Dog alert on car allowed search of driver, too, under automobile exception

Defendant was driving a car that was validly stopped, and a dog alerted on the car. That permitted a search of his person as well under the automobile exception. Morton v. Commonwealth, 232 S.W.3d 566 (Ky. App. 2007):

Since Morton concedes that his vehicle was legitimately stopped and that the drug dog’s alerts provided probable cause to search his vehicle, the issue is simply whether or not the probable cause which triggered the automobile exception extended to Morton, the lone occupant of the vehicle, permitting the search of his person. Although there is no Kentucky case law on point, we conclude that our precedents permit such a search under the facts of this case.

In this case, after Morton was stopped and while remaining in his car, a drug dog alerted Hord to two locations, including the driver’s side door, where Morton was sitting. After Morton denied Hord’s request to search his vehicle, Hord asked him to exit his vehicle at which time he searched Morton and found crack cocaine.

We find this case analogous to the facts presented in Dunn v. Commonwealth, 199 S.W.3d 775 (Ky.App. 2006), wherein the police smelled a strong odor of marijuana after approaching a vehicle with two occupants. Police then asked the driver, Dunn, to exit the vehicle and he was immediately searched for contraband. As a result of the search of his person, police found a cellophane packet containing cocaine.

Dunn moved the circuit court to suppress evidence of the cocaine under the theory that it was the fruit of an unlawful search. Overruling his motion, the circuit court ruled that the strong smell of marijuana emanating from Dunn’s vehicle provided probable cause to search the vehicle, all items contained therein, and the vehicle’s occupants. We affirmed.

Applying Dunn to the facts of this case, when the drug dog detected the odor of drugs inside Morton’s vehicle, particularly at the driver’s side door, Hord was provided with probable cause to search the vehicle pursuant to the automobile exception which extended to a search of Morton under the facts of this case.

Defendant’s testimony at suppression hearing was properly struck from the record after he refused to be cross-examined. Defendant testified on direct at his suppression hearing and then invoked his Fifth Amendment privilege against self-incrimination after he asked to consult with counsel. Since he was not subject to cross-examination, his direct testimony was stricken, and the district court’s answer to his questions did not coerce him out of testifying. While the Simmons rule provides some protection, there are always risks in testifying. United States v. Henry, 2007 U.S. Dist. LEXIS 62501 (E.D. Pa. August 24, 2007):

The Court’s interest in encouraging defendant to confer with counsel was to ensure that defendant understood the manner and extent to which his testimony could be used against him at trial. Indeed, the Court initially did so in response to defendant’s question “is that going to be held against me?” Jan. 29, 2007 Tr. at 139.

As the Third Circuit has recognized, placing a defendant on the stand at a suppression hearing may be “risky to his defense.” Reinert v. Larkins, 379 F.3d 76, 96 n.5 (3d Cir. 2004).

[Defendant] Reinert testified extensively at trial about the entire incident leading up to and following the death of Sean Brady. By taking the stand at the suppression hearing, Reinert may have been providing the Commonwealth with the means to impeach his testimony. …. Were we to adopt a similar interpretation of Simmons [as several other courts] and conclude that suppression testimony was fair game for impeachment purposes, the action of putting Reinert on the stand during the suppression hearing could have itself potentially become subject to an allegation of ineffectiveness.

Reinert, 379 F.3d at 96 n.5.

The Court notes that, as in Reinert, defendant decided to take the stand at trial, and thus, defendant’s suppression hearing testimony would have been admissible at trial to impeach him. The Court further notes that defendant does not argue that defense counsel misinformed him of the law pertaining to use of his suppression hearing testimony at trial. See Mot. at 8. In a hearing on defendant’s motions for new counsel conducted August 8, 2007, defense counsel confirmed that he properly informed defendant of the only way in which his testimony at the suppression hearing could be used against him at trial: as impeachment evidence if he testified at trial. Aug. 8, 2007 Tr. at 15-16.

In sum, it was proper for the Court to give defendant an opportunity to talk to counsel on this issue. The Court certainly did not coerce defendant to invoke his Fifth Amendment privilege against self-incrimination. Mot. at 8. Accordingly, the Court concludes that a new trial on this ground is not warranted.