The Full Text Reply Brief (Frog Gravy Legal Case)

December 25, 2011

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

PURPOSE OF THIS REPLY BRIEF

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,

JULIA K. PEARSON


The Full-Text Opening Brief [Frog Gravy Legal Case]

December 24, 2011

COMMONWEALTH OF KENTUCKY

Note: This is the Appellant’s Opening Brief filed on behalf of Rachel Leatherman (Crane-Station) in the Kentucky Court of Appeals in the Frog Gravy Legal Case.

COURT OF APPEALS OF KENTUCKY
FILE NO. 2008-CA-849

RACHEL LEATHERMAN
APPELLANT

v.

COMMONWEALTH OF KENTUCKY
APPELLEE

APPEAL FROM MCCRACKEN CIRCUIT COURT
HON. CRAIG Z. CLYMER, JUDGE
INDICTMENT NO. 06-CR-00408

BRIEF FOR APPELLANT

JULIA K. PEARSON
Assistant Public Advocate Department of Public Advocacy
100 Fair Oaks Lane Suite 302
Frankfort, Kentucky 40601
(502) 564-8006

Counsel for Appellant

CERTIFICATE REQUIRED BY CR 76.12(b)

The undersigned does hereby certify that copies of this Brief for Appellant were served upon the following named individuals by United States Mail, postage prepaid, on this 4th day of March 2009: Hon. Craig Z. Clymer, Judge, McCracken Circuit Court, 301 S. 6th Street, Paducah, Kentucky 42003; Hon. James A. Harris, Asst. Commonwealth’s Attorney, McCracken County Courthouse, 301 S. 6th Street, Paducah, Kentucky 42003; Hon. Chris McNeill, Assistant Public Advocate, Department of Public Advocacy, 400 Park Avenue, Suite B, Paducah, Kentucky 42001; and served by messenger mail to Hon. Jack Conway, Attorney General, 1024 Capital Center Drive, Frankfort, Kentucky 40601. I hereby further certify that the record on appeal was returned to the custody of the Clerk of the Court of Appeals of Kentucky.

INTRODUCTION

Rachel Leatherman appeals from a final judgment imposing an eight-year sentence for Possession of a Controlled Substance (cocaine), Tampering with Evidence and Driving under the Influence (drugs). In this appeal, she challenges the validity of the investigatory stop and arrest, as well as several evidentiary rulings which prevented her from cross-examining the witnesses against her and presenting a defense.

STATEMENT AS TO ORAL ARGUMENT

Rachel Leatherman welcomes oral argument if this Court believes it necessary to resolve the issues in this case.

STATEMENT CONCERNING CITATIONS

The record in this case consists of two volumes of Transcript of Record, three videotapes and one supplemental videotape. The Transcript of Record shall be cited as TR page number. The videotapes in the original record were labeled Tape 1 of 3, Tape 2 of 3 and Tape 3 of 3, respectively. Citations to those tapes shall be VR 1 (VR 2 or VR 3); date; time stamp. The supplemental videotape shall be cited as VR 4; date; time stamp.

STATEMENT OF POINTS AND AUTHORITIES

INTRODUCTION i

STATEMENT AS TO ORAL ARGUMENT i

STATEMENT CONCERNING CITATIONS i

STATEMENT OF POINTS AND AUTHORITIES i

STATEMENT OF THE CASE 1

The 911 call 1

Deputy Eddie McGuire stops a vehicle with Washington license plates 1

I. The trial court erred when it failed to suppress the evidence. 3

Preservation 3

Standard of review 3

RCr 9.87 3

Ornelas v. United States, 517 U.S. 690 (1996) 3

Commonwealth v. Neal, 84 S.W.3d 920 (Ky.App. 2002). 3

The information in the 911 call did not constitute reasonable suspicion 3

Florida v. J.L, 529 U.S. 266 (2000) 5

United States v. Hensley, 469 U.S. 221 (1985) 7

U.S. Const. Amend. IV 7, 10, 15

Joshua v. DeWitt, 341 F.3d 430 (6th Cir. 2003) 7

Terry v. Ohio, 392 U.S. 1 (1968) 7

Collins v. Commonwealth, 142 S.W.3d 113 (Ky. 2004) 7

Rachel Leatherman’s actions on US 60 did not provide reasonable suspicion 8

KRS 189.380 9

Garcia v. Commonwealth, 185 S.W.3d 658 (Ky. App. 2006) 9, 13

A stop of at least one hour and fifteen minutes exceeds that permitted for a Terry stop 9

Terry v. Ohio, 392 U.S. 1 (1968) 10

Brown v. Texas, 443 U.S. 47 (1979) 10

U.S. Const. Amend. XIV passim

Ky. Const. § 10 10, 15

Florida v. Royer, 460 U.S. 491 (1983) 10

Baker v. Commonwealth, 5 S.W.3d 142 (Ky. 1999). 11

Deputy McGuire’s “hunch” that Rachel Leatherman possessed a controlled substance was not supported by objective facts and circumstances and did not constitute probable cause for arrest 12
Her eyes appeared glassy and she seemed fidgety or nervous 13

She exhibited nystagmus during the HGN field sobriety test 13

Horizontal Gaze Nystagmus: The Science and the Law, A Resource Guide for Judges, Prosecutors and Law Enforcement. 14

http://www.nhtsa.dot.gov/people/injury/enforce/nystagmus/hgntxt.html#three ………..14

http://www.nhtsa.dot.gov/people/injury/enforce/nystagmus/hgntxt.html#three ………..14

Conclusion 15

II. The trial court erred when it granted the government’s motion in limine which prohibited defense counsel from mentioning that Rachel Leatherman asked Deputy McGuire to retrieve her watch from the backseat. 15

Preservation 15

Schrimsher v. Commonwealth, 190 S.W.3d 318 (Ky. 2006) 16

Rachel Leatherman was unable to present a crucial piece of her defense 16

Crane v. Kentucky, 476 U.S. 683 (1986) 16

Chambers v. Mississippi, 410 U.S. 284 (1973) 16

Beaty v. Commonwealth, 125 S.W.3d 196 (Ky. 2003) 16

United States v. Scheffer, 523 U.S. 303 (1998) 16

Sanborn v. Commonwealth, 754 S.W.2d 534 (Ky. 1988) 17

Manz v. Commonwealth, 257 S.W.2d 581 (Ky. 1953) 18

Davis v. Alaska, 415 U.S. 308 (1974). 18

Williams v. Commonwealth, 569 S.W.2d 139 (Ky. 1978) 18

Even if the statement was hearsay, the right to present a defense trumps a state evidentiary rule 19

Davis v. Alaska, 415 U.S. 308 (1974) 19

Delaware v. Van Arsdall,475 U.S. 673 (1986) 19

The government’s closing argument added to the prejudice 19

RCr 10.26. 19

Doyle v. Ohio, 426 U.S. 610 (1976) 20

Miranda v. Arizona, 384 U.S. 436 (1966) 20

United States v. Williams, 665 F.2d 107 (6th Cir. 1981) 20

Bass v. Nix, 909 F.2d 297 (8th Cir. 1990) 20

Wainwright v. Greenfield, 474 U.S. 284 (1986) 20

Niemeyer v. Commonwealth, 533 S.W.2d 218 (Ky. 1976) 20

Campbell v. Commonwealth, 564 S.W.2d 528 (Ky. 1978) 20

Holland v. Commonwealth, 703 S.W.2d 876 (Ky.1986) 20

Greer v. Miller, 483 U.S. 756 (1987) 20

Eberhardt v. Bordenkircher, 605 F.2d 275 (6th Cir. 1979) 20, 21

Chapman v. California, 386 U.S. 18 (1967) 20

Conclusion 21

Berger v. United States, 295 U.S. 78 (1935) 21

U.S. Const. Amend. V 21

U.S. Const. Amend. VI 21

Ky. Const. § 1 21

Ky. Const. § 2 21, 24

Ky. Const. § 7 21

Ky. Const. § 11 21, 24

III. The trial court erred when it did not grant directed verdict on the Driving under the Influence charge. 21

Preservation 21

KRS 189A.010 22

The evidence does not meet Kentucky’s rules for directed verdict 22

Commonwealth v. Sawhill, 660 S.W.2d 3 (Ky. 1983) 23

Hodges v. Commonwealth, 473 S.W.2d 811 (Ky. 1971) 23

Commonwealth v. Benham, 816 S.W.2d 186 (Ky. 1991) 23

Pengleton v. Commonwealth, 172 S.W.2d 52 (Ky. 1943) 23

Conclusion 24

U.S. Const. Amend. V 24

CONCLUSION 24

APPENDIX 25

STATEMENT OF THE CASE

McCracken County Sheriff’s Deputy Eddie McGuire stopped Appellant, Rachel Leatherman, at 8:19 p.m. on June 28, 2006, as she drove on US 60 eastbound toward Paducah. He suspected that she possessed heroin. His suspicion came as the result of a 911 call that a woman in a neighborhood had asked a man about tar heroin.

McGuire and two backup officers searched Ms. Leatherman’s person and her car for about 1.25 hours. That search yielded no illegal drugs, no drug residue and no paraphernalia. Despite the fact that Leatherman had not committed a traffic violation and a PBT (Portable Breath Test) registered no alcohol, McGuire arrested her for Driving under the Influence and transported her to Lourdes Hospital for a blood draw. VR 4; 11/27/2006; 14:22:30. Subsequent analysis found no alcohol or drugs. VR 1; 1/22/2008; 14:57:46.
The 911 call

Sometime in the evening of June 28, 2006, a man identifying himself as Vernon Wilkey, residing on Queensway Drive, called 911 and said, “there is a lady in a dark blue looks like a Buick LeSabre. I’d say it’s a late 80s, early 90s model. And I’ve got a license plate number. But she’s out here walking around in my neighbor’s yard and everything and writing stuff down and she’d talked to him and mentioned something about tar heroin and all that stuff.” TR 148; emphasis added. Wilkey said the woman driving the car was white and that the vehicle had Washington state plates. TR 149.
Deputy Eddie McGuire stops a vehicle with Washington license plates.

Deputy Eddie McGuire testified at trial that he received a dispatch about a suspicious person on Queensway Drive in McCracken County. He thought it took fifteen to twenty minutes to arrive on scene after the dispatch. After he got to the neighborhood, he looked for a car with Washington state license plates, but was unsuccessful. VR 1; 1/22/2008; 14:09:56.

On the back to Paducah on US 60, the deputy testified that he had just come through the Metropolis Lake intersection when he saw a car with its left turn signal flashing. Id., 14:10:57. According to McGuire, the car was going slower than he was and had that constantly blinking turn signal. Id., 14:12:20. McGuire found unusual the amount of time the turn signal flashed and the amount of time the car stayed in the right lane without moving into the left. Once he overtook the car, McGuire said he 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. Since McGuire had not put his lights on, he thought that action was as suspicious as the woman driving in the right lane with her left turn signal blinking, so he pulled over to the side and activated his emergency lights. Id., 14:17:14.

McGuire said as he walked up to the vehicle, he noticed that the driver’s pants were unbuttoned and unzipped, but were belted. He asked the driver to step to the back of the vehicle. Sometime after that, Deputy Jason Walters came to the scene. The men searched the car for contraband, but came up with nothing. Later, Officer Gretchen Dawes arrived to search the woman. Id., 14:22:34.

