Appendix — Owens v. Kentucky (No. 07-1411)

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SUPREME COURT OF KENTUCKY.

Keith A. OWENS, Appellant,

v.

COMMONWEALTH OF KENTUCKY, Appellee.

No. 2006-SC-000037-MR.

Rendered Jan. 24, 2008.

Final Feb. 14, 2008.

On Appeal from Taylor Circuit Court Honorable

Doughlas M. George, Judge

No. 04-CR-00225

Opinion of the Court by Justice MINTON.

This appeal requires us to decide whether a

police officer working a traffic stop may exercise

discretion to conduct a pat-down search for weapons

of a vehicle’s passenger who exited the vehicle to

accommodate a search of the vehicle incident to the

driver’s arrest, even if the officer has no independent

suspicion that the passenger is guilty of criminal

conduct. Analyzing the automatic companion rule as

a matter of first impression in Kentucky, we conclude

that officer safety and public safety demand that the

police officer have discretion to frisk the passenger

under these circumstances ‘his conclusion leads us

to hold that the trial court properly denied the

passenger's motion to suppress. evidence of

contraband seized from him and to affirm his

conviction.

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I. FACTUAL AND PROCEDURAL HISTORY

Awaiting trial on charges of possession of

marijuana, first-degree possession of a controlled

substance, and of being a first-degree persistent

felony offender (PFO 1), Keith Owens filed a pretrial

motion to suppress evidence of illegal drugs seized

during an allegedly improper search of his person.

This prompted the trial court to hold a_ brief

suppression hearing at which the Commonwealth

presented the testimony of the arresting officer.

Owens testified at the hearing in his own behalf.

According to the officer’s testimony, he stopped

a vehicle driven by Chris Thornton because he

believed-correctiy it turned out-that Thornton’s

driver’s license had been suspended. Thornton was

arrested on that charge. Once outside the vehicle,

Thornton was searched incident to arrest. The

search yielded a suspected crack pipe, and Thornton

was placed in the police cruiser. Owens was a front-

seat passenger in the vehicle.!

The officer decided to search the vehicle at the

scene incident to Thornton’s arrest and directed

Owens to step out of the vehicle. The officer asked

Owens if he had any weapons. The officer testified

that Owens stated that he had nothing to hide and

began removing money from his pockets. The officer

saw a baggie fall out when Owens pulled money from

! Apparently, the vehicle was actually Owens’s; but Owens did

not want to drive because he had taken prescription codeine for

bronchitis.

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one of his pockets. That baggie, which the officer

testified he immediately suspected contained

contraband as it landed at Owens’s feet, contained a

marijuana cigarette, some loose marijuana, and

several pills. Two of the pills were later determined

to contain methamphetamine, and three of them

were later determined to contain ecstasy. The officer

testified at the suppression hearing that Owens

voluntarily emptied his own pockets and that he had

fully completed a Terry? pat-down when Owens

emptied his pockets. But the officer also testified,

seemingly contradictorily, that Owens _ began

removing money from his pockets while the officer

was conducting the pat-down. A later search of the

vehicle and Owens’s person revealed no other

contraband. |

At the suppression hearing, Owens’s version of

the events differed slightly from the officer’s. Owens

did not dispute the officer’s testimony about the stop

of the vehicle and Thornton’s arrest. But Owens

testified that the officer reached into his pockets to

remove the money. Owens also denied that he

possessed the baggie containing the illegal drugs.

The trial court denied the motion to suppress.

At trial, the jury found Owens guilty of all charges

and recommended a sentence of twelve months with

a $500 fine for the possession of marijuana

conviction, and a twenty-year sentence for the PFO 1

2 Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889

(1968).

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conviction.? Owens was sentenced in accordance with

the jury’s recommendation,‘ after which he filed this

matter-of-right appeal.®

Il. ANALYSIS

Owens does not contest the stop of the vehicle.

Nor does he contest the arrest and eventual search of

Thornton. Owens contends that the officer

overstepped constitutional bounds when he frisked

him for weapons. We disagree.

