author: Justice NOBLE.

text:
    Norman GRAHAM, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2009-SC-000069-MR.
    Supreme Court of Kentucky.
    Aug. 26, 2010.
    As Modified Sept. 10, 2010.

      Fred Greene, Russellville, KY, Counsel for Appellant.
    Jack Conway, Attorney General, Christian Kenneth Ray Miller, Assistant Attorney General, Office of Attorney General, Office of Criminal Appeals, Frankfort, KY, Counsel for Appellee.
   Opinion of the Court by

Justice NOBLE.

A Todd County jury convicted Appellant Norman Graham of murder and first-degree rape. He seeks reversal of his convictions on four grounds: the lack of a Daubert hearing on DNA evidence; juror misconduct; prosecutorial misconduct; and undue delay in his prosecution. Finding no error, this Court affirms the Todd Circuit Court.

I. Background

The victim in this case, Kay Williams, was raped and murdered 30 years ago on June 30, 1980. In the months before the rape and murder, Appellant had begun an intimate relationship with Williams. He met her at the Tiny Town truck stop, where she waitressed. The pair started dating and she would stay most nights at Appellant’s trailer.

Appellant spent the day before Williams’s death with her. They woke up that morning in Appellant’s trailer. According to Appellant, they had sexual relations before going to Williams’s grandmother’s house for lunch with her family. What occurred after this point is disputed.

Appellant testified they immediately returned to his trailer where Williams proceeded to take a nap. He maintained that he left the trailer while she napped and that he never saw her alive again.

On the other hand, Regina Alexander, Kay Williams’s sister, testified that, after lunch at the grandmother’s house, she and Williams both drove from their grandmother’s house to their parents’ house, where both she and Williams lived. She testified that once there, Williams informed her that Williams and Appellant were having problems and their relationship would probably soon end. According to Regina, Kay Williams then drove their mother to the home of another sister, Judy Stokley, who happened to live next to Appellant’s trailer. Stokley also testified that Williams dropped their mother off there and that it was the final time she saw Williams alive.

Appellant admitted that after he and Williams both returned to the trailer, he left again that evening to meet his ex-wife at the Red Carpet Inn. He further admitted that his ex-wife wore a strong perfume that day. The Commonwealth used that admission in closing argument as an explanation for a theorized fight breaking out between Appellant and Williams when he returned to the trailer, ultimately consummating in rape and murder. Appellant, however, denied having returned home that night.

The next day, June 30, after being alerted by Appellant, police found Williams naked and dead in Appellant’s bed inside his trailer. Her hands and feet were bound together, her jumpsuit had been cut off, and she had been stabbed 25 times in the chest. Investigators also discovered sperm inside her vagina and on her jumpsuit. However, the examiner who performed the autopsy explained that, at the time, “no doctor in the world [could] tell you what male produced these sperm. We’re not that scientific yet.”

Soon thereafter, in 1981, the Commonwealth prosecuted Appellant for the murder, but the trial resulted in mistrial from a hung jury. Perhaps because of weaknesses in its case, particularly, the lack of physical evidence connecting Appellant to the crime, the Commonwealth chose not to retry Appellant at that time. Thus, the Commonwealth had the indictment dismissed without prejudice and the case was closed.

In 2003, the sperm found on Williams was reexamined using modern DNA testing. It turned out to match Appellant’s DNA to a statistical probability of 1 in 506 trillion. After excluding other suspects through DNA analysis, the Commonwealth sought to reindict Appellant, this time for both rape and murder. At the new trial in Todd Circuit Court, the Commonwealth presented the DNA evidence that the sperm found on Williams’s person derived from Appellant. The jury convicted Appellant of both first-degree rape and murder. On December 30, 2008, the trial court entered a final judgment of conviction and, following the jury’s recommendation, sentenced Appellant to 40 years on each count, to run concurrently.

Sometime after trial, Appellant became aware of circumstances giving rise to a possible claim of jury misconduct. He first raised this claim on March 3, 2009, in a motion for a new trial presented to the circuit court. After conducting an extensive evidentiary hearing on the alleged juror misconduct, the trial court denied the motion for a new trial on April 30. Appellant now contests this ruling, as well as the other issues discussed herein, as a matter of right. Ky. Const. § 110(2)(b).

II. Analysis

Appellant contests his convictions on four grounds. He first cites the trial court’s failure to conduct a Daubert hearing on the DNA analysis as grounds for reversal. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Second and third, Appellant claims juror and prosecu-torial misconduct. Finally, Appellant urges that the nearly 28 year lapse between the crime and his conviction violates his due process protection against undue delay in prosecution.

A. Daubert Hearing

Prior to trial, Appellant asked for a Daubert hearing to determine the validity of the DNA analysis. The Commonwealth countered that a Daubert hearing is unnecessary for DNA analysis and that the court should instead take judicial notice of its reliability. The court found that DNA analysis is indeed reliable and, therefore, declined to conduct a Daubert hearing.

The method used to analyze Appellant’s DNA is called Polymerase Chain Reaction (“PCR”) analysis. As this Court noted over ten years ago, “DNA analysis using the PCR method has ... been recognized as valid and scientifically reliable.” Fugate v. Commonwealth, 993 S.W.2d 931, 936 (Ky.1999). “It is clear that the PCR method of DNA analysis has been subjected to extensive peer review.” Id. Due to scholarly review and acceptance, the Court held in Fugate that in that trial and in future cases, “DNA comparison analysis using the ... PCR method [ ] is admissible without being the subject of a pretrial Daubert hearing.” Id. at 937-38. Thus, the trial court properly declined a Daubert hearing, instead allowing Appellant to try to undermine the credibility of the DNA evidence at trial. See id. at 938. (“The opposing party could question the handling of the samples, the chain of custody, the accuracy of the procedures, the quality of training of the particular person or persons who conducted the actual tests and whatever other challenge could be made to the credibility of the evidence.”).

In fact, Appellant’s primary allegation of fault with the DNA evidence related not to the method of analyzing the DNA, but instead to the source of the DNA. Essentially, Appellant questioned the authenticity of the DNA alleged to have been found on Williams’s body due to the length of time between the discovery of the body and trial. Of course, the opportunity for the Commonwealth to authenticate the DNA occurs not at a Daubert hearing, but at trial, where the chain of custody is proven before the evidence is introduced. The Commonwealth was indeed able to authenticate the DNA at trial and it subsequently was appropriately admitted into evidence.

B. Juror Misconduct

Evidence of possible juror misconduct only came to light through information provided by certain individuals after the entry of final judgment and after Appellant’s initial notice of appeal. The issue was, therefore, not raised at trial, but instead for the first time in a motion for a new trial. When that motion was denied, Appellant filed a supplemental notice of appeal, addressing the juror misconduct issue to this Court.

The Commonwealth urges that this issue is not properly before the Court because the supplemental notice of appeal— raising the juror misconduct issue — -was never consolidated with Appellant’s initial appeal. The initial notice of appeal applied to the original judgment of conviction and sentence. The supplemental notice of appeal applied to the order denying a new trial due to newly discovered evidence. However, it would waste judicial resources for this Court to resolve these two matters separately. As the Commonwealth concedes, this Court has the power to join them sua sponte into a single appeal and hereby does so.

Turning to the merits of the juror misconduct issue, two types of problems arise, both concerning the juror Charles Nabb: (1) Nabb’s relationship with the victim and her family and (2) Nabb’s interactions with the family and another juror during trial.

1. Relationship with the Family

Prior to trial, counsel for both sides engaged in individual voir dire with Nabb, just as with other jurors. In that conversation, Nabb was asked whether he “kn[ew] the [victim’s] family.” Nabb simply responded, “No.” '

In the months after trial, Teddy Robertson contacted Appellant’s counsel and disclosed information about Nabb’s past relationship with the victim and her family, suggesting possible bias. Robertson is the only person to have come forward describing any such relationship. Robertson described at a post-trial hearing how he himself was very close with the victim’s family and would spend significant amounts of time at their house. Robertson also claims to have worked for Nabb for approximately twenty years and that every other day, Nabb would pick him up from the victim’s family’s home. According to Robertson, when Nabb came by to pick Robertson up, he would frequently converse with the victim’s mother, but Robertson never heard what they were talking about.

Robertson further testified that Nabb “may” have dated Kay Williams, but he failed to provide any substantial basis for this possibility. Robertson suggested that they may have dated because they knew each other, but when asked how they knew each other, he simply responded that everyone in their hometown of Guthrie knew one another. To that extent, Robertson further acknowledged that the relationship between Nabb and the victim and her family was not necessarily one of friendship, but more one of acquaintanceship.

Robertson’s testimony is not without some bias itself. He admitted that his ex-wife, Lisa Potter, with whom he remains in contact, and Appellant are life-long friends and she has long professed his innocence. In fact, Robertson admitted that his decision to provide information about Nabb was directed by Potter.

Robertson’s testimony was also called into question by its contradiction from others. Nabb himself died shortly after trial; however, the Commonwealth questioned Donna Nabb, Charles Nabb’s ex-wife, about the juror’s relationship with the victim’s family. She could not recall her ex-husband having had any relationship with the victim’s family and firmly denied that either he or she knew the victim herself at all. Donna Nabb further stated that neither Robertson nor anyone else ever worked for her husband. Regina Alexander, Kay Williams’s sister, also testified that neither she nor her mother ever had a social relationship with Charles Nabb.

Based on this post-trial testimony, Judge Harris made the following finding:

The Court finds that contrary to his answer given during individual voire dire examination, juror Charles Nabb had some degree of acquaintance with the family of Virginia Meriwether (the mother of victim Kay Williams) but that the relationship was casual and not close enough to be considered more than acquaintance, as opposed to friendship.

