IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.” PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, RAP 40(D), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: DECEMBER 18, 2025 NOT TO BE PUBLISHED
Supreme Court of Kentucky 2024-SC-0340-MR
RANDALL BAYS APPELLANT
ON APPEAL FROM KNOX CIRCUIT COURT V. HONORABLE MICHAEL O. CAPERTON, JUDGE NO. 23-CR-00108-001
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
A Knox County jury convicted Randall Bays of first-degree trafficking in a
controlled substance (first offense, methamphetamine, over two grams) and
being a first-degree persistent felony offender (“PFO”). He received a total
sentence of twenty years’ imprisonment and appeals to this Court as a matter
of right. 1 Having carefully reviewed the record, law, and briefs, we affirm.
On September 30, 2022, Barbourville Police Detective Adam Townsley
received a tip from a known confidential informant (“CI”) that Bays would be
traveling that day from Louisville to Knox County with a quantity of
methamphetamine. The CI stated Bays would be driving a gold Buick LeSabre
1 KY. CONST. § 110(2)(b). with the license plate number, BTX-241, and also advised that Bays would
have two passengers with him, one female and one “non-female.”
Detective Townsley relayed this information to Officer Karl Middleton, a
patrolman with the Barbourville Police Department. Later that day, Officer
Middleton spotted Bays driving a gold LeSabre with the license plate number,
BTX-231, 2 instead of BTX-241, and began to follow him. There was a single
female passenger in the car who was later identified by police as Stacie Goley.
After Bays crossed the center line of the roadway multiple times, Officer
Middleton initiated a traffic stop.
When Officer Middleton approached the vehicle, Bays explained that he
crossed the center line because he was trying to turn the cruise control off.
Bays was unable to provide Officer Middleton with valid proof of insurance.
Officer Middleton asked Bays if there were any illegal substances in the car to
which Bays replied in the negative. At this point, Officer Middleton asked Bays
to exit the vehicle to perform field sobriety tests (“FSTs”). As Bays was exiting
the vehicle, Officer Middleton requested consent to search the vehicle. Bays
consented to a search of the interior of the vehicle.
Around the time the FSTs were completed, a K9 unit arrived on the
scene. Officer Middleton estimated that no more than ten minutes had elapsed
from the initial stop of the vehicle and the arrival of the K9 unit. At this point,
Goley was asked to exit the vehicle. When Goley exited the vehicle, officers
2 At some point, it was determined this vehicle was not registered to either Bays
or his passenger.
2 observed her throw a small bag of suspected methamphetamine onto the
ground. The K9 unit then conducted a free air sniff around the outside of the
vehicle. The dog alerted to the presence of controlled substances on the
driver’s side door. Based on the positive indication from the dog sniff and the
observation of Goley’s attempt to dispose of suspected methamphetamine, the
officers searched the entirety of the vehicle. In the trunk, officers discovered
over two pounds of suspected methamphetamine concealed inside two coffee
cans. Bays and Goley were then placed under arrest. At the time of arrest,
approximately forty-five minutes had elapsed from the commencement of the
initial stop.
Bays was indicted on charges of first-degree trafficking in a controlled
substance (first offense, methamphetamine, two or more grams), failure to
produce an insurance card, careless driving, and PFO 1. 3 He filed a motion to
suppress the evidence obtained as result of the warrantless search. Following
a hearing at which Officer Middleton was the sole witness, 4 the trial court
denied the motion in an order entered on March 27, 2024.
Bays proceeded to a jury trial after the denial of his suppression motion
and was found guilty of first-degree trafficking and PFO 1. The Commonwealth
had previously dismissed the charges of failure to produce an insurance card
and careless driving. The trial court sentenced Bays to a total of twenty years’
3 Goley was also charged with first-degree trafficking in a controlled substance.
The present appeal concerns only the charges against Bays. 4 There was no bodycam recording of the traffic stop and arrest.
3 imprisonment in accordance with the recommendation of the jury. This appeal
followed.
