Commonwealth of Kentucky v. Shuntrell D. Conner ( 2021 )

RENDERED: DECEMBER 16, 2021
TO BE PUBLISHED
Supreme Court of Kentucky
2020-SC-0099-DG
COMMONWEALTH OF KENTUCKY APPELLANT
ON REVIEW FROM COURT OF APPEALS
V. NO. 2017-CA-1947
FULTON CIRCUIT COURT NO. 17-CR-00003
SHUNTRELL D. CONNER APPELLEE
OPINION OF THE COURT BY CHIEF JUSTICE MINTON
AFFIRMING
We granted the Commonwealth’s motion to review the Court of Appeals’
reversal of the trial court’s denial of Shuntrell D. Conner’s motion to suppress
evidence found in a drug dog sniff search during a traffic stop of the vehicle in
which Conner was a passenger. The Court of Appeals determined that the
investigating officer unconstitutionally extended the duration of the traffic stop
to accommodate the dog-sniff search; as such, the search was unlawful and
the trial court erred by denying the motion to suppress the evidence discovered
in the search. We agree and affirm the Court of Appeals’ decision.
I. BACKGROUND
Officer Brandon Mayo stopped the van in which Conner was a passenger.
During the stop, a drug dog alerted to the presence of drugs inside the van,
and officers searched it, uncovering 6.5 ounces of marijuana. The
Commonwealth later charged Conner with trafficking in marijuana,1 tampering
with physical evidence,2 possession of drug paraphernalia,3 and being a first-
degree persistent felony offender.4
Conner filed a motion to suppress all evidence discovered during the
search. He argued that the traffic stop was unconstitutionally prolonged to
obtain a drug sniff unrelated to the purpose of the traffic stop. As such,
Conner argued that evidence seized during the search of the van should be
suppressed as the fruits of an illegal seizure. The Commonwealth argued in
response that Officer Mayo developed reasonable, articulable suspicion during
the traffic stop, giving rise to an investigation into possible illegal drug activity.
The trial court held an evidentiary hearing on the motion.
At the hearing, the Commonwealth called Officer Mayo as its only
witness. He testified that, at 8:12 p.m. on November 12, 2016, he pulled over a
silver van after it swerved in the road. Mayo recognized the van as one
previously operated by Conner. This time, Joey Garmon operated the van, and
Conner rode in the front passenger seat. When Officer Mayo approached the
van, he recognized Conner from having pulled him over a couple of weeks
before this incident. He testified that he learned during this earlier traffic stop
1 Kentucky Revised Statutes (KRS) 218A.1421.
2 KRS 524.100.
3 KRS 218A.500(2).
4 KRS 532.080.
2
that Conner was not supposed to be driving.5 Officer Mayo asked Garmon why
he was swerving, and Garmon told him he swerved to miss a pothole. Officer
Mayo then asked for Garmon’s license, proof of insurance, and registration,
and he also collected Conner’s license.
Officer Mayo testified that he returned to his cruiser and ran a records
check of Garmon’s license. Officer Mayo stated that he “had heard previous
that Mr. Conner was trafficking some type of dope, I had heard
methamphetamines, at that time it sparked my interest to investigate further.”
Officer Mayo testified that, while sitting in his cruiser, he observed Conner
shoving a plastic bag underneath something in the backseat. Officer Mayo
testified that, at this time, “it became an investigative stop for supposedly [sic]
drugs.”
At the hearing, the defense played footage of the traffic stop as captured
on Officer Mayo’s body camera.6 The video did not show Officer Mayo’s first
encounter with the van when he approached it and asked about Garmon’s
swerving. At the beginning of the video, Officer Mayo was standing behind the
stopped van, speaking with two other officers. Officer Mayo told the other
officers that “the passenger is supposed to be trafficking meth . . . he’s got
some boxes and shit back there.” Officer Mayo then checked his watch, noted
the time was 8:15 p.m., and returned to the driver’s side window of the van.
5 Officer Mayo did not state why Conner was not supposed to be driving.
6 The footage does not capture the entirety of the traffic stop, and the quality of
the audio is poor.
3
He then said to Conner, “I need to talk to you for a minute brother, can you get
out?” Conner explained that he recently had surgery, and he asked not to get
out. When Garmon asked what was going on, Officer Mayo replied, “I just need
to talk to him for a second.” Garmon again asked whether there was a
problem, and Officer Mayo replied, “yeah here’s the problem” and explained
that he had information about drugs.7 Officer Mayo then asked whether there
was anything in the van that he needed to know about, and Conner replied
that he was moving his clothes. Officer Mayo then asked whether he could
take a look, and Conner declined, explaining that it was not his van, and there
was nothing but clothes in the back. Officer Mayo responded “I ain’t [sic]
worried about no clothes, . . . as long as there’s no dope in here, I don’t care.”
