Case Number: 2016-SC-000429-DG

Judge: Daniel Venters

Court: Kentucky Supreme Court

Plaintiff's Attorney: Andy Beshear
Attorney General of Kentucky
James Daryl Havey
Assistant Attorney Gen~ral
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Defendant's Attorney: Brandon Neil Jewell
Assistant Public Advocate

Description: Lexington Police Officer Roman Sorrell was following a vehicle in the very
early hours of a December morning. He performed a registration check on the
vehicle license number and discovered that the vehicle's registration had been
cancelled because it had no liability insurance coverage. Sorrell initiated a
traffic stop of the vehide at 3':35 a.m. Appellant was driving the vehicle.
At Sorrell's request, Appellant provided his driver's license. He told
Sorrell that the car was not his an& that he could not provide proof of
insurance.~. Sorrell described Appellant as fully cooperative but abnormally
nervous .and sw~ating at the brow. Appellant was .smoking a cigarette and
blowing the smoke into the vehicle's interior. He kept looking toward the right
side of the car.
Sorrell took Appellant's d_river's license back to his cruiser and began
writing .the traffic citation. He also spent about five minutes accessing a jail
website and a police database to find out more information about Appellant.
That inquiry disclosed that Appellant had been charged previously with
trafficking in marijuana and carrying a concealed deadly weapon; it did not . r.
indicate whether Appellant had been convicted of these charges.
Sorrell returned to Appellant's vehicle. He told Appellant that he knew
about the prior charges.. He asked if Appell~t had drugs or weapons· in the
vehicle. Appellant said lie did not. Sorrell asked for consent to search the
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vehicle, and Appellant declined. Sorrell acknowledged that at that point in the
usual traffic stop, he would have given the driver a citation and let him leave.
However, because Appellap.t seemed nervous, was sweating, blew his cigarette
smoke into the vehicle instead of toward the officer," kept looking to the right
\_ side of the car, and had prior charges, Sorrell decided that he would detain
Appellant further while he called for a canine unit to conduct a sniff search of
the vehicle .
. The canine handler, Officer Jones, arrived with the dog within a few
minutes. After speaking to Sorrell and Appellant, Jones retrieved the dog and
conducted a sniff search of the car. The dog alerted to indicate the presence of
drugs on the driver's side of the vehicle.
Sorrell and yet another officer who had arrived on the scene then
searched Appellant's vehicle. In the~glove compartment (not on the driver's ' side of the car as the dog indicated), they found a cigarette box containi!1g
cocaine and methylone, a controlled subs~ce they thought was heroin .. They
also found a handgun under the driver's seat. Appellant was arrested at 4:20
a.m., some forty-five minutes after the initial stop.
Appellant was indicted on two counts of trafficking in a controlled_
substance (heroinl and cocaine); receiving stolen property (the firearm); and
carrying a· concealed deadly weapon. He moved to suppress the incriminating
~ I This charge was amended to trafficking in a controlled substance, second degree. ·
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evidence on the basis that he was detained by the sniff search beyond the time
reasonably required to complete the traffic stop.
After the trial court denied the suppression motion, Appellant preserved
his right to appeal by entering a conditional guilty plea to one count of
possession of a controlled sub~tance, first degree, cocaine, and carrying a
concealed deadly weapon. The Court of Appeals affirmed the trial court's
denial of Appellant's motion to suppress. We granted discretionary review.
II. ANALYSIS
When reviewing a trial court's ruling on a motiop. to suppress, the
findings of fact are reviewed under a clearly erroneous standard, and the
conclusions of law are reviewed de novo. Davis v. Commonwe,alth, 484 S.W.3d
288, 290 (Ky. 2016) (citations omitted). Since the parties do not challenge the
trial court's findings of fact, we tum our attentl.on to the trial court's
conclusions of law.
The trial court concluded, and no one disputes, that the initial traffic
stop was justified when Sorrell obtained information indicating that the vehicle
was uninsured. Wilson v. Commonwealth, 37 S.W.3d 745, 749 (Ky'. 2001) ("[A]n
officer who has probable cause to believe a civil traffic violation has occurred
may stop a vehicle regardless of his or her subj~ctive motivation in doing so.").
The triai court also acknowledged our holding in Commonwealth v.
Bucalo, 422 S.W.3d 253, 258 (Ky. 2013), that a lawful traffic stop may
nevertheless violate an individual's Fourth Amendment rights
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'if its manner of execution unreasonably infringes interests protected by the Constitution'2 or it 'last[s] longer than is necessary to effectuate the purpose of the stop. '3 Generally, if an officer unreasonably prolongs the investigatory stop in order to facilitate a dog sniff, any resulting seizure will be deemed unconstitutional.
We also said in Bucalo that a traffic stop may be prolonged beyond the
time required to effectuate the purpose of _the stop when additional information
properly obtained during the stop provides the officer with a reasonable and
