RENDERED: FEBRUARY 23, 2024; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2022-CA-0515-MR
RAMON DEJESUS AYALA APPELLANT
APPEAL FROM HARDIN CIRCUIT COURT v. HONORABLE JOHN D. SIMCOE, JUDGE ACTION NO. 21-CR-00673
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: ACREE, KAREM, AND TAYLOR, JUDGES.
ACREE, JUDGE: Ramon Ayala, Appellant, pleaded guilty to various amended
felony charges, reserving his right to appeal the circuit court’s denial of his motion
to suppress evidence. We affirm.
BACKGROUND
On June 23, 2021, Trooper Richard Ellis was assigned to enforce
traffic and speeding. However, he also worked on the Greater Hardin County Narcotics Task Force. Trooper Ellis parked his cruiser on South Wilson Road in
Radcliffe, which was near the Brooks Market. While there, Detective Michael
Berry informed Trooper Ellis that Appellant had purchased what he believed to be
a glass pipe at Brooks Market.
Appellant left the market alone in his vehicle. Trooper Ellis, on his
own initiative, followed. Using radar, Trooper Ellis determined Appellant was
speeding. When Appellant pulled his vehicle into a residential driveway to pick up
his girlfriend, Trooper Ellis pulled in behind Appellant and activated his lights.
Trooper Ellis smelled marijuana when he approached Appellant’s
vehicle. He told Appellant he pulled him over for speeding. Appellant falsely
identified himself, furnishing Trooper Ellis with a paper copy of a faked Kentucky
RealID with Appellant’s picture and the false name he gave the officer. Appellant
put his hand into his left pocket, and Trooper Ellis instructed Appellant to remove
his hand; Appellant refused. Trooper Ellis then tried to open the door of the
vehicle, and Appellant shut the door with his right hand. Trooper Ellis eventually
got Appellant out of the vehicle, and arrested him for menacing. Appellant then
removed his hand from his pocket, revealing a plastic baggie of marijuana.
Trooper Ellis then searched Appellant’s vehicle.
As the Commonwealth notes, no testimony of record reveals what
Trooper Ellis discovered when he searched Appellant’s vehicle. However, a grand
-2- jury indicted Appellant for first-degree trafficking in a controlled substance,
possession of marijuana, possession of a firearm by a convicted felon, possession
of drug paraphernalia, identity theft, and being a first-degree persistent felony
offender. The firearm possession charge enhanced Appellant’s trafficking and
drug possession charges.
Appellant filed a motion to suppress, challenging the traffic stop. The
circuit court held a suppression hearing, where both Trooper Ellis and Appellant
testified. The circuit court denied the suppression motion. Appellant then entered
a conditional guilty plea, reserving his right to appeal the circuit court’s denial of
his motion. Appellant now so appeals.
STANDARD OF REVIEW
When reviewing the denial of a motion to suppress, an appellate court
considers a trial court’s findings of fact to be “conclusive if supported by
substantial evidence.” Bauder v. Commonwealth, 299 S.W.3d 588, 591 (Ky. 2009)
(citing Ornelas v. United States, 517 U.S. 690, 699, 116 S. Ct. 1657, 134 L. Ed. 2d
911 (1996)). “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.’” Hunter v. Mena, 302 S.W.3d 93, 97 (Ky. App. 2010)
(citing Bowling v. Nat’l Res. & Env’t Prot. Cabinet, 891 S.W.2d 406, 409 (Ky.
App. 1994)). However, appellate courts conduct a de novo review of the trial
-3- court’s application of law to its factual findings. Commonwealth v. Jones, 217
S.W.3d 190, 193 (Ky. 2006) (citing Adcock v. Commonwealth, 967 S.W.2d 6, 8
(Ky. 1998)).
ANALYSIS
Appellant argues two grounds for reversal. First, he argues that the
stop was not a legitimate traffic stop and that, if it was, Trooper Ellis lacked an
articulable basis to initiate the stop.
In our view, it does not matter that Trooper Ellis activated his lights
and initiated his encounter with Appellant after Appellant voluntarily parked his
car in the driveway. The relevant inquiry is whether Appellant was “seized”
within the meaning of the Fourth Amendment. “[I]n order to determine whether a
particular encounter constitutes a seizure, a court must consider all the
circumstances surrounding the encounter to determine whether the police conduct
would have communicated to a reasonable person that the person was not free to
decline the officers’ requests or otherwise terminate the encounter.” Florida v.
