Kentucky Precedent: Zero alcohol, zero drugs, zero impaired driving DUI

May 23, 2014

by Crane-Station

Good afternoon. In the next few weeks, I will be uploading documents and footage from my case in Kentucky. It is the only case that I am aware of, in the entire country, where a DUI has been affirmed on appeal, and published as precedent, where blood analysis showed zero drugs detected and zero alcohol, and there was no impaired driving whatsoever. In other words, this case can and will be cited, in Kentucky, in future Sober DUI cases.

Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-000849-MR
RACHEL LEATHERMAN APPELLANT
APPEAL FROM MCCRACKEN CIRCUIT COURT
v. HONORABLE CRAIG Z. CLYMER, JUDGE
ACTION NO. 06-CR-00408
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING

page 2, the 911 call:

DISPATCHER: Central dispatch. This is Lou.
Could I help you.
MR. WILKEY: Yes, sir. This is Vernon Wilkey.
I live out here on Queensway Drive.
And 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.
DISPATCHER: Talked to who?
MR. WILKEY: My neighbor next door.

Walking around and writing in a book and mentioning something “about 218A,” a drug statute, which is what the dispatcher related to the officer, is considered criminal activity, in Kentucky, if you are from out-of-state, page 14:

Based upon the prior 911 call, during which the caller described a woman
driving a car that displayed Washington state license plates who was committing
criminal activity,

The stop and search of my vehicle and my person lasted nearly two hours, and was performed by three officers from two agencies. Since the tape was tampered with, however, the court of appeals only apparently viewed a brief portion. I will be uploading the original that I have, but I need to fix something on the computer first, as it will currently not play a DVD. Anyway, the court of appeals found and noted, in pertinent part, the following:

Two hours is reasonable, for the “brief” investigatory stop, page 14:

However, the
law is clear that a stop may only continue long enough for the officer to determine
whether his suspicions were correct.

Also on page 14, and this is significant. They conclude that I essentially stopped the officer, and insisted on the search. This is false. The evidence in in prior testimony, that I was not allowed to confront, and also, in the dispatch recording that was altered and tampered with, in chambers, on the morning of my trial. I will be presenting that. For example, the officer testified at the Grand Jury, but I was disallowed from questioning him on any prior testimony:

As I was going back into town on Highway 60–Queensway is right off Highway 60. I located the vehicle right around the area of Highway 60 and Cairo Road. I stopped the vehicle, asked her to exit–asked her to exit the vehicle.

This disallowment cleared the way for suborned perjury at trial and the following finding in the affirming opinion:

and the undisputed fact that Leatherman pulled to the side of the
road and stopped before Deputy McGuire activated his emergency lights,

Now, for the other significant findings:

We note that the record contains a videotape of the
cruiser cam video; unfortunately, there is no audio recording attached to the video.

This is false. The recording is clear, and I will show that. An altered version was sent to Frankfort.

This is the key part of the sober DUI. The Court of Appeals actually noted in the opinion:

A breath test and later blood tests revealed that there were no drugs or alcohol in
Leatherman’s system.

[emphasis added]

The DUI was solely based on this finding. The arresting officer had a thorough understanding of HGN and its connection to impairment. He told the Grand Jury, as would a scientist:

And it’s the same principle as if you were to spin around in a circle ten times and then check someone’s eyes. The room’s spinning. That’s the same–that’s the same way that we use to detect the presence of any kind of controlled substance, alcoholic beverages in a DUI arrest.

And she showed–she failed that. She showed all six clues of that.

Pfffffffffffffft.

The finding at page 5 of the opinion:

On the horizontal gaze nystagmus (HGN) test, Leatherman showed six clues that indicated impairment.

You might be thinking that the 2-hour search of my car, trunk, personal belongings, crotch, breasts, shoes and person in full view of passing traffic, and also the gas tank, and underneath the seats- a couple of officers on the tape actually disappear inside the car- may have produced illegal drugs. Wrong:

They did not find any illegal drugs during the search.

Deputy McGuire requested that a female officer respond to the scene to
perform a search of Leatherman. Paducah Police Officer Gretchen Dawes
responded, obtained consent to search, and performed a thorough search of
Leatherman, including the front and back pockets of her jeans, the rolled up pants
legs, and under her T-shirt. The search is depicted in the cruiser cam video.
Officer Dawes did not find any weapons or illegal drugs on her person.

[emphasis added]

The documents and footage that I will upload and share will show, among other things: suborned perjury at trial, and suborned perjury at the grand jury. Also- a secret meeting before trial in chambers, hidden from the docket and unknown to me at the time, where several motions in limine were decided, namely, that the rules of evidence would be suspended in my case and I would be barred from cross examining witnesses on prior inconsistent statements; ex parte juror contact post trial, and juror telephone home, work and cell numbers in the case file ahead of a reconstructed and falsified ‘prospective juror’ chart. Also- a secret post trial agreed order denying suppression based on trial testimony, that was written by the prosecutor four months prior to trial and faxed to my attorney, who hid that from me; and a crime lab tech testifying as an ‘expert medical witness’ – qualifying as an expert based on a 30-second internet surf of a lab tech site, where he downloaded two bogus articles and then assured my attorney. “I am your man!” Plus- just minutes before the secret meeting before my trial in chambers, recorded evidence was altered and deleted on 13 occasions, at 8:36, 8:37 and 8:38 AM specifically, and then a fake, prosecutor-generated ‘transcript’ was entered instead of the recording, for the trial.