Motions to suppress are governed by Kentucky

Rules of Criminal Procedure (RCr) 9.78. That rule

provides that a court facing a motion to suppress

“shall conduct an evidentiary hearing outside the

presence of the jury and at the conclusion thereof

shall enter into the record findings resolving the

essential issues of fact raised by the motion or

objection and necessary to support the ruling.” When

reviewing an order on a motion to suppress, the trial

court’s findings of fact are “conclusive” if they are

“supported by substantial evidence.” Using those

facts, this Court then reviews de novo the trial court’s

3 Neither the jury nor the trial court assessed a separate

penalty for the possession of a controlled substance conviction.

Owens does not claim error in the failure to assess a separate

penalty for the underlying controlled substance conviction.

4 The final judgment makes no mention of the possession of

marijuana conviction.

5 SeeKy. Const. § 110(2)(b).

6 RCr 9.78.

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application of the law to those facts to determine

whether its decision is correct as a matter of law.7?

Under our settled jurisprudence, “i]t is

fundamental that all searches without a warrant are

unreasonable unless it can be shown that they come

within one of the exceptions to the rule that a search

must be made pursuant to a valid warrant.”®

The officer had a right to stop the vehicle

based on his reasonable suspicion that Thornton’s

driver’s license had been suspended.? And the officer

had the authority to arrest Thornton!® and to conduct

7 See Adcock v. Commonwealth, 967 S.W.2d 6, 8 (Ky.1998)

(“When the findings of fact are supperted by substantial

evidence, as we conclude they are herein, the question

necessarily becomes, ‘whether the rule of law as applied to the

established facts is or is not violated[,]’ “citing Ornelas v. United

States, 517 U.S. 690, 697, 116 S.Ct. 1657, 1662, 134 L.Ed.2d 911

(1996), in which the United States Supreme Court stated that

trial court’s determination of reasonable suspicion or probable

cause was subject to de novo review even though findings of fact

were supported by substantial evidence.).

8 Cook v. Commonwealth, 826 S.W.2d 329, 331 (Ky.1992).

9 See, e.g., Collins v. Commonwealth, 142 S.W.3d 113, 115

(Ky.2004) (citing Delaware v. Prouse, 440 U.S. 648, 663, 99

S.Ct. 1391, 1401, 59 L.Ed.2d 660, 673 (1979)).

10 Kentucky Revised Statutes (KRS) 186.620(2) provides that a

person shall not operate a motor vehicle on a suspended license.

KRS 186.990(3) provides that a person who violates KRS

186.620 commits a Class B misdemeanor. KRS 431.005(1)

authorizes a peace officer to arrest a person without a warrant if

that person has committed a misdemeanor in the officer’s

presence.

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a search of Thornton incident to that arrest.1! Once

Thornton was lawfully arrested, the officer had the

authority to search the passenger compartment of the

vehicle Thornton had recently driven.!2 And an

officer has the authority to order a passenger to exit a

vehicle pending completion of a minor traffic stop.!°

So it logically follows that an officer may order a

passenger to exit a vehicle while that vehicle is

searched incident to the lawful arrest of the driver.

It appears that every important action taken up to

the point where Owens’ was _ frisked was

constitutionally permissible.

lt See, e.g., Ratney v. Commonwealth, 197 S8.W.3d 89, 92

(Ky.2006) (plurality opinion), cert. denied--- U.S. ----, 127 S.Ct.

1005, 166 L.Ed.2d 713 (2007) (search incident to arrest is

exception to warrant requirement).

