thus, legal set of rules.”17 in order to case, complete- of fact in this our is review if has probable determine cause been ly de novo. shown, “principal components” a re Our review of Minnesota v. Dickerson viewing court are must examine “the and Crowdеr leading up compels us find events which occurred that Tea- " Whitmore, 80; Dickerson, 1994) ‘[¡Immediately (holding apparent’ 92 S.W.3d at 375-376, ("[i]f police only probable requires officer have pats suspect’s contraband.”); lawfully officer down a outer cause to believe an item is object clothing States, (D.C. and feels an whose contour Ball United A.2d identity immediately apparent, makes 2002) (" mass its ‘[[Immediately pur apparent' suspect’s has there been no invasion of poses analysis does not mean that beyond privacy already authorized an officer must know for certain the item weapons; object officer’s search for if the contraband, only felt is that there contraband, its warrantless seizure would be ac cause to associate the item with criminal justified by practical the same considerations tivity.”). context.”) (em- plain-view that inhere in the added). phasis Gates, 213, 232, v. 462 17. Illinois 103 2317, (1983). 76 L.Ed.2d 527 Hatcher, 15. v. 199 Commonwealth S.W.3d 124 690, 696, States, 18. Ornelas v. United 517 U.S. 1657, 116 S.Ct. 134 L.Ed.2d See, Brown, 730, e.g., v. Texas 460 U.S. 1535, 741, (1983) 103 S.Ct. 75 L.Ed.2d 502 Crowder, 884 S.W.2d 19. Commonwealth (noting (plurality opinion) phrase that "imme- J., (Lambert, concurring) apparent” plain diately was in view doctrine ..., ("[tjhus, justify police the offi- seizure “unhappy had choice of words” since it must, discovery object of an or on cer item require higher improperly read de- been suspect, simultaneously pеrson con- the of a cause.); gree certainty probable than Com- weapon object is and that clude that the not a Cullen, Mass.App.Ct. monwealth weapon. other than a Such it is contraband (2004) ("[ujnder 816 N.E.2d both instantaneously be made and decisions must doctrines, plain view feel the and whether process. part thought No as a the same plainly thing plainly may or felt viewed be object the inquiry as to the nature of is further constitutionally is seized to be measured added). (emphasis permitted.”) there to believe in whether cause incriminating object.”); the character of Ornelas, Jones, (La.Ct.App. 517 U.S. at 116 S.Ct. 1657. State v. 641 So.2d during the readily apparent die was not does not fall within gle’s search of Jones In of those down.22 exception. pat each plain feel hand, cases, in case at the criminal and Crowder Dickerson Applying during a discovered nature of the item finding compels at hand case readily appar- “plain feel” search was not not fall within of Jones does manipulat- or ent until the item was moved many respects, In exception. feel plain ed the officer. compel- are more in those cases the facts Dickerson, ob- two officers because, in this case than those found ling crack person leaving a known served cases, suggestion is no those there unlike police, he person house. Once the saw residence in that Jones’s sparse record in di- opposite and walked turned high-crime either neighborhood were aroused, suspicions the offi- rection. Their specifically known general or were areas person and conducted a stopped cers nor narcotics-trafficking hotspots, being down, the offi- During pat down. pat that Jones himself any indication is there in the sus- lump discovered a small cers being drug trafficker. suspected was and pect’s jacket pocket. squeezing After and suspects Dickerson As did sliding lump, the officer decided Crоwder, away ‍​‌‌​‌‌‌‌​‌​‌‌​​​‌​‌‌​​‌​​‌​‌​​‌​‌​‌​‌‌‌‌​​​​​​​‌‍began to walk once Jones lump was cocaine. The authorities. presence of he noticed the justi- held that the search was not But even if Jones’s retreat plain under the feel doctrine because fied flight, “flight,” to be a considered only illegal lump nature itself, to establish is insufficient it, manipulated apparent after the officer probable cause.23 satisfy the “imme- meaning that did Next, nothing there is in- we note that diately apparent” requirement for incriminating about le- herently illegal or Crowder, a Similarly, in feel searches.21 talking to while aning into a car window drug dealer was seen in an area known an action of a vehicle. Such the driver drug trafficking. When the known only potentially been incrimina- could have away person police, saw the he walked that based on ting Teagle if had testified engaged pat The officers in a from them. experience, drug dealers training his and felt what the officer believed down facili- into car windows to frequently lean drugs. have been a small bindle of could However, the rec- drug transactions. tate ultimately held that the search was not We by Tea- no such observation ord contains justified exception under the be- showing anything it contain gle, the bin- nor does incriminating cause the nature of itself, Dickerson, 366, 375, to сonstitute is not sufficient 113 S.Ct. and of 508 U.S. however, "[i]f, anyone, police probable lack who probable cause for otherwise object plain view is police believe that an in cause to talk to the and who does not desire to conducting without some further contraband away would runs from them either walks or incriminating object-i.e., 'if its search of the legal Such a always subject to a arrest. be ' "immediately apparent," [is not] character under the procedure cannot be countenanced [128], California], at 496 U.S. [v. Horton pres- and Fourteenth Amendments Fourth S.Ct., plain-view at 2308-the doctrine Court.”); ently interpreted justify cannot its seizure.” (”[t]he (2006) flight § Arrest 6A CJ.S. officer, approach peace or suspect of a (plurality opinion). at 652 22. 884 S.W.2d crime, may not in flight of a from the scene probable cause for See, itself constitute and of Margeson, 259 e.g., United States v. arrest.”). (E.D.Pa.1966) (“flight, in F.Supp. Teagle’s tobacco, level of experience training however, and in to used smoke the offi- narcotics interdiction. cer did not pipe drug para- know the was phernalia room, until he entered the

