RENDERED: JANUARY 29, 2021; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2019-CA-1438-MR
MAMA DIALLO APPELLANT
APPEAL FROM CAMPBELL CIRCUIT COURT v. HONORABLE DANIEL J. ZALLA, JUDGE ACTION NO. 18-CR-00195
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, KRAMER, AND MAZE, JUDGES.
CALDWELL, JUDGE: Mama Diallo entered a conditional guilty plea in
Campbell Circuit Court to a charge of trafficking in a controlled substance, less
than four (4) grams of cocaine, and received a sentence of five years’
imprisonment. He alleges that his rights pursuant to the United States Constitution
and the Kentucky Constitution were violated when the police searched his vehicle
after a traffic stop. We disagree and affirm. FACTUAL AND PROCEDURAL BACKGROUND
Appellant Mama Diallo (Diallo) was operating a vehicle in Highland
Heights in 2018 when he was pulled over by Officer John Dunn (Dunn) after Dunn
witnessed the vehicle swerve across the “fog line,” the solid white line on the side
of the road, as it was proceeding up the ramp to I-275. As Dunn began following
the vehicle, he observed it move across three lanes of traffic on the expressway all
at once, without signaling. At seeing this dangerous move, Dunn activated his
lights and initiated a traffic stop.
Though Diallo did stop his vehicle, he did not pull to the side of the
road, instead remaining in the slow lane of the expressway. Dunn directed Diallo
to pull his vehicle off of the roadway. Dunn called for backup, fearing the vehicle
may take off since the driver seemed reticent to pull completely over to the side of
the road. As Officer Dutle (Dutle) arrived to back up Dunn, the suspect vehicle
pulled off of the roadway and Dutle and Dunn approached the car.
Dunn noticed a smell of marijuana as he approached the vehicle from
the passenger side. He also noticed that the driver’s eyes were glassy, and the
aroma of marijuana was even more pronounced as he spoke with Diallo. The
officers removed Diallo from his vehicle and patted him down. Diallo told them
he had a taser in his pocket, and the officers found the weapon, along with a baggie
-2- of marijuana and four pills in cellophane, which appeared to be Percocet. Diallo
was placed in handcuffs.
After having found a weapon, marijuana, and narcotics on his person,
and recalling his odd manner of pulling over by not removing his vehicle from the
roadway, Officer Dutle suspected that further evidence of a crime was present and
began searching the vehicle. He noted that the smell of marijuana had not
dissipated from the interior of the car, despite Diallo being removed from the
vehicle. During a search, he found a digital scale underneath the driver’s seat and
then found a mason jar of marijuana in the trunk. Officer Dutle next examined the
engine compartment, as he had knowledge that sometimes drugs were secreted
under the hood, but during his search he found no contraband under the hood.
Returning to the interior, he noted that a panel on the passenger side of the vehicle,
underneath the center console, seemed to have been removed and replaced as it
was not seated well. He removed the panel and found inside the compartment
behind the panel a baggie of what was suspected to be cocaine.
Diallo was charged with trafficking in a controlled substance in the
first degree for the cocaine (more than four (4) grams), possession of a controlled
substance in the first degree for the Percocet, possession of drug paraphernalia for
the scale, and possession of marijuana. Diallo filed a motion to suppress the
evidence discovered in his vehicle, alleging that the officers had no right to search
-3- his vehicle and that the exclusionary rule should result in suppression of the
evidence found in the vehicle following the search. After a suppression hearing,
the trial court denied Diallo’s motion.
In exchange for a guilty plea to the trafficking charge, amended to less
than four (4) grams, all of the possessory offenses against Diallo were dismissed as
part of the plea deal and he received a sentence of five years’ imprisonment. His
plea was conditioned on his right to appeal the trial court’s order denying his
motion to suppress.
STANDARD OF REVIEW
When reviewing a trial court’s order on a motion to suppress, an
appellate court reviews the trial court’s findings of fact for clear error and the
conclusions of law de novo. Simpson v. Commonwealth, 474 S.W.3d 544, 547
(Ky. 2015).
ANALYSIS
Generally, the United States Constitution and the Kentucky
Constitution require that before law enforcement performs a search that the officer
seek the issuance of a warrant by a court, which shall review the sufficiency of
evidence presented it for probable cause to believe a crime has been committed or
evidence thereof might be found before the search might commence of a person or
vehicle. See Commonwealth v. Hatcher, 199 S.W.3d 124, 126 (Ky. 2006). A
-4- search conducted without a warrant, therefore, is unreasonable unless it falls within
one of the few exceptions to the warrant requirement. Two of those exceptions are
applicable in the present case, one of which was the automobile exception, which
the trial court properly held validated the officers’ actions in this matter.