Bays’ sole argument on appeal is that the police impermissibly extended
the duration of the initial traffic stop in violation of the Fourth Amendment of
the United States Constitution. In support of this contention, he presents two
related claims. First, he argues the mission of the stop was not diligently
pursued because Officer Middleton had no basis to require the performance of
FSTs. Second, he argues Officer Middleton lacked reasonable and articulable
suspicion to investigate for drugs at the outset of the traffic stop. Bays
concedes both these claims are unpreserved and requests palpable error
review. 5
RCr 6 10.26 authorizes an appellate court to review an unpreserved error
as follows:
A palpable error which affects the substantial rights of a party may be considered by the court on motion for a new trial or by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error.
A palpable error is “easily perceptible, plain, obvious, and readily
noticeable.” Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006). To
demonstrate manifest injustice, a party must show the “probability of a
5 We note Bays argued below that the stop was improperly prolonged based on
a theory that the mission of the initial stop was completed after the performance of the FSTs. He has not pursued this argument in his briefing to this Court. Therefore, this claim of error has been abandoned. Halvorsen v. Commonwealth, 671 S.W.3d 68, 74 (Ky. 2023). 6 Kentucky Rules of Criminal Procedure.
4 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). In other words, a palpable error occurs where “the defect in the
proceeding was shocking or jurisprudentially intolerable.” Id. at 4.
The Fourth Amendment protects “[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and
seizures.” U.S. CONST. AMEND IV. “All warrantless searches are unreasonable,
per se, under the Fourth Amendment unless an established exception applies.”
Payne v. Commonwealth, 681 S.W.3d 1, 3 (Ky. 2023). “The Commonwealth
bears the burden of satisfying the requirements of a claimed exception.” Id. at
4.
“We review a trial court’s decision on a motion to suppress on two levels.”
Id. “First, we must ‘determine whether the trial court's findings of fact are
supported by substantial evidence.’” Id. (quoting Commonwealth v. Neal, 84
S.W.3d 920, 923 (Ky. App. 2002)). “If so, they are conclusive. Id. Second, we
must ‘conduct a de novo review of the trial court’s application of the law to
those facts to determine whether its decision is correct as a matter of law.’” Id.
(quoting Neal, 84 S.W.3d at 923).
Pertinent to the validity of the findings of fact, Bays disputes the trial
court’s characterization of his driving as “erratic.” Bays correctly notes that
Officer Middleton did not specifically term his driving to have been “erratic.”
However, as the factfinder, the trial court is permitted to make all reasonable
5 inferences from the evidence. Roberson v. Commonwealth, 185 S.W.3d 634,
637 (Ky. 2006).
Officer Middleton testified he observed Bays cross the center line
multiple times. Numerous courts have described the crossing of the center line
as erratic driving. See, e.g., State v. Marshall, 8 A.3d 1086, 1090 (Vt. 2010)
(holding that crossing of center line justified traffic stop regardless of the
duration and degree of violation); People v. Goestenkors, 662 N.E.2d 574, 578
(Ill. App. 1996) (“Erratic driving, such as crossing the center line, is sufficient
to justify an investigatory stop.”); State v. Sulser, 871 P.2d 126, 127 (Or. App.
1994) (“[W]eaving within a lane and touching or crossing the center line are
examples of erratic driving that may indicate driver impairment.”); and State v.
Brodeur, 493 A.2d 1134, 1138 (N.H. 1985) (“The defendant committed a traffic
violation when he drove his vehicle over the center line, and that act alone
justified [officer’s] decision to stop the defendant.”). Moreover, in his briefing
before the trial court, Bays conceded he “was pulled over for careless driving”
and further acknowledged “the only lawful purpose of the traffic stop in this
case” included the performance of FSTs. Thus, we discern no basis to second-
guess the trial court’s use of the word “erratic” to describe the manner in which
Bays operated his vehicle.