Bostick, 501 U.S. 429, 439, 111 S. Ct. 2382, 2389, 115 L. Ed. 2d 389 (1991)).
Because Trooper Ellis parked his cruiser behind Appellant, activated his lights, and
then approached Appellant to inform him he had been stopped for speeding, no
reasonable person in Appellant’s position would feel free to terminate the
encounter.
-4- Therefore, Appellant was seized and thus the constitutional
protections of the Fourth Amendment are implicated. “The Fourth Amendment
applies to all seizures of the person, including seizures that involve only a brief
detention short of traditional arrest.” United States v. Brignoni-Ponce, 422 U.S.
873, 878, 95 S. Ct. 2574, 2578, 45 L. Ed. 2d 607 (1975) (citing Davis v.
Mississippi, 394 U.S. 721, 89 S. Ct. 1394, 22 L. Ed. 2d 676 (1969); Terry v. Ohio,
392 U.S. 1, 16-19, 88 S. Ct. 1868, 1877, 20 L. Ed. 2d 889 (1968)). No matter
whether the encounter between Trooper Ellis and Appellant was treated as a traffic
stop or otherwise, the encounter constituted a temporary detention and thus
Trooper Ellis simply needed reasonable suspicion of illegal activity in order to
engage Appellant.
“There are three types of interaction[s] between police and citizens:
consensual encounters, temporary detentions generally referred to as Terry stops,
and arrests.” Baltimore v. Commonwealth, 119 S.W.3d 532, 537 (Ky. 2003)
(citing Terry, 392 U.S. 1, 88 S. Ct. 1868). “[A] brief investigative stop [and]
detention . . . short of a traditional arrest based on reasonable suspicion does not
violate the Fourth Amendment.” Id. (citing Terry, 392 U.S. 1, 88 S. Ct. 1868).
“Traffic stops are similar to Terry stops and must be supported by articulable,
reasonable suspicion of criminal activity.” Baker v. Commonwealth, 475 S.W.3d
-5- 633, 634 (Ky. App. 2015) (citing Chavies v.
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RENDERED: FEBRUARY 23, 2024; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2022-CA-0515-MR
RAMON DEJESUS AYALA APPELLANT
APPEAL FROM HARDIN CIRCUIT COURT v. HONORABLE JOHN D. SIMCOE, JUDGE ACTION NO. 21-CR-00673
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: ACREE, KAREM, AND TAYLOR, JUDGES.
ACREE, JUDGE: Ramon Ayala, Appellant, pleaded guilty to various amended
felony charges, reserving his right to appeal the circuit court’s denial of his motion
to suppress evidence. We affirm.
BACKGROUND
On June 23, 2021, Trooper Richard Ellis was assigned to enforce
traffic and speeding. However, he also worked on the Greater Hardin County Narcotics Task Force. Trooper Ellis parked his cruiser on South Wilson Road in
Radcliffe, which was near the Brooks Market. While there, Detective Michael
Berry informed Trooper Ellis that Appellant had purchased what he believed to be
a glass pipe at Brooks Market.
Appellant left the market alone in his vehicle. Trooper Ellis, on his
own initiative, followed. Using radar, Trooper Ellis determined Appellant was
speeding. When Appellant pulled his vehicle into a residential driveway to pick up
his girlfriend, Trooper Ellis pulled in behind Appellant and activated his lights.
Trooper Ellis smelled marijuana when he approached Appellant’s
vehicle. He told Appellant he pulled him over for speeding. Appellant falsely
identified himself, furnishing Trooper Ellis with a paper copy of a faked Kentucky
RealID with Appellant’s picture and the false name he gave the officer. Appellant
put his hand into his left pocket, and Trooper Ellis instructed Appellant to remove
his hand; Appellant refused. Trooper Ellis then tried to open the door of the
vehicle, and Appellant shut the door with his right hand. Trooper Ellis eventually
got Appellant out of the vehicle, and arrested him for menacing. Appellant then
removed his hand from his pocket, revealing a plastic baggie of marijuana.
