Opinion
2023-CA-1362-MR
10-04-2024
LAKOTA LEE APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Adam Myer Frankfort, Kentucky BRIEF FOR APPELLEE: Russell Coleman Attorney General of Kentucky Courtney Hightower Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM MARSHALL CIRCUIT COURT HONORABLE ANDREA L. MOORE, JUDGE ACTION NO. 22-CR-00214
BRIEFS FOR APPELLANT: Adam Myer Frankfort, Kentucky
BRIEF FOR APPELLEE: Russell Coleman Attorney General of Kentucky Courtney Hightower Assistant Attorney General Frankfort, Kentucky
BEFORE: THOMPSON, CHIEF JUDGE; EASTON AND KAREM, JUDGES.
OPINION
EASTON, JUDGE
The Appellant ("Lee") appeals the decision of the Marshall Circuit Court denying his motion to suppress evidence obtained during a traffic stop. Lee entered a conditional guilty plea. Finding no error, we affirm.
FACTUAL AND PROCEDURAL HISTORY
Lee was driving on Aurora Highway in Marshall County. Deputy Daniel Burgdolf ("Burgdolf") of the Marshall County Sheriff's Office was also traveling on Aurora Highway. Burgdolf observed Lee's vehicle swerve multiple times across the center line dividing the highway lanes. Burgdolf initiated a traffic stop as he suspected Lee may have been intoxicated.
Burgdolf approached Lee and asked for his identification. Burgdolf ran Lee's information through CourtNet and discovered Lee was a convicted felon. Burgdolf returned to the vehicle and had Lee perform standard field sobriety tests.
While sobriety tests were being conducted, Marshall County K-9 Officer Zachary Johnson ("Johnson") arrived with his narcotics detection dog, Conner. Eventually, Burgdolf concluded that the sobriety tests did not show Lee to be intoxicated. But, during the sobriety tests, Conner alerted on the driver's side rear door. The vehicle was then searched. No drugs were found, but in the course of the search for drugs, a handgun was found in the vehicle. Burgdolf ran the serial number of the gun and learned it had been reported as stolen the previous night.
Lee was then charged with receiving stolen property and being a convicted felon in possession of a handgun. Lee moved to suppress any evidence obtained during the stop and subsequent search of the vehicle. The circuit court conducted an evidentiary hearing on the motion to suppress.
Burgdolf estimated the roadside investigation lasted about 10-11 minutes. Johnson said he heard about the possible DUI stop over the police radio. Johnson believed that the DUI stop alone gave him reasonable suspicion to have Conner sniff Lee's vehicle. If a driver is impaired, the impairment may be related to recent or ongoing use of alcohol or other drugs. Johnson estimated it took him about 10 minutes to drive to where Burgdolf and Lee were. Johnson deployed Conner while Burgdolf was conducting the field sobriety tests.
Driving Under the Influence.
The circuit court denied Lee's motion. The circuit court concluded that Lee's constitutional rights were not violated because the initial purpose of the traffic stop (investigation of a possibly impaired driver) was not extended or abandoned before the separate act of deploying Conner. The circuit court specifically noted that Johnson deployed Conner while Burgdolf was still conducting the field sobriety tests.
The circuit court found probable cause for a search of the vehicle for drugs was established once Conner alerted. With respect to any extension of the traffic stop the circuit court stated: "[T]he Court concludes that the traffic stop was not extended because the initial investigation was never abandoned to conduct an open-air sniff." The circuit court also concluded that an open-air sniff by a dog is not by itself a search.
After the denial of his motion to suppress, Lee entered a conditional guilty plea to receiving stolen property and being a convicted felon in possession of a firearm. Lee was sentenced to five years in prison. This appeal followed.
STANDARD OF REVIEW
"When reviewing a trial court's denial of a motion to suppress, we utilize a clear error standard of review for factual findings and a de novo standard of review for conclusions of law." Greer v. Commonwealth, 514 S.W.3d 566, 568 (Ky. App. 2017) (quoting Jackson v. Commonwealth, 187 S.W.3d 300, 305 (Ky. 2006)). Findings of fact are not clearly erroneous if supported by substantial evidence. Commonwealth v. Neal, 84 S.W.3d 920, 923 (Ky. App. 2002).
ANALYSIS
Lee argues his motion to suppress should have been granted because the traffic stop was extended for purposes (the dog sniff and search of Lee's vehicle for drugs) unrelated to the traffic stop. Lee argues the handgun obtained during the search was "fruit of the poisonous tree" - and the admission of said evidence violated his Fourth Amendment rights.
