This issue, our apologies for the title of the article are extended to Sammy Hagar. Police officers can make a forcible, brief, investigatory stop even without probable cause for an arrest if they can demonstrate an articulable suspicion of criminal activity. Martin v. Commonwealth, 592 S.W.2d 134 (Ky. 1979). The problem of course for Dee Fendant and many other clients before the district court is that these investigatory stops often result in criminal charges being filed against your client. In effect, the stop is made on a pretext and from there, the officer proceeds to develop information to use against your client.

Once sufficient information is gathered from the pretext stop, the officer then has developed enough insight into the situation to meet the probable cause level to effectuate an arrest. Too many defense attorneys look at the file, analyze the charges and ignore the initial reasons for the stop. On closer examination however, there are many cases which should be dismissed because of a lack of probable cause to stop the person in the first place.

Dee Fendant comes to you with a DUI charge after she was stopped for driving 32 miles per hour in a 25 mile per hour speed zone down the main street of town. The breath test shows a .241, she performed miserably on every field sobriety test, the Preliminary Breath Test registered above a .200, she admitted she had consumed "some beers" and because she has been arrested for DUI in the past, she decided to request an independent blood test which shows an alcohol content reading of .240. This is probably not a case most of us are ready to take to a jury and when the prosecutor offers "the standard deal" for a guilty plea, counsel invariably makes a decision to recommend a plea in the case.

Before making a decision, however, competent counsel needs to examine the reason for the stop. Dee Fendant was initially stopped not for anything related to the DUI but because she was driving at a radar clocked speed of 32 miles per hour in a 25 mph per hour zone. Did the officer have a legal reason to initiate the stop?

In order to stop a citizen, a police officer needs a reasonable and articulable suspicion of criminal activity. Brown v. Texas, 443 U.S. 47 (1979). Where no grounds exist for the stop, a citizen is protected from such intrusive behavior by the 4th Amendment. U.S Const. Amend. IV.

When the police gather evidence and such actions are violative of a citizen's constitutional rights, the exclusionary rule is used by the courts to act as a deterrent to such actions. U.S. v. Leon, 468 U.S. 897 (1984). The rule is applicable to state actions even though based on a 4th Amendment analysis. Mapp v. Ohio, 367 U.S. 643 (1961). Additionally, the integrity of the judicial system requires that the courts not be made "party to lawless invasions of constitutional rights of citizens by permitting unhindered governmental use of the fruits of such invasions." Terry v. Ohio, 392 U.S. 1 (1968).

There was no legal basis for the stop of Dee Fendant. KRS 189.390(3)(a) provides that the speed limit is 35 miles per hour in business or residential districts within the Commonwealth. KRS 189.390(5) authorizes municipalities to fix speed limits within their boundaries when conditions so warrant. So where did the 25 mile per hour speed limit originate?

After investigating the origin of the 25 mile per hour speed limit, counsel will no doubt discover that the local municipality has enacted ordinances to regulate the speed limit within the confines of the town or city. If the ordinance is like most such municipal enactments it establishes a blanket speed limit within the boundaries of the town, usually along the lines of: The speed limit on all city streets is 25 miles per hour. Such a wide ranging ordinance that establishes blanket speed limit reductions within the city limits are not contemplated by KRS 189.390. Murphy v. City of Lake Louisvilla, 303 S.W.2d 307 (Ky. 1957).

In Murphy, the Court analyzed a city ordinance that provided:

It is clear that the intent of the Court was to halt such speed limits within municipalities by holding the Legislature had no intent to allow such practices.

Even if the ordinance was carefully drafted so as to escape the condemned blanket coverage there remain avenues which yield the opportunity for fruitful attacks. Does the ordinance establish a fine? In Murphy, the established fine of $50 was lower than the fine for speeding established by the legislature. See, KRS 189.394. Such fines are improper and a violation of Section 168 of the Constitution of the Commonwealth of Kentucky.

Even if the fine structure is in compliance with the fines established by the legislature, counsel must still determine when the ordinance was adopted. If enacted prior to July 15, 1992, the controlling section of KRS 189.390(4)(a) required "an engineering and traffic investigation" which must show that a reduction "is reasonable and safe under the conditions found to exist at any location within the municipality". I have yet to discover a single municipality that undertook the expense associated with conducting the required studies prior to or even after establishing speed limits below the state mandated 35 miles per hour.