After the search turned up no drugs or contraband, McGuire said he placed Rachel Leatherman in handcuffs and put her in his cruiser. He was certain she was wearing a watch, but only thought it was on her right arm. McGuire then took Leatherman to Lourdes Hospital for a blood draw. McGuire’s story was that as he assisted her out of the car, he noticed that Leatherman had dropped her watch and a small baggie containing a substance consistent with a rock of cocaine. He did not confront Leatherman at that time because she was “cooperative” and he did not want to upset her. McGuire was unsure how long the two remained at Lourdes Hospital for the blood draw. Id., 14:28:21.

Deputy McGuire testified that he confiscated the baggie. Once he arrived at the McCracken County Jail and booked Ms. Leatherman, he ran a field test for heroin. That test came back negative. Id., 14:28:25.

Rachel Leatherman was charged with Possession of a Controlled Substance in the First Degree, Tampering with Physical Evidence and Driving an Automobile under the Influence. TR 1-2. She was convicted of all three charges and sentenced to eight years. TR 75-78.

Further facts will be adduced in the Brief.

I.

The trial court erred when it failed to suppress the evidence.

Preservation

Trial counsel filed a Motion to Suppress the Evidence. TR 17, 23-26. The court held a suppression hearing on November 27, 2006. The court denied the motion on January 11, 2007. TR 72-74. It then entered an order setting aside the first denial and substituting a second on January 18, 2008. TR 220-223.

Standard of review

The standard of review on a motion to suppress consists of two steps. First, the trial court’s fact findings are conclusive if supported by the evidence. RCr 9.87. The second step involves a de novo review to determine whether the court’s decision is correct as a matter of law. Ornelas v. United States, 517 U.S. 690 (1996); Commonwealth v. Neal, 84 S.W.3d 920 (Ky.App. 2002).

The information in the 911 call did not constitute reasonable suspicion

The trial court’s second conclusion of law states

The combination of a report of an unknown person, driving a Washington state licensed vehicle in a Paducah, Kentucky residential area, asking about tar heroin, later observed to signal a left turn but pull off the roadway in the right, constitutes reasonable suspicion to investigate and possibly cite for improper signal.

TR 222. The court’s third conclusion of law was that “[a] report of suspicious activity by a person who identifies himself by name, phone number and address is presumptively reliable.” TR 222. These conclusions are incorrect as a matter of law.

At the suppression hearing, Deputy McGuire testified that he was probably somewhere in downtown Paducah when he was dispatched to investigate the 911 call. VR 4; 11/27/2006; 14:05:04. For a few minutes, he checked the neighborhood, hoping to see the dark blue Buick with the Washington plates. When he did not find it, he cleared the call and headed back toward Paducah. Id. He did not check with Vernon Wilkey, the man who made the 911 call, to obtain any additional information, such as what time Wilkey encountered the woman, whether Wilkey saw her leave in a particular direction, whether Wilkey thought she was under the influence or whether the woman had said where she was going.

Deputy McGuire testified that as he 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. McGuire admitted that he did not know how fast he was driving as he drew alongside Ms. Leatherman’s vehicle.

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.

Rachel Leatherman “promptly” handed her identification and proof of insurance to Deputy McGuire. He ordered her to get out of the car and stand behind it. McGuire said she had no problem getting out of the car. In fact, he said that if she had been unsteady on her feet or slurring her speech, he would have documented it in his citation. Id., 14:19:18, 14:20:36.

McGuire did not have reasonable suspicion to stop the Leatherman vehicle, let alone any sort of reason to “investigate.” McGuire did not find “the woman” in the car in the neighborhood where Vernon Wilkey told the 911 operator his neighbor encountered her. When McGuire was unsuccessful in finding her in the area, he did not attempt to make contact with Wilkey. He did not know what time Wilkey encountered the woman, whether he saw her leave in a certain direction or whether he thought she was under the influence. McGuire did not note—as he said he habitually did when he found such symptoms—that Leatherman was unsteady on her feet, slurring her speech, In Florida v. J.L., the United States Supreme Court stated that reasonable suspicion “requires that a tip be reliable in its assertion of illegality, not just a tendency to identify a determinate person.” 529 U.S. 266, 272 (2000). The tip in this case was not “reliable in its assertion of illegality.”

The deputies searched Ms. Leatherman’s car and found no drug paraphernalia, no drug residue and no drugs, other than Leatherman’s three prescription medications. McGuire testified that after the search, he requested a female officer to search Ms. Leatherman’s person. Officer Gretchen Dawes of the Paducah Police Department arrived at the scene and searched Leatherman. Before she arrived, however, McGuire testified that Leatherman had emptied her two front pockets. He could not remember whether Leatherman had buttoned her pants at any time during the automobile and personal searches. Id., 14:25:36.

Deputy McGuire testified that Officer Dawes searched Rachel Leatherman either just before or just after he arrested her. He agreed that “[u]nder the circumstances, [Dawes] was not only looking for weapons but also looking for possible drugs” and found none. Id., 14:25:40. McGuire did not see Dawes search Leatherman’s back pockets, but assumed she did so as part of that thorough search. Finally, McGuire said that en route to Lourdes Hospital, he did not see Leatherman moving in any sort of fashion to indicate that she was trying to hide something. Id.

Neither Officer Dawes nor Deputy Walters testified at the suppression hearing. However, Dawes’ search was not a simple Terry pat-down for officer protection. Dawes searched the inside rear pockets of Rachel Leatherman’s jeans and made her open the front of her pants so she could search Leatherman’s crotch. Dawes made Leatherman lift her shirt so she could search her breasts for concealed controlled substances. TR 26. Even McGuire conceded at the suppression hearing that Dawes’s search was “thorough.” VR 4; 11/27/2006; 14:25:40.

A thorough search by a trained police officer would presumably “sanitize” a suspect before she is handcuffed and placed into a police car. In other words, how is it possible that Rachel Leatherman held onto a baggie with rock cocaine through a search of her vehicle and her person? Assuming for sake of argument that Leatherman did so, where did she conceal the baggie? McGuire had her open her hands up—she did not hold the baggie in her hands. Dawes opened her jeans zipper—Leatherman could not have concealed the baggie in her crotch. The search also begs the question of how Leatherman retrieved the baggie with her hands in handcuffs without moving enough to make at least one of the officers suspicious.

Officer Dawes offered her speculation at trial. She said she was told only that the deputies wanted a female officer to search a female suspect. The deputies did not tell her anything about the case such as whether she was supposed to conduct a Terry pat-down or the more thorough search incident to arrest. Interestingly, Dawes said that if she had prior knowledge that Leatherman had drugs on her person, she would have done a more thorough search. She did admit, on cross, that one of the reasons why a suspect is searched is because the police do not know whether the suspect has drugs on her person. VR 2; 1/23/2008; 9:20:41.

The trial court could rely only upon the information in the 911 call in order to decide whether Deputy McGuire had reasonable suspicion to stop Rachel Leatherman. United States v. Hensley, 469 U.S. 221 (1985). Moreover, the Fourth Amendment requires that reasonable suspicion comes only when the police believe criminal activity is currently afoot. See Joshua v. DeWitt, 341 F.3d 430, 446 (6th Cir. 2003), citing Terry v. Ohio, 392 U.S. 1, 20 (1968); emphasis in original.

The information in this particular 911 call left a good deal to be desired. Yet, in its supplementary order denying Ms. Leatherman’s suppression motion, the trial court found
“presumptively reliable” “[a] report of suspicious activity by a person who identifies himself by name, telephone number and address.” TR 222.

In Collins v. Commonwealth, 142 S.W.3d 113 (Ky. 2004), the Kentucky Supreme Court held that the police lacked reasonable suspicion to stop a vehicle. In that case, an anonymous informant claimed that a white male driving a white Chevrolet Blazer had thrown alcohol at another vehicle parked at a gas station. The caller said the driver of the Blazer had then entered southbound I-75, which was nearby. The Court held that police lacked reasonable suspicion because:
[n]othing in the content of the tip indicates that the tipster either had witnessed or could predict any illegal activity. The pouring of an unidentified liquid from a bottle toward another person may signal a dispute, but it is neither criminal conduct nor a reliable indication that criminal conduct is about to occur.

The Court also found that even though the tipster told the authorities that the Blazer headed south on I-75, nothing about that fact “ma[de] it any more reliable because it did not reveal that the tipster was privy to any illegal conduct.” Id., at 116-117; emphasis added.

The caller said “a lady” was walking around in his neighbor’s yard and talked to him. TR 149. The police had no way of knowing—at the time of the call or the investigation—whether the caller was present when “the lady” spoke to the neighbor. Deputy McGuire testified that he had no idea when the woman had made contact with the neighbor (or Wilkey). VR 4; 11/27/2006; 14:05:04.

Vernon Wilkey did not tell the 911 operator that he had seen heroin or any other drug, for that matter, on the driver’s person or in the seat next to her. He did not say Leatherman had drug paraphernalia on her person, in the seat next to her or in the ashtray. He did not say Leatherman had attempted to sell him or the neighbor heroin (or any other controlled substance). He did not tell the 911 operator that she appeared to be under the influence of drugs or alcohol.

Did the caller simply repeat a conversation he had with his neighbor? Did the caller repeat a conversation with someone who had a conversation with the neighbor about “the lady” walking around and talking to people? That the caller identified himself is of no moment—nothing in the call informed the police about whether he had been a witness to the conversation or was simply repeating a story of a story someone had told him.

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

Deputy McGuire testified at the suppression hearing that after he left Queensway Drive, he drove back toward Paducah on US 60. He came upon what he later identified as the Leatherman car while he drove in the left lane. Ms. Leatherman was in the right lane with her left turn signal blinking. VR 4; 11/27/2006; 14:14:46. McGuire conceded that it was possible Leatherman had activated her turn signal, but decided against moving into the left lane when she saw the cruiser come up in her rear view mirror. Id., 14:15:05.
McGuire had already testified that he was driving faster than the Leatherman vehicle.

His action—coming close to Ms. Leatherman while in the left lane—effectively prevented her from moving into the left lane. That Leatherman did not move to the left lane and collide with the cruiser is evidence that she noticed him coming up on her side. When McGuire slowed and pulled into the right lane, Leatherman did what any watchful, responsible driver would do: assume that the official meant to pull her over. She signaled her intent to move onto the right shoulder by activating her turn signal, pulling onto the shoulder and braking her vehicle to a stop.

McGuire’s argument—the government’s argument—that by acting responsibly and pulling over, Rachel Leatherman’s actions gave reasonable suspicion that something was afoot is nonsensical. Leatherman complied with KRS 189.380, which states that before “turn[ing] a vehicle or mov[ing] right or left on a roadway,” the driver must signal “indicating the intention to turn right or left” “continuously for not less than the last one hundred (100) feet traveled by the motor vehicle before the turn.”

A driver who travels down a highway with her turn signal flashing does not commit a traffic violation. She may aggravate the drivers behind her or in the other lanes, but she does not commit a traffic violation. In fact, the action has become so ubiquitous in American culture that the late comedian George Carlin created a routine centered around people who drove “around the world to the left.” Moreover, that sort of driving does not provide reasonable suspicion to support an investigatory stop. See Garcia v. Commonwealth, 185 S.W.3d 658 (Ky. App. 2006).

