COA - Hack - Search without Warrant

Donna Hack- CoA, 9/12/14, to be published. 

The Court that an uncorroborated tip was not sufficiently reliable to merit invasion of the curtilage at 2 a.m. without a warrant. Knock and talk was proper when police saw fire in the yard when a county burn ban was in effect. Even though officers saw a man run into a garage, in light of the totality of the circumstances, it was not reasonable for them to follow him in belief that contraband was in danger of being destroyed. The exigent circumstance of immediate escape was also not possible. Even if they have reasonable, articulable suspicion that criminal activity is afoot, the police may not lawfully enter a private residence without a warrant in order to initiate a Terry stop.

 Julia K. Pearson of the Appeals Branch represented Ms. Hack on appeal; Nathan Goodrich of the Murray office represented Ms. Hack in the trial court.

Contributed by Roy Durham

KYSC - Frazier - Terry Stop

Thomas Frazier v. Commonwealth, KSC, 8/29/2013, published—

Thomas Frazier was indicted for the offenses of Tampering with Physical Evidence, Possession of Drug Paraphernalia, First Offense, Promoting Contraband in the First Degree, Possession of Marijuana, Carrying a Concealed Deadly Weapon, and Littering.  Mr. Frazier moved to suppress the searches and seizures at the beginning of his trial.  The jury acquitted Mr. Frazier of Promoting Contraband, but found him guilty of the other offenses. The trial judge sentenced Thomas Frazier to a total sentence of five years imprisonment and a $500 fine.  He was ordered to serve 150 days of his sentence, with the remainder probated. 

The Court of Appeals reversed Mr. Frazier’s conviction for criminal littering, but affirmed each of the other convictions.  In a published opinion, the Court of Appeals held there were reasonable grounds for the stop of Mr. Frazier’s vehicle, that ordering Mr. Frazier from his vehicle and subsequently frisking him were appropriate actions, and that the search of his vehicle following his arrest was permissible under Arizona v. Gant, 556 U.S. 332 (2009).  

The KSC reversed and remanded,  holding that the Terry frisk was unconstitutional where police officers articulated insufficient facts that would lead a reasonable person to believe that Frazier was armed and dangerous. The Court held that even if the officers had sufficient reasonable suspicion to justify the frisk, the search into Mr. Frazier’s pants pocket exceeded the scope of the Terry frisk because the contents in Mr. Frazier’s pocket were not immediately identifiable as contraband. Since the pat down search that led to Mr. Frazier’s arrest was unconstitutional, the Court therefore concluded that the vehicle search incident to the unlawful arrest was also unlawful.

Mr. Frazier represented himself at the trial court and Thomas Ransdell/Kate Benward represented Mr. Frazier on appeal.