CRIMINAL PROCEDURE: Piercy v. Commonwealth (CO 1/29/2010)

Piercy v. Commonwealth
2008-CA-002068 01/29/2010 2010 WL 323196

Opinion by Judge Lambert; Judges Acree and Keller concurred. The Court affirmed a judgment of the circuit court entered after appellant entered a conditional guilty plea reserving the right to appeal the denial of a motion to suppress evidence. The Court ultimately held that the trial court did not err in denying the motion to suppress. In reaching that conclusion the Court first held that the trial court erred in implicitly finding that the encounter between appellant and the police was consensual and not a stop under Terry v. Ohio, 392 U.S.1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) because appellant was not driving his vehicle at the time the officers approached him. However, any error was harmless since the officers had a reasonable, articulable suspicion that appellant was about to drive a vehicle with expired tags and thus, the officers had grounds to conduct a Terry stop and to conclude that criminal activity was occurring under KRS 186.170(1). The Court then held that the trial court correctly found, based on an officer’s testimony, that the officers had appellant’s consent to enter his residence when appellant did not attempt to deny the officers’ entry or make any movements to prevent them from entering. Thus, the officers had a right to be in the residence and, under the plain view/smell doctrine, to observe the smell of marijuana which they used to obtain a search warrant.

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