RENDERED: OCTOBER 9, 2020; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2019-CA-1300-MR
HEATHER SMITH APPELLANT
APPEAL FROM MADISON CIRCUIT COURT v. HONORABLE BRANDY O. BROWN, JUDGE ACTION NO. 18-CR-00795
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; ACREE AND LAMBERT, JUDGES.
ACREE, JUDGE: Heather Smith appeals the Madison Circuit Court’s denial of
her motion to suppress all physical evidence recovered from a search of her
vehicle. She claims Kentucky State Police Trooper Briston Smith unlawfully
detained her during a routine traffic stop in order to conduct a K-9 sniff of her vehicle that resulted in the seizure of narcotics and money. After careful review,
we affirm.
BACKGROUND
Trooper Smith was on patrol when he observed Heather fail to use a
turn signal while entering Greens Crossing Road in Madison County. Trooper
Smith turned around and saw Heather slow down in front of the first house on the
right. As he approached, the car began to move. At this point, he initiated a stop.
Trooper Smith testified he had worked this area on multiple occasions and
considered it a “high crime area.” Specifically, he testified that he has made
multiple drug arrests in the area and conducted two search warrants of the first
house on the right of Greens Crossing Road – the residence where Heather initially
stopped.
Upon approaching the car, Trooper Smith asked Heather and her
passenger, Mr. Tate, for identification. Heather was able to produce her driver’s
license, while Tate provided a Social Security card. Trooper Smith testified he
immediately noticed a large bulge in Tate’s sock. Upon inquiry, Tate pulled out a
large roll of money, which he stated he earned from working construction. Tate
also noted that the roll did not contain as much money as its size suggested.
Trooper Smith noted Heather was visibly shaking and her legs were
moving non-stop. Heather told Trooper Smith she was shaking because she was
-2- out on parole and had been arrested a month earlier by the KSP drug interdiction
team for drug trafficking. When asked where she was going, Heather stated she
was going to look at a house to rent or buy on Charlie Norris Road, but she was not
certain where the house was located. Tate also informed Trooper Smith they were
going to a house on Charlie Norris Road, but had no clue why they were going
there.
Trooper Smith then asked Heather for a copy of her car insurance.
Heather was unable to produce a copy but stated she would be able to contact her
insurance company and get a copy sent to her phone if Trooper Smith would allow
it. Trooper Smith allowed her time to produce insurance but asked her to exit the
vehicle while she was handling the problem. While Heather was standing outside
the vehicle, Trooper Smith noticed Tate reaching behind and in-between the seats
several times. He then asked Tate to exit the vehicle for officer safety purposes.
Based on the location being a high-crime area, Heather’s nervous
behavior, the size of the money roll in Tate’s sock, the inconsistent stories as to
why they were headed to the Charlie Norris Road house, and Tate rummaging
around in the vehicle, Trooper Smith asked for permission to search the vehicle.
Heather declined. He then informed her of his intention to call for a K-9 unit while
she looked for her insurance.
-3- Another trooper arrived on the scene and waited with Heather and
Tate while Trooper Smith returned to his vehicle to call a K-9 unit. Trooper Smith
testified it took approximately thirteen minutes for Deputy Bol to arrive with the
K-9. He remained in his cruiser the entire thirteen minutes, verifying their
information, completing a CourtNet check, and working on a citation. When the
K-9 unit arrived, Trooper Smith exited his cruiser. At this point, Heather was able
to provide Trooper Smith with her proof of insurance. Because Trooper Smith was
inside his cruiser while waiting on the K-9 unit, he could not attest to the exact
time Heather obtained her insurance, but only that it was provided to him upon
exiting his cruiser. He also noted that he had not completed the citation at this
point.
The K-9 immediately alerted to the vehicle. A search recovered 60
grams of methamphetamine, 4 grams of heroin, $732.00 on and around where Tate
was sitting, and $1,150.00 and other narcotics in a box with Heather’s name and
address on it.
Heather was indicted on six drug-related crimes. She moved to
suppress the evidence obtained from her car, arguing Trooper Smith unlawfully
detained her for thirteen minutes while waiting on the K-9 unit. The circuit court
denied her motion, concluding Trooper Smith had reasonable articulable suspicion
-4- to detain Heather until the K-9 unit arrived. Heather pleaded guilty, reserving her
right to appeal. She was sentenced to five years in prison. This appeal followed.
ANALYSIS
Heather’s argument on appeal is that the circuit court erroneously
denied her motion to suppress. “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.” Jackson v. Commonwealth, 187
S.W.3d 300, 305 (Ky. 2006) (citing Welch v. Commonwealth, 149 S.W.3d 407,
409 (Ky. 2004)).
