RENDERED: NOVEMBER 3, 2023; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2022-CA-1288-MR
SETH WILSON APPELLANT
APPEAL FROM GALLATIN CIRCUIT COURT v. HONORABLE JAMES R. SCHRAND, II, JUDGE ACTION NO. 22-CR-00038
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, DIXON, AND EASTON, JUDGES.
EASTON, JUDGE: The Appellant (“Wilson”) challenges the Gallatin Circuit
Court’s decision denying his motion to suppress evidence gathered after a traffic
stop. Wilson entered a conditional guilty plea. Finding no error in the circuit
court’s decision, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
After midnight on March 19, 2022, Deputy Mason Sizemore
(“Sizemore”) with the Gallatin County Sheriff’s Office was following a pick-up truck driven by Wilson. As the truck crested a hill, Sizemore could see the inside
of the truck as his headlights shone through the tinted back window of the truck.
Sizemore saw that Wilson was not wearing a seatbelt but that his passenger was
wearing a seatbelt. Sizemore initiated a traffic stop.
The traffic stop prompted a body camera recording with Sizemore
showing his interaction with Wilson and his passenger. When Sizemore
approached the driver’s door, he asked Wilson if he had taken his seatbelt off, and
Wilson said he had. Sizemore told Wilson that he saw Wilson take the seatbelt off.
Sizemore explained this statement may have been part of a questioning technique
to see how Wilson would respond.
There was no further comment to suggest whether Sizemore was
referring to Wilson’s action of taking the seatbelt off was as Sizemore approached
the truck or if Wilson’s taking off his seatbelt occurred previously. Sizemore had
observed Wilson in the truck before Sizemore followed the truck from a prior
location. The observation could have been made while Wilson was driving. When
Sizemore explained the seatbelt violation was the reason for the stop, Wilson did
not protest that he had only taken it off as Sizemore approached the vehicle. The
passenger had her seatbelt on as Sizemore had observed while he followed the
truck.
-2- Sizemore discussed with Wilson his recent prior arrest by Sizemore
and a pending court date. Sizemore gathered the driver’s licenses of both
occupants and returned to his police vehicle. In discussion with another officer
present, Sizemore learned the passenger was on probation, and the other officer
suggested she may have a warrant because he recalled the passenger running from
him on a prior occasion. Sizemore “ran” the licenses through a computer system to
check for any issues.
While running the licenses, Sizemore asked if another officer already
on the scene wanted to deploy a drug detection dog, which significantly was
already on the scene. Sizemore decided to first ask for consent for a search. When
Sizemore again approached the truck, the passenger apologized for her attitude
when Sizemore first spoke to her when she suggested he did not really need to see
her identification. While standing at the door of the truck talking to Wilson,
Sizemore then heard dispatch say that both occupants of the truck were “clear,”
indicating no warrants to be processed.
Within seconds, Sizemore asked for permission to search. Wilson
denied consent at this point because it was not his truck. Sizemore then returned to
his vehicle to begin working on the seatbelt citation. Sizemore could be seen
working on his computer.
-3- Less than one minute later, another officer told Sizemore that Wilson
had asked to talk to him. Sizemore returned to the truck. Wilson said there was
nothing in the truck, but Sizemore could look if he wanted. Sizemore reminded
Wilson that it was his decision adding “you know how it goes,” referring to
Wilson’s prior experience with law enforcement. After clearly telling Wilson that
any consent would not necessarily make the stop any shorter, Wilson said “it don’t
matter.” Wilson and his passenger then facilitated the search by exiting the truck.
At this point, the dog was brought out and started sniffing the truck.
While this was going on, Sizemore was seen in his vehicle working on the citation
form on his computer. Then the dog quickly alerted to drugs in the truck. The
interaction was no longer a routine traffic stop. Wilson was ultimately charged
with trafficking in methamphetamine. Upon his conditional guilty plea, Wilson
was sentenced to seven years to serve, concurrent with other pending charges. We
will develop any further relevant factual details in our following analysis.
STANDARD OF REVIEW
“A trial court’s denial of a motion to suppress is reviewed under a
two-prong test. First, we review the trial court’s findings of fact under the clearly
erroneous standard. Under this standard, the trial court’s findings of fact will be
conclusive if they are supported by substantial evidence. Second, we review de
-4- novo the trial court’s application of the law to the facts.” Rhoton v.
Commonwealth, 610 S.W.3d 273, 275-76 (Ky. 2020) (footnotes omitted).
ANALYSIS
“[T]he ultimate touchstone of the Fourth Amendment is
‘reasonableness[.]’” Brigham City, Utah v. Stuart, 547 U.S. 398, 403, 126 S. Ct.
1943, 1947, 164 L. Ed. 2d 650 (2006). With respect to stops of vehicles, the law
has developed specific rules defining this reasonableness.
A police officer may stop a driver when the officer observes a traffic
violation even if that violation is not the real motivation for the stop. Wilson v.