Although it is true that the 1992 Regular Session of the Kentucky General Assembly passed legislation allowing cities or counties to adopt local speed limit ordinances without the expensive traffic studies, local ordinances adopted before the enactment of KRS 189.390(5)(a) in 1992 remain void from inception. Williams v. City of Hillview, 831 S.W.2d 181 (Ky. 1992).

The officer that stopped Dee Fendant had no valid legal grounds to do so. When police actions are based upon an incorrect belief, the evidence should be suppressed and the entire stop of Dee Fendant and all of the evidence collected is tainted. The Commonwealth will no doubt argue that the so called "good faith" exception to the exclusionary rule should be applied. That exception was developed by the Burger Court and applied to a good faith belief that officers should be allowed to place a reasonable reliance on a search warrant even if later shown that the warrant was not supported by probable cause. U.S. v. Leon, 468 U.S. 897 (1984).

Leon does not apply to your case because the good faith exception applies to warrant searches and arrests. It is precisely the unfettered discretion of the officer which has been called into question. There was no warrant and the exception does not apply.

Even if your Court were inclined to analogize that the officer somehow is entitled to place a reasonable reliance on the posted speed limits, that argument also must fail. The late Justice Brennan's dissent in Leon correctly points out that the reason for the rule is "its tendency to promote institutional compliance with Fourth Amendment requirements." Ironically, the Justice remarked that he was concerned that the exception would not be confined to warrant situations but was concerned that courts, prosecutors and police officers would be tempted to extend the exception into the area of warrantless violations of 4th Amendment rights, just as we see in Dee Fendant's case.

Reliance on a newly created "good faith" exception in municipal bodies is ill founded. The entire stop and all evidence collected should be suppressed. See, Wong Sun v. United States, 371 U.S. 471 (1963) (holding all evidence obtained as the results of the fruits of the poisonous tree suppressed.)

A vague suspicion of possible criminal activity is insufficient to meet the probable cause standard. Brown v. Texas, 443 U.S. 47 (1979). The officer must have a "reasonable suspicion" based on "objective facts". Id. Brown was stopped because he was walking in an area which had a "high incidence of drug traffic"; he "looked suspicious"; and he had not been seen in the area by the officers on previous occasions. Id. The Court found these suspicions insufficient and found the stop an unreasonable seizure in violation of the 4th amendment.

Time and time again, counsel will see a case where the initial contact involves the officers belief that the client was loitering for immoral purposes in violation of KRS 525.090 or the companion statute KRS 529.080. Counsel must force the officer to present to the Court the reasons your client was suspected of loitering "for the purpose of" gambling, drug use or prostitution. It becomes almost comical to listen to an officer explain that the person was loitering and this is a known drug/prostitution/gambling area. Does this mean every person in and about this area is there for the immoral purpose? Of course not. The officer must be able to identify specific conduct of your client which caused the officer to believe an illegal act was in progress. It is virtually impossible to specify any action which will set your client apart from anyone else in the area who was there for legal reasons. The stop was a pretext and is improper. "[W]here the question is whether a crime has been committed as opposed to whether a particular individual committed a known crime, more evidence will be required" In re D.G., 581 N.E.2d 648 (Ill. 1991).

Race. There are a lot of cases in District Court every day where counsel should pay particular attention to the reason for the stop rather than focusing immediately on defending the actual charges that resulted. Has the officer indicated that the stop was made because your client just did not fit the area? What the officer is really saying in neo-liberal political correct speak is that your clients race did not fit the make up of the local neighborhood. Race alone without other indicia of suspicion is insufficient to initiate a stop. United States v. Anderson, 923 F.2d 450 (6th Cir. 1991).

Cracked Windshield/Broken Light. All to frequently we see the pretext for the stop being a cracked windshield on a vehicle in violation of KRS Chapter 189. How did the officer see the cracked windshield before the stop was made? Was the pretext for the stop a broken tail or brake light? KRS 189.055 only requires that a single red light illuminate. As long as one rear brake light is functional, there is nothing illegal about having a burned out brake light.

Dee Fendant may not be able to drive 55 miles per hour down the streets of her town but she may be allowed to complete her journey while driving less than 35 miles per hour without being subjected to a pretext stop. Counsel should always examine the probable cause for the stop to insure that the officer had a legal reason for initiating contact with a citizen.
 
 

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