Conner again declined, stating that the van belonged to his friend, Michelle
Martinez. Officer Mayo then said “I can get a dog up here, he can search, that’s
what I’m saying. It’s up to you.”
After Garmon declined the search and Officer Mayo asked about
Conner’s relationship with Martinez, Officer Mayo then stated, “All right, well
give me a few minutes and we’ll get the dog up here in a little bit.” Officer Mayo
then returned to his cruiser. This encounter—from the time Officer Mayo
asked Conner to get out of the van so they can talk to the time he left the van’s
driver’s side window—lasted about two minutes.
7 Officer Mayo’s words are hard to make out from the body-camera footage, but
it is apparent that he tells Conner and Garmon that he has information about
trafficking drugs.
4
When he returned to his cruiser, Officer Mayo requested a canine unit
through his radio and ran a check on Garmon’s license.8 Officer Mayo testified
that, while on the radio, he saw Conner shove something underneath
something in the backseat. He then returned to the driver’s side window of the
van and asked Conner what he was moving in the backseat, and Conner
replied that he was just throwing something around. He again requested to
search the van, and Conner again declined. Officer Mayo then said, “You’re
telling me right now that there’s dope in the van because you don’t want me to
search it. That’s what you’re telling me. The dog’s going to come up here and
hit on it if there is, that’s what I’m saying.” After Conner denied that there was
anything in the van, reiterating that the van is not his, Officer Mayo said, “I’ve
been told a hundred times you’re slinging dope right now. That’s what I’ve
been told.” After some more discussion,9 Officer Mayo said, “All right, well we’ll
get a dog and as soon as he gets up here and does his thing you all will be good
to go.”
Officer Mayo then walked to the rear of the van and explained to one of
the other officers who had arrived at the scene that they have to call another
dog unit and that Conner is not letting him search the vehicle because “there’s
8 Although the poor audio quality of the video makes it difficult to discern
exactly what Officer Mayo said on the radio, it is apparent that he is requesting a
canine. Also, it is impossible to tell whether Officer Mayo runs Garmon’s license at this
point, but he testified that he did so upon first returning to his vehicle.
9 Because of the poor audio quality, it is difficult to tell what Conner and Mayo
are discussing.
5
dope back there.”10 Officer Mayo then returned to his vehicle and placed a
phone call, stating, “Where you at? I need your dog.” This encounter—from the
time Officer Mayo asked Conner what he moved in the back seat to the time
Officer Mayo returned to his vehicle and placed the second call for a drug dog—
lasted approximately six minutes.
The body camera footage did not capture anything for a while following
this point. But Officer Mayo testified that he placed a call to another canine
officer, Officer Nolan, who informed Officer Mayo that Conner had an active
arrest warrant.11 Officer Mayo testified that he then detained Conner pursuant
to the warrant. The drug dog arrived at 8:34 p.m.—approximately seventeen
minutes after Officer Mayo’s request to Officer Nolan and thirty-one minutes
after the traffic stop began.
Officer Mayo testified that the dog alerted on the driver and passenger
sides of the van. The ensuing search of the van yielded 6.5 ounces of
marijuana, of which Conner claimed ownership. Officer Mayo testified that, at
that point, he conducted a field sobriety test of Garmon, which Garmon
10 Specifically, Officer Mayo told the other officer that the reason Conner does
not want him to search the vehicle is “because they got dope in there.” He then stated
“So, that’s why we called for a canine unit. The bad thing is Johnny’s off, which is one
of our canine units from the Sherriff’s office.”
11 Officer Mayo’s testimony is somewhat conflicting on this point. At one point,
he testified that Officer Nolan was the first canine officer he called. However, the body
camera footage makes clear that Officer Mayo initially called for a canine unit the first
time he returned to his cruiser, which occurred immediately after Officer Mayo
questioned Conner about drug trafficking and stated, “All right, well give me a few
minutes and we’ll get the dog up here in a little bit.” In any case, it is undisputed that
Officer Mayo called Officer Nolan to request his canine at this moment, and that
Officer Nolan informed Officer Mayo of Conner’s arrest warrant during this call.
6
passed. Officer Mayo released Garmon and had the van towed away. In total,
the stop lasted approximately an hour and twenty minutes.
Following the hearing, the trial court denied Conner’s motion to
suppress, concluding that Officer Mayo had not unlawfully prolonged the stop
to accommodate the dog sniff. First, the trial court determined that any
extension of the stop after Officer Mayo’s discovery of Conner’s arrest warrant
was justified by his execution of the warrant. Second, the trial court found
that Officer Mayo’s knowledge of Conner’s potential drug dealing, criminal
history, and his witnessing Conner’s movement inside the van during the stop
provided reasonable suspicion sufficient to prolong the stop.
The Court of Appeals reversed the trial court, finding that Officer Mayo
did not have reasonable, articulable suspicion of drug activity at the time he
extended the stop to call for a drug dog. The Commonwealth moved this Court
for discretionary review, which we granted.
