Opinion
NO. 2015-CA-001249-DG
12-22-2016
SAMUEL D. SANDERS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: John Douglas Hubbard Bardstown, Kentucky BRIEF FOR APPELLEE: Dennis Wilcutt Barren County Assistant Attorney Glasgow, Kentucky
NOT TO BE PUBLISHED ON DISCRETIONARY REVIEW FROM LARUE CIRCUIT COURT
HON. CHARLES C. SIMMS, III, JUDGE
ACTION NOS. 15-XX-00001 & 14-T-00117 OPINION
AFFIRMING
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BEFORE: CLAYTON, STUMBO, AND VANMETER, JUDGES. VANMETER, JUDGE: Samuel Sanders seeks discretionary review of the LaRue Circuit Court's opinion and order, affirming the LaRue District Court's denial of Sanders' motion to suppress evidence. We affirm the circuit court.
I. Factual and Procedural Background.
On March 29, 2014, at approximately 12:40 a.m., Officer James Richardson of the Hodgenville Police Department observed a vehicle traveling fifteen miles over the speed limit in LaRue County, Kentucky. Richardson initiated a routine traffic stop for the speeding violation and found that Sanders, the driver, had bloodshot eyes and a strong odor of alcohol on his breath. Richardson asked Sanders how much alcohol he had consumed, to which Sanders initially replied he had not had anything to drink. Sanders submitted to a preliminary breath test (PBT) at the scene, with the result indicating that Sanders was intoxicated. Richard then asked again when Sanders had last had a drink, and Sanders replied that it had not been long. Richardson then administered standard field sobriety tests, the results of which also indicated intoxication. Richardson found probable cause to arrest Sanders for driving under the influence (DUI), and transported him to the LaRue County Detention Center. Sanders declined the officer's request to submit to a breath test. Sanders was charged with first-offense DUI and speeding.
Pursuant to Kentucky Revised Statutes (KRS) 189A.104(2), PBT results are inadmissible in court, with some exceptions. Stump v. Commonwealth, 289 S.W.3d 213, 215-16 (Ky. App. 2009) (overruled on other grounds by Crouch v. Commonwealth, 323 S.W.3d 668 (Ky. 2010)). However, "the pass/fail result of a PBT is admissible for the limited purpose of establishing probable cause for an arrest at a hearing on a motion to suppress." Greene v. Commonwealth, 244 S.W.3d 128, 135 (Ky. App. 2008).
At the time of the traffic stop, Richardson used his cruiser's dashboard camera to create a video recording of the encounter with Sanders, which included the failed field sobriety tests. Richardson then brought the video back to the police department, since the video was now part of the evidence in the case. Because Sanders is the Superintendent of the LaRue County School District, he is a public figure in LaRue County. Within days of Sanders's arrest, members of the news media arrived at the office of the Hodgenville police chief, seeking access to the video as part of the "Open Records Act." No formal open record requests were actually filed, but the police chief, believing himself obliged to honor these verbal requests, released the Sanders video to the media. As a consequence, the story of Sanders's DUI arrest and the accompanying video were broadcast to the public by state and local television news outlets in early April 2014.
Sanders filed a motion in LaRue District Court in June 2014, asking, among other things, for the dashboard camera video to be suppressed; his statements to Richardson to be suppressed; and the DUI charge dismissed. Following a hearing, the district court denied the motion. Thereafter, Sanders entered a conditional guilty plea pursuant to North Carolina v. Alford, reserving his right to appeal the suppression issues. The LaRue Circuit Court affirmed the district court in a written opinion. Sanders filed a motion for discretionary review with this Court, which was granted.
North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). An Alford plea "permits a conviction without requiring an admission of guilt and while permitting a protestation of innocence." Wilfong v. Commonwealth, 175 S.W.3d 84, 103 (Ky. App. 2004). "The entry of a guilty plea under the Alford doctrine carries the same consequences as a standard plea of guilty." Id. at 102 (internal quotation marks omitted). --------
II. Standard of Review.
"When reviewing a trial court's denial of a motion to suppress, we utilize a clear error standard of review for factual findings and a de novo standard of review for conclusions of law." Jackson v. Commonwealth, 187 S.W.3d 300, 305 (Ky. 2006) (citing Welch v. Commonwealth, 149 S.W.3d 407, 409 (Ky. 2004)). Sanders presents four issues on appeal from the denial of his motion to suppress. The facts of this case are largely undisputed, and so we review the legal issues de novo.
III. Issues on Appeal.
Sanders's first three issues are interrelated, stemming from the inappropriate release of the dashboard camera video to the news media. As background for these arguments, we must begin with an examination of the statutory provisions regarding the use of police dashboard camera videos. Law enforcement agencies are permitted to record video of traffic stops and field sobriety tests under KRS 189A.100(2). Such videos are admissible and may be introduced at trial by either the Commonwealth or a defendant. KRS 189A.100(2)(c). However, outside of specified official purposes, these videos are considered "confidential records" not normally subject to disclosure. KRS 189A.100(2)(e). Release of the videos in a way not comporting with this statutorily-mandated confidentiality subjects the releasing party to criminal penalties. "Public officials or employees utilizing or showing recordings other than as permitted in this chapter or permitting others to do so shall be guilty of official misconduct in the first degree." KRS 189A.100(2)(g).
In his motion before the district court, Sanders argued that the illegal release of the video caused him "undue humiliation," as an intentional act meant to injure his reputation, and that the release of the video was intended to "poison the jury pool" for some prosecutorial advantage. Sanders further contended that, as a matter of "fairness," the Commonwealth should not be permitted to introduce the video at trial. Sanders's first three arguments may therefore be summed up as follows: (1) release of the video resulted in a violation of Sanders's underlying constitutional rights, because the publicity generated infringed upon his right to a fair trial; (2) if the video's release was found to be a mere statutory violation, it nonetheless still resulted in a denial of his right to a fair trial; and (3) the criminal charge facing the police chief for releasing the video does not provide sufficient deterrence for other police officers contemplating similar acts, and so exclusion of the evidence is necessary.