Commonwealth, 37 S.W.3d 745, 749 (Ky. 2001). The presence of the drug
detection dog from the beginning suggests Sizemore was looking for drug activity.
His recent prior history with Wilson could have motivated Sizemore to watch
Wilson in the hope of observing a traffic violation to justify a stop. The law allows
this.
The observed traffic violation was not wearing a seatbelt as required
by KRS1 189.125. The circuit court found that Sizemore had observed Wilson
driving without wearing his seatbelt. Wilson argues against this finding because of
the conversation Sizemore and Wilson had at the beginning of the stop as well as
the tint to the window to cast doubt on Sizemore’s observation.
1 Kentucky Revised Statutes.
-5- While the citation eventually written describes the seatbelt violation
as the reason for the stop, Wilson was not charged with the seatbelt violation.
Wilson suggests this means it did not happen. Sizemore had discretion in deciding
which charges to bring. Given the serious charges which resulted from the stop,
Sizemore should not be criticized for not adding the seatbelt charge. If he had, he
might have been criticized for “piling on” with the charge, which can result in only
a minimal fine with court costs waived. See KRS 189.990 (24)-(26).
Part of the deference owed to the circuit court comes from the first-
hand opportunity of the circuit judge to observe the witnesses and other evidence.
See Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003).
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RENDERED: NOVEMBER 3, 2023; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2022-CA-1288-MR
SETH WILSON APPELLANT
APPEAL FROM GALLATIN CIRCUIT COURT v. HONORABLE JAMES R. SCHRAND, II, JUDGE ACTION NO. 22-CR-00038
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, DIXON, AND EASTON, JUDGES.
EASTON, JUDGE: The Appellant (“Wilson”) challenges the Gallatin Circuit
Court’s decision denying his motion to suppress evidence gathered after a traffic
stop. Wilson entered a conditional guilty plea. Finding no error in the circuit
court’s decision, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
After midnight on March 19, 2022, Deputy Mason Sizemore
(“Sizemore”) with the Gallatin County Sheriff’s Office was following a pick-up truck driven by Wilson. As the truck crested a hill, Sizemore could see the inside
of the truck as his headlights shone through the tinted back window of the truck.
Sizemore saw that Wilson was not wearing a seatbelt but that his passenger was
wearing a seatbelt. Sizemore initiated a traffic stop.
The traffic stop prompted a body camera recording with Sizemore
showing his interaction with Wilson and his passenger. When Sizemore
approached the driver’s door, he asked Wilson if he had taken his seatbelt off, and
Wilson said he had. Sizemore told Wilson that he saw Wilson take the seatbelt off.
Sizemore explained this statement may have been part of a questioning technique
to see how Wilson would respond.
There was no further comment to suggest whether Sizemore was
referring to Wilson’s action of taking the seatbelt off was as Sizemore approached
the truck or if Wilson’s taking off his seatbelt occurred previously. Sizemore had
observed Wilson in the truck before Sizemore followed the truck from a prior
location. The observation could have been made while Wilson was driving. When
Sizemore explained the seatbelt violation was the reason for the stop, Wilson did
not protest that he had only taken it off as Sizemore approached the vehicle. The
passenger had her seatbelt on as Sizemore had observed while he followed the
truck.
-2- Sizemore discussed with Wilson his recent prior arrest by Sizemore
and a pending court date. Sizemore gathered the driver’s licenses of both
occupants and returned to his police vehicle. In discussion with another officer
present, Sizemore learned the passenger was on probation, and the other officer
suggested she may have a warrant because he recalled the passenger running from
him on a prior occasion. Sizemore “ran” the licenses through a computer system to
check for any issues.
While running the licenses, Sizemore asked if another officer already
on the scene wanted to deploy a drug detection dog, which significantly was
already on the scene. Sizemore decided to first ask for consent for a search. When
Sizemore again approached the truck, the passenger apologized for her attitude
when Sizemore first spoke to her when she suggested he did not really need to see
her identification. While standing at the door of the truck talking to Wilson,
Sizemore then heard dispatch say that both occupants of the truck were “clear,”
indicating no warrants to be processed.
Within seconds, Sizemore asked for permission to search. Wilson
denied consent at this point because it was not his truck. Sizemore then returned to
his vehicle to begin working on the seatbelt citation. Sizemore could be seen
working on his computer.
-3- Less than one minute later, another officer told Sizemore that Wilson
had asked to talk to him. Sizemore returned to the truck. Wilson said there was
nothing in the truck, but Sizemore could look if he wanted. Sizemore reminded
Wilson that it was his decision adding “you know how it goes,” referring to
Wilson’s prior experience with law enforcement. After clearly telling Wilson that
any consent would not necessarily make the stop any shorter, Wilson said “it don’t
matter.” Wilson and his passenger then facilitated the search by exiting the truck.
At this point, the dog was brought out and started sniffing the truck.