12 Thornton v. United States, 541 U.S. 615, 623, 124 S.Ct. 2127,

158 L.Ed.2d 905 (2004).

13° Maryland v. Wilson, 519 U.S. 408, 414-15, 117 S.Ct. 882, 137

L.Ed.2d 41 (1997) (“In summary, danger to an officer from a

traffic stop is likely to be greater when there are passengers in

addition to the driver in the stopped car. While there is not the

same basis for ordering the passengers out of the car as there is

for ordering the driver out, the additiona! intrusion on the

passenger is minimal. We therefore hold that an officer making

a traffic stop may order passengers to get out of the car pending

completion of the stop.”). At the suppression hearing, the officer

testified that Owens voluntarily exited the vehicle; but Owens

testified that the officer asked him to exit the vehicle. Since the

officer had the authority to order Owens to exit the vehicle, it is,

for purposes of this case, immaterial whether Owens voluntarily

exited the vehicle or whether the officer ordered him to do so.

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Here we arrive 2t the crux of this case: may an

officer conduct a pat-down search for weapons of a

passenger of a vehicle when the driver has been

arrested and the driver possessed illegal narcotics

even if there is no independent suspicion that the

passenger is guilty of criminal conduct?!4 This

precise factual scenario appears to be a matter of first

impression in Kentucky. So we turn to other courts

for guidance.

Two schools of thought have emerged around

this subject. One, known as the automatic

companion rule, holds that “[a]ll companions of the

arrestee within the immediate vicinity, capable of

accomplishing a harmful assault on the officer, are

constitutionally subjected to the cursory ‘pat-down’

reasonably necessary to give assurance that they are

unarmed.”!5 Numerous state and federal courts have

14 The officer did not testify that Owens was acting nervous or

was fidgeting with anything in his pockets; the officer did not

testify that he conducted the frisk because he feared for his

safety, either because he was aware of Owens’s lengthy criminal

history or because Owens was wearing baggy clothes that could

have easily concealed a weapon; and the officer did not testify

that the stop of the vehicle occurred in a high crime area. In

short, nothing of substance appears in the record to justify the

frisk of Owens, except for the inargusable fact that he was a

passenger in a vehicle driven by someone who possessed a crack

pipe. Although further questioning may have revealed that the

officer did, in fact, have articulable and independent suspicions

that Owens was armed or dangerous, those reasons were not

explicitly brought forth during the brief suppression hearing.

15 United States v. Berryhill, 445 F.2d 1189, 1193 (9th

Cir.1971).

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either expressly adopted the automatic companion

rule or have issued decisions that seem to follow its

contours.'!6 The other school of thought, also used by

several courts, is the totality of the circumstances

rule in which the propriety of the frisk is determined

considering the totality of the circumstances.!7 Some

16 See, e.g., United States v. Simmons, 567 F.2d 314, 319 (7th

Cir.1977) (holding that the automatic companion rule, as

expressed in Berryhill, was insufficient to justify a full-blown

search of an arrestee’s companion; but the rationale “may be

sufficient where a search is limited to a ‘pat down....’ “); United

States v. Poms, 484 F.2d 919, 922 (4th Cir.1973) (voicing

agreement with Berryhill );State v. Clevidence, 153 Ariz. 295,

736 P.2d 379, 382 (1987) (citing BerryAil/ with approval for

proposition that “(t]he right to a limited search for weapons

extends to a suspected criminal’s companions at the time of

arrest.”); People v. Myers, 246 Ill.App.3d 542, 186 Ill.Dec. 443,

616 N.E.2d 633, 636 (1993) (citing Berryhil/] with approval and

holding that “[w]hile a police officer may not search a person

merely because he is with someone who has been arrested, the

officer may conduct a pat-down of the arrested person’s

companions to protect himself or others.”); State v. Moncrief, 69

Ohio App.2d 51, 431 N.E.2d 336, 342 (1980) (citing BerryAri/

with approval); Lewis v. United States, 399 A.2d 559, 562

(D.C.1979) (citing BerryAil] with approval). Perry v. State, 927

P.2d 1158, 1163-64 (Wyo.1996) (citing BerryAz// with approval

and adopting automatic companion rule).

