RENDERED: AUGUST 21, 2026; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2024-CA-1472-MR
COREY POWELL APPELLANT
APPEAL FROM CAMPBELL CIRCUIT COURT v. HONORABLE JULIE REINHARDT WARD, JUDGE ACTION NO. 24-CR-00135
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
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BEFORE: THOMPSON, CHIEF JUDGE; CALDWELL AND A. JONES, JUDGES.
JONES, A., JUDGE: Corey Powell appeals from the Campbell Circuit Court’s judgment sentencing him to twelve years’ incarceration following conviction at his jury trial. After considering the facts and the law, we affirm the trial court’s final judgment and sentence.
I. BACKGROUND
On February 16, 2024, William Rowland was working as a school resource officer at Bellevue High School in Campbell County, Kentucky. That morning, at approximately 11:00 am, the school’s gym teacher informed Officer Rowland that there was a man asleep in a parked car on a nearby street with its engine running. Students had noticed that same vehicle earlier as they were arriving at school, which led the teacher and the students to believe that the man had been parked there, with the engine running, for at least three hours. Officer Rowland approached the vehicle and noticed that the driver, later identified as Powell, was still sleeping. The officer contacted dispatch and initiated a traffic stop. A second officer, Trevor Bonar of the Bellevue Police Department, arrived on the scene within one to two minutes to offer support. After a concerted effort, Officer Rowland eventually managed to rouse Powell. Powell told Officer Rowland that he suffered from sleep apnea, he had just gotten off work, and he had fallen asleep.
While Officer Rowland spoke with Powell, Officer Bonar walked around the vehicle. Both officers later testified that Powell woke up disoriented and incoherent, with bloodshot eyes. Additionally, Officer Bonar noted Powell’s bloodshot eyes had pinpoint pupils. At this point, Officer Bonar suspected Powell may have been under the influence of a controlled substance. Officer Bonar also
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noticed a prescription bottle of Suboxone1 and a corner-cut plastic bag on the vehicle’s passenger seat. Officer Bonar later testified that a plastic bag with a cut corner indicated that the bag was used for storing illicit drugs. When Powell was asked about the Suboxone bottle, he stated that he had a prescription for it and showed that his name was on the bottle. Powell admitted he was out on bond for charges relating to possession of a controlled substance. The officers requested permission to search the vehicle, and Powell refused consent. When he was asked if there were drugs in the car, Powell responded, “There shouldn’t be.”
At this point, Officer Bonar requested a K9 unit to perform a sniff search. He believed he had probable cause to search based on the circumstances as they stood, but he wanted the K9 sniff to support his observations. When the officers asked Powell to step out of the vehicle, Officer Bonar saw him bend over the seat as he exited, appearing as though he was placing an item under the seat. When Powell returned to his vehicle and opened the door to retrieve a cigarette, Officer Bonar saw a small square packet of paper with a bulge in the center located on the vehicle’s floorboard, which he believed was another method for storing illegal narcotics. Officer Bonar also noticed that Powell appeared to have
1 Suboxone (buprenorphine and naloxone) is a prescription medication prescribed for the longterm treatment of opioid addiction. See, e.g., Andy Sivils, Paige Lyell, John Q. Wang, and Xiang-Ping Chu, Suboxone: History, Controversy, and Open Questions, FRONTIERS IN PSYCHIATRY (Oct. 28, 2022), https://pmc.ncbi.nlm.nih.gov/articles/PMC9664560/ (last visited June 30, 2026).
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inordinate difficulty lighting his cigarette. He fumbled with the cigarette before dropping it, attempted several times to use the lighter, and eventually a piece of the lighter broke off. Powell told Officer Bonar that his lighter had melted. Officer Bonar later testified that this incident reinforced his belief of drug activity because users will often turn a lighter upside down when using it to ignite and consume illicit substances. Finally, Powell told Officer Bonar that he had not just gotten off work that day, which was contrary to what Powell had told Officer Rowland at the beginning of the stop.
About ten minutes later, the K9 unit arrived on the scene. The initial sniff search around the vehicle was not successful. The K9 officer initially surmised that the dog did not care about Powell’s vehicle at all, though he also noticed that his dog was unusually “worked up.” Officer Bonar asked them to try again, and the K9 officer did so after giving the dog the opportunity to relieve himself. On this second attempt, the dog alerted at the passenger side door of Powell’s vehicle. In a subsequent search of the vehicle, the officers discovered that the white paper packet contained a chunky substance consistent with crack cocaine and the plastic bag contained a crystalline substance later found to be 6.824 grams of methamphetamine. They also recovered two scales, three cell phones, a supply of plastic bags, three glass pipes, and other assorted paraphernalia.