“ ‘[T]he trial judge is in the best position to determine the nature of alleged juror misconduct and the appropriate remedies for any demonstrated misconduct.’ ” Ratliff v. Commonwealth, 194 S.W.3d 258 (Ky.2006) (quoting United States v. Sherrill, 388 F.3d 535, 537 (6th Cir.2004)). A trial judge’s factual findings are reviewed only for clear error. Miller v. Eldridge, 146 S.W.3d 909, 915 (Ky.2004). The trial court’s determination that Nabb and Kay Williams’s family were casual acquaintances, but not friends, was not clearly erroneous.

The question then becomes whether Nabb’s casual acquaintance with the family is grounds for a new trial. This Court has established a three-pronged test to determine whether a new trial should be granted in this type of situation. “First, a material question must have been asked. Second, the juror must have answered the question dishonestly. And finally, the truthful answer to the material question would have subjected the juror to being stricken for cause.” Taylor v. Commonwealth, 175 S.W.3d 68, 74-75 (Ky.2005). Thus, if Nabb answered a material question untruthfully, where a truthful answer would have had led to him being struck for cause, a new trial must be granted.

As to the first prong, there is no doubt that the question asked of Nabb — “Do you know the family?” — was material. Whether Nabb knew the family members and, more importantly, had a substantial relationship with them, directly implicated his bias in the case. Any question implicating a juror’s bias in such a manner must be considered material. Cf. id. at 75 (“A question about whether a potential juror believes she can consider the full range of penalties upon a conviction for murder is about as material as they come.”).

Turning to the second prong, Nabb’s response to the question was found to be false. According to Judge Harris, “contrary to his answer” that he did not know the family, “Nabb had some degree of acquaintance with the family.” (Emphasis added.) This does not necessarily mean that Nabb was dishonest, however. A juror answering contrary to the truth does not inherently equate to dishonesty; the juror could simply be mistaken. In this case, it is possible that Nabb honestly believed that he did not “know” the family. To “know” someone can have many different meanings and to “know” someone in a small town such as Guthrie may mean something different than in a larger city.

This is not to say that Nabb was being forthright in voir dire. It is possible that Nabb was indeed trying to conceal his relationship with the family in order to hide any possible bias, but it is not this Court’s role to make such a factual deter-initiation. It should be noted that any uncertainty as to Nabb’s relationship with the family, or at least how Nabb described the relationship, could have been clarified by more specific and concrete questioning during voir dire, e.g., “Have you ever met the victim or her family?” or “Have you ever conversed with them?”

Even if Nabb’s response were found to be dishonest, Appellant has failed to meet the third prong of the test by proving that a “truthful” response would have led to Nabb being struck for cause. As the trial court found, and as the testimony from the post-trial hearing supports, Nabb was merely a casual acquaintance with the family, not a friend. “[A] casual acquaintance [is] not the close relationship needed to imply bias on the part of the juror.” Sanders v. Commonwealth, 89 S.W.3d 380, 388 (Ky.2002); see also Flatten v. Quarterman, 570 F.3d 595, 602 (5th Cir.2009) (“Texas law requires more than the existence of a casual acquaintance with the victim of a crime or the victim’s family to make a prospective juror subject to challenge for cause. The result is no different under the federal due process standard.”). This is particularly so when whatever relationship the juror was said to have had with the family was “remote in time” to the trial. Marsillett v. State, 495 N.E.2d 699, 707 (Ind.1986).

Absent any determination by the trial judge that the casual acquaintance led to any bias, a new trial should not be ordered. This Court has repeatedly held that being a distant relative to the victim does not inherently impute bias. See Ward v. Commonwealth, 695 S.W.2d 404, 407 (Ky.1985) (no reversal where one juror was ex-brother-in-law and another a distant cousin); Cox v. Commonwealth, 255 Ky. 391, 392, 74 S.W.2d 346, 347 (1934) (no reversal where “one juror is shown to be a second cousin of the wife of a brother of the deceased, and his wife’s uncle married a niece of the deceased”). “It is within the discretion of the trial judge to determine whether or not there is any chance of prejudice resulting from a remote blood relationship between a juror and a victim.” Commonwealth v. Carter, 444 Pa. 405, 282 A.2d 375, 377 (1971). “Obviously, the same standard should be applied where the juror is only a casual acquaintance of a relative of the victim.” Id. at 377-78. While the trial court did not explicitly rule that the relationship was too slight to impute bias, he implicitly did so by denying Appellant a new trial. See Montoya v. Scott, 65 F.3d 405, 419 n. 29 (5th Cir.1995) (“implicit finding of impartiality in [trial court’s] denial of the petitioner’s challenge for cause”). Based on the trial court’s finding that Nabb and the family were merely casual acquaintances and that no actual bias stemmed from that familiarity, it was not required to strike Nabb for cause. Thus, a new trial is not mandated on these grounds.

2. Juror Inter actirms During Trial

Appellant also complains that Nabb’s interactions with the victim’s family and another juror during trial require the verdict to be set aside.

a. Interaction with Family

Teddy Robertson, Lisa Potter, and Caleb Stewart all testified post-trial that they witnessed Nabb interacting with the victim’s family on breaks during the first day of trial. Potter was the only one of the three who could identify the family members; according to her, Nabb spoke with Regina Alexander, Judy Blick, Roxanne Murvine, and Amy Whitaker. None of the witnesses overheard anything that was said.

Regina Alexander, one of the family members alleged by Potter to have conversed with Nabb, testified to the contrary, denying having talked to any of the jurors. Sabrina Sawyers, Kay Williams’s daughter, who was also at the trial, could not recall either herself or Regina talking to Nabb either.

As to these allegations, the trial court made the following findings:

The Court finds that during the October 13-17, 2008 trial, both before and after he was sworn as a juror in the case, Charles Nabb had some conversation and contact with members of Kay Williams’s family in the environs of the courthouse. However, there is no evidence that juror Nabb discussed the pending case with those family members.

These findings are consistent with the testimony at the post-conviction hearing and therefore are not clearly erroneous.

Nabb’s brief conversation and contact with family members was unquestionably inappropriate. Witnesses are barred by statute from !‘convers[ing] with the jury or any member thereof upon any subject after they have been sworn.” KRS 29A.310(2).

The family members who were witnesses at trial and conversed with Nabb were in direct violation of the law. Nonetheless, “[a] mistrial is not warranted if the conversation between the witness and the juror was ‘innocent’ and matters of substance were not involved.” Talbott v. Commonwealth, 968 S.W.2d 76, 86 (Ky.1998); Owings v. Webb’s Ex’r, 304 Ky. 748, 752, 202 S.W.2d 410 (1947). “The true test is whether the misconduct has prejudiced the defendant to the extent that he has not received a fair trial.” Talbott, 968 S.W.2d at 86 (citing Byrd v. Commonwealth, 825 S.W.2d 272, 275 (Ky.1992)).

In previous cases concerning conversations between jurors and witnesses, Kentucky courts have been able to draw a bright line between conversations about the case and conversations about unrelated matters. The former prejudice the defendant, whereas the latter are harmless. Compare Doyle v. Marymount Hospital, 762 S.W.2d 813 (Ky.App.1988), with Talbott, 968 S.W.2d at 86, and Jones v. Commonwealth, 662 S.W.2d 483, 484 (Ky.App.1983). But what happens when no one testifies to what the conversation was about? There is no way to determine or even to conjecture about the effect of the error, particularly, whether it was prejudicial or not.

Kentucky’s harmless error rule provides as follows:

No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order, or in anything done or omitted by the court or by any of the parties, is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order unless it appears to the court that the denial of such relief would be inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding that does not affect the substantial rights of the parties.

RCr 9.24. The list of errors subject to the rule are evidentiary errors, ruling errors, errors by the court, and errors committed by one of the parties. RCr 9.24. Notably absent from this list is error committed by a juror or witness, as occurred here. Nonetheless, without any other guidance or a binding rule on how such “juror errors” or “witness errors” should be treated, this Court will utilize the same rule provided for most other errors. It makes particular sense that an error in something done by a witness should be subject to the same harmlessness test as an error committed by a party. For a juror to converse with a witness cannot be any worse than conversing with a party; such an error committed by a witness is at least as likely to be harmless.

The rule generally states that an error is not ground for a new trial “unless it appears to the court that the denial of such relief would be inconsistent with substantial justice.” Id. (emphasis added). To order a new trial, the court must affirmatively find substantial injustice apparent. The default approach of the rule is against reversal, thus placing the burden on the party — in this case, Appellant — claiming the error. Absent such a showing, a reviewing court has no reason, other than raw speculation, to think that error had a “substantial influence” on the judgment; nor is it likely that the court would be “left in grave doubt” about such influence. The lower court did not find the conversation to have caused substantial injustice to Appellant, nor should it have. Without any record of the brief conversation between Nabb and the family members, Appellant cannot meet his burden.

b. Interaction with another Juror

The only testimony regarding Nabb’s conversation with another juror comes from Calvin Jones. Jones testified that during the final day of trial, he observed Nabb conversing with another juror during a break. At the post-trial hearing, he reported the following dialogue between the jurors:

Nabb: They haven’t shown me anything yet new to convince me.
Juror: They haven’t shown me anything either.

From this observation, Jones reasonably inferred the jurors were talking about the case and would rule in Appellant’s favor. No one has confirmed or contradicted Calvin Jones’ observation. The trial court therefore found that Nabb might have in fact been talking to the juror about the case, but even if he was, there was no indication of prejudice against Appellant by either juror.

