                                             RENDERED: FEBRUARY 16, 2017
                                                        TO BE PUBLISHED

              ~uprtmt Qlnurf nf Ifttnfurk11
                              2016-SC-000063-DG


CLARENCE L. COBB                                                     APPELLANT


                   ON REVIEW FROM COURT OF APPEALS
V.                    CASE NO. 2014-CA-000419-MR
                  GRAVES CIRCUIT COURT NO. 13-CR-00119


COMMONWEALTH OF KENTUCKY                                               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,


                                        2
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.
                                          3
      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.




                                         4
      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. m (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 Arizona 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




                                       5
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,



                                         6
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.3d

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. Opperman, 428 U.S. 364, 373 (1976) (citing Coolidge v. New

Hampshire, 402 U.S. 443, 509-510 (1971); see also Cooper v. California, 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.


                                         7
      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.

      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

                                         8
is lawfully parked and poses no public safety hazard." (Internal citations and

quotation marks omitted). And in United States v. 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 Opperman, 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

                                        9
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. The locked suitcase c~ntained 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


                                       10
procedures, "[w]e conclude that here, as in [Rlinois 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.




                                        11
   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

7 4 7, 7 48 (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




                                        12
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 SCOTI JERNIGAN
Assistant Attorney General

WILLIAM ROBERT LONG, JR.
Assistant Attorney General

JASON BRADLEY MOORE
Assistant Attorney General




                                        13