A stop of at least one hour and fifteen minutes exceeds that permitted for a Terry stop

The trial court’s first conclusion of law was that “[t]he deputy did not conduct a stop of Defendant’s vehicle. Defendant pulled off the roadway and stopped. The deputy then pulled in behind her and activated his emergency lights so as to investigate.” TR 222. This is incorrect as a matter of law and is unsupported by the evidence.

Deputy McGuire admitted that he did not know how fast he was driving as he drew alongside Ms. Leatherman’s vehicle. He said he was going to pass her car when he noticed the license plate. “[I was going to let] her pass me back, and then I got behind her, and then that’s when she started to pull over. So I went ahead and activated my lights” before she made a complete stop. McGuire himself said he stopped the vehicle. “I was going to, anyway, yes. When she started to pull over, I just went ahead and turned my lights on.” VR 4; 11/27/2006; 14:07:28.

“Whenever a police officer accosts an individual and restrains his freedom to walk away, he has seized that person.” Terry v. Ohio, 392 U.S. 1 (1968); Brown v. Texas, 443 U.S. 47 (1979). When Deputy McGuire stopped Ms. Leatherman and refused to permit her to drive away, he “seized” her “within the meaning of the Fourth and Fourteenth Amendments to the United States Constitution and §10 of the Kentucky Constitution.” Nichols v. Commonwealth, 186 S.W.3d 761, 763 (Ky. App. 2005).

When seizing an individual for purposes of the Fourth Amendment, a police officer must have a reasonable suspicion based upon specific and articulable facts which leads him to believe that a crime has been, is being, or is about to be committed. Then the officer may ask the person a limited number of questions to confirm or dispel the suspicion that led to the stop. “The scope of the detention must be carefully tailored to its underlying justification . . . must be temporary and last no longer than necessary to effectuate the purpose of the stop.” Florida v. Royer, 460 U.S. 491, 500 (1983). If a detention continues for too long a period of time, it becomes an arrest requiring probable cause.

The one hour and fifteen minutes Rachel Leatherman spent on the side of US 60 was anything but a brief investigatory stop. McGuire said he asked Leatherman about what the caller had said. She denied attempting to buy heroin. McGuire did not testify that he saw heroin and/or drug paraphernalia (syringe, “cooker”) in plain view in the car. Once McGuire received a negative answer, his investigation should have ended.
“Whether a seizure is reasonable requires a review of the totality of the circumstances, taking into consideration the level of police intrusion into the private matters of citizens and balancing it against the justification for such action.” Baker v. Commonwealth, 5 S.W.3d 142, 145 (Ky. 1999). Assuming for argument sake that the corked bottle of wine and the cup of beer McGuire saw in plain view and Ms. Leatherman’s failed HGN test may have warranted reasonable suspicion that she was under the influence, the totality of the circumstances leads to the contrary conclusion.

Ms. Leatherman passed the PBT. McGuire admitted that she was not weaving all over the road or using any sort of driving mannerism which would lead to a suspicion that she was under the influence. Leatherman gave him her identification and proof of insurance very quickly after he asked for it. She did not fumble around trying to retrieve either document. She was able to get out of her car without falling all over the road or needing help. She was steady on her feet. McGuire said he always noted obvious signs of impairment on his citations. He did not note that he smelled alcohol on her breath or her person. She did not seem mentally confused. He and Walker did not find illegal drugs, drug residue or paraphernalia when they searched the car. Finally, Leatherman’s blood tests showed the presence of no alcohol. This evidence conclusively establishes that Rachel Leatherman did not commit a crime. She was not committing a crime. She was not about to commit a crime.

So why stop Rachel Leatherman for one hour and fifteen minutes? To see what was afoot. In the face of all the evidence otherwise, McGuire was determined to find something. In spite of an illegal blood draw, in spite of a search conducted on the side of a busy roadway, the police uncovered nothing from a search not supported by reasonable suspicion

Deputy McGuire’s “hunch” that Rachel Leatherman possessed a controlled substance was not supported by objective facts and circumstances and did not constitute probable cause for arrest

The trial court’s fourth finding of fact states: “Defendant’s inquiring about heroin, failing a HGN test, signaling a left turn and pulling off the road to the right, and stating that she was taking medication that would cause her to fail the test, constitutes probable cause to arrest for DUI.” TR 222. This conclusion of law is not supported by the facts and is incorrect as a matter of law.

Deputy McGuire testified that Rachel Leatherman was driving properly when he came upon her vehicle traveling eastbound on US 60. He did not know when the alleged conversation the 911 caller recounted had taken place. Yet, he testified at the preliminary hearing that when he saw a dark blue Buick with Washington state plates, he “stopped her with suspicion that she possibly had some [heroin] on her.” TPH 8.

Deputy Walters administered the PBT and then McGuire administered the Horizontal Gaze Nystagmus test (HGN). At the suppression hearing, he admitted that a law enforcement officer does not have probable cause to arrest a DUI suspect unless the HGN result is corroborated with other evidence. Id., 14:21:45.
At the preliminary hearing , the deputy testified that he had ruled out alcohol intoxication because the PBT had showed no alcohol. Transcript of Preliminary Hearing (hereinafter TPH) 8. He arrested Ms. Leatherman for suspicion DUI (drugs) because she had a distinct nystagmus and was fidgety and nervous. Id. At the suppression hearing, McGuire testified that he always included in his reports any evidence he observed which could indicate a suspect’s impairment. VR 4; 11/27/2006; 14:20:36. McGuire said his suspicions that Leatherman was impaired were the allegedly failed HGN test and glassy eyes, along with his preliminary hearing testimony that Leatherman was “just very nervous.” Id., 14:20:45.

Her eyes appeared glassy and she seemed fidgety or nervous

This characterization is of no legal import and certainly does not provide reasonable suspicion to stop or probable cause to arrest. This Court has held that perfectly innocent people often exhibit the same characteristics when stopped by police. Garcia v. Commonwealth, 185 S.W.3d 658, 665 (Ky. App. 2006).
She exhibited nystagmus during the HGN field sobriety test

McGuire should not have administered the test in the first place. McGuire did not testify to any clue Rachel Leatherman gave that she was impaired. She drove in compliance with traffic laws. She produced her license and registration quickly after he asked for them. Her eyes were not watery or bloodshot. Her pupils were not pinpoint or dilated. She was not scratching as some persons who inject drugs might. She did not have a runny nose as is common with some cocaine users. She did not have scabs or needle marks, also common with intravenous drug users. She was not coughing or short of breath; she was not sneezing or sweating. She did not complain of nausea or chest pains. Her face was not flushed. She was alert.

McGuire admitted at the suppression hearing that the HGN result by itself could not provide probable cause. VR 4; 11/27/2006; 14:21:45. Unfortunately, even assuming arguendo that other indicators had been present, McGuire improperly administered the test.

The National Highway Traffic Safety Administration (NHTSA) is an administrative agency housed within the United States Department of Transportation. NHTSA oversees and regulates all matter related to traffic safety. Since 1977, NHTSA has studied various field sobriety tests in order to develop a standardized set of field sobriety tests. As a result of those tests, NHTSA warned police officers to position DUI suspects so that they do not face blinking cruiser lights or oncoming traffic because the lights can create a false nystagmus (optokinetic nystagmus). Horizontal Gaze Nystagmus: The Science and the Law, A Resource Guide for Judges, Prosecutors and Law Enforcement.

The field video shows that McGuire positioned Rachel Leatherman facing the blinking cruiser lights and oncoming traffic. The test was neither administered properly nor documented.

McGuire testified that Leatherman told him she had a prescription for Metoprolol because she had hypertension. Documentation for Metoprolol shows that a side effect can be nystagmus. Under those circumstances, McGuire finding “all six clues” should be found legally meaningless.

As part of its reasoning that Deputy McGuire had probable cause to arrest Ms. Leatherman, the trial court noted her statement that “she was taking medication that would cause her to fail the test, constitutes probable cause to arrest for DUI.” TR 222. McGuire testified that Leatherman told him she was taking Adderall, Clonazepam and Metoprolol. VR 4; 11/27/2006; 14:10:56. However, neither McGuire nor any other government witness testified at about the effects of any of those drugs, let alone Clonazepam. The Physicians’ Prescribing Information describes Clonazepam (Klonopin) as a benzodiazepine used to treat seizure or panic disorder. The insert also tells physicians: “[b]ecause benzodiazepines have the potential to impair judgment, thinking or motor skills, patients should be cautioned about operating hazardous machinery, including automobiles, until they are reasonably certain that Klonopin does not affect them adversely.” See Appendix C.

There is no evidence that Rachel Leatherman admitted taking medication that would cause her to fail any test. McGuire testified that she told him she could not perform the physical dexterity field sobriety tests because she had surgery on her ankle. VR 4; 11/27/2006; 14:10:35. He said Leatherman told him she had taken her prescribed medication. No government witness testified about how taking Klonopin affected Leatherman. The court’s conclusion not borne out by the evidence and is entitled to no legal significance.

Conclusion

None of the evidence Deputy McGuire cited added up to reasonable suspicion or probable cause. The 911 call did not contain enough reliable information to form reasonable suspicion. Rachel Leatherman was driving in accordance with the law. She was going slowly enough that McGuire nearly passed her. She passed a PBT in the field. The “failed” HGN is of no significance. A blood draw showed Leatherman had no alcohol or drugs in her system. Leatherman’s “glassy eyes” could not constitute probable cause. The court erred when it denied Rachel Leatherman’s motion to suppress. Her rights under the Fourth and Fourteenth Amendments to the United States Constitution and §10 of the Kentucky Constitution were violated. She requests relief.
II.

The trial court erred when it granted the government’s motion in limine which prohibited defense counsel from mentioning that Rachel Leatherman asked Deputy McGuire to retrieve her watch from the backseat.

Preservation

Just before trial began, the government moved in limine to prevent the defense from referring to statements Rachel Leatherman made after Deputy McGuire told her he found what looked like drugs next to her watch. The defense argued that the statement was admissible under Schrimsher v. Commonwealth, 190 S.W.3d 318 (Ky. 2006), in which the Kentucky Supreme Court held that hearsay statements were admissible if needed to explain or further expose other statements introduced by the government. The government’s response to that was the defense “still [did not] get [Schrimsher] right.” The court said the statement was hearsay unless Leatherman testified. VR 1; 1/22/2008; 8:56:24.

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.

Rachel Leatherman was unable to present a crucial piece of her defense

The due process clause of the Fourteenth affords every criminal defendant the fundamental right to present a defense. Crane v. Kentucky, 476 U.S. 683, 690-91 (1986); Chambers v. Mississippi, 410 U.S. 284, 294 (1973); Beaty v. Commonwealth, 125 S.W.3d 196, 206 (Ky. 2003). Exclusion of evidence violates that constitutional right when it “significantly undermine[s] fundamental elements of the defendant’s defense.” United States v. Scheffer, 523 U.S. 303, 315 (1998).

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.

What the jury did not know was McGuire’s story had changed as the case progressed. 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.

By the time the suppression hearing came around, McGuire’s testimony changed. Now 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.

In any event, the jury heard McGuire say he noticed she had dropped her watch when he found the cocaine. Thus, the jury heard two admissions, only one of which was true. Rachel Leatherman admitted the watch was hers. The other alleged (unvocalized) admission was the guilt by association that if the watch belonged to Leatherman, the cocaine was hers also.

What the jury did not hear was that Rachel Leatherman told him she had dropped her watch and where. The court’s ruling was incorrect.