Jurors are admonished not to discuss an ongoing case with one another (or anyone else). KRS § 29A.310(1). However, even if the jurors violated that admonishment in this instance, their discussion was harmless. If anything, the conversation indicated the jurors were leaning Appellant’s way. The jurors both declared that they had not been convinced, and the party bearing the burden to “convince” was, of course, the Commonwealth. Moreover, Jones, after hearing the conversation, was left with the impression that Appellant would be acquitted. Thus, this Court agrees with the trial court that the conversation was not prejudicial to Appellant.

C. Prosecutorial Misconduct

In closing argument, the Commonwealth articulated its theory of the rape and murder. The theory was that when Appellant returned home at night, he smelled of perfume from having spent time with his ex-wife, thus triggering a fight between himself and Williams. As Williams had already suggested to her sister that she was considering ending the relationship, this was likely a natural point to do so. The Commonwealth argued that she did just that, thus enraging Appellant. Appellant then bound Williams’s legs together, raped her, leaving his semen, and finally murdered her.

Appellant argues that there was no evidence of this dispute occurring and, therefore, it was misconduct for the prosecutor to describe it in closing argument.

We disagree that there was any misconduct in the prosecution’s closing argument. “This Court has repeatedly held that a prosecutor is permitted wide latitude during closing arguments and is entitled to draw reasonable inferences from the evidence.” Commonwealth v. Mitchell, 165 S.W.3d 129, 132 (Ky.2005). It is a reasonable inference to conclude that Williams would have been upset at Appellant smelling of his ex-wife’s perfume. While Appellant denies having returned home that night at all, his semen found on Williams, among other things, creates a possible inference that he did. It was reasonable for the Commonwealth to further argue that this could have resulted in a fight between Williams and Appellant about their relationship, where Appellant ultimately became enraged and raped and killed Williams.

Appellant’s contention that these are not reasonable inferences relies on the false assumption that a reasonable inference can only derive from direct evidence. Because no one testified that a fight between Appellant and Williams actually took place, Appellant argues that the Commonwealth should not have described such a fight in closing. However, just as a jury is free to convict a defendant on circumstantial evidence alone, the prosecution may draw reasonable inferences from circumstantial evidence alone. See Hodges v. Commonwealth, 473 S.W.2d 811, 812 (Ky.1971) (“It is well settled that a conviction may be had upon circumstantial evidence.”). In this case, there was ample circumstantial evidence for the Commonwealth to draw an inference of a fight between Williams and Appellant: that Williams had earlier suggested the relationship was coming to an end; that Appellant left Williams that night to spend time with his ex-wife; that his ex-wife was wearing strong perfume; that Appellant was the first one to “find” Williams dead; and that Williams’s legs had been bound and Appellant’s semen found on her, a circumstance indicating rape. Thus, there was no prosecutorial misconduct in the Commonwealth’s description in closing argument of the fight leading up to the rape and murder.

D. Undue Delay

The rape and murder of Kay Williams took place in 1980. Appellant was first tried for the murder in 1981, but after a mistrial due to a hung jury, the charges were dismissed without prejudice. It was not until 2007 that Appellant was re-charged — this time for rape and murder. Appellant argues that the 26 year gap between the mistrial and reinstating the charges constitutes undue delay.

It is first worth noting that any alleged undue delay in this case does not implicate Appellant’s right to a speedy trial. “Once charges are dismissed, the speedy trial guarantee is no longer applicable because with no charges outstanding, personal liberty is certainly not impaired to the same degree as it is after arrest while charges are pending.” Kirk v. Commonwealth, 6 S.W.3d 823, 826 (Ky.1999). “Nevertheless, unjustified and prejudicial preindictment delay may constitute a violation of due process and require dismissal.” Id. However, “[prejudice alone will not suffice,” id.; rather, “dismissal is required only where there is both substantial prejudice and an intentional delay to gain tactical advantage.” Id.

Whether or not Appellant was prejudiced by this delay in prosecution, it was justified and, therefore, did not violate due process. Retrial, after the long delay, was very much justified in this case by the advance in science — namely, DNA analysis — since the time of the crime and first trial. The Commonwealth did not recharge after the first trial because it had no new evidence. Thus, it was quite possible that a second trial would share the same outcome as the first — a hung jury. Only when DNA analysis was later developed, and eventually performed on the semen found in this case, did the Commonwealth obtain the evidence it needed to justify trying the case again. This evidence not only confirmed that Appellant had had sexual relations with the victim, but also demonstrated that no other person’s semen was found on the victim after the rape.

Such delay is not a violation of due process. On the contrary, it is a commendable exercise in restraint by the prosecution to wait for sufficient evidence to re-charge. “Penalizing prosecutors who defer action for these reasons would subordinate the goal of ‘orderly expedition’ to that of ‘mere speed.’ ” United States v. Lovasco, 481 U.S. 788, 795, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977); see also id. (“Rather than deviating from elementary standards of Tair play and decency,’ a prosecutor abides by them if he refuses to seek indictments until he is completely satisfied that he should prosecute and will be able promptly to establish guilt beyond a reasonable doubt.”). Though no published opinion in Kentucky has addressed developments in DNA analysis as a justification for delaying indictment, in Walker v. Commonwealth, No. 2006-SC-000480-MR, 2007 WL 2404508 (Ky. Aug.23, 2007) (unpublished opinion), this Court established that such developments are in fact a legitimate justification.

While Appellant is correct that obtaining a tactical advantage is not a justification for delaying prosecution, Kirk, 6 S.W.3d at 826, that is not what occurred in this case. New evidence is not a tactical advantage. In Lovasco, the U.S. Supreme Court held that “investigative delay is fundamentally unlike delay undertaken by the Government solely ‘to gain tactical advantage over the accused....’” 431 U.S. at 795, 97 S.Ct. 2044, The reason for this distinction is that “investigative delay is not so one-sided” — both sides have an opportunity to investigate. Id. While the wait for scientific advancement is not exactly investigative delay — or is at least a much more passive form of it — it is equally distinguishable from delaying for a tactical advantage. Just as with investigative delay, scientific advancement is not one-sided. The new DNA evidence could just as easily have helped a suspect as have hurt him. If the particular subject of DNA testing in this case — the sperm found on the victim — had belonged to someone other than Appellant, there would likely have been no further prosecution.

Appellant also casts his constitutional critique of the second trial as a double jeopardy concern. However, as even Appellant admits, it is well-recognized that a mistrial by way of hung jury does not bar re-prosecution. Nichols v. Commonwealth, 657 S.W.2d 932, 933 (Ky.1983). “The granting of a mistrial because the jury is unable to agree is a classic example of when a retrial can be had....” Id. Thus, there are no double jeopardy concerns.

III. Conclusion

For the aforementioned reasons, Appellant’s convictions in Todd Circuit Court are affirmed.

All sitting. All concur.


source: Caselaw Access Project

author: Justice ABRAMSON.

license: Public Domain

text:
    Mitchell JACKSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2009-SC-000046-MR.
    Supreme Court of Kentucky.
    Aug. 26, 2010.
    Daniel T. Goyette, Louisville Metro Public Defender, Bruce P. Hackett, Deputy Appellate Defender, Office of the Louisville Metro Public Defender, Louisville, KY, Counsel for Appellant.
    Jack Conway, Attorney General of Kentucky, Gregory C. Fuchs, Assistant Attorney General, Office of Criminal Appeals, Office of the Attorney General, Frankfort, KY, Counsel for Appellee.
   Opinion of the Court by

Justice ABRAMSON.

This case comes to the Supreme Court as a matter-of-right appeal brought by Appellant Mitchell Jackson from an order of the Jefferson Circuit Court revoking his probation and ordering him to serve a twenty-year sentence derived from two separate judgments of conviction. Jackson raises three claims of error concerning his revocation proceeding but the threshold issue before us is whether his appeal is properly before the Supreme Court of Kentucky or whether it should have been brought in the Court of Appeals. The Commonwealth has filed a motion to dismiss or transfer Jackson’s appeal, contending it is not a proper matter-of-right appeal to the Supreme Court pursuant to Section 110(2)(b) of the Kentucky Constitution. Because we conclude that an order revoking probation does not constitute a “judgment of the Circuit Court imposing a sentence” as required by Section 110(2)(b), we grant, by separate order, the Commonwealth’s motion to dismiss but with directions for the Court of Appeals to accept Jackson’s belated appeal.

RELEVANT FACTS

In 2000, the Jefferson County Grand Jury returned two separate indictments, 2000-CR-0667 and 2000-CR-1872, charging Jackson with various offenses. In 2003, Jackson entered a plea agreement and two judgments were entered in accord with that agreement. In 2000-CR-0667, he pled guilty to receiving stolen property, over $300.00 and theft by unlawful taking, over $300.00. He also pled guilty to being a Persistent Felony Offender in the first degree (PFOl). Jackson was sentenced to concurrent five-year terms on the receipt of stolen property and theft offenses, enhanced to ten years by the PFOl. The ten-year sentence was to run consecutively to the sentence imposed in a separate judgment entered the same day in 2000-CR-1372. In 2000-CR-1372, Jackson pled guilty to two counts of first-degree wanton endangerment; fleeing or evading the police; third-degree assault; resisting arrest; third-degree criminal mischief; driving under the influence; reckless driving; and PFOl. Jackson was sentenced to concurrent five-year terms on each of the felony counts, enhanced to ten years by the PFOl, to run consecutively to the ten years imposed in 2000-CR-0667. In both judgments, each entered on September 3, 2003, the sentences were probated for five years on the same terms and conditions.

