David Jennings v. Commonwealth of Kentucky ( 2022 )

RENDERED: SEPTEMBER 23, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-1339-MR
DAVID JENNINGS APPELLANT
APPEAL FROM KENTON CIRCUIT COURT
v. HONORABLE GREGORY M. BARTLETT, JUDGE
ACTION NO. 19-CR-00470
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
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BEFORE: COMBS, MCNEILL, AND K. THOMPSON, JUDGES.
COMBS, JUDGE: In this criminal case, Appellant, David Jennings, appeals from
the denial of his motion to suppress. After our review, we affirm.
On April 11, 2019, a Kenton County grand jury indicted Jennings on
one count of trafficking in a controlled substance in the first degree, more than four
grams of cocaine, 2nd offense.
On April 6, 2021, Jennings filed a motion to suppress. The trial court
conducted a suppression hearing and heard arguments of counsel on April 20, and
on June 2, 2021. By order entered June 15, 2021, the trial court denied Jennings’s
motion as follows:
On February 8, 2019, Detective Ryan Malone was
watching a house on Greenup Street based upon a
citizen’s complaint about drug activity. Det. Malone was
parked on E. 9th Street, just east of Greenup Street, when
a red Chrysler pulled up . . . . Ultimately, the red vehicle
parked on E. 8th Street, just east of Greenup Street. The
engine was running, but no one exited the vehicle.
Det. Malone observed a black vehicle pull
alongside the red Chrysler. . . . [A] woman exited the
black car and entered the passenger side of the red
Chrysler for just a brief second. She then exited the
Chrysler and got back into her car, grabbed a hoodie, and
returned to the red Chrysler. The woman remained in the
red Chrysler for approximately 10 minutes before
returning to her vehicle. Believing a narcotics
transaction might have just occurred, the Detective called
another officer to follow the black car.
When the red car pulled away from the curb, Det.
Malone followed it. The Detective observed the red
Chrysler make a turn without signaling. At that point,
the Detective called for a marked police vehicle to
initiate a traffic stop. The red vehicle made another lane
change without signaling. A traffic stop was initiated by
a uniformed officer . . . . Det. Malone requested a canine
unit based upon his observations and suspicion that a
drug transaction had occurred.
Officer Matthews of the Covington Police
Department stopped the Defendant’s vehicle and
approached the Defendant. He asked him a series of
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questions, including whether he could produce his
vehicle registration and insurance. The Defendant was
never able to produce an insurance card. The length of
time Officer Matthews took with the Defendant was
approximately 16 minutes. During that time, a canine
unit came to the scene and alerted on the Defendant’s
vehicle. As a result of the canine officer alerting on the
presence of drugs in the Defendant’s car, a search was
conducted with drugs being found.
The trial court concluded that the police had probable cause to stop
Jennings’s car for a traffic violation and that once the canine unit alerted on the
car, there was probable cause for a search. The court also found that the length of
Jennings’s “detention following the stop for the traffic violation was not excessive
in that the canine unit was on the scene almost immediately following the
Defendant’s stop for the traffic violation.”
After his motion to suppress was denied, Jennings entered a
conditional guilty plea to first-degree trafficking in a controlled substance (more
than four grams of cocaine), second offense; he received a sentence of ten years.
Jennings now appeals. “In reviewing a trial court’s decision to deny a
motion to suppress evidence, we accept the trial court’s findings of fact
as conclusive if they are supported by substantial evidence. We then review de
novo the trial court’s application of the law to those facts.” Commonwealth v.
Reed, 647 S.W.3d 237, 242-43 (Ky. 2022) (footnotes omitted).
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Jennings first argues that the trial court erred by failing to suppress the
evidence discovered as a result of an illegally extended traffic stop.
“The Fourth Amendment of the United States Constitution, as applied
to the states under the Fourteenth Amendment, and Section 10 of the Kentucky
Constitution provide safeguards against unreasonable searches and seizures.”
Bolin v. Commonwealth, 592 S.W.3d 305, 309 (Ky. App. 2019).
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. Traffic stops are analyzed
under the . . . framework [of Terry v. Ohio, 392 U.S. 1,
88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968),] because they
are more akin to an investigative detention . . . than a
custodial arrest. . . . If the traffic stop is prolonged
beyond the time required for the purposes of the stop, the
subsequent discovery of contraband is the product of an
unconstitutional seizure.
