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2003-SC-000041-DG COMMONWEALTH OF KENTUCKY ON REVIEW FROM COURT OF APPEALS 2001-CA-1085-MR JEFFERSON CIRCUIT COURT NO. 1999-CR-2681 APPELLEE OPINION OF THE COURT BY JUSTICE SCOTT REVERSING 1. INTRODUCTION Appellee, Lloyd A. Priddy, sought to suppress the fruits of a search of his person by a police officer during the course of a stop of his vehicle . In denying the motion, the trial court made findings - which Appellee argues were contained only in the uniform citation issued by the officer - that the stop, and thus the search, was justified pursuant to Terry v. Ohio, 392 U .S. 1, 88 S .Ct . 1868, 20 L.Ed.2d 889 (1968) . The citation had been filed in the court record and was used and referred to in the hearing by the parties APPELLANT

V.

LLOYD A . PRIDDY

and the court, but it was never formally filed as an exhibit to any record created for the
hearing . Not having been filed of record in the hearing, the Appellee argues the officer's written statement in his citation could not be relied on for the court's findings of facts .

Since the citation' was used (and testified to) during the hearing, it was not error for the court to have considered its contents, even though, through fair inference, the officer's actual testimony covered the same information . Even so, the trial court's ruling was correct since the information (personally given to the officer by a citizen in the area) was sufficient to support an "articulable suspicion" that criminal activity was afoot and thus justified the stop of the Appellee's car and the subsequent search of his person . Where a citizen exposes himself to an officer, in a face-to-face meeting, who then has the opportunity to evaluate the citizen's demeanor during the relay of the information, further "predictive evaluation" of the information is not an absolute requirement, as a citizen is not evaluated as a "confidential informant or anonymous tipster ." II . BACKGROUND In the evening of September 4, 1999, Officer Michael R. Koenig was traveling on the Outer Loop in Louisville en route to a domestic disturbance on Third Street, when he was flagged down by a citizen who told him a six foot tall, 170 pound white male with shoulder-length, black, curly hair, driving a late 1970s model black Ford truck with primer on the hood - was in the K-mart parking lot on 191 Outer Loop and was about to ' KRS 431 .015 provides that a citation is issued by an officer only for a misdemeanor or violation committed in the officer's presence ; however, KRS 431 .450, which provides for the use of a uniform citation by all law enforcement agencies, directs that "[a]II peace officers in the Commonwealth shall use the uniform citation for all violations of the traffic laws and for all felonies, misdemeanors and violations ." KRS 431 .450(4) . Since the uniform citation is specified as the charging document for traffic offenses, RCr 6 .02(2) ; Skeans v. Commonwealth , 912 S.W.2d 455, 456 (Ky.App. 1995) ("Uniform citations, like indictments in felony cases, are charging documents in the prosecution of DUI offenses and are not solely `investigative reports by police ."'), and Appellee was charged with a traffic offense, i .e ., No Motor Vehicle Insurance, the uniform citation was properly filed in the court record for that purpose because of its status as a pleading . RCr 8 .12.

conduct a drug transaction. Officer Koenig then immediately left the citizen and proceeded to the K-mart parking lot, which was only a few minutes away, and observed the vehicle and male driver exactly as described and, as he testified, "confirmed my information from the informant." Appellee however, argues that the actual testimony from Officer Koenig established only that when he arrived the vehicle was exiting the parking lot. Officer Koenig then followed and stopped the vehicle and noted Appellee's frantic movement in the vehicle and once backup arrived, asked the Appellee to exit his truck. Upon observing and inquiring about a large bulge in Appellee's front pants pocket, the Appellee stated it was a crack pipe, which Officer Koenig then took possession of . After recovering the pipe and noting the residue therein, Appellee was arrested . A subsequent search of Appellee's pockets revealed methamphetamine in a cigarette package . Appellee pled guilty to First-Degree Possession of a Controlled Substance ,2 Possession of Drug Paraphernalia ,3 and No Motor Vehicle Insurance .4 He also admitted to being a Second-Degree Persistent Felony Offender and received an enhanced five year sentence on the Possession of a Controlled Substance charge. The misdemeanor charges, Possession of Drug Paraphernalia and No Motor Vehicle Insurance ran concurrently with the felony charge for a total sentence of five years imprisonment . Appellee's guilty plea was conditioned on his right to appeal the denial of his suppression motion, in which he had argued that the crack pipe and methamphetamine 2 KRS 218 .1415. 3 KRS 218A.500. 4 KRS 304 .39-080 ; KRS 304 .99-060.