II. STANDARD OF REVIEW
“For motions to suppress the fruits of a warrantless search, ‘[t]he
Commonwealth bears the burden of establishing the constitutional validity’ of
that search.”12 “When reviewing a trial court’s ruling on a motion to suppress,
the findings of fact are reviewed under a clearly erroneous standard, and the
12Commonwealth v. Clayborne, No. 2020-SC-0058-DG, ___S.W.3d___, 2021 WL
4487288, at *2 (Ky. Sept. 30) (quoting Commonwealth v. Lane, 553 S.W.3d 203, 206
(Ky. 2018)), modified on reh’g, ___S.W.3d___ (Ky. Dec. 16, 2021).
7
conclusions of law are reviewed de novo.”13 That is, “we affirm the trial court’s
findings of fact if those findings are supported by substantial evidence.”14 And,
“if the court’s findings of fact are supported by substantial evidence, we then
conduct a de novo review of the court’s application of the law to the facts.”15
Further, because “the factual findings of the trial court in a suppression
matter are conclusive so long as they are supported by substantial evidence . .
. a reviewing court should take care both to review findings of historical fact
only for clear error and to give due weight to inferences drawn from those facts
by resident judges and local law enforcement officers.”16 “A finding of fact is
clearly erroneous if it is not supported by substantial evidence; that is,
evidence sufficient to induce conviction in the mind of a reasonable person.”17
The trial court’s factual findings in the present case are sparse, and a
fair examination of those findings in the context of all the evidence presented at
the suppression hearing reveals some inaccuracies. “Indeed, the trial court
disregarded crucial undisputed testimony essential to the situation we
address.”18
For example, the trial court found that “Officer Mayo recognized the
passenger to be [Conner] and believed that there was an outstanding arrest
Moberly v. Commonwealth, 551 S.W.3d 26, 29 (Ky. 2018) (citing Davis v.
13
Commonwealth, 484 S.W.3d 288, 290 (Ky. 2016)).
14 Turley v. Commonwealth, 399 S.W.3d 412, 417 (Ky. 2013).
15 Id. (citing Commonwealth v. Pride, 302 S.W.3d 43, 49 (Ky. 2010)).
16 Id. (quoting Commonwealth v. Ousley, 393 S.W.3d 15, 22 (Ky. 2013)).
17 Id. (citing Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003)).
18 Id. at 418.
8
warrant for [Conner].” But Officer Mayo did not testify that he believed Conner
had an outstanding arrest warrant at the point when he recognized Conner as
the passenger in the van. Instead, Officer Mayo testified that he learned of the
warrant when he contacted Officer Nolan to ask if he could provide a drug dog.
In another instance, the trial court found that “while running the license
plate and checking to see if there was, in fact, an active arrest warrant for
[Conner], Officer Mayo saw [Conner], through his cruiser windshield and into
the back window of the vehicle, reach behind him and place something in a
plastic bag behind the driver’s seat.” But Officer Mayo was not checking for
Conner’s arrest warrant at the time he observed Conner move something inside
the van. Instead, Officer Mayo testified that he ran Garmon’s license upon first
returning to his vehicle, and his body camera footage reveals that he was
calling for a drug dog during this period of time. Further, Officer Mayo testified
that he did not run Garmon’s license or check for a warrant until after he
discovered from Officer Nolan that Conner potentially had an active arrest
warrant—this discovery occurred after Officer Mayo observed Conner’s
movement inside the van.
We find particularly problematic the trial court’s factual findings
regarding Officer Mayo’s reasonable, articulable suspicion of Conner’s alleged
drug trafficking. Specifically, the trial court found that
Officer Mayo’s knowledge of [Conner’s] criminal history, the tip that
[Conner] was dealing drugs, and [Mayo’s] witnessing the
movements of [Conner] in placing something behind the driver’s
seat, altered the initial purpose of the traffic stop into probable
cause to investigate potential drug activity.
9
But the hearing record clearly demonstrates that Officer Mayo observed
Conner’s movements in the car only after initially questioning Conner about
drug dealing, threatening the use of a drug dog if Conner did not give consent
to search, and calling the first canine unit.
Only by disregarding portions of Officer Mayo’s testimony and the body-
camera footage could the trial court have made these findings. And the trial
court’s order contains few findings besides the inaccurate ones we note here.
So the trial court’s findings are at best incomplete and partially contradicted by
the evidence produced at the suppression hearing. As a result, we cannot say
that “the evidence selected by the trial court to support its findings . . . [has]
sufficient probative value to induce conviction in the minds of reasonable
persons.”19 The trial court’s findings are therefore clearly erroneous when
considering all of the evidence adduced at the suppression hearing.
