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McCarty v. Com.10/22/2004
Eugene McCarty, Jr., appeals from a jury verdict finding him guilty of three counts of drug possession. McCarty argues that his conviction should be overturned because the discovery of drugs in his car by police was the result of a stop that was not supported by reasonable suspicion. He also argues that a self-incriminating statement that he made to the police after he allegedly had invoked his right to remain silent should have been suppressed. We affirm.
Randy Sergent, a Flemingsburg police officer, pulled McCarty over very early in the morning on August 21, 2002. Sergent had observed McCarty's vehicle speeding, crossing the center line, and driving on the shoulder. Sergent testified that he thought the driver might be intoxicated. McCarty explained to Sergent that he was rushing his passenger, Sue Brannen, to the hospital because she was suffering from a panic attack. Sergent asked McCarty to take a preliminary Breathalyzer test. The test result was negative and the officer told McCarty he would follow him to the hospital (which was about 200 yards away) where he was going "to talk to him a little bit more." The officer accompanied McCarty and his companion to the hospital. When they arrived, Sergent directed Brannen to the patients' entrance. He then asked McCarty if he was on any medication, and also asked him to step out of the vehicle in order to perform some more sobriety tests. Sergent testified that McCarty's eyes were red and glassy, and that he seemed very tired. The officer administered the horizontal gaze test and as a result believed that McCarty was "under the influence of something." Subsequent urine tests showed neither drugs nor alcohol in McCarty's system, however. When McCarty got out of his car, Sergent spotted a pill on the driver's seat. He picked it up and asked McCarty what it was. McCarty replied that it was a stomach pill. The officer examined the pill and saw that it was a tablet of OxyContin. Sergent then arrested McCarty and searched him. He found a plastic baggy in his watch pocket containing a white powder that was later proved to be cocaine. After handcuffing McCarty and placing him in his cruiser, Sergent searched the car and found under the driver's seat a large baggy of cocaine, some empty prescription bottles, two large plastic bags containing over one hundred Fabophen pills and a set of small silver scales.
Sergent also arrested Brannen, and then drove McCarty and Brannen to the dispatch office. When they arrived, he read McCarty his Miranda rights from a prepared card. He asked McCarty if he understood. McCarty nodded. Sergent testified that he did not coerce, threaten, or force McCarty to talk, nor did he promise him leniency in exchange for talking. He also testified that McCarty did not seem confused, was not injured, and was not deprived of food or sleep. Sergent asked McCarty if he wanted to talk about the drugs found in his car. McCarty responded, "there's nothing to talk about." Sergent then asked him about the ownership of the empty prescription bottles found in the car. A lengthy interrogation ensued. The officer testified that, during the course of the questioning, McCarty stated that he "had the stuff [the drugs] to get girls."
*2 Before his trial, McCarty made a motion to suppress his remark that he "had the stuff to get girls." The motion was denied. McCarty was found guilty of two counts of possession of a controlled substance, in the first and second degree; and possessing prescription drugs not in a proper container. He was sentenced to five years in prison.
McCarty's first argument is that his encounter with Sergent in the hospital parking lot that resulted in the discovery of the OxyContin pill was an illegal stop. McCarty acknowledges that the initial stop, when Sergen
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