In addition, Bays faults the trial court for “selectively adopt[ing]” Officer
Middleton’s statement “that consent was provided when Randall had exited the
vehicle and before the FSTs were conducted.” In the order denying the motion
6 to suppress, the trial court acknowledged Officer Middleton’s testimony on the
issue of consent was conflicting. 7
Officer Middleton admitted to having difficulty remembering the precise
timeline of events and was questioned by the parties and trial court on multiple
instances to clarify this point. Officer Middleton initially testified that he
requested consent to search at the time he asked Bays to exit the vehicle. He
also stated he asked Bays for consent during the performance of the FSTs. At
another time, Officer Middleton generally characterized his request for consent
as having occurred during his investigation of the traffic stop and confidential
tip. In response to questioning by the trial court, Officer Middleton again
stated that he “thought” and “believed” the request for consent was made at the
time he asked Bays to exit the vehicle.
“When confronted with inconsistent testimony or other conflicting
evidence at a suppression hearing, the trial court, as factfinder, is entitled to
weigh the evidence and judge the credibility of the witnesses.” Osborne v.
Commonwealth, 718 S.W.3d 622, 627 (Ky. 2025) (citing Hampton v.
Commonwealth, 231 S.W.3d 740, 749 (Ky. 2007)). “This rule applies whether
the inconsistencies arise from the testimony of a single witness or within the
context of the overall proof.” Id. The mere possibility that a factfinder could
7 We note that Bays argued before the trial court that Officer Middleton’s
testimony at the suppression hearing also contradicted his prior testimony at the preliminary hearing. However, there is no indication the trial court was provided with a recording or transcript of the preliminary hearing. Similarly, the present record on appeal does not contain such a recording or transcript.
7 draw conflicting or inconsistent interpretations from the evidence does not
preclude such a finding from being supported by substantial evidence. Id.
This is not a situation where “the trial court disregarded crucial
undisputed testimony essential to the situation we address.” Commonwealth v.
Conner, 636 S.W.3d 464, 471 (Ky. 2021) (quoting Turley v. Commonwealth, 399
S.W.3d 412, 418 (Ky. 2013)). Instead, the trial court merely exercised its
discretion to weigh conflicting evidence. As an appellate court, we are not
permitted to substitute our assessment of the weight and credibility of Officer
Middleton’s testimony for that of the trial court. Payne, 681 S.W.3d at 4.
Thus, we deem the trial court’s findings of fact to be conclusive and proceed to
examine the application of the law to the facts.
Consistent with the Fourth Amendment, it is well-established that a
police officer may reasonably “conduct a traffic stop if he or she has probable
cause to believe that a traffic violation has occurred.” Davis v. Commonwealth,
484 S.W.3d 288, 291 (Ky. 2016) (quoting Commonwealth v. Bucalo, 422 S.W.3d
253, 258 (Ky. 2013)). If there is a probable cause that a traffic violation has
occurred, then a police officer may stop the vehicle regardless of the officer’s
subjective motivations. Id. However, “an officer cannot detain a vehicle’s
occupants beyond completion of the purpose of the initial traffic stop unless
something happened during the stop to cause the officer to have a reasonable
and articulable suspicion that criminal activity [is] afoot.” Id. at 292 (quoting
Turley, 399 S.W.3d at 421).
8 “[T]here is no de minimis time exception” to this rule. Id. at 293. “[T]he
key inquiry is not whether the stop is extended beyond its natural conclusion;
rather, the Court must consider whether the officer’s conduct (e.g., asking
unrelated questions or conducting a sniff test) adds any amount of time to the
stop.” Carlisle v. Commonwealth, 601 S.W.3d 168, 175 (Ky. 2020). To
determine whether a traffic stop was improperly extended, this Court has
applied a three-part analysis:
First, was the traffic stop ongoing or had it concluded? Second, if the stop was ongoing, did [the officer] inquire into matters unrelated to the stop’s mission? Third, if the officer inquired into unrelated matters, did his inquiries prolong the stop?