should be suppressed because the stop violated his Fourth Amendment rights . He contended that the initial corroboration of only his description and location, provided by the "tipster," did not provide Officer Koenig with a "reasonable and articulable suspicion" that criminal activity was afoot. The Court of Appeals reversed the trial court's denial of the motion to suppress as based on clearly erroneous factual findings, finding that in reaching its decision, the trial court relied on statements in the uniform citation, which had not been offered, or admitted, into evidence . The Court of Appeals further reasoned that without reference to the citation, there was insufficient evidence to support a reasonable suspicion that criminal activity was afoot. We granted discretionary review on the Commonwealth's Petition. 111. ANALYSIS A. TRIAL COURT'S RELIANCE ON CITATION When reviewing the outcome of a suppression hearing regarding a warrantless search, this Court employs the standard of review enunciated by the United States Supreme Court in Ornelas v. United States, 517 U .S. 690, 116 S.Ct. 1657, 134 L.Ed .2d 911 (1996) . [A]s a general matter determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal . Having said this, we hasten to point out that a reviewing court should take care both to review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts by resident judges and local law enforcement officers. Id at 699, 1663 (cited with approval in Commonwealth v. hitmore , 92 S .W .3d 76 (Ky. ., 2002)) . "The Ornelas court recognized that police may draw inferences of illegal activity from facts that may appear innocent to a lay person and that a reviewing court should 4

give due weight to the assessment by the trial court of the credibility of the officer and the reasonableness of the inference ." Commonwealth v. Whitmore, 92 S .W. 3d 76, 79 (Ky. 2002) . At the conclusion of the hearing, the trial judge made oral findings and announced her ruling from the bench . Her findings of fact indicate that she relied upon Officer Koenig's observation of Appellee meeting with another individual in the K-mart parking lot as the determinative "predictive behavior" she felt necessary to support a reasonable suspicion : "Well, I certainly understand Mr. Conkin why you cited that case and I think it's something that I have to take into consideration. The Florida v. J.L . [529 U.S . 266, 120 S .Ct. 1375, 146 L. Ed.2d 254 (2000)] case involved a tip that there would be a black male at a bus stop wearing a plaid shirt and that he had a gun on him. As I read the case that was basically what they were told and the officer went to the bus stop and there was a black male there with a plaid shirt on and he stopped and frisked him and indeed he did have a gun on him. This case has more detail from the beginning . First, it involves a vehicle that was carefully described as a late 70s black Ford truck, primer on the hood. There was a description of the male as a white male subject six feet tall, I think 150 to 170 pounds is what you said . I didn't get all the poundage written down, but shoulder length hair. That there would be a narcotics transaction at the Kmart parking lot at 191 Outer Loop. So this officer goes and is in the Winn Dixie parking lot and sees a vehicle matching that description and also sees him leaving the location after meeting up with another subject. So, by his own observation, he saw something that could indeed be the narcotics transaction . (Emphasis added) . I think that had he driven to the parking lot and simply seen the truck, even though it's more detailed than it was in the Supreme Court case, Florida v. J. L . , I might be inclined to agree with you, Mr. Conkin, if he just saw the truck and followed the truck and stopped . But his testimony was that he observed him leaving the location after he had met up with another person and then he followed him and he 5

stopped him and I think that that was appropriate, and then the frantic behavior was enough to certainly add to the reasonable suspicion that he had for the stop in the first instance . . .

So, it's a closer call than I see sometimes, because I think somebody gives a description and you find someone at that point and place described that meets the description, I think you are most of the way there . But I think it's this added factor that's reflected in his report and it was in his testimony about meeting up with another subject there that pushes it over the line from what we had in Florida, which was just an individual at a bus stop wearing a plaid shirt. It wasn't a very detailed description and there was nothing to pair with, besides his actual presence. (Emphasis added) . Here we had the presence of a truck, a person driving that truck that fit exactly and then the presence of another subject with whom the narcotics transaction could be conducted. So, accounting for all those factors and the cases that have been decided, I'm going to overrule the motion to suppress. (Emphasis added) . "[T]he police can stop and briefly detain a person for investigative purposes if the officer has. a reasonable suspicion supported by articulable facts that criminal activity `may be afoot,' even if the officer lacks probable cause." United Stated v. Sokolow , 490 U .S. 1, 7, 109 S.Ct. 1581, 104 L.Ed .2d (1989) . As such, "[t]he issue is a preliminary question to be decided by the trial judge, KRE 104(a) . . . ." Cf. Talbotv.Commonwealth , 968 S.W .2d 76, 82 (Ky. 1998) . All would agree that Officer Koenig's statement in his traffic citation that "officer went to above location and subject matching description was just leaving that location after meeting up with another subject," would be sufficient "predictive behavior' to justify