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Based on this incident, the Campbell County grand jury indicted Powell on two counts of first-degree trafficking in a controlled substance, possession of drug paraphernalia, and public intoxication. At the conclusion of his trial, the jury found Powell guilty of one count of first-degree trafficking in a controlled substance (more than two grams of methamphetamine, second or subsequent offense)2 and possession of drug paraphernalia.3 The jury fixed Powell’s sentence at twelve years for the trafficking charge and twelve months for the charge of possessing drug paraphernalia, for a total term of twelve years in prison. The trial court entered its final judgment in accord with the jury’s recommendation. This appeal followed.
II. ANALYSIS
Powell presents three principal issues on appeal. First, he contends the trial court erroneously denied his motion to suppress the evidence police recovered from his vehicle. Second, Powell argues the trial court should have granted his motion for a directed verdict on the charge of trafficking in a controlled substance. Third, Powell asserts the trial court erroneously allowed the Commonwealth to present expert testimony and accompanying evidence from a
2 Kentucky Revised Statute (KRS) 218A.1412(1)(b), a Class B felony.
3 KRS 218A.500, a Class A misdemeanor.
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police officer when such expert testimony had not been properly disclosed. We consider each argument in turn below.
A. Suppression Motion In his first issue on appeal, Powell presents several arguments urging us to reverse the trial court’s order denying his motion to suppress evidence obtained from the warrantless search of his vehicle. “Warrantless searches are ‘per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.’” Robbins v. Commonwealth, 336 S.W.3d 60, 63 (Ky. 2011) (quoting Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967)). “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) (citation omitted).
Powell first argues that Officer Rowland lacked reasonable suspicion to detain him, arguing that, once the officer “determined Mr. Powell was not in need of medical care and was parked at his own home, his encounter . . . should have ceased.” Appellant’s Brief at 10. Powell admits that Kentucky law allows police officers “to approach anyone in public areas for any reason.” Commonwealth v. Banks, 68 S.W.3d 347, 350 (Ky. 2001). Nonetheless, Powell contends that, once police verified that he was not in imminent danger, the
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encounter became an investigatory stop in which he was unjustifiably detained due to a lack of reasonable suspicion of criminal activity.
We disagree. Even though the jury ultimately acquitted Powell of the public intoxication charge, the evidence shows that the officers had reasonable suspicion to investigate on that basis. During the suppression hearing, Officer Rowland testified that the underlying incident began with a report that Powell had been unconscious in a vehicle, with its engine running, for about three hours. Children passing by from one of the nearby schools had unsuccessfully attempted to wake Powell. Officer Rowland testified that Powell was slow to wake, disoriented, incoherent, and had bloodshot eyes. Officer Bonar further testified that Powell appeared to have pinpoint pupils and there appeared to be items consistent with drug usage sitting on the passenger seat of the vehicle. The trial court carefully considered these factors and, referencing the elements of public intoxication found in KRS 222.202, it ruled that the officers had “probable cause to believe that [Powell] was intoxicated and may be a threat to himself, others or unreasonably annoy another.” (Order Denying Suppression Motion, Record (R.) at 63.) Based on these facts, the officers had sufficient reasonable suspicion to investigate the possibility of public intoxication, a criminal offense.
Next, Powell argues the officers unreasonably prolonged the traffic stop to conduct a dog sniff search, contravening Rodriguez v. United States, 575
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U.S. 348, 135 S. Ct. 1609, 191 L. Ed. 2d 492 (2015). In that decision, the United States Supreme Court held that law enforcement officers may not extend a traffic stop beyond its initial purpose to investigate other matters, unless some other factor provides reasonable suspicion for additional investigation. Id. at 355, 135 S. Ct. at 1615. Powell contends that Officer Rowland initiated the stop purely as a welfare check and should have immediately ceased his investigation once it was apparent that Powell was not in need of medical assistance. However, as mentioned above, the record reflects that the officers immediately noticed factors which gave rise to the need for additional investigation.
This case is distinguishable from our Supreme Court’s decision analyzing Rodriguez in Davis v. Commonwealth, 484 S.W.3d 288 (Ky. 2016). In Davis, the Supreme Court held that a DUI stop was unreasonably prolonged for a dog sniff search because “no evidence suggest[ed] that Appellant’s speech, demeanor, or behavior otherwise exhibited any characteristics associated with drug or alcohol intoxication from which an officer might reasonably believe further investigation was necessary.” 484 S.W.3d at 294. Additionally, the Supreme Court held that the sniff search “could not possibly serve the purpose of the traffic stop by showing whether Appellant was driving under the influence of any substance.” Id.
