Commonwealth v. Marr
250 S.W.3d 624
Ky.
2008
Check Treatment

*1 defendant, a simple er- is not task. This reali- simply does not amount to reversible ty brings ror. us back to the current case be- given judges ample fore Trial must be us. seriously I am also concerned that this in their dire of leeway and deference voir decision, our coupled holding with jurors. There must be suf- types these Shane, place pressure upon too much will give judge’s ficient and take so that the judges dealing when with the our evaluated one or determination not very difficult and inexact science of select- jurors. two or answers of the comments fail” This ing jurors. case will resonate every judge Judge in this state. reasons, respectfully I dissent For these struggled Abramson troublesome majority from the decision reached prevalent issue is even more in the affirm in the Fugett’s would conviction jurors rural areas of state where Jefferson Circuit Court. know law likely more witnesses and personnel enforcement a case. that many

It is a far notion not fetched

persons members of the law enforce- hold to a profession higher

ment standard than

ordinary If citizens. that is these jurors, persons, serving

same when reasonably

would be inclined to more weight testimony to the of law enforce- Kentucky, COMMONWEALTH Indeed, personnel. ment it would make Appellant, orderly society for a more wholesome and if law cadre the star of our enforcement brightly shone so all of us would have MARR, Appellee. D. Ronald

more confidence their word than we would in the word the rabble and the No. 2003-SC-000564-DG. fact, many rude. If there are who do. Kentucky. Supreme Court an area where this dilemma is Perhaps lay concerns most acute witnesses with jurors prospective whom are familiar.

Again, likely is most to occur in rural It

areas the Commonwealth. seems juror initially give

me to ask

greater weight statements some- knows, remotely, he if

one or she even common stranger

than a rank defies ways of the world. This

sense and whammy a double

problem can become jurors and acquain-

when are both friends sheriff, leading

tances of the law en- state, and a wit-

forcement officer case.

ness jurors in

How with these citizen to deal way jury our panels which does bleed interest

dry, yet balances the *2 General, Conway, Attorney Teresa

Jack Attorney Special Assistant Gener- Young, al, Louisville, KY, Appellant. Counsel Lambertos, Louisville, KY, David A. Appellee. Counsel Opinion of the Court Justice decided to enter the business speak with the owner. CUNNINGHAM. arrival, Upon their announced appeals The Commonwealth in- themselves owner and *3 Appeals affirming him a they conducting formed that were judgment a of the Jefferson Circuit narcotics The heard investigation. officers case, Court. The defendant Ron- a noise from the back business Marr, D. indicted of ald on one count inquired anyone present. else methamphetamine while in manufacturing Bailey shop that the own- Officer testified firearm, possession of a count of traf- one replied er seemed nervous as he that no (metham- ficking in a controlled substance present. else was one phetamine) degree the first while Nonetheless, Bailey Officer called firearm, possession of a one count of ille- Marr, person in to come the back out. gal possession drug parapherna- use or of older, bearded, looking” is an “biker firearm, lia while of possession a man, emerged. Bailey testified possession count con- illegal one of of a appeared that Marr nervous. Based also (marijuana)

trolled while substance circumstances, Bailey per- on these trial, possession of a firearm. Prior of pat-down During formed search Marr. suppressed the Jefferson Circuit Court search, “hit- pat-down the officer felt following certain evidence seized small, to ingest drugs, ters” used and two The down search of Marr. Commonwealth bags methamphetamine. The plastic of an interlocutory filed and the appeal, large officer also found a amount of cash. judgment of Appeals Court affirmed the Following the re- pat-down, officers granted This trial court. verbal written ceived consent discretionary review. Marr to search his residence. At resi- suppression dence, The sole witness at weapons, found additional hearing Bailey, a Louisville methamphetamine, methamphet- was Officer and a officer, police following who testified to the amine lab. 2001, police facts. received an Following suppression hearing, the anonymous tip methamphetamine court that Officer concluded being body from a in Louisville. shop sold suspi- lacked a description The the seller included engaged cion that Marr was in criminal looking” older “biker man. Based The pat-down search. information, began on this surveil- officers suppressed court further the evidence body shop. They

lance of the observed residence, determining from Marr’s seized people peri- into the coming shop for short pat-down search vitiated improper did appear ods time who Marr’s consent to search the residence. bringing body police The in cars for work. judg- Appeals affirmed the concluded that these brief visits were con- ment. activity.