Id.
Bays contends Officer Middleton “impermissibly extended the traffic stop
to administer FSTs without any testimony about his observations or
justifications for doing so.” We decline to review whether Officer Middleton had
independent reasonable suspicion to conduct the FSTs because Bays conceded
the point in the trial court below.
Our precedents recognize “[t]he valid waiver of a known right precludes
appellate review while a forfeited claim of error may be reviewed for palpable
error.” Gasaway v. Commonwealth, 671 S.W.3d 298, 314 (Ky. 2023) (citing
United States v. Olano, 507 U.S. 725, 733 (1993)). Moreover, when a party
concedes a point of fact or law before a trial court, the issue is generally waived
and cannot be raised thereafter on appeal in an argument contrary to the
concession. Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 72–73 (2013).
9 Before the trial court, Bays argued the purpose of the initial stop had
been completed or abandoned after the time the FSTs were performed.
Specifically, Bays stated in his trial court briefing that he
was pulled over for careless driving, and Field Sobriety Tests were performed. This was the only lawful purpose of the traffic stop in this case – and anything beyond this exceeds the lawful scope of the traffic stop.
We perceive this argument constitutes an admission that the performance of
the FSTs related to the initial purpose of the stop. Bays should not be heard to
contend otherwise for the first time on appeal. Because Officer Middleton
inquired into the presence of illegal drugs and requested consent to search at
the outset of the stop before the performance of the FSTs, we conclude the stop
was ongoing and turn to the question of whether such inquiries were unrelated
to the purpose of the stop.
Our precedents distinguish between matters specifically incident to a
traffic violation and the conduct of a generalized criminal investigation.
Commonwealth v. Clayborne, 635 S.W.3d 818, 824 (Ky. 2021). “For example,
pulling someone over and checking their license and registration are squarely
within the objectives of issuing a traffic ticket.” Id. at 824-25. In addition to
such ordinary incidents of a traffic stop, an officer may properly address
related safety concerns because “the government’s officer safety interest stems
from the mission of the stop itself.” Rodriguez v. United States, 575 U.S. 348,
356 (2015).
For safety purposes, “[i]t is well settled that a police officer may, as a
matter of course, order the driver of a lawfully-stopped vehicle to exit the 10 vehicle.” Carlisle, 601 S.W.3d at 179. We have also approved inquiries into a
suspect’s criminal history under the rubric of officer safety. Id.
“A dog sniff, by contrast, is a criminal investigation unrelated to
addressing a traffic violation.” Clayborne, 635 S.W.3d at 825. Importantly, the
law allows a police officer to “conduct certain unrelated checks during an
otherwise lawful traffic stop. But . . . he may not do so in a way that prolongs
the stop, absent the reasonable suspicion ordinarily demanded to justify
detaining an individual.” Carlisle, 601 S.W.3d at 174 (internal quotation marks
omitted) (quoting Rodriguez, 575 U.S. at 355).
In Carlisle, we left open the question of whether a police officer’s inquiry
into the presence of drugs in a vehicle was “unrelated to the traffic stop’s
purpose and improperly prolonged the stop.” Id. at 179 n.2. Here, Officer
Middleton did not testify regarding any safety concerns or precautions
associated with the stop of Bays’ vehicle. Notably, Officer Middleton asked
Bays solely about the presence of “illegal substances” and had also stated the
investigation of the CI’s tip was “the main reason for the stop.” Under these
circumstances, we conclude the questioning relative to drug possession was
unrelated to the stop for careless driving. See Davis, 484 S.W.3d at 294 (“The
only reason for the sniff search was to discover illegal drugs . . . which adds
nothing to indicate if the driver is under the influence and is clearly beyond the
purpose of the original DUI stop.”).
