RENDERED: FEBRUARY 16, 2017
TO BE PUBLISHED

§upreme Court of Beninckg

2016-SC-000063-DG
CLARENCE L. COBB APPELLANT

ON REVIEW FROM COURT OF APPEALS
V. CASE NO. 2014-CA-OOO4 19-MR
GRAVES CIRCUIT COURT NO. 13-CR-001 19

COMMONWEALTH OF KEN'I`UCKY APPELLEE

OPINION OF THE COURT BY JUSTICE WRIGHT

AFFIRMING

Clarence Cobb entered a conditional guilty plea in Graves Circuit Court
to possessing a handgun as a convicted felon, possessing marijuana, and
operating a motor vehicle on a suspended license. The trial court sentenced
Cobb to five years’ imprisonment; however, the plea agreement allowed Cobb to
appeal the trial court’s order denying his motion to suppress evidence found in
the vehicle he drove at the time of his arrest. Cobb appealed the trial court’s
order, and the Court of Appeals affirmed. Cobb moved this Court for
discretionary review, and we granted his motion. On appeal, Cobb argues the
Court of Appeals erred by affirming the trial court’s order denying his motion to
suppress evidence because police illegally seized and searched his vehicle. We

disagree. Therefore, We affirm the judgment of the Court of Appeals.

I. BACKGROUND

While on routine patrol, Mayfield Police Officer Rodney Smith believed he
recognized a driver whom he previously arrested for driving on a suspended
license. Officer Smith followed the car until it pulled into a driveway and the
occupant exited the vehicle. The driver identified himself as Keith Burton when
questioned by Officer Smith. Believing he confused the driver of this car with
the previous arrestee, Officer Smith returned to his cruiser. Officer Smith
watched as the driver entered a different residence from the driveway in which
he parked. At that point, Officer Smith accessed the jail’s website and retrieved
a photo of Keith Burton. He realized the driver of the car had given him a false
name, and he went to the house the driver entered. Once confronted with a
photo of Keith Burton, the driver admitted he was Clarence Cobb-the man
Officer Smith previously arrested for driving on a suspended license. After
verifying that Cobb’s license remained suspended, Officer Smith placed Cobb
under arrest.

Having seen the police make an arrest, a vigilant neighbor came outside
and informed Officer Smith she was the caretaker of the elderly man in whose
driveway Cobb parked. The neighbor told police that Cobb did not live in that
home, that Cobb’s car did not belong in the driveway where he parked it, and
Cobb did not have permission to park there.

At that point, Officer Smith seized the vehicle, called a tow truck, and
conducted an inventory search pursuant to department policy. Another officer

arrived on the scene to assist in the inventory search. During that search,

police opened the center console of the vehicle and found marijuana, rolling
papers, and a loaded handgun. The seizure of Cobb’s vehicle and its

subsequent search are the focus of this appeal.

II. ANALYSIS

A. The Record Contains Substantial Evidence Supporting the Trial
Court’s Findings of Fact

When reviewing a motion to suppress evidence, our analysis is two-fold.
Williams v. Commonwealth, 364 S.W.3d 65, 68 (Ky. 2011). First, “we defer to
the trial court’s findings of fact if they are not clearly erroneous. Findings of
fact are not clearly erroneous if they are supported by substantial evidence.
Substantial evidence is evidence of substance and relevant consequence having
the fitness to induce conviction in the minds of reasonable men.”
Commonwealth v. Jennings, 490 S.W.3d 339, 346 (Ky. 2016) (internal citations
and quotation marks omitted). Secondly, we review a lower court’s application
of the law to the facts de novo. Id.

Cobb argues we should not defer to the trial court’s finding that the
Mayfield Police Department had a standard policy on towing vehicles. Cobb
contends that the trial court’s finding was clearly erroneous because the trial
court relied solely upon the testimony of Officer Smith. When questioned by
the trial court during the suppression hearing, Officer Smith testified that the
Mayfield Police Department had a written policy on towing vehicles.
Furthermore, Officer Smith testified that standard procedure required police to
conduct an inventory search before towing a vehicle in order to protect the

police, the vehicle owner, and tow-truck driver.
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On another matter, Cobb identifies “language that could be
misinterpreted” in the trial court’s order. Specifically, the trial court’s order
stated that, “the automobile was parked in a neighbor’s driveway, and the
caretaker of the person who lived there came out and spoke to the officer about
the car being in the driveway.” Whether the caretaker emerged from her home
or the home of the elderly man in Whose driveway Cobb parked is immaterial to
our analysis. What remains relevant is Officer Smith’s testimony in which he
clearly stated a vigilant neighbor, Ms. Biggers, told him that she took care of
the elderly gentleman Who owned the property where Cobb parked his vehicle,
that she did not know Cobb, and that Cobb’s car did not belong in that
driveway.

