The Full Text Reply Brief (Frog Gravy Legal Case)

I will also post the Commonwealth brief, sometime in the next couple of days. These documents are in the public domain.


This Reply Brief responds to the Appellee’s Brief. Any failure to respond should not be taken as waiver of an issue or allegation.

I. The evidence should have been suppressed.

A. The 911 call.

The Appellee does not respond to Ms. Leatherman’s argument that the information in the 911 call was insufficient to establish a reasonable suspicion that she was committing a crime. Leatherman reiterates that the sum of what Deputy McGuire knew from the 911 dispatch: “a lady” was walking around in the caller’s neighbor’s yard and talked to him. TR 149. The caller did not say whether he had been present during that conversation. The caller did not tell the 911 operator that the person had seen heroin, any other drug or any sort of drug paraphernalia in the person’s car. The caller also did say that the woman appeared to be under the influence. McGuire testified that he had no idea when the woman had made contact with the neighbor. VR 4; 11/27/2006; 14:05:04.

B. Leatherman’s actions on US 60 did not provide reasonable suspicion.

The government makes the nonsensical argument because Ms. Leatherman initiated voluntary citizen-police contact; the Fourth Amendment does not apply in this situation. It then asserts “the only evidence in this case was that appellant pulled over on her own accord” and she “does not now dispute that finding.” Id. The government then argues that “other section of the revised statutes may be implicated by the improper signaling…” Id., at 6-7.

The government also claims that because Leatherman did not challenge the trial court’s first conclusion that McGuire did not initiate a stop, the finding must be accorded great weight. The government quotes from the trial court’s second suppression order that “the fact that the officer observed appellant signal a left turn and abruptly pull over to the right is reason to investigate and possibly cite for an improper turn.” Brief for Appellee, BA, at 6.

This Court need only look at the totality of circumstances in order to be shown that McGuire fully intended to pull Rachel Leatherman over at whatever point he found her. McGuire said, “I was going to [stop her], anyway [when he discovered himself overtaking her on US 60], yes. When she started to pull over, I just went ahead and turned my lights on.” VR 4; 11/27/2006; 14:07:28; emphasis added.

McGuire testified that he first checked the Queensway Drive neighborhood, hoping to see the dark blue Buick with the Washington plates. VR 4; 11/27/2006; 14:05:04. He wanted to stop her in that neighborhood if possible. He testified that as he drove toward Paducah and approached the traffic-light controlling the intersection of US 60 and Cairo Road, he suddenly realized he was passing a vehicle matching the description provided by 911.

As I was passing the vehicle, she had her left blinker on as if she was going to turn out in the passing lane, but she never did. And then as I was going to go ahead and go past her, I noticed that the license plate—it was a Washington license plate that was the description that was also given at the time of the call. So when I noticed that, I slowed down and let her go back by me and then when I pulled in behind her, she pulled over. VR 4; 11/27/2006; 14:07:28.

McGuire’s testimony leads to only one conclusion: McGuire intended to pull Rachel Leatherman over whether he had found her in the Queensway neighborhood, on US 60 or in Paducah. Moreover, McGuire found it unusual that the car was going slower than he was and that it had a constantly blinking turn signal. Id., 14:12:20. He also found suspicious the amount of time the turn signal flashed and the car stayed in the right lane without moving into the left. Once he overtook the car, McGuire said he then noticed a white female driving and a set of Washington state license tags. Id., 14:16:42.

After Deputy McGuire slowed and pulled in behind her car, the woman pulled over to the shoulder. McGuire thought that action was as suspicious as the woman driving in the right lane with her left turn signal blinking, so he activated his emergency lights. Id., 14:17:14.

In an attempt to bootstrap probable cause from whatever facts it can garner, the government argues that “both the wine and the beer are violations of KRS 198.530(2).” BA, at 9. At the preliminary hearing, McGuire testified that he had ruled out alcohol intoxication because the PBT had showed that she was not under the influence of alcohol. Transcript of Preliminary Hearing (hereinafter TPH) 8. At the suppression hearing, McGuire said his suspicions that Leatherman was impaired were the allegedly failed HGN test and glassy eyes and that Leatherman was “just very nervous.” VR 4; 11/27/2006; 14:20:36; 14:20:45. Shortly afterward, McGuire admitted that the HGN result by itself could not provide probable cause. Id.; 14:21:45.

Thus, McGuire was left with Leatherman’s “glassy eyes” and appearing “very nervous” as probable cause.
In Garcia v. Commonwealth, a Kentucky State Police Trooper noted Garcia’s “nervousness, lane change, failure to make eye contact, ‘death grip’ on the steering wheel, and out-of-state license plate” as what made up his reasonable suspicion to pull Garcia over. 185 S.W.3d 658 (Ky. 2006).

The Kentucky Supreme Court found such facts describe a substantial number of drivers on our highways and constitute an innocuous mirage created in an attempt to retrospectively justify the stop. If we were to accept the Commonwealth’s argument, ordinary law abiding citizens could be subjected to a stop by police based upon routine driving habits. Simply put, such routine driving habits do not warrant a police stop under Terry.

Id., 665. McGuire gave those facts in a retroactive attempt to justify the stop. He did not have reasonable suspicion or probable cause. Rachel Leatherman requests remand with instructions to suppress the evidence against her.

II. Scrimsher error

The government inexplicably argues that Ms. Leatherman did not have “standing to contest [Deputy McGuire’s] search of his own vehicle.” BA, at 9. The issue at hand has nothing to do with whether McGuire had the authority to search his own vehicle. Rather, the issue concerns the government’s motion in limine to prevent the defense from referring to statements Rachel Leatherman made after McGuire told her he found what looked like drugs next to her watch.

It is important also to review the changing nature of McGuire’s testimony before discussing this issue.
Deputy McGuire testified that as he assisted Ms. Leatherman out of the cruiser at Lourdes Hospital, he saw a baggie with what appeared to be a rock of cocaine lying underneath her watch in the seatbelt crack of the back seat. VR 2; 1/22/2008; 4:06:20. However, at the preliminary hearing, McGuire’s testimony was that the watch and baggie were not in plain view. In fact, he testified that he saw the baggie only when he moved the seat. TPH 11. At the suppression hearing, McGuire testified that the baggie and Ms. Leatherman’s watch were in plain view next to her in the back seat. VR 4; 11/27/2006; 14:25:55.

Interestingly, he also said Leatherman had told him before they went into the hospital that she had dropped her watch. Id., 14:28:15.

The government argues that “Appellant. . .does not show that a foundation was made to impeach the witness with his prior statement as to when and what he said, nor does appellant present a single instance where the court denied her the right to cross-examine the deputy on any of his prior statements nor even that an argument was made to the trial court in that regard.” BA, at 10.

Ms. Leatherman cites the following from her Brief for Appellant:

Despite the ruling, defense counsel attempted to cross-examine Deputy McGuire about the watch:

DC: How is it that you came to find the watch?

DM: Whenever she got out of the backseat, that’s when I found it.

DC: She actually asked you about the watch, didn’t she?

VR 2; 1/22/2008; 5:40:32. The government immediately objected. Defense counsel’s explanation that he did not believe the ruling applied to cross-examining McGuire regarding his direct examination answers fell upon deaf ears. The court sustained the objection. Id.

Brief for Appellant, at 16.

It is clear that defense counsel was attempting to lay a foundation to impeach McGuire when the government objected. It is clear that this is one instance where the trial court denied Leatherman’s right to cross-examine on those prior statements. It is also clear that any further argument would have been futile. The law does not require futile objections. Rachel Leatherman requests relief.

Respectfully submitted,


Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: