Joshua Kellems v. Commonwealth of Kentucky

• Court: Court of Appeals of Kentucky
• Decided: April 18, 2024
• Docket: 2022 CA 001006
• Status: Unknown

Opinion

RENDERED: APRIL 19, 2024; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2022-CA-1006-MR

JOSHUA KELLEMS APPELLANT

APPEAL FROM MCLEAN CIRCUIT COURT v. HONORABLE BRIAN WIGGINS, JUDGE ACTION NO. 22-CR-00015

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION AFFIRMING

** ** ** ** **

BEFORE: ACREE, CALDWELL, AND LAMBERT, JUDGES.

ACREE, JUDGE: Appellant, Joshua Kellems, appeals from the McLean Circuit

Court’s August 15, 2022 judgment of conviction. Kellems entered a conditional

guilty plea to reserve his right to appeal the circuit court’s denial of his motion to

suppress evidence. We affirm. BACKGROUND

On October 24, 2021, Deputy Smith of the McLean County Sheriff’s

Department observed a vehicle without visible license plates and decided to initiate

a traffic stop. Deputy Smith stopped the vehicle at approximately 3:58 p.m.

Kellems, the driver, was unable to produce a driver’s license, proof of insurance, or

the vehicle’s registration; the vehicle’s registration had been canceled for failure to

maintain insurance. Upon return to his cruiser, Deputy Smith discovered Kellems’

license was suspended.

While Deputy Smith was running the vehicle’s Vehicle Identification

Number, Chief Deputy Coomes arrived at the scene at approximately 4:09 p.m.

Deputy Smith told Chief Deputy Coomes he stopped Kellems because the vehicle

lacked a license plate and discovered Kellems was unable to produce proof of

insurance or a driver’s license. Chief Deputy Coomes believed he had previously

charged Kellems with driving without a license, and advised Deputy Smith to

arrest him.

Deputy Smith arrested Kellems at approximately 4:21 p.m. Because

the car was not insured, Deputy Smith called a tow truck. Chief Deputy Coomes

called Deputy McCoy, the Sheriff’s Department’s canine officer, who arrived at

approximately 4:27 p.m. Deputy McCoy performed a canine sniff of the vehicle,

and the dog alerted to the presence of narcotics. Deputy McCoy searched the

-2- vehicle and discovered methamphetamine in the center console. The search also

yielded scales and three methamphetamine pipes. In addition to being arrested for

no insurance, no driver’s license, and no registration, Kellems was arrested for

possession of drug paraphernalia and trafficking methamphetamine.

Kellems filed a motion to suppress evidence discovered as a result of

the warrantless search of his vehicle. The circuit court held a hearing on the

motion on May 31, 2022. The circuit court denied the motion, entering findings of

fact, conclusions of law, and an order on July 11, 2022. Kellems entered a

conditional guilty plea, reserving his right to appeal the denial of his motion to

suppress. Kellems now so appeals.

STANDARD OF REVIEW

Appellate courts engage in a twofold review of pretrial motions to

suppress. Whitlow v. Commonwealth, 575 S.W.3d 663, 668 (Ky. 2019). “First, we

review the trial court’s findings of fact under a clearly erroneous standard. Under

this standard, the trial court’s findings of fact will be conclusive if they are

supported by substantial evidence.” Simpson v. Commonwealth, 474 S.W.3d 544,

547 (Ky. 2015) (citations omitted). Substantial evidence is “that which, when

taken alone or in light of all the evidence, has sufficient probative value to induce

conviction in the mind of a reasonable person.” Bowling v. Nat. Res. & Env’t Prot.

Cabinet, 891 S.W.2d 406, 409 (Ky. App. 1994) (citing Kentucky State Racing

-3- Comm’n v. Fuller, 481 S.W.2d 298, 308 (Ky. 1972)). “We then conduct a de novo

review of the trial court’s application of the law to the facts to determine whether

its decision is correct as a matter of law.” Simpson, 474 S.W.3d at 547 (internal

quotation marks and citations omitted).

ANALYSIS

Kellems argues the circuit court erroneously denied his suppression

motion. He argues the Sheriff’s deputies illegally arrested him in order to extend

the traffic stop and seize his vehicle so that the police canine could arrive.

“Although an officer may detain a vehicle and its occupants in order to conduct an

ordinary traffic stop, ‘any subsequent detention . . . must not be excessively

intrusive in that the officer’s actions must be reasonably related in scope to

circumstances justifying the initial interference.’” Turley v. Commonwealth, 399

S.W.3d 412, 421 (Ky. 2013) (quoting United States v. Davis, 430 F.3d 345, 353

(6th Cir. 2005)). Accordingly, a police officer is not permitted to detain a vehicle’s

occupants longer than is necessary to effectuate the purpose of the stop “unless

something that occurred during the stop caused the officer to have a reasonable and

articulable suspicion that criminal activity was afoot.” United States v. Hill, 195

F.3d 258, 264 (6th Cir. 1999) (citations omitted).

Kellems’ vehicle was stopped because Deputy Smith noticed his

vehicle lacked a license plate and, upon being stopped, Kellems was unable to

-4- produce a driver’s license, registration for the vehicle, or proof of insurance.

Kellems argues the deputies unlawfully extended the stop because they arrested

him for offenses which, by law, he could not be arrested for. Under KRS1 431.015,

police officers are required to issue citations rather than make arrests for

misdemeanor offenses, subject to listed exceptions. See KRS 431.015(1)(a)-(b).

Ultimately, whether law enforcement was required to issue Kellems a

citation rather than arrest him does not bear on the constitutionality of the search of

his vehicle. In a case that reached the United States Supreme Court, Virginia v.

Moore, a motorist, Moore, was pulled over and arrested for the misdemeanor

offense of driving on a suspended license, even though this was not an arrestable

offense under Virginia law. 553 U.S. 164, 167-68, 128 S. Ct. 1598, 1601-02, 170

L. Ed. 2d 559 (2008). The officers searched Moore incident to the arrest and

discovered crack cocaine and cash on his person. Id. at 167, 128 S. Ct. at 1601.

The Supreme Court determined suppression was not required because it would be

unreasonable for the protections of the Fourth Amendment to depend upon “‘the

law of the particular State in which the search occurs.’” Id. at 172, 128 S. Ct. at

1604 (quoting California v. Greenwood, 486 U.S. 35, 43, 108 S. Ct. 1625, 1626,

100 L. Ed. 2d 30 (1988)). “While ‘[i]ndividual States may surely construe their

own constitutions as imposing more stringent constraints on police conduct than

1 Kentucky Revised Statutes.

-5- does the Federal Constitution,’ . . . state law [does] not alter the content of the

Fourth Amendment.” Id. (quoting Greenwood, 486 U.S. at 43, 108 S. Ct. at 1626).

So long as “officers have probable cause to believe that a person has committed a

crime in their presence, the Fourth Amendment permits them to make an arrest,”

regardless of state law prohibition against that arrest. Id. at 178, 128 S. Ct. at

1608.

Kentucky’s Supreme Court “has held time and again that ‘Section 10

of the Kentucky Constitution provides no greater protection than does the federal

Fourth Amendment.’” Hunter v. Commonwealth, 587 S.W.3d 298, 305 (Ky. 2019)

(quoting LaFollette v. Commonwealth, 915 S.W.2d 747, 748 (Ky. 1996), overruled

on other grounds by Rose v. Commonwealth, 322 S.W.3d 76 (Ky. 2010)). Recent

concurring opinions by our Supreme Court Justices have pushed back against the

overly broad application of LaFollette, urging abandonment of this principle in

favor of a more nuanced examination of the protections our own constitution

ensures. See, e.g., Commonwealth v. Reed, 647 S.W.3d 237, 254-58 (Minton, J.,

concurring) (“There are countless applications of the Fourth Amendment. To say

that Section 10 is co-extensive with the Fourth Amendment for purposes of one

application is not to say the protections provided by the two are co-extensive in

every application. . . . Insofar as LaFollette stands for the proposition that Section

-6- 10 and the Fourth Amendment are co-extensive in every application, we should

overrule it.”).

To date, however, our courts continue to read our state constitution as

providing no greater protection than the Fourth Amendment. Deputy Smith’s

arrest of Kellems, even assuming Kellems should have instead received a citation

pursuant to KRS 431.015, was not unconstitutional. Deputy Smith observed

Kellems lacked a license plate on his vehicle; “[i]t has long been considered

reasonable for an officer to conduct a traffic stop if he or she has probable cause to

believe that a traffic violation has occurred.” Commonwealth v. Bucalo, 422

S.W.3d 253, 258 (Ky. 2013) (citing Wilson v. Commonwealth, 37 S.W.3d 745 (Ky.

2001)). Deputy Smith discovered during the traffic stop that the vehicle lacked

insurance and that Kellems lacked a driver’s license and arrested Kellems upon the

advice of Chief Deputy Coomes; “[t]here is no doubt that a police officer may

make a warrantless arrest ‘when a misdemeanor, as defined in KRS 431.060, has

been committed in his presence.’” Commonwealth v. Mobley, 160 S.W.3d 783,

786 (Ky. 2005) (quoting KRS 431.005(1)(d)).

Because the question of whether Kellems’ arrest was prohibited by

state statute has no bearing on the constitutionality of his arrest, we must determine

whether the canine sniff of Kellems’ vehicle following his arrest was

unconstitutional. It is true that “a police officer may not extend a traffic stop

-7- beyond its original purpose for the sole purpose of conducting a sniff search – not

even for a de minimis period of time.” Davis v. Commonwealth, 484 S.W.3d 288,

293 (Ky. 2016) (citing Rodriguez v. U.S., 575 U.S. 348, 135 S. Ct. 1609, 191 L.

Ed. 2d 492 (2015)). However, that is not what happened here. Nothing of record

indicates the deputies impermissibly extended the traffic stop, which was

terminated once Kellems was arrested. Our inquiry now becomes whether, once

the occupant of a vehicle has been arrested following a traffic stop and the vehicle

remains parked on the side of a public road, law enforcement may perform a

canine sniff of a vehicle. We conclude this practice does not run afoul of the

Fourth Amendment.

“All searches without a valid search warrant are unreasonable unless

shown to be within one of the exceptions to the rule that a search must rest upon a

valid warrant.” Gallman v. Commonwealth, 578 S.W.2d 47, 48 (Ky. 1979). Our

jurisprudence recognizes two permissible circumstances when a vehicle may be

searched, without a warrant, incident to an arrest. Robbins v. Commonwealth, 336

S.W.3d 60, 63 (Ky. 2011) (citing Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710,

173 L. Ed. 2d 485 (2009)). First, law enforcement may perform a vehicle search

“incident to a recent occupant’s arrest ‘when the arrestee is unsecured and within

reaching distance of the passenger compartment at the time of the search.’” Id.

(quoting Gant, 556 U.S. at 343, 129 S. Ct. at 1719). Second, “[a] search is also

-8- warranted when it is ‘reasonable to believe the vehicle contains evidence of the

offense of arrest.’” Id. (quoting Gant, 556 U.S. at 351, 129 S. Ct. at 1723).

Neither of these circumstances are present in the instant case.

However, the dog sniff of Kellems’ vehicle provided a basis to search it

independently of the fact of Kellems’ arrest. Once the dog alerted to the presence

of drugs in the vehicle, the police had probable cause sufficient to support a

warrantless search. The “automobile exception” to the warrant requirement

“allows officers to search a legitimately stopped automobile where probable cause

exists that contraband or evidence of a crime is in the vehicle.” Clark v.

