CLAYTON, CHIEF JUDGE

NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE KIMBERLY N. BUNNELL, JUDGE
ACTION NO. 17-CR-00486 OPINION
REVERSING AND REMANDING

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BEFORE: CLAYTON, CHIEF JUDGE; JONES AND L. THOMPSON, JUDGES. CLAYTON, CHIEF JUDGE: Domonick Deonte Jones appeals from a Fayette Circuit Court judgment sentencing him to a total of ten years imprisonment after he entered a conditional Alford plea to several drug-related charges. Jones argues the circuit court erred by failing to suppress evidence recovered as a result of a drug dog sniff at a traffic stop. For the following reasons, we reverse and remand for further proceedings.

At the suppression hearing, Officer Jesse Mascoe of the Lexington Metro Police testified that he was traveling on East 7th Street in Lexington at around 12:50 a.m. when he observed a white van standing at a stop sign at the intersection with Maple Street. The van had two occupants and there were two or three people standing near the van. Mascoe saw one of these individuals approach the van, lean in and start talking to the driver. As Mascoe drew closer to the intersection, the van pulled away. Mascoe explained that this action caught his attention because that particular intersection is a high narcotics area. He followed the van and ran the license plate. He discovered the van was registered to an individual in his forties, which did not match the apparent age of either occupant of the van. Mascoe noticed that the rear license plate of the van was not illuminated, and he conducted a traffic stop at 12:56 a.m. on that basis.

When Mascoe approached, he observed the driver was extremely nervous. His hand was shaking when he reached for his identification and he spoke quickly with a slight stutter. The passenger, appellant Jones, avoided eye contact with the officer, keeping his eyes near his waistband and on the floorboard. Officer Mascoe asked them where they were coming from and where they were headed. They told him they were going to someone's house. Mascoe could not recall where they told him they were coming from. The driver of the van did not have a driver's license, but he did provide identification in the form of an instructor's permit. Jones did not have any identification but provided Mascoe with his name, date of birth and social security number.

Mascoe returned to his cruiser to run the two names, calling for backup on the way because the men appeared to be nervous. He had just started to run their information when Officers Brown and Baker arrived at 12:58 a.m. Mascoe described the situation to them. His research then indicated to him that both the driver and Jones had several narcotics and violent crime charges although there were no active warrants for either individual. When he learned of these previous criminal charges, Mascoe requested Officer Baker to call the canine unit. At around 1:08 a.m., the canine unit arrived. Mascoe testified he had not yet begun writing up the traffic citation at that point and that his only justification for detaining the van and its occupants at that point was the traffic violation.

Mascoe described the situation to the canine unit officer, who determined that "probable cause" existed to conduct a dog sniff. Mascoe removed the occupants of the vehicle. The canine ran around the vehicle and alerted. This occurred at around 1:12 a.m., approximately sixteen minutes after Mascoe initiated the stop. Officer Mascoe told the driver and Jones the police were going to search the vehicle. He asked the driver if there was anything illegal in the van and was told there was not. The officers found a backpack containing synthetic marijuana and a set of digital scales in the back of vehicle. The driver denied possessing anything illegal and stated he did not know anything about the synthetic marijuana. Jones told Officer Mascoe the synthetic marijuana belonged to him. Mascoe suspected Jones might be covering for the driver, but ultimately arrested him.

Sixteen minutes elapsed from the time Mascoe stopped the vehicle to the canine alert. According to Officer Mascoe, his typical traffic stops last an average of fifteen minutes.

Jones was indicted on charges of trafficking in synthetic drugs, first offense; possession of drug paraphernalia; possession of marijuana; and being a persistent felony offender in the first degree. He filed a motion to suppress the evidence recovered in the search of the van, arguing that the traffic stop was unreasonably prolonged to allow the dog sniff.

The trial court found that the only permissible justification for the traffic stop was the unilluminated license plate. Once the stop occurred, however, the officer was justified in continuing to investigate further based on what he had earlier observed at the high-crime intersection and on the occupants' nervous behavior. The trial court concluded Officer Mascoe had reasonable suspicion to request the drug dog and the stop was not extended for the drug dog to arrive. The trial court specifically noted how quickly the drug dog arrived, two minutes after being dispatched, and advised that if there had been a fifteen-minute delay, the situation would have been "completely different."

Jones entered a guilty plea conditioned on his right to appeal the denial of the suppression motion. This appeal followed.

Our standard when reviewing a suppression ruling is twofold: "we first determine whether the trial court's findings of fact are supported by substantial evidence. If they are, then they are conclusive. Based on those findings of fact, we must then conduct a de novo review of the trial court's application of the law to those facts to determine whether its decision is correct as a matter of law." Commonwealth v. Neal, 84 S.W.3d 920, 923 (Ky. App. 2002) (footnotes omitted).

The Fourth Amendment to the United States Constitution secures our freedom from "unreasonable searches and seizures." See also Kentucky Constitution § 10. In the absence of a warrant, "[a] police officer may constitutionally conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot." Bauder v. Commonwealth, 299 S.W.3d 588, 590-91 (Ky. 2009) (citing Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)).

Traffic stops are similar to Terry stops and therefore must also be supported by reasonable, articulable suspicion, which is defined as "considerably less than proof of wrongdoing by preponderance of the evidence." Chavies v. Commonwealth, 354 S.W.3d 103, 108 (Ky. 2011) (internal citations and quotation marks omitted). The police may not, however, prolong a traffic stop beyond the point "reasonably required to complete the mission of the stop." Moberly v. Commonwealth, 551 S.W.3d 26, 29 (Ky. 2018), reh'g denied (Aug. 16, 2018). Their authority to seize and detain a car and driver ends when "tasks tied to the traffic infraction are - or reasonably should have been - completed." Id. (quoting Rodriguez v. United States, -- U.S. --, 135 S. Ct. 1609, 1614, 191 L. Ed. 2d 492 (2015).

But if during the course of the stop the officer obtains additional information which creates a reasonable and articulable suspicion that other criminal activity is afoot, the stop may be extended beyond its original purpose. Any prolonging of the stop beyond its original purpose without this additional information "is unreasonable and unjustified; there is no 'de minimis exception' to the rule that a traffic stop cannot be prolonged for reasons unrelated to the purpose of the stop." Id. at 30 (quoting Davis v. Commonwealth, 484 S.W.3d 288, 294 (Ky. 2016)).

In its analysis, the trial court focused on whether the traffic stop was unnecessarily prolonged by Mascoe's investigation, distinguishing between a two-minute and a fifteen-minute delay, rather than on whether the police officers had impermissibly widened the scope of the stop without reasonable suspicion. "[A]n officer cannot detain a vehicle's occupants beyond completion of the purpose of the initial traffic stop unless something happened during the stop to cause the officer to have a reasonable and articulable suspicion that criminal activity [is] afoot." Commonwealth v. Smith, 542 S.W.3d 276, 282 (Ky. 2018) (quoting Turley v. Commonwealth, 399 S.W.3d 412, 421 (Ky. 2013)). Without reasonable suspicion that some other criminal activity was afoot, the interval, however slight, caused by conducting the dog sniff before Officer Mascoe even wrote the citation for the unilluminated license plate, is precisely the type of de minimis delay prohibited by our Fourth Amendment jurisprudence.

The Kentucky Supreme Court recently addressed the application of these principles to the same type of factual scenario presented in this appeal: "a police officer ostensibly stops a vehicle for an observed traffic violation but also harbors suspicions of criminal drug activity inadequate to justify a search. A drug dog arrives on the scene within minutes to conduct a sniff search concurrently with the traffic stop." Moberly, 551 S.W.3d at 29. In Moberly, a police officer stopped a vehicle he was following at 3:35 a.m. after he checked its registration and discovered it had no liability insurance. The driver, Moberly, provided his driver's license but stated that the car did not belong to him and he could not provide proof of insurance. He was cooperative but was described by the officer as abnormally nervous. His brow was perspiring, and he blew smoke from his cigarette into the interior of the car and kept looking toward the right side of the car. The officer returned to his cruiser where he began writing a traffic citation. He also spent about five minutes checking a jail website and police database which revealed that Moberly had been charged previously with trafficking in marijuana and carrying a concealed deadly weapon; the inquiry did not show whether Mobley had been convicted of any of these charges. Moberly denied he had drugs or weapons in the vehicle and refused to allow a search. The officer decided that because Moberly looked so nervous and because of the prior charges, he would detain him while he called for a canine unit to conduct a sniff search. The canine sniff search yielded contraband in the car.

Moberly argued that although the initial traffic stop based on lack of insurance was valid, it was unconstitutionally prolonged when the officer called the canine unit. The Kentucky Supreme Court agreed, because Moberly's apparent nervousness and prior criminal charges were not sufficient in themselves to allow the officer rationally to infer that he was engaging in other criminal activity. The Court concluded that Moberly's

behavior during the traffic stop as articulated by the officer on the scene and the prior charge information obtained during the database search do not create a reasonable suspicion that [Moberly] was then and there engaged in illegal behavior beyond the apparently obvious traffic violations for which he was

stopped. . . . We examined all the facts relied upon by the officer as the basis for his suspicion, as well as those cited by the trial court as meaningful. The fact that [Moberly] was permissibly driving someone else's uninsured car does nothing to raise suspicion that criminal activity was afoot or that [Moberly]was transporting illegal drugs, which was the object of the canine sniff search.

Jones does not dispute that the traffic stop in his case, based on the unilluminated license plate, was legitimate. He argues that the subsequent information gleaned by Officer Mascoe, that he and the driver of the car appeared nervous and had prior criminal charges, was identical to the type of evidence deemed insufficient in Moberly to abandon the original purpose of the stop in order to commence a narcotics investigation.

The Commonwealth contends that this approach is too narrow, and the information gleaned by Officer Mascoe during the traffic stop must be viewed in light of the totality of the circumstances in assessing whether reasonable suspicion existed to justify calling the canine unit. These additional circumstances consist of Officer Mascoe's earlier observation of the van stopped in a high-narcotics area at a late hour; an individual leaning into the van; the van pulling away, possibly in an evasive manner, when the officer approached; and the apparent disparity in age between the occupants of the vehicle and the registered owner.

Even when viewed in their totality, however, these facts are not sufficient to justify the extending the scope of the traffic stop beyond its original purpose. In Strange v. Commonwealth, for example, the appellant was in a public area known for criminal activity, late at night, standing near a pay phone that was sometimes used in drug transactions. When he saw two police officers approaching, he walked quickly to a van parked a few steps away. 269 S.W.3d 847, 851 (Ky. 2008). The police stopped the appellant, ordered him to move away from the van and conducted a pat down search which yielded contraband. The Kentucky Supreme Court ruled the evidence must be suppressed, "reject[ing] the notion that being present in a high crime area at night, near a pay phone, apparently opting to avoid police contact suggested criminal activity. The fact is that many honest, decent, law-abiding citizens live in high-crime areas under similar circumstances and would behave the same way." Moberly, 551 S.W.3d at 31-32.

In Commonwealth v. Smith, the police conducted a traffic stop ostensibly for a minor traffic violation but actually in furtherance of a drug investigation. The police had been conducting surveillance of Smith for three weeks, trying to corroborate tips received from confidential informants that he was trafficking in cocaine. One evening, a police officer followed Smith to a gas station where another resident of Smith's apartment building leaned into the passenger side of the car. Smith then drove back to his apartment and left a few minutes later in another vehicle. The police officer followed Smith until he turned without signaling. The officer had prearranged for a canine officer to be on standby. He contacted the canine officer who pulled Smith over for the traffic infraction. Smith denied there were illegal drugs in the car. The canine officer described him as nervous but fully cooperative. Before the officer even started to address the traffic citation, the drug dog conducted a sniff search and alerted at the driver's door. A search of the vehicle yielded seven grams of cocaine. The Supreme Court held that the circuit court correctly suppressed the evidence in part because the police did not have a reasonable suspicion that narcotics were in the car. Smith at 283.

Prior to the traffic stop, Mascoe had even less information to support a reasonable suspicion of illegal narcotics activity than the officer in Smith. The fact that the van was previously in a high narcotics area, that an individual was leaning into the van and the van left when Mascoe approached are insufficient under Strange and Smith to create a reasonable suspicion of illegal narcotics activity. Mascoe's subsequent observation that Jones and the driver appeared to be younger than the registered owner of the van and seemed nervous when stopped are facts which do not specifically support a reasonable suspicion of illegal narcotics activity. As in Smith, this traffic stop "was anticipated as an advantageous opportunity to investigate for drugs, rather than the genuine enforcement of traffic laws." Id. Officer Mascoe "deferred the issuance of the citation to conduct the dog sniff search, and thereby unreasonably prolonged the stop, albeit for a very brief time." Id.

For the foregoing reasons, the trial court erred as matter of law in denying Jones's motion to suppress and consequently its judgment is reversed, and the case is remanded for further proceedings in accordance with this opinion.

JONES, JUDGE, CONCURS.

THOMPSON, L., JUDGE, DISSENTS AND DOES NOT FILE SEPARATE OPINION. BRIEFS FOR APPELLANT: Steven Nathan Goens
Assistant Public Advocate
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Kristin L. Conder
Assistant Attorney General
Frankfort, Kentucky