sistent with reviewing trial court’s investigation, To further to a judgment respect suppression leaving vehicle the busi- pulled findings over one facts are hearing, court’s pos- if they supported by ness. The individual the vehicle are sub conclusive Fearing marijuana. RCr 9.78. The trial pounds sessed two stantial evidence. legal are de compromise this arrest would court’s conclusions reviewed Commonwealth, Adcock shop, undercover novo. surveillance body shop prior In this surveillance of the present- frisked, should be noted that the evidence pattern and noticed a traffic being ed the Commonwealth was uncontro- They illegal drug activity. consistent therefore, verted, and we assume that arrested one visitor upon are the the trial these facts which illegal drugs. per- found judgment. based its mitted to take into account their surround- particular location ings whether a —and may, pro A officer for his reputation being drug” has a a “known tection, of a conduct forming a and ar- area —when person when that officer has a reasonable suspicion. See Minnesota v. ticulable and articulable that criminal ac *4 Dickerson, 366, 2130, 508 U.S. 113 S.Ct. Ohio, tivity 1, Terry is afoot. v. 392 U.S. (1993) Terry (legitimate 124 L.Ed.2d 334 30, 1868, 1885, L.Ed.2d 889 88 S.Ct. 20 stop suspect’s suspicious behavior based (1968). In determining requi whether the in coupled presence with his notorious site house”). Likewise, Bailey’s “crack exists, reviewing court must examine legitimately of Marr was raised totality of the circumstances to see objectively probable once it became that whether the officer had a particularized drugs being body were trafficked from the objective suspicion. basis for shop. While a “mere ‘hunch’ is insufficient to justify a stop, the likelihood of criminal particularly it was noted J.L. required need not rise to the level threatening that the defendant made “no cause, for probable and it falls consider or 529 otherwise unusual movements.” ably satisfying preponderance short of 268, U.S. at 120 S.Ct. at 1377. The ner the evidence standard.” United States v. vous behavior both Marr and the

Arvizu, 266, 274, 744, 534 U.S. 122 S.Ct. owner raised the officer’s in (2002) (internal 751, 151 L.Ed.2d 740 cita “Although this case. nervousness alone is omitted). tions insufficient rise reasonable sus heavily Marr relies on those cases in- in picion, important is an factor volving anonymous tips, particularly the Commonwealth, analysis.” Adkins v. 96 seminal case of Florida v. 529 U.S. 779, It S.W.3d 788 was also 266, 1375, 120 S.Ct. 146 L.Ed.2d 254 reasonable for the officer to conclude that (2000). Supreme ex- J.L. had he told shop owner lied when plained that ... “reasonable re- present him no one in the back room. quires that tipa be rehable in its assertion (where Adkins, 96 fact 787 Cf. illegality, just tendency its suspect gave a false name and ad identify person.” determinate offi legitimate forming dress was factor 272, 120 Judged against S.Ct. suspicion). cer’s standard, the anonymous tip in J.L.— simply wearing which stated that a male incorrectly argues certain shirt at a carrying bus station was anonymous tip formed the sole basis of insufficient to an inves- —was Rather, Bailey’s suspicion. tigatory stop. anonymous suitably this case was corroborated the fact that the described the circumstances in this totality, looking” present case “biker man was at the are examined present readily body shop; situation becomes distin named that the traffic flow to guishable drug activity; shop suggested from J.L. Officers conducted and from the Ohio, 1, shop appeared Terry the owner of ner- U.S. entrance; 1, upon the lawful L.Ed.2d