Commonwealth, 868 S.W.2d 101, 106 (Ky. App. 1993) reversed on other grounds

by Henry v. Commonwealth, 275 S.W.3d 194 (Ky. 2008) (citing United States v.

Ross, 456 U.S. 798, 800-01, 102 S. Ct. 2157, 2159-61, 72 L. Ed. 2d 572 (1982)).

The circuit court relied upon Olmeda v. Commonwealth in denying

Kellems’ suppression motion. In Olmeda, a police officer pulled Olmeda over for

multiple vehicle equipment violations. 601 S.W.3d 183, 184 (Ky. App. 2020).

During the stop, the officer learned Olmeda’s license was suspended and came to

suspect he was driving under the influence of alcohol. Id. Another officer arrived

and noticed Olmeda’s eyes were dilated, and the police then suspected Olmeda was

under the influence of drugs. Id. A canine unit arrived and performed a sniff

search while Olmeda underwent field sobriety testing. Id. The dog alerted to the

-9- presence of drugs, and the police discovered marijuana, cocaine, and drug

paraphernalia in the vehicle. Id. A panel of this Court noted “the length of

the vehicle’s stop was ultimately governed by the fact that Olmeda, even if he were

only issued a citation for his offenses, could not legally drive away due to his

suspended license.” Id. at 187 (emphasis original). “As a result, regardless of

whether Olmeda was present, Olmeda’s truck would certainly have remained at the

scene long enough for the K-9 unit to arrive.” Id.

Olmeda is not perfectly analogous to the instant appeal. The officers

came to suspect Olmeda of driving while under the influence of drugs, id. at 184,

while Kellems was arrested for offenses completely unrelated to drugs and made

no indication that drugs would be discovered in the vehicle. Further, the canine

sniff was performed on Olmeda’s vehicle during the initial traffic stop, id., and

Kellems’ vehicle was searched after he was placed under arrest.

However, Olmeda is still instructive because, as in Olmeda, Kellems’

car would have remained in place even had Kellems not been arrested; Kellems

would not have been legally permitted to drive it away due to his suspended

license. This gave the deputies ample opportunity to summon a canine unit to

perform a drug sniff of Kellems’ vehicle. Further, Kellems had no legitimate

interest in privacy which would shield him against the drug sniff of his vehicle;

“any interest in possessing contraband cannot be deemed ‘legitimate,’ and thus,

-10- governmental conduct that only reveals the possession of contraband[,]” such as

use of a canine sniff to detect narcotics, “‘compromises no legitimate privacy

interest.’” Illinois v. Caballes, 543 U.S. 405, 408-09, 125 S. Ct. 834, 837-38, 160

L. Ed. 2d 842 (2005) (emphasis original) (quoting United States v. Jacobsen, 466

U.S. 109, 123, 104 S. Ct. 1652, 1661, 80 L. Ed. 2d 85 (1984)).

In sum, whether Kellems could be arrested for his misdemeanor

offenses does not bear on the constitutionality of the arrest. Because the deputies

had probable cause to believe an offense occurred in their presence, they were

constitutionally permitted to arrest him, regardless of any state law prohibition

against that arrest. See Moore, 553 U.S. at 178, 128 S. Ct. at 1608. Once Kellems

was arrested, his vehicle sat unoccupied on the side of a public road while it waited

to be towed. The deputies had ample time to summon a canine unit which alerted

to narcotics in Kellems’ vehicle. Therefore, the warrantless search of his vehicle

was not incident to his arrest. Rather, the search was permissible and

constitutional once the canine sniff generated probable cause for such search.

CONCLUSION

Based on the foregoing, we affirm the McLean Circuit Court’s August

15, 2022 judgment of conviction.

ALL CONCUR.

-11- BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

Sarah D. Dailey Daniel Cameron Frankfort, Kentucky Attorney General of Kentucky

Melissa A. Pile Assistant Attorney General Frankfort, Kentucky

-12-