NOT TO BE PUBLISHED
OPINION AFFIRMING
CLAYTON, Judge.
Following entry of a conditional guilty plea, Jay O. Noffsinger was convicted of possession of a controlled substance in the first degree, second offense; tampering with physical evidence; being a persistent felony offender in the first degree; possession of a controlled substance in the second degree; possession of a controlled substance in the third degree; and possession of drug paraphernalia, second or subsequent offense. The trial court sentenced him to seven (7) years' imprisonment. He reserved the right to challenge the denial of his motion to suppress evidence by the Muhlenberg Circuit Court. He now appeals from that order. Finding that the police officer had reasonable suspicion to stop the driver of the vehicle and probable cause to search the car, we affirm.
At about 9:30 p.m. on August 8, 2009, Central City police officer John McGehee observed a license plate, which was not illuminated, on a 1989 blue Chevrolet that was driven by Walter Hornsby. (The car belonged to Noffsinger's father.) Noffsinger was riding on the passenger side of the front seat. It is required by Kentucky Revised Statute (KRS) 186.170 that a car's rear plate must be illuminated when being operated during certain designated hours. According to Hornsby, Officer McGehee went immediately to the passenger side of the vehicle. Officer McGehee, however, testified that he approached Hornsby first. Notwithstanding these contradictory statements, Hornsby was issued a citation for the traffic violation.
While investigating the traffic stop, Officer McGehee noticed that Noffsinger seemed nervous and appeared to be impaired although McGehee later stated that Noffsinger's level of intoxication might not rise to the level of public intoxication. Noffsinger's eyes appeared large and were wide open; plus, he was nervous and fidgety. Also, McGehee, during his conversation with Hornsby, recognized Noffsinger and knew that Noffsinger had been a known drug user.
Based on these factors, Officer McGehee asked Noffsinger to exit the car. Officer McGehee described this as routine procedure on a traffic stop. As Noffsinger got out of the car, Officer McGehee noticed a spoon inside a clear plastic bag, which was located between the door and the passenger seat. Noffsinger picked up the spoon, dusted it off, and said it was nothing. The bottom of the spoon, however, was scorched, which suggested to Officer McGehee that it may have been used to heat drugs.
He then asked Noffsinger if he had ever used drugs. Noffsinger admitted that he had used drugs the day before. Subsequently, Officer McGehee had Noffsinger hold out his arms, and Noffsinger's left arm appeared to bear a syringe mark. When Officer McGehee asked Noffsinger if he had used a syringe, he nodded his head. Then, Noffsinger said that he just wanted to spend his birthday with his children. According to the testimony, Officer McGehee asked Noffsinger whether he had anything on him that the officer should know about. Noffsinger replied again that he just wanted to spend his birthday with his children.
But then Noffsinger reached down and retrieved a syringe from his sock and simultaneously took something from his right pocket and placed it in his mouth. Possession of drug paraphernalia is a violation of KRS 218A.500 and KRS 218A.510 and constitutes probable cause for an arrest. With regard to the item placed in his mouth, Noffsinger told Officer McGehee that it was cotton. After a brief struggle, Officer McGehee recovered the item from Noffsinger and determined that it was cotton. Later, Noffsinger claimed the item was a cigarette butt. Officer McGehee next searched Noffsinger's right pocket and found a dollar bill with white residue on it, which later tested positive for morphine.
After Noffsinger's arrest, Officer McGehee searched the entire vehicle and found Xanax pills and a hydrocodone pill between the seats of the car. Following the police officer's giving him the Miranda rights, Noffsinger admitted that the drugs and drug paraphernalia in the car belonged to him.
On September 25, 2009, the Muhlenberg Grand Jury indicted Noffsinger, charging him with possession of a controlled substance in the first degree (methamphetamine), second offense; tampering with physical evidence; being a persistent felony offender in the first degree; possession of a controlled substance in the second degree (hydrocodone); possession of a controlled substance in the third degree (Xanax); and possession of drug paraphernalia, second or subsequent offense. On October 21, 2009, Noffsinger filed a motion to suppress the evidence, which the trial judge denied.
Thereafter, on October 29, 2009, Noffsinger appeared in the Muhlenberg Circuit Court and pled guilty to all counts but reserved the right to appeal the order denying his motion to suppress evidence. Under the terms of the plea agreement, the prosecutor agreed to recommend a sentence of imprisonment for seven (7) years. The trial court entered a judgment of conviction and the seven (7) year sentence of imprisonment on November 3, 2009. Noffsinger appeals from this order.
Noffsinger argues that the trial court erred when it failed to suppress the evidence seized in an alleged illegal search. More specifically, Noffsinger states that the officer did not have the right to stop and frisk him, whereas the Commonwealth maintains that the officer had reasonable suspicion to stop the car driven by Hornsby. Upon stopping the car, the officer observed drug paraphernalia, the spoon, near Noffsinger. Subsequently, while being questioned, he admitted to having ingested drugs and surrendered a syringe.
