,;VUyrrMt (~Vurf of

RENDERED : NOVEMBER 26, 2008

TO BE PUBLISHED

2007-SC-000328-DG

BRIAN STRANGE APPELLANT

ON REVIEW FROM COURT OF APPEALS

V. CASE NO. 2006-CA-000741-MR

FAYETTE CIRCUIT COURT NO. 05-CR-00815

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION OF THE COURT BY JUSTICE VENTERS

REVERSING AND REMANDING

Appellant, Brian Colby Strange, entered a conditional guilty plea to one

count of possession of a controlled substance, first-degree and one count of

possession of a prescription controlled substance in an improper container. He

was sentenced to terms of imprisonment of five years and twelve months,

respectively, to be probated for five years. In so pleading, Appellant preserved

his right to appeal the ruling of the Fayette Circuit Court which overruled his

motion to suppress evidence obtained during a pat down search of his person.

The Court of Appeals affirmed the trial court's decision. We now reverse the

decision of the Court of Appeals.

Our review of a motion to suppress is conducted de novo to determine

whether the decisions of the trial court and the Court of Appeals are correct as

a matter of law, but we defer to the trial court's findings of fact to the extent
they are supported by substantial evidence . Commonwealth v. Welch, 149

S.W.3d 407, 409-410 (Ky. 2004); Commonwealth v. Whitmore, 92 S.W .3d 76,

79 (Ky. 2002). Factual findings are reviewed under a "clearly erroneous"

standard. Tucker v. Commonwealth, 199 S.W.3d 754, 756 (Ky. App. 2006) .

RELEVANT FACTS

On the evening of April 11, 2005, Officers Hall and Olivares patrolled in

separate police cruisers an area of Lexington known to police for prostitution

and illegal drug activity . A few minutes after 11 :00 pm, the two officers,

traveling one behind the other at the corner of Etawah and Augusta Drive, saw

a van parked a few feet from a payphone. Standing between the phone and the

van was Appellant. Both officers testified that they routinely stopped to

question everyone out at that time of night in that neighborhood .

Therefore, they immediately turned around and returned to find

Appellant standing beside the van, conversing with the driver. Officer Hall

approached and immediately directed him to move away from the van. Officer

Hall testified, "We [Hall and Olivares] separated them," and "I moved him

[Appellant]" from beside the van to beside the police cruiser, which was parked

a few yards away. Officer Olivares approached the driver of the van to speak

with him. Once away from the van, Officer Hall noted that Appellant seemed

nervous. He asked Appellant for his name and what he was doing in that area.

Appellant replied that he was visiting a family friend who had been in the

hospital . Officer Hall noticed a bulge in Appellant's pants pocket. Concerned

that it may be a weapon, Officer Hall conducted a protective pat down of

Appellant's clothing. Satisfied that the bulge was not a weapon, Officer Hall

2
asked Appellant to identify the object in his pocket. Appellant said he did not

know what the object was. Officer Hall received permission from Appellant to

remove the object, which turned out to be an unmarked prescription bottle

containing twelve Oxycontin and five Xanex pills. Officer Hall then formally

placed Appellant under arrest. The driver of the van was not charged.

Appellant moved to suppress the evidence taken from his pocket, on the

grounds that he had been stopped and frisked by the police without sufficient

cause. The trial court conducted an evidentiary hearing pursuant to RCr 9.78 .

The only evidence presented at the hearing was the testimony of Officers Hall

and Olivares.

Immediately following the presentation of evidence, the trial judge made

two findings of fact which he concluded justified the detention of Appellant and

the pat down which led to the discovery of the drugs. Those facts are that

Appellant was in a neighborhood known for criminal activity late at night and

what the trial court referred to as Appellant's "initial reaction" to the arrival of

the police vehicles. The trial judge did not describe that "initial reaction" in

any detail, but it is obvious that the judge adopted as his finding the

descriptions of Appellant's behavior provided by the two officers . That is,

Appellant's movement from his position between the payphone and the van, to

the driver side window of the van as the police passed by.