Automobile Exception
The first exception allows law enforcement to search a vehicle when
the police reasonably suspect that the vehicle might contain contraband, due to the
ready mobility of vehicles and the diminished right of privacy one has when upon
the public streets in a vehicle. See Dunn v. Commonwealth, 199 S.W.3d 775, 776
(Ky. App. 2006). When reviewing whether the automobile exception has been
properly applied by a trial court in denying a motion to suppress, a reviewing court
must review a mixed question of law and fact de novo, giving due deference to the
trial court’s assessment of credibility of the officers who provided testimony. See
Baltimore v. Commonwealth, 119 S.W.3d 532, 539 (Ky. App. 2003).
The officers cited sufficient reasons for the initiation of the traffic
stop—drifting across the fog line and rapidly crossing several lanes of traffic
without signaling. Further, Diallo’s behavior in not pulling to the side of the road,
coupled with the smell of marijuana on his person, followed by the discovery of
marijuana, pills, and a taser on Diallo’s person, provided more than probable cause
to suspect that further contraband might be found in the vehicle. This suspicion
-5- was buoyed by the persistent odor of marijuana in the vehicle, even after Diallo,
and his on-person baggie of marijuana, were removed from the vehicle. The
officers reasonably concluded that there may remain more marijuana in the
vehicle.
Diallo complains that the removing of panels was borne out of a
“hunch” and thus was not supported by probable cause. However, given the
contraband found on Diallo’s person, the scales found beneath his seat, and the jar
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RENDERED: JANUARY 29, 2021; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2019-CA-1438-MR
MAMA DIALLO APPELLANT
APPEAL FROM CAMPBELL CIRCUIT COURT v. HONORABLE DANIEL J. ZALLA, JUDGE ACTION NO. 18-CR-00195
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, KRAMER, AND MAZE, JUDGES.
CALDWELL, JUDGE: Mama Diallo entered a conditional guilty plea in
Campbell Circuit Court to a charge of trafficking in a controlled substance, less
than four (4) grams of cocaine, and received a sentence of five years’
imprisonment. He alleges that his rights pursuant to the United States Constitution
and the Kentucky Constitution were violated when the police searched his vehicle
after a traffic stop. We disagree and affirm. FACTUAL AND PROCEDURAL BACKGROUND
Appellant Mama Diallo (Diallo) was operating a vehicle in Highland
Heights in 2018 when he was pulled over by Officer John Dunn (Dunn) after Dunn
witnessed the vehicle swerve across the “fog line,” the solid white line on the side
of the road, as it was proceeding up the ramp to I-275. As Dunn began following
the vehicle, he observed it move across three lanes of traffic on the expressway all
at once, without signaling. At seeing this dangerous move, Dunn activated his
lights and initiated a traffic stop.
Though Diallo did stop his vehicle, he did not pull to the side of the
road, instead remaining in the slow lane of the expressway. Dunn directed Diallo
to pull his vehicle off of the roadway. Dunn called for backup, fearing the vehicle
may take off since the driver seemed reticent to pull completely over to the side of
the road. As Officer Dutle (Dutle) arrived to back up Dunn, the suspect vehicle
pulled off of the roadway and Dutle and Dunn approached the car.
Dunn noticed a smell of marijuana as he approached the vehicle from
the passenger side. He also noticed that the driver’s eyes were glassy, and the
aroma of marijuana was even more pronounced as he spoke with Diallo. The
officers removed Diallo from his vehicle and patted him down. Diallo told them
he had a taser in his pocket, and the officers found the weapon, along with a baggie
-2- of marijuana and four pills in cellophane, which appeared to be Percocet. Diallo
was placed in handcuffs.
After having found a weapon, marijuana, and narcotics on his person,
and recalling his odd manner of pulling over by not removing his vehicle from the
roadway, Officer Dutle suspected that further evidence of a crime was present and
began searching the vehicle. He noted that the smell of marijuana had not
dissipated from the interior of the car, despite Diallo being removed from the
vehicle. During a search, he found a digital scale underneath the driver’s seat and
then found a mason jar of marijuana in the trunk. Officer Dutle next examined the
engine compartment, as he had knowledge that sometimes drugs were secreted
under the hood, but during his search he found no contraband under the hood.
Returning to the interior, he noted that a panel on the passenger side of the vehicle,
underneath the center console, seemed to have been removed and replaced as it
was not seated well. He removed the panel and found inside the compartment
behind the panel a baggie of what was suspected to be cocaine.
Diallo was charged with trafficking in a controlled substance in the
first degree for the cocaine (more than four (4) grams), possession of a controlled
substance in the first degree for the Percocet, possession of drug paraphernalia for
the scale, and possession of marijuana. Diallo filed a motion to suppress the
evidence discovered in his vehicle, alleging that the officers had no right to search
-3- his vehicle and that the exclusionary rule should result in suppression of the
evidence found in the vehicle following the search. After a suppression hearing,
the trial court denied Diallo’s motion.