Ms. Leatherman’s request for McGuire to retrieve her watch was not hearsay. It was not offered to proof the truth of the matter asserted: that she lost her watch. McGuire said Leatherman “admitted” the watch was hers. It was admissible non-hearsay to do what Schrimsher said is permissible: “guard against any likely misperception that would be created by an opponent’s presentation of a fragmented version of the statement.” 190 S.W.3d 318, 331 (Ky. 2006). It was admissible non-hearsay to show the effect on McGuire: she told him to look behind the seat when she told him she had lost her watch and where. Sanborn v. Commonwealth, 754 S.W.2d 534, 541 (Ky. 1988), quoting Manz v. Commonwealth, 257 S.W.2d 581 (Ky. 1953). It was admissible non-hearsay to show McGuire’s inconsistent statements: that at the preliminary hearing, McGuire testified that the baggie and watch were not in plain view because he did not find them until he pulled the seat back.

There is simply no way to reconcile McGuire’s conflicting accounts regarding whether he saw the baggie and watch in plain view or not in plain view. McGuire had been a member of the McCracken County Sheriff’s Department for four and one-half years. VR 1; 1/22/2008; 14:08:45. Presumably, he was familiar with the meaning of the phrase “plain view.” At the suppression hearing and at the trial, he testified that the baggie and watch were in plain view. Yet, at the preliminary hearing, he testified that he saw the baggie only after he pulled the seat back.

Cross-examination is the principal method to test the believability of a witness and the truth of his testimony. Davis v. Alaska, 415 U.S. 308, 316 (1974). “[T]he right to cross-examine a witness to impeach his credibility or show motive or prejudice is fundamental to a fair trial.” Williams v. Commonwealth, 569 S.W.2d 139, 145 (Ky. 1978). The trial court’s ruling prevented Rachel Leatherman from exercising her right to confrontation by testing the believability of McGuire’s testimony and his changing story.
Did McGuire, a trained sheriff’s deputy, simply forget his testimony at the preliminary hearing? Given the two irreconcilable versions of how he discovered the baggie and Officer Dawes’s speculative testimony about how she failed to find the baggie during a “thorough” search , a juror could have questioned McGuire’s certainty that the baggie was not in his cruiser the day before. In order to test the truth of a witness’s testimony, however, the jury has to have heard that the witness told two stories. In this case, after the court’s erroneous ruling, the jury did not.

Even if the statement was hearsay, the right to present a defense trumps a state evidentiary rule

Even if the government was correct that Schrimsher disallowed a full exposition about how Rachel Leatherman’s watch was found—which she does not concede—here Smith’s constitutional right to confront witnesses and present a defense outweighs the effect of a state evidence rule. In Davis v. Alaska, the United States Supreme Court held that confrontation rights were violated when the defendant was denied the right to cross-examine a state witness concerning the latter’s probationary status as a juvenile offender despite the fact there existed a statute guarding against use of such information. The High Court made clear that in situations where a witness has little or nothing at stake, the federal constitutional right to confrontation is stronger than a state rule enacted to protect the witness. 415 U.S. 308 (1974). And the Court said in another case, Delaware v. Van Arsdall, confrontation rights are denied when an accused is prevented from “engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness.” 475 U.S. 673 (1986).

The government’s closing argument added to the prejudice

This prong of the argument is not preserved. Ms. Leatherman requests review under RCr 10.26.

The government took full advantage of the court’s incorrect ruling when it referred to Ms. Leatherman’s watch as her “autograph” on the rock of cocaine. Then the government ended its argument with the following:

The simple issue under this case is whether a jury is going to hold her accountable or give her a pass for reasons that have not been presented, no justifications, no excuses, no contradictions of the facts and the testimony you heard.VR 2; 1/23/2008; 2:38:30.

The government knew—because it had moved in limine to prevent it—that the jury was not going to hear the whole story of how McGuire’s story changed from a preliminary hearing statement that Rachel Leatherman told him she had dropped her watch to a suppression hearing/trial statement that he found her watch after she got out of the car at Lourdes Hospital. And the government took full advantage when it commented on Leatherman’s “silence” when it said the jury had not heard “reasons,” “justifications,” “excuses” or “contradictions of the facts.” Id., emphasis added.

In Doyle v. Ohio, 426 U.S. 610, 618 (1976), the United State Supreme Court concluded the use of a defendant’s post-arrest, post-Miranda silence violated fundamental fairness and the due process clause of the Fourteenth Amendment. See also United States v. Williams, 665 F.2d 107 (6th Cir. 1981); Bass v. Nix, 909 F.2d 297 (8th Cir. 1990). “What is impermissible is the evidentiary use of an individual’s exercise of his constitutional rights after the State’s [implied] assurance that the invocation of these rights will not be penalized.” Wainwright v. Greenfield, 474 U.S. 284, 295 (1986). Kentucky has long recognized this principle. Niemeyer v. Commonwealth, 533 S.W.2d 218 (Ky. 1976); Campbell v. Commonwealth, 564 S.W.2d 528 (Ky. 1978); Holland v. Commonwealth, 703 S.W.2d 876,880 (Ky.1986).

Even a single comment on silence can constitute a Doyle violation. Greer v. Miller, 483 U.S. 756, 764, n. 5 (1987); Eberhardt v. Bordenkircher, 605 F.2d 275, 279 (6th Cir. 1979).

“Harmless error, in the context of a violation of a constitutional right of a defendant, is an extremely narrow standard, permitting the State to avoid the retrial of a defendant only when it can demonstrate beyond a reasonable doubt that the error did not contribute in any way to the conviction of the defendant. Chapman v. California, 386 U.S. 18 (1967).” Eberhardt, supra. Harm is presumed to flow from constitutional error. The burden is on the government to conclusively demonstrate to the contrary. Id.
Here, the prosecution cannot meet its burden. Deputy McGuire told fundamentally divergent stories of how he came to find Rachel Leatherman’s watch. Whether the jury believed him depended on its assessment of his credibility, yet, it heard only one story.

Conclusion

Prosecutors have an affirmative duty to conduct trials in a fair manner. The United States Supreme Court stated:

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor–indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

Berger v. United States, 295 U.S. 78, 88 (1935). The government’s motion in limine violated Rachel Leatherman’s right to present a defense, to confront the witnesses against her and to be free from comments on her constitutional right to remain silent under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and §§ 1, 2, 7 and 11 of the Kentucky Constitution. Reversal is required.

III.

The trial court erred when it did not grant directed verdict on the Driving under the Influence charge.

Preservation

Defense counsel moved for directed verdict of acquittal at the close of the government’s case and again at the close of all the evidence. VR 3; 1/23/2008; .
KRS 189A.010 provides in part: “a person shall not operate or be in physical control of a motor vehicle. . . .[h]aving an alcohol concentration of 0.08 or more,” “while under the influence of alcohol. . . .or any other substance or combination of substances which impairs one’s driving ability.” The instructions mirrored the statute. TR 237.

At first blush, it may appear that the evidence showed Rachel Leatherman was driving while impaired. After all, Deputy McGuire testified that she showed “all six clues” on the HGN. VR 1; 1/22/20008; 14:51:12. Clinical testing did not bear this out. Ryan Johnson, a forensic science specialist at the KSP Lab in Frankfort, told the jury that Leatherman’s blood test showed no or drugs present in her system. Id., 15:07:23. The only means for the government to make out its case, then, was for Johnson to testify about the effects of Klonopin. There was just one problem: Johnson said the KSP lab did not have the proper equipment to examine blood for Klonopin. Id., 14:57:46.

That little fact did not prevent him from speculating about what might have been in Rachel Leatherman’s system and how that drug might have impaired her functioning. Johnson admitted on cross that even if he had found Clonazepam in Rachel Leatherman’s blood sample, it was still not an indicator that she was under the influence. He said the literature showed effects of Clonazepam lasted six to eight hours. VR 1; 1/22/2008; 15:03:36. Yet, no one testified about when Leatherman took her last dose or what the dosage was, perhaps because McGuire did not seize her prescription bottles.

The evidence does not meet Kentucky’s rules for directed verdict

In Commonwealth v. Sawhill, the Kentucky Supreme Court discussed circumstantial evidence and declared that “the trial court is certainly authorized to direct a verdict for the defendant if the prosecution produces no more than a mere scintilla of evidence.” 660 S.W.2d 3, 5 (Ky. 1983). The Sawhill case also requires that a person must be convicted upon “evidence of substance.” Id.

In Sawhill, the Court relied in part on Hodges v. Commonwealth, 473 S.W.2d 811 (Ky. 1971). Language in the Hodges case states that when evidence is circumstantial, all circumstances must “point unerringly” to guilt. Id. at 814. Both the Sawhill and Hodges cases require evidence such that based upon it, “reasonable minds might fairly find guilt beyond a reasonable doubt.”

In Commonwealth v. Benham, 816 S.W.2d 186 (Ky. 1991), the Supreme Court reaffirmed the Sawhill scintilla rule and the requirement that there be “evidence of substance” and added a reference to “fair and reasonable inferences.” Id., at 187.

The third Kentucky standard for evaluating sufficiency of the evidence, particularly in circumstantial evidence cases, is the no-inference-upon-inference standard, also a pure rule of reasonableness. Pengleton v. Commonwealth, 172 S.W.2d 52 (Ky. 1943). An inference is less than a scintilla, it cannot stand alone as the basis for a finding of guilt, or else is becomes unreasonable. Inferences, with no solid foundation, are not reasonable.

It is unreasonable, as occurred in Ms. Leatherman’s case, for unsupported inferences to provide solitary proof on an element. That is precisely what this jury was asked to do—pile inferences upon inferences: that because Ryan Johnson said Clonazepam could cause intoxication, that because Rachel Leatherman had taken Clonazepam, she was intoxicated and that because she was driving, she was therefore driving while impaired.

Those inferences ignore the evidence. Johnson admitted on cross that even if he had found Clonazepam in Rachel Leatherman’s blood sample, it was still not an indicator that she was under the influence. VR 1; 1/22/2008; 15:03:36. No one testified about when Rachel Leatherman took her last dose. No one testified about the effects of the drug on Leatherman. Rather, the jury simply inferred its way to a guilty verdict.

Conclusion

Rachel Leatherman’s rights to due process of law under the Fifth and Fourteenth Amendments to the United States Constitution and §§2 and 11 of the Kentucky Constitution were violated. She requests reversal.

CONCLUSION

The government presented a case based upon speculation. The trial court prevented Rachel Leatherman from confronting the witnesses against her and presenting a defense. The government then used that ruling to its advantage when it commented on her silence. The court’s rulings on the suppression motion deserve no legal legitimacy. Rachel Leatherman requests relief.

Respectfully submitted,

Julia K. Pearson
Attorney for Appellant

APPENDIX

Tab Number Item Description Record Location

1 (A1 – A4) Final Judgment TR 275 – 278

2 (A5 – A7) Indictment TR 1 – 3

3 (A8 – A14) Physician’s information for Clonazepam


Petition For Rehearing In Frog Gravy Legal Case (Full Text)

December 23, 2011

Author’s Note: This is a full text copy of the Petition for Rehearing filed on behalf of Crane Station by her lawyer, Julia Pearson, in the Kentucky Court of Appeals.

PURPOSE OF THE PETITION FOR REHEARING

The purpose of this Petition is to correct this Court’s mistakes of fact and/or law pertinent to Ms. Leatherman’s appeal of her convictions and sentence.