The proper legal standard to analyze the detention of Appellant by the

police is whether from the totality of circumstances then apparent to the

officers, whether there was articulable reasonable suspicion that either

Appellant or the van driver had been or were about to be involved in criminal

3
conduct. U.S . v. Cortez, 449 U.S . 411 (1981) . Using this appropriate

standard, the trial court concluded that such suspicion existed and overruled

the motion to suppress. The Court of Appeals affirmed the trial court's ruling,

and in doing so, added the following facts as relevant considerations : that

Appellant acted nervous during his conversation with Officer Hall; that

Appellant's reason for being in the neighborhood differed from the reason given

by the driver of the van, and that Appellant's movement toward the van upon

seeing the police was done "evasively ."

Having carefully reviewed the evidence presented at the hearing, and

the trial court's oral findings of fact, we conclude that the overruling of the

motion to suppress must be reversed. We find that one of the two facts cited

by the trial court is not supported by substantial evidence and as a matter of

law, the other fact standing alone is insufficient to constitute articulable

reasonable suspicion.

ANALYSIS

Since the decision in Terry v. Ohio, 392 U.S . 1 (1968), it has been well

established that the brief detention of a person by a police officer may

constitute a seizure within the meaning of the Fourth Amendment of the

United States Constitution, and as such may properly be undertaken only if

the police officer has a reasonable suspicion based upon objective, articulable

facts that criminal activity is afoot. See Henson v. Commonwealth, 245 S.W.3d

745 (Ky. 2008); Fletcher v. Commonwealth, 182 S.W.3d 556 (Ky. App. 2005);

Docksteader v. Commonwealth 802 S.W.2d 149, 150 (Ky. App. 1991) . We

have recognized however, that not every interaction on the streets between a

4
police officer and a private citizen rises to the level of an investigatory stop with

all of its Constitutional ramifications. We held in Commonwealth v. Banks, 68

S.W.3d 347, 350 (Ky. 2001), that "[p]olice- officers are free to approach anyone

in public areas for any reason," and that "[o]fficers are entitled to the same

freedom of movement that the rest of society enjoys ." Id . No "Terry" stop

occurs when police officers engage a person on the street in conversation by

asking questions . Florida v. Royer2 460 U.S . 491 (1983) . Thus, the decision of

the officers to approach and engage Appellant and the van driver cannot be

challenged .

However, the nature of the encounter between the Appellant and the

officers changed at the moment Officer Hall directed Appellant to move away

from the van and over to the police cruiser. At that point, Officer Hall exercised

substantial control over Appellant's person, and limited Appellant's freedom of

movement.

The Commonwealth argues that the officers merely asked Appellant to

walk away from the van, and that such a request cannot constitute a seizure.

The testimony, however, reveals otherwise, and it is clear that the trial court

recognized that moment as the point at which the seizure of Appellant

occurred . Officer Hall's assertion that "we separated them" and that "I moved

him [Appellant]" away from the van established beyond dispute that he took

control of Appellant and expected compliance .

When police officers, by means of physical force or show of authority, in

some way restrain the liberty of a citizen, a "seizure" of that person has

occurred. The United States Supreme Court in United States v. Mendenhall,

5
446 U.S . 544 (1980), and this Court in Baker v. Commonwealth, 5 S.W . 3d 142

(Ky . 1999), held that a person has been seized in the constitutional sense

when, in view of all of the circumstances surrounding the incident, a

reasonable person would have believed that he or she was not free to leave.

See also Henson, 245 S.W.3d at 747. A reasonable person, in a high crime

neighborhood late in the evening, would not and should not reasonably feel free

to resist a police officer's order to move . Citizens are encouraged to comply

with reasonable police directives, and the police should be permitted to expect

reasonable compliance with reasonable demands. Appellant was directed to

move over to the police cruiser, and he apparently did so promptly and

peacefully. His passive compliance with the policeman's order cannot convert

that order into a request which Appellant, or any citizen, should feel free to

resist.

Having determined that Appellant was seized for Fourth Amendment

purposes, we must decide whether the officers had an articulable reasonable

suspicion that criminal activity was afoot based upon the facts in existence at

that time. The only facts articulated by Officers Hall and Olivares as existing

prior to the seizure are those cited by the trial judge at the conclusion of the

hearing. Appellant was in a public area known for criminal activity, late at

night, standing near a pay phone that has sometimes been used in drug

transactions, and when he saw the officers, he walked quickly to the van

parked a few steps away. Additional factors cited by the Court of Appeals - his

apparent nervousness, that he and the van driver gave differing reasons for

being there, and the bulge in the pants - did not become known until after the

6
seizure and cannot therefore be factors articulated to justify the

reasonableness of the seizure .

