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Plumb v. Commonwealth9/23/2005
AFFIRMING
BEFORE: DYCHE, KNOPF, AND TACKETT, JUDGES.
Bruce Plumb, Jr., appeals from a judgment of the Fayette Circuit Court, entered September 8, 2004, convicting him pursuant to his conditional guilty plea of the following crimes: being a felon in possession of a firearm, first-degree possession of a controlled substance, and driving a motor vehicle under the influence of intoxicants (DUI). The trial court probated Plumb's five-year sentence for a period of five years. Plumb's guilty plea reserved his right to seek review of the trial court's rulings refusing to suppress evidence allegedly derived from an illegal motor vehicle stop, refusing to suppress drug evidence allegedly rendered unreliable by an inadequate chain of custody, and granting the Commonwealth's motion to introduce evidence concerning Plumb's alleged prior drug dealing. Convinced that Plumb is entitled to relief on none of these grounds, we affirm.
Shortly after 1:00 a.m. on March 1, 2003, an officer of the Lexington Division of Police traveling southbound on the New Circle Road between North Broadway and Bryan Station Road observed a northbound white Isuzu traveling at what appeared to be an excessive speed. The officer's radar indicated that the Isuzu was going fifty-seven miles per hour in a forty-five mile-per-hour zone. The officer promptly crossed the median, pursued the Isuzu, and pulled it over as it approached Russell Cave Road. When the driver, Plumb, who smelled of alcohol and otherwise appeared intoxicated, failed all six field sobriety tests, the officer arrested him for DUI. In the ensuing search, the officer found, among other evidence, what eventually proved to be one small plastic packet and three small paper bindles of cocaine in the pocket of Plumb's jacket and, in the Isuzu's glove compartment, a loaded .38 pistol.
In May 2003, a Fayette County grand jury indicted Plumb for being a felon in possession of a handgun, for trafficking in a controlled substance, for possession of marijuana, for possession of drug paraphernalia, for DUI, for various traffic violations, and for being a second-degree persistent felon. Plumb moved to suppress the evidence the arresting officer discovered and on appeal contends that the trial court erred by denying the motion because the officer lacked a sufficient basis for the vehicle stop. We disagree.
An officer with probable cause to believe that a traffic violation has occurred may stop the suspected vehicle.
Plumb maintains that the officer in this case did not have probable cause to believe that he (Plumb) was speeding because the radar upon which the officer relied may have malfunctioned or may have been registering the speed of some vehicle other than Plumb's. As Plumb concedes, however, in Honeycutt v. Commonwealth, Kentucky's highest court recognized the general reliability of police radar detectors and held that radar evidence in a particular case may be deemed accurate if there is evidence that the device had been recently tested and that the operator had been adequately trained.
At the suppression hearing in this case, the officer testified that his squad car was equipped with a Custom HR 12 moving radar which was capable of registering the speed of oncoming cars even when the squad car was moving. The officer had tested the device at the beginning of his shift that night and had determined, by means of a built-in test, that the display lights were functioning and, by means of dual tuning forks, that the device was reading accurately. The dual-tuning-fork test is widely accepted as adequate. The officer repeated these tests soon after Plumb's arrest and again confirmed that the device was w
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