Having determined the inquiry into drugs and the request for consent to
search were unrelated to the mission of the stop for careless driving, we must
11 now resolve the ultimate issue of whether these unrelated inquiries prolonged
the duration of the stop. During a lawful detention, police are not required to
base or support each separate question with independent reasonable and
articulable suspicion. The Supreme Court has “held repeatedly that mere
police questioning does not constitute a seizure.” Muehler v. Mena, 544 U.S.
93, 101 (2005) (quoting Florida v. Bostick, 501 U.S. 429, 434 (1991)). “[E]ven
when officers have no basis for suspecting a particular individual, they may
generally ask questions of the individual[.]” Id. (quoting Bostick, 501 U.S. at
434–35).
Thus, “[a]n officer’s inquiries into matters unrelated to the justification
for the traffic stop . . . do not convert the encounter into something other than
a lawful seizure, so long as those inquiries do not measurably extend the
duration of the stop.” Arizona v. Johnson, 555 U.S. 323, 333 (2009) (citing
Muehler, 544 U.S. at 100–01). Moreover, this Court has recognized “that
concurrent operations may provide an exception to our no-extension rule:
‘When it comes to pursuing unrelated investigative issues, officers must be able
to do so while simultaneously completing the purpose of the stop.’” Clayborne,
635 S.W.3d at 826-27 (quoting Commonwealth v. Mitchell, 610 S.W.3d 263, 270
(Ky. 2020)).
Here, Officer Middleton requested consent to search at the time he asked
Bays to exit the vehicle to perform FSTs. In other words, Officer Middleton was
in the process of conducting his investigation into the initial purpose of the stop
at the time he made the unrelated inquiry into the possession of contraband.
12 Significantly, Officer Middleton also continued to diligently pursue the
investigation relative to the initial stop by conducting the FSTs after he
obtained consent to search. As a practical matter, we perceive no substantial
distinction between the present circumstances and the situation where an
officer inquires into the presence of contraband and requests consent to search
while conducting other investigative duties and safety precautions such as
securing the scene and awaiting the results of license, registration, and
warrant checks. See, e.g., Carlisle, 601 S.W.3d at 176. Thus, on the present
record, we cannot conclude Officer Middleton’s inquiry into drug possession
and the request for consent to search improperly prolonged or extended the
duration of the stop.
In addition, the fact that Officer Middleton remained in the process of
attending to the initial traffic violation critically distinguishes the present
appeal from our decision in Commonwealth v. Smith, 542 S.W.3d 276 (Ky.
2018). In Smith, we concluded a traffic stop had been improperly prolonged
where the officer had entirely abandoned the purpose of the stop by neglecting
to conduct any investigation into the traffic violation and focusing instead on a
generalized drug investigation from the outset. Based on this salient
distinction, we cannot conclude Smith controls the outcome here.
Because Officer Middleton obtained Bays’ consent to search without
improperly prolonging the initial stop, we hold the free air sniff search of the
exterior of the vehicle was valid and, in turn, ultimately ripened into sufficient
13 probable cause to conduct the warrantless search of the trunk. 8 See Meghoo v.
Commonwealth, 245 S.W.3d 752, 756 (Ky. 2008) (holding exterior canine sniff
alert supports probable cause to conduct warrantless search of vehicle).
Similarly, we conclude independent reasonable and articulable suspicion was
not required to justify Officer Middleton’s inquiries into drug possession and
request for consent despite the fact these matters were unrelated to the
mission of the initial stop. Johnson, 555 U.S. at 333. Therefore, we need not
separately address Bays’ argument relative to whether the CI’s tip provided
independent, reasonable and articulable suspicion to conduct a drug
investigation.
For the foregoing reasons, the judgment of the Knox Circuit Court is
affirmed.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Jennifer Wade Assistant Public Advocate
COUNSEL FOR APPELLEE:
Russell M. Coleman Attorney General of Kentucky
Jenny L. Sanders Assistant Attorney General
8 Bays does not dispute that the results of the sniff search coupled with the
officer’s observations of Goley’s attempted to dispose of suspected controlled substances provided probable cause for a warrantless search of the entire vehicle.