In previous cases, we concluded that an officer’s testimony provides
sufficient evidence to meet the substantial evidence standard. E.g. Williams,
364 S.W.3d at 68; Chavies v. Commonwealth, 354 S.W.3d 103, 108 (Ky. 2011)
(“Based on the officer’s testimony, we find there is substantial evidence
supporting the trial court’s finding. . . .”). Our review of the record leads us to
agree with the Court of Appeals’ conclusion that Officer Smith’s testimony is
sufficient to establish substantial evidence supporting the trial court’s findings
of fact. Officer Smith’s testimony is of requisite substance and relevance to
invoke a conviction of veracity in the minds of reasonable people. See
Jennings, 490 S.W.3d at 346. Therefore, we affirm the Court of Appeals’

holding that the trial court’S findings of fact were not clearly erroneous.

Now, We review de novo the application of the law to these facts.
Williams, 364 S.W.3d at 68.

B. Warrantless Searches Are Per Se Unreasonable, Subject Only to a
Few Well-Established Exceptions

1. A Search Incident to Arrest is But One Exception to the Warrant
Requirement

Cobb contends that police illegally seized and searched his car, thus
requiring this Court to reverse the judgment of the Court of Appeals. As we
said in Robbins v. Commonwealth, 336 S.W.3d 60, 63 (Ky. 2011), “[w]arrantless
searches are ‘per se unreasonable under the Fourth Amendment_subject only
to a few specifically established and well-delineated exceptions.’” (Quoting Katz
v. United States, 389 U.S. 347, 357 (1967)). Therefore, in order to determine
whether police illegally seized and searched Cobb’s car, we must analyze
whether the search and seizure fits into one of the exceptions to the Fourth
Amendment’s general warrant requirement.

In this case, Cobb conflates two wholly-separate exceptions to the
warrant requirement 1) a search incident to arrest, and 2) an inventory search
after seizure. Cobb argues that police conducted a thinly-veiled search
incident to arrest that does not comport with the dictates of the Supreme Court
of the United States opinion in An`zona v. Gant, 556 U.S. 332, 338 (2009). Gant
significantly narrowed the circumstances under which police may search an
automobile incident to arrest. The Supreme Court of the United States set out

two permissible scenarios when the passenger compartment of a car may be

searched, after an arrest, without a warrant. First, “[p]olice 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 . . . .” Gant, 556 U.S. at 351. Secondly, police may search a vehicle
incident to a recent occupant’s arrest if “it is reasonable to believe the vehicle
contains evidence of the offense of arrest.” Id. Importantly, however, the Gant
Court clarified that “[w]hen 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. (emphasis
added). Despite Cobb’s argument to the contrary, the holding in Gant limiting
searches incident to arrest does not apply here. Gant exempted from its
holding searches covered by other exceptions to the warrant requirement. The
Commonwealth never argued that it met the Gant exceptions. As such, our
analysis turns upon whether another exception to the warrant requirement
applies to the instant case.

2. Inventory Searches are a Well-Defined Exception to the Warrant
Requirement of the Fourth Amendment

The Supreme Court of the United States recognized in Colorado v.
Bertine, 479 U.S. 367, 371 (1987), that inventory searches are a Well-defined
exception to the Fourth Amendment’s Warrant requirement. After Bertine,
courts across the country have recognized that “[V]ehicle inventories are an
exception to the general warrant requirement.” Hunnicutt-Carter v. State, 308

P.3d 847, 851 (Wyo. 2013); Accord United States v. Hockenberry, 730 F.3d 645,

658 (6th Cir. 2013); State v. Gauster, 752 N.W.2d 496, 502 (Minn. 2008);
Commonwealth v. Lagenella, 83 A.3d 94, 102 (Pa. 2013).