Finally, and most importantly, like the picked up the pipe, and then smelled mari- objects felt officers Dickerson juana.25 We held that the search was not Crowder, and incriminаting nature of plain valid under view “[although because object pocket Jones’s was not obvi- pipe appeared suspicious to Officer object manipulated ous until the was or Carr, investigation required further was to moved. Appeals, As noted the Court of establish cause as to its associa- “[pjrior inspecting pill bottle [after tion criminal activity, and thus it sim- removed from pocket, was] Jones’s [Tea-' ply immediately was not incriminating.”26 gle] had way no to know whether or not hand, In the at case there was no testimo- Jones had a valid prescription for the med- ny from Teagle stating that his training bottle, icine in the thus the contraband experience caused him to believe the nature of the readily item was not appar- pill bottle in Jones’s was contra- nothing ent.” There is inherently incrimi- And, furthermore, pill band. bottle is nating carrying about bottle in one’s frequently and commonly legal used for pocket. purposes, special pipe unlike the in Hatch- Moreover, although certainly we do er, which the officer widely testified was endorse Jones’s false statement to marijuana.27 Thus, used to smoke because there “nothing” pocket, in his unique facts of this in- case are less such a dishonest certainly less answer criminating than those found we not to incriminating being than walking seеn Hatcher, plain constitute view in we cannot house, from a known crack inas Dicker- accept argument the Commonwealth’s son, being drug a known dealer stand- Teagle’s search of Jones falls under the ing precise in the anony- location where an plain exception. feel mous caller had told the suspect In summary, the minimal facts in the drugs, used to sell as in Crowder. support finding record do not Additionally, in Commonwealth search in plain this case falls under the Hatcher,24 recently rejected the Com- exception requirement. the warrant analogous monwealth’s claim of view Thus, we affirm the of Appeals’ under facts incriminаting more to the sus- point. decision on this pect than those found in this case. Hatcher, police responded anony- C. Consent. claim allegedly mous of an abandoned mi- they feel, nor. When at arrived the home Like one consent is question, eventually opened an adolescent exceptions of the established to the Fourth door, requirement.28 which time an officer saw a Amendment’s warrant Al pipe sitting on a table. though Based his train- it concedes that it did not raise the ing experience, court, the officer believed the issue of trial consent to the pipe marijuana. was used to smoke Be- Commonwealth now cоntends that Jones cause the pipe legally could have been consented the search and seizure be- 24. 199 S.W.3d 124 27. Id.