....
Beyond investigating the potential traffic
infraction that warranted the stop, an officer may pursue
other ordinary inquiries incident to [the traffic] stop.
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. Those
inquiries serve the same objective as enforcement of the
traffic code: ensuring that vehicles on the road are
operated safely and responsibly.
....
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. . . [O]fficers 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.
Commonwealth v. Conner, 636 S.W.3d 464, 472-74 (Ky. 2021) (emphasis
original) (internal quotation marks and footnotes omitted).
At page 4 of his Appellant’s brief, Jennings states that he does not
challenge the trial court’s factual findings. He acknowledges that it “appears . . .
the Covington Police Department . . . made efforts to comply with the
constitutional requirements for a traffic stop with a concurrent dog sniff.”
However, Jennings asserts that Officer Matthews deviated from the diligent pursuit
of the traffic stop by asking Jennings questions unrelated to his failure to use a turn
signal -- e.g., where he was coming from, where he was staying, what brought him
to Kentucky -- and then relaying that information to Detective Malone. Jennings
contends that this “additional time, however slight,” impermissibly prolonged the
traffic stop in violation of his rights under the Fourth and Fourteenth Amendments
of the United States Constitution and Section 10 of the Kentucky Constitution.
Jennings made this argument below; however, the trial court did not
address whether Officer Matthews’s questioning of Jennings about where he had
been and the time it took to relay that information to Detective Malone
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impermissibly extended the traffic stop. Instead, the basis for the trial court’s
ruling primarily focused on the canine sniff, holding that “detention following the
stop for the traffic violation was not excessive in that the canine unit was on the
scene almost immediately following the Defendant’s stop for the traffic violation.”
It does not appear from our review of the record that Jennings raised
this alleged omission in the trial court by requesting additional findings -- absent
which the issue is not properly before us. As our Supreme Court explained in
Commonwealth v. Smith, 542 S.W.3d 276 (Ky. 2018):
RCr[1] 8.20(2) plainly states that “[w]hen factual
issues are involved in deciding [the suppression] motion,
the court shall state its essential findings on the record.”
. . . [Appellant] was obliged to raise the omission by
motion under CR[2] 52.02 asking the trial court to make
the additional findings and amend its order accordingly.
[Appellant] did not do so.
An appellate court may decide only those issues
which were fully presented to the trial court. . . . The
appellate court reviews for errors, and a nonruling cannot
be erroneous when the issue has not been presented to the
trial court for decision. [Appellant’s] failure to raise this
omission of what it regards as a critical finding of fact in
the trial court precludes appellate review of the omission.
Id. at 285 (internal quotation marks and citations omitted).
1
Kentucky Rules of Criminal Procedure.
2
Kentucky Rules of Civil Procedure.
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Additionally, the Commonwealth argues that under Carlisle v.
Commonwealth, 601 S.W.3d 168 (Ky. 2020), questions about travel plans are an
ordinary inquiry properly within the scope of the stop. We agree.
Finally, Jennings argues that the police should not be constitutionally
permitted to use pretextual traffic stops to conduct dog-sniff searches for drugs.
However, Jennings concedes that trial counsel did not specifically raise this issue
and requests palpable error review under RCr 10.26.3 “Whether to undertake
palpable error review is within the sole discretion of the appellate court.” Brank v.
Commonwealth, 566 S.W.3d 560, 566 (Ky. App. 2018). We decline to do so here.
The academic argument raised by Jennings could have no bearing on undermining
the validity of the sound reasoning of the trial court -- even if we were to review it
for manifest injustice.
Accordingly, we affirm.
MCNEILL, JUDGE, CONCURS.
THOMPSON, K., JUDGE, CONCURS IN RESULT ONLY.
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The rule provides that:
A palpable error which affects the substantial rights of a party may
be considered by the court on motion for a new trial or by an
appellate court on appeal, even though insufficiently raised or
preserved for review, and appropriate relief may be granted upon a
determination that manifest injustice has resulted from the error.
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BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Aaron Reed Baker Daniel Cameron
Frankfort, Kentucky Attorney General of Kentucky
Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky
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