In 2005, Jackson entered a plea of guilty to additional charges not relevant to the instant appeal. The guilty plea and judgment in that case, however, are relevant inasmuch as Jackson agreed to a tolling of the five-year probationary period imposed by the two 2003 judgments. Specifically, the 2005 judgment, which imposed an eight-year sentence, stated, “Further, the Defendant agreed to toll the statutory five year period on Indictment No. 00CR0667 and 00CR1372, which sentences must run consecutively if revoked with this eight year sentence.” Jackson served two years of the eight-year sentence and was paroled in May of 2007.

On October 19, 2007, the Commonwealth filed a motion to revoke Jackson’s probation and a revocation hearing was held on December 8, 2008. At the hearing’s conclusion, the trial court revoked his probation and ordered him to serve twenty-years imprisonment. He appeals to this Court, but the Commonwealth contends that the appropriate forum for his appeal is the Court of Appeals.

ANALYSIS

This Case is Not Properly Before the Supreme Court Because it is Not an Appeal From a Judgment Imposing a Sentence of Twenty Years or More as Required by Section 110(2)(b) of the Kentucky Constitution

The Commonwealth initially seeks to dismiss this appeal or, alternatively, to transfer the appeal to the Court of Appeals. The Commonwealth asserts this is not an appeal from a “judgment” and, moreover, the twenty-year sentence Jackson was ordered to serve following entry of the revocation order was based on two separate underlying judgments, each imposing a ten-year sentence, rather than a single judgment imposing a sentence of twenty years. We begin with the section of the Kentucky Constitution which outlines our matter-of-right appellate jurisdiction. Ky. Const. § 110(2)(b) provides:

Appeals from a judgment of the Circuit Court imposing a sentence of death or life imprisonment or imprisonment for twenty years or more shall be taken directly to the Supreme Court. In all other cases, criminal and civil, the Supreme Court shall exercise appellate jurisdiction as provided by its rules.

While this Court has appellate jurisdiction of judgments in which a sentence of twenty or more years is imposed, id., other appeals, generally, “shall be taken to the next higher court.” CR 78.01(2). Accordingly, we must first determine whether a probation revocation order constitutes a “judgment ... imposing a sentence ” for purposes of Ky. Const. § 110(2)(b) and, if so, whether the sentence imposed here meets the twenty-year imprisonment threshold given that the sentence was reached by combining two underlying judgments imposing ten years each. Because we conclude a probation revocation order is not a judgment imposing a sentence, we do not reach the second inquiry.

Surprisingly, this Court has never directly addressed whether a revocation order that requires a defendant to serve twenty or more years imprisonment constitutes a judgment imposing such sentence under Ky. Const. § 110(2)(b). Although Justice Keller, in a dissent joined by Justice Graves, in Stallworth v. Commonwealth, 102 S.W.3d 918 (Ky.2003), opined that a revocation order was not a judgment under the aforementioned constitutional provision, the issue was apparently not raised by the parties in that case as it was not addressed in the majority opinion. However, Justice Keller, in his dissenting opinion, explained:

[W]e must avoid tunnel vision as to the “twenty years or more” language because, although ... a judgment of conviction imposing a sentence of twenty (20) years or longer must be appealed to this Court, Shepherd v. Commonwealth, 739 S.W.2d 540 (Ky.1987), our rules do not authorize such an appeal from all orders affecting criminal sentences of “twenty years or more.” Williams v. Venters, 550 S.W.2d 547, 548 (Ky.1977) (“A judgment or order denying a post-conviction motion, however, is not a judgment ‘imposing a sentence.’ Hence an appeal from it is addressable to the Court of Appeals.”).

Id. at 925 (emphasis in original). We agree with Justice Keller’s interpretation of the constitutional provision but note that whether that construction necessarily precluded this Court’s direct review in Stallworth is an issue not presently before us. The unique procedural posture created by the trial court’s errors in that case is decidedly different from the issue in this comparatively simple case. We leave for another day what, if any, special circumstances might give rise to matter-of-right jurisdiction in this Court immediately following probation revocation and proceed to the issue that is before us.

Plainly stated, Ky. Const. § 110(2)(b) lends itself to a straight-forward application, permitting a direct appeal to this Court only from judgments that impose a sentence of twenty years or more, not from probation revocation orders, regardless of the length of the resulting sentence. This conclusion is derived from consideration of some basic sentencing principles. First, even though a defendant may be granted probation, he must first be given an underlying sentence pursuant to KRS 532.030 and RCr 11.02. Commonwealth v. Tiryung, 709 S.W.2d 454 (Ky.1986). In Tiryung, this Court stated, “The statutory scheme requires imposition of a sentence of imprisonment or fíne upon conviction, as appropriate for the offense committed, which must be rendered without unreasonable delay and before sentencing to probation.” Id. at 456. Further KRS 532.040 provides, “A sentence to probation or conditional discharge shall be deemed a tentative one to the extent that it may be altered or revoked in accordance with KRS Chapter 533, but for purposes of appeal shall be deemed to be a final judgment of conviction.’” (emphasis added). Thus, it is the judgment imposing sentence and granting probation rather than the order revoking probation which constitutes a final judgment of conviction for purposes of appeal.

Applying the foregoing principles to the case at bar, it is clear that Jackson was entitled to a matter-of-right appeal (although his unconditional guilty plea precluded appeal on all but a limited number of issues) from the underlying September 3, 2003 judgments and cumulative twenty-year sentence. It is unnecessary to address whether that cumulative sentence, rather than the two individual sentences, was the proper measure for determining whether this Court had initial appellate jurisdiction of Jackson’s matter-of-right appeal from the judgments (had he filed such appeal), because the subject of the current appeal is plainly the probation revocation order, not the underlying judgments. While the revocation order, most certainly, requires Jackson to serve a twenty-year sentence, it was the two underlying judgments of conviction that actually “imposed” his sentence. Thus, the appeal before us is not from a judgment imposing a sentence of twenty years or more as required to invoke our matter-of-right appellate jurisdiction.

Moreover, it is well established that judgments or orders collateral to the judgment of conviction, provided that the death penalty was not imposed, must be appealed to the next higher court even where the judgment of conviction was ap-pealable directly to this Court under Ky. Const. § 110(2)(b). Cardine v. Commonwealth, 102 S.W.3d 927 (Ky.2003) (holding that judgments on RCr 11.42 motions and CR 60.02 motions are appealable to the Court of Appeals in all cases except those imposing death); Williams v. Venters, supra. Although probation revocation results in service of the sentence previously imposed, it is a matter that is entirely collateral to the judgment of conviction. While Ky. Const. § 110(2)(b) ensures that proceedings that lead to convictions resulting in the most significant penalties, i.e., twenty years imprisonment or more, are reviewed as a matter of right by this Commonwealth’s highest Court, the merits of an appeal from an order revoking probation concern a defendant’s alleged violations of the terms or conditions of his probation, matters wholly independent of the proceedings producing the underlying convictions. As such, probation revocation proceedings constitute collateral, post-conviction proceedings. This further confirms our conclusion that probation revocation orders do not constitute judgments “imposing a sentence” as required by Ky. Const. § 110(2)(b). Such orders, absent unusual circumstances not present here, simply cannot provide a basis for a matter-of-right appeal to the Supreme Court.

Accordingly, by separate order, we grant the Commonwealth’s motion to dismiss this appeal and direct the Court of Appeals to accept Jackson’s belated appeal.

All sitting. All concur.

ORDER

The Commonwealth’s motion to dismiss is GRANTED and the Court of Appeals is directed to accept Appellant’s belated appeal.

All sitting. All concur.

      . In Windsor v. Comm., 250 S.W.3d 306 (Ky, 2008) this Court recognized certain issues that may be appealed despite the express waiver of an appeal right in the course of an unconditional guilty plea,


author: Justice CUNNINGHAM.

text:
    Frederick JACKSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2009-SC-000003-MR.
    Supreme Court of Kentucky.
    Aug. 26, 2010.

      Shelly R. Fears, Assistant Public Advocate, Department of Public Advocacy, Frankfort, KY, for Appellant.
    Jack Conway, Attorney General, Jason Bradley Moore, Assistant Attorney General, Office of Criminal Appeals, Attorney General’s Office, Frankfort, KY, for Appel-lee.
   Opinion of the Court by

Justice CUNNINGHAM.

On September 8, 2005, Appellant, Frederick Jackson, was arrested in Future City, Kentucky, after law enforcement officials set up a controlled drug buy with cooperating witness, Kimberly Pace. According to the testimony of Pace, she called Appellant and told him that she wanted to buy approximately $300.00 worth of crack cocaine. Pace, in working with law enforcement, went to the local IGA store and raised the hood of her car, as if she had car trouble. She called Appellant, informing him that she could not come to his location due to car trouble. Appellant then came to the IGA store. Once there, Pace entered Appellant’s vehicle and purchased crack cocaine. At the end of the buy, Pace gave a pre-arranged signal to the police and exited the vehicle. Police officers then approached the car and arrested Appellant. A search incident to arrest revealed 9.4 grams of crack cocaine in Appellant’s pocket, 14 grams of crack cocaine in Appellant’s sock, and $3,878.00 in cash, which included the $300.00 paid by Pace. During the search of Appellant’s vehicle, officers also found two “blunts” containing marijuana on the front passenger-side floor board. A “blunt” is a hollowed-out cigar with marijuana in place of the tobacco.

Appellant waived his right to a jury trial and a bench trial followed. After the presentation of evidence, Appellant was found guilty of first-degree trafficking in a controlled substance, possession of drug paraphernalia, and possession of marijuana. The Commonwealth then introduced evidence showing Appellant had been previously convicted in the McCracken District Court of trafficking in marijuana. The trial court found this evidence sufficient to support the enhancement of the trafficking charge to a second offense, as defined by KRS 218A.010(35). The trial court also found Appellant guilty of being a second-degree persistent felony offender. Appellant was sentenced to twenty-five years in prison, as enhanced by the PFO conviction. He now appeals the final judgment entered as a matter of right. Ky. Const. § 110(2)(b).