The trial court's finding that Appellant's "initial reaction" to the police

presence was suspicious is not supported by substantial evidence . Nor does

the evidence support the Court of Appeals' conclusion that Appellant had

"evasively turned" . The record indicates that the van was no more than a few

steps from the phone. Officer Hall testified that when he first saw Appellant, he

was walking toward the van. Later in his testimony, Officer Hall stated three

times that he first saw Appellant standing between the van and the phone a

few feet away. By the time he and Officer Olivares returned, Appellant was

standing beside the van's driver side window. Officer Hall never said that he

saw Appellant turn, and he never described Appellant's movement as "evasive."

Officer Olivares added only that when he first saw him, Appellant was

"standing" between the van and the payphone, and that as the officers passed

by, Appellant "walked real quickly" toward the driver side of the van, where he

was standing when they returned a few moments later. The officers articulated

nothing about Appellant's movement to explain why it seemed suspicious,

beyond the general suspicion they have for everyone out at that time of night in

that neighborhood . The movement described by the officers did not indicate

that Appellant intended to hide or to conceal his appearance . It did not

suggest an effort to run away or to elude the police. It did not indicate any

reason to suspect that evidence or contraband was being carried, discarded, or

hidden. The officers gave no explanation of Appellant's movement to

distinguish it from any other action he might have made, sinister or innocent.
Without the articulation of facts showing how the movement was suspicious,

or, as the Court of Appeals termed it, "evasive," the Terry requirement is not

satisfied. See Joshua v. DeWitt, 341 F.3d 430, 443-444 (6th Cir. 2003)

(concluding that simply characterizing conduct of a suspect as a "furtive

gesture" was mere opinion, insufficient to justify a Terry stop without specific,

articulable facts in the record to explain it) . Likewise, we must conclude that

the lack of evidence in the record to support a finding that Appellant's

movement was suspicious renders that movement unavailable as a factor to

support Appellant's seizure. We recognize that police officers have training and

experience that may enable them at times to see suspicious behavior that goes

unnoticed to the untrained eye . That training and experience, however, should

enable them to articulate the factors that aroused their suspicion. That has

simply not been done here .

Without conduct that can truly be deemed suspicious, the only factor

from which reasonable suspicion is articulated here is Appellant's presence in

a high crime area at night. That mere presence alone is not sufficient evidence

to justify an investigatory stop and seizure. Illinois v. Wardlow, 528 U.S. 119

(2000) . The officers acknowledged that in that area they stop and talk to

everyone they see out at that time of night. Doing so may be a good police

practice, and as stated above, they are free to do so. See Banks, 68 S.W.3d at

350. Undoubtedly, that involvement with citizens deters some from committing

crimes and it surely on occasion enables the police to obtain information

helpful in the law enforcement effort . But, when the police take control over a

citizen's person, and limit the movement of that citizen, as they did with

8
Appellant, the Fourth Amendment is involved and they must be able to

articulate the grounds for their suspicion .

CONCLUSION

Because the seizure of Appellant was not based on articulable reasonable

suspicion and it transgressed Appellant's rights under the Fourth Amendment,

the subsequent pat down and recovery of the prescription medications was

improper and the evidence so derived should have been suppressed,

notwithstanding Appellant's consent to the search of his pocket. Such an

unwarranted detention or seizure tainted the subsequent consent obtained for

searching his pocket, rendering inadmissible the evidence thereby obtained .

Royer, 460 U.S. 491 ; See also Matheney v. Commonwealth , 191 S.W .3d 599

(Ky. 2006) and Henson, 245 S.W.3d at 751 . We reverse the Court of Appeals

decision and remand this case for further proceedings consistent with this

opinion.

All sitting. All concur.
COUNSEL FOR APPELLANT:

V. Gene Lewter

Department Of Public Advocacy

100 Fair Oaks Lane

Frankfort, KY 40601

COUNSEL FOR APPELLEE:

Jack Conway

Attorney General

Room 118, Capitol Building

Frankfort, KY 40601

Michael Louis Harned

Assistant Attorney General

Office of Attorney General

Criminal Appellate Division

1024 Capital Center Drive

Frankfort, KY 40601-8204