When we undertake a review of the trial court's decision on a motion to suppress, the factual findings of the trial court are regarded as conclusive if they are supported by substantial evidence. Kentucky Rules of Criminal Procedure (RCr) 9.78. But the legal question of whether the trial court correctly determined that reasonable suspicion or probable cause existed for a search is required de novo. Com. v. Neal, 84 S.W.3d 920 (Ky. App. 2002).
Both the Fourth Amendment to the United States Constitution and Section 10 of the Kentucky Constitution prohibit unreasonable searches and seizures by the government. Adcock v. Com., 967 S.W.2d 6, 8 (Ky. 1998), citing Ornelas v. U. S., 517 U.S. 690, 697, 116 S.Ct. 1657, 1662, 134 L.Ed.2d 911 (1996). An officer with probable cause to believe that a traffic violation has occurred may stop the suspected vehicle. Wilson v. Com., 37 S.W.3d 745 (Ky. 2001. In such case, an officer's subjective motivation for the stop is of no importance since the officer has probable cause to believe a civil traffic violation has occurred. Id. In an otherwise constitutional stop of a vehicle, this belief subjects all the passengers in the vehicle to the stop. The Supreme Court recently articulated in Arizona v. Johnson, ___ U.S. ___, 129 S.Ct. 781, 784, 172 L.Ed.2d 694 (2009), that "[f]or the duration of a traffic stop, we recently confirmed, a police officer effectively seizes `everyone in the vehicle,' the driver and all passengers." (citing Brendlin v. California, 551 U.S. 249, 255, 127 S.Ct. 2400, 2406, 168 L.Ed.2d 132 (2007)).
All warrantless searches are per se unreasonable under the Fourth Amendment unless the search falls within an exception to the warrant requirement. Katz v. U. S., 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Among the recognized exceptions to the warrant requirement is a search incident to an arrest. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Rainey v. Com., 197 S.W.3d 89 (Ky. 2006). It is well established that an officer who has made a lawful custodial arrest of the occupant of an automobile may search the vehicle's passenger compartment incident to that arrest where a court concludes that the arrest and not the search was the real purpose of the intrusion. Under New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), the trial court held that "when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile." Id. at 460, 101 S.Ct. at 2864 (Footnotes omitted).
Here, Officer McGehee stopped the car on the basis of a nonilluminated license plate, and thus, the stop was not based on any pretext. Further, the search of the automobile did not occur until after Noffsinger's arrest for possession of drug paraphernalia. Thus, the search followed a lawful arrest, which is an exception to the requirement for a warrant prior to a search. Moreover, the case at bar meets the additional requirements for such a search found in Arizona v. Gant, ___ U.S. __, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009). In Gant, the Supreme Court held:
Police may search a vehicle incident to a recent occupant's arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arrestee's vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.
Id. at 1723-24. Noffsinger was arrested for possession of drug paraphernalia. Following his arrest, Officer McGehee searched the automobile for drugs, which was a reasonable belief given the drug paraphernalia found on Noffsinger. In addition, Noffsinger was standing next to the car within reaching distance of it.
The "touchstone of the Fourth Amendment is reasonableness" based upon the totality of the circumstances. Ohio v. Robinette, 519 U.S. 33, 39, 117 S.Ct. 417, 421, 136 L.Ed.2d 347 (1996). We review the facts here with particularity to ascertain whether Officer McGehee's search of this car was reasonable based on the totality of the circumstances. First, Officer McGehee stopped an automobile for a traffic violation, for which he issued a citation to the driver of the automobile. During his interaction with the driver, he observed a passenger in the automobile who appeared nervous, impaired and was a known drug user. These factors together gave Officer McGehee reasonable suspicion. Officer McGehee testified that it is routine procedure to ask a passenger to exit a vehicle under these circumstances. When Noffsinger exited the car, Officer McGehee noticed a spoon inside a clear plastic bag located between the door and the passenger seat. At this point, Officer McGehee decided to arrest Noffsinger but did not inform him that he was under arrest until after he issued a citation to Hornsby, the driver of the vehicle.
The facts demonstrate the reasonableness of Officer McGehee's eventual arrest of Noffsinger and his actions under the circumstances. The possession of drug paraphernalia is a criminal act, and Noffsinger was arrested at this point. Hence, no search of the automobile took place until after Noffsinger's arrest. A search incident to a lawful arrest is an exception that allows a warrantless search. That is what occurred here.
When evidence is conflicting, as claimed here by Noffsinger, the weight of the evidence and credibility of witnesses are determined by the trial court, and we will not disturb them. Partin v. Com., 918 S.W.2d 219 (Ky. 1996).
Hence, relying on Belton, 453 U.S. 454, we conclude that the search of vehicle in which Noffsinger was a passenger was lawful under the search incident to an arrest exception to the Fourth Amendment's warrant requirement, and the Muhlenberg Circuit Court did not err in denying Noffsinger's motion to suppress.
Accordingly, the decision of the Muhlenberg Circuit court is affirmed.
ALL CONCUR.