vous officers’ 889. 392 U.S. presence that the owner concealed Marr’s 911. 392 U.S. room; the back Marr himself and that L.Ed.2d 889 permitted nervous. appeared Appeals Officers following portions spe- on their experience to “draw own prop- reflect what is the I conclude training cialized to make inferences from analysis of er this case: about cumulative infor- and deductions The Fourth Amendment of the United Arvizu, mation available them[.]” guarantees States Constitution at 750-51. Whether U.S. people secure in their “right tip provided to believe criminal basis effects, houses, persons, papers, not, activity was afoot or the additional against and sei unreasonable searches clearly factors listed above allowed In Ter zures.” U.S. Const. amend. IV. officer the reasonable basis to do Ohio, ry v. safety search for at that down his own L.Ed.2d 889 States the United point. The confluence of facts and the recognized exception *5 building activity of in this by sanction requirement to the warrant dangerous. inherently made the situation ing investigatory stops and limited both justified the in Accordingly, officer was suspects. searches of When conducting minimally the invasive a there is Baker v. Com- down search Marr. See afoot, activity police criminal is a officer monwealth, (Ky.1999) briefly the may detain an individual on (“Whether requires a seizure is reasonable street, though probable even there is no totality of the of the circum- a review 30-31, at cause to arrest him. Id. stances, taking into the level consideration 1884-85, at 911. S.Ct. at 20 L.Ed.2d private intrusion the matters police into Terry also held that an officer “[w]hen balancing against citizens and the justified believing is that the individu action.”). justification for such he is inves suspicious al whose behavior upon opinion Based the the foregoing, and at close armed tigating range is judg- Appeals affirming dangerous officer or presently Court, is ment of the Jefferson Circuit others,” may pat- a officer conduct reversed. “to down search determine carrying weapon is in fact a person MINTON, NOBLE, All sitting. physical to neutralize the threat of J., SCOTT, JJ., ABRAMSON, concur. 1881-82, 20 harm.” Id. at at by separate dissents which suspect a dur Frisking L.Ed.2d at 908. SCHRODER, J., LAMBERT, C.J. and Terry stop strictly limited ing a join. discovery necessary that which is for Dissenting Opinion by Justice which used to harm weapons might ABRAMSON. nearby. or Common the officer others Crowder, respectfully Ky., I I believe wealth v. dissent because (1994), Further Ap- citing Terry, supra. trial court and the Court Illinois, more, in Ybarra v. peals properly found that Officer lacked Supreme cautioned afoot” and United States

that “criminal [was] Terry ex safety. scope that the narrow of the posed a threat to the officers’ (2000). In ception permit weap does not a frisk for 146 L.Ed.2d 254 ons on less than or police reasonable belief received information at person directed anonymous telephone caller that frisked, though person hap even standing partic a black male at a young pens premises to be on where an author stop wearing plaid ular bus a shirt taking place. ized narcotics search is at carrying gun. Upon arriving “Nothing Terry can be understood saw three black stop, the bus “ generalized ‘cursory allow a search Id. ‘just hanging males out [there]’.” indeed, weapons’ or search whatever 1377, 146 at L.Ed.2d at anything weapons.” but Id. 93- 259. When the frisked juvenile wearing plaid shirt, handgun discovered a his requires The Fourth Amendment carrying pocket. charged J.L. was objective justifi minimum some level of a concealed firearm without license cation for the officer’s actions measured a firearm while under possessing light totality of the of the circum age Subsequently, of 18. the trial Sokolow, stances. See United States granted suppress J.L.’s motion to 1581, 104 L.Ed.2d 1 as the fruit of an unlawful (1989); Commonwealth, Ky., Eldred v. Fourth Amend violation 906 S.W.2d 694 consider ment, and the Florida ing totality circumstances, affirmed the trial court. reviewing court should take care court, agreeing the state upon view the factors which offi *6 United States Court reaffirm- rely to cers create reasonable White, ed its decision Alabama v. 496 Rather, in isolation. must courts consid 325, 2412, 110 110 L.Ed.2d U.S. S.Ct. observations, er all of the officer’s distinguished the situa- weight due to inferences and deduc tion in J.L. based on the facts. The by tions drawn trained law enforcement in large part pre- Court relied on the Arvizu, officers. United States v. information, aspects dictive rather 266, 272-75, 744, particular physical description than 740, 749-51 See also suspect, major the as a element facili- Martin, 392, United States v. 289 F.3d by tating corroboration the (6th 2002). Cir., The test for a “ reliability creating ‘sufficient indicia of Terry stop and frisk is not whether make provide reasonable officer can conclude that an individual is ” J.L., investigatory stop.’ the Florida v. engaging activity, in criminal but rather 1378, at at 529 U.S. whether the officer can articulate facts Alabama v. (quoting L.Ed.2d at 260 [giving suspicion] rise to a reasonable White, at 496 U.S. at activity may that criminal be afoot and 301). 2414-15, The suspect may armed and dan Court stated: Banks, gerous. Ky., Commonwealth v. (2001) citing Terry instant the The the case lacked Ohio, 392 U.S. at reliability present moderate indicia of 20 L.Ed.2d at 911. and essential to the Court’s White anonymous decision in that case. The compared