17 See, e.g., United States v. Bell, 762 F.2d 495, 499 (6th

Cir.1985) (rejecting adoption of automatic companion rule);

Eldridge v. State, 848 P.2d 834, 837-38 (Alaska Ct.App.1993)

(same); Commonwealth v. Ng, 420 Mass. 236, 649 N.E.2d 157,

158 (1995) (same); State v. Eggersgluess, 483 N.W.2d 94, 98

(Minn.Ct.App.1992); United States v. Flett, 806 F.2d 823, 827

(8th Cir.1986) (same). We axpear to have utilized the totality of

the circumstances test in vegards to judging the propriety of

Terry stops. See, e.g. Commonwealth v. Priddy, 184 S.W.3d

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courts that have rejected the automatic companion

rule appear to believe that it improperly creates a

guilt-by-association scenario and obliterates the

requirement that an officer have a particularized,

reasonable, articulable suspicion that a person is

engaging in criminal activity or is dangerous before

subjecting that person to a frisk.18 Legal scholars

have also entered the debate.!9

We have given careful analysis to the well-

reasoned thoughts expressed by both proponents and

opponents of the automatic companion rule. We have

decided to adopt the automatic companion rule in the

narrow realm of cases involving facts similar to the

case at hand.

We find it illogical that rejecting the automatic

companion rule would lead to scenarios whereby an

officer could search a vehicle incident to an arrest of

501, 511 (Ky.2005), cert. denied--- U.S. ----, 127 S.Ct. 444, 166

L.Ed.2d 316 (2006). However, we have not directly opined on

the merits, or lack thereof, of the automatic companion rule.

18 See, e.y., Eldridge, 848 P.2d at 838;Ng, 649 N.E.2d at 157.

‘9 See Kristi Michelle Bellamy, Zhe “Automatic Companion”

Rule and Its Unconstitutional Application to the Frisk of Car

Passengers, 27 AM.J.CRIM.L. 217 (2000); David E. Edwards,

Suzette M. Nanovic, Francis M. O’Connell & Laura A. Yustak,

Case Comment, Criminal Law-United States v. Bell: Rejecting

Guilt By Association in Search and Seizure Cases, 61 NOTRE

DAME L.REv. 258 (1986). John. J. O'Shea, The Automatic

Companion Rule: A Bright Line Standard for the Terry Frisk of

an Arrestee’s Companion, 62 NOTRE DAME L.REV. 751 (1987).

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the driver, which necessitates removing any

passengers from the vehicle, but could not take the

additional protective step of conducting a Jerry pat-

down for weapons of those passengers (unless the

officer had independent reasons to suspect the

passengers of being dangerous or of being involved in

criminal activity). Limiting the right to a make a

protective search would increase the chances that an

officer could be harmed by a passenger who had been

carrying a concealed weapon.2° This “compelling”?!

concern for officer safety is magnified by the fact that

this case, like so many others, involves illegal

narcotics, thereby bringing into play “[tlhe

indisputable nexus between drugs and guns], which]

presumptively creates a reasonable suspicion of

danger to the officer.” Indeed, even the United

States Supreme Court has recognized the safety of

officers as a matter of paramount importance.2* And

20 Berryhill, 445 F.2d at 1193 (“We think that 7erry recognizes

and common sense dictates that the legality of such a limited

intrusion into a citizen’s personal privacy extends to a criminal’s

companions at the time of arrest. Jt is inconceivable that a

peace officer effecting a lawful arrest of an occupant of a vehicle

must expose himself to a shot in the back from defendant's

associate because he cannot, on the spot, make the nice

distinction between whether the other is a companion In crime

or a social acquaintance.”) (emphasis added).

21 Perry, 927 P.2d at 1164 (“The concern of these courts [who

have adopted the automatic companion rule] for officer safety is

a compelling justification.”).