Lee first contends the fact-finding was erroneous because the circuit court made no finding in its order stating precisely how long the stop lasted. Lee points to Burgdolf's testimony stating his initial DUI investigation lasted 10-11 minutes and Officer Johnson's testimony stating it took him about 10 minutes to arrive at the scene. Lee contends the circuit court's omission of the total length of the stop was crucial as there is a fact issue of whether Burgdolf's initial investigation ceased before Johnson and Conner arrived at the scene.
The Commonwealth counters that Lee failed to preserve the issue of how long the stop lasted. The Commonwealth notes Lee's suppression motion sought to suppress the handgun on the basis there was no reasonable suspicion to deploy the canine or subsequent probable cause for the search of the vehicle. Lee's argument is that Conner was deployed without some independent reason separate from the traffic stop. While a dog sniff is not a search, the validity of conducting a dog sniff may depend on whether it happened during a non-extended stop. Because this can be a crucial element of whether a stop is extended beyond its original purpose, we believe the issue was sufficiently preserved for review.
The Court does not agree with Lee that the fact-finding regarding how long the stop lasted was erroneous or unclear. In its Order on Defendant's Motion to Suppress Evidence, the circuit court stated Lee's rights were not violated "because the initial investigation was never abandoned to conduct an open-air sniff." The circuit court found Officer Johnson deployed Conner while Deputy Burgdolf was still administering the field sobriety tests to Lee. The circuit court adequately addressed the issue of whether the original stop was extended to permit the dog sniff and found that this did not happen. Lee could have requested the circuit court to make additional findings pursuant to CR 52.02, but he did not. The circuit court did not err in its fact-finding.
Kentucky Rules of Civil Procedure.
We turn from the fact-finding issues to the legal merits of Lee's appeal. A police officer may not extend or prolong a traffic stop without a reasonable and articulable suspicion to conduct further criminal investigation. Rodriguez v. United States, 575 U.S. 348, 355, 135 S.Ct. 1609, 191 L.Ed.2d 492 (2015). Officers who pursue purposes other than those associated with the original mission of the stop for any amount of time unconstitutionally prolong the stop. Commonwealth v. Clayborne, 635 S.W.3d 818, 824 (Ky. 2021) (citing Illinois v. Caballes, 543 U.S. 405, 408, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005)). A stop is therefore extended when officers pursue purposes or tasks unrelated to their main objective of addressing a traffic violation and that new pursuit adds time to the stop. Id. (citing Carlisle v. Commonwealth, 601 S.W.3d 168, 176 (Ky. 2020)).
Extensive authority in the form of numerous cases address whether allowing a drug dog sniff impermissibly extends a lawful traffic stop. In Caballes, an Illinois state trooper stopped the defendant ("Caballes") for speeding. The trooper contacted his dispatcher to report the stop, and a second trooper overheard the transmission and immediately headed for the scene with his narcotics-detection dog. Id. at 406, 125 S.Ct. at 836. The second trooper arrived at the scene while the first trooper was in the process of writing a warning ticket. Id. The second trooper walked the dog around the vehicle who then alerted at the trunk. Id. The trunk was searched, and marijuana was found. Id. Caballes was arrested.
The Illinois Supreme Court reversed Caballes' conviction, concluding that because the canine sniff was performed without any "specific and articulable facts" to suggest drug activity, the use of the dog "unjustifiably enlarg[ed] the scope of a routine traffic stop into a drug investigation." Id. at 407, 125 S.Ct. at 836-37 (internal quotation marks omitted).
The Supreme Court of the United States granted certiorari on the following question of law: "Whether the Fourth Amendment requires reasonable, articulable suspicion to justify using a drug-detection dog to sniff a vehicle during a legitimate traffic stop." Id., 125 S.Ct. at 837. The Court vacated the decision of the Illinois Supreme Court. The Court held that, since the first trooper's lawful traffic stop was not extended beyond the time necessary to issue the warning ticket and to conduct ordinary inquiries incident to such a stop, the second trooper's arrival at the scene while the stop was in progress and use of a narcotics-detection dog to sniff around the exterior of the vehicle did not rise to the level of cognizable infringement on the motorist's Fourth Amendment rights. Id. at 408-09, 125 S.Ct. at 837-38.
