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Commonwealth v. Evans6/3/2005
REVERSING AND REMANDING
BEFORE: GUIDUGLI, JOHNSON, AND McANULTY, JUDGES.
The Commonwealth of Kentucky has taken an interlocutory appeal pursuant to KRS 22A.020(4) from the Jefferson Circuit Court's August 11, 2004, order suppressing evidence against Kevin Evans seized in a search of his vehicle on October 8, 2003, during a traffic stop. After reviewing the record and considering the parties' briefs and relevant case law, we reverse and remand.
On April 22, 2004, the Jefferson County Grand Jury indicted Evans on the offenses of trafficking in a controlled substance in the first degree (KRS 218A.1415), operation of a motor vehicle by a person whose operator's license has been revoked, suspended, cancelled or denied (KRS 186.620(2)), no motor vehicle insurance (KRS 304.39-080), and reckless driving (KRS 189.290). Evans entered a plea of not guilty and subsequently moved the court to suppress the evidence found (crack cocaine) after an officer searched his vehicle during a traffic stop on October 8, 2003.
A hearing on the motion to suppress evidence was held on August 2 and 3, 2004, at which time the arresting officers and Evans testified to the events of the search on October 8, 2003. The circuit court made the following findings of fact, which are not disputed by either party on appeal.
FINDINGS OF FACT
On October 8, 2003, between 9 p.m. and 11 p.m., Officer Amy Tanner observed a vehicle driving erratically on Logan Street in Louisville. According to Officer Tanner, she believed that the vehicle's crossing the center line several times indicated an intoxicated driver, and she called for backup at that time. When she stopped the vehicle, Mr. Evans exited from the driver's side and protested being pulled over. Officer Tanner ordered him back into his automobile and obtained his operator's license; he was not able to show proof of insurance. She returned to her vehicle to process the information. Sometime during this period an unidentified individual left the automobile and fled the scene. Mr. Jackson remained in the automobile's right passenger seat. Officer Tanner discovered that Mr. Evans was operating on a suspended license for driving while intoxicated and had no insurance. Around this time, Officer Joe Davis, the backup officer, arrived. Officer Tanner then ordered both occupants out of the automobile and placed them between Mr. Evans' car and the front of the police car. She testified that at this time, she was planning to arrest Mr. Evans. While she did a pat down search, Officer, Davis, incidental to the arrest, searched the interior of the car and located suspected crack cocaine in the glove compartment. The defendants were then charged with Trafficking in a Controlled Substance, and Mr. Evans was cited for Reckless Driving, Operating on a Suspended License and No Proof of Insurance.
According to the (sic) Officer Tanner, during the search of the vehicles Mr. Evans was under arrest for the traffic violations, while Mr. Jackson was detained for safety purposes and was not free to go. According to Officer Davis, Mr. Evans was under arrest, but Mr. Jackson was free to go. Mr. Evans testified that he was advised by Officer Tanner prior to the search that he was free to go after he had been given a citation for the traffic offenses and that only after the drugs were found was he placed under arrest. He also identified the individual who had left his automobile, stating that the person had gone to his cousin's home which was close to where the arrest took place.
Based upon these facts, the circuit court entered the following conclusions of law to support its determination that the evidence seized shoul
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