STATEMENT OF POINTS AND AUTHORITIES

PURPOSE OF THE PETITION FOR REHEARING i

STATEMENT OF POINTS AND AUTHORITIES i

Walking around a neighborhood is not a criminal act 1

Leatherman v. Commonwealth, 2011 WL 181251 (Ky.App., January 21, 2011) passim

Florida v. J.L., 529 U.S. 266 (2000) 1, 2, 3

Collins v. Commonwealth, 142 S.W.3d 113 (Ky. 2004) 1, 2

Facts based upon after-acquired information cannot
be used in the calculus 2

United States v. Hensley, 469 U.S. 221 (1985) 3

Florida v. Royer, 460 U.S. 491 (1983) 3

Terry v. Ohio, 392 U.S. 1 (1968) 3, 4

KRS 189.930 5

Garcia v. Commonwealth, 185 S.W.3d 658 (Ky. App. 2006) 5

Exculpatory scientific tests trumped by “glassy eyes”
and an improper HGN 5

Illinois v. Wardlow, 528 U.S. 119 (2000) 6

Joshua v. DeWitt, 341 F.3d 430 (6th Cir. 2003) 6

United States v. Brignoni-Ponce, 422 U.S. 873 (1975) 7

Florida v. Rodriguez, 469 U.S. 1 (1984) 7

United States v. Sokolow, 490 U.S. 1 (1989) 7

Effects of Clonazepam/Klonopin 7

Conclusion 8

Scrimsher issue 8

KRE 801A(b) 8

Walking around a neighborhood is not a criminal act

This Court concludes:

Based upon the 911 call, during which the caller described a woman. . . who was committing criminal activity, and the undisputed fact that Leatherman pulled to the side of the road and stopped before Deputy McGuire activated his emergency lights, we hold that there was no constitutional violation in the investigatory stop.

Leatherman v. Commonwealth, 2011 WL 181251, *7 (Ky.App., January 21, 2011).

This Court ignored United States and Kentucky Supreme Court precedent in finding those facts were enough predictive information with which Deputy McGuire could arrest Ms. Leatherman. In Florida v. J.L., Florida officers received a phone call that a young, black male who was wearing a plaid shirt and standing with two other males at a bus stop was carrying a gun. Based on the tip, officers located and searched the young man wearing a plaid shirt standing at the bus stop. The United States Supreme Court found that the tip gave police no independent reason to suspect that J.L. was up to no good. 529 U.S. 266, 274 (2000).

In Collins v. Commonwealth, 142 S.W.3d 113 (Ky. 2004), the Kentucky Supreme Court found that a tip claiming that a man driving a white Chevrolet Blazer with a certain license plate threw alcohol at another vehicle parked at a gas station was likewise not enough information that something criminal was afoot.
As in J.L., the tip provided in this matter contained no predictive information; rather, it consisted almost entirely of information readily available to a casual bystander, such as Appellant’s license plate number, his direction of travel, and the make and model of his vehicle. Thus, Trooper Oliver was left with no predictive information to corroborate, or other means by which to verify that the tipster had intimate knowledge of any illegal behavior. Id., at 116.

The facts of this case do not create a conclusion that reasonable suspicion existed to stop Rachel Leatherman. Vernon Wilkey did not tell the dispatcher that Leatherman was asking “where may I get black tar heroin” “do you have any black tar heroin” or even “does a drug dealer live in this neighborhood?” He told the dispatcher that she simply “mentioned” tar heroin.

Just as in J.L. and in Collins, all Deputy McGuire had was a dispatch that a woman who was walking around a neighborhood in McCracken County and mentioned tar heroin. McGuire admitted at the suppression hearing that “[a]t the time we responded, the only information that we had was the fact that she had come up to his house and asked about heroin.” TR 155. He admitted at the suppression hearing that he “got the statement” from Wilkey “after the incident had already occurred.” Id., emphasis added. If this Court’s holding remains extant, the simple acts of “walking around” in a neighbor’s yard, “writing stuff down” and simply mentioning tar heroin without any words to indicate intent to buy or sell, then in contravention of federal and state case law, the police are absolutely free to engage in fishing expeditions.

Moreover, this Court is simply incorrect when it states that “Leatherman has not contested the trial court’s factual findings in its orders denying her motion to suppress. Rather, she has contested the trial court’s conclusions of law based upon those findings.” Leatherman, supra, 2011 WL 181251 *6. While the words “Leatherman disputes the court’s findings of fact” may not have been used, Leatherman points this Court to discussions of Findings of Fact 2-4 and Conclusions of Law 1-3 at pages 4, 5 and 7-9 of the Brief for Appellant. She points this Court to discussions of Findings of Fact 6-9 and Conclusions of Law 4-6 at pages 11-15, also in the Brief for Appellant.

Facts based upon after-acquired information cannot be used in the calculus

As part of its factual foundation for the holding described supra, this Court cites the dispatch tape, the transcript of which reads in part, “white female in a dark blue LeSabre that’s out walking around asking people about 218A.” Leatherman, 2011 WL 181251, at *2. This Court also cites Vernon Wilkey’s statement written the next day. Id. Both of these pieces of information are “after-acquired” and are not to be considered when determining whether reasonable suspicion existed.

The dispatch tape did not provide reasonable suspicion for Deputy McGuire to make the stop. The dispatch simply told him a woman was walking around a neighborhood “asking people about 218A.” Id. In United States v. Hensley, the United States Supreme Court held that a police department may rely on a flyer or bulletin issued by another police department in order to check a person’s identification if that flyer or bulletin is issued “on the basis of articulable facts supporting a reasonable suspicion that the wanted person has committed an offense.” 469 U.S. 221, 232 (1985).

If this Court upholds its ruling, any person—axe to grind or not–who gives his name and address may pick up a phone and report some “crime” and have that report be deemed reliable. That analysis flies in the face of J.L., supra; Florida v. Royer, 460 U.S. 491 (1983), Hensley, supra; and Terry v. Ohio, 392 U.S. 1 (1968). The ultimate irony for this case is that after the hour and one-half Deputy McGuire held Rachel Leatherman on the side of the road, he found nothing illegal. This Court stated as much when it said, “consent searches of her automobile and her person did not reveal any heroin or any other illegal substance.” Leatherman, supra, 2011 WL 181251, at *7.

Was the woman “asking about 218A” doing a survey for the local newspaper or television station? Doing surveys for local media is a perfectly legal action. Was she a teacher doing a survey for a local high school civics or social studies class? Doing those sorts of surveys is also a legal act. But McGuire jumped to the conclusion that Rachel Leatherman had to have been committing some sort of crime because she was talking to people in a neighborhood and mentioned tar heroin. Unfortunately for McGuire, in Terry, supra, the United States Supreme Court made clear that the officer’s reasonable suspicion must be made from the facts and the “specific reasonable inferences he is entitled to draw from the facts in light of his experience.” 392 U.S. at 21; emphasis added. McGuire’s suspicion was not based upon reasonable inferences from the facts he had at hand.

This Court adds to that calculus the trial court’s finding that when Deputy McGuire fell in behind Ms. Leatherman’s automobile, she stopped the car. This Court proclaims the fact “undisputed”. Leatherman v. Commonwealth, supra, 2011 WL 181251 at *7. This Court ignores the fact that Leatherman disputed the finding. On page 8 of the Brief for Appellant, Leatherman pointed out:

McGuire conceded that it was possible Leatherman had activated her turn signal, but decided against moving into the left lane when she saw the cruiser come up in her rear view mirror. Id., 14:15:05.

McGuire had already testified that he was driving faster than the Leatherman vehicle. His action—coming close to Ms. Leatherman while in the left lane—effectively prevented her from moving into the left lane. That Leatherman did not move to the left lane and collide with the cruiser is evidence that she noticed him coming up on her side. When McGuire slowed and pulled into the right lane, Leatherman did what any watchful, responsible driver would do: assume that the official meant to pull her over. She signaled her intent to move onto the right shoulder by activating her turn signal, pulling onto the shoulder and braking her vehicle to a stop. Brief for Appellant, id.

McGuire admitted at the suppression hearing that he “was going to” stop Leatherman “anyway” when she pulled to the shoulder. TR 165. He also admitted, “I suppose she assumed I was going to stop her, so she went ahead and pulled over, anyway.” He admitted that Leatherman’s actions “were a safe assumption” that he was going to stop her. TR 166. Yet, McGuire, the trial court and this Court find it suspicious that Leatherman speedily obeyed the demands of KRS 189.930, which mandates that emergency vehicles are to be given the right of way, by the operator of the motor vehicle “driv[ing] to a position parallel to, and as close as possible to, the edge or curb of the highway clear of any intersection. . .”

This Court also ignored Garcia v. Commonwealth, in which a member of this panel found the police did not have reasonable suspicion to stop a driver who “quickly changed to the right lane” as a Kentucky State Police Trooper approached the vehicle. 185 S.W.3d 658, 660-661 (Ky. App. 2006). The panel found that “Garcia’s nervousness, lane change, failure to make eye contact, ‘death grip’ on the steering wheel, and out-of-state license plate. . . . describe a substantial number of drivers on our highways.” Further, the panel said, “[i]f 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.” Id., at 665.

Contrast Garcia’s behavior with that of Rachel Leatherman in the case at bar. According to the officers in each case, both Leatherman and Garcia appeared nervous and changed lanes and had out-of-state license plates. The difference is that Leatherman driving with a turn signal blinking is somehow seen as suspicious behavior rather than the routine (for some drivers) driving habit that it unfortunately is.

Exculpatory scientific tests trumped by “glassy eyes” and an improper HGN

This Court uses as part of its reasoning for affirming Rachel Leatherman’s convictions that she “failed the HGN test, which reveals intoxication by alcohol or some other drug”. Even assuming arguendo that the other indicators had been present (addressed infra), McGuire improperly administered the test. As Leatherman cited in her brief, The National Highway Traffic Safety Administration warned police officers to position DUI suspects so that they do not face blinking cruiser lights or oncoming traffic because the lights can create a false nystagmus (optokinetic nystagmus). The field video shows McGuire positioned Rachel Leatherman facing the blinking cruiser lights and oncoming traffic. Moreover, this Court ignored the fact that Metoprolol, which Leatherman told McGuire she had been prescribed for hypertension, can cause nystagmus. The test was neither administered properly nor documented. For this Court to rely on this so-called “failed” test in order to affirm Leatherman’s conviction is an arbitrary and incorrect legal analysis.

This Court notes that McGuire’s “observation of [Rachel] Leatherman’s glassy eyes and odd behavior coupled with her admission that she was taking prescription medication” was sufficient to provide Deputy McGuire with probable cause to arrest her for DUI. Leatherman, supra, at *9. This Court ignored McGuire’s admissions that Leatherman drove in compliance with traffic laws. This Court even says as much when it cites McGuire’s testimony that Leatherman was neither driving erratically nor weaving. Id.

Leatherman produced her license and registration quickly after he asked for them. Her eyes were not watery or bloodshot. Her pupils were not pinpoint or dilated. She did not have a runny nose as is common with some cocaine users. She did not have scabs or needle marks, also common with intravenous drug users. She was not coughing or short of breath; she was not sneezing or sweating. She did not complain of nausea or chest pains. Her face was not flushed. She was alert. Moreover, McGuire admitted at the suppression hearing that the HGN result by itself could not provide probable cause. VR 4; 11/27/2006; 14:21:45. Neither does nervous behavior.