An inventory search is a well-defined exception to the general warrant
requirement; therefore, We analyze the lawfulness of the seizure of Cobb’s
vehicle and its subsequent search Within the confines of that exception.

a. A Lawful Inventory Search Requires a Reasonable Seizure

Since the need for an inventory search arises only after police seize a
Vehicle without a warrant, the lawfulness of that inventory search turns first
upon the reasonableness of the seizure. Commonwealth v. Campbell, 59 N.E.Sd
394, 398 (Mass. 2016) (“Reasonableness” is the “touchstone” when determining
the propriety of a warrantless seizure.); Gauster, 752 N.W.2d at 502. Noting
that the Fourth Amendment only prohibits unreasonable searches and
seizures, the Supreme Court of the United States stated that when determining
the lawfulness of a seizure, “[t]he relevant test is . . . the reasonableness of the
seizure under all of the circumstances The test of reasonableness cannot be
fixed by Per se Rules; each case must be decided on its own facts.” South
Dakota v. Opperrnan, 428 U.S. 364, 373 (1976) (citing Coolidge v. New
Hampshire, 402 U.S. 443, 509-510 (1971); see also Cooper v. Califomia, 386
U.S., 58, 59 (1967) (“Whether a search and seizure is unreasonable within the
meaning of the Fourth Amendment depends upon the facts and circumstances
of each case . . . .”). Therefore, we must look to the facts of this case
concerning what information Officer Smith knew When he seized Cobb’s

vehicle,

At the time of the seizure, Officer Smith: 1) observed Cobb operating a
vehicle on a public roadway after previously arresting him for driving on a
suspended license; 2) attempted to confirm his identity by asking for his name;
3) observed Cobb park his vehicle in a different driveway from the residence he
entered; 4) verified that Cobb lied by providing a false name; 5) confirmed that
Cobb’s license remained suspended; 6) was told by the caretaker of the elderly
man who owned the property that Cobb parked his vehicle on private property
without permission; and 7) arrested Cobb for operating a vehicle on a
suspended license,

n In Opperman, 428 U.S. at 373, the Supreme Court upheld an inventory
search after police seized and impounded a vehicle with multiple parking
violations that was unlawfully parked in a parking spot on the side of a public
street. Here, according to the record on appeal, courts in Fulton and Graves
County entered a combined total of six guilty judgments against Cobb for
driving on a suspended license, while a seventh charge remained pending at
the time of this incident. We are unclear whether Officer Smith knew of all
seven times police charged Cobb with driving on a suspended license.
However, per Officer Smith’s testimony at the suppression hearing, he knew of
at least one instance: he assisted in a prior arrest of Cobb for driving on a
suspended license,

In United States v. Petty, 367 F.3d 1009, 1012 (8th Cir. 2004), the United
States Court of Appeals for the Eighth Circuit stated that “[p]olice may take

protective custody of a Vehicle when they have arrested its occupants, even if it

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is lawfully parked and poses no public safety hazard.” (Internal citations and
quotation marks omitted). And in United States 1). Evans, 781 F.3d 433, 437
(8th Cir. 2015), the Eighth Circuit upheld the warrantless seizure and inventory
search of Evans’ vehicle after police arrested him for driving without a valid
license and after parking his vehicle on private property without permission.

As in Evans, Cobb drove Without a valid license and parked his vehicle on
private property without permission. Not only did Cobb commit an offense
against the Commonwealth and violate a court order by driving on a suspended
license, Cobb also trespassed upon the private property of an elderly man. And
once police arrested Cobb, his vehicle would have been left illegally blocking
the elderly man’s driveway had it not been impounded.

Once Officer Smith diligently ascertained the totality of the situation, he
arrested Cobb and seized Cobb’s car. Officer Smith followed his Department’s
policy by conducting an inventory search before towing Cobb’s vehicle. We see
no indication that Officer Smith arrested Cobb and then seized his vehicle in
order to search it for evidence of an additional crime Without obtaining a
warrant. Likewise, we see no difference between seizing the vehicle of one who
received multiple parking violations, as in Opperrnan, and seizing the Vehicle
driven by Cobb who habitually violated the law by operating a vehicle on a
suspended license. Nor do we see a distinction between the rationale validating
the seizure of a vehicle unlawfully parked in a parking spot on the side of a
public street, as in Opperman, and seizing a vehicle used to trespass unlawfully

upon private property. In sum, we hold that under these circumstances, police

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acted reasonably in seizing Cobb’s vehicle and performing the subsequent
inventory search of its contents.

b. The Scope of the Inventory Search Was Reasonable

Cobb contends that the seizure and search in question violate principles
outlined in Bertine, 479 U.S. 367, and Florida v. Wells, 495 U.S. 1 (1990). In
Bertine, when conducting the inventory search of the impounded vehicle, “[t]he
officer opened a closed backpack in which he found controlled substances,
cocaine paraphernalia, and a large amount of cash.” Bertine, 479 U.S. at 369.
The Supreme Court’s analysis primarily focused on the standardized criteria
necessary in the conduct of the inventory search, specifically whether the
Officer improperly opened and searched the backpack. The Court upheld the
search of the backpack and went on to uphold the discretion given to the
officer in deciding to impound rather than lock and park the vehicle.