the Ter

stop in this case, even under Florida v. J .L., 529 U .S. 266, 120 S.Ct. 1375,

146 L.Ed.2d 254 (2000) ; see also , Alabama v. White , 496 U .S . 325, 332, 110 S.Ct. 2412, 110 L . Ed .2d 301 (1990). However, the Court of Appeals reversed the trial court on the grounds that the "citation" was not made a part of the "record" - thus, concluding, there was no substantial evidence in the record to support the trial court's finding that Officer Koenig "observed Priddy leaving the location after meeting up with another subject . . . ." What this argument overlooks though, is that the citation was used by the parties during the hearing, as well as, having then been reviewed by the court from its record . In this regard, KRE 104(a) provides "preliminary questions concerning . . . the admissibility of evidence shall be determined by the court . . . . In making its determination it is not bound by the rules of evidence, except those with respect to privileges ." See also, KRE 1101(d)(1) . RCr 8 .22 also provides that "pretrial motions raising defenses or objections shall be determined before trial . . . . All other issues of fact shall be determined by the court with, or without, a jury, or on affidavits, or in such other manner as the court may direct ." We can assume that the Commonwealth had a copy of the officer's citation at the suppression hearing, but it is known from the video record that the officer, counsel for the Appellee, and the court had a copy and used it. In fact, Appellee's counsel perused the citation at the hearing in an attempt to impeach Officer Koenig (per KRE 613(a)), as to the time of the arrest and the Miranda warnings . "Q : Do you have a copy of your citation right handy? A : Yes I do .

Q : You stated . . .l assume you wrote the citation, is that correct? A: That's correct. Under KRE 613(a), it is necessary to establish that the statement was written by the officer . "Before other evidence can be offered of the witness having made at another time a different statement, he must be inquired of concerning it . . . ; and, if it be in writing, it must be shown to the witness, with opportunity to explain it." Thus, here the Appellee referenced it, confirmed its creation and authenticity, and asked questions from it for purposes of impeachment. A practitioner would expect the court, which had a copy in its record, to review the "citation" in conjunction with its reference and use in the proceedings, especially once it had been authenticated . Even aside from the applicability of KRE 104, this court has approved the use of interrogatory answers, not filed as exhibits, as a basis for a trial court's judgment, where the trial was by the court. See Mid-Southern Toyota, LTD v. Bug's Imports, Inc . , 453 S .W.2d 544 (Ky. 1970), wherein it stated : "They refer to Clay, CR 33. . . and Clay, CR 36.01, . . . , as authority for the proposition that admissions and answers to the interrogatories must be introduced in evidence . The latter comment states only that admissions `should be' introduced in evidence, and the former comment states only that answers to interrogatories would not constitute judicial admissions unless introduced in evidence . Clearly, in the case of a jury trial, admissions and answers to interrogatories would not be evidence unless introduced as such, and normally it would seem the same should be true in case of a trial by the court without a jury. However, in the latter case the formal admission in evidence really has no significant purpose so as long as the parties know the court intends to consider the admissions or answers as evidence, and the parties are afforded the opportunity to make objections of inadmissibility." Id. at 550, (emphasis added). Similarly, although we agree it would be better procedure, we can find no rule that compels the parties, or the court, to create a record of "exhibits" in an RCr 8.22 hearing in front of the court. RCr 8 .22 only requires "a verbatim record . . . of all 8

proceedings . . . ." See also , KRE 104(a) . Which it did in this case . Moreover, the trial court twice, in its discussions and oral ruling (in open court with counsel present) referred to the facts as contained in the report and no objection to this incorporation was made at any time, such that the trial court could have clarified whether, in fact, the court was referring to the citation, or a finding from the officer's testimony that he had "confirmed my information from the informant ." "It has long been the law of this Commonwealth that an error would not be reviewed on appeal if the trial court has not had an opportunity to rule on the objection. RCr 9.22 and KRE 103(a)(1) ." Commonwealth v. Petrev, 945 S .W .2d 417, 419 (Ky. 1997) . Thus, aside from the actual testimony of Officer Koenig, the court could have properly considered comments directly from the citation . This is what KRE 104(a) is about, as well as KRE 1101(d)(1) and RCr 8.22. Evidence is what a court is told, knows, sees, or perceives, formally in open court. Exhibits are what are filed in a trial, and by such, become part of the record on appeal. And where there is no objection, as here, in a video proceeding, KRE,104(a) is dispositive . "This means that the judge can bring to bear on those questions evidence that might not be admissible at trial hearsay without worry about hearsay rules, opinion without concern about opinion rules, documents without concern about the best evidence, etc . There is good reason for this approach . . . ." Lawson, The Kentucky Evidence Law Handbook 4th Ed.,

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