The Fourth Amendment to the United States Constitution protects
citizens from unreasonable searches and seizures. Because a traffic stop is
considered a seizure of the person, it is “subject to the constitutional imperative
that it not be ‘unreasonable’ under the circumstances.” Whren v. United States,
517 U.S. 806, 810, 116 S. Ct. 1769, 1772, 135 L. Ed. 2d 89 (1996). Generally, a
traffic stop is deemed unreasonable if it is “prolonged beyond the point reasonably
required to complete the stop’s mission.” Moberly v. Commonwealth, 551 S.W.3d
26, 29 (Ky. 2018), reh’g denied (Aug. 16, 2018) (citing Rodriguez v. United States,
575 U.S. 348, 354, 135 S. Ct. 1609, 1614, 191 L. Ed. 2d 492 (2015)). In other
words, an officer’s “[a]uthority for the seizure [of the vehicle and the driver] ends
-5- when tasks tied to the traffic infraction are – or reasonably should have been –
completed.” Id. (citing Rodriguez, 575 U.S. at 354, 135 S. Ct. at 1614).
However, “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. (citing Commonwealth v. Bucalo, 422 S.W.3d
253, 259 (Ky. 2013)); see Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 1884, 20
L. Ed. 2d 889 (1968). Because “[a] dog sniff . . . is a measure aimed at detect[ing]
evidence of ordinary criminal wrongdoing, [it] is not an ordinary incident of a
traffic stop.” Davis v. Commonwealth, 484 S.W.3d 288, 293 (Ky.
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RENDERED: OCTOBER 9, 2020; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2019-CA-1300-MR
HEATHER SMITH APPELLANT
APPEAL FROM MADISON CIRCUIT COURT v. HONORABLE BRANDY O. BROWN, JUDGE ACTION NO. 18-CR-00795
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; ACREE AND LAMBERT, JUDGES.
ACREE, JUDGE: Heather Smith appeals the Madison Circuit Court’s denial of
her motion to suppress all physical evidence recovered from a search of her
vehicle. She claims Kentucky State Police Trooper Briston Smith unlawfully
detained her during a routine traffic stop in order to conduct a K-9 sniff of her vehicle that resulted in the seizure of narcotics and money. After careful review,
we affirm.
BACKGROUND
Trooper Smith was on patrol when he observed Heather fail to use a
turn signal while entering Greens Crossing Road in Madison County. Trooper
Smith turned around and saw Heather slow down in front of the first house on the
right. As he approached, the car began to move. At this point, he initiated a stop.
Trooper Smith testified he had worked this area on multiple occasions and
considered it a “high crime area.” Specifically, he testified that he has made
multiple drug arrests in the area and conducted two search warrants of the first
house on the right of Greens Crossing Road – the residence where Heather initially
stopped.
Upon approaching the car, Trooper Smith asked Heather and her
passenger, Mr. Tate, for identification. Heather was able to produce her driver’s
license, while Tate provided a Social Security card. Trooper Smith testified he
immediately noticed a large bulge in Tate’s sock. Upon inquiry, Tate pulled out a
large roll of money, which he stated he earned from working construction. Tate
also noted that the roll did not contain as much money as its size suggested.
Trooper Smith noted Heather was visibly shaking and her legs were
moving non-stop. Heather told Trooper Smith she was shaking because she was
-2- out on parole and had been arrested a month earlier by the KSP drug interdiction
team for drug trafficking. When asked where she was going, Heather stated she
was going to look at a house to rent or buy on Charlie Norris Road, but she was not
certain where the house was located. Tate also informed Trooper Smith they were
going to a house on Charlie Norris Road, but had no clue why they were going
there.
Trooper Smith then asked Heather for a copy of her car insurance.
Heather was unable to produce a copy but stated she would be able to contact her
insurance company and get a copy sent to her phone if Trooper Smith would allow
it. Trooper Smith allowed her time to produce insurance but asked her to exit the
vehicle while she was handling the problem. While Heather was standing outside
the vehicle, Trooper Smith noticed Tate reaching behind and in-between the seats
several times. He then asked Tate to exit the vehicle for officer safety purposes.
Based on the location being a high-crime area, Heather’s nervous
behavior, the size of the money roll in Tate’s sock, the inconsistent stories as to
why they were headed to the Charlie Norris Road house, and Tate rummaging
around in the vehicle, Trooper Smith asked for permission to search the vehicle.
Heather declined. He then informed her of his intention to call for a K-9 unit while
she looked for her insurance.