25. Id. at 124.26. Id. 28. 826 Cook. S.W.2d at 331.

199 LAMBERT, C.J.; and Teagle’s McANULTY merely acquiesced cause he to ROACH, JJ., to from request remove bottle his concur. Indeed, Teagle’s report states pocket. SCOTT, J., by separate opinion dissents he to the pill

that asked Jones remove which GRAVES from bottle his and that Jones re- WINTERSHEIMER, JJ., join. luctantly complied. Ordinarily, we permit par do not Justice, SCOTT, dissenting. arguments appeal.29

ties to raise new Although Respectfully, I must dissent. fact, prohibition is even general this majority opinion espouses Court in cases important involving more vol- Teaglе had a Appeals’ ruling that Officer untariness of a consent to search because a suspicion” Appellee that the “reasonable “[wjhether to a consent search was volun Terry pat and thus the down was armed tarily given question a fact to is be found, by was it has nonetheless proper, by preponderance determined of the evi relying exception to the on the dence of all the circum 30 requirement, warrant evidence Accordingly, stances.” the issue of con support the conclusion was insufficient question is a is sent fact-intensive not Teagle’s subject pat if not that Officer down satisfies appellate review it is first Thus, presented “immediately apparent” requirement to the trial court.31 as we Hatcher, recently held the Common v. Minnesota Dicker- plain feel searches. wealth’s failure to raise the issue of con son, 366, 2130, 375, 113 S.Ct. 508 U.S. sent before the trial court leaves issue (1993). Moreover, 2137, 124 L.Ed.2d 334 our unpreserved for review32 re- majority ‍​‌‌​‌‌‌‌​‌​‌‌​​​‌​‌‌​​‌​​‌​‌​​‌​‌​‌​‌‌‌‌​​​​​​​‌‍Appellee’s characterizes “nothing” in

sponse pock- that he had his incriminating being as than being ets “less III. CONCLUSION. house, crack walking seen from known reasons, foregoing For the the decision known, Dickerson, being drug deal- affirmed; Appeals of the Court of in the location standing precise er where this case is remanded the trial court caller had told the anonymous suppress with instructions to the evidence drugs, used to in Crow- Teagle’s suspect sell during obtained warrantless Jones. der.” Commonwealth, 32. Hatcher, ("[w]e Kennedy 124 note that 544 199 S.W.3d S.W.2d (“[t]he great appellants 222 will not devotes a deal Commo'nwealth Court, permitted feed one in the be can of worms to the effort in this as it did judge appellate pipe pro Appeals, arguing trial and another court.”). a consensual search. duced as a result of However, agree the Court of preserved claim is not for review. 30. Talbott v. 968 S.W.2d such Indeed, theory also sole dur 82 See Schneckloth Busta the Commonwealth’s monte, hearing ‘plain ing suppression was one of view,' opinion to that L.Ed.2d and we limit our herein point At no did the Commonwealth context. Talbott, voluntarily con son ("[t]he contend that Hatcher’s issue [of search, and we do undertake sented to preliminary question to be decid- consent] 104(a), [legal] validity of determine the judge, at this time to by the whose ed trial KRE family supported by consent to a search findings are minor's conclusive if factual )” residence.”). substantial evidence. RCr 9.78M 200 find, however,

