KY SC Nov 9 - Reynolds- Terry Stop

Reynolds v. Commonwealth, 2010-CA-2192 (rendered 11/9/12)(to be published),

Reversing

Terry Stop

The Court of Appeals held that the scope of the search of Reynolds exceeded that which is contemplated by Terry v. Ohio, 392 U.S. 1 (1968).  Mr. Reynolds was an occupant of a vehicle.  The vehicle was stopped because police had received information that two female occupants of the vehicle had acted strangely at Walgreens while purchasing legal amounts of pseudoephedrine.  When police searched another male occupant of the vehicle (one who had freely admitted to the police he had a prior conviction for trafficking in methamphetamine), marijuana and rolling papers were found.   The officer observed that Mr. Reynolds was “fidgeting,” and searched him as well.  Specifically, the officer testified he felt a large “softball sized lump” above Mr. Reynolds’ genitalia.  The lump turned out to be a baggie of marijuana, methamphetamine, and prescription pain pills.  Held:  “fidgeting alone is insufficient to justify a Terry search for weapons.”  The Court reverses the circuit’s order denying the motion to suppress. 

Contributed by Emily Rhorer

Featured Case - Lowe - Notice of Appeal & Lesser Included for Assault 2nd

Lowe v. Commonwealth, 10-CA-619-MR (unpublished):

  • The Court noted that the notice of appeal which indicated the appeal was taken from a date prior to even the date of the crime was patently erroneous.  “The failure to properly state the order being appealed from could prove fatal to an appeal.”  Thus, trial attorneys need to be careful that notices of appeal and supporting documents are correct.  “[C]ounsel is cautioned to take appropriate measures to ensure such errors do not occur in the future because sanctions may be imposed under different or more egregious circumstances.”
  • The trial court should have instructed on assault 4th degree as a lesser included offense to assault 2nd where there was a factual question as to whether there was serious physical injury.  The trial court should not have determined as a matter of law that the victim’s injuries constituted a “serious physical injury.”  The extent of injury is a question of fact for the jury to decide. 

Citing Unpublished Opinions - CR 76.28(4)(c)  Opinions that are not to be published shall not be cited or used as binding precedent in any other case in any court of this state; however, unpublished Kentucky appellate decisions, rendered after January 1, 2003 may be cited for consideration by the court if there is no published opinion that would adequately address the issue before the court. Opinions cited for consideration by the court shall be set out as an unpublished decision in the filed document and a copy of the entire decision shall be tendered along with the document to the court and all parties to the action.

Contributed by Emily Rhorer

Featured Case - Brewer - DUI 2nd enhancement

Commonwealth v. Brewer, 09-CA-873-DG (unpublished):  While unpublished, this is still an important case.  In this Commonwealth appeal, the Court of Appeals affirmed the circuit court’s vacating of a district court conditional plea to DUI 2d because under Commonwealth v. Beard, 275 S.W.3d 205 (Ky.App. 2008), a person cannot be convicted of DUI 2nd if he was not convicted of the first DUI before committing the second DUI.

Citing Unpublished Opinions - CR 76.28(4)(c)  Opinions that are not to be published shall not be cited or used as binding precedent in any other case in any court of this state; however, unpublished Kentucky appellate decisions, rendered after January 1, 2003 may be cited for consideration by the court if there is no published opinion that would adequately address the issue before the court. Opinions cited for consideration by the court shall be set out as an unpublished decision in the filed document and a copy of the entire decision shall be tendered along with the document to the court and all parties to the action.

Contributed by Emily Rhorer