-3- Another trooper arrived on the scene and waited with Heather and
Tate while Trooper Smith returned to his vehicle to call a K-9 unit. Trooper Smith
testified it took approximately thirteen minutes for Deputy Bol to arrive with the
K-9. He remained in his cruiser the entire thirteen minutes, verifying their
information, completing a CourtNet check, and working on a citation. When the
K-9 unit arrived, Trooper Smith exited his cruiser. At this point, Heather was able
to provide Trooper Smith with her proof of insurance. Because Trooper Smith was
inside his cruiser while waiting on the K-9 unit, he could not attest to the exact
time Heather obtained her insurance, but only that it was provided to him upon
exiting his cruiser. He also noted that he had not completed the citation at this
point.
The K-9 immediately alerted to the vehicle. A search recovered 60
grams of methamphetamine, 4 grams of heroin, $732.00 on and around where Tate
was sitting, and $1,150.00 and other narcotics in a box with Heather’s name and
address on it.
Heather was indicted on six drug-related crimes. She moved to
suppress the evidence obtained from her car, arguing Trooper Smith unlawfully
detained her for thirteen minutes while waiting on the K-9 unit. The circuit court
denied her motion, concluding Trooper Smith had reasonable articulable suspicion
-4- to detain Heather until the K-9 unit arrived. Heather pleaded guilty, reserving her
right to appeal. She was sentenced to five years in prison. This appeal followed.
ANALYSIS
Heather’s argument on appeal is that the circuit court erroneously
denied her motion to suppress. “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.” Jackson v. Commonwealth, 187
S.W.3d 300, 305 (Ky. 2006) (citing Welch v. Commonwealth, 149 S.W.3d 407,
409 (Ky. 2004)).
The Fourth Amendment to the United States Constitution protects
citizens from unreasonable searches and seizures. Because a traffic stop is
considered a seizure of the person, it is “subject to the constitutional imperative
that it not be ‘unreasonable’ under the circumstances.” Whren v. United States,
517 U.S. 806, 810, 116 S. Ct. 1769, 1772, 135 L. Ed. 2d 89 (1996). Generally, a
traffic stop is deemed unreasonable if it is “prolonged beyond the point reasonably
required to complete the stop’s mission.” Moberly v. Commonwealth, 551 S.W.3d
26, 29 (Ky. 2018), reh’g denied (Aug. 16, 2018) (citing Rodriguez v. United States,
575 U.S. 348, 354, 135 S. Ct. 1609, 1614, 191 L. Ed. 2d 492 (2015)). In other
words, an officer’s “[a]uthority for the seizure [of the vehicle and the driver] ends
-5- when tasks tied to the traffic infraction are – or reasonably should have been –
completed.” Id. (citing Rodriguez, 575 U.S. at 354, 135 S. Ct. at 1614).
However, “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. (citing Commonwealth v. Bucalo, 422 S.W.3d
253, 259 (Ky. 2013)); see Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 1884, 20
L. Ed. 2d 889 (1968). Because “[a] dog sniff . . . is a measure aimed at detect[ing]
evidence of ordinary criminal wrongdoing, [it] is not an ordinary incident of a
traffic stop.” Davis v. Commonwealth, 484 S.W.3d 288, 293 (Ky. 2016) (citations
omitted).1 Accordingly, an officer may not prolong a traffic stop for the purpose of
facilitating a K-9 sniff search, unless he acquires reasonable articulable suspicion
that crime is afoot. Bucalo, 422 S.W.3d at 258.
Heather does not challenge the initial traffic stop. Instead, she asserts
Trooper Smith unconstitutionally prolonged the traffic stop, without reasonable
articulable suspicion, when he deviated from the stop’s mission for thirteen
minutes to call for a K-9 unit and verify her information in his cruiser. We
disagree.
1 Dog sniff in and of itself is not unconstitutional.
-6- As an initial matter, the circuit court did not make a finding as to
whether Trooper Smith actually prolonged the stop.2 Instead, it concluded he had
reasonable articulable suspicion to briefly detain Heather to conduct a dog sniff of
her car. Because we agree with the circuit court’s ruling, we limit our discussion
to this issue.
“Reasonable suspicion is the lowest tier of the pyramid comprised of
probable cause (level two) and preponderance of the evidence (level three): ‘the
likelihood of criminal activity need not rise to the level required for probable
cause, and it falls considerably short of satisfying the preponderance of the
evidence standard.’” Baker v. Commonwealth, 475 S.W.3d 633, 634 (Ky. App.
2015) (citing United States v. Arvizu, 534 U.S. 266, 273, 122 S. Ct. 744, 151 L. Ed.