This Court ignored United States Supreme Court and Sixth Circuit case law which establishes that nervous, evasive behavior is the standard to justify reasonable suspicion, not simple nervousness or restlessness. Illinois v. Wardlow, 528 U.S. 119, 124 (2000); Joshua v. DeWitt, 341 F.3d 430 (6th Cir. 2003). One need only look at several Supreme Court cases regarding drug smuggling at the United States-Mexico border to determine that evasive behavior is the key. United States v. Brignoni-Ponce, 422 U.S. 873, 885 (1975) (“The driver’s behavior may be relevant, as erratic driving or obvious attempts to evade officers can support a reasonable suspicion.”); Florida v. Rodriguez, 469 U.S. 1, 6 (1984) (“[T]he three confederates … had spoken furtively to one another. One was twice overheard urging the others to ‘get out of here.’ Respondent’s strange movements in his attempt to evade the officers aroused further justifiable suspicion….”); United States v. Sokolow, 490 U.S. 1, 5, 8-9 (1989) (noting that “[Respondent] appeared to be very nervous and was looking all around the waiting area,” but that “one taking an evasive path through an airport might be seeking to avoid a confrontation with an angry acquaintance or with a creditor”).

Effects of Clonazepam/Klonopin

As the final rung of its finding that McGuire had probable cause to arrest Ms. Leatherman for DUI, this Court cites to “the product information for Klonopin. . . .[which] states that patients taking that medication “should be cautioned about operating hazardous machinery, including automobiles, until they are reasonably certain the Klonopin therapy does not affect them adversely.” Leatherman, supra, at *9.

Unfortunately, that information is also after-acquired and not something Deputy McGuire knew at the scene. What McGuire knew were the bare facts that Ms. Leatherman told him she had been prescribed Klonopin and was taking the medication. The trial court made the same error when it noted her statement that “she was taking medication that would cause her to fail the test, constitutes probable cause to arrest for DUI.” TR 222.

Moreover, this Court and the trial court disregarded KSP lab tech Ryan Johnson’s testimony that Klonopin itself could cause “positive” HGN signs. VR 4; 1/22/2008; 2:59:55. This Court (and the trial court) also overlooked Johnson’s testimony that even if he had the equipment to test Rachel Leatherman’s blood for the presence of Klonopin, the simple presence of the medication in her bloodstream was not an indicator that she person was under the influence such that she could be charged with, let alone convicted of, driving under the influence of an intoxicant. Id., 3:03:36.

Conclusion

This Court ignored the facts and law of this case in affirming Rachel Leatherman’s convictions for driving under the influence. She requests a full and fair rehearing.

Scrimsher issue

This Court finds that the trial court did not abuse its discretion when it did not admit Leatherman’s statements to Deputy McGuire from the back of his cruiser. This Court says, “the trial court indicated that it would permit Leatherman to testify to her statement regarding the watch had she opted to take the stand in her own defense.” Leatherman, supra, at *10. This finding is inconsistent with the trial court’s ruling that Leatherman’s statements were inadmissible, self-serving hearsay. VR 1; 1/22/2008; 8:56:24. In light of the government’s announcement that it believed “801A(b)” prevented trial counsel from broaching the subject, this Court cannot conclude that had Leatherman testified, “I asked Deputy McGuire to look for my watch,” the government would not have been strenuously objecting on hearsay grounds. But why should Leatherman be forced to give up her right to remain silent so that an already admissible statement could come into evidence?

This Court next finds “Leatherman did not attempt to impeach Deputy McGuire’s prior statements regarding discovery of the watch and drugs through laying a proper foundation.” Leatherman, supra, at *10. In reaching this conclusion, this Court disregards both testimony and the Brief for Appellant. In his cross-examination, defense counsel asked Deputy McGuire how he “came to find the watch” and whether Leatherman “actually asked [him] about the watch.”VR 2; 1/22/2008; 5:40:32. The government immediately objected. It is hard to fathom what else counsel was attempting to do besides lay a foundation so that he could cross-examine McGuire when he was prevented from doing so. This Court focuses on Leatherman’s alleged failure to impeach McGuire to the exclusion of the impeaching material to be discovered through a proper cross-examination.

This Court overlooked just how Deputy McGuire’s testimony changed in the months between the preliminary hearing, the suppression hearing and trial. 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. By the time the suppression hearing came around, 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. At trial, 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.

This Court cannot reconcile McGuire’s conflicting accounts regarding whether he saw the baggie and watch in plain view or not in plain view. McGuire had been a member of the McCracken County Sheriff’s Department for some time. VR 1; 1/22/2008; 14:08:45. Presumably, he was familiar with the meaning of the phrase “plain view.”

Finally, this Court opines that the outcome of the case would not have been changed because of the “strength of the rest of the testimony. . . .including the close proximity of the watch and the drugs as well as the search of the area prior to Leatherman’s placement in the cruiser.” Leatherman, supra, at *10. It is hard to fathom how testimony which changes in material ways from preliminary hearing to trial is “strong”.

This Court also ignored Gretchen Dawes’s testimony about her search of Rachel Leatherman’s person. Prior to Dawes’s arrival, McGuire testified, Leatherman emptied her front pockets. VR 4; 11/27/2006; 14:25:36. Dawes searched the inside rear pockets of Leatherman’s jeans and made her open the front of her pants so she could search Leatherman’s crotch. She made Leatherman lift her shirt so she could search her breasts for concealed controlled substances. TR 26. Even McGuire conceded that Dawes’s search was “thorough.” VR 4; 11/27/2006; 14:25:40.

Yet, this Court has believed the impossibility that Rachel Leatherman held onto a baggie with rock cocaine through a search of her vehicle and her person. Where did she conceal the baggie? As is clearly seen on the dashboard camera, McGuire had her open both her hands at one time—she could not have held the baggie in one hand, then the other. Dawes opened her jeans zipper—Leatherman could not have concealed the baggie in her crotch or the waistband of her jeans. Dawes had her raise her blouse—Leatherman could not have concealed the baggie in her bra. This also begs the question of how Leatherman retrieved the baggie–in handcuffs–without moving enough to make at least one of the officers suspicious.

This Court must reconsider its opinion.

Respectfully submitted,

JULIA K. PEARSON


The Full-Text Motion For Discretionary Review [Frog Gravy Legal Case]

December 22, 2011

For those of you following the legal case, the 26-page Kentucky Court of Appeals Published Opinion Affirming is available online at the Kentucky Court of Appeals site. Other documents, such as this one, while they are in the public domain, are not readily available. (One must file an open records request)

I am also going to make the opening brief and response available here, online, for the public. This first document is a Motion For Discretionary Review. It was filed with the Supreme Court in June of this year (2011). The attorney is The Honorable Julia K. Pearson.

COMMONWEALTH OF KENTUCKY
SUPREME COURT OF KENTUCKY
FILE NO.2011-SC-000272

RACHEL LEATHERMAN MOVANT

v.

COMMONWEALTH OF KENTUCKY RESPONDENT

MOTION FOR DISCRETIONARY REVIEW

The Movant, Rachel Leatherman, comes by counsel and pursuant to CR 76.20, requests this Court to grant discretionary review of the decision of the Kentucky Court of Appeals in Leatherman v. Commonwealth, 2008-CA-0849, which was decided on January 21, 2011. The Petition for Rehearing was denied on April 12, 2011. Ms. Leatherman explains the grounds for this motion below.

THE JURISDICTIONAL FACTS

1. The Movant’s name is Rachel Leatherman. Counsel for Movant is Hon. Julia K. Pearson, Assistant Public Advocate, Department of Public Advocacy, 100 Fair Oaks Lane, Suite 302, Frankfort, Kentucky 40601.

2. The Respondent is the Commonwealth of Kentucky. Counsel for Respondent is Hon. Jack Conway, Attorney General, Commonwealth of Kentucky, Criminal Appellate Division, 1024 Capital Center Drive, Frankfort, Kentucky 40601.

3. The Court of Appeals finally disposed of Movant’s case on April 12, 2011.

4. Neither Movant nor Respondent has a Petition for Rehearing or a Motion for Reconsideration pending in the Court of Appeals. The Petition for Rehearing filed in this case was denied on April 12, 2011.

THE MATERIAL FACTS

Sometime in the evening of June 28, 2006, a man identifying himself as Vernon Wilkey, residing on Queensway Drive in Paducah, called 911 and said, “there is a lady in a dark blue looks like a Buick LeSabre. I’d say it’s a late 80s, early 90s model. And I’ve got a license plate number. But she’s out here walking around in my neighbor’s yard. . . and writing stuff down and she’d talked to him and mentioned something about tar heroin and all that stuff.” Wilkey said the woman driving the car was white and that the vehicle had Washington state plates. Wilkey testified at trial that she “didn’t seem like she was really all together there.” He did not give the 911 operator that piece of information.

McCracken County Deputy Sheriff Eddie McGuire testified at trial that he received a dispatch about a suspicious person on Queensway Drive. He thought it took fifteen to twenty minutes to arrive on scene, where he looked for a car with Washington state license plates, but was unsuccessful. At the suppression hearing, McGuire testified when he entered the Queensway Drive neighborhood, he did not check with Vernon Wilkey to obtain any additional information, such as what time Wilkey encountered the woman, whether Wilkey saw her leave in a particular direction, whether Wilkey thought she was under the influence or whether the woman had said where she was going. McGuire testified that he spoke with Wilkey and took his written statement the next day, after he had arrested Ms. Leatherman.

At trial, the deputy testified that he had just come through the Metropolis Lake intersection when he saw a car with its left turn signal flashing. McGuire admitted that he did not know how fast he was driving as he drew alongside the vehicle.

“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.”

After McGuire pulled in behind her, the woman pulled over to the shoulder. He thought that action was as suspicious as the woman leaving her left turn signal blinking, so he pulled over to the side and activated his emergency lights. McGuire said as he walked up to the vehicle, he noticed that the driver’s pants were unbuttoned and unzipped, but belted. Even so, Rachel Leatherman “promptly” handed her identification and proof of insurance to Deputy McGuire. He ordered her to get out of the car and stand behind it. McGuire said she had no problem getting out of the car. In fact, he said that if she had been unsteady on her feet or slurring her speech, he would have documented it in his citation.

Sometime after that, Deputy Jason Walters came to the scene. The men searched the car for contraband, but came up with nothing. Later, Officer Gretchen Dawes arrived and searched Leatherman. Before she arrived, however, McGuire testified that Leatherman had emptied her two front pockets. He could not remember whether Leatherman had buttoned her pants at any time during the automobile and personal searches.

Neither Officer Dawes nor Deputy Walters testified at the suppression hearing. However, as her testimony at trial showed, Dawes’ search was not a simple Terry pat-down. Dawes searched the inside rear pockets of Rachel Leatherman’s jeans and made her open the front of her pants so she could search Leatherman’s crotch. Dawes made Leatherman lift her shirt so she could search her breasts for concealed controlled substances. Even McGuire conceded that Dawes’s search was “thorough.”

Deputy McGuire agreed that “[u]nder the circumstances, [Dawes] was not only looking for weapons but also looking for possible drugs,” but found none. McGuire did not see Dawes search Leatherman’s back pockets, but he assumed she did so as part of that thorough search. Finally, McGuire said that en route to Lourdes Hospital, he did not see Leatherman moving in any sort of fashion to indicate that she was trying to hide something.