In Wells, the Supreme Court invalidated part of an inventory search in
Which the Florida Highway Patrol opened a locked suitcase found in the trunk
of an impounded car. T he locked suitcase contained a large quantity of
marijuana. Because the Florida Highway Patrol lacked a policy with respect to
opening closed containers in the course of an inventory search, the Court
affirmed the suppression of the evidence of the marijuana found in the
suitcase.

Contrary to Cobb’s assertion, these two cases concern the necessity that
police abide by standard criteria while conducting an inventory search, In fact,

the Supreme Court’s holding in Bertine specifically references inventory

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procedures, “[w]e conclude that here, as in [Illinois v.] Lafayette, [462 U.S. 640,
648 (1983),] reasonable police regulations relating to inventory procedures
administered in good faith satisfy the Fourth Amendment, even though courts
might as a matter of hindsight be able to devise equally reasonable rules
requiring a different procedure.” Bertine, 479 U.S. at 374 (emphasis added).

In Wells, 495 U.S. at 4, the Supreme Court stated, “[o]ur view that
standardized criteria, or established routine, must regulate the opening of
containers found during inventory searches is based on the principle that an
inventory search must not be a ruse for a general rummaging in order to
discover incriminating evidence.” (Internal citations and quotation marks
omitted) (emphasis added). The Court reasoned, that “[t]he policy or practice
governing inventory searches should be designed to produce an inventory. The
individual police officer must not be allowed so much latitude that inventory
searches are turned into a purposeful and general means of discovering
evidence of crime[.]” Id. (emphasis added).

Here; when police found the loaded handgun during the inventory
search, they merely opened the center console_a factory installed component
of the vehicle-a routine practice when inventorying the contents of a vehicle.
In fact, it would be impossible for police to complete an inventory search of the
vehicle without opening a compartment in the center of the car. Therefore, we

conclude that police acted reasonably in conducting the inventory search.

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C. Section 10 of the Kentucky Constitution Provides No Greater
Protection than the Federal Fourth Amendment in the Context of
Warrantless Searches

Cobb argued to the Court of Appeals_and argues now-that Section 10
of the Kentucky Constitution provides greater protection than the Fourth
Amendment of the federal Constitution. Cobb contends that this Court’s
holding limiting the circumstances in which a vehicle may be impounded
outlined in Wagner v. Commonwealth, 581 S.W.2d 352, 356 (Ky. 1979),
overruled by Estep v. Commonwealth, 663 S.W.2d 213 (Ky. 1983), governs the
outcome of this case. However, in LaFollette v. Commonwealth, 915 S.W.2d
747 , 748 (Ky. 1996), after noting the similarities in language between the state
and federal provisions in the context of warrantless searches, we held that
“Section 10 of the Kentucky Constitution provides no greater protection than
does the federal Fourth Amendment.” For more than two decades, this Court
has rendered opinions affirming this principle of Kentucky constitutional law,
and we see no reason to address Cobb’s argument further.

To the extent not previously made clear over twenty years of our case law
from LaFollette to Chavies, 354 S.W.3d at 107, to our recent holding in
Commonwealth v. Cox, 491 S.W.3d 167, 170, fn. 2 (Ky. 2015) (“The Kentucky
Constitution on this subject mirrors its federal counterpart and is considered
co-extensive to the Fourth Amendment.”), we expressly overrule the holding in
Wagner, 581 S.W.2d at 356, that Within the context of warrantless searches,

Section 10 of the Constitution of this Commonwealth provides greater

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protection than the Fourth Amendment of the Constitution of the United

States.

III. CONCLUSION

For the foregoing reasons, we affirm the judgment of the Court of
Appeals.

All sitting. All concur.

COUNSEL FOR APPELLANT:
SUSAN JACKSON BALLIET
Assistant Public Advocate
COUNSEL FOR APPELLEE:

ANDY BESHEAR
Attorney General Of Kentucky

JULIE SCOTT JERNIGAN
Assistant Attorney General

WILLIAM ROBERT LONG, JR.
Assistant Attorney General

JASON BRADLEY MOORE
Assistant Attorney General

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