Appellant raises the following allegations of error on appeal: (1) the trial court erred in finding Appellant competent to stand trial, and because of Appellant’s alleged incompetence, he could not make a valid waiver of counsel; and (2) the trial court impermissibly used a prior misdemeanor marijuana trafficking offense to enhance the felony cocaine trafficking conviction.

Appellant’s competency

Appellant argues that the trial court erred in finding him competent to stand trial. Specifically, Appellant argues that the competency evaluation and report relied on by the trial court was not current, and that Appellant’s erratic behavior should have caused the trial court to sua sponte order an updated evaluation. We disagree.

A defendant is competent to stand trial if he “has a substantial capacity to comprehend the nature and consequences of the proceedings against him and to participate rationally in his defense.” Alley v. Commonwealth, 160 S.W.3d 736, 739 (Ky.2005) (citing Commonwealth v. Strickland, 375 S.W.2d 701 (Ky.1964)). “A competency determination is based on the preponderance of the evidence standard.” Chapman v. Commonwealth, 265 S.W.3d 156, 174 (Ky.2007). We review a trial court’s finding of competency for clear error and will reverse only if it is not supported by substantial evidence. Id.

In response to a motion filed by Appellant’s trial counsel on March 9, 2007, the trial court ordered a competency evaluation. Appellant was examined by Dr. Stephen Free in July 2007, and his report was submitted in August 2007. Sometime after his evaluation at the Kentucky Correctional Psychiatric Center (KCPC), Appellant was transferred to the custody of the state of Illinois until some point between June 13, 2008 and July 25, 2008. A competency hearing was later set for September 16, 2008.

At the competency hearing, Dr. Free was the sole witness called. Dr. Free testified that he spoke to Appellant about his understanding of the legal process and did not find Appellant suffered from any mental condition which would affect or interfere with his ability to comprehend the nature of the proceedings, or interfere with his ability to rationally participate in his defense. Dr. Free believed that Appellant was competent to stand trial. Further, Dr. Free stated that, assuming Appellant had remained drug-free while incarcerated during the time since the evaluation, he would not expect to see any change in Appellant’s condition, barring some catastrophic event. No medication for any medical or mental condition was given to Appellant at the time of his evaluation, nor did his treatment while at KCPC include any prescribed medication. Dr. Free ultimately reaffirmed his belief that Appellant was competent to stand trial at the time of the competency hearing. As Appellant offered no evidence to rebut the claims of Dr. Free, we conclude that the trial court’s decision was based upon substantial evidence showing that Appellant was competent to stand trial.

Appellant, however, maintains that the trial court should have ordered an updated evaluation of his competency. However, before a trial court may sua sponte order a mental health evaluation of a defendant, “the reasonable grounds must be called to the attention of the trial court by the defendant or must be so obvious that the trial court cannot fail to be aware of them.” Via v. Commonwealth, 522 S.W.2d 848, 849-50 (Ky.1975). Initially, after the competency hearing, there was no suggestion by Appellant’s attorney, the Commonwealth, or the trial court, all of whom were in a position to observe Appellant’s behavior at the hearings and during the trial, that Appellant was unable to consult with his lawyer with a reasonable degree of rational understanding of the nature of the proceedings. Appellant appeared in court for every proceeding and the record demonstrates nothing in Appellant’s demeanor at these proceedings that should have given the trial court reason to doubt his competency. We fail to see how the trial court had “reasonable grounds to believe the defendant [was] incompetent to stand trial” in the period of time between the initial determination of competency and the trial. KRS 504.100(1).

Additionally, Appellant contends that, because of the filing of multiple, unintelligible pro se pleadings which refer to constitutional provisions and statutes with little or no bearing on the issues in dispute, the trial court had reasonable grounds to conduct another competency evaluation. However, this is only one factor among many to consider. See Mills v. Commonwealth, 996 S.W.2d 473, 486 (Ky.1999) (“Evidence of a defendant’s irrational behavior, his demeanor in court, and any prior medical opinion on competence to stand trial are all relevant facts for a court to consider.”). These pleadings, by themselves, are simply insufficient to alert the trial court to question Appellant’s competency. Pro se pleadings are not held to the same standard as those prepared by an attorney. Case v. Commonwealth, 467 S.W.2d 367, 368 (Ky.1971). In addition, Appellant had been observed by this very trial judge for a period of approximately four years, both during the pendency of this ease, as well as a prior proceeding in the McCracken Circuit Court in which Appellant was deemed competent to stand trial. Appellant has pointed to no “circumstances suggesting a change that would render the accused unable to meet the standards of competence to stand trial.” Drope v. Missouri, 420 U.S. 162, 181, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975).

Simply stated, Appellant has failed to meet the burden of demonstrating that he was not competent to stand trial, nor does he offer any evidence to rebut the conclusions by Dr. Free that he was competent to stand trial. “A State may presume that the defendant is competent and require him to shoulder the burden of proving his incompetence by a preponderance of the evidence.” Cooper v. Oklahoma, 517 U.S. 348, 355, 116 S.Ct. 1373, 134 L.Ed.2d 498 (1996) (citing Medina v. California, 505 U.S. 437, 449, 112 S.Ct. 2572, 120 L.Ed.2d 353 (1992)). Accordingly, we find no error in the trial court’s failure to order another competency evaluation.

We, therefore, must also disagree with Appellant’s suggestion that he could not validly waive his right to counsel. “The standard for determining a defendant’s competency to waive counsel is the same standard used to determine if a defendant is competent to stand trial.” Chapman, 265 S.W.3d at 166 (citing Godinez v. Moran, 509 U.S. 389, 399, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993)). As Appellant was competent to stand trial, so, too, was he competent to waive his right to counsel.

Prior misdemeanor marijuana trafficking offense enhancing the felony cocaine trafficking conviction

Lastly, Appellant argues that the trial court impermissibly found his conviction of trafficking in a controlled substance (cocaine) to be a second offense by virtue of his prior misdemeanor conviction of trafficking in a controlled substance (marijuana). Appellant suggests that we reject the reasoning of Commonwealth v. Churchwell, 938 S.W.2d 586 (Ky.App.1996), and hold that the underlying prior drug trafficking offense must be a felony conviction in order for it to enhance a future conviction as a “second or subsequent offense” under KRS 218A.1412(2).

KRS 218A.010(35) defines a “second or subsequent offense” in pertinent part as follows:

“Second or subsequent offense” means that for the purposes of this chapter an offense is considered as a second or subsequent offense, if, prior to his conviction of the offense, the offender has at any time been convicted under this chapter, or under any statute of the United States, or of any state relating to substances classified as controlled substances or counterfeit substances, except that a prior conviction for a nontraffick-ing offense shall be treated as a prior offense only when the subsequent offense is a nontrafficking offense. For the purposes of this section, a conviction voided under KRS 218A.275 or 218A.276 shall not constitute a conviction under this chapter[.]

In Churchwell, the Court of Appeals stated the following:

KRS 218A.1421(2)(b) permits a felony conviction on a marijuana trafficking charge if it is a “second or subsequent offense.” Despite [Appellant’s] argument to the contrary the language of [KRS 218A.010(35) ], which defines a “second or subsequent offense” as being one which occurs after any prior conviction under KRS Chapter 218 or any other state or federal law, clearly does not require the underlying prior drug trafficking conviction to be a conviction for trafficking in marijuana in order for it to be relied upon to enhance a subsequent conviction pursuant to KRS 218A.1421(2).

Id. at 587.

The same holds true for a conviction under KRS 218A.1412(2) for first-degree trafficking in a controlled substance. By its terms, KRS 218A.010(35) does not require that the underlying prior drug trafficking offense be a felony conviction in order for it to enhance a future conviction as a "second or subsequent offense.” All that section requires is some conviction under Chapter 218 or any other state or federal law, a requirement Appellant’s pri- or misdemeanor conviction clearly satisfies. Appellant’s reasoning would require this Court to add additional language to the statute. This we will not do. See Commonwealth v. Reynolds, 136 S.W.3d 442, 445 (Ky.2004) (“We should not add or subtract from the statute, nor should we interpret the statute to provide an absurd result.”)- Accordingly, we find no error by the trial court.

The judgment of the McCracken Circuit Court is hereby affirmed.

All sitting. All concur.

      . Case No. 03-M-1872.

      . Case No. 04-CR-00306-002.


author: Justice SCOTT.

text:
    COMMONWEALTH of Kentucky, Appellant, v. Nabryan MARSHALL, Appellee.
    No. 2008-SC-000894-DG.
    Supreme Court of Kentucky.
    Aug. 26, 2010.

      Jack Conway, Attorney General of Kentucky, Gregory C. Fuchs, Assistant Attorney General, Office of Attorney General, Office of Criminal Appeals, Frankfort, KY, Counsel for Appellant.
    Linda Roberts Horsman, Assistant Public Advocate, Department of Public Advocacy, Frankfort, KY, Counsel for Appellee.
   Opinion of the Court by

Justice SCOTT.

After entering a conditional guilty plea, Appellee, Nabryan Marshall, was convicted of trafficking in a controlled substance and bail jumping in Fayette Circuit Court on October 15, 2007. Appellee’s plea bargain reserved his right to appeal the trial court’s order overruling his earlier motion to suppress evidence that he alleges was collected in violation of the Fourth Amendment of the United States Constitution and Section Ten of the Kentucky Constitution. On direct appeal, Appellee successfully argued that the search was unconstitutional, and the Kentucky Court of Appeals reversed the trial court’s order. The Commonwealth, Appellant, then petitioned this Court for discretionary review, asking us to reverse the Court of Appeals’ determination that (1) a search more invasive than a T&rry frisk was not constitutionally permitted, and (2) the strip search in this case was conducted unreasonably. We granted that petition, and now reverse the Court of Appeals on both issues.

