Harmless-Error Review for Missing RCr 8.27(2) Suppression Hearings When Custody Facts Are Not Materially Disputed

I. Introduction

David Louis McCampbell v. Commonwealth of Kentucky (Ky. Feb. 19, 2026) is an unpublished memorandum opinion affirming David McCampbell’s Graves Circuit Court convictions for being a felon in possession of a handgun, first-degree possession of a controlled substance (methamphetamine), possession of drug paraphernalia, and being a first-degree persistent felony offender, with a total sentence of twenty years.

The appeal presented a single substantive issue: whether the trial court erred by denying McCampbell’s motion to suppress an on-scene statement made to Sgt. Garrett Clark about a gun found in the glovebox, where Miranda warnings were not administered before the question, and whether the court further erred by failing to hold an evidentiary hearing required by RCr 8.27(2).

The key factual setting was a winter-weather rollover crash, consent to search the vehicle, discovery of suspected methamphetamine and a handgun, and a brief pre-Miranda question asked as McCampbell exited a cruiser he had entered voluntarily for shelter from the elements.

Although designated “NOT TO BE PUBLISHED” under RAP 40(D), the opinion is significant for its practical treatment of (1) late suppression motions under RCr 8.27(1), (2) the mandatory nature of suppression hearings under RCr 8.27(2), and (3) the application of harmless-error doctrine when the missing hearing would not have resolved any material fact dispute relevant to custody/voluntariness.

II. Summary of the Opinion

• Timeliness: The Court agreed a motion to suppress filed the day before trial is “generally” untimely under RCr 8.27(1), but declined to affirm on that basis because the trial court did not deny the motion as untimely and had entertained other late motions.
• Hearing Requirement: Because the trial court reached the merits, it was required to hold a suppression hearing on the record under RCr 8.27(2). The failure to do so was error.
• Harmless Error: The error was harmless because there were no material or substantial fact disputes about the circumstances surrounding the statement sufficient to affect the Miranda custody analysis.
• No Custody: Applying de novo review, the Court held McCampbell was not in custody when Sgt. Clark briefly asked about the gun; therefore, Miranda warnings were not required at that moment and suppression was properly denied.
• Seibert / “Question-first”: The Court rejected the claim that a remand was needed to explore an improper “question-first” strategy under Missouri v. Seibert; trial testimony (notably Det. Seton’s claimed lack of awareness of Sgt. Clark’s prior question) did not support deliberate circumvention under Callihan v. Commonwealth.

III. Analysis

A. Precedents Cited

1. Custody and the “free to leave” framework

• Thompson v. Keohane, 516 U.S. 99 (1995): The Court reiterated the baseline that Miranda applies only when a suspect is interrogated “in custody,” and treated custody as a legal determination informed by facts.
• Commonwealth v. Lucas, 195 S.W.3d 403 (Ky. 2006) and Baker v. Commonwealth, 5 S.W.3d 142 (Ky. 1999): These Kentucky cases supplied the operative test and review posture—custody is a mixed question reviewed de novo, and involves restraint by physical force or show of authority.
• United States v. Mendenhall, 446 U.S. 544 (1980): Mendenhall’s “free to leave” test and its indicative factors (threatening presence of several officers, display of a weapon, physical touching, compelling tone/language) were used as the central measuring stick. The Court emphasized that none of the classic Mendenhall indicia were present at the moment Sgt. Clark asked about the gun.
• Smith v. Commonwealth, 312 S.W.3d 353 (Ky. 2010) (quoting United States v. Salvo, 133 F.3d 943 (6th Cir. 1998)): The Court employed Smith/Salvo’s additional custody factors—purpose of questioning, hostile/coercive setting, length of questioning, and indicia such as advisement of voluntariness and freedom of movement—to reinforce the conclusion that the encounter was brief, non-coercive, and not custodial.
• Haney v. Commonwealth, 653 S.W.3d 559 (Ky. 2022): Cited to underscore de novo review of law-to-fact application; the Supreme Court did not defer to the trial court’s custody conclusion once the relevant facts were ascertainable.

2. Suppression-hearing requirement and harmless-error review

• Hunt v. Commonwealth, 304 S.W.3d 15 (Ky. 2009): Hunt supplied two key propositions: (i) the suppression-hearing requirement is mandatory (“does not have discretion to dispense with the hearing”), and (ii) failure to hold the hearing is still subject to harmless-error review, “even in a capital case.” The Court treated RCr 8.27(2) as continuing the mandatory hearing concept formerly applied under RCr 9.78.
• Mills v. Commonwealth, 996 S.W.2d 473 (Ky. 1999), overruled on other grounds by, Padgett v. Commonwealth, 312 S.W.3d 336 (Ky. 2010): Mills provided the harmless-error standard: missing suppression hearing is harmless where no “material or substantial facts” are in dispute about the confession’s surrounding circumstances.
• Jackson v. Denno, 378 U.S. 368 (1964): Denno anchored the focus on “the facts concerning the circumstances surrounding the confession” and supported the Court’s position that when circumstances are clearly established, an appellate court can evaluate voluntariness/custody under proper constitutional standards despite the missing hearing.
• Matlock v. Commonwealth, 344 S.W.3d 138 (Ky. App. 2011): Used as a contrast case: failure to hold a suppression hearing is not harmless where substantial factual differences exist between officer and defendant about how evidence was found.