2d 740 (2002)). Although reasonable suspicion is a relatively low standard, it “is
more than an unparticularized suspicion or hunch.” Bauder v. Commonwealth 299
S.W.3d 588, 591 (Ky. 2009) (internal quotation marks omitted).
A “police officer must be able to point to specific and articulable facts
which, taken together with rational inferences from those facts, reasonably warrant
that intrusion.” Terry, 392 U.S. at 21, 88 S. Ct. at 1880. In doing so, officers “may
draw on their own experience and specialized training to make inferences ….”
2 Trooper Smith consistently testified, on cross-examination, that he did not detain Heather, but merely gave her the opportunity to produce a copy of her insurance.
-7- Bauder, 299 S.W.3d at 592. And, we “consider the totality of the circumstances in
determining whether a police officer had a particularized and objective basis for
suspecting that a person stopped may be involved in criminal activity.” Id. at 591.
The Commonwealth points to six factors giving rise to Trooper
Smith’s reasonable suspicion: (1) Heather’s presence in a high-crime area; (2) her
nervousness to the point she was visibly shaking; (3) her admission to being
arrested for drug trafficking a month prior; (4) the large roll of money in Tate’s
sock; (5) Tate suspiciously rummaging in the car to the point Trooper Smith had to
ask him to exit the vehicle; and (6) the inconsistent responses to Trooper Smith’s
inquiries as to why they were going to the house on Charlie Norris Road.
Heather asserts none of these factors alone gives rise to reasonable
suspicion. Although we agree with that specific assertion, we are obligated to
consider all factors together and not the individualized merits of each. In light of
the totality of the circumstances observed by Trooper Smith, we conclude he had
reasonable suspicion to detain Heather to conduct a K-9 sniff of her car.
Trooper Smith was patrolling a high-crime area. He observed Heather
slow down in front of the first house on the right, a location where he had
conducted multiple searches based upon warrants. Although her presence in a
high-crime area alone is insufficient to establish reasonable suspicion, “a location’s
characteristics are relevant in determining whether the circumstances are
-8- sufficiently suspicious to warrant further investigation[.]” Illinois v. Wardlow, 528
U.S. 119, 119, 120 S. Ct. 673, 674, 145 L. Ed. 2d 570 (2000) (citations omitted).
Second, Trooper Smith described Heather as extremely nervous and visibly
shaking. Nervousness is an important factor in the reasonable suspicion analysis.
Adkins v. Commonwealth, 96 S.W.3d 779, 788 (Ky. 2003). Adding to the
suspicions aroused by Heather’s nervous behavior is her explanation she had been
arrested a month earlier for drug trafficking. It is reasonable to assume she may be
nervous because she was once again engaged in drug trafficking. “[A]n officer’s
knowledge about a suspect’s prior record can be a relevant factor in the reasonable
suspicion analysis.” Commonwealth v. Smith, 542 S.W.3d 276, 284 (Ky. 2018)
(citation omitted). That knowledge, of course, can come from the suspect herself.
In addition to Heather’s suspicious conduct, Trooper Smith found
Tate’s conduct suspicious. First, he discovered a large roll of cash in Tate’s sock.
Although Tate had a plausible explanation how he received the cash, Trooper
Smith found it very suspicious that he would keep it in his sock. Under certain
circumstances, a large amount of cash is a relevant factor in the officer’s
reasonable suspicion. See Commonwealth v. Garrett, 585 S.W.3d 780, 787 n.7
(Ky. App. 2019). We find the roll of cash in this instance to be relevant.
Moreover, Trooper Smith observed Tate reaching behind and in between the seats.
-9- Given the circumstances, it is certainly reasonable that Trooper Smith believed
Tate was attempting to conceal something.
Finally, Heather and Tate gave inconsistent stories as to why they
were going to the house on Charlie Norris Road. Heather told Officer Smith they
were going there to possibly rent or buy. It seems illogical that Tate would have
no idea why they were going to the house if, in fact, they were looking to rent or
buy the property.
Based on the foregoing, we find Trooper Smith had reasonable
suspicion to detain Heather to conduct a K-9 sniff of her car.
CONCLUSION
The Madison Circuit Court’s denial of Heather’s motion to suppress is
affirmed.
LAMBERT, JUDGE, CONCURS.
CLAYTON, CHIEF JUDGE, CONCURS IN RESULT ONLY.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Erin Hoffman Yang Daniel Cameron Frankfort, Kentucky Attorney General of Kentucky
Lauren Lewis Assistant Attorney General Frankfort, Kentucky
-10-