Opinion
NO. 2019-CA-000140-MR
01-10-2020
IKIA ANDERSON CLAYBORNE APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Erin Hoffman Yang Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky James C. Shackelford Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE PAMELA R. GOODWINE, JUDGE
ACTION NO. 17-CR-00668 OPINION
REVERSING AND REMANDING
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BEFORE: COMBS, DIXON, AND TAYLOR, JUDGES. COMBS, JUDGE: Ikia Anderson Clayborne appeals as a matter of right from his conviction for first-degree possession of a controlled substance. After reviewing the record and the pertinent law, we reverse the judgment of the Fayette Circuit Court and remand for additional proceedings.
Clayborne was arrested and charged with first-degree possession of a controlled substance (cocaine) as a result of a traffic stop. He was riding with Robert Spillman in Spillman's car in the early hours of the morning of April 21, 2019. Spillman stopped his vehicle, still running, in the road and spoke with a pedestrian through the car window. Lexington Police Officer Ryan Nichols observed the pedestrian walking toward Spillman's car and then turn away as soon as he noticed the officer's vehicle approaching.
Officer Nichols ran Spillman's license plate number and discovered that Spillman had a suspended license. He pulled the car over for a traffic stop to issue a citation and requested verification of car insurance. After speaking with the two men, Officer Nichols ran a warrant check on both of them and checked the Fayette County Detention Center website for past charges. Neither person had outstanding warrants, but both had prior narcotics-related charges.
Based upon his observation of the pedestrian who walked away from the car after seeing the police cruiser, Officer Nichols decided to call a canine unit to inspect the vehicle in conjunction with his issuance of the traffic citation. While he waited for the canine unit, Officer Nichols began writing Spillman's traffic citation for driving on a suspended license. About ten minutes later, the canine unit arrived; Officer Nichols was still working on the narrative portion of the citation.
At that time, Officer Nichols directed Spillman and Clayborne to exit the vehicle. When Clayborne exited the vehicle, a piece of paper fell from the open door on the passenger's side. A substance found inside the paper later tested positive for cocaine. Clayborne was charged with first-degree possession of a controlled substance pursuant to KRS 218A.1415(1).
Kentucky Revised Statutes.
At trial, Officer Nichols testified that he had reasonable suspicion that criminal activity was underway based upon the fact that the pedestrian walked away from Spillman's car when he saw the police cruiser approach. Clayborne moved to suppress the incriminating evidence on the basis that he was detained by the canine's sniff search beyond the time reasonably required to complete Spillman's traffic citation. The circuit court found that because Officer Nichols was still writing the traffic citation when the dog alerted, the sniff search did not unreasonably extend the stop and that it was, therefore, lawful. Thus, the court denied Clayborne's suppression motion.
The Commonwealth called Spillman as a witness. He denied possession of the cocaine, stating "I don't use" drugs. Based upon his testimony, Clayborne's counsel sought to impeach Spillman's statement that he did not use drugs with evidence of his prior arrests for misdemeanor drug offenses. The circuit court denied defense counsel's request to introduce Spillman's prior arrest record.
Defense counsel did not proffer Spillman's specific prior drug-related arrests to the circuit court.
The jury found Clayborne guilty of first-degree possession of a controlled substance. The circuit court sentenced him to one year in prison, which was probated for one year. This appeal followed.
Because neither party challenges the circuit court's findings of fact, we turn to the court's conclusions of law. "When reviewing a trial court's ruling on a motion to suppress evidence, we defer to the trial court's findings of fact to the extent they are supported by substantial evidence and are not clearly erroneous. We review the trial court's conclusions of law de novo." Commonwealth v. Smith, 542 S.W.3d 276, 280 (Ky. 2018) (citation omitted).
Because Clayborne has not challenged the initial traffic stop and warrant check on appeal, we refrain from discussing the propriety of those actions. The sole issue before us is whether the detention of the vehicle and its occupants for a canine unit sniff search was lawful. Clayborne contends that although the initial traffic stop was warranted, the police impermissibly detained him and Spillman for a search of their persons and of Spillman's vehicle.
"We consider the totality of the circumstances to determine whether a particularized and objective basis existed for suspecting Appellant of illegal activity." Moberly v. Commonwealth, 551 S.W.3d 26, 31 (Ky. 2018) (citing United States v. Cortez, 449 U.S. 411, 417, 101 S. Ct. 690, 66 L. Ed. 2d 621 (1981)). "[A] lawful traffic stop may nevertheless violate an individual's Fourth Amendment rights . . . . Generally, if an officer unreasonably prolongs the investigatory stop in order to facilitate a dog sniff, any resulting seizure will be deemed unconstitutional." Moberly, 551 S.W.3d at 29 (quoting Commonwealth v. Bucalo, 422 S.W.3d 253, 258 (Ky. 2013)).