A thorough search by a trained police officer would presumably “sanitize” a suspect before she is handcuffed and placed into a police car. In other words, how is it possible that Rachel Leatherman held onto a baggie with rock cocaine through a search of her vehicle and her person? Officer Dawes offered her speculation at trial. She said she was told only that the deputies wanted a female officer to search a female suspect. The deputies did not tell her anything about the case such as whether she was supposed to conduct a Terry pat-down or the more thorough search incident to arrest. Interestingly, Dawes said that if she had prior knowledge that Leatherman had drugs on her person, she would have done an even more thorough search.

Deputy McGuire and the two backup officers searched Ms. Leatherman’s person and her car for about 1.25 hours. That search yielded no illegal drugs, no drug residue and no paraphernalia. Despite the fact that Leatherman had not committed a traffic violation and a PBT (Portable Breath Test) registered no alcohol, McGuire arrested her for Driving under the Influence and transported her to Lourdes Hospital for a blood draw.

Subsequent analysis found no alcohol or drugs in Leatherman’s blood.

McGuire was certain Leatherman was wearing a watch, but only thought it was on her right arm. McGuire’s story was that as he assisted her out of the car at the hospital, he noticed that Leatherman had dropped her watch and a small baggie containing a substance consistent with a rock of cocaine. He did not confront Leatherman at that time. McGuire was unsure how long the two remained at the hospital. Once he arrived at the McCracken County Jail and booked Ms. Leatherman, he ran a field test for heroin. That test came back negative.

Rachel Leatherman was charged with Possession of a Controlled Substance in the First Degree, Tampering with Physical Evidence and Driving an Automobile under the Influence. She was convicted on all three charges and sentenced to eight years.

QUESTIONS PRESENTED

1. A trial court shall make written findings of fact and conclusions of law after holding a suppression hearing. RCr 9.78. Is it appropriate for a trial court to render findings of fact and conclusions of law after trial, using information gained at the trial, but not the suppression hearing?

The panel concluded:

Based upon the 911 call, during which the caller described a woman. . . who was committing criminal activity, and the undisputed fact that Leatherman pulled to the side of the road and stopped before Deputy McGuire activated his emergency lights, we hold that there was no constitutional violation in the investigatory stop.

Leatherman v. Commonwealth, 2011 WL 181251, *7 (Ky. App., January 21, 2011).

Walking around a neighborhood and saying the word “heroin” are not criminal acts.

The trial court’s second conclusion of law was that: “[t]he combination of a report of an unknown person, driving a Washington state licensed vehicle in a Paducah, Kentucky residential area, asking about tar heroin, later observed to signal a left turn but pull off the roadway in the right, constitutes reasonable suspicion to investigate and possibly cite for improper signal. TR 222.

The court’s third conclusion was that “[a] report of suspicious activity by a person who identifies himself by name, phone number and address is presumptively reliable.” TR 222. These conclusions came not after the suppression hearing, but after the trial.

The court should have relied only upon the information in the 911 call, not evidence it heard at trial, in order to decide whether Deputy McGuire had reasonable suspicion to stop Rachel Leatherman. United States v. Hensley, 469 U.S. 221 (1985).

The information in the particular 911 call left a good deal to be desired. Vernon Wilkey did not tell the dispatcher that Leatherman was asking “where may I get black tar heroin” “do you have any black tar heroin” or even “does a drug dealer live in this neighborhood”? He simply told the dispatcher that she “mentioned” tar heroin. All Deputy McGuire had was a dispatch that a woman was walking around a neighborhood in McCracken County and mentioned tar heroin. McGuire admitted at the suppression hearing: “[a]t the time we responded, the only information that we had was the fact that she had come up to his house and asked about heroin.” TR 155. He admitted that he talked to Wilkey after he arrested Leatherman. Id., emphasis added. He admitted at trial that he had no idea when the woman had made contact with the neighbor (or Wilkey, for that matter). VR 4; 11/27/2006; 14:05:04.

The Fourth Amendment requires that reasonable suspicion comes only when the police believe criminal activity is currently afoot. See Joshua v. DeWitt, 341 F.3d 430, 446 (6th Cir. 2003), citing Terry v. Ohio, 392 U.S. 1, 20 (1968); emphasis in original. Was the woman “asking about 218A” doing a survey for the local newspaper or television station? Doing surveys for local media is a perfectly legal action. Was she a teacher doing a survey for a local high school civics or social studies class? Doing those sorts of surveys is also a legal act. But McGuire jumped to the conclusion that Rachel Leatherman had to be committing some sort of crime because she was talking to people in a neighborhood and mentioned tar heroin. Unfortunately for McGuire, in Terry, supra, the Supreme Court made clear that the officer’s reasonable suspicion must be made from the facts and the “specific reasonable inferences he is entitled to draw from the facts in light of his experience.” 392 U.S. at 21; emphasis added. McGuire’s suspicion was not based upon reasonable inferences from the facts he had at hand.

The panel ignored United States and Kentucky Supreme Court precedent in finding those facts were enough predictive information with which Deputy McGuire could arrest Ms. Leatherman. In Florida v. J.L., Florida officers received a phone call that a young, black male who was wearing a plaid shirt and standing with two other males at a bus stop was carrying a gun. Officers arrived and found the young man wearing a plaid shirt standing at the bus stop and arrested him. The United States Supreme Court found that the tip gave police no independent reason to suspect that J.L. was up to a nefarious act. 529 U.S. 266, 274 (2000).
In Collins v. Commonwealth, this Court found that a tip claiming that a man driving a white Chevrolet Blazer with a certain license plate threw alcohol at another vehicle parked at a gas station was likewise not enough information that something criminal was afoot.

As in J.L., the tip provided in this matter contained no predictive information; rather, it consisted almost entirely of information readily available to a casual bystander, such as Appellant’s license plate number, his direction of travel, and the make and model of his vehicle. Thus, Trooper Oliver was left with no predictive information to corroborate, or other means by which to verify that the tipster had intimate knowledge of any illegal behavior. 142 S.W.3d 113, 116 (Ky. 2004).

If the panel’s Orwellian holding remains valid, the simple acts of “walking around” in a neighbor’s yard, “writing stuff down” and merely uttering the words tar and heroin, without any further indication of intent to buy or sell, then, in contravention of federal and state case law, the police are absolutely free to engage in fishing expeditions.

Moreover, any person—axe to grind or not–who gives his name and address may pick up a phone and report some “crime” and have that report be deemed reliable. That analysis flies in the face of J.L., supra; Florida v. Royer, 460 U.S. 491 (1983), Hensley, supra; and Terry v. Ohio, 392 U.S. 1 (1968).

“Hunch” that Rachel Leatherman possessed a controlled substance did not constitute suspicion for a stop or reasonable cause for an arrest

The trial court’s first conclusion of law was that “[t]he deputy did not conduct a stop of Defendant’s vehicle. Defendant pulled off the roadway and stopped. The deputy then pulled in behind her and activated his emergency lights so as to investigate.” TR 222. This is incorrect as a matter of law and is unsupported by the evidence.

Deputy McGuire admitted at the suppression hearing that he “was going to” stop Leatherman “anyway” when she pulled to the shoulder. TR 165. He admitted, “I suppose she assumed I was going to stop her, so she went ahead and pulled over, anyway.” He admitted that Leatherman’s actions “were a safe assumption” that he was going to stop her. TR 166; emphasis added. McGuire conceded that it was possible Leatherman had activated her turn signal, but decided against moving into the left lane when she saw the cruiser come up in her rear view mirror. VR 4; 11/27/2006; 14:15:05. McGuire had already testified that he was driving faster than the Leatherman vehicle. That Leatherman did not move to the left lane and collide with the cruiser is evidence that she noticed him coming up on her side.

Yet, McGuire, the trial court and the panel found it suspicious that Leatherman speedily obeyed the demands of KRS 189.930, which mandates that emergency vehicles are to be given the right of way, by the operator of the motor vehicle “driv[ing] to a position parallel to, and as close as possible to, the edge or curb of the highway clear of any intersection. . .”

The panel absolutely ignored Garcia v. Commonwealth, in which a member of the panel had found that the police did not have reasonable suspicion to stop a driver who “quickly changed to the right lane” as a Kentucky State Police Trooper approached the vehicle. 185 S.W.3d 658, 660-661 (Ky. App. 2006). The panel found that “Garcia’s nervousness, lane change, failure to make eye contact, ‘death grip’ on the steering wheel, and out-of-state license plate. . . . describe a substantial number of drivers on our highways.” Further, the panel said, “[i]f 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.” Id., at 665.

Contrast the behavior in Garcia with that in the case at bar. According to the officers in each case, both Leatherman and Garcia appeared nervous and changed lanes and had out-of-state license plates. The difference is that Leatherman driving with a turn signal blinking was somehow seen as suspicious behavior, rather than the routine (for some drivers) driving habit that it is.

Exculpatory scientific tests trumped by “glassy eyes” and an improper HGN

As a result of the panel’s opinion, exculpatory blood test results are no longer good evidence. The panel used as part of its reasoning for affirming Rachel Leatherman’s convictions that she “failed the HGN test, which reveals intoxication by alcohol or some other drug”. Even assuming arguendo that the other indicators had been present (addressed infra), McGuire improperly administered the test.

The National Highway Traffic Safety Administration warned police officers to position DUI suspects so that they do not face blinking cruiser lights or oncoming traffic because the lights can create a false nystagmus (optokinetic nystagmus). The field video shows McGuire positioned Rachel Leatherman facing the blinking cruiser lights and oncoming traffic. Moreover, the panel ignored the fact that Metoprolol, which Leatherman told McGuire she was taking for hypertension, can cause nystagmus. The test was neither administered properly nor documented. For the panel to rely on this so-called “failed” test in order to affirm Leatherman’s conviction is the height of arbitrariness and incorrect legal analysis.

The panel noted that his “observation of [Rachel] Leatherman’s glassy eyes and odd behavior coupled with her admission that she was taking prescription medication” was sufficient to provide Deputy McGuire with probable cause to arrest her for DUI. Leatherman, supra, at *9.

The panel absolutely ignored McGuire’s admissions that Leatherman drove in compliance with traffic laws. It even cited McGuire’s testimony that Leatherman was neither driving erratically nor weaving! Id. Leatherman produced her license and registration quickly after he asked for them. Her eyes were not watery or bloodshot. Her pupils were not pinpoint or dilated. She did not have a runny nose as is common with some cocaine users. She did not have scabs or needle marks, also common with intravenous drug users. She was not coughing or short of breath; she was not sneezing or sweating. She did not complain of nausea or chest pains. Her face was not flushed. She was alert.

Moreover, McGuire admitted at the suppression hearing that the HGN result by itself could not provide probable cause. VR 4; 11/27/2006; 14:21:45. Neither does nervous behavior.

The panel also absolutely ignored United States Supreme Court and Sixth Circuit case law which establishes that nervous, evasive behavior is the standard to justify reasonable suspicion, not simple nervousness or restlessness. Illinois v. Wardlow, 528 U.S. 119, 124, (2000); Joshua v. DeWitt, 341 F.3d 430 (6th Cir. 2003).