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Unlike in Davis, the police officers in this case had significant evidence supporting reasonable “articulable suspicion to authorize an extended detention to search for drugs[.]” Id. In addition to Powell’s apparent intoxication, Officer Bonar observed, in plain view, a bottle of Suboxone and a corner-cut plastic bag sitting on the passenger seat. When asked about the prescribed Suboxone, Powell also admitted that he was out on bond for a controlled substances charge. Even accepting Powell’s premise that the initial purpose of the stop was to check on his welfare, the Supreme Court has ruled that “officers may diligently and safely pursue new investigative purposes as they arise.” Commonwealth v. Clayborne, 635 S.W.3d 818, 825 (Ky. 2021). Officer Bonar was not required to turn a blind eye to the evidence of drug activity in this case.
Finally, Powell argues that the trial court should have suppressed the evidence resulting from the search because he alleges the K9 officer specifically directed the dog to jump into his vehicle. This argument was not presented to the trial court, and it is thus unpreserved. Powell requests review for palpable error under RCr4 10.26. To succeed on a claim of palpable error, one must show manifest injustice has resulted, i.e., “probability of a different result or error so fundamental as to threaten a defendant’s entitlement to due process of law.” Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006).
4 Kentucky Rule of Criminal Procedure.
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In this case, during the dog sniff search, the dog jumped up, placed his paws on the car door, and stuck his nose through the open window. Powell asserts that “a dog sniff in the interior of a car becomes unlawful when the officer encourages, commands, or facilitates the dog’s entry into the car.” Appellant’s Brief at 13 (citing U.S. v. Sharp, 689 F.3d 616, 618 (6th Cir. 2012)). Powell contends that the K9 officer testified that the dog would not have jumped into a car without being told to do so. However, Powell fails to include the K9 officer’s full explanation of the dog’s conduct: “He don’t jump on cars unless I tell him to, or if he smells odor.” The K9 officer stated he could not recall if he told the dog to jump.
Based on the video and the officer’s testimony, we do not discern palpable error in this case. Palpable errors resulting in manifest injustice are “shocking or judicially intolerable.” Martin, 207 S.W.3d at 4. The video shows the dog being led around the vehicle and sticking his nose into an open window. There is no conclusive evidence that the officer asked the dog to jump, and according to the officer’s own testimony, the dog may have done so as part of detecting an odor coming from the vehicle’s interior. “A palpable error must be so grave that, if uncorrected, it would seriously affect the fairness of the proceedings. It should be so egregious that it jumps off the page . . . and cries out for relief.”
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Behrens v. Commonwealth, 677 S.W.3d 424, 432 (Ky. 2023). It is our view that a dog jumping to sniff at an open window fails to rise to such a level in this case.
Based on these factors, we discern no error in the trial court’s order denying Powell’s motion to suppress evidence.
B. Directed Verdict In his second issue on appeal, Powell contends the trial court erroneously denied his motion for a directed verdict, claiming that the evidence adduced in this case did not support finding him guilty beyond a reasonable doubt of trafficking in a controlled substance. He argues that the evidence in this case was “just as consistent with drug addiction behaviors as it would be with drug dealing behaviors.” Appellant’s Brief at 16.
On motion for directed verdict, the trial court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. If the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty, a directed verdict should not be given. For the purpose of ruling on the motion, the trial court must assume that the evidence for the Commonwealth is true, but reserving to the jury questions as to the credibility and weight to be given to such testimony.
Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991). “On appellate review, the test of a directed verdict is, if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt, only then the defendant is entitled
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to a directed verdict of acquittal.” Riggle v. Commonwealth, 686 S.W.3d 105, 117 (Ky. 2023) (quoting Benham, 816 S.W.2d at 187).
Powell asserts the strongest evidence of trafficking were text messages from his cell phone referencing “licks,” slang for drug sales. Powell contends these text messages were improperly admitted because the police detective who extracted the messages was not disclosed as an expert, see infra. However, the cell phone text messages were only part of the evidence presented which supported a trafficking conviction. The Commonwealth correctly points out that the quantity of methamphetamine recovered in this case, 6.824 grams, was more than triple the amount required for trafficking two grams or more pursuant to the indictment. KRS 218A.1412(1)(b). The jury also heard testimony from Scott Hardcorn, the director of the Northern Kentucky Drug Strike Force, about how drug traffickers typically used plastic bags and folded paper to package their product, as well as scales to weigh the product. Drug traffickers frequently also possess multiple cell phones to facilitate trading in narcotics. Police found plastic bags, scales, and three cell phones in their search of Powell’s vehicle.