articulable suspicion that other criminal activity is afoot. Id. at 259 (citing
Terry v. Ohio, 392 U.S. 1, 30 (1968)).
At the time of its ruling, the trial court did not have the benefit of the
Supreme Court's more recent statement on this issue in Rodriguez v. United
States, 135 S. Ct. 1609 (2015), nor did it have our post-Rodriguez decision, \. Davis v. Commonwealth, 484 S.W.3d 288 (Ky. 2016). Davis and Rodriguez
involved the increasingly common scenario we see here: 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. Rodriguez highlighted and clarified several principles relevant
to this scenario. L
First, the Fourth Amendment tolerates certain unrelated investigations
conducted during a routine traffic stop as long as they do not lengthen the
2 Quoting fllinois v. Caballes, 543 U.S. 405, 407 (2005).
3 Quoting Florida v. Royer, 460 U.S. 491, 500 (1983).
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roadside detention. The traffic stop may not be prolonged beyond the point ·
reasonably required to complete the stop's mission. Otherwise, the stop
constitutes an unreasonable seizure. 135 S. Ct. at 1614-1615,
Second, "[a]uthority for the seizure [of the vehicle and the driver] ends
when tasks tied to the traffic infraction are-or reason~bly should have been
completed." Id. at 1614. ·"[I]n determining the reasonable duration of a stop, 'it
I [is] appropriate to examine whether the police diligently pursued [the]
investigation."' Id. (quoting United States v. Sharpe, 470 U._S. 675, 686 (1985)).
More significantly, however, Rodriguez addressed the burgeoning
question.of whether prolonging the stop for a "de minimis" time to conduct
additional investigation unrelated to the purpose of the initial stop would be
regarded as constitutionally significant. The Rodriguez Court noted that
officers\may slightly extend the stop with "certain negligibly burdensome
precautions" needed to assure their safety. Id. at 1616. No constitutional
violation occurs because those precautionruy measures are directly connected
to the mission of the initial' traffic stop. "On-scene investigation into other
crimes, however, detours from that mission." Id. 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 no_t fairly characterized as part of
the officer's traffic mission." Id. at 1615. \ . In short, in Rodriguez the Supreme Court issued a blunt rejection of the argument that a "de minimis'' extension of the time taken for the stop does not
offend the Fourth Amendment:
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As we said in Caballes and reiterate today, a traffic stop 'prolonged beyond' that point is 'unlawful.' The critical question, then, is not whether the dog sniff occurs before or after the officer issues a ticket, ... but whether conducting the sniff 'prolongs'-i.e., adds time to-'the stop.'
Id. at 1616 (internal citations omitted).
' Applying Rodriguez, we held in Davis v. Commonwealth 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." 484
S.W.3d at 294.
Appellant concedes that the initial traffic stop was valid, but he contends
that the stop was .unconstitutionally prolOnged on two occasions. First, he
argues that Sorrell's legitimate mission-· issuing traffic citations for the vehicle
registration and insurance violations-was impermissibly extended without
good cause when Sorrell diverted his attention from writing the traffic citation
and spe~t several minutes searching online databases for information
pertaining to Appellant
Second, Appellant contends that, even if Sorrell's time spent searching
the online databases was part of his diligent pursuit of the traffic 'citation,
deferring the traffic citation to call in the canine unit and waiting for the dog
sniff unconstitutionally prolonged his detention.
We note at th'.is point that Rodriguez identifies as one of the routine tasks ' associated with a proper traffic stop a check for any outstanding warrants that
may be pending against the driver. 135 S. Ct. at 1615 (citing Caballes, 543
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U.S. at 408; Delaware v. Prouse, 440 U.S. at 658-660 (1979); 4 W. LaFave, r ,..--- Search and Seizure§ 9.3(c), pp. 507-517 (5th ed. 2012)). The officer did not
clearly identify the "jail website," but he admitted that it only provides a
"charge record." He said: "J d_on't have access to convictions." He described the
police database as "AS-400" and as containing more detailed h;1formation-than
the jrul website, but he makes no reference to outstanding warrants.
Significantly, the officer never says that he used these websites to see if
Appellant was wanted on outstanding warrants, and the Commonwealth never
argues that the officer spent any time at all checking for outstanding warrants.
Nevertheless, we will indulge in the presumption that at least a portion of the
officer's time spent on the online sites can be justified as a check for
outstanding warrants, although the Commonwealth does not assert as much.
Faced with a silent record, we can presume no more.
The·trial court acknowledged that Sorrell's justification for delaying the
traffic citation to search computer databases wa~ "certainly not ovei-Whelming,"
but concluded that Appellant's nervousness and sweaty brow at 3:30 a.m. and
"blowing smoke in a rather strange way'' justified an extension of the stop to
conduct the additional investigation on the computer.
Next, the trial court acknowledged that calling in a canine search was "a
little bit unusual when you get stopped for no license tag, no valid license tag,