Accordingly, “we use the facts elicited during [the suppression hearing]
as the basis for our analysis” and “[w]e therefore progress to review de novo the
motion to suppress as a matter of law.”20
19 Id. at 420.
20 Clayborne, 2021 WL 4487288, at *4. This Court has, on multiple occasions,
found it necessary to reject as clearly erroneous the trial court’s findings on a
suppression issue involving an unconstitutionally extended traffic stop. See, e.g.,
Turley, 399 S.W.3d at 420; Clayborne, 2021 WL 4487288, at *3-4.
10
III. ANALYSIS
A. The traffic stop was prolonged.
Conner moved to suppress the evidence discovered in the vehicle on the
basis that it was the fruit of an illegal seizure. More specifically, Conner
challenged the seizure’s duration, arguing that the traffic stop was
impermissibly extended for the officers to locate an available canine unit and
perform a dog sniff on the van.
Seizures under the Fourth Amendment are analyzed sequentially, as “a
seizure that is lawful at its inception can violate the Fourth Amendment if its
manner of execution unreasonably infringes interests protected by the
Constitution.”21 “Traffic stops are analyzed under the Terry v. Ohio22
framework because they are ‘more akin to an investigative detention . . . than a
custodial arrest.’”23 “Its tolerable duration is determined by the seizure’s
‘mission,’ which is to address the traffic violation that warranted the stop . . .
and attend to related safety concerns.”24 This means, for example, that a
“seizure that is justified solely by the interest in issuing a warning ticket to the
driver can become unlawful if it is prolonged beyond the time reasonably
required to complete that mission.”25 “If the traffic stop is prolonged beyond
21 Illinois v. Caballes, 543 U.S. 405, 407 (2005).
22 392 U.S. 1 (1968).
23 United States v. Lott, 954 F.3d 919, 923 (6th Cir. 2020).
24 United States v. Rodriguez, 575 U.S. 348, 348 (2015).
25 Lott, 954 F.3d at 923.
11
the time required for the purposes of the stop, ‘the subsequent discovery of
contraband is the product of an unconstitutional seizure.’”26
Law enforcement officers may only extend a traffic stop to conduct
additional criminal investigations “if something happened during the stop to
cause the officer to have a reasonable and articulable suspicion that criminal
activity is afoot.”27 “Officers who pursue other purposes instead of those
associated with the original mission of the stop for any amount of time
unconstitutionally prolong the stop.”28 And “[t]here is no de minimus or
reasonableness exception to the extension rule. Any unwarranted extension—
no matter how short—without reasonable articulable suspicion violates the
Fourth Amendment.”29 Further, an unreasonable extension of the traffic stop
is unlawful whether it occurs before or after the officer has concluded his
investigation into the traffic violation that warranted the stop. The critical
question is simply whether the officer’s pursuit of additional criminal
investigations absent reasonable, articulable suspicion “‘prolongs’—i.e., adds
time to—‘the stop[.]’”30
26Davis, 484 S.W.3d at 291 (citing Epps v. Commonwealth, 295 S.W.3d 807,
811 (Ky. 2009)).
27 United States v. Stepp, 680 F.3d 651, 661 (6th Cir. 2012) (citing United States
v. Davis, 430 F.3d 345, 353 (6th Cir. 2005)).
28 Clayborne, 2021 WL 4487288, at *4 (citing Caballes, 543 U.S. at 408).
29 Id. (citing Davis, 484 S.W.3d at 294).
30 Davis, 484 S.W.3d at 293 (quoting Rodriguez, 575 U.S. at 357). See also
United States v. Stepp, 680 F.3d 651, 652 (6th Cir. 2012) (“Because a crafty officer,
knowing [she cannot prolong a completed traffic stop] may simply delay writing a
ticket for the initial traffic violation until after she has satisfied herself that all of her
hunches were unfounded, we also treat the unreasonable extension of a not-yet-
12
Beyond investigating the potential traffic infraction that warranted the
stop, an officer may pursue other “ordinary inquiries incident to [the traffic]
stop.”31 Those inquiries typically include “checking the driver’s license,
determining whether there are outstanding warrants against the driver, and
inspecting the automobile’s registration and proof of insurance.”32 Those
inquiries “serve the same objective as enforcement of the traffic code: ensuring
that vehicles on the road are operated safely and responsibly.”33
However, “[e]ven minor police actions aimed at ‘detecting evidence of
ordinary criminal wrongdoing’ or any purpose beyond addressing the traffic
infraction are not tasks incident to the stop.”34 It is well-settled that a dog sniff
“is a criminal investigation unrelated to addressing a traffic violation.”35 And
for that reason, absent reasonable, articulable suspicion that criminal activity
is afoot to justify that investigation, the prolonging of a traffic stop solely to
accommodate a dog sniff is an illegal seizure.36
completed traffic stop as a seizure . . . [and] evaluate [it] . . . considering the totality of
the circumstances.”).
