NOT TO BE PUBLISHED
OPINION
CLAYTON, JUDGE.
Thomas Stewart appeals from a Perry Circuit Court judgment of conviction on one count of first-degree trafficking in a controlled substance. Stewart seeks vacation of his conviction and a new trial based upon the following claims: (1) the evidence used in his trial was obtained as a result of an unlawful stop of his vehicle; and (2) during closing arguments, the Commonwealth improperly commented on Stewart's status as a resident of Ohio. For the reasons discussed herein, we affirm Stewart's conviction.
On May 7, 2009, the Kentucky State Police (KSP) received an anonymous phone call from a female caller who informed them that each month Stewart travels from Ohio to James Combs's home in Hazard and sells Oxycontin. The caller told police that Stewart drove a camouflaged camper with Ohio license plates and was currently at Combs's home. Upon receiving this call, KSP notified several detectives and officers who were currently working in the Hazard area.
KSP Detective Russell Dishner informed the other officers that he saw a camouflaged camper driving toward Hazard approximately thirty minutes before receiving the tip. Later, Detective Dishner reported that a camouflaged camper matching the description of Stewart's vehicle had just passed the location at which he was stationed. Officer Nathan Day saw the camper shortly thereafter and followed the vehicle for approximately half of a mile before conducting a traffic stop.
Upon stopping the vehicle and asking Stewart for identification, Officer Day asked Stewart for consent to search his automobile. After Stewart consented to the search, KSP found Oxycontin pills in the camper. Stewart admitted to police that he had been to Combs's residence but denied selling narcotics. KSP detectives went to Combs's residence where Combs gave them a baby food jar containing pills. Combs claimed that he received the pills from Stewart. Stewart was arrested on one count of first-degree trafficking in a controlled substance.
On August 6 and 11, 2009, the Perry Circuit Court held a hearing on Stewart's motion to suppress the evidence seized during the stop and the evidence retrieved from Combs's home. In support of his motion, Stewart argued that all of the Commonwealth's evidence was seized as a result of the police's unlawful stop of his vehicle. On August 24, 2009, the trial court issued findings of fact and conclusions of law concerning Stewart's suppression motion. The trial court concluded that the stop was lawful and denied Stewart's motion.
On May 4, 2010, a Perry County jury convicted Stewart of one count of first-degree trafficking in a controlled substance. He was sentenced to five years of imprisonment. This appeal follows.
With regard to the trial court's factual findings contained within its denial of a motion to suppress, we will review the trial court's factual findings under a clearly erroneous standard of review. Commonwealth v. Banks, 68 S.W.3d 347, 349 (Ky. 2001). A finding of fact is not clearly erroneous if supported by substantial evidence. Owens-Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky. 1998). "However, the ultimate legal question of whether there was reasonable suspicion to stop or probable cause to search is reviewed de novo." Banks, 68 S.W.3d at 349.
During the suppression hearing, Detective Chris Fugate testified that the officers had the right to stop the camper just based on the complaint because it was part of their routine procedure. This statement raises serious concerns about the stop's validity because the law clearly provides that police must have more than an anonymous tip to justify a vehicle stop. Police may only stop a vehicle when they have "an articulable and reasonable suspicion of criminal activity." Creech v. Commonwealth, 812 S.W.2d 162, 163 (Ky. App. 1991).
Complications arise when, as here, the information serving as the sole basis of the officer's suspicion is provided by an anonymous informant, whose veracity, reputation, and basis of knowledge cannot be readily assessed. In situations such as these, we are required to examine the totality of the circumstances, and to determine whether the tip, once suitably corroborated, provides sufficient indicia of reliability to justify an investigatory stop.
Collins v. Commonwealth, 142 S.W.3d 113, 115 (Ky. 2004).
In order to stop a vehicle based upon an anonymous tip, the tip must contain more information than that available to a casual bystander. See id. at 116. "Anonymous descriptions of a person in a certain vehicle or location, though accurate, do not carry sufficient indicia of reliability to justify an investigative stop [unless the tip is] coupled with independent observations by police of suspicious conduct[.]" Id. The anonymous tip only provided the names of Stewart and Combs, a description of Stewart's readily identifiable vehicle, and an allegation of illegal conduct. Prior to stopping the vehicle, the police were only able to corroborate the presence of the camouflaged camper in the area. It was only after Stewart consented to a search of his vehicle that the police were able to corroborate the anonymous caller's allegation of illegal activity. Therefore, based upon the anonymous informant's tip alone, the police did not have the reasonable suspicion of criminal activity required to justify the investigatory stop.
