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Poe v. Commonwealth7/22/2005
REVERSING AND REMANDING
BEFORE: BARBER AND SCHRODER, JUDGES; HUDDLESTON, SENIOR JUDGE.
Kevin Michael Poe (Poe) entered a conditional guilty plea on September 25, 2003 to the offenses of driving under the influence , first offense, and possession of marijuana after the district court denied his motion to suppress evidence seized as a result of, what Poe argues, was an illegal stop. The circuit court affirmed the district court's ruling and Poe's request for discretionary review by this Court was granted on June 14, 2004. We reverse.
On December 21, 2002 an officer with the Hopkinsville Police Department observed Poe driving up and down the same streets around 1:30 a.m. The citation notes a "courtesy stop was made to possibly offer directions." The officer effected the stop by pulling behind Poe and activating his emergency lights. Once the stop was made the officer noticed Poe had bloodshot eyes, a carefree attitude, and was not wearing a seatbelt. Poe admitted upon questioning that he had been smoking marijuana. Poe was arrested and charged with operating a motor vehicle while under the influence of drugs, no insurance, possession of marijuana, and possession of drug paraphernalia, first offense.
Poe filed a motion to suppress all evidence based on the allegation that the officer did not have a reasonable and articulable suspicion upon which to believe any criminal activity was afoot, thus, the stop did not meet the constitutional standards required by Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979).
On January 23, 2003 the district court held a suppression hearing on Poe's motion. At the hearing the officer testified regarding the stop he made of Poe as follows:
Haggard: The basis for pulling him [Poe's attorney] over was that as a courtesy?
[Officer] Marszalek: Yes, sir.
Haggard: Okay. There was no criminal activity that you saw being committed was there?
Marszalek: No, sir.
Haggard: You basically just assumed he might be lost and so you pulled him over.
Marszalek: Correct.
Haggard: As we stand here, you can't articulate any criminal activity that you thought was being committed?
Marszalek: No, sir. * * * Adams: Is there or was there any [Prosecutor] other basis for this stop?
Marszalek: Other than the courtesy stop I figured the subject was lost. He was observed driving numerous times around Mechanic's Street, up and down Howell, Hayes, and Younglove. It is a very high drug activity area. I noticed Mr. Poe driving, noticed him driving without a seatbelt. Each time I passed him by Mr. Poe had pretty much been smiling and then I got him stopped. I didn't know if something was wrong or he was lost or he was looking for something. I made the stop to offer assistance.... Officer Marszalek acknowledged that he activated his emergency lights to pull Poe over and he admitted he did not cite Poe for failing to wear a seatbelt although he gave him a verbal warning. In his testimony the officer insisted he had observed Poe's failure to wear a seatbelt prior to pulling him over but admitted he did not stop Poe for this reason.
The district court made the following factual finding, "I think what we've got here is the intent for him to stop was not based upon criminal activity. It was, as you indicated, a courtesy stop." The district court then ruled that once Poe was stopped Officer Marszalek could, upon the observation of circumstances leading to a reasonable belief of criminal activity, investigate further and take appropriate measures. Thus, Poe's motion to suppress was denied. Poe
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