31 Rodriguez, 575 U.S. at 356 (quoting Caballes, 543 U.S. at 408).
32 Id. at 355.
33 Id.
34 Lott, 954 F.3d at 923.
35 Clayborne, 2021 WL 4487288, at *4 (citing Rodriguez, 575 U.S. at 356 (“A dog
sniff . . . is a measure aimed at detecting evidence of ordinary criminal wrongdoing . . .
. Lacking the same close connection to roadway safety as the ordinary inquiries, a dog
sniff is not fairly characterized as part of the officer’s traffic mission.”)).
36 Rodriguez, 575 U.S. at 355-57; see also Davis, 484 S.W.3d at 293; United
States v. Salas, 820 F.App’x 405, 412 (6th Cir. 2020) (“An ordinary traffic stop,
therefore, cannot be extended to accommodate a dog sniff without reasonable
suspicion of criminal activity.” (citing Rodriguez, 575 U.S. at 355)).
13
That said, officers may pursue unrelated investigative inquiries during a
traffic stop if doing so does not add time to the stop. For example, when one
officer continues to issue a traffic citation or perform other traffic-stop-related
inquiries while another officer simultaneously conducts a dog sniff, the dog
sniff is permissible because it does not add time to the stop.37 “The United
States Supreme Court determined in Illinois v. Caballes 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.”38 And in
Rodriguez, the Court later reaffirmed its holding in Caballes, stating that “[t]he
Fourth Amendment may tolerate certain unrelated investigations that do not
lengthen the roadside detention.”39 Again, the key question is whether the
officer abandoned pursuit of permissible traffic-related inquiries in order to
accommodate a dog sniff, thereby adding time to the overall duration of the
traffic stop, and whether doing so was justified by reasonable, articulable
suspicion.
On several occasions, this Court has held that an officer’s extension of a
traffic stop solely to accommodate a dog sniff, absent independent reasonable,
articulable suspicion, resulted in an unconstitutional seizure of the driver or
passenger. In Davis v. Commonwealth, this Court held that a dog-sniff search
37 See Clayborne, 2021 WL 4487288, at *6 (“Had one officer continued issuing
the citation while another officer simultaneously conducted a dog sniff, that search
would have been permissible.”).
38 Id. (citing Caballes, 543 U.S. at 409).
39 Rodriguez, 575 U.S. at 349 (citing Caballes, 543 U.S. at 407).
14
during a traffic stop was “clearly beyond the purpose”40 of a stop for suspected
driving under the influence, “even though the Commonwealth argued that
finding out whether or not someone is under the influence is related to a
search for drugs that may have put the driver under the influence.”41 Because
the officer had concluded his field-sobriety investigation and “shifted to a new
and different purpose” without reasonable, articulable suspicion, the extended
detention to accommodate the dog-sniff search was a Fourth Amendment
violation.42
In Commonwealth v. Smith,43 an officer who had prior knowledge of
Smith’s suspected drug dealing observed Smith fail to use his turn signal.44
The officer radioed a canine officer who then performed a traffic stop on Smith’s
vehicle.45 The canine officer informed Smith that he was stopped for failure to
use his turn signal but then immediately asked Smith if there were drugs in
the car and commenced a sniff search around Smith’s car.46 We determined
that “instead of diligently pursuing the purpose of the traffic stop, [the canine
officer] seemingly abandoned the legitimate purpose of issuing a traffic citation
because he immediately asked [Smith] about drugs and launched the dog’s
40 Davis, 484 S.W.3d at 294.
41 Clayborne, 2021 WL 4487288, at *5.
42 Davis, 484 S.W.3d at 294.
43 542 S.W.3d 276 (Ky. 2018).
44 Id. at 278-79.
45 Id. at 279.
46 Id.
15sniff search.”47 “Obviously, the search added time to the stop because it was
conducted before the purpose of the stop was addressed.”48 Because the
extension to investigate potential drug trafficking was unsupported by
reasonable, articulable suspicion, we held that the stop was unconstitutionally
extended.49
Similarly, in Commonwealth v. Mitchell,50 an officer conducted a traffic
stop after observing a car screeching its tires while exiting a parking lot, and
another officer quickly joined the stop as backup.51 After collecting the driver
and passengers’ licenses and completing background checks, “the officers had
a discussion for another two to three minutes about whether to request a
canine unit” and then made the request.52 We determined that the officers had
“deferred the completion of the stop beyond its original purpose to discuss and
then request a canine search.”53 Noting that there is “no de minimus or
‘reasonableness’ exception” to the rule prohibiting delays attributed to actions
unrelated to the purpose of the stop, we held that the officers’ “discussion
47 Id. at 283.
48 Id.
49 Id. at 284.
50 610 S.W.3d 263 (Ky. 2020).
51 Id. at 266.
52 Id.
53 Id. at 270 (quoting Mitchell v. Commonwealth, 2017-CA-001539-MR, 2019 WL
258162, at *3 (Ky. App. Jan. 18, 2019)).