3. The “question-first” doctrine

• Missouri v. Seibert, 542 U.S. 600 (2004): Cited for the condemnation of deliberate “question-first, warn-later” interrogation designed to evade Miranda.
• Callihan v. Commonwealth, 142 S.W.3d 123 (Ky. 2004): Kentucky’s limiting construction—Seibert is treated as a plurality and implicated only when police deliberately deploy the “question-first” method. The Court relied on trial testimony that Det. Seton was unaware of Sgt. Clark’s question, finding no record support for deliberateness.

4. Other cited authority

• Leatherman v. Commonwealth, 357 S.W.3d 518 (Ky. App. 2011): Cited only for a definition related to the Horizontal Gaze Nystagmus test, part of the scene description and intoxication assessment.

B. Legal Reasoning

1. The Court’s two-step posture: mandatory hearing, then harmless error

The opinion’s structural move is decisive: once the trial court reached the merits, RCr 8.27(2) required a suppression hearing. The Supreme Court held the trial court erred by deciding custody without an evidentiary record developed at a suppression hearing. But the Court immediately placed that procedural error into a harmless-error framework drawn from Hunt v. Commonwealth and Mills v. Commonwealth.

The “material fact dispute” inquiry did most of the work. The Court treated disputes about whether McCampbell’s pre- and post-Miranda statements were “substantively the same” as immaterial to the missing-hearing question, because the Denno/Mills lens is trained on circumstances of the statement (custody/coercion), not on whether later Mirandized statements were cumulative. The Court narrowed the potentially relevant factual disputes to those bearing on custody (e.g., officers present, restraint, positioning, coercive conduct).

2. Custody determination: objective, totality-of-circumstances

Applying de novo review, the Court framed custody as an objective question: whether a reasonable person would have believed he was free to end the interaction and not answer. The Court rejected the defense theory that McCampbell was effectively “boxed in” as he exited the cruiser, stating that body-camera footage showed Sgt. Clark standing respectfully to the side, leaving open space and freedom of movement.

The Court also emphasized the absence of Mendenhall coercion markers at the critical moment: no threatening police presence in the immediate vicinity, no weapon display, no physical touching, and no compelling tone. The opinion further reasoned that McCampbell’s inability to leave the scene stemmed from the crash (a non-police cause), not from police restraint, and thus did not convert the interaction into custody.

3. Seibert claim rejected on the existing trial record

The Court treated the Seibert issue as requiring evidence of deliberate two-step circumvention. It found none, relying on Det. Seton’s trial testimony that he did not know Sgt. Clark had already asked about the gun, and characterizing McCampbell’s contrary inference as speculative. Importantly, the Court used Hunt v. Commonwealth to justify relying on “subsequent trial testimony” to assess whether the missing suppression hearing mattered.

C. Impact

Although unpublished and not binding precedent under RAP 40(D), the opinion is likely to be practically influential in three ways:

1. RCr 8.27(2) remains mandatory, but remedy depends on “material fact disputes”: The decision reinforces that trial courts must conduct a suppression hearing once suppression issues are raised and considered on the merits. Yet it also signals that appellate courts will affirm without remand where the custody/voluntariness circumstances are not materially disputed (or are resolvable from video and trial testimony).
2. Accident-scene and “voluntary cruiser” encounters may be treated as noncustodial: The Court’s approach treats temporary sheltering in a cruiser (accepted by the suspect) and brief, non-coercive questioning as akin to other investigative detentions that do not necessarily trigger Miranda—especially when classic coercion markers are absent.
3. Seibert challenges may fail without evidence of deliberateness: By emphasizing Callihan v. Commonwealth’s deliberateness requirement and crediting an officer’s lack-of-awareness testimony, the opinion illustrates the evidentiary hurdle defendants face when alleging “question-first” tactics, particularly where the record supports inadvertence rather than design.

IV. Complex Concepts Simplified

Miranda custody

Miranda warnings are required only when police questioning occurs while a person is “in custody”—meaning the person is restrained like a formal arrest. The test is objective: would a reasonable person feel free to end the conversation and leave (or otherwise disengage)?

Suppression hearing (RCr 8.27(2))

A suppression hearing is a pretrial proceeding where the court takes evidence (testimony, video, exhibits) to decide whether evidence (like a statement) was obtained unlawfully. RCr 8.27(2) says the court “shall” hold such a hearing on the record before trial on issues raised by a motion to suppress.

Harmless error

Not every trial-court mistake requires reversal. If the appellate court concludes the error did not affect the outcome—here, because the relevant facts about custody were not materially disputed—then the conviction may be affirmed despite the error.

“Question-first” (Seibert) technique

This refers to a tactic where police intentionally question a suspect without Miranda warnings to obtain an admission, then administer warnings and have the suspect repeat the admission. Under Kentucky’s reading in Callihan v. Commonwealth, the key is whether officers deliberately used that two-step strategy to evade Miranda.

V. Conclusion

The Supreme Court of Kentucky affirmed McCampbell’s convictions while making two doctrinal points clear within its unpublished disposition: (1) once a trial court elects to reach the merits of a suppression motion, RCr 8.27(2) requires an on-the-record suppression hearing; but (2) the failure to conduct that hearing can be harmless where no material fact dispute exists about the circumstances bearing on custody and the existing record (including video and trial testimony) permits de novo review.

On the merits, the Court held the brief accident-scene question about the gun occurred in a noncustodial setting under the totality of the circumstances, and it rejected a Seibert-based attack as unsupported by evidence of deliberate “question-first” tactics. Even as a non-precedential decision, the opinion offers a concrete roadmap for how Kentucky appellate courts may analyze missing suppression hearings, Miranda custody in roadside/emergency contexts, and the evidentiary demands of Seibert/Callihan claims.