Trooper Ellis then searched Appellant’s vehicle.
As the Commonwealth notes, no testimony of record reveals what
Trooper Ellis discovered when he searched Appellant’s vehicle. However, a grand
-2- jury indicted Appellant for first-degree trafficking in a controlled substance,
possession of marijuana, possession of a firearm by a convicted felon, possession
of drug paraphernalia, identity theft, and being a first-degree persistent felony
offender. The firearm possession charge enhanced Appellant’s trafficking and
drug possession charges.
Appellant filed a motion to suppress, challenging the traffic stop. The
circuit court held a suppression hearing, where both Trooper Ellis and Appellant
testified. The circuit court denied the suppression motion. Appellant then entered
a conditional guilty plea, reserving his right to appeal the circuit court’s denial of
his motion. Appellant now so appeals.
STANDARD OF REVIEW
When reviewing the denial of a motion to suppress, an appellate court
considers a trial court’s findings of fact to be “conclusive if supported by
substantial evidence.” Bauder v. Commonwealth, 299 S.W.3d 588, 591 (Ky. 2009)
(citing Ornelas v. United States, 517 U.S. 690, 699, 116 S. Ct. 1657, 134 L. Ed. 2d
911 (1996)). “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.’” Hunter v. Mena, 302 S.W.3d 93, 97 (Ky. App. 2010)
(citing Bowling v. Nat’l Res. & Env’t Prot. Cabinet, 891 S.W.2d 406, 409 (Ky.
App. 1994)). However, appellate courts conduct a de novo review of the trial
-3- court’s application of law to its factual findings. Commonwealth v. Jones, 217
S.W.3d 190, 193 (Ky. 2006) (citing Adcock v. Commonwealth, 967 S.W.2d 6, 8
(Ky. 1998)).
ANALYSIS
Appellant argues two grounds for reversal. First, he argues that the
stop was not a legitimate traffic stop and that, if it was, Trooper Ellis lacked an
articulable basis to initiate the stop.
In our view, it does not matter that Trooper Ellis activated his lights
and initiated his encounter with Appellant after Appellant voluntarily parked his
car in the driveway. The relevant inquiry is whether Appellant was “seized”
within the meaning of the Fourth Amendment. “[I]n order to determine whether a
particular encounter constitutes a seizure, a court must consider all the
circumstances surrounding the encounter to determine whether the police conduct
would have communicated to a reasonable person that the person was not free to
decline the officers’ requests or otherwise terminate the encounter.” Florida v.
Bostick, 501 U.S. 429, 439, 111 S. Ct. 2382, 2389, 115 L. Ed. 2d 389 (1991)).
Because Trooper Ellis parked his cruiser behind Appellant, activated his lights, and
then approached Appellant to inform him he had been stopped for speeding, no
reasonable person in Appellant’s position would feel free to terminate the
encounter.
-4- Therefore, Appellant was seized and thus the constitutional
protections of the Fourth Amendment are implicated. “The Fourth Amendment
applies to all seizures of the person, including seizures that involve only a brief
detention short of traditional arrest.” United States v. Brignoni-Ponce, 422 U.S.
873, 878, 95 S. Ct. 2574, 2578, 45 L. Ed. 2d 607 (1975) (citing Davis v.
Mississippi, 394 U.S. 721, 89 S. Ct. 1394, 22 L. Ed. 2d 676 (1969); Terry v. Ohio,
392 U.S. 1, 16-19, 88 S. Ct. 1868, 1877, 20 L. Ed. 2d 889 (1968)). No matter
whether the encounter between Trooper Ellis and Appellant was treated as a traffic
stop or otherwise, the encounter constituted a temporary detention and thus
Trooper Ellis simply needed reasonable suspicion of illegal activity in order to
engage Appellant.
“There are three types of interaction[s] between police and citizens:
consensual encounters, temporary detentions generally referred to as Terry stops,
and arrests.” Baltimore v. Commonwealth, 119 S.W.3d 532, 537 (Ky. 2003)
(citing Terry, 392 U.S. 1, 88 S. Ct. 1868). “[A] brief investigative stop [and]
detention . . . short of a traditional arrest based on reasonable suspicion does not
violate the Fourth Amendment.” Id. (citing Terry, 392 U.S. 1, 88 S. Ct. 1868).