One need only look at several Supreme Court cases regarding drug smuggling at the United States-Mexico border to determine that evasive behavior is the key. United States v. Brignoni-Ponce, 422 U.S. 873, 885 (1975) (“The driver’s behavior may be relevant, as erratic driving or obvious attempts to evade officers can support a reasonable suspicion.”); Florida v. Rodriguez, 469 U.S. 1, 6 (1984) (“[T]he three confederates … had spoken furtively to one another. One was twice overheard urging the others to ‘get out of here.’ Respondent’s strange movements in his attempt to evade the officers aroused further justifiable suspicion….”); United States v. Sokolow, 490 U.S.1, 5, 8-9, (1989) (noting that “[Respondent] appeared to be very nervous and was looking all around the waiting area,” but that “one taking an evasive path through an airport might be seeking to avoid a confrontation with an angry acquaintance or with a creditor”).

The ultimate irony for this case is that after the hour and one-half Deputy McGuire held Rachel Leatherman on the side of the road, he found nothing illegal. The panel stated as much when it said, “consent searches of her automobile and her person did not reveal any heroin or any other illegal substance.” Leatherman, supra, 2011 WL 181251, at *7.

Effects of Clonazepam/Klonopin

As the final rung of its finding that McGuire had probable cause to arrest Ms. Leatherman for DUI, the panel cited to “the product information for Klonopin. . . .[which] states that patients taking that medication “should be cautioned about operating hazardous machinery, including automobiles, until they are reasonably certain the Klonopin therapy does not affect them adversely.” Leatherman, supra, at *9.

Unfortunately, that information is also after-acquired and not something Deputy McGuire knew at the scene. The trial court made the same error when it noted her statement that “she was taking medication that would cause her to fail the test, constitutes probable cause to arrest for DUI.” TR 222.

Moreover, the panel and the trial court absolutely ignored KSP lab tech Ryan Johnson’s testimony that Klonopin itself could cause “positive” HGN signs. VR 4; 1/22/2008; 2:59:55. The panel (and the trial court) also absolutely ignored Johnson’s testimony that even if he had the equipment to test Rachel Leatherman’s blood for the presence of Klonopin, the simple presence of the drug was not an indicator that the person was under the influence such that she could be charged with, let alone convicted of, driving under the influence of an intoxicant. Id., 3:03:36.

Conclusion

The panel ignored the facts and law of this case in affirming Rachel Leatherman’s convictions for driving under the influence. Moreover, the trial court ignored the facts and the law, including the dictates of RCr 9.38, when it used information gained from trial testimony to concoct a third set of findings of fact and conclusions of law. This Court must grant discretionary review.

2. The panel erred when it found the trial court properly granted the government’s motion in limine which prohibited defense counsel from mentioning that Rachel Leatherman asked Deputy McGuire to retrieve her watch from the backseat.

The panel found that the trial court did not abuse its discretion when it did not admit Leatherman’s statements to Deputy McGuire from the back of his cruiser. The panel said, “the trial court indicated that it would permit Leatherman to testify to her statement regarding the watch had she opted to take the stand in her own defense.” Leatherman, supra, at *10. That finding is inconsistent with the trial court’s ruling that Leatherman’s statements were inadmissible, self-serving hearsay. VR 1; 1/22/2008; 8:56:24.

In light of the government’s announcement that it believed “801A(b)” prevented trial counsel from broaching the subject, this Court cannot seriously believe that had Leatherman testified, “I asked Deputy McGuire to look for my watch,” the government would not have been strenuously objecting on hearsay grounds. But why should Leatherman be forced to give up her right to remain silent to an admissible statement?

The panel next found, “Leatherman did not attempt to impeach Deputy McGuire’s prior statements regarding discovery of the watch and drugs through laying a proper foundation.” Leatherman, supra, at *10. The panel ignored trial testimony. In his cross-examination, defense counsel asked Deputy McGuire:

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.

It is hard to fathom what else counsel was doing besides beginning to lay a foundation so that he could cross-examine McGuire when he was prevented from doing so by the government’s objection and the trial court sustaining it. The panel focused on Leatherman’s alleged failure to impeach McGuire to the exclusion of the impeaching material to be discovered.

It absolutely ignored just how Deputy McGuire’s testimony changed in the months between the preliminary hearing, the suppression hearing and trial. 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.

By the time the suppression hearing came around, 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. At trial, 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.

The panel could not then—this Court cannot now—reconcile McGuire’s conflicting accounts regarding whether he saw the baggie and watch in plain view or not in plain view. McGuire had been a member of the McCracken County Sheriff’s Department for four and one-half years. VR 1; 1/22/2008; 14:08:45. Presumably, he was familiar with the meaning of the phrase “plain view.” Yet, his story about plain view progressed over the months.

Finally, the panel opined that the outcome of the case would not have been changed because of the “strength of the rest of the testimony that was introduced, including the close proximity of the watch and the drugs as well as the search of the area prior to Leatherman’s placement in the cruiser.” Leatherman, supra, at *10. It is hard to fathom how testimony which changes in material ways from preliminary hearing to trial is “strong”.

The panel absolutely ignored Gretchen Dawes’s testimony about how she searched Rachel Leatherman’s person. Prior to Dawes’s arrival, McGuire testified, Rachel Leatherman emptied her front pockets. VR 4; 11/27/2006; 14:25:36.

Dawes searched the inside rear pockets of Leatherman’s jeans and made her open the front of her pants so she could search Leatherman’s crotch. She made Leatherman lift her shirt so she could search her breasts for concealed controlled substances. TR 26. Even McGuire conceded at the suppression hearing that Dawes’s search was “thorough.” VR 4; 11/27/2006; 14:25:40.

Yet, the panel believed the impossibility that Rachel Leatherman held onto a baggie with rock cocaine through a search of her vehicle and her person. Assuming for sake of argument that Leatherman did so, where did she conceal the baggie? As was clearly seen on the dashboard camera (the recording is a part of the exhibits in the file housed with the Clerk of the Kentucky Court of Appeals), McGuire had her open her hands up together, at one time—she could not have held the baggie in one hand, then the other. Dawes opened her jeans zipper—Leatherman could not have concealed the baggie in her crotch. Dawes had her raise her blouse—Leatherman could not have concealed the baggie in her bra. The search also begs the question of how Leatherman retrieved the baggie–in handcuffs–without moving enough to make at least one of the officers suspicious.

Conclusion

The panel ignored the facts and law of this case. This Court must grant discretionary review.

CONCLUSION

The panel ignored clear precedent and the facts of this case in affirming Rachel Leatherman’s convictions. Moreover, the panel also ignored the fact that the trial court’s findings of fact and conclusions of law changed over three iterations, one coming after it had heard all the trial testimony. Just as Deputy McGuire used after-acquired information, so, too, did the trial court. This Court must grant discretionary review.

Respectfully submitted,

JULIA K. PEARSON

NOTICE

Please take notice that the foregoing Motion for Discretionary Review will be filed in the Office of the Clerk of the Supreme Court on this 17th day of June 2011.

CERTIFICATE OF SERVICE

I hereby certify that a true and accurate copy of the foregoing Motion for Discretionary Review has been mailed, postage paid, to Hon. Jack Conway, Attorney General, 1024 Capital Center Drive, Frankfort, Kentucky 40601 and Hon. Samuel Givens, Jr., Clerk of the Court of Appeals, 360 Democrat Drive, Frankfort, Kentucky 40601, this 17th day of June 2011.

Julia K. Pearson


The Curious Case of the Three Suppression Orders

November 23, 2011

Author’s note: This diary is part of the Frog Gravy legal case and will be posted in three parts beginning today and ending on Thursday, which is Thanksgiving. In this part I explain basic pretrial legal procedure that is common in criminal cases. Specifically, I explain suppression hearings, which most of you probably have heard about, but might not know some of the finer details. This information will be helpful to understanding the incredibly bizarre events that followed; events that will be the subject of the next two parts. Now, get comfortable, buckle your sealtbelt, and get ready for your ride down the rabbit hole.

If you have not already done so, I recommend you watch the embedded video, in which a 16-year-old white girl is ordered to stand trial for murder as a 300-pound black man, to get yourself in the proper frame of mind. And, now here is The Curious Case of the Three Suppression Orders

The Fourth Amendment prohibits unreasonable searches and seizures. The exclusionary rule prohibits the prosecution from using evidence against a defendant, if that evidence was seized by police in violation of the Fourth Amendment.

A suppression hearing is a pretrial hearing in which a defendant asks the court to suppress evidence that the prosecution intends to introduce at trial against the defendant. If the court grants the request and orders the evidence suppressed, the prosecution is prohibited from introducing it or referring to it during the trial.

Suppression hearings are held before trial to resolve legal issues relating to the admissibility of evidence allegedly seized in violation of the Fourth Amendment, because in many cases, especially drug cases, the prosecution would be unable to try the case, if the court were to order the evidence suppressed. If that were to happen, the prosecution would be forced to dismiss the case and there would be no need for a trial.

Normally, a court issues a written order granting or denying the motion to suppress and sets forth findings of fact and conclusions of law that support the order. Findings of fact, as the term implies, are findings regarding what happened. They are the facts of the case upon which the conclusions of law must be based.

For example, let us suppose that Archie testified that a traffic light was green and Gillian testified that it was red. Whether the light was green or red would be a disputed fact and the judge would have to find as fact one or the other. If both witnesses agreed that the light was red, that would be an undisputed fact and the judge would have to find as fact that the light was red.

Normally, there is only one suppression order and it is entered before the scheduled trial date. Usually, the prevailing party drafts the order and provides opposing counsel with a copy. If opposing counsel agrees to the proposed order, the trial court will enter it as an agreed order without a hearing, unless the judge wants to change something. When that happens, the judge will schedule a hearing to finalize the order. The prosecutor, defense counsel, and the defendant appear for the hearing, hash out their differences, and the judge makes a final ruling. In other words, the process is transparent and ex parte contact with the judge (by one lawyer without the other present) is prohibited.

When suppression orders are appealed, the appellate courts review challenged findings of fact to determine if they are “clearly erroneous.” That is, unsupported by any evidence. Appellate courts uniformly refuse to second-guess a trial court’s challenged finding of fact, as long as there is some evidence to support it, even if the appellate judges might personally disagree with the trial court. Their reluctance to second-guess the trial court is based on the well-founded notion that they are not in as good a position to judge witness credibility since they were not present when the witness testified.

Conclusions of law are reviewed de novo. That is, they are reviewed anew without any deference to the trial court.

Crane-Station’s lawyer filed a motion, which is a formal request, to suppress all of the evidence seized by police after she was pulled over while driving down the highway and arrested for driving under the influence of drugs. Her lawyer argued for suppression on the grounds that:

1. The stop violated the Fourth Amendment because police pulled her over without a reasonable suspicion to believe that she had committed, was committing, or was about to commit a crime; and even if they did have a reasonable suspicion;

2. The subsequent arrest violated the Fourth Amendment because police lacked probable cause to believe that she had committed a crime.
The suppression hearing took place on November 27, 2006. Only one witness testified, Deputy Eddie McGuire of the McCracken County Sheriff’s Department.

We have already recounted his testimony in some detail and will not repeat it here, except to briefly summarize and note that there were no disputed facts, since he was the only witness who testified. Therefore, it should have been relatively easy for a sentient being, especially an educated judge who took an oath to uphold the Constitution and impartially follow the law, to come up with a set of findings of fact that were supported by the evidence.

Alas, it was not to be.

To be continued

Cross posted at Firedoglake/MyFDL and the Smirking Chimp.


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