and just having no insu_rance." Nevertheless, the trial court concluded that the
fact that Appellant was nervous, sweating, and blowing smoke in the car, and
additionally :Q.ad "~harges of carrying a concealed deadly weapon and
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marijuana," established reasonable and articulable suspicion to justify the
prolonged detention of Appellant until the dog could arrive and complete his
search.
The Court of Appeals agreed, concluding that after seeing Appellant and
getting his driver's license, Sorrell had reasonable and articulable suspicion to
return to the cruiser and check for Appellant's name on computer databases
because Appellant: 1) was nervous; 2) had sweat on his brow; 3) was blowing
cigarette smoke toward the car's interior; and 4) was looking around and over'
his shoulder.
The Commonwealth agrees that Sorrell extended the traffic stop beyond
the time necessary to resolve the traffic violation. The question is whether the
officer had a reasonablerarticulable suspicion of other ongoing illegal activity
when he prolonged the stop for the time needed to retrieve the dog and conduct
the sniff search. We consider the totality of the circumstances to determine
whether a particularized and objective basis existed for suspecting Appellant of
illegal activity. United States v. Cortez, 449 U.S. 411, 417 (1981). · . '
When assessing the totality of the circumstances relevant to a Fourth
Amendment claim, there is a "demand for specificity in the information upon . '
which police .action is predicated." Terry, 392 U.S. at 22 n.18. We consider the
information from which a trained officer makes inferences, such as objective
(• observations and the method of-operation of certain.,kinds of criminals, and
r whether that information yields a particularized suspicion that the particular
individual being stopped"is engaged in wrongdoing . . Cortez, 449 U.S. at 417
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418. Due weight is given to specific reasonable inferences. Terry, 392 U.S. at
27. Although this "process does not deal with hard certainties, but with
probabilities," Cortez, 449 U.S at 418, a reasonable suspicion is more than an
,unparticularized 'suspicion or hunch, Terry, 392 U.S. at 27.
Appellant argues that the circumstances cited by the Commonwealth as
justific.ation for prolonging the traffic stop neither individually nor collectively
give rise to a reasonable suspicion that he was involved in any criminal activity.
He cites Strange v. Commonwealth, 269 S.W.3d 847, 851 (KY:. 2008), and
Commonwealth v. Sanders, 332 S.W.3d 739, 741 (Ky. App. 2011), as analogous
cases in which this Court and the Court of Appeals respectively found that the
circumstances were insufficient to establish reasonable suspicion of criminal
activity. In Strange, the suspect stood late at night in a public area kriown for
criminal activity near a public pay phone that had been occasionally used for
drug transactions. As officers approached, he walked quickly to a van parked
nearby. We rejected 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. We held that there was insufficient evidence to justify an
investigatory stop and seizure. In Sanders, the suspect was a pedestrian out
late in a neighborhood known for drug activity. She was seen following
someone, and sometime later, she returned to the street walking in the
opposite direction and she appeared nervous. The Court of Appeals concluded '·
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that these factors did not give rise to reasonable suspicion that the pedestrian
was involved in criminal activity.
The Commonwealth concedes that none of the individual factors of
. . Appellant's conduct would arouse a reasonable suspicion, but it argues that
taken together each behavior added to the level of suspicion and, in total,
created reasonable suspicion. The Commonwealth points to Adkins v.
Commonwealth, 96 S.W.3d 779, 788 (Ky. 2003), where this Court cited
nervousness as an appropriate factor in the reasonable suspicion analysis. To
support its argument that Appellant's behaviors of nervousness, glancing over
his shoulder, and blowing cigarette smoke create articulable suspicion, the
Commonwealth also cites cases from other jurisdictions: United States v.
Mason, 628 F.3d 123, 129 (4th Cir. 2010) (driver nervous); United States v ..
Holt, 777 F.3d 1234, 1257 (11th Cir. 2015) (driver nervous); Green v. State: 256
S.W.3d 456 (Tex. App. 2008) (outside vehicle, driver nervously glanced at it);
United States v. Christian, 43 F.3d 527, 530 (10th Cir. 1994) (driver had freshly
lit cigarette); State v. Franzen, 792 N.W.2d 5·33 (N.D. 2010) (driver had freshly
lit cigarette); and United States v. Neumann, 183 F.3d 753, 754, 756 (driver had
freshly lit cigarette).
Upon review, however, we are satisfied that these cases are not
comparable to the one now before us. Unlike Strange and Sanders, each of the
cited cases involved facts beyond the demeanor or behavior of the driver in the
vehicle that allowed a rational inference to be made that the driver was . .
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engaging in criminal activity.4 In contrast, Officer Sorrell articulated nothing
about Appellant's.behaviors, individually or collectively, to connect him to
criminal behavior beyond what may be ordinarily expected of a driver stopped
for a traffic violation. Heightened nervousness is common among drivers
