RENDERED: NOVEMBER 17, 2023; 10:00 A.M. NOT TO BE PUBLISHED 

# Commonwealth of Kentucky Court of Appeals

NO. 2022

- CA

- 0876

- MR

JOSHUA JAYNES APPELLANT

v. APPEAL FROM JEFFERSON CIRCUIT COURT

HONORABLE MITCHELL PERRY, JUDGE ACTION NO. 21

- CI

- 005290

CONSOLIDATED LOCAL GOVERNMENT POLICE FORCE MERIT BOARD A/K/A LOUISVILLE METRO POLICE MERIT BOARD AND LOUISVILLE METRO POLICE DEPARTMENT APPELLEES

OPINION AFFIRMING
**   **  **
BEFORE: ACREE, DIXON, AND M C NEILL, JUDGES.
M C NEILL, JUDGE: Appellant, Joshua Jaynes, was terminated from the Louisville
M etro Police Department (LMPD), on January 5 , 2021 , for violating standard operating procedures regarding the preparation of a search warrant and
untruthfulness

. Mr. Jaynes’ termination resulted from an extensive LMPD- 2

-

investigation surrounding the death of Br eonna Taylor on March 1 3 , 2 020. Ms. Taylor was killed by LMPD officers while executing the search warrant that relied

upon the search warrant affidavit prepared by Mr. Jaynes.

The LMPD’s Professional Standards Unit (PSU) performed the initial investigation of Mr. Jaynes and othe r officers. As a result, former LMPD Chief Yvette Gentry terminated Mr. Jaynes’ employment for violating LMPD Standard Operating Procedure (SOP), 8.1.17 and SOP 5.15 . He appealed that decision to the Louisville Metro Police Board (Merit Board) , which aff irmed the underlying termination decision. Mr. Jaynes then appeal ed to the Jefferson Circuit Court,
which affirmed the Merit Board

. 1 Mr. Jaynes now appeals to th is Court as a matter of right

. He specifically argues: 1) The circuit court’s op inion and o rder

e rroneously a dopted t he a rbitrary and f alse f indings of the Louisville Metro Police
Merit Board ; 2) The LMPD Merit Board m ade f indings of f

act w hich were f

alse
and a rbitrary; 3) The LMPD Merit Board’s l awyer d isplayed p rej udice against Mr. Jaynes and h is c ounsel and e xceeded his r ole as a dvisor. For the following reasons, we affirm.

1 On September 15, 2022, Appellee LMPD moved this Court to enter an o rder dismissing Appellant ’ s appeal filed on July 18, 2022, on the grounds that it was from a non

- final Opinion and Order entered by the circuit court on June 22, 2022. The basis of this Motion was that Appellant ’ s July 18, 2022 Notice of Appeal only referenced the circuit court’s June 22, 2022 Opinion and Order, and not the final Amended Opinion and Order entered on July 13, 2022. A panel of the Court denied the motion to dismiss on November 1, 2022. We are bound by that prior decision and will rely on the Amended Order entered on July 13, 2022.- 3

- STANDARD OF REVIEW A panel of this Court has previously discussed the applicable standard
of review as follows:

In Crouch v. Jefferson County, Kentucky Police Merit Board , 773 S.W.2d 461 (Ky. 1988) , the Supreme Court of Kentucky held that the standard of review to be applied by the circuit court in this type of case is a modified de novo. As explained in Brady v. Pettit , 586 S. W.2d 29 (Ky. 1979), this standard allows the reviewing court to invade the mental processes of the Merit Board to determine whether its action was arbitrary. To determine arbitrariness, the circuit court may review the record, the briefs, and any other ev idence or testimony which would be relevant to that specific, limited issue. A decision is arbitrary if it is clearly erroneous. Crouch at 464 , citing Thurman v. Meridian Mutual Insurance Company , Ky., 345 S.W.2d 635, 639 (1961). The appeal to circuit cour t is not the proper forum to retry the merits. It is limited only to the question of whether the Merit Board ’ s action was clearly unreasonable. Crouch , 773 S.W.2d at 461