The trial court the facts of pre- no present concerning provided the call J.L. presented case those and therefore left Florida v. 529 U.S. dictive information to test the corroborated the informa- the without means surveillance credibility. informant’s knowledge or that Marr was in the traf- tion gun addition, allegation Bailey That about the ad- ficking. Officer sug- out to marijuana turned be correct does mitted that seized officers, gest prior body shop leaving one of the vehicles frisk, investigation. had a basis for sus- not connected to this in unlawful pecting engaging J.L. of occurring The events inside of offi- conduct: reasonableness Al- shop were more conclusive. by cial measured must be the owner about Marr’s though lied what officers knew before in the denial of presence building, his All the conducted search. building did not presence Marr’s in the go the bare had to this case was Indeed, directly implicate Marr. unknown, of an report unaccountable attempt the offi- made no to hide from explained informant who how neither Furthermore, was no evi- cers. there supplied he knew about nor dence, even from unidentified infor- believing basis for he had inside mant, weapon. that Marr possessed information If about J.L. White Thus, all that was Marr’s re- remained reliability a close case on of anon- descrip- to the very general semblance ymous tips, surely falls on the this one informant, presence his given tion Id., other side of the line. activity, at the scene of suspected 120 S.Ct. at 146 L Ed.2d Bailey’s of Marr’s perception 260-61. nervousness. present facts of present case agree with trial court We very question regarding close insufficient to these circumstances were ar- had of Marr. justify pat-down

ticulable expected presence Marr’s in an area of search of Marr.... alone, activity, was not standing criminal investigatory a sufficient basis for an

n n n n n *7 H: Commonwealth, Ky. Simpson v. stop. (1992); v. Illinois App., 834 that, The trial court found as was Wardlow, J.L, no case in Florida v. there was And of the concerning evidence the source or sus- an individual’s nervousness while tip reliability or the the infor- original behavior can contribute picious tip merely ad- mant. informant’s suspi- of an articulable establishment vised the someone (foot- cion, Simpson, 834 S.W.2d Marr’s be at description matched would omitted) alone Marr’s nervousness note provided the scene. The informant a reasonable not sufficient to create conduct, predictive information about his in crimi- inference that he nor did the surveillance corrobo- activity. Consequently, nal trafficking rate granted Marr’s motion properly court methamphetamine. a result suppress evidence seized Furthermore, evidence there was no that search. in a was located event, even if “reasonable area. the surveillance high-crime While existed, the ma- suspicion” had legitimate suspicion raise a did of Marr’s shop, jority opinion dispositive at the none suppression motion. The case should to address

remanded for the ad- items found on Marr are

whether the “plain feel” doctrine.

missible under Dickerson, v.

Minnesota (1993); 2130, 124 L.Ed.2d 334 Com- Whitmore, v.

monwealth SCHRODER, J.,

LAMBERT, C.J.; and

join. Kentucky,

COMMONWEALTH

Appellant/Cross-Appellee, BROWN,

Lamont Houston

Appellee/Cross-

Appellant. 2004-SC-000553-DG,

Nos.

2006-SC-000160-DG. Kentucky.

Supreme Court of