I. Background

On January 2, 2007, Appellee was spotted by Officer Schwartz of the Lexington Metro Police Department. After securing backup, Schwartz decided to engage him, being under the impression that Appellee had an outstanding warrant. As explained below, the officer eventually made contact with Appellee in a nearby apartment unit, where, on location, he conducted a strip search of Appellee’s groin area. That strip search is the seminal event to this appeal. Due to the factually intensive nature of our analysis below, we reserve further recitation of the relevant facts at this juncture.

II. Analysis

A. Terry Frisk and Subsequent Search

We first address the Commonwealth’s contention that the Court of Appeals erred by concluding that a search more invasive than a Terry frisk was not merited in this case.

Both the Fourth Amendment to the United States Constitution and Section Ten of the Kentucky Constitution guarantee “[t]he right of the people to be secure in their person, house, papers and effects, against unreasonable searches and seizures.” Ordinarily, under both Constitutions, a search or seizure may not be had by the government unless a detached magistrate finds probable cause and issues a warrant. Helton v. Commonwealth, 299 S.W.3d 555, 560-61 (Ky.2009). Obtaining that warrant makes the search or seizure constitutionally permissible, absent other defects.

Yet, there are limited exceptions where the government is not required to seek the permission of a detached magistrate before searching or seizing a person. In particular, an officer may arrest an individual without a warrant where he has probable cause to believe that the person has committed a felony. KRS 431.005(l)(c). Additionally, where an arrest warrant has been issued for a suspect, that warrant will provide the arresting officer with all the valid probable cause needed to arrest that individual' — -and the officer will need nothing more. KRS 431.005(l)(a).

Searches are governed in nearly the same fashion as seizures. But, like the rule governing seizures, there are also exceptions, one being a search incident to arrest. United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973). Under this exception, an officer may make a warrantless search of an arrested individual, the justification being the need to disarm the suspect and, equally important, the need to preserve evidence for later use at trial. Robinson, 414 U.S. at 234, 94 S.Ct. 467 (citing Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145 (1925); Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960)).

And, there are circumstances when an officer may make a limited seizure and a limited search without either a warrant or probable cause. In Terry v. Ohio, the United States Supreme Court carved out this exception to the probable cause requirement, permitting brief investigatory stops in circumstances where police officers have a reasonable suspicion that “criminal activity may be afoot.” 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). So long as the officer can articulate facts giving rise to his suspicion of criminal activity, and where his suspicions are reasonable under the circumstances, a brief stop of a suspect is constitutionally condoned. Id. Moreover, once the officer makes a lawful Terry stop, she may then “frisk” that individual where she is of a reasonable belief that the suspect is armed and presently dangerous. Ybarra v. Illinois, 444 U.S. 85, 92-93, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979) (citing Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972)); Terry, 392 U.S. at 21-24, 88 S.Ct. 1868. During these Terry frisks, an officer may seize any contraband he finds, so long as the illegal nature of the contraband is immediately apparent to the plain feel of his hand. Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993).

These brief Terry frisks often mature into full-blown probable-cause-based searches, particularly when an officer, while conducting a pat down, becomes immediately aware of contraband, and does so without manipulation of the object felt, but with the simple plain feeling of his hand. Dickerson, 508 U.S. at 376, 113 S.Ct. 2130. In other words, under the “plain feel” doctrine the object must be immediately identifiable as a weapon or contraband by a simple “pat down” before it may be legally seized. Id. Once recognized as a weapon or contraband, an officer may perform a more invasive search such as entering the pockets of the suspect or even placing his hands down a suspect’s pants, wherever the immediately apparent contraband may be. See Murrell v. Commonwealth, No. 2003-CA-000436-MR, 2004 WL 1175782 (Ky.App. May 28, 2004) (it is constitutional for a police officer to place his hands inside an arrestee’s pants and underwear to retrieve what he knows, upon plain feel and without manipulation, to be contraband). Moreover, once an illegal substance is identified on the suspect, the reasonable suspicion required to detain the suspect ripens into probable cause and an arrest may be made meriting an even further probable-cause-based search of other areas. United States v. Scroggins, 599 F.3d 433, 441 (5th Cir.2010).

However, when a defendant alleges that the government collected evidence from his person in a fashion violative of the above-discussed rules, a suppression hearing is warranted. RCr 9.78. At this hearing, a court must consider whether the warrantless search was conducted in a manner that does not trample the Fourth Amendment. Normally, that inquiry questions the existence of probable cause or reasonable suspicion, whatever the situation necessitates. And where the court determines that an officer conducted the search or seizure without the appropriate level of reasonable suspicion or probable cause, suppression of the discovered, incriminating evidence will be commanded. United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974); See also Young v. Commonwealth, 313 S.W.2d 580 (Ky.1958).

When required, an appellate court in this Commonwealth will review a trial court’s suppression decision pursuant to RCr 9.78, which provides in part that, “[i]f supported by substantial evidence the factual findings of the trial court shall be conclusive.” If upon review of the factual findings under a clearly erroneous standard, we conclude that the trial court’s findings are supported by substantial evidence, we then undertake a de novo review of that court’s application of the law to those facts. Commonwealth v. Pride, 302 S.W.3d 43, 49 (Ky.2010).

With these guiding principles in mind, we turn to the case at bar, and judge the correctness of the Court of Appeals’ determination that the search in this case exceeded that which is permitted by Dickerson, supra, and, further, its determination that any exploration beyond a Terry frisk was improper.

The Commonwealth asserts that the Court of Appeals erred when it determined that Officer Schwartz exceeded his authority to search Appellee’s groin area and posits that the Court of Appeals did not provide the appropriate deference to the trial court’s determination that the officer was immediately aware of the contraband in Appellee’s underwear.

Appellee responds by arguing that a search beyond a Terry frisk was not constitutionally permissible and was illegal under the facts in this case. As a result, Appellee contends that the Court of Appeals was correct in reversing the trial court’s contrary determination.

Having considered the circumstances of the search, the trial court’s findings, and the parties’ arguments, we hold that a search more invasive than a Terry frisk was appropriate in this case and therefore reverse the Court of Appeals’ determination that the search exceeded constitutional limits.

Here, Schwartz testified that: (1) after spotting Appellee in an area known for criminal activity; (2) being informed that Appellee was actively selling narcotics; (3) knowing from prior contact that Appellee was usually armed; and (4) because of his knowledge that there was an “unconfirmed warrant” for Appellee’s arrest, he decided to wait for backup and then “make contact” with Appellee. By the time backup arrived, Schwartz had lost sight of Appel-lee, so the officers then began to search the area.

During their search, the officers encountered a frantic witness who informed them that Appellee was involved in a fracas inside a nearby apartment unit. As the officers approached the complex, Schwartz witnessed two women climbing out of the back window of the suspect apartment unit. The women stated that there was an altercation going on in the apartment and that they wanted to escape the situation. Schwartz and the other officers then proceeded to enter the apartment and could hear the confrontation upon arrival. As they proceeded through the apartment, Schwartz testified that he spotted Appellee toward the back of one of the rooms with his back-side partially turned toward Schwartz and with both hands down the front portion of his pants. All the while, another individual was yelling from inside the apartment “It’s in his crotch — it’s in his crotch!” Schwartz, fearing that he had just witnessed Appellee conceal a weapon in his groin area, placed Appellee in hand cuffs and performed a Terry frisk.

On direct examination, Schwartz testified that while performing the Terry frisk he felt a hard, rock-like substance in Ap-pellee’s groin area, and, based on his five years’ experience as a police officer, determined it “to be possibly crack cocaine.” (emphasis added). In contrast, on cross-examination, Schwartz testified that upon feeling the golf ball sized object he “knew it to be crack cocaine based on all [his] experience with it.” (emphasis added). After hearing Schwartz’s testimony, the trial court found that the officer immediately knew the item was contraband upon contact, that Schwartz did not manipulate the object when making his determination, or that there was insufficient evidence to show that the officer could have mistaken the object for a part of Appellee’s anatomy. The court denied the motion to suppress.

The Court of Appeals reversed the trial court’s order, concentrating on the officer’s testimony that the object could “possibly” be crack cocaine. The Court of Appeals, also influenced by the fact that Schwartz had determined the absence of a weapon on Appellee when he decided to do a more invasive search, found that the object felt could have been numerous items other than contraband. Relying in part on our opinion in Commonwealth v. Jones, 217 S.W.3d 190 (Ky.2006), the Court of Appeals determined that further exploration beyond a Terry pat down was improper. We disagree and therefore reverse the Court of Appeals and reinstate the trial court’s order denying Appellee’s motion to suppress.

Because the parties do not contest whether there existed reasonable suspicion to stop or frisk Appellee in this case, we begin our analysis with the determination of whether a search more invasive than a Terry frisk (a strip search) was permissible.