22 United States v. Sakyi, 160 F.3d 164, 169 (4th Cir.1998).

23. See Terry, 392 U.S. at 23-24, 88 S.Ct. at 1881 (“Certainly it

would be unreasonable to require that police officers take

lla

given the small space inside a vehicle and the general

presumption that one voluntarily chooses one’s

traveling companions for the furtherance of a

common goal or mission,”4 it would be unreasonable

and dangerous for an officer not to be concerned

about his or her safety with regard to the passengers

of a vehicle after the driver has been arrested.?®

Although a Jerry pat-down may be considered

an additional intrusion into the privacy of a

passenger, any additional intrusion is minimal—

since the passengers presumably have already been

ordered to exit the vehicle-and is more than

counterbalanced by the need to protect both the

officers and any innocent bystanders from harm.?6

unnecessary risks in the performance of their duties. American

criminals have a long tradition of armed violence, and every

year in this country many law enforcement officers are killed in

the line of duty, and thousands more are wounded. Virtually all

of these deaths and a substantial portion of the injuries are

inflicted with guns and knives.”). See also Sakyi, 160 F.3d at

168 (“All of these cases recognize generally that every traffic

stop poses a meaningful level of risk to the safety of police

officers”).

24 That general presumption of voluntary traveling together for

the furtherance of a common purpose is heightened in this case

by the fact that Owens asked Thornton to drive Owens’s vehicle.

25 Sakyi, 160 F.3d at 169 (“They [passengers of a vehicle] are in

the restricted space of the vehicle presumably by choice and

presumably on a comiaon mission.”).

26 See O'Shea, 62 NOTRE DAME L.REV. at 759 (citing statistics

regarding accidental shootings by Chicago police and arguing

After all, a protective frisk of a passenger by an

officer is just that: a mechanism designed sclely to

protect the officers and any bystanders, not an

offensive move designed to result in prosecution of a

passenger.2? Thus, since the officer’s motive in

conducting the frisk (safety) is not improper or

designed to circumvent the protections afforded by

the Fourth Amendment, the basic purpose of the

exclusionary rule-deterring police misconduct?®—

would not be furthered by denying the officer the

right to conduct a brief 7erry frisk of a passenger in a

vehicle whose driver has just been arrested. In other

words, penalizing the officer for conducting what a

court later determines to have been an improper frisk

will have absolutely no practical deterrent effect,

meaning that suppression of the evidence will not

further the aims of the exclusionary rule.29

that adoption of automatic companion rule would reduce those

shootings while simultaneously protecting the police)

27 See id. at 764.

28 §6See, e.g. Parks v. Commonwealth, 192 S.W.3d 318, 335

(Ky.2006) (“The exclusionary rule is designed to deter police

misconduct.”)

29 O’Shea, 62 NOTRE DAME L.REV. at 753 (“The officer who fears

for his safety is not concerned with the admissibility of evidence

found pursuant to a pat-down search. Instead, the officer is

protecting himself and those around him by conducting a pat-

down search for weapons.”); Terry, 392 U.S. at 14-15, 88 S.Ct. at

1876 (“Regardless of how effective the rule may be where

obtaining convictions is an important objective of the police, it is

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Additionally, adoption of the automatic

companion rule provides needed bright line guidance

to the bench, bar, law enforcement community, and

citizens across the Commonwealth as to what is

constitutionally permissible in cases such as the one

at hand. The United States Supreme Court, along

with commentators, has endorsed bright line rules in

dealing with other Fourth Amendment concerns.°

Jowerless to deter invasions of constitutionally guaranteed

rights where the police either have no interest in prosecuting or

are willing to forgo successful prosecution in the interest of

serving some other goal... Yet a rigid and unthinking

application of the exclusionary rule, in futile protest against

practices which it can never be used effectively to control, may

exact a high toll in human injury and frustration of efforts to

prevent crime.”) (internal footnote omitted).