“Traffic stops are similar to Terry stops and must be supported by articulable,
reasonable suspicion of criminal activity.” Baker v. Commonwealth, 475 S.W.3d
-5- 633, 634 (Ky. App. 2015) (citing Chavies v. Commonwealth, 354 S.W.3d 103, 108
(Ky. 2011)).
Detaining officers have a reasonable suspicion sufficient to justify a
stop where they “have a particularized and objective basis for suspecting the
particular person stopped of criminal activity.” United States v. Cortez, 449 U.S.
411, 417-18, 101 S. Ct. 690, 695, 66 L. Ed. 2d 621 (1981) (citations omitted).
However, “the likelihood of criminal activity need not rise to the level required for
probable cause, and it falls considerably short of satisfying a preponderance of the
evidence standard[.]” United States v. Arvizu, 534 U.S. 266, 274, 122 S. Ct. 744,
751, 151 L. Ed. 2d 740 (2002) (citing United States v. Sokolow, 490 U.S. 1, 7, 109
S. Ct. 1581, 104 L. Ed. 2d 1 (1989)).
Trooper Ellis plainly had a reasonable suspicion to justify engaging
Appellant – using radar, Trooper Ellis observed Appellant traveling over the speed
limit. Appellant argues that the traffic violation was a pretext for the police to stop
Appellant based on suspected illegal drug activity. Not only does the
Commonwealth decline to dispute this, it argues it is perfectly permissible for the
police to conduct a pretextual stop, so long as the officer has an articulable basis to
believe a traffic violation occurred. We agree. The Supreme Court has squarely
rejected the argument “that the constitutional reasonableness of traffic stops
depends on the actual motivations of the individual officers involved.” Whren v.
-6- United States, 517 U.S. 806, 813, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996). For
these reasons, the circuit court did not err when it denied Appellant’s suppression
motion as to Trooper Ellis initiating the encounter with Appellant – whether the
encounter was a traffic stop or not.
Second, Appellant challenges the warrantless search of his vehicle.
Generally, warrantless searches “are per se unreasonable under the Fourth
Amendment – subject only to a few specifically established and well-delineated
exceptions.” Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514, 19 L.
Ed. 2d 576 (1967) (citations omitted). The police may conduct a warrantless
search of an automobile “if their search is supported by probable cause.”
California v. Acevedo, 500 U.S. 565, 579, 111 S. Ct. 1982, 1991, 114 L. Ed. 2d
619 (1991). Such circumstances were present here. This exception extends to
containers inside an automobile, not only the cabin of the vehicle. Id. at 574, 111
S. Ct. at 1988. The Supreme Court articulated the common-sense basis for this
exception nearly one hundred years ago in Carroll v. United States:
[T]he guaranty of freedom from unreasonable searches and seizures by the Fourth Amendment has been construed, practically since the beginning of the government, as recognizing a necessary difference between a search of a store, dwelling house, or other structure in respect of which a proper official warrant readily may be obtained and a search of a ship, motor boat, wagon, or automobile for contraband goods, where it is not practicable to secure a warrant, because the vehicle can be
-7- quickly moved out of the locality or jurisdiction in which the warrant must be sought.
267 U.S. 132, 153, 45 S. Ct. 280, 285, 69 L. Ed. 543 (1925).
The smell of marijuana coming from a vehicle provides law
enforcement with the requisite probable cause to search the vehicle without a
warrant. Dunn v. Commonwealth, 199 S.W.3d 775, 776-77 (Ky. App. 2006).
Trooper Ellis testified that he plainly smelled marijuana as he approached
Appellant’s vehicle, which furnished him with probable cause to search it without
a warrant. Because Trooper Ellis had the probable cause he needed to search
Appellant’s vehicle without a warrant, the circuit court committed no error in
denying Appellant’s motion on this point.
CONCLUSION
Based on the foregoing, we affirm Appellant’s March 22, 2022
conditional guilty plea.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Douglas E. Miller Daniel Cameron Radcliff, Kentucky Attorney General of Kentucky
Melissa A. Pile Assistant Attorney General Frankfort, Kentucky
-8-