Strip searches are not always appropriate and as noted above, even when “a person is validly arrested [or validly arrestable, that] does not mean that he is subject to any and all searches that the arresting officer may wish to conduct.” United States v. Mills, 472 F.2d 1231, 1234 (D.C.Cir.1972) (en banc). This rule is specifically applicable to strip searches, as they are extremely invasive and in fact will sometimes be totally improper, repugnant, and illegal. See Stewart v. Lubbock County, 767 F.2d 153, 156-57 (5th Cir.1985) (strip searches conducted without reasonable suspicion that minor offenders had possession of contraband are unreasonable and violate the Fourth Amendment); Taylor v. Commonwealth, 28 Va.App. 638, 507 S.E.2d 661, 663 (1998); see also Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1272 (7th Cir.1983) (strip searches prohibited where minor offenders are not inherently dangerous, are not being committed to a jail population but are merely being briefly detained, and officers have no reason to believe they are hiding weapons or contraband). Searches may not be conducted on the “mere chance that desired evidence might be obtained.” (Schmerber v. California, 384 U.S. 757, 769-70, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966)); see also LaFave & Israel, Criminal Procedure § 3.5(c), at 177 (2d ed.1992) (routine strip searches cannot be “employed against all classes of arres-tees”). But there are situations where strip searches are necessary and particularly so where the officer has probable cause to specifically search such a private area to preserve or prevent the destruction of evidence or to discover a concealed weapon. Such were the facts surrounding our holding in Williams v. Commonwealth, a decision based on events resembling those here. 147 S.W.3d 1 (Ky.2004).

In Williams, the police conducted a strip search of the defendant on location in an apartment bathroom. Id. There, we addressed whether the strip search conducted was supported by probable cause. Id. In answering the question in the affirmative, we found that because the officers had reliable information that the defendant had hidden the contraband between his buttocks, and because the officers were reasonable in believing that the arrestee placed the evidence at risk of being lost, the search was supported by probable cause. Id. at 8.

Here, the officer had more knowledge than what the officers had known in Williams. Schwartz was told that Appel-lee was actively selling drugs and knew from his prior experience that Appellee tended to carry a weapon. With this knowledge, and during his investigation of a fracas that produced three fleeing witnesses (two from a rear window of the same unit housing Appellee) Schwartz faced what one would reasonably believe to be a dangerous situation and suspect. What is more, during this investigation, Schwartz witnessed Appellee place both hands down the front of his trousers while another occupant of the apartment unit was yelling, “it’s in his crotch!”

With this knowledge and while in a precarious environment, Schwartz placed Ap-pellee in handcuffs and conducted a Terry frisk, later testifying that the frisk revealed a hard, rock-like substance he knew to be crack cocaine. It was then that Schwartz decided to conduct a search more invasive than a Terry frisk. In a bedroom with the door partially opened, Schwartz and another officer faced the Appellee toward the wall and pulled down his pants and underwear. The officers then peered between Appellee’s thighs, viewing Appel-lee’s body from his back side. There, the two officers saw a plastic bag containing a white substance dangling from the front of Appellee’s scrotum.

Schwartz had probable cause to conduct a search more invasive than a Terry frisk in this case because he knew what he felt was crack cocaine. By placing the crack cocaine in a location that makes the contraband immediately apparent to the plain feel of an officer’s open hand, Appellee essentially positioned the contraband in what can be analogized as in “plain view” of the officers. We find this. search directly supported by Dickerson and Williams, supra and hold that the reasonable search of an individual should not be held unconstitutional simply because the suspect chooses to hide contraband in a potentially embarrassing location and does so in a manner that makes the contraband immediately apparent to the plain feel of an officer’s open hand.

In as much as the Court of Appeals was influenced by the handcuffing of Appellee and thus considered his inability to make contact with the contraband, we find such a consideration unnecessary. Upon immediately identifying the contraband as crack cocaine, Schwartz’s reasonable suspicion ripened into probable cause and he had the authority to arrest Appel-lee for any number of charges stemming from the possession of the crack cocaine, most of which are felonies. Based upon this probable cause alone, Schwartz was entitled to conduct a probable-cause-based search incident to arrest. And when an officer has probable cause to conduct a warrantless arrest and search, we do not require the officer to make a determination regarding the probability of the arres-tee’s ability to destroy evidence on his person when performing a search incident to that arrest. Collins v. Commonwealth, 574 S.W.2d 296 (Ky.1978) (citations omitted). We hold that as long as the arrestee is searched incident to an arrest, officers may retrieve any evidence or weapon on his person whether or not within his reach. A contrary conclusion would lead to an unsound result as it would prohibit officers from removing evidence that they know to be on an arrestee’s person simply because the arrestee cannot access the evidence due to his being in handcuffs or otherwise restrained. And because the preservation of evidence is as equally important as officer safety, such a rule would further lead to the absurd conclusion that an officer cannot remove a weapon if that arrestee is restrained and unable to access the weapon on his person. We repeat that neither the Constitution of Kentucky nor the Constitution of the United States requires an officer to weigh an arrestee’s probability of success of obtaining a weapon or destructible evidence before searching a suspect incident to an arrest. Id. at 297 (citations omitted).

B. Reasonableness of the Search

Having concluded that a search more invasive than a Terry frisk was indeed supported by probable cause, we now turn to the Court of Appeals’ determination that the strip search conducted in this case so exceeded the bounds of propriety and reasonableness as to be unconstitutional.

The Commonwealth argues that the Court of Appeals should be reversed because the manner in which the strip search was conducted was reasonable under the circumstances. Specifically, the Commonwealth argues that because Appellee was not exposed to any undignified, humiliating, or terrifying touching or trauma, the search was conducted within constitutional bounds.

Appellee counters that the search was unreasonable because the contraband was not immediately apparent after a Terry pat down and thus the officers exceeded their authority by pulling down his pants and underwear. Ultimately, Appellee asks this Court to recognize that because a strip search, regardless how professionally and courteously conducted, is an embarrassing and humiliating experience, the search should have taken place at the police station and not in the apartment where Appellee was arrested. Moreover, Appel-lee argues that by conducting the search in a room with an open door, he was exposed to the apartment’s other occupants, and thus subjected to an unconstitutional search.

There exists no brightline rule to determine how invasive a search may be when conducted without a search warrant, but we again recognize that simply because “a person is validly arrested does not mean that he is subject to any and all searches that the arresting officer may wish to conduct.” Mills, 472 F.2d at 1284. Different circumstances will give rise to different searches and seizures, some searches and seizures being reasonable in one circumstance and not in others; but reasonableness under the circumstances is the cornerstone. Thus, a search may be supported by probable cause, but may be conducted in a manner making it so unreasonable as to require a finding of unconstitutionality. See Schmerber, 384 U.S. 757, 86 S.Ct. 1826 (where the United States Supreme Court first analyzed whether the search was supported by probable cause and then determined whether the search (a blood test) was conducted in a reasonable manner); see also Campbell v. Miller, 499 F.3d 711, 718 (7th Cir.2007) (holding that strip search incident to arrest was not per se unreasonable but holding that search was performed in an unreasonable manner when conducted in view of the public). In any event, we recognize that “[s]trip searches of detainees are constitutionally constrained by due process requirements of reasonableness under the circumstances.” Logan v. Shealy, 660 F.2d 1007, 1013 (4th Cir.1981), cert. denied, 455 U.S. 942, 102 S.Ct. 1435, 71 L.Ed.2d 653, (1982); Taylor, 507 S.E.2d at 663.

1. Bell Factors

To make the determination of reasonableness, we consider the factors recommended by the United States Supreme Court in the case of Bell v. Wolfish, using them to balance the need for the particular search versus the personal rights that the search entails. 441 U.S. 520, 559, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). These factors include: (1) the scope of the particular intrusion; (2) the manner in which the search is conducted; (3) the justification for initiating the search; and (4) the place in which it is conducted. Id.

After considering these factors and the specific circumstances surrounding this search, we conclude that the search was conducted in a reasonable manner.

a. The Scope of the Particular Intrusion

The scope of the search in this ease was broad. It involved the exposure of Appellee’s buttocks and genital area and we agree that “regardless of how professionally, and courteously conducted, it is an embarrassing and humiliating experience by definition.” Hunter v. Auger, 672 F.2d 668, 674 (8th Cir.1982). Outside of a physical examination, chemical examination, or cavity search, this type of search is the most invasive performed. Thus, we find that a more intensive analysis is necessary when searches of this nature are conducted, especially when done in the field. That is not to say, however, that these searches are per se prohibited — no court in this Commonwealth has ever made such a declaration, and we decline to do so today. But we do note that officers should be cautious when performing these types of searches, outside of a sanitary and secure police station. And while this case provides facts sufficient to support the reasonableness of the search conducted, that will not always be the case. Indeed, the police risk the loss of evidence when they subject arrestees to strip searches outside of the police station, and even sometimes when the search is conducted in the station house. See Stewart, 767 F.2d at 156-57 (holding strip searches conducted in the station house without reasonable suspicion that minor offenders had possession of contraband are unreasonable and violate the Fourth Amendment).

Here, as stated above, the officers faced a dangerous situation. With the knowledge that Appellee sometimes carried weapons and that an altercation was taking place, the officers proceeded through the confines of an apartment to investigate. Upon witnessing Appellee place something in his pubic area, and determining it to be contraband after performing a Terry frisk, the officer decided to visually search the external parts of Appellee’s groin and buttocks. The officers did not probe into Appellee’s body cavity and neither did they manipulate any part of his anatomy. The scope of this search was confined to visually inspecting what the officer immediately knew to be contraband.

Thus, after fully weighing the facts surrounding this search, we conclude that its broad nature was necessary and was constitutionally in bounds.

b. The Manner in Which the Search is Conducted

We find that the manner of the search and the appropriateness thereof should be controlled and determined by certain factors considered in Schmerber, 384 U.S. 757, 86 S.Ct. 1826. There, the Court, after determining that probable cause supported the search, considered whether the search was reasonable and: (1) analyzed the type of search and its commonality (there, a blood test routinely used); (2) considered who performed the search (there, medical personnel); (3) weighed risk, pain and trauma to the arrestee (there, all of which were minimal); and (4) considered the skills required to conduct the search (there, medical practices controlled). Id. at 769, 86 S.Ct. 1826. We thus consider these factors in the case at bar to determine whether the manner of the search conducted on Appellee was appropriate.

i. Type of Search Performed, its Commonality, and by Whom

We first consider two of Schmerbe'T s considerations in conglomeration — the type of search performed, its commonality and by whom — -and conclude that they support a finding that the manner of this search was appropriate.