I upon that based recognized itself is as “fluid concept, a circumstances, totality of the turning probabilities Officer on the assessment Tea- of contexts, in gle probable particular had readily, cause seize the factual not usefully or even bottle. reduced to a neat set of Gates, 213, rules.” Illinois v. 462 U.S. Dickerson, In supra, the United States 232, 2317, 103 S.Ct. 76 L.Ed.2d 527 Supreme Court analogized Probable cause has been further defined doctrine to the view doctrine in the belief, a grounds “reasonable sup- search, context a legitimate Terry opin ported by than prima proof less but facie ing “[r]egardless of whether the offi suspicion.” more than mere United States cer by sight detects the by contraband (6th Bennett, Cir.1990) 931, F.2d 905 934 touch ... the Fourth Amendment’s re added). (emphasis proba- And the test for quirement probable officer have ble proba- cause is whether a “there is fair cause to believe that the item is contra bility that contraband or evidence of a band seizing against before it ensures ex crime will be found in a particular place.” cessively speculative seizures.” Dicker Gates, 238, 462 at U.S. 103 S.Ct. at 2332 son, 376, at 508 U.S. 113 S.Ct. at 2137 added). (emphasis Thus no “actual show- added) (emphasis Illinois, citing Ybarra v. ing of activity” required [criminal] so 85, 338, 444 100 U.S. 62 L.Ed.2d 238 long only probability as there is or sub- (1979) (contemplating possibility stantial such activity chance has occurred. police officers probable could obtain cause United States v. Wright, 16 F.3d justifying seizure of through contraband (6th Cir.1994). touch). the sense of Significantly, persuasive Even more is the notion that rejected United States probable determinations of cause are Ybarra, argument State’s in only because “totality based on the of the circum “[t]he initial frisk of Ybarra was simply not stances,” involving practical, common supported a reasonable belief that he sense review facts available known was presently dangerous,” armed and officer time of the search. Ybarra, required Terry. at Gates, 462 U.S. at 103 S.Ct. 92-93, 100 S.Ct. at 343. recognized The Court of has such may Thus contraband properly be seized in Baltimore Terry during a search if the item’s identity (Ky.App.2003), wherein we immediately apparent and if the officer probable held that the cause standard is probable has cause to believe the item is concept[ applied [a] ] flexible to be contraband. When considered under the manner based the to- commonsense circumstances, totality of the we should tality the circumstances in each case. probable find that cause exists for the determining the cir- suspected seizure of contraband. cumstances, a reviewing court should upon by example, ‍​‌‌​‌‌‌‌​‌​‌‌​​​‌​‌‌​​‌​​‌​‌​​‌​‌​‌​‌‌‌‌​​​​​​​‌‍For view the factors relied Commonwealth v. Cul- officer(s) len, to create sus- Mass.App.Ct. reasonable 816 N.E.2d (2004), picion in but all isolation must consider Massachusеtts Court held officer(s) give observations and no while “direct in- evidence” regard due to inferences and deductions criminating nature of stolen coins experience drawn them from their defendant’s present, “host of and training. provided circumstantial evidence” the in- added). criminating linkage Furthermore, between the coins (Emphasis “ Moreover, the burglary. court cause held that ‘the of criminal likelihood required activity need not rise level cause, and it falls consider preponderance of ably satisfying short ” (quoting Id.

the evidence standard.’ Arvizu, States v.

United (2002)); 744, 751, 151 L.Ed.2d 740 Banks, also

see Commonwealth (“Thus, if non immediately ap

threatening contraband is to the officer the sense

parent conducting

touch while officer search, is not pat-down the officer

lawful and can

required ignore the contraband it.”)

lawfully seize precedent majority opin- set officer, require in this

ion case would suspected

confronted with an individual armed, proof have

being beyond proba- suspected

ble cause seizure of con- before can

traband occur. Such result is

only Fourth unnecessary under

Amendment, required is not under the but

totality of present the circumstances I Accordingly,

this case. would reverse

the decision of the Court of ruling

reinstate Harlan Circuit

Court. WINTERSHEIMER,

GRAVES and

JJ., joins this dissent. FEDERAL

FIRST SAVINGS

BANK, Appellant,

Tommy McCUBBINS, Appellee. Lee

No. 2005-SC-0372-DG. Kentucky.

Supreme Court

Nov. April

Rehearing Denied

Case Details

Case Name: Commonwealth v. Jones

Court Name: Kentucky Supreme Court

Date Published: Dec 1, 2006

Citation: 217 S.W.3d 190

Docket Number: 2004-SC-001017-DG

Court Abbreviation: Ky.