NOT TO BE PUBLISHED
OPINION
J. LAMBERT, Judge.
Christopher Dale Releford appeals from the February 12, 2014, final judgment and sentence of imprisonment of the Fayette Circuit Court. That judgment found Releford guilty of first-degree attempted rape and second-degree assault and sentenced Releford to a total of eight-years' imprisonment. Releford appeals from his conviction based upon the trial court's denial of his motion to suppress DNA evidence. We affirm.
On the morning of September 7, 2012, at approximately 3:00 a.m., Leslie Bhattacharyya was walking home when she was attacked from behind. Bhattacharyya was pushed to the ground and had her underwear torn off. Bhattacharyya was carrying a pocket knife and used the knife to slash at her attacker. The attacker fled, leaving a trail of blood on the sidewalk. Approximately one hour later, Releford entered the James B. Haggin Memorial Hospital in Harrodsburg and sought treatment for multiple knife wounds. Releford informed hospital personnel that he had been driving home from work when he stopped to assist a stranded motorist. Releford claimed that after he assisted the motorist with changing a tire, the motorist then attacked Releford with a knife. This information was forwarded to the Mercer County Sheriff's Office.
After becoming aware of the assault on Bhattacharyya, the Mercer County Sheriff's Office contacted the Lexington Police Department to inform them of the attack on Releford. Because the two attacks contained similar circumstances and occurred in close temporal proximity, the police believed that the same perpetrator may have committed both acts. Lexington Police Detective Kari Anderson contacted Mercer County Sherriff's Captain Scott Elder for assistance in setting up an interview with Releford. Releford agreed to meet with Detective Anderson at the Mercer County Sherriff's Office on September 17, 2012. Detective Anderson interviewed Releford about his alleged attack by the motorist and at the end of the interview inquired as to whether Releford would consent to a buccal swab. Detective Anderson explained to Releford that his DNA sample could prove useful if the police were able to recover the knife used by his attacker. After Releford gave verbal consent to the swab and signed a consent to search form, the sample was collected.
Releford's buccal swab was sent to the Kentucky State Police Lab for DNA testing. Additional evidence from Bhattacharyya's attack was also sent. This evidence included blood from the sidewalk, blood from Bhattacharyya's pocket knife, and a buccal swab from Bhattacharyya. The lab determined that Releford's DNA matched both the DNA found on the sidewalk and Bhattacharyya's pocket knife. Releford was subsequently indicted for first-degree attempted rape and second-degree assault.
Releford filed a motion to suppress the DNA evidence and dismiss the charges against him. Therein, Releford argued that his DNA had been improperly obtained. In particular, Releford maintained that DNA could only be collected when statutorily authorized and that he had been coerced into providing his swab. The trial court conducted a hearing and determined that, because Releford had consented to the buccal swab, the sample had been properly obtained. Releford's motion was therefore dismissed. Thereafter, Releford entered a conditional guilty plea in which he reserved his right to appeal the trial court's ruling of his suppression motion. Releford was found guilty of first-degree attempted rape and second-degree assault and sentenced to eight-years' incarceration. This appeal follows.
Releford's argument on appeal is that the DNA sample was obtained by means of a ruse, was therefore involuntarily given, and thus should have been suppressed. Our review of a trial court's ruling on a motion to suppress is two-fold. First, the factual findings are deemed conclusive if they are supported by substantial evidence. Commonwealth v. Neal, 84 S.W.3d 920, 923 (Ky. App. 2002); Kentucky Rules of Criminal Procedure (RCr) 9.78. If unsupported by substantial evidence, the trial court's factual findings are deemed clearly erroneous. Commonwealth v. Banks, 68 S.W.3d 347, 349 (Ky. 2001). Second, we conduct a de novo review to determine whether the trial court's decision was correct as a matter of law. Roberson v. Commonwealth, 185 S.W.3d 634, 637 (Ky. 2006).
Releford first maintains that his DNA was collected in violation of Kentucky Revised Statutes (KRS) 17.170, which governs those persons who are required to provide a DNA sample. That statute requires the collection of DNA from certain individuals, namely specifically identified offenders. KRS 17.170. The trial court concluded, and we agree, that KRS 17.170 is not applicable herein. That statute pertains to those individuals from whom a DNA sample must be collected. KRS 17.170. There is no language, however, which prohibits the taking of DNA samples from individuals outside the scope of the statute. Id.
It is well established, and conceded by the parties herein, that the collection of a DNA sample constitutes a search sufficient to implicate the protections of the Fourth and Fourteenth Amendments to the Constitution of the United States. See Johnson v. Commonwealth, 327 S.W.3d 501 (Ky. 2010). The Fourth and Fourteenth Amendments operate to prohibit warrantless searches absent a valid exception such as exigent circumstances or consent. Id. Releford concedes that he provided consent for his buccal swab, but argues that his consent was obtained by means of a ruse and is therefore involuntary. For the following reasons, we disagree.
In general, ruses are not unconstitutional. Krause v. Commonwealth, 206 S.W.3d 922, 927 (Ky. 2006). However, it has been held that special circumstances may render an otherwise voluntary consent to be invalid when acquired by means of a ruse. Id. Following the suppression hearing, the trial court herein found that no ruse had taken place. This finding is supported by substantial evidence. Detective Anderson testified that at the time of her interview with Releford, she believed the attack on Releford and the attack on Bhattacharyya were related. She testified that she did not have a suspect in the attack on Bhattacharyya, but hoped that Releford could provide information that would lead her to one. Detective Anderson was clear that Releford was not questioned about the attack on Bhattacharyya, was not a suspect in that attack, and was not in custody at the time of the interview. Conversely, Releford asserts that Detective Anderson deliberately deceived both Releford and the trial court with regard to her suspicion of Releford and her intentions for the resulting DNA sample. The trial court is in the position to best judge the credibility of the evidence presented. Kentucky Rules of Civil Procedure (CR) 52.01. Therefore, we will not substitute our opinion for that of the trial court with regard to the weight given to certain evidence, including the testimony of witnesses. Id.; B.C. v. B.T., 182 S.W.3d 213, 219 (Ky. App. 2005). Simply put, the trial court chose to believe Detective Anderson's version of events as opposed to the conspiracy theory put forth by Releford. Therefore, Releford has failed to demonstrate that the trial court's finding that a ruse did not exist was unsupported by substantial evidence, and his argument fails. Neal, 84 S.W.3d 920. Accordingly, we hold that the trial court did not err when it determined that Releford's sample was voluntarily given and denied Releford's suppression motion.
For the foregoing reasons, the February 12, 2014, final judgment and sentence of imprisonment of the Fayette Circuit Court is affirmed.
ALL CONCUR.
