BRIAN STRANGE v. COM. OF KENTUCKY
CRIMINAL: Search and seizure (investigatory stops); reasonable suspicion
2007-SC-000328-DG.pdf
PUBLISHED: REVERSING AND REMANDING
OPINION BY VENTERS
FAYETTE COUNTY
DATE RENDERED: 11/26/2008
On discretionary review, SC reversed TC's denial of Strange's motion to suppress. Because the seizure of Defendant was not based on articulable reasonable suspicion and it transgressed Defendant's rights under the Fourth Amendment, the subsequent pat down and recovery of the prescription medications was improper and the evidence so derived should have been suppressed, notwithstanding Defendant's consent to the search of his pocket. Such an unwarranted detention or seizure tainted the subsequent consent obtained for searching his pocket, rendering inadmissible the evidence thereby obtained.
The nature of the encounter between the Strange and the officers changed at the moment Officer Hall directed Strange to move away from the van and over to the police cruiser. At that point, Officer Hall exercised substantial control over Defendant's person, and limited Defendant's freedom of movement. When police officers, by means of physical force or show of authority, in some way restrain the liberty of a citizen, a "seizure" of that person has occurred.
Having determined that Strange was seized for Fourth Amendment purposes, SC then decided whether the officers had an articulable reasonable suspicion that criminal activity was afoot based upon the facts in existence at that time. The only facts articulated by Officers Hall and Olivares as existing prior to the seizure are those cited by the trial judge at the conclusion of the hearing. Strange was in a public area known for criminal activity, late at night, standing near a pay phone that has sometimes been used in drug transactions, and when he saw the officers, he walked quickly to the van parked a few steps away. Additional factors cited by the Court of Appeals – his apparent nervousness, that he and the van driver gave differing reasons for being there, and the bulge in the pants – did not become known until after the seizure and cannot therefore be factors articulated to justify the reasonableness of the seizure. The officers articulated nothing about Strange's movement to explain why it seemed suspicious, beyond the general suspicion they have for everyone out at that time of night in that neighborhood . The movement described by the officers did not indicate that Strange intended to hide or to conceal his appearance . It did not suggest an effort to run away or to elude the police. It did not indicate any reason to suspect that evidence or contraband was being carried, discarded, or hidden. The officers gave no explanation of Defendant's movement to distinguish it from any other action he might have made, sinister or innocent.
Digested by Scott C. Byrd
www.olginandbyrd.com