Nonetheless, Officer Day was able to stop Stewart's vehicle upon observing the camper swerving. "[A]n officer who has probable cause to believe a civil traffic violation has occurred may stop a vehicle regardless of his or her subjective motivation in doing so." Wilson v. Commonwealth, 37 S.W.3d 745, 749 (Ky. 2001) (footnote omitted). Although the testimony of Officer Day regarding Stewart's swerving was disputed during the trial, the trial court was in the best position to judge the credibility of the witnesses. See Sowell v. Commonwealth, 168 S.W.3d 429, 431(Ky. App. 2005). The findings were based upon substantial evidence. See Owens-Corning Fiberglas, 976 S.W.2d at 414.
Despite Stewart's arguments to the contrary, nothing in the law required Officer Day to end the stop when Stewart provided proof of license and registration or prevented him from inquiring about the information contained in the tip or asking for consent to search the camper. A police officer's actions must be reasonably related in scope to the reason of the initial stop. Johnson v. Commonwealth, 179 S.W.3d 882, 884 (Ky. App. 2005). Officer Day's questions regarding Stewart's alleged possession of narcotics were reasonably related to a stop of a swerving vehicle.
Although we conclude that the stop was justified, Officer Day's testimony regarding their police post's common practice of stopping vehicles based upon an anonymous tip alone remains a concern. Clearly, the anonymous tip alone would not have been sufficient to justify the stop.
Even though we affirm the trial court's decision that the stop was lawful based upon the testimony that the camper swerved, we will further address the issue of consent. "[C]onsent to search may — but [will] not necessarily — dissipate the taint of an illegal detention." Baltimore v. Commonwealth, 119 S.W.3d 532, 540 (Ky. App. 2003) (footnote omitted). To determine whether consent will cure an unlawful stop, we must examine "(1) whether the consent was voluntary and (2) whether the consent was an independent act of free will." Id. (Footnote omitted). The proximity of time between the stop and Stewart's consent, without an independent intervening act, indicates that his consent was not an independent act of free will but, instead, a result of the stop. We agree with Stewart that, if the stop were based upon the anonymous tip alone, the circumstances of this case would require suppression of the evidence. However, given that we affirmed the trial court's decision on the other grounds, nothing in these facts vitiates Stewart's consent to search.
Stewart also claims that the following statement made by the Commonwealth in closing arguments constituted prosecutorial misconduct:
this community . . .[w]e got a problem with pills-Pillville, they call us . . . There's not a family, I would venture to say . . . that haven't been touched. Either friends, or neighbors, or our own children, grandchildren, nieces, nephews who have been touched, who have a problem with drugs. About the last thing we need is someone from Cincinnati[.]
Stewart claims that these statements improperly called upon the jury to convict Stewart in order to protect the community and called upon the jury to convict Stewart based upon his out-of-town residence. We disagree.
It is unquestionably the rule in Kentucky that counsel has wide latitude while making opening or closing arguments. And it is equally well-established that a prosecutor may use his closing argument to attempt to `persuade the jurors the matter should not be dealt with lightly.'
Brewer v. Commonwealth, 206 S.W.3d 343, 350 (Ky. 2006) quoting Harness v. Commonwealth, 475 S.W.2d 485, 490 (Ky. 1971). The Commonwealth's statements did not ask the jury to treat Stewart harshly based upon his residence. The Commonwealth simply acknowledged the community's widely known drug problem and stated the community does not need additional drug trafficking. Stewart's residency was firmly established by the evidence presented at trial. Although the Commonwealth's comments may have lacked discretion, they do not constitute error requiring reversal.
Finally, Stewart claims that the trial court erred by refusing to waive his costs and fees based upon his indigency. Kentucky Revised Statutes (KRS) 534.030(1) requires trial courts to assess a fine, between $1,000 and $10,000 to all defendants convicted of felony. However, KRS 534.030(4) waives the fine requirement for indigent defendants. Similarly, KRS 23A.205(2) requires courts to impose court costs upon defendants convicted of crimes unless the defendants are indigent. Although Stewart was deemed indigent following his conviction and was appointed appellate counsel, Stewart retained a private trial attorney rather than a public defender. The record does not contain an affidavit of indigency prior to Stewart's imprisonment. Based upon the lack of evidence to indicate that Stewart was indigent when the fines and costs were imposed, the trial court's denial of Stewart's request for waiver was not erroneous.
Accordingly, the Perry Circuit Court judgment of conviction against Stewart is affirmed.
ALL CONCUR.