In its opinion, the circuit court found that the police chief violated the express language of KRS 189A.100(2) by releasing the video to the media. However, the court also held that this violation was only statutory, and that Sanders suffered no violation of his constitutional rights, thereby triggering application of the exclusionary rule. We concur with the circuit court's reasoning.
The result of a successful motion to suppress is the exclusion from admission at trial of any wrongfully acquired evidence. The purpose of the exclusionary rule has historically been twofold: (1) to deter police misconduct by excluding evidence obtained in violation of the Fourth Amendment to the U.S. Constitution; and (2) to encourage compliance with the constitutional protection against unreasonable searches and seizures.Commonwealth v. Bedway, 466 S.W.3d 468, 476 (Ky. 2015) (citations omitted) (emphasis added). Sanders does not allege that the police officers involved in this case wrongfully acquired the video, obtaining it in violation of the Fourth Amendment. He objects to the public release of the video. This release, however, is a statutory violation, not a constitutional one.
Despite Sanders's argument that the release of the video compromised his rights to due process under the Fifth Amendment and his right to a fair trial under the Sixth Amendment, we cannot agree that a statutory violation may be transformed into a constitutional violation on a theory that the violation may remotely touch an area of constitutional concern. See United States v. Donovan, 429 U.S. 413, 432 n. 22, 97 S.Ct. 658, 671, 50 L.Ed.2d 652 (1977) (court stating "[t]he availability of the suppression remedy for these statutory, as opposed to constitutional, violations ... turns on the provisions of [the federal wiretapping statute] rather than the judicially fashioned exclusionary rule aimed at deterring violations of Fourth Amendment rights[]"). Though the Supreme Court understood that wiretapping issues related to potential Fourth Amendment concerns, it nonetheless relied upon the statutory provisions rather than the exclusionary rule. We believe the same reasoning should apply here.
Nor do we agree with Sanders's second argument that the statutory violation must, of itself, result in exclusion of the video. "Although exclusion is the proper remedy for some violations of the Fourth Amendment, there is no exclusionary rule generally applicable to statutory violations." United States v. Abdi, 463 F.3d 547, 556 (6th Cir. 2006). "It has been held in Kentucky and elsewhere that in the absence of an explicit statutory directive, evidence should not be excluded for the violation of provisions of a statute where no constitutional right is involved." Beach v. Commonwealth, 927 S.W.2d 826, 828 (Ky. 1996).
Nonetheless, Sanders argues that the reasoning of Commonwealth v. Long, 118 S.W.3d 178 (Ky. App. 2003), should apply in this case. In Long, a panel of this Court found that a police officer's refusal to reasonably facilitate a DUI suspect's statutory right to an independent blood test should result in a suppression of the testing requested by the police. The circuit court in this case examined this argument and found the situation in Long was readily distinguishable from the facts in this case. The Long case involved the production of relevant evidence of intoxication under the implied consent statute, KRS 189A.103, on behalf of both the Commonwealth and a criminal defendant. We agree with the circuit court that the improper release of the video did not hinder or otherwise affect the production of relevant evidence in the case. Long is, thus, distinguished on that basis.
For his third issue, Sanders argues that the video should be excluded on grounds that the criminal charge faced by the police chief is an insufficient deterrent to potential future releases of dashboard camera videos by other officers, and thus suppression of the video is necessary. In Sanders's view, police officers would be more deterred by the exclusion of evidence than they would be by being charged with official misconduct in the first degree, a Class A misdemeanor. KRS 189A.100(2)(g); KRS 522.020. Sanders offers no valid support for this argument, and we find ourselves unpersuaded. Exclusion "is not an individual right and applies only where it result[s] in appreciable deterrence." Herring v. United States, 555 U.S. 135, 141, 129 S.Ct. 695, 700, 172 L.Ed.2d 496 (2009) (citations and internal quotation marks omitted). Avoiding a criminal charge, with the attendant possibility of twelve months' incarceration, appears to us to be much more motivational than the mere possibility of embarrassing or even gaining a potential advantage over a criminal defendant. Accordingly, we concur with the circuit court's determination that the statute's provision for a criminal penalty is sufficient deterrence and exclusion is unjustified.
Sanders's fourth and final argument urges the suppression of his statements to Richardson at the time of his traffic stop, since he had not at that point received Miranda warnings. The circuit court determined that Sanders's responses to the officer's questions at the traffic stop should not be suppressed, since this did not constitute a "custodial interrogation." We agree.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), requires police officers to advise suspects of their rights against self-incrimination and to an attorney prior to subjecting them to custodial interrogation. However, a Miranda warning is not required when a suspect is merely taken into custody, but rather when a suspect in custody is subject to interrogation. As a general rule, ordinary traffic stops do not constitute custody for purposes of Miranda.Greene, 244 S.W.3d at 135 (citations omitted). Greene is factually similar to the present case, in that it involved a suspect believed to be driving under the influence who argued for suppression of comments he made to the arresting officer at a traffic stop. As in Greene, we find that Sanders's statements to Richardson at the traffic stop were not the product of a custodial interrogation, and thus suppression of those statements is unwarranted.
For the foregoing reasons, we affirm the LaRue Circuit Court's Opinion and Order.
ALL CONCUR. BRIEFS FOR APPELLANT: John Douglas Hubbard
Bardstown, Kentucky BRIEF FOR APPELLEE: Dennis Wilcutt
Barren County Assistant Attorney
Glasgow, Kentucky