detain~d by a police officer for a traffic violation. See United States v. Wood,
106 F.3d 942, 948 (10th Cir. 1997). Sweating is a symptom of nervousness in
som~ people. Sorrell saw no indication that Appellant was intoxicated or
otherwise impaired. Moreover, he was fully cooperative and coherent. He
made no "furtive gestures" ,to indicate. he was trying to hide anything. The
Commonwealth hints that blowing smoke into the car's interior could have
been an attempt to mask an incriminating odor. However, even the trial court
was indifferent to the significance of that conduct. The trial court noted that
perhaps Appellant was being "courteous and not blowing smoke in the officer's
face. Or was he trying to cover up .. the smell of marijuana? Who knows?" No
marijuana or aromatic contraband was found.
4 For example, in Mason, the driver. did not pull over promptly and during that time spoke with the passenger; the officer encountered the extreme odor of air fresheners; the officer observed o:qly a single key on the driver's ring, who was traveling with a passenger ·on a known drug route from a source city; the driver and passenger gave conflicting answers about the purpose of their travel; and a newspaper in the backseat contradicted the driver and passenger's stories about where they stayed. In Holt, during the 2007 stop, the driver did not answer questions about where he was coming from and going to and the officer recognized the driver from his time working in a narcotics unit; during the 2010 stop, the driver offered only short, vague answers to the officer's questions and the driver and passenger provided inconsistent statements about their recent travel. And in Green, the driver had stopped in front of a known drug house, with someone walking from his truck back to the house; the driver had gotten out of and away from his truck when he was pulled over and was walkiI,lg toward the officer's car, and the driver, glancing nervously at his truck, initially did not comply with the qfficer's order to return to it.
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Simply put, Appellant's behavior during the traffic stop as art~culated by
the officer on the scene and the prior charge information obtained during the
database search do not create a reasonable suspicion that Appellant was then
and there engaged in illegal behavior beyond the apparently obvious traffic
violations fqr which he was stopped. The dissent believes we have not
considered some circumstances that might be factored into the reasonable
suspicion calculatibn. We examined ail 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 Appellant was permissibly driving someone else's
uninsu:r~ed car does nothing to raise suspicion that criminal activity .was afoot
or that Appellant was transporting illegal drugs, which was the object of the
canine sniff search.
The dissent misconstrues the principle that "criminal history contributes
powerfully to the reasonable suspicion calculus." See United States v. Santos,
403 F.3d 1120, 1132 (10th Cir. 2005). As noted above, the officer claimed only
that Appellant had been previously charged with carrying a concealed weapon
' I and tr~ficking in marijuana; he admitted he had no knowledge of any prior
convictions. Mere charges do not constitute a "criminal history" upon which
one might reasonably suspect future criminal behavior. Even the prosecutor at
the suppression hearing, after mentioning Appellant's "criminal history,"
immediately corrected himself and said that Appellant had a "law enforcement
history." The Commonwealth never claims that the officer acted upon
knowledge of Appellant's criminal history because the record clearly shows he
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did not. If Appellant even had a criminal history, it was not part of the
"calculus" used to determine reasonable suspicion in this case.
We are satisfied that even with the additional information obtained from
the online databases that Appellant had been previously charged with
trafficking in marijuana and carrying a concealed deadly weapon, the officer
had no reasonable suspicion to believe that Appellant was then and there
engaged in criminal activity beyond the traffic offenses for whibh he was
legitimately stopped. It follows that the dog sniff which followed was
unreasonable and· constitutionally impermissible. Evidence discovered during
the subsequent canine search must be suppressed as the product of an __,
unconstitutional seizure and should have been suppressed. Segura v. United
States, 468 U.S. 796, 804 (1984).
This opinion is not for Rakim Moberly. He has pleaded guilty and has
already served out his prison sentence for these crimes. We render this
opinion for the untold numbers of innocent Kentucky_citizens who have had
"criminal ch~ges" and may become nervous an_d sweaty and look around when
confronted by police at a traffic stop at night, and if smoking at the time, would
reasonably direct the smoke away from the officer. They have the right to live
their lives unfettered by police having no reasonable articulable suspicion to
interfere. The Commonwealth's position is tantamount to a, rule that says
those citizens have no ·Fourth Amendment protection against unreasonable
searches and seizures. We reject that position.

Outcome: For the foregoi:rtg reasons, we reverse the Court of Appeals' decision and
remand the case to the Fayette Circuit Court for further proceedings consistent
with this· opinion.

Plaintiff's Experts:

Defendant's Experts:

Comments: