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Commonwealth v. Nance11/24/2004
REVERSING AND REMANDING
The Commonwealth of Kentucky has taken an interlocutory appeal pursuant to KRS 22A.020(4) from the Calloway Circuit Court's August 13, 2004, order suppressing evidence against James T. Nance seized in a search of his vehicle on March 26, 2003, during a traffic stop. After reviewing the record and considering the parties' briefs and relevant case law, we reverse and remand.
On April 23, 2003, the Calloway County Grand Jury indicted Nance on the offense of manufacturing methamphetamine while in possession of a firearm. Nance entered a plea of not guilty on May 12, 2003, and eight days later on May 20, 2003, Nance moved to suppress the evidence found after an officer searched his vehicle during a traffic stop on March 26, 2003.
A hearing on the motion to suppress evidence was held on July 14, 2003, at which time Officer Shane Mize of the Murray Police Department testified to the events of the search of March 26, 2003. Mize testified that dispatch informed him of a call received by a woman who reported that Nance had threatened her despite an outstanding domestic violence order (DVO) against him, that Nance had a gun, and identified the vehicle he was driving. Mize also learned of an outstanding arrest warrant issued for Nance on a prior charge for assault.
When they spotted Nance, Mize and another officer pulled Nance over. Nance exited the car and stood next to the driver's door. The officers instructed him to put his hands up, but Nance kept asking the officers why he had to comply and what he had done. The officers walked Nance to the back of his vehicle and placed his hands on the trunk. Mize informed Nance of the reason for the stop, including the phone complaint and arrest warrant. Mize checked Nance's identification, and when the information was validated, Nance was arrested.
While standing at the rear of Nance's vehicle, Mize handcuffed Nance and asked Nance if he had any weapons in the vehicle. Nance stated that he had a gun in the vehicle, but that it was brand new and in a bag. Mize then went to the car and looked in the bags he found on the back seat until he found the gun. Mize then took the gun from the vehicle, and he escorted Nance to the back seat of the police cruiser.
After securing Nance in the cruiser, Mize went back to the vehicle to look for any ammunition or additional weapons. Mize testified that while looking for the gun, he was also aware of the contents of the other bags, which, at this point, he seized. The bags contained items consistent with the manufacture of methamphetamines.
Relying on Clark v. Commonwealth, Ky.App., 868 S.W.2d 101 (1993), the Calloway Circuit Court granted Nance's motion to suppress. The court found Clark stands for the premise that when a person is "handcuffed and placed in a police car, the scope of a search incident to arrest is somewhat limited." The court also revisited the plain view exception, and found that the search was not done properly with respect to this exception to the warrant requirement.
The issue on appeal is whether the Calloway Circuit Court erred in granting the motion to suppress. The Commonwealth argues that according to established state and federal law, the evidence was seized during a search incident to arrest. In the alternative, the Commonwealth posits that the warrantless search was valid under the automobile exception to the Fourth Amendment warrant requirement or that the search constituted a lawful "pat-down" pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Nance argues that not only is the search not valid under any exception to the warrant requirement or Terry, but th
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