In exchange for a guilty plea to the trafficking charge, amended to less
than four (4) grams, all of the possessory offenses against Diallo were dismissed as
part of the plea deal and he received a sentence of five years’ imprisonment. His
plea was conditioned on his right to appeal the trial court’s order denying his
motion to suppress.
STANDARD OF REVIEW
When reviewing a trial court’s order on a motion to suppress, an
appellate court reviews the trial court’s findings of fact for clear error and the
conclusions of law de novo. Simpson v. Commonwealth, 474 S.W.3d 544, 547
(Ky. 2015).
ANALYSIS
Generally, the United States Constitution and the Kentucky
Constitution require that before law enforcement performs a search that the officer
seek the issuance of a warrant by a court, which shall review the sufficiency of
evidence presented it for probable cause to believe a crime has been committed or
evidence thereof might be found before the search might commence of a person or
vehicle. See Commonwealth v. Hatcher, 199 S.W.3d 124, 126 (Ky. 2006). A
-4- search conducted without a warrant, therefore, is unreasonable unless it falls within
one of the few exceptions to the warrant requirement. Two of those exceptions are
applicable in the present case, one of which was the automobile exception, which
the trial court properly held validated the officers’ actions in this matter.
Automobile Exception
The first exception allows law enforcement to search a vehicle when
the police reasonably suspect that the vehicle might contain contraband, due to the
ready mobility of vehicles and the diminished right of privacy one has when upon
the public streets in a vehicle. See Dunn v. Commonwealth, 199 S.W.3d 775, 776
(Ky. App. 2006). When reviewing whether the automobile exception has been
properly applied by a trial court in denying a motion to suppress, a reviewing court
must review a mixed question of law and fact de novo, giving due deference to the
trial court’s assessment of credibility of the officers who provided testimony. See
Baltimore v. Commonwealth, 119 S.W.3d 532, 539 (Ky. App. 2003).
The officers cited sufficient reasons for the initiation of the traffic
stop—drifting across the fog line and rapidly crossing several lanes of traffic
without signaling. Further, Diallo’s behavior in not pulling to the side of the road,
coupled with the smell of marijuana on his person, followed by the discovery of
marijuana, pills, and a taser on Diallo’s person, provided more than probable cause
to suspect that further contraband might be found in the vehicle. This suspicion
-5- was buoyed by the persistent odor of marijuana in the vehicle, even after Diallo,
and his on-person baggie of marijuana, were removed from the vehicle. The
officers reasonably concluded that there may remain more marijuana in the
vehicle.
Diallo complains that the removing of panels was borne out of a
“hunch” and thus was not supported by probable cause. However, given the
contraband found on Diallo’s person, the scales found beneath his seat, and the jar
of marijuana found in the trunk of the vehicle, the officer clearly had probable
cause. The officer suspected that the panel, which appeared to have previously
been removed and re-installed, might have been removed to secrete contraband.
Diallo suggests that the panel might have been removed to effect the change of a
fuse or bulb, and its appearance of having been previously removed was not
inherently suspicious. However, there is no evidence that the subject panel was
one which housed fuses or bulbs, which would have been manufactured and
installed with an expectation of removal and replacement. Rather, the evidence
suggested here that the panel was one not intended to be removed, because it was
not capable of being replaced such that its prior removal was not obvious; if a
panel is made to be removed, it is made to be replaced without having obviously
been previously removed.
-6- Further, probable cause does and can extend to all portions of a
vehicle where the objects of the search can be hidden. “Police . . . who have
probable cause to believe that the objects of the search are concealed somewhere
within the vehicle may conduct a warrantless search of the vehicle and all the
compartments and containers thereof as well as the contents thereof that are not in
plain view.” Estep v. Commonwealth, 663 S.W.2d 213, 215 (Ky. 1983).
We find that the trial court properly found that the search of the
vehicle was supported by probable cause.
Search Incident to Arrest
Though the trial court did not specifically find that the search could
have been validated as a proper search incident to arrest, such is a conclusion of
law and as our review of such is de novo, we will address this exception.
As Diallo was lawfully seized and had been arrested for possession of
contraband, and as the officers noted that the smell of marijuana—one of the items
of contraband found on Diallo’s person—persisted in the vehicle even after he had
been removed from it, it was appropriate for the officers to search the vehicle
incident to his arrest. “A reasonable reading of Gant, as set forth by our Supreme
Court in Owens, clearly holds that the exception is also available if it is reasonable
to believe the vehicle contains evidence of the offense of arrest.” Commonwealth
v. Elliott, 322 S.W.3d 106, 110 (Ky. App. 2010).
-7- CONCLUSION
For the foregoing reasons, the trial court’s order on the motion to
suppress is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Julia Karol Pearson Daniel Cameron Frankfort, Kentucky Attorney General of Kentucky
Christopher Henry Assistant Attorney General Frankfort, Kentucky
-8-