RENDERED: DECEMBER 2, 2022; 10:00 A.M. NOT TO BE PUBLISHED 

# Commonwealth of Kentucky Court of Appeals

NO. 2020

- CA

- 1525

- MR

LEWACO LEYULTEE CLAY APPELLANT

v. APPEAL FROM FAYETTE CIRCUIT COURT

HONORABLE KIMBERLY N

. BUNNELL, JUDGE

ACTION NO. 20

- CR

- 00519

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION AFFIRMING
**   **  **
BEFORE: JONES, LAMBERT, AND K. THOMPSON, JUDGES. JONES, JUDGE: Lewaco Leyultee Clay appeals the final judgment of the Fayette Circuit Court following the court’s denial of his motion to suppress incriminating evidence seized during an investigatory stop. Clay entered a conditional guilty plea to an amended charge of convicted felon in possession of a firearm and a charge of first

- degree possession of a controlled substance predicated on the- 2

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evidence seized. For the reasons stated herein, we affirm the tr ial court’s den ial of the suppress ion motion and the subsequent judgment

. I. B ACKGROUND Lexington Police Sergeant Joshua Yar conducted surveillance of an apartment building located at 734 North Broadway in Lexington, Kentucky where he observed multiple individuals coming and going. Based on prior department investigations and his own observations, he suspected that drug activity was occurring on the premises. On April 27, 2020 , S ergeant Yar spoke with the lessor of the property, Rick Reynolds , who indicated he received complaints from t enants regarding excessive foot traffic from non

- tenants on the property . Reynolds also indicated a tenant who resided in apartment unit three reported he was forced out by a reported drug dealer going by the na me “Capone

. ” Reynolds requested
assistance from Sergeant Yar in removing trespassers from the property and provided him a “ rent roll ” listing the names of each of the apartment’s tenants along with a text message containing a photograph of the individual believed to be “Capone

. ”
T hat same day, S ergeant Yar shared the information and photograph from Reynolds with Officer Joseph Schiff, and they, along with other Lexington
p olice officers , investigated the property at 734 North Broadway

. Soon a fter arriving , Of

ficer Schiff, who was wearing a body camera, approached Clay who- 3

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was standing outside apartment three. Of fi c er Schiff tried to question Clay outside the apartment , but Clay was not receptive

. He turned his back on Officer Schiff and proceeded to enter apartment three , leaving the door open behind him . While Clay was enter ing the apartment , Of ficer Schiff, implored: “Hold up, man. Hey, I’m talking to you. I’m talking to you. Get back here.” O fficer Schiff then walked forward within view o f the inside of the apartment’s open threshold , where he could see Clay and the individual known as “Capone” inside.

Of ficer Schiff instructed both men to exit the apartment

. “Capone,” who identified himself as Antonio Winn, was placed in handcuffs. C lay was told to sit down outside of apartment three; he was later moved to the front of the apartment building where he was also placed in handcuffs. After Clay noticed a female acquaintance, he asked Officer Schiff to give his backpack to her

. When Of fi cer Schiff asked if it contained anything that would “stick” or “poke” him, Clay told him to “dump” its contents. Of ficer Schiff emptied the contents of the backpack and discovered a plastic bag containing crack cocaine

. Clay was placed
under arrest , and a further search of the backpack’s contents uncovered a scale with residue, a loaded handgun, and over $200 in cash

.

On June 29, 2020, Clay was indicted for being a convicted felon in possession of a handgun , first

- degree possession of a controlled substance, third

degree criminal trespassing, and being a second

- degree persistent felony offender.- 4

-

Clay filed a motion to suppress the evidence seized from his backpack . At the evidentiary hearing, S er g ean t Yar and Of ficer Schiff testified, and excerpts of police body camera video w ere played

. T he trial court denied the motion with oral findings and entered a written order on September 18, 202 0

. Clay entered a conditional guilty plea , preserving his right to ap peal the denial of his motion to
suppress. This appeal followed.
II. S TANDARD O F R EVIEW A review of a decision on a suppression motion is a twofold analysis. First, the fact ual findings of the lower court are conclusive if based on substantial evidence and subject to reversal based upon clear error. King v. Com monwealth , 332 S.W.3d 97, 100 (Ky. App. 2010)

. Second, the lower court’s application of the law as to its findings of fact are reviewed under a de novo standard. Id. We review the issues raised in this appeal under this standard.
III. A NALYSIS Clay argues that police unlawfully detained him based on information that amounted to an uncorroborated anonymous tip when the detention was initiated, and as a direct result, any subsequent consent to search his belongings was tainted. In making our anal ysis, we first examine the nature of the tip obtained by police before reviewing the direct circumstances of Clay’s detention on scene.- 5

- Clay argues that his detention was based on information that amounted to an uncorroborated anonymous tip because the or iginal source, the tenant of apartment three , was not on the premises at the time of the investigation and never spoke with law enforcement directly

. The nature of whether a tip or report originates from a known or anonymous source determines its “ presumption of reliability. ” Com monwealth v. Kelly , 180 S.W.3d 474, 477 (Ky. 2005) (citation omitted). Id entifiable sources are entitled to a greater “presumption of reliability” as opposed to an unknown “anonymous” source. Id. Factors such as “veracit y, reliability[,] and basis of knowledge are all highly relevant in determining the value of [a] report.” Id. (internal quotation marks omitted) (quoting Illinois v.
Gates , 462 U.S. 213, 230, 103 S. Ct. 2317 , 2328 , 76 L. Ed. 2d 527 (1983) ). Another relev ant factor includes the possibility for an informant to face accountability in the event the information proves to be inaccurate. Id. ( citing Florida v. J.L. , 529 U.S. 266, 120 S. Ct. 1375, 146 L. Ed. 2d 254 (2000) ).

W e do not agree with th e characterization that the information relayed to the police in this matter amounted to an anonymous tip

. T he tip’s original

source was readily identifiable to police because he was directly known to Reynolds by nam e, and he was specifically identified to S ergeant Yar who relayed
the information to Of

ficer Schiff. See Kelly , 180 S.W.3d at 477 ( holding a call made from unnamed employees of a specifically identified Waffle House “raise[d]- 6

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a strong presumption that [they] could likely be located in the event that their tip was determined to be false[.]” ). Thus, due to the original source’s specifically known identity, he was more akin to a citizen informant. See Hampton v.
Com monwealth , 231 S.W.3d 740, 745 (Ky. 2007) ( e mphasis added) (“ Citizen informants are tipsters who have face

- to

- face contact with the police or whose identity may be readily ascertained

. ”)

. Additionally, in this case, law enforcements own observations of excessive foot traffic at the apartment building were consisten t with the tenants concerns about drug activity.

Clay argues that the tenant of apartment three was never directly contacted by investigators during or after their arrival at the scene. While Of ficer Schiff testified attempts were made, this ultimately has no bearing on the justification for the initiation of Clay’s detention as the officer’s judgment is evaluated based on his knowledge at the time the detention began. See J.L. , 529 U.S. at 271, 120 S. Ct. at 1379 (“The reasonableness of official suspi cion must be measured by what the officers knew before they conducted their search.”).

The source’s basis of knowledge was also readily apparent as he was the rightful possessor and previous occupant of the apartment in which criminal activity was alleg edly occurring. The information’s reliability was bolstered by Reynolds who affirmed and corroborated the tenant’s leasehold of the unit with written documentation in the form of the “rent rol l.” The original source of the- 7

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information was therefore affor ded the “presumption of reliability” as it was provided by a known informant. Having established the tip’s presumptive reliability, we now turn to the facts of Clay’s detention.

It is long settled under Terry v. Ohio , 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), that police officers may initiate a detention if supported by
reasonable articulable suspicion of criminal activity. Reviewing the reasonableness of what have been named “ Terry stop s” is a dual analysis where it must be determined if the officer’s stop was “justified at its inception” and if the scope of it was reasonable in relation to the circumstances “which justified the interference in the first place.” Id. at 19

- 20 , 88 S. Ct. at 1879

. The facts and circumstances providing the basis for the stop must be examined in their totality when determining if it was based on reasonable suspicion. Kelly , 180 S.W.3d at 477 ( citing Alabama v. White , 496 U.S. 325, 330, 110 S. Ct. 2412, 2416, 110 L. Ed. 2d 301 (1990) )

. A reviewing court shou ld not consider each factor relied upon by police in isolation and should give due regard to the ir inferences and deductions reached based upon their experience and training. Baltimore v. Commonwealth , 119 S.W.3d 532, 539 (Ky. App. 2003) (citation omitted )

.

Clay argues his detention began the instant Officer Schiff told him to “hold up” during his entry into apartment three while the trial court and the Commonwealth reference the moment in which he was instructed to “sit down ”- 8

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after exiting. For purposes of this decision, it is not dispositive as to exactly when Clay’s detention began because the police possessed the requisite basis to initiate a stop in both instances

.

Whe n Of ficer Schiff first approached Clay, he was seen at a location suspected of recurring drug activity. See Illinois v. Wardlow , 528 U.S. 119, 124, 120 S. Ct. 673, 676, 145 L. Ed. 2d 570 (2000) (“[W] e have previously noted the fact that [a] stop occurred in a ‘ high crime area ’ among the relevant contextual considerations in a Terry analysis. ”); Fletcher v. Commonwealth , 182 S.W.3d 556 (Ky. App. 2005) ( s ubject was detained after he was surveilled for ten minutes at a house suspected of drug activity in a high crime neighborhood). Additionally, Clay was observed occupying an area in which there w ere report s of trespassing directly outside a n apartment uni t reportedly occupied on an unlawful basis by an armed drug dealer. See Gray v. Com monwealth , 150 S.W.3d 71, 74 (Ky. App. 2004) (“ Trespassing and loitering, being minor criminal activity, alone provide sufficient reasonable suspicion for an officer to sto p and question a subject. ”).

Of ficer Schiff testified that soon after contact was initiated Clay stated that he lived at apartment three. Immediately thereafter, based on the body camera footage , Clay gave a contradictory answer indicating he was there to see Winn- 9

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whom he specifically referred to as “Capone

. ” 1 See Williams v. Com monwealth , 364 S.W.3d 65, 70 (Ky. 2011) (citation omitted) ( a ssociation “ with a person who is independently engaged in criminal activity ” is a factor that “ can be considered in determining

. . . whether reasonable, articulable suspicion exists for a Terry stop. ”). Clay’s specific mention of “Capone , ” coupled with the “rent roll” not listing either subject as tenants, provided independent corroboration of Reynold’s tip. Clay then proceeded to enter the apartment in a manner the trial court found to be “ a little evasive

. ” See Wardlow , 528 U.S. at 124, 120 S. Ct. at 676 (“[N] ervous, evasive behavior is a pertinent factor in determining reasonable suspicion. ”) ; see also
Com monwealth v. Banks , 68 S.W.3d 347, 350 (Ky. 2001)

. Alternatively, if the detention began after Clay exited apartment three and was told to “sit down,” an articulable suspicion was still established based on the immediately preceding

reasons discus sed as well as Officer Schiff ’s observ ation of “Capone” inside the apartment which provided further corroboration of Reynold’s tip.

Clay argues that his presence at the scene, refusal to listen to Officer Schiff, and association with a subject engaged i n criminal activity would not each provide sufficient cause to detain him

. However, t his argument f ails because it

1 P olice body camera footage of this moment was played into the record at the hearing, but it is difficult to discern what is exactly being said from a review of the video record. T he original footage itself was not submitted into the record as an exhibit , a nd the trial court’s finding is not clearly erroneous based on what can be discerned.- 10

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neglects to consider the factor s in their totality

. See Baltimore , 119 S.W.3d at 5 39.
W hen weighed cumulatively, all these factors establish an articulable suspicion of criminal activity that would justify a Terry stop of Clay , namely, that he was potentially engaging in criminal trespassing with the purpose of participating in drug activity

.

Clay cites to the unpublished decision in Commonwealth v. Stephens , No. 2006

- SC

- 000305

- DG, 2008 WL 2167980 (Ky. May 22, 2008) , for support. In Stephens , during nighttime surveillance of an apartment building known for drug trafficking , a Lexington po lice officer approached a female subject, Brandy Stephens, who he observed walking on the premises with a nervous demeanor. After the officer asked Stephens for her identifying information, he noticed a three

year discrepancy between her provided age and date of birth. When a records search of the provided information yielded no criminal record, the officer warned of the criminal nature of providing a false name, but she maintained the information she provided was accurate. The officer continued his questioning and performed a second records check of a Florida database after she indicated she possessed a Florida driver’s license. Id. at *1

- 2. The Kentucky Supreme Court deemed the officer’s initial approach to have been a consensual encounter up to t he
moments after the first conclusion of his records check . While noting it to be a “close call,” the Court ultimately declared an impermissible stop occurred when he- 11

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continued her questioning after he warned her about the penalties of giving a false

name and she maintained the accuracy of the information. The Court reasoned that the officer needed an articulable suspicion at that moment, and without other factors such as evasive behavior, a nervous subject’s presence in a high crime area

was not sufficie nt cause upon which to initiate a detention. Id. at *4

- 6.

We disagree that the facts in Stephens are sufficiently analogous because , as previously discussed, there were additional articulable factors to justify Clay’s stop beyond his presence in a high c rime area. Contrary to his argument, Clay’s entry into apartment three did not satisf y suspicions concerning his legitimate presence at the scene because there was reasonable cause to believe the occupant allowing him to make entry did not possess lawful consent to do so

.

I nstead , we perceive the circumstances discussed in Commonwealth v

. Fields , 194 S.W.3d 255 (Ky. 2006) , a s more applicable. In Fields , Lexington police approached a subject observed in the parking lot of an apartment complex wit h clearly posted signs forbidding trespassing and loitering while they were searching the neighborhood for a suspected drug dealer. After being observed turning away from the officers’ vehicle three times, police pulled up and called

over to him twice bef

ore he ultimately approached them . He was questioned as to his purpose on the premises , and he answered that he was visiting “his people” but was unable to provide specific names and addresses of any residents thereby- 12

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resulting in his arrest for criminal trespassing. Id. at 255

- 56. Like the sus pect in Fields , Clay was observed behaving evasively in an area where officers reasonably suspected he did not have a lawful right to be, and he could not provide a clear answer establishing a legitimate purpose for being there.

Finally, Clay argues that any consent to search his bag was tainted due

to the asserted groundless ness to detain him. Having established there was sufficient gr ounds, the consent to search his bag was not tainted as a result. IV. C ONCLUSION For the foregoing reasons, we affirm the judgment of the Fayette Circuit Court.

LAMBERT, JUDGE, CONCURS

. THOMPSON, K ., JUDGE, CONCURS IN RESULT ONLY.

BRIEF S FOR APPELLANT: Jared Travis Bewley Frankfort, Kentucky BRIEF FOR APPELLEE: Daniel Cameron Attorney General of Kentucky Courtney J. Hightower Assistant Attorney General Frankfort, Kentucky