16
regarding summoning the canine unit impermissibly delayed completion of the
stop.”54
In this case, instead of diligently pursuing the legitimate purpose of the
stop—investigating Garmon’s erratic driving—Officer Mayo abandoned this
mission when he repeatedly threatened the use of a dog sniff if Conner did not
consent to a search of the van and then made multiple attempts to locate a
drug dog. By Officer Mayo’s own testimony, he wholly abandoned Garmon’s
potential traffic infraction that prompted the stop in order to investigate
Conner’s alleged drug trafficking and secure a drug dog.
Further, Officer Mayo’s pursuit of this new mission obviously added time
to the stop because it was conducted in lieu of any legitimate traffic-related
inquiries. While Officer Mayo testified at the hearing that he ran Garmon’s
license upon first returning to his vehicle, the Commonwealth did not produce
any evidence at the hearing to suggest—nor did it argue—that Garmon’s
license check was ongoing during the time that Mayo was threatening the use
of a drug dog or making phone calls to secure a dog sniff. And the
Commonwealth produced no testimony concerning the time it regularly took for
Officer Mayo to conduct a license check. Instead, Officer Mayo testified that,
upon realizing that Conner was the passenger and recalling the tip that Conner
was trafficking methamphetamine, it “sparked [his] interest to investigate
further.” The record therefore provides no basis for concluding that the time
54 Id.
17Officer Mayo took to threaten Conner with a drug dog and locate a canine unit
did not add time to the stop because concurrent, legitimate traffic-stop-related
inquiries were ongoing.
Both the trial court’s order and the Commonwealth suggest that any
extension of the traffic stop was justified by Officer Mayo’s discovery and
execution of Conner’s arrest warrant. We agree that an arrest warrant will
provide reasonable suspicion to extend a traffic stop for some span of time.
Recently, in Rhoton v. Commonwealth,55 this Court held that an officer’s
discovery of an outstanding warrant during a traffic stop provides independent,
reasonable suspicion to extend the stop for an amount of time reasonably
necessary to address the outstanding warrant.56 As such, we determined in
Rhoton that the officer did not impermissibly extend the stop to conduct a dog
sniff—any extension of time to accommodate the dog sniff occurred while the
officer was addressing the outstanding warrant.57
But this argument in the present case overlooks the fact that Officer
Mayo had abandoned any traffic-stop-related inquiries and switched to an
investigation into drug activity well before he learned that Conner had an
outstanding arrest warrant. Even in Rhoton, the trooper’s efforts to locate a
drug dog before his discovery of the active warrant occurred
contemporaneously with ordinary traffic-related inquires. We noted that the
55 610 S.W.3d 273 (Ky. 2020).
56Id. at 278-79. We reiterated, however, that “this new purpose of the stop
must be diligently pursued.” Id. at 279.
57 Id. at 278-79.
18
trooper “radioed for assistance from a nearby canine unit as he began
preparing his citation” and that, in the meantime, the trooper “ran the ordinary
records checks on Rhoton and his passenger, discovering the passenger had an
unrelated active arrest warrant.”58 The drug dog “arrived 25 minutes after the
initial traffic stop and while [the trooper] was still in his vehicle preparing
Rhoton’s citation and confirming information regarding the passenger’s
warrant.”59 Unlike the facts of Rhoton, the evidence elicited at the suppression
hearing reveals that Officer Mayo stopped diligently pursuing the purpose of
the traffic stop to conduct a criminal investigation into Conner’s drug
trafficking, and this included taking time to threaten the use of a drug dog and
locate a canine unit well before Officer Mayo discovered Conner’s arrest
warrant.
Accordingly, we must conclude that Officer Mayo abandoned
investigating Garmon’s potential traffic violation before completing it in order to
pursue a criminal investigation into Conner’s alleged drug activity even before
Officer Mayo discovered Conner’s outstanding arrest warrant. By doing so,
Officer Mayo extended the duration of the traffic stop.
B. The Commonwealth failed to establish that the extension of the
traffic stop was supported by reasonable, articulable suspicion.
Having determined that Officer Mayo extended the traffic stop in order to
investigate Conner’s alleged drug trafficking, we now turn to whether that
58 Id. at 274.
59 Id.
19extension was supported by reasonable articulable suspicion. “We consider the
totality of the circumstances to determine whether a particularized and
objective basis existed for suspecting [Conner] of illegal [drug] activity.”60 When
assessing the totality of the circumstances, “there is a ‘demand for specificity in
the information upon which police action is predicated.’”61 “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
whether that information yields a particularized suspicion that the particular
individual being stopped is engaged in wrongdoing.”62 While this “process does
not deal with hard certainties, but with probabilities,” reasonable suspicion is
more than an “inarticulate hunch[.]”63
The Commonwealth asserts that Officer Mayo had reasonable articulable
suspicion to extend the stop based on his knowledge of a tip that Conner had
been dealing methamphetamine, his observation of Conner moving something
in the backseat of the van, and his earlier traffic stop of Conner. We disagree.
