Opinion
NO. 2016-CA-000989-MR
09-15-2017
SHABARON D. CLAY APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Adele Burt Brown Lexington, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Emily Bedelle Lucas Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE JAMES D. ISHMAEL, JR., JUDGE
ACTION NO. 15-CR-00766 OPINION
AFFIRMING
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BEFORE: J. LAMBERT, MAZE, AND NICKELL, JUDGES. LAMBERT, J., JUDGE: Shabaron D. Clay appeals from a Fayette Circuit Court judgment of conviction after Clay entered a guilty plea reserving his right to appeal the denial of his motion to suppress. Clay believes the circuit court should have granted his motion because the evidence was obtained during the course of an unlawful seizure. For the following reasons, we affirm.
At approximately 10:10 p.m., Officer Adam Ray of the Lexington Police Department was on patrol in Lexington's Winburn neighborhood when he observed a car traveling approximately fifteen miles faster than the posted speed limit. When the driver of the vehicle, Clay, noticed Officer Ray, he slowed the vehicle to ten miles under the limit. Upon observing the sudden dramatic change in speed, Officer Ray suspected Clay might be intoxicated so he pulled Clay over.
When Officer Ray approached the vehicle, Clay immediately produced his driver's license, registration, and proof of insurance. It was at this moment Officer Ray realized Clay was not under the influence. Officer Ray then suspected other criminal activity because Clay had slowed so significantly upon seeing the patrol car. After running Clay's information through his computer, Officer Ray determined that Clay's license, registration, and insurance were all valid. However, a criminal history check showed that Clay had a fairly substantial narcotics-related criminal history—with the most recent charge being three months prior. Based on Clay's criminal history and the fact that Clay had greatly reduced his speed upon seeing the officer, Officer Ray suspected Clay possessed narcotics so he called a canine unit to the scene. Officer Ray testified that the paperwork check, criminal history check, and canine unit request all occurred within one minute of stopping the vehicle.
After he checked Clay's information and requested the canine unit, Officer Ray went back to Clay's vehicle and asked him why he had been speeding. Clay replied that there was a problem with his car and that he was headed to Auto Zone to get a part. Officer Ray then asked for consent to search Clay's car, but Clay declined. Thereafter, the officer returned to his vehicle to complete the speeding citation.
As Officer Ray was preparing the citation, which he said typically takes about ten minutes, Officer Moore arrived with the narcotics dog. Officer Ray testified that Officer Moore arrived at 10:18 p.m., and in less than a minute his canine partner alerted to the presence of drugs in Clay's car. After the dog alerted, Officer Ray searched Clay's vehicle and found several very small pieces of what was later determined to be one tenth of a gram of crack cocaine located in the driver's seat. Clay was immediately handcuffed and thereafter admitted to having a bag of marijuana in his sock. Clay was cited for speeding, possession of cocaine, and possession of marijuana. At 10:36 p.m., the stop concluded and Clay was released. The total duration of the seizure was twenty-six minutes.
Kentucky Revised Statutes (KRS) 189.390, 218A.1415, and 218A.1422, respectively. --------
Clay was indicted for possession of cocaine and possession of marijuana. He moved to suppress the evidence seized during the search. Following a hearing, the circuit court denied the motion. The court concluded the roadside detention was not unlawfully extended in order to conduct the dog sniff. Clay then moved the court to reconsider the order denying Clay's suppression motion based on the recently-decided case of Davis v. Commonwealth, 484 S.W.3d 288 (Ky. 2016), but the circuit court denied that motion. Thereafter, Clay entered a conditional guilty plea to the charge of possession of marijuana, reserving the right to appeal the circuit court's suppression ruling. He was sentenced to forty-five days in jail, probated for six months. The remaining charge was dismissed.
On appeal, Clay claims the circuit court erred when it denied his motion to suppress. When reviewing a circuit court's ruling on a motion to suppress, we first determine whether the facts are supported by substantial evidence. If so, those findings are conclusive. Whether the evidence should have been suppressed is reviewed de novo. Davis, 484 S.W.3d at 290. Here, Clay does not dispute the trial court's factual findings. Therefore, our review will consist only of the circuit court's application of the relevant law to the facts.
The Fourth Amendment to the United States Constitution guarantees "[t]he right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures[.]" U.S. Const. Amend. IV. Warrantless searches and seizures are "per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct 507, 514, 19 L.Ed.2d 576 (1967). One such exception is an investigative stop made pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). During a Terry stop, a police officer may temporarily seize a person if the officer has reasonable suspicion that the person has committed or is about to commit a crime. Florida v. Royer, 460 U.S. 491, 498, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983).
Traffic stops are seizures within the meaning of the Constitution and are similar to Terry stops. Rodriguez v. United States, 135 S.Ct. 1609, 1614, 191 L.Ed.2d 492 (2015) (citations omitted). "Like a Terry stop, the tolerable duration of police inquiries in the traffic-stop context is determined by the seizure's 'mission'—to address the traffic violation that warranted the stop, and attend to related safety concerns." Id. (citations omitted). "Authority for the seizure . . . ends when tasks tied to the traffic infraction are—or reasonably should have been—completed. Id. However, if reasonable suspicion of criminal activity arises during a lawful seizure, an officer may be able to prolong the seizure as long as necessary to effectuate the new reason for the seizure. Id. at 1616-17.
Clay argues that the dog sniff, which was unrelated to the purpose of his seizure, violated the Fourth Amendment because it extended the seizure beyond the ten minutes Officer Ray said it typically took to issue a speeding citation. In support, Clay cites the Kentucky Supreme Court's holding in Davis v. Commonwealth, supra, which overruled binding appellate precedent in the Commonwealth permitting "de minimis" extensions of traffic stops. The Davis court, acknowledging the United States Supreme Court's decision in Rodriguez, held that "any prolonging of the stop beyond its original purpose 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." Davis, 484 S.W.3d at 294. Clay's reliance on Davis, however, is misplaced.
In Davis, the officer had concluded his investigation of matters relating to the purpose of the stop when, thereafter, he conducted the dog sniff. While the dog sniff only took two or three extra minutes, it nonetheless prolonged the stop. Because the sniff search was not related to the purpose for which Davis was stopped, and the officer did not have a reasonable articulable suspicion to search for drugs, the extended time it took to conduct the sniff search violated the Fourth Amendment's proscription of unreasonable seizures.
Unlike in Davis, the stop in this case was not prolonged. We first note that a dog sniff in and of itself does not implicate the Fourth Amendment, as there is no privacy interest in concealed contraband. See Illinois v. Caballes, 543 U.S. 405, 409, 125 S.Ct. 834, 838, 160 L.Ed.2d 842 (2005) (holding that a dog sniff conducted during a lawful traffic stop, that reveals no information other than the location of contraband that no individual has any right to possess, does not violate the Fourth Amendment); see also Epps v. Commonwealth, 295 S.W.3d 807, 810 (Ky. 2009), overruled on other grounds by Davis v. Commonwealth, 484 S.W.3d 288 (Ky. 2016). It is only where the dog sniff causes the stop to exceed "the time needed to handle the matter for which the stop was made[,]" that it "violates the Constitution's shield against unreasonable seizures." Rodriguez, 135 S.Ct. at 1612.
Here, Officer Ray neither completed, nor ceased attending to, matters related to the purpose of the stop in order to conduct a dog sniff. The officer was preparing the speeding citation when the canine unit arrived and immediately alerted on the vehicle. There is nothing to indicate Officer Ray unnecessarily prolonged the stop to allow the canine unit to arrive. He called the unit while running Clay's information, and the unit arrived in approximately eight minutes and alerted on the car one minute later. Officer Ray testified that it typically takes about ten minutes to prepare a speeding citation, and he diligently pursued that matter until the canine alerted to the presence of drugs.
Clay argues "where the traffic stop could have been completed by approximately 10:20, 'give or take,' it was unconstitutional to extend it until 10:36 to allow a sniff search to take place." However, an officer may prolong a seizure to investigate new reasonable suspicions of criminal activity arising during the lawful seizure. Id. at 1616-17. Clay's seizure was lawful during the time Officer Ray diligently worked on issuing Clay a speeding ticket. It was during the lawful seizure that the canine alerted to the presence of drugs. After the drug dog alerted, Officer Ray had a sufficient and articulable reason to suspect that Clay possessed drugs. The officer was then constitutionally permitted to prolong the seizure long enough to confirm or dispel that new suspicion.
In sum, Officer Ray did not prolong the stop in order to conduct the dog search, and reasonable suspicion arose during Clay's lawful seizure for speeding to prolong the seizure in order to investigate possible drug possession. Accordingly, the trial court did not err when it denied Clay's motion to suppress.
For the foregoing reasons, the judgment of the Fayette Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Adele Burt Brown
Lexington, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Emily Bedelle Lucas
Assistant Attorney General
Frankfort, Kentucky