Failure to preserve issue for appeal: JONES V. COM. (COA 11/2/2007)


DATE RENDERED: 11/02/2007

COA affirmed ten-year sentence following conditional plea of guilty rejecting Defendant Jones’ contention the trial court erred in failing to grant his motion to suppress evidence that was found in his vehicle during a search following his inability to produce a valid driver’s license at a roadblock and relying upon the "fruit of the poisonous tree".  COA concluded the defendant failed to preserve this issue on appeal

This safety checkpoint was authorized by the Kentucky State Police and was being conducted in a
non-discriminatory manner with every vehicle passing through the checkpoint being subject to a safety check. Jones was stopped at or by the safety checkpoint and was approached by Trooper Jason Woodside.  Trooper Woodside asked Jones to produce his driver’s license, but Jones was unable to do so.  Trooper Woodside proceeded to ask Jones for permission to search his person and such permission was granted. Jones was found to have approximately nine grams of marijuana in his front pocket.

At trial, Jones moved the court to suppress the evidence obtained through the search, alleging that the initial search went beyond the scope of a Terry safety pat down and thus everything that followed was a fruit from the forbidden tree. The trial court held a hearing on this issue and found that Jones consented to the search of his person which produced contraband thus giving Trooper Woodside probable cause to arrest him. Furthermore, since Jones consented to the search of his person and vehicle, the trial court reasoned, it did not have to determine whether or not they were otherwise authorized.

Jones then raised a different argument on appeal arguing the Fourth Amendment requires that all checkpoints be of a specific and limiting nature with a limiting plan of action and authorization and that failure to so limit the roadblock in this case resulted in the seized evidence being fruits of the poisonous tree requiring reversal of conviction.  This issue was unpreserved and not palpable error.

During his entry of the conditional guilty plea, the court insured that Jones was preserving the single issue but now, however, Jones would have the Court address an issue not ruled on by the trial court through any trial or pretrial motion as required by RCr 8.09.  Kentucky has long held an issue not raised in the circuit court may not be presented for the first time on appeal. Gabow v. Commonwealth, 34 S.W.3d 63, 75 (Ky. 2000).

Digested by Michael Stevens

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