“‘So long as the Commonwealth produces more than a mere scintilla of evidence to support the charges, a defendant’s motion for directed verdict should be denied.’” Riggle, 686 S.W.3d at 117 (quoting Taylor v. Commonwealth, 617 S.W.3d 321, 324 (Ky. 2020)). Even leaving aside the text messages which
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Powell claims were not admissible, the Commonwealth produced more than a scintilla of evidence supporting his conviction for trafficking. The trial court did not err in denying Powell’s motion for a directed verdict on that charge.
C. Disclosure of Police Expert In Powell’s third and final argument on appeal, he contends the trial court erroneously permitted testimony from an expert whom the Commonwealth failed to disclose prior to trial. The crux of Powell’s argument is that the Commonwealth offered testimony from Detective Steve Kush, a certified forensic examiner who had testified as an expert in other cases, regarding how he used Cellebrite,5 a software digital extraction tool, to recover the text messages from Powell’s cell phones. The Commonwealth asserted that expert knowledge was not
5 As explained by the Kentucky Supreme Court:
Cellebrite is a for profit, digital forensics company that specializes in the creation and manufacturing of programs that can perform forensic extractions on digital devices. Members of law enforcement are not privy to how Cellebrite’s proprietary technology works, but they can be trained to use it. Cellebrite’s extraction equipment allows law enforcement to perform an extraction of all the data that exists on a device. In essence it creates a “clone” of all the information on a particular device and uploads it to a computer; all an officer must do is plug the device into the forensic equipment and run the program. However, the data that is thereby extracted is not in a form that is capable of being read or understood by the average person. Officers must use a different Cellebrite program called Physical Analyzer to “translate” all the raw data extracted from the phone into an intelligible format.
Baldwin v. Commonwealth, 723 S.W.3d 676, 686 (Ky. 2025).
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required to use Cellebrite, and the trial court agreed, ultimately ruling that technical training was not necessary for a jury to understand that Cellebrite is a computer program that generates a report.
An appellate court reviews a trial court’s evidentiary rulings, including those relating to the admission of experts, for abuse of discretion. Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 577-78 (Ky. 2000). “The test for abuse of discretion is whether the trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
Powell asserts error, contending that “[c]ell phone data extraction using CellBrite [sic] is a technical skill that requires appropriate certification” under KRE6 702. Appellant’s Brief at 20. KRE 702, testimony by experts, applies “[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue[.]” There is very little authority in Kentucky at present on Cellebrite software and its use in producing evidence for trial. However, a notable federal case out of the Fifth Circuit, is directly and persuasively on point when it states, “[e]very circuit that has addressed this question—whether evidence obtained with Cellebrite technology requires
6 Kentucky Rule of Evidence.
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expert testimony for admission—has answered it in the negative.” United States v. Williams, 83 F.4th 994, 997 (5th Cir. 2023).
The Williams court explains that no expert qualification is necessary when the operator of the Cellebrite computer program describes “hooking the phones up to a computer, following a few prompts, and saving data onto an external drive.” Id. (quoting United States v. Chavez-Lopez, 767 F. App’x 431, 434 (4th Cir. 2019)). The Kentucky Supreme Court briefly touched upon the operation of Cellebrite software in similar terms in a recently published case: “[A]ll an officer must do is plug the device into the forensic equipment and run the program.” Baldwin v. Commonwealth, 723 S.W.3d 676, 686 (Ky. 2025). Although we are not obliged to follow Williams, a federal case in another circuit, it is still highly persuasive, and we are absolutely required to follow our Supreme Court in any event. SCR7 1.030(8)(a). Despite Detective Kush’s qualification as an expert in other contexts, the trial court correctly ruled that he did not need to offer expert testimony to describe how he used Cellebrite to extract the contents of Powell’s cell phones.
III. CONCLUSION
For the foregoing reasons, we affirm the trial court’s final judgment and sentence.
7 Rules of the Kentucky Supreme Court.
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ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Kayla D. Deatherage Russell Coleman Frankfort, Kentucky Attorney General of Kentucky
Kristin L. Conder
Assistant Attorney General Frankfort, Kentucky