In addition, I took the case all the way to the US Supreme Court for cert, which was denied, apparently with help from the United States Solicitor General. The petition had to do with the secret post trial agreed order denying suppression that was altered to reflect the new story told at trial, only the order, as I said, was penned four months before trial. So, they deceived the highest court in the nation as well. The Question presented:

Whether the Court’s order denying her Motion to Suppress Evidence, which was amended after the trial and included information presented at trial but not at the suppression hearing violated Petitioner’s right to be free from unreasonable Search and Seizure under the Fourth Amendment of the United States Constitution.

The United States Supreme Court was unaware, as was I until just recently, that the amended post trial order containing trial information was written before the trial ever took place.

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No. 11-10420
Title:
Rachel Leatherman, Petitioner
v.
Kentucky
Docketed: May 21, 2012
Lower Ct: Court of Appeals of Kentucky
Case Nos.: (2008-CA-000849-MR)
Decision Date: January 21, 2011
Rehearing Denied: April 12, 2011
Discretionary Court
Decision Date: February 15, 2012

~~~Date~~~ ~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~
May 15 2012 Petition for a writ of certiorari and motion for leave to proceed in forma pauperis filed. (Response due June 20, 2012)
Jun 13 2012 Waiver of right of respondent Kentucky to respond filed.
Jun 21 2012 DISTRIBUTED for Conference of September 24, 2012.
Oct 1 2012 Petition DENIED.

~~Name~~~~~~~~~~~~~~~~~~~~~ ~~~~~~~Address~~~~~~~~~~~~~~~~~~ ~~Phone~~~
Attorneys for Petitioner:
Roy Alyette Durham II. Assistant Public Advocate (502) 564-8006
100 Fair Oaks Lane Suite
Suite 302
Frankfort, KY 40601
roy.durham@ky.gov
Party name: Rachel Leatherman
Attorneys for Respondent:
Gregory C. Fuchs Office of the Attorney General (502) 696-5342
Counsel of Record 1024 Capitol Center Dr.
Suite 200
Frankfort, KY 40601-8204
Party name: Kentucky

Donald B. Verrilli Jr. Solicitor General (202) 514-2217
United States Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, DC 20530-0001
SupremeCtBriefs@USDOJ.gov
Party name: Kentucky

May 22, 2014 | Version 2012.0
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Supreme Court of the United States

http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/11-10420.htm

I was shocked to discover only recently, in the case file, that the post-trial ‘third order’ was not sua sponte, as my appeal attorney and the United States Supreme Court was led to believe. Rather, it was written by the prosecutor and faxed to my attorney, who hid it from me, on September 27, 2007, four months before my trial. What is extra egregious about the third order is, the claim that I requested it. I had no way to request anything. I was in the hole, in jail.

We will break this analysis of this case down in excruciating detail, with documents, over the next several weeks to months, so look for posts, as we continue to cover other topics.

The lab tests are at the end of this post.

(For some outrageous reason, the labs seem to be scrubbed from my flickr photostream. No worries, they are screen grabbed and scanned and mailed all over the country.)

It is also notable that Kentucky flipped the bird to the Sixth Circuit, who allowed this woman to sue over her bogus DUI arrest:

http://www.ca6.uscourts.gov/opinions.pdf/12a0175p-06.pdf

Around this time, Throckmorton momentarily pointed his flashlight inside
Green’s vehicle. Throckmorton stated in his deposition testimony that he aimed the
flashlight’s beam toward the floor of the vehicle so as to illuminate Green’s face without
shining the light directly into her eyes. He “noticed that her pupils were constricted,”
which he thought “was kind of abnormal” because his training had taught him that a
person’s pupils will typically dilate in a dark setting. But, as he noted during his
deposition, “different chemicals or different types of drugs [can] hamper this process.
So. . . if you shine a light into somebody’s eyes, their pupils may stay completely dilated,
they won’t react to the light. Or else . . . they may be constricted, and you put them in
a low lighting and they won’t dilate.”

UPDATE:

CS here. Found em!

On July 24, 2006, four days before the Grand Jury met in my case, the exculpatory alcohol result was Faxed to the Commonwealth:
Exculpatory evidence hidden
and
Exculpatory evidence hidden

On July 28, my birthday, 2006, the Commonwealth suborned perjury at the Grand Jury hearing, saying (transcript linked above):

Q. We don’t have the blood results back?

A. I don’t believe so. Blood or lab, yeah.

Q. Did she admit to drinking at all?

A. No, I don’t believe she did. You can smell alcoholic beverages on a person.

Q. So you could smell it on her?

A. Yes, sir.

I was indicted for an alcohol DUI, when the Commonwealth had a 0.00 alcohol result, in its hand.

On September 25, 2006, the Commonwealth received the exculpatory blood test result for drugs, showing “No drugs detected”
Exculpatory evidence hidden.
and
Exculpatory evidence hidden.

On October 16, 2006 the Commonwealth made me an offer of eight years. The Bill of Particulars with the offer was signed under oath:
Sworn under oath

The problem is, the document claims that the Commonwealth had in its possession NO EXCULPATORY EVIDENCE.
False statement on sworn Bill of Particulars

The document was perjured, and exculpatory evidence was hidden, in the hopes that I would plead guilty. I refused. But just so that you know, it is this sort of prosecutorial and public defender misconduct that results in a great many guilty pleas from people who are not guilty.


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


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