While this was going on, Sizemore was seen in his vehicle working on the citation
form on his computer. Then the dog quickly alerted to drugs in the truck. The
interaction was no longer a routine traffic stop. Wilson was ultimately charged
with trafficking in methamphetamine. Upon his conditional guilty plea, Wilson
was sentenced to seven years to serve, concurrent with other pending charges. We
will develop any further relevant factual details in our following analysis.
STANDARD OF REVIEW
“A trial court’s denial of a motion to suppress is reviewed under a
two-prong test. First, we review the trial court’s findings of fact under the clearly
erroneous standard. Under this standard, the trial court’s findings of fact will be
conclusive if they are supported by substantial evidence. Second, we review de
-4- novo the trial court’s application of the law to the facts.” Rhoton v.
Commonwealth, 610 S.W.3d 273, 275-76 (Ky. 2020) (footnotes omitted).
ANALYSIS
“[T]he ultimate touchstone of the Fourth Amendment is
‘reasonableness[.]’” Brigham City, Utah v. Stuart, 547 U.S. 398, 403, 126 S. Ct.
1943, 1947, 164 L. Ed. 2d 650 (2006). With respect to stops of vehicles, the law
has developed specific rules defining this reasonableness.
A police officer may stop a driver when the officer observes a traffic
violation even if that violation is not the real motivation for the stop. Wilson v.
Commonwealth, 37 S.W.3d 745, 749 (Ky. 2001). The presence of the drug
detection dog from the beginning suggests Sizemore was looking for drug activity.
His recent prior history with Wilson could have motivated Sizemore to watch
Wilson in the hope of observing a traffic violation to justify a stop. The law allows
this.
The observed traffic violation was not wearing a seatbelt as required
by KRS1 189.125. The circuit court found that Sizemore had observed Wilson
driving without wearing his seatbelt. Wilson argues against this finding because of
the conversation Sizemore and Wilson had at the beginning of the stop as well as
the tint to the window to cast doubt on Sizemore’s observation.
1 Kentucky Revised Statutes.
-5- While the citation eventually written describes the seatbelt violation
as the reason for the stop, Wilson was not charged with the seatbelt violation.
Wilson suggests this means it did not happen. Sizemore had discretion in deciding
which charges to bring. Given the serious charges which resulted from the stop,
Sizemore should not be criticized for not adding the seatbelt charge. If he had, he
might have been criticized for “piling on” with the charge, which can result in only
a minimal fine with court costs waived. See KRS 189.990 (24)-(26).
Part of the deference owed to the circuit court comes from the first-
hand opportunity of the circuit judge to observe the witnesses and other evidence.
See Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003). With the evidence of
record, the circuit court’s finding about Sizemore observing a seatbelt traffic
violation is not clearly erroneous. Having observed a violation, Sizemore was
justified in stopping Wilson.
The length of a detention should last only so long as required to
achieve the justifiable purpose of the stop. Commonwealth v. Conner, 636 S.W.3d
464, 472-73 (Ky. 2021). The stop of Wilson should last only so long as needed to
write and issue a proper citation unless subsequent events provided new suspicion
of criminal activity to continue the detention.
Before we address the other events during this stop, we recognize
there are standard practices during a traffic stop which take time and do not offend
-6- the Fourth Amendment. Sizemore was permitted to check for valid insurance and
see whether any occupants of a vehicle had active warrants. Connor, supra, at
473. Sizemore followed this typical procedure in this case.
Wilson puts great emphasis on the moments between the radio
announcement of “clear” which occurs while Sizemore was at the truck Wilson
was driving and Sizemore’s immediate asking for consent, which was initially
denied. Asking questions about contraband in a vehicle and for consent to search
does not impermissibly extend a traffic stop. See United States v. Burton, 334 F.3d
514 (6th Cir. 2003).
It is ironic that Wilson extended the stop when he asked to again
speak to Sizemore, who was at that point working on the citation. At this point,
Wilson gave consent to a search. Even if Wilson had not consented, the
deployment of the dog would not have extended the stop while Sizemore wrote the
citation.
A dog sniff itself is not a search. See Commonwealth v. Bucalo, 422
S.W.3d 253, 258 (Ky. 2013). The question here is about the length of detention.
Because the dog was already there, no time was added to the detention in this case
to get the dog to the scene. Sizemore had not finished writing and issuing the
citation when Wilson consented to a search and the dog then alerted on the truck.
-7- Once the dog alerted on the truck, Sizemore and the other officers
clearly had additional suspicion of criminal activity to continue the detention
ultimately leading to the discovery of methamphetamine resulting in the charges to
which Wilson pled guilty.
CONCLUSION
The findings of fact of the Gallatin Circuit Court are not clearly
erroneous. The circumstances of the traffic stop and subsequent events justified
the length of the detention. The discovery of the methamphetamine and other
evidence was not the result of an unreasonable seizure and search. The Gallatin
Circuit Court is AFFIRMED.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Molly Mattingly Daniel Cameron Frankfort, Kentucky Attorney General of Kentucky
Harrison Gray Kilgore Assistant Solicitor General Frankfort, Kentucky
-8-