CRIMINAL PROCEDURE – Automobile search, drug forfeitures: Robbins v. Commonwealth (COA 9/4/2009)

Robbins v. Commonwealth
2007-CA-002262 9/4/09 2009 WL 2833520 DR pending

Opinion by Judge VanMeter; Judge Nickell and Senior Judge Graves concurred.

The Court affirmed a judgment of the circuit court sentencing appellant to four years’ imprisonment for illegal possession of a controlled substance pursuant to a conditional Alford plea. The Court also affirmed an order forfeiting currency found at the time appellant was arrested.

The Court first held that the trial court did not err by failing to suppress the cocaine found appellant’s vehicle. When appellant was arrested, he was a “recent occupant” of a vehicle, he was arrested on an outstanding bench warrant for drug trafficking charges, and he threw drugsunder his vehicle when confronted by the police. Under Arizona v. Gant, —U.S.—, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), the search of appellant’s vehicle incident to his arrest was clearly justified. The Court next held that the trial court did not err in ordering forfeiture of the currency found at the time of his arrest. KRS 218A.410(1)(j) permitted the forfeiture when the Commonwealth satisfied its burden of making a prima facie case for forfeiture and appellant failed to offer evidence to rebut the presumption supporting forfeiture. The testimony established that appellant was a fugitive from justice on drug charges, he was not employed in any occupation from which taxes were being withheld, more than three grams of cocaine were found under his vehicle and more than three grams of cocaine were found in the driver’s door. The Court next held that the trial court did not abuse its discretion in refusing to compel discovery regarding an unidentified expert witness in the field of narcotics. RCr 7.24(1)(b) did not compel disclosure in the absence of examinations, tests, or experiments made in connection with the case and there was no contention that the expert witness was a known witness, an exculpatory witness or a person who observed or participated in the crime. The Court further held that the trial court did not abuse its discretion by failing to conduct a Daubert hearing to assess the reliability of the proffered testimony by a law enforcement officer who was expected to opine on the drug trade based on his training and experience. The Court next held that the trial court did not err by refusing to compel disclosure of the identity of a confidential informant. The privilege of KRE 508(a) was applicable and the situation did not come within any of the exceptions to the rule when the informant was not a material witness and only provided general information to the officers prior to the date of arrest and was not present at the time of the arrest.

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