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The Fourth Amendment & Your Rights

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The Fourth Amendment Prohibits Police from Stopping a Motorist to Investigate a Completed Misdemeanor Offense that was Committed Outside the Officer’s Presence

The Fourth Amendment of the United States Constitution and Section 10 of the Kentucky Constitution ensures the right of the people to be free from unreasonable searches and seizures. In a recent unpublished decision, the Kentucky Court of Appeals held that police lack justification to stop a
motorist for the purpose of investigating a completed misdemeanor offense that was committed outside the officer’s presence. Commonwealth v. Easterling, 2017-CA-001786-MR (Ky. App. 2018).

In Easterling, the police received a call from someone alleging that a female suspect had stolen items from three other individuals in a bar. The caller described the suspect’s appearance, vehicle, and license plate number. Officer Douglas Ullrich of the Covington Police Department saw a vehicle
matching the caller’s description drive by his patrol car. The officer began to follow the suspect’s vehicle. Shortly thereafter, the officer was informed by dispatch that the caller had reported that most, if not all, of the stolen items had been recovered. The officer pulled over the vehicle anyway on the sole basis of investigating the theft allegation. Sarah McNeil was the driver of the vehicle.

Following a brief investigation, the officer determined that McNeil was under the influence of alcohol or drugs. McNeil was charged in Kenton District Court with driving under the influence, possession of an open container of alcohol, and failure to produce an insurance card. McNeil filed a motion to suppress the evidence of her impairment on the basis that she had not committed a misdemeanor offense in the officer’s presence. The district court agreed with McNeil and granted her motion to suppress.

The Commonwealth filed a petition for a writ in Kenton Circuit Court to prohibit the district court from suppressing the evidence of McNeil’s impairment. The Commonwealth argued that it was irrelevant that McNeil had not committed a misdemeanor in the officer’s presence because the officer had reasonable suspicion to investigate McNeil based the totality of the circumstances. The circuit court denied the Commonwealth’s petition for writ of prohibition. The Commonwealth then appealed to the Kentucky Court of Appeals.

The Court of Appeals affirmed the circuit court’s denial of the petition for writ of prohibition.

The Court reviewed longstanding precedents of the Supreme Court of the United States on the reasonableness of investigatory detention by the police under the Fourth Amendment. Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 1889 (1968), is a classic case where the Supreme Court held that police may stop an individual for a brief investigation if the police have a reasonable and articulable suspicion that the individual was committing a crime or about to commit a crime. Such investigative stops are now known as Terry stops. However, the Terry decision did not answer the question of whether police could use a Terry stop to investigate crimes that had already been committed.

The Supreme Court of the United States later determined that police could use a Terry stop, based upon reasonable and articulable suspicion, to investigate whether a person was involved in a completed felony offense. United States v. Hensley, 469 U.S. 221, 229, 105 S. Ct. 675, 680, 83 L. Ed.
2d 604 (1985). Again, the Court did not determine whether a Terry stop could be used to investigate all completed crimes and not just felonies. Id. The Kentucky Court of Appeals noted that the various lower federal courts are split on the question of whether Terry stops may be used to investigate
completed misdemeanors. Some Circuit Courts of Appeals hold that Terry stops may never be used to investigate completed misdemeanors while others hold that a Terry stop may be reasonable depending on the overall circumstances of the case.

Citing the Hensley decision, the Kentucky Court of Appeals determined that the police lacked justification to stop McNeil because the investigation of a completed crime, unlike the investigation of an ongoing crime, does not present exigent circumstances or otherwise serve the interests of crime prevention and public safety. The Court stated: The Commonwealth has not offered any argument why the government’s interest in stopping
McNeil for a completed misdemeanor theft justified such an intrusion on personal security. Even if we were inclined to find that Terry stops for completed misdemeanors are not unreasonable per se, we have not been provided grounds to find the stop in this case was permissible under the Fourth Amendment.

Judge Jones concurred with the opinion written by Judge Maze. Judge Taylor concurred in the result only. The Commonwealth has until December 16, 2018, to file a motion for discretionary review in the Supreme Court of Kentucky.

Whenever a person is detained or arrested without a warrant, the Fourth Amendment plays a key role in any defense strategy. The Easterling decision upholds the strength and importance of the Fourth Amendment prohibition against unreasonable searches and seizures in Kentucky. Without more, police may not stop a motorist to investigate a misdemeanor offense that was completed outside the officer’s presence. The application of complex law to the specific facts of each case is essential to a winning defense.


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