0 See, e.g., New York v. Belton, 453 U.S. 454, 459-60, 101 S.Ct.

2860, 2864, 69 L.Ed.2d 768 (1981) (“When a person cannot know

how a court will apply a settled principle to a recurring factual

situation, that person cannot know the scope of his

constitutional protection, nor can a policeman know the scope of

his authority.”); LaFave, “Case-By-Case Adjudication” Versus

“Standardized Procedures”: The Robinson Dilemma, 1974

S.CT. REV. 127, 142 (“Fourth Amendment doctrine, given force

and effect by the exclusionary rule, is primarily intended to

regulate the police in their day-to-day activities and thus ought

to be expressed in terms that are readily applicable by the police

in the context of the law enforcement activities in which they

are necessarily engaged. A highly sophisticated set of rules,

qualified by all sorts of ifs, ands, and buts and requiring the

drawing of subtle nuances and hairline distinctions, may be the

sort of heady stuff upon which the facile minds of lawyers and

judges eagerly feed, but they may be ‘literally impossible of

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We are not unmindful of the powerful

protections afforded by the Fourth Amendment. In no

sense should our holding in this case be taken as a

license for law enforcement officers to believe that all

frisks of all persons are always proper. We also reject

any implication that our holding creates a “guilt by

association” mentality. To the contrary, our holding

is simply an avenue to protect the officer working at

the point of contact and the public. Toward that end,

our holding is a limited and narrow exception to the

exclusionary rule, designed to apply only in

situations in which the driver of a vehicle has been

lawfully arrested and the passengers of the vehicle

have been lawfully expelled in preparation for a

lawful search of the vehicle.*! Only in those limited

circumstances, witich are fraught with danger for

officers and bystanders alike, may an officer conduct

a brief pat-down for weapons (not a full-blown

application by the officer in the field.’ “) (as quoted in Belton,

453 U.S. at 458, 101 S.Ct. at 2863); O’Shea, 62 NOTRE DAME

L.REV. at 760 (“The [automatic companion] doctrine would

provide police officers with a bright line rule as to when they

could search companions. The automatic companion rule, even

though a bright line rule (which historically decreases a police

officer’s discretion), would allow police officers some discretion.

An officer would not have to frisk every companion-but he would

have that option. He could protect his life by using his own

diseretion.”).

31 We express no opinion about whether a protective pat-down

of a passenger may occur if the driver is only detained, not

arrested.

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search) of the vehicle’s passengers, regardless of

whether those passengers’ actions or appearance

evidenced any independent indicia of dangerousness

or suspicion.

Applying our holding regarding the automatic

companion rule to the case at hand leads to the

conclusion that the trial court did not err when it

denied Owens’s motion to suppress. Therefore, we

affirm Owens’s conviction and sentence.

il. CONCLUSION

For the foregoing reasons, the judgmer.t of the

Taylor Circuit Court is affirmed.

All sitting. LAMBERT, C.J.; ABRAMSON,

CUNNINGHAM, and SCOTT, JJ., concur. NOBLE

and SCHRODER, JJ., concur but would emphasize

that there must be a lawiul stop, lawful arrest, and

lawful expulsion of occupants from the vehicle in

order to avoid suppression of the evidence as fruit of

the poisonous tree.:

RENDERED: JANUARY 24, 2008,

TO BE PUBLISHED

Supreme Court of

2006-SC-000037-MRA

C3 B- 06 E a econ DE

KEITH A. OWENS APPELLANT

ON APPEAL FROM TAYLOR CIRCUIT COURT

HONORABLE DOUGHLAS M. GEORGE, JUDGE

NO. 04-CR-00225

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION OF THE COURT BY JUSTICE MINTON

AFFIRMING

This appeal requires us to decide whether a police officer working a traffic stop

may exercise discretion to conduct a pal-down search for weapons of a vehicle's

passenger who exited the vehicle to accommodate a search of the vehicle incident to

the driver's arrest, even if the officer has no independent suspicion that the passenger is

guilty of criminal conduct. Analyzing the automatic companion rule as a matter of first

impression in Kentucky, we conclude that officer safety and public safety demand that

the police officer have discretion to frisk the passenger under these circumstances.

This conclusion leads us to hold that the trial court propery denied the passenger's

motion to suppress evidence of contraband seized from him and to affirm his conviction.