When assessing whether an anonymous tip can provide reasonable,
articulable suspicion, “we are required to examine the totality of the
circumstances, and to determine whether the tip, once suitably corroborated,
60 Moberly, 551 S.W.3d at 31 (citing United States v. Cortez, 449 U.S. 411, 417
(1981)).
61 Id. (quoting Terry, 392 U.S. at 22 n.18.)
62 Id. (citing Cortez, 449 U.S. at 417-18).
63 Terry, 392 U.S. at 22.
20
provides sufficient indicia of reliability to justify an investigatory stop.”64 For
example, in Smith, we disagreed with the Commonwealth’s argument that the
officer’s information from reliable confidential informants that Smith had
trafficked in cocaine provided reasonable suspicion of drug trafficking.65 There,
the informants provided Smith’s name, alias, residence, vehicles, employment,
and the location at which Smith frequently trafficked cocaine.66 But we
rejected this argument because the officer had observed Smith for an extended
period of time on the day of the stop and did not observe any suspicious
activity consistent with drug dealing.67 We noted that there was no indication
that Smith was using his car to transport cocaine.68
By contrast, Officer Mayo testified merely that he “heard” that Conner
was trafficking methamphetamine. And the Commonwealth did not elicit from
Officer Mayo any additional testimony regarding the anonymous tips, nor did it
demonstrate that Officer Mayo had made any attempt to corroborate such
information. In its brief, the Commonwealth explains that “Officer Mayo noted
to the K-9 officer that ‘one of [Conner’s] buddies, David Ware’ was trafficking
methamphetamine and the information he received was that Ware was the
person with whom Conner was trafficking.” But this fact does not demonstrate
64 Collins v. Commonwealth, 142 S.W.3d 113, 115 (Ky. 2004) (citing Alabama v.
White, 493 U.S. 325, 332 (1990)).
65 542 S.W.3d at 283-84.
66 Id. at 293.
67 Id. at 283-84.
68 Id. at 284.
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that the tip was suitably corroborated or that the tip carried sufficient indicia
of reliability to support reasonable suspicion.
The Commonwealth cites to this Court’s unpublished opinion in
Commonwealth v. Black69 to assert that anonymous tips alone may provide
reasonable suspicion to justify an investigatory stop. While that proposition is
true in a general sense, our opinion in Black does not support the
Commonwealth’s position. In that case, the anonymous tipster stated that “a
black male riding a purple bicycle was selling drugs across from a Speedway at
the corner of Georgetown Street and Glen Arvin.”70 The tipster described the
man as “wearing a blue denim jacket and blue jeans” and mentioned that “the
drugs were inside a newspaper the man was carrying.”71
Citing to the United States Supreme Court’s opinion in Florida v. J.L.,72
we explained that “an anonymous tip that a person is carrying a gun is,
without more, insufficient to justify a stop of that person.”73 But we found the
anonymous tip was corroborated and therefore carried sufficient indicia of
reliability to provide reasonable suspicion to justify the officer’s investigatory
stop.74 Significantly, the officer observed that the appearance and location of
the defendant and the fact he was carrying a newspaper were all consistent
69 No. 2006-SC-000781-DG, 2007 WL 3226213 (Ky. Nov. 1, 2007).
70 Id. at *1.
71 Id.
72 529 U.S. 266 (2000).
73 Black, 2007 WL 3226213, at *3.
74 Id.
22with the information provided by the tipster.75 Moreover, the defendant was “in
a high-crime area and acted furtively after observing the officer.”76
Again, the record here is devoid of evidence that Officer Mayo’s tipster
provided any specific information about Conner’s drug dealing that would allow
Officer Mayo to corroborate the tip. Instead, the record demonstrates a bare tip
that Conner was trafficking methamphetamine, which plainly lacks sufficient
indicia of reliability to justify an investigatory stop.
Likewise, Officer Mayo’s knowledge of his earlier traffic stop of Conner77
did not provide reasonable suspicion to extend the stop. In Smith, we stated
that “an officer’s knowledge about a suspect’s prior record can be a relevant
factor in the reasonable suspicion analysis.”78 However, we noted that the
officer’s “knowledge that [Smith] had been convicted of and was then on parole
for trafficking in cocaine does not support reasonable, articulable suspicion
that he was in possession of cocaine at the time of the stop[.]”79 Even coupled
with confidential tips that Smith was known to be trafficking at a nearby bar,
the officer’s knowledge of Smith’s drug trafficking history did not “create
75 Id.
76 Id.
77 We assume Officer Mayo’s testimony that he previously conducted a traffic
stop of Conner and discovered that Conner was not allowed to drive formed the basis
of the trial court’s finding that Officer Mayo had reasonable suspicion to investigate
drug activity during the stop in part because of his “knowledge of [Conner’s] criminal
history.” There was no other discussion of Conner’s criminal history at the hearing.