A decade later, the United States Supreme Court further commented on when deploying a narcotics dog unconstitutionally prolongs a traffic stop. In Rodriguez, supra, a canine officer stopped the defendant for a traffic violation. Id. at 351, 135 S.Ct. at 1612. After the officer attended to everything relating to the stop, he asked Rodriguez for permission to walk his dog around the vehicle. Id. at 352, 135 S.Ct. at 1613. Rodriguez refused, and he was detained until a second officer arrived to perform the dog sniff. Id. The dog alerted to the presence of drugs in the vehicle. Seven or eight minutes elapsed from the time the officer issued the written warning until the dog alerted. Id.
The Rodriguez Court held police may not extend or prolong an otherwise-completed traffic stop, absent reasonable suspicion, in order to conduct a dog sniff. "An officer, in other words, may conduct certain unrelated checks during an otherwise lawful traffic stop. But . . . he may not do so in a way that prolongs the stop, absent the reasonable suspicion ordinarily demanded to justify detaining an individual." Id. at 355, 135 S.Ct. at 1615.
The Kentucky Supreme Court first applied Rodriguez in Davis v. Commonwealth, 484 S.W.3d 288 (Ky. 2016), in which a defendant ("Davis") appealed the trial court's denial of his motion to suppress evidence found on his person and in his vehicle following an alert by a narcotics-detection dog. An officer following Davis' vehicle noticed the vehicle cross the center line of the road multiple times. Id. at 290. The officer stopped Davis for possible drunk driving and administered two field sobriety tests. Davis passed both tests, and a preliminary breath test registered no presence of alcohol. Id. at 291. The officer then asked if he could search Davis' vehicle, but he did not consent. The officer then had his dog perform a sniff test around the vehicle's exterior despite the objections of Davis. The dog alerted to drugs. Id.
On appeal, Davis argued the routine traffic stop was unlawfully extended beyond its original purpose to enable the sniff by the dog. The Supreme Court agreed, stating: "[A]s explained in Rodriguez, 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." Id. at 294 (emphasis in original).
Kentucky courts have since added additional analysis to the Rodriguez standard. In Commonwealth v. Mitchell, 610 S.W.3d 263 (Ky. 2020), police officers stopped a vehicle for screeching tires. Approximately 12 minutes after the initial stop and after the completion of the background check on the occupants, the officers had a discussion for another two to three minutes about whether to request a canine unit. Id. at 266. The canine unit ultimately arrived at the scene approximately 30 minutes after the stop. Id. at 267. The officers searched the vehicle and found illegal firearms. Id.
The court found the officers extended the completion of the stop beyond its original purpose to discuss and then request a drug dog sniff. The court stated: "When it comes to pursuing unrelated investigative issues, officers must be able to do so while simultaneously completing the purpose of the stop." Id. at 270.
A year after Mitchell was rendered, the Supreme Court stated in Clayborne that "concurrent operations may provide an exception to our noextension rule[.]" Clayborne, supra, at 826-27. Regarding their ruling in Mitchell, the court stated: "Had one officer continued issuing the citation while another officer simultaneously conducted a dog sniff, that search would have been permissible." Id. at 827. The court recognized Caballes held "that a dog sniff executed concurrently with diligent traffic-related work did not unduly prolong the stop, even absent independent justification for the dog sniff." Id. (citing Caballes, supra, at 409, 125 S.Ct. at 838). The court noted the Rodriguez Court explicitly cited to and acknowledged its prior ruling in Caballes. Id.
Returning to the current case, we agree the circuit court properly denied Lee's motion to suppress. Burgdolf was still conducting his impaired driver investigation when Johnson showed up with Conner. The initial investigation had not been abandoned. The deployment of Conner was simultaneous with the separate administration of field sobriety tests. This was a permissible concurrent operation. While it took Johnson approximately 10 minutes to arrive at the scene after hearing it on the radio, he still arrived and deployed Conner before Burgdolf completed the sobriety tests.
Conner's alert provided probable cause to search Lee's vehicle. There is no evidence of Burgdolf purposefully slowing down the traffic stop for Johnson and Conner to arrive. Johnson pointedly did not interact with Lee out of his concern to do nothing which could even arguably be seen as prolonging the overall time of the stop. Since the stop was lawful and the dog sniff was conducted simultaneously with the stop, a reasonable suspicion to separately justify detention for the dog sniff was not required.
CONCLUSION
The circuit court properly denied Lee's motion to suppress evidence because the dog sniff was conducted simultaneously with the valid traffic stop to investigate an impaired driver situation. The traffic stop was not prolonged. The judgment of the Marshall Circuit Court based on the prior suppression ruling is AFFIRMED.
ALL CONCUR.