COMMONWEALTH OF KENTUCKY

51st JUDICIAL CIRCUIT

HENDERSON DISTRICT COURT

16-T-03242

COMMONWEALTH OF KENTUCKY PLAINTIFF

V.

JOSHUA R HALL DEFENDANT

Electronically Filed

MOTION TO SUPPRESS EVIDENCE

COMES NOW, the Defendant, Joshua Hall, through Counsel, and moves this Court to suppress any and all observations, statements, field sobriety tests, and breathe tests that were obtained after the arresting officer unlawfully stopped him. As grounds for this Motion Joshua Hall states as follows:

INTRODUCTION

On or about July 16, 2016, Joshua was sleeping in his 1999 Jeep Cherokee. His Jeep was lawfully parked. Joshua was approached, detained, and arrested by the Henderson Police Department and charged with committing the offense of Operating a Motor Vehicle Under the Influence of Alcohol. Upon the arrest of Joshua he underwent a seizure of his breathe. This Motion to Suppress now follows.

THE EVIDENCE OBTAINED FROM THE ILLEGAL STOP SHOULD BE SUPPRESSED

When an initial seizure is unconstitutional, all evidence that flows from such seizure, including the defendant’s statements, must be suppressed. Mapp v. Ohio (1961) 367 U.S. 643.

THE DEFENDNAT, JOSHUA HALL WAS NOT OPERATING HIS MOTOR VEHICLE PURSUANT TO KRS 189.010A

KRS 189A.010 provides, in relevant part, that “[a] person shall not operate or be in physical control of a motor vehicle anywhere in this state ․ [w]hile under the influence of alcohol[.]” KRS 189A.010(1)(b). A district court may grant a motion to suppress evidence resulting from an arrest that lacked probable cause. Wilson v. Commonwealth, 37 S.W.3d 745, 748 (Ky.2001). “Probable cause must exist and must be known by the arresting officer at the time of the arrest.” White v. Commonwealth, 132 S.W.3d 877, 883 (Ky.App.2003). Probable cause exists if the arresting officer has a reasonable belief, in view of all the evidence, that there was a “fair probability” that the defendant was operating or in physical control of the motor vehicle while under the influence of alcohol. Id.; see also Eldred v. Commonwealth, 906 S.W.2d 694, 705 (Ky.1994), abrogated on other grounds by Commonwealth v. Barroso, 122 S.W.3d 554 (Ky.2003). In ascertaining probable cause, the trial court is permitted to consider circumstantial evidence. Blades v. Commonwealth, 957 S .W.2d 246, 250 (Ky.1997).

The seminal case in Kentucky on this issue is Wells v. Commonwealth, 709 S.W.2d 847 (Ky.App.1986). In Wells, rendered under a former version of KRS 189A.010, a police officer found Wells asleep in the driver's seat of his van. The van was parked in a parking lot outside a hotel. Wells was alone in the van, the keys were in the ignition, and the motor was running. The van's parking brake was engaged. The police officer discovered a case of beer in the van, with three or four cans missing and one can empty. The police officer concluded Wells was under the influence of alcohol because he was unsteady on his feet, and he failed sobriety and breathalyzer tests.

In ascertaining whether probable cause existed to arrest Wells for driving under the influence, this Court examined several factors:

(1) whether or not the person in the vehicle was asleep or awake;

(2) whether or not the motor was running;

(3) the location of the vehicle and all of the circumstances bearing on how the vehicle arrived at that location; and

(4) the intent of the person behind the wheel. Wells, 709 S.W.2d at 849 (citation omitted).

ANALYSIS

In this case as noted by the Uniform Citation Defendant Joshua Hall was sleeping in the vehicle. As noted by the Wells court, “[a] sleeping person is seldom operating anything[,]” particularly a vehicle which is not in motion. Id. at 849–50 (citation omitted). The first factor has not been met. Additionally, the motor was not running. Since the motor was not running the second factor has not been met. Third, the Court must examine the vehicle's location and all of the circumstances reasonably evidencing how the vehicle arrived there. 709 S.W.2d at 850; cf. White v. Commonwealth, 132 S.W.3d 877, 880 (Ky.App.2004) (truck resting against a guardrail with its rear section partially in the roadway); Blades, 957 S.W.2d at 248 (truck parked in the roadway with its emergency flashers operating); Newman v. Stinson, 489 S.W.2d 826, 828 (Ky.1972) (vehicle stopped at an intersection with its motor running and the driver nearly asleep). Defendant, Joshua Hall’s Jeep was lawfully parked in a parking lot. The final factor requires us to consider the intent of the person behind the wheel. Per the Uniform Citation Joshua Hall was asleep. In light of that fact, it is more reasonable to infer that, while Joshua was asleep, his sleep kept him from committing the crime of driving under the influence.

CONCLUSION AND PRAYER FOR RELIEF

For the foregoing reasons, the Defendant Joshua Hall respectfully requests this court suppress

all evidence obtained during or as a result of the unlawful search and seizure.

Respectfully Submitted

/s/ B.J. Early

______

B.J. Early

Attorney for Defendant

314 Main Cross Street

P.O. Box 245

Hawesville, KY 42348

(270) 927-8887

NOTICE

Please take notice that on January 11, 2017, at the hour of 2:00 P.M. or as soon thereafter as counsel may be heard, in the courtroom of Henderson County Judicial Center 5 N. Main St. Henderson, KY 42420, the foregoing Motion will be heard.

CERTIFICATE OF SERVICE

THIS IS TO CERTIFY a true and correct copy of the foregoing Motion was served upon the Plaintiff County Attorney, Steve Gold via efiling and via Fax: (270) 827-6032 this the 6th day of January 2017.

/s/ B.J. Early

______

B.J. Early

Page 1 of 4