Here, trained officers conducted a search that is commonly performed on arrested individuals who officers already know hide drugs on their person. Strip searches, especially of individuals who have hidden contraband in the manner Ap-pellee did, are necessary to preserve evidence, to prevent infiltration of contraband into detainment centers and, sometimes, for officer’s safety. Thus, we find them appropriate in some cases, particularly so here because the officer became immediately aware upon the plain feel of his hand that Appellee harbored drugs in a peculiar location on his person.

ii. Existence of Risk, Pain, or Trauma

We next consider the existence of risk, pain, or trauma. We first note that physical pain should not be the end of a court’s inquiry, but rather mental pain should be considered as well. Here, while we find an absence of physical pain due to the search being visual in nature, we recognize that the search was probably a embarrassment to Appellee and thus consider his mental pain and its traumatic effects.

We reiterate that a strip search is one of the most invasive and traumatic searches conducted. However, the fact that Appellee was turned, facing away from the “open door” and that no one other than the two officers were in the line of sight leads to the conclusion that the embarrassment was minimized to some degree. Again, we repeat that simply because an individual chooses to hide contraband in an intimate location and does so making it immediately apparent to police, he may not then complain that the officers searched his person in an inappropriate manner absent other aggravating circumstances.

Our consideration of trauma and mental pain is also affected by the fact that the officers did not come into physical contact with Appellee’s genitals or buttocks. As noted by the Court of Appeals, even after seeing the drugs dangling from Appellee’s genital area, the officers demonstrated restraint and common decency by removing the contraband without making physical contact with Appellee’s anatomy. And while we understand that a visual examination is certainly uncomfortable, we posit that physical contact would have been even more upsetting. Thus, we find that the visual inspection, while inherently traumatic, involved minimal trauma and pain to Appellee.

iii. Knowledge Required to Perform the Search

Finally, we turn to the knowledge required to perform this type of search, and conclude that, unlike the medical procedure addressed in Schmerber, a visual strip search of an arrestee does not necessitate specialized training. We believe the only knowledge required to conduct a strip search is supplied by common sense and decency as demonstrated by the officers here when they performed the search within four walls and by excluding everyone but the officers involved.

Here, the officers did not disrobe Appel-lee for public viewing and neither did they conduct the search outside in an open field. And although there is testimony that the door was partially opened, the officer testified that no one else was in the line of sight. The knowledge to do the strip search in private was exhibited by the officers in this case. Thus, we find that the officers possessed an adequate know-how to perform this type of search.

After considering the factors evaluated in Schmerber, we conclude that the search was conducted in an appropriate manner.

c. The Justification for Initiating the Search

Having found that the search was supported by probable cause, we find adequate justification for this search. It goes without saying that had the officer not been made immediately aware of the contraband by the plain feel of his hand during a Terry pat down, and continued to conduct a strip search of Appellee in the field, such conduct would shock the conscience of this Court and would not be tolerated. But we do not have that here.

Here, the search was performed after the officers: recognized that Appellee might be subject to a bench warrant; witnessed him conceal something near his groin; faced a potentially dangerous, ongoing fracas; heard an individual scream “It’s in his crotch!”; knew that he sometimes carried a weapon; and became immediately aware that Appellee was harboring drugs on his person. We find that because of the need for officer and public safety and the need to preserve evidence, there existed ample justification to conduct this search.

d. The Place in Which it is Conducted

Finally, we turn to the last Bell factor and consider the location in which the police conducted the search. Of all the factors considered thus far, we find this factor most troubling, yet ultimately conclude that it was reasonable under the circumstances. See Polk v. Montgomery Co., 782 F.2d 1196, 1201-62 (4th Cir.1986) (whether the strip search was conducted in private is especially relevant in determining whether a strip search is reasonable under the circumstances). We recognize that strip searches are necessary for a plethora of reasons, and we understand that in order to preserve the safety of officers, of the public and of evidence, they must sometimes be employed. But we also take this opportunity, as did the United States Supreme Court, to issue a caveat: these interests “hardly justify disrobing an ar-restee on the street.” Illinois v. Lafayette, 462 U.S. 640, 645, 103 S.Ct. 2605, 77 L.Ed.2d 65 (1983). Indeed some courts have suppressed evidence where police officers, in an attempt to recover evidence, have exposed an arrestee’s most private anatomy to the public. However, most of those cases involved searches conducted outside of four walls. See Amaechi v. West, 237 F.3d 356, 361-62 (4th Cir.2001) (holding a visual strip and visual cavity search unreasonable when done beside a police car); Hill v. Bogans, 735 F.2d 391, 394 (10th Cir.1984) (finding unconstitutional “routine strip searches in a public area of persons detained for minor traffic offenses”); United States v. Ford, 232 F.Supp.2d 625 (E.D.Va.2002) (holding search unreasonable when conducted on the highway in broad day light). We do not have that here.

Here, while it is true that Appel-lee was strip searched in a room with a partially opened door it is also true that no one was in the line of sight during the search and that only the officers were in the room. And while the Court of Appeals was concerned with the possibility that someone might be able to peer into the room where the search was taking place, the evidence is to the contrary. We refuse to suppress evidence based upon the unsupported assertion that the search was conducted in a manner potentially exposing Appellate to prospective onlookers. Where a search is conducted unnecessarily exposing an arrestee’s naked body to the public, we will suppress absent the most extraordinary and bizarre circumstances— but conjecture without evidence will not be considered.

Ultimately, because Appellee was strip searched within four walls and because he was not exposed to anyone not involved with the search, we conclude that the place in which the search was conducted was reasonable.

Therefore, after considering the Bell factors, we conclude that the need for the search outweighed the privacy considerations in this case.

III. Conclusion

For the foregoing reasons, the Court of Appeals is reversed and the Fayette Circuit Court’s order denying Appellee’s motion to suppress is reinstated.

All sitting. All concur.

      . An officer may also arrest an individual for a misdemeanor where that misdemeanor is committed in the officer's presence. KRS 431.005(l)(d).

      . The trial court directly questioned Schwartz about the definition of an “unconfirmed warrant.” He testified that an "unconfirmed warrant" is a warrant that the officer is aware of, but is unsure of whether it has been served or is still outstanding. He testified that a warrant is only confirmed by either the district court or the sheriff’s office.

      . Whether Appellee was arrested at the time this search was conducted is irrelevant. See footnote 9, infra.

      . Schwartz had arrested Appellee on other occasions and testified that he had "quite a bit of prior contact” with him.

      . We note that if taken alone and in a vacuum, the officer's testimony that he believed the rock-like substance "to be possibly crack cocaine” might have warranted suppression. However, Schwartz clarified his position when cross examined and unequivocally stated that when he felt the hard object secreted in Appellee’s groin area, he knew it to be cocaine. Where there is a discrepancy in testimony, it is the trial court that should make the determination as to which portion of the inconsistent testimony to believe and that decision will not be disturbed on appeal absent a lack of substantial evidence to support that finding. Pride, 302 S.W.3d at 49.

        . In Dickerson, the United States Supreme Court analogized the plain-view doctrine to searches where an officer becomes immediately aware of contraband by the plain feel of his hand. There, Justice White explained:
      We think that [the plain-view doctrine] has an obvious application by analogy to cases in which an officer discovers contraband through the sense of touch during an otherwise lawful search. The rationale of the plain-view doctrine is that if contraband is left in open view and is observed by a police officer from a lawful vantage point, there has been no invasion of a legitimate expectation of privacy and thus no "search” within the meaning of the Fourth Amendment-or at least no search independent of the initial intrusion that gave the officers their vantage point, [citations omitted]. The warrantless seizure of contraband that presents itself in this manner is deemed justified by the realization that resort to a neutral magistrate under such circumstances would often be impracticable and would do little to promote the objectives of the Fourth Amendment, [citations omitted]. The same can be said of tactile discoveries of contraband. If a police officer lawfully pats down a suspect’s outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect’s privacy beyond that already authorized by the officer's search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain-view context.
      508 U.S. at 375-76, 113 S.Ct. 2130.

      . Notwithstanding the Court of Appeals’ concern with the timing of the search and the arrest we find the question of whether Appel-lee was under arrest at the time the search was conducted irrelevant. We need not make that determination to decide whether a probable-cause-based search was appropriate. In Rawlings v. Kentucky, the United States Supreme Court affirmed our judgment and ruled that “it is not particularly important that the search preceded the arrest" when the police had probable cause to arrest the defendant before the search and “the formal arrest followed quickly on the heels of the challenged search." 448 U.S. 98, 111, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980). Here, the probable cause to arrest the defendant was supplied by the officer’s realization that he harbored drugs on his person. Furthermore, the arrest immediately followed the search and thus we find Rawlings directly on point.

      . We note that suspects harboring drugs on their person often attempt to discard them in the back of police cruisers after they have been arrested. See Spears v. Commonwealth, 78 S.W.3d 755 (Ky.App.2002); Prescott v. Commonwealth, No. 2006-CA-000383-MR, 2007 WL 706848 (Ky.App. March 9, 2007); Mitchell v. Commonwealth, No. 2003-CA-000808-MR, 2004 WL 2150284 (Ky.App. Sept. 24, 2004).

      . Had the officers simply closed the door completely, we would have been less concerned with the embarrassing nature of this search.

      . Appellee did not testify at trial, only officer Schwartz who swore that no one was in “line of sight.”