78Smith, 542 S.W.3d at 284 (quoting Commonwealth v. Morgan, 248 S.W.3d
538, 541 (Ky. 2008)).
79 Id.
23reasonable suspicion to conduct the stop, or to extend the otherwise lawful
stop to conduct [a] search.”80 Officer Mayo’s knowledge that he conducted a
traffic stop on Conner weeks before this incident and discovered that Conner
was not supposed to be driving plainly does not support reasonable, articulable
suspicion that Conner was trafficking methamphetamine at the time of the
stop.
Finally, Officer Mayo’s observation of Conner’s moving or shoving
something into the back seat does not support reasonable, articulable
suspicion, even coupled with Officer Mayo’s knowledge of the anonymous tips
and Conner’s earlier traffic stop. It is true that “furtive gestures” indicating
that a person is trying to hide something can be a relevant factor in the
reasonable-suspicion analysis.81 But we have never held that a passenger
simply moving items during a traffic stop—coupled with essentially no
additional factors—provides reasonable, articulable suspicion. The
Commonwealth cites to Commonwealth v. Priddy82 to support its argument. In
that case, an officer was “flagged down by a citizen who told him a six-foot-tall,
170-pound white male with shoulder-length, black, curly hair, driving a late
1970s model black Ford truck with primer on the hood—was in the K-mart
parking lot on 191 Outer Loop and was about to conduct a drug transaction.”83
80 Id.See Moberly, 551 S.W.3d at 32 (stating, in reasonable suspicion analysis, that
81
the defendant made no “‘furtive gestures’ to indicate he was trying to hide something”).
82 184 S.W.3d 501 (Ky. 2005).
83 Id. at 503.
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The officer quickly found the defendant leaving the parking lot. After following
and stopping him, the officer observed the defendant frantically moving inside
his vehicle, and he asked the defendant to exit the vehicle.84
We determined that the officer had reasonable, articulable suspicion to
stop the defendant because the tip was sufficiently credible—the tipster had
provided the information to the officer in-person, and the officer quickly
corroborated that information by observing the defendant, his vehicle, and his
location.85 We then noted that the officer had not asked the defendant to exit
his vehicle until he also witnessed the defendant’s frantic activity inside of the
car.86
By contrast, Officer Mayo’s observation of Conner’s movement in the
vehicle stands virtually alone as a factor supporting reasonable suspicion. And
Officer Mayo did not describe Conner’s single movement as frantic or furtive.
Simply put, Conner’s behavior in placing something into the backseat during
the traffic stop, even coupled with the anonymous tip and knowledge that
Conner was prohibited from driving, does not create a reasonable, articulable
suspicion that Conner was then and there engaged in drug activity.87
84 Id. at 504.
85 Id. at 511.
86 Id.
87 We note that, even if we were to find that Conner’s moving something into the
backseat of the van provided reasonable, articulable suspicion for Officer Mayo to
investigate, that movement occurred after Mayo had already questioned Conner about
drug dealing, threatened the use of a drug dog, and placed his first call to a canine
unit. As such, the stop was impermissibly delayed even before Officer Mayo observed
Conner’s movement inside the vehicle.
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In sum, we find that the Commonwealth failed to establish that Officer
Mayo had reasonable, articulable suspicion to abandon the original mission of
the traffic stop and investigate Conner’s potential drug trafficking. With no
reasonable, articulable suspicion justifying the extension of the traffic stop to
accommodate a dog sniff, Officer Mayo prolonged the seizure and conducted
the search in violation of Conner’s Fourth Amendment protections.88 The fruits
of the search must be suppressed as a result.
IV. CONCLUSION
For the foregoing reasons, the evidence obtained in the unlawful search
of the van should have been suppressed. Accordingly, we affirm the opinion of
the Court of Appeals and remand the matter to the trial court for further
proceedings consistent with this opinion.
All sitting. Hughes, Keller, and Nickell, JJ., concur. Conley, Lambert,
and VanMeter, JJ., concur in result only.
COUNSEL FOR APPELLANT:
Daniel J. Cameron
Attorney General of Kentucky
Matthew R. Krygiel
Assistant Attorney General
Office of the Solicitor General
88 Additionally, Conner argues that Officer Mayo unconstitutionally extended
the traffic stop in order to wait for the drug dog to arrive even after he was arrested
pursuant to the arrest warrant. He asserts that Officer Mayo had completed his arrest
but simply “waited around for the drug dog to arrive.” Because we find that the stop
was unconstitutionally extended even before Officer Mayo discovered and executed
Conner’s arrest warrant, we decline to address this argument.
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COUNSEL FOR APPELLEE:
Molly Mattingly
Assistant Public Advocate
27