. On appeal from the circuit court, however, this Court is guided by the clearly erro neous standard set out in Kentucky Rules of Civil Procedure (CR) 52.01. We are not to disturb the determinations of the trial court unless they are not supported by substantial evidence. Stallins v. City of Madisonville , 707 S.W.2d 349, 350 (Ky. App. 1986). Of course, as with any appeal from a decision of an administrative a gency, we review the trial court ’ s application of the law to the facts de novo. See Reis v. Campbell County Board of Education , 938 S.W.2d 880, 885

- 86 (Ky. 1996).- 4

-

Ca ’ Mel v. Louisville Metro/Jefferson Cnty. Metro. Gov ’ t Police Dep ’ t , No. 2013

- CA

- 001988

- MR , 2015 WL 226088, at *6 (Ky. App. Jan. 16, 2015)

. With this standard in mind, we now turn to the record in the present case.
ANALYSIS
T he forty

- two page unanimous decision by the Merit Board contains

an extensive analysis of the underlying events, as well as numerous and precise findings in support of its decision. It ultimately concluded as follows: “ The totality of the circumstances include what appears on its face to be a relatively clean employment history but what turned out to be a b lunder, which contributed to a tragedy, in being untruthful in his Affidavit in support of the Search Warrant for 3003 Springfield Drive, #4.” In its Opinion And Order affirming the Merit Board, the Jefferson Circuit Court provided the following instructi ve summary of
the Board’s decision :

[I]t was established that Mr. Jaynes was the affiant for the search warrant of Breonna Taylor’s apartment

. In the search warrant, Mr. Jaynes stated that he had directly verified with a U

. S

. Postal Inspector that Jamar cus Glover was re c e ivi ng packages at Ms. Taylor’s address

. However, it was then established that this statement was false

. The Merit Board found that this untruthfulness regarding consultation with a U

. S

. Postal In s pector was indeed a violation of LMPD SO P 5

. 1

. 5 as given in Mr. Jaynes’ termination letter. In addition to this, the Merit Board found that Mr. Jaynes v iolated LMPD SOP 8.1.17 when he failed to complete a “Search Warrant Operations Plan.” This form- 5

- is required to be completed by the lead investigator before any search warrant is executed, and is to include information regarding the nature of the search t o be conducted

. Mr. Jaynes was unable to present any evidence to show that he ever completed this required form aside from a picture of a white board which he claimed to contain the required information. The Merit Board however found that this was an ina dequate substitute for the required form and upheld the violation of LMPD SOP 8.1.17.

. . . . At Oral Arguments, both parties agree that the crux of this case is the truthfulness of Mr. Jaynes’ statement in the search warrant affidavit. Because it is fa lse that he consulted with a U.S. P ostal Inspector for this search warrant, the decision of the Merit Board must be affirmed. On appeal, Mr. Jaynes raises the collective knowledge doctrine to claim that his statement in the search warrant affidavit was not false because he was relying on information from a fellow officer

. The collective knowledge doctrine allows one officer to rely on information communicated from a fellow officer to support his or her decision to make a stop or arrest Lam b
v
. Commonwealth , 510 S

. W

. 3d 316, 323 (Ky

. 2017 )

. However, the Merit Board directly addressed this argument in its Findings and Order

. It held that the collective knowledge doctrine does not apply in this case because the information Mr. Jaynes provided did not come from a reliable LMPD source and was indeed untruthful. See Merit Board Findings & Order at p. 187

. Further, the collective knowledge doctrine applies primarily to suppression hearings for suspect stops and searches

. Its applicability in ad ministrative proceedings is doubtful at best

. Regardless of the applicability, the collective knowledge doctrine argument is defeated by- 6

- the untruthfulness of the information provided in the search warrant affidavit.

. . . [E] xtensive evidence was pro vided to demonstrate that Mr. Jaynes did not directly consult with a Postal Inspector as he claimed in the search warrant affidavit. Indeed, Mr. Jaynes himself testified at the hearing that he had not received the information directly from a Postal Inspec tor, but had instead received it from [ S e rgeant ] Mattingly. He also testified that he did not know whether S e rgeant Mattingly had received the information from a Postal Inspector or a detective with the Shively Police Department. Either way, the information provided in the search warrant affidavit, that Mr. Jaynes had directly verified the information with a Postal Inspector, was false

. . . . The Merit Board conducted a full and co mprehensive hearing lasting three days. Its decision is neither arbitrary nor capricious, nor contrary to established law. Instead, it is thorough, well

- reasoned, and amply supported by substantial evidence. In support of his argument on appeal, Mr. Jaynes relies in part on the testimony of his expert witness , Alexander Payne. Mr. Payne testified that the
search warrant was not defective pursuant to the collective knowledge doctrine

. However, the Merit Board concluded that “[t]he testimony of Alex Payne in this matter revealed that he had not reviewed the entire PSU file which Chief Gentry had before her as she made her decisions to terminate Mr. Jaynes and the Board so
finds as a matter of fact.”- 7

- In addition, Mr. Jaynes cites the testimony of former LMPD Chief
Robert Schroeder

. He was questioned by Mr. Jaynes’ counsel as follows: “ [s]o i f Detective Jaynes had gotten that information about contact with [United States Postal Service] individual from Sergeant Mattingly , was he e ntitled to rely on that
information? ” Mr. Schroeder responded in the affirmative, based on the constructive knowledge doctrine. However, he also testified that he had not
reviewed the PSU file

. And during his avowal testimony, he stated that “I think it comes down to the question at heart is whether he’s saying he verified it or whether he is saying Sergeant Mattingly verified it.” Moreover , “[w] ith regard to the Search Warrant Operations Plan, and the violation of SOP 8.1.17 ,” the Merit
Board cited the following:

[Mr. Jaynes] testified that he did not appropriately prepare one but he claimed the white board (AX

- 7) to be an appropriate substitute. He testified that he was not the one who prepared the white board. The Board finds, therefore, that as the self

- identified l ead officer in the matter he failed to complete a Search Warrant Operations Plan as required by LMPD SOP 8.1.17.
O ther officials involved with the underlying events and investigation
testified as well. I t is not our task to “ determin e the credibility or lack thereof, of
witnesses. These tasks are assigned to the Board alone . . . .” Crouch v. Jefferson Cnty., Kentucky Police Merit Bd. , 773 S.W.2d 461, 463 (Ky. 1988)

. See also Kentucky Revised Statute 67C.323 (3)(b) (“ T he procedure as to the appeal to the- 8

-

Court of Appeals shall be the same as in any civil action. ”). Accordingly, we leave
the “ weighing of the evidence to the fact

- finder

– here the

. . . Board

– and that weighing includes credibility determinations. ” Kentucky Ret. Sys. v. Ashcraft , 559 S.W.3d 812, 821 (Ky. 2018)

.

In consideration of the record and arguments presented, we cannot conclude that the findings of the Merit Board we re false or arbitr ary. Rather , we
conclude that the Board’s decision was supported by substantial evidence. In so holding, we reiterate the circuit court’s observation that:

the crux of this case is the truthfulness of Mr. Jaynes’ statement in the search warrant affidavit . Because it is false that he consulted with a U.S. P ostal Inspector for this search warrant, the decision of the Merit Board must be affirmed. Mr. Jaynes’ final argument on appeal that the Merit Board’s l awyer displayed prejudice is insufficiently supported and unpersuasive

. CONCLUSION Based on the foregoing, we affirm the Jefferson Circuit Court’s supplemental order entered on July 13, 2022.

DIXON, JUDGE, CONCURS

. ACREE, JUDGE, CONCURS AND FILES SEPARATE OPINION. ACREE, JUDGE, CONCURRING: Respectfully, although I fully concur with the presiding J udge’s analysis in the body of the O pinion, I disagree- 9

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with a comment in footnote 1 that “[w]e are bound by” the denial of Appellee’s
motion to dismiss entered by another panel of this Court. We are not so bound and
can reconsider that order because the “d enial of a motion to dismiss is interlocutory
. . . .” Halle v. Banner Industries of N.E., Inc. , 453 S.W.3d 179, 184 (Ky. App. 2014) . But, ev en if the motion were brought anew, I would not dismiss the appeal for the same reason given in the November 1, 2022 order.

BRIEF FOR APPELLANT :
Thomas E. Clay Louisville, Kentucky BRIEF FOR APPELLEE:
Michael J. O’Connell Jefferson County Attorney
Carrie P. Hall David A Sexton Assistant Jefferson County Attorneys Louisville, Kentucky