[O]fficers may slightly extend the stop with "certain negligibly burdensome precautions" needed to assure their safety [such as checking detainees for criminal records and outstanding warrants]. No constitutional violation occurs because those precautionary measures are directly connected to the mission of the initial traffic stop. "On-scene investigation into other crimes, however, detours from that mission." The Court specifically noted that a dog sniff search to find drugs lacks a close connection to the legitimate purpose of the traffic stop; the sniff search "is not fairly characterized as part of the officer's traffic mission."Id. at 30 (quoting Rodriguez v. United States, 575 U.S. 348, 356, 135 S. Ct. 1609, 1615-16, 191 L. Ed. 2d 492 (2015)). "Highway and officer safety are interests different in kind from the Government's endeavor to detect crime in general or drug trafficking in particular." Rodriguez, 575 U.S. at 357, 135 S. Ct. at 1616.
In the case before us, there was no "additional information properly obtained during the stop provid[ing] the officer with a reasonable and articulable suspicion that other criminal activity is afoot." Moberly, 551 S.W.3d at 29. We are persuaded that Officer Nichols's sole observation -- the pedestrian who walked away when his cruiser approached Spillman's vehicle -- was insufficient evidence to raise a reasonable, articulable suspicion. "[M]ere presence alone is not sufficient evidence to justify an investigatory stop and seizure." Strange v. Commonwealth, 269 S.W.3d 847, 852 (Ky. 2008) (citing Illinois v. Wardlow, 528 U.S. 119, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000)).
In Strange, supra, the police based a warrantless search on Strange's "initial reaction," which was his "movement from his position between the payphone and the van, to the driver side window of the van as the police passed by." Id. at 849-50. The Supreme Court of Kentucky concluded that the totality of the circumstances did not rise to a reasonable, articulable suspicion that the pedestrian or the vehicle's occupants were involved in criminal conduct, reasoning as follows:
The officers articulated nothing about Appellant's movement to explain why it seemed suspicious, beyond the general suspicion they have for everyone out at that time of night in that neighborhood. . . . Without the articulation of facts showing how the movement was suspicious, or, as the Court of Appeals termed it, "evasive," the Terry requirement is not satisfied.Id. at 851-52. Similarly, a pedestrian's movement away from a vehicle when a police cruiser approaches is insufficient evidence to raise a reasonable, articulable suspicion of criminal conduct justifying a sniff search. And Officer Nichols failed to articulate any reasonable basis for his suspicion.
Terry v. Ohio, 32 U.S. 1, 88 S. Ct 1868, 20 L. Ed. 2d 889 (1968). --------
Additionally, "[t]he 'key question' is not whether the duration of Appellant's roadside detention was unreasonable; rather, it is whether the sniff search was related to the purpose for which Appellant was stopped . . . ." Davis v. Commonwealth, 484 S.W.3d 288, 294 (Ky. 2016). "Neither a driver, nor a vehicle stopped only for a simple traffic violation, should be subject to this invasion without the officer having acquired articulable suspicion that some other mischief is afoot." Smith, 542 S.W.3d at 285 (Cunningham, J., concurring).
Officer Nichols called the canine unit without the requisite reasonable suspicion of criminal activity. At that point, the traffic stop to issue Spillman a citation exceeded the lawful scope of the initial stop.
[A] sniff search of the vehicle [ ] could not possibly serve the purpose of the traffic stop . . . . The only reason for the sniff search was to discover illegal drugs in [the] car, which adds nothing to indicate if the driver is [driving on a suspended license] and is clearly beyond the purpose of the original [traffic] stop.Davis, 484 S.W.3d at 294.
We conclude that the arresting officer's seizure of the vehicle and its occupants for the warrantless canine unit search was not conducted lawfully as it lacked the proper threshold of reasonable suspicion. After discovering that the registered owner of Spillman's vehicle had a suspended license, Officer Nichols made a traffic stop to issue a citation and to verify insurance coverage. Under the circumstances, this was permissible police conduct. Bucalo, 422 S.W.3d at 258. However, once a check yielded no outstanding warrants for Spillman, Officer Nichols's actions beyond issuing Spillman a citation exceeded the proper scope of his lawful stop of the vehicle.
Clayborne's Fourth Amendment right to be free from unreasonable searches and seizures was violated. Therefore, we reverse the circuit court's denial of Clayborne's motion to suppress the fruits of that illegal detention and search -- namely, the cocaine that fell from Spillman's vehicle when the police ordered the occupants to exit it for the sniff search.
Because our ruling on the suppression issue is dispositive, we do not -- and indeed cannot -- reach analysis of the impeachment evidence issue. See Philpot v. Patton, 837 S.W.2d 491, 493 (Ky. 1992) ("Our courts do not function to give advisory opinions . . . unless there is an actual case in controversy.").
For the foregoing reasons, we REVERSE the judgment of the Fayette Circuit Court and REMAND for further proceedings consistent with this ruling.
TAYLOR, JUDGE, CONCURS.
DIXON, JUDGE, DISSENTS. BRIEFS FOR APPELLANT: Erin Hoffman Yang
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky James C. Shackelford
Assistant Attorney General
Frankfort, Kentucky