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Kentucky Supreme Court: Officer’s History of Arresting Defendant on Multiple Occasions Constituted ‘Show of Authority’ That Defendant Was Not Free to Leave, Resulting in Unlawful Terry Stop

by Anthony W. Accurso

Supreme Court of Kentucky upheld the decision of a trial court that found a single officer asking questions of the defendant in a public area amounted to an unlawful seizure because the defendant had a history of being arrested by that particular officer so he reasonably believed that he wasn’t free to leave, and thus, any evidence obtained as a result of the unlawful seizure must be suppressed.

James Perry and a friend were walking down the street in Lawrenceburg, Kentucky, towards a nursing home when they were spotted by Officer Doty. He pulled into the nursing home parking lot, exited the vehicle, and approached the pair.

Doty would later testify at the suppression hearing that there wasn’t anything remarkable about Perry and his companion walking along the street that led him to believe they were committing a crime, but he nonetheless “decided to stop and approach the two because Perry usually had outstanding arrest warrants and narcotics on his person and his companion was known to possess and traffic narcotics.” Doty testified that he had arrested Perry several times on warrants and drug possession prior to the incident in question, at which time he didn’t have any outstanding warrants.

He began asking Perry and his companion where they were going and whether they had any weapons, drugs, or drug paraphernalia on them. Around this time, having heard over his radio that Doty would be speaking with Perry and another person on the street, Officer King arrived on the scene to provide backup and had exited his vehicle by the time Doty asked Perry for consent to search his backpack. According to Doty, Perry and his companion were cordial and cooperative, but he added that they weren’t restrained nor did they indicate that they didn’t want to speak with him. Upon Doty’s request, Perry consented to a search of his backpack, which uncovered a variety of drugs and drug paraphernalia.

Perry was charged with possessing those items. He filed a suppression motion on the ground that he was illegally seized when Doty approached and questioned him, and therefore, the search of his backpack, despite having given consent, was a “fruit” of the illegal seizure.

The trial court conducted a suppression hearing in which Doty and King testified. In addition to the facts detailed above, the officers gave conflicting testimony. Doty claimed Perry had “pinpoint pupils and was unsteady on his feet,” while King testified that he noticed nothing unusual about Perry’s appearance.

Based on a totality of the circumstances, the trial court found that Doty had no articulable suspicion upon which he could justify stopping and detaining Perry. Further, “[b]ased ... on the Court’s perception of the interaction between Perry and Officer Doty, the Court does not believe that Perry would have been voluntarily allowed to wish Officer Doty a ‘good morning’ and continue on his way,” the trial court wrote in its suppression order. It added that Perry’s walking down the street while having been previously arrested does not create a “reasonable suspicion” that he’s presently engaged in criminal activity. Thus, because his consent to search his backpack was obtained only after the unlawful stop, the evidence discovered in the backpack is “fruit” of that unlawful stop and must be suppressed, the trial court ruled.

The Commonwealth appealed, and the Court of Appeals upheld the trial court’s decision. The Kentucky Supreme Court granted the Commonwealth’s motion for discretionary review.

On appeal, the Commonwealth argued that Doty’s approach and conversation with Perry “on a public sidewalk” wasn’t a Terry stop.

The Court began its analysis by reiterating that the Fourth Amendment provides that “the right of the people to be secure in their person, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated….” The U.S. Supreme Court established in Terry v. Ohio, 392 U.S. 1 (1968), that a brief detention is permissible if the police have a reasonable suspicion based on objective, articulable facts of criminal activity. “The Fourth Amendment’s requirements that ... seizures be founded upon an objective justification, governs all seizures of the person, including seizures that involve only a brief detention short of traditional arrest.” United State v. Mendenhall, 446 U.S. 544 (1980). This is “not to eliminate all contact between the police and the citizenry, but to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals.” Id. A Fourth Amendment violation occurs when a person’s freedom of movement is restrained by either physical force or a show of authority. Id.

The Court explained that the question this case poses is whether Doty’s approach of Perry was a Terry stop or a permissible, consensual police-citizen encounter. It stated that the test for whether a seizure occurred is an objective one that is set forth in Mendenhall as follows: “in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” Id. 

Applying that standard to the facts of this case, the trial court concluded that Perry would not have been permitted to wish Doty a “good morning” and continue on his way, the Court stated. In agreeing with that assessment, the Court added the facts show that Doty’s conduct “communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.” Quoting Florida v. Bostick, 501 U.S. 429 (1991).

The Court stated that the totality of the circumstances surrounding Doty’s stop of Perry supports the conclusion that a Terry stop occurred, and it emphasized two points: (1) in light of their history, Doty’s approach to ask Perry questions “could be viewed as a show of authority sufficient to cause a reasonable person to believe that he was not free to ignore” Doty and “go about his business, and (2) King’s appearance as backup put to rest any doubt that a reasonable person would believe that he was free to leave. Because Doty lacked reasonable suspicion of criminal activity, his subjecting Perry to a Terry stop constituted an unlawful seizure in violation of the Fourth Amendment, and any evidence obtained as a result of the unlawful seizure must be suppressed, the Court concluded.

Accordingly, the Court affirmed the Court of Appeals’ decision. See: Commonwealth v. Perry, 630 S.W.3d 671 (Ky. 2021). 


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