                                                  RENDERED : AUGUST 27, 2009
                                                            TO BE PUBLISHED

               ,*UyrPZCCL

                               2007-SC-000312-DG


JIMMY L. EPPS                                                          APPELLANT


                   ON REVIEW FROM COURT OF APPEALS
V.                    CASE NO. 2006-CA-000159-MR
               MONTGOMERY CIRCUIT COURT NO . 05-CR-00086


COMMONWEALTH OF KENTUCKY                                                APPELLEE


                OPINION OF THE COURT BY JUSTICE NOBLE

                  REVERSINGVACATING, AND REMANDING


      Appellant Jimmy Epps appeals a Court of Appeals decision approving an

extended traffic stop for a minor traffic offense during which a narcotics-

detection dog was brought in and used to search the vehicle in which Epps was

traveling. Because the traffic stop was unreasonably prolonged, it violated the

Fourth Amendment, and the decision of the Court of Appeals is reversed.

                                 I. Background

      On May 15, 2005, Officer Chris Burgess saw a white Oldsmobile Cutlass

make an improper turn, and as he followed the vehicle, he noticed it did not

have an illuminated license plate . He initiated a traffic stop and the car pulled

over. The vehicle contained four occupants; two in the front (Greg Kelly, who

was the driver, and Kelly's son, who was the front passenger), and two in the

rear bench seat (the Appellant was sitting behind the driver and Kenny
 Cunningham was sitting behind the front passenger) . Kelly was unable to

produce proof of insurance or registration, and the vehicle carne back as being

registered to a used car lot.

       Officer Burgess testified that he recognized Cunningham because his

partner had previously arrested him for drug-related activity, and he thought

Cunningham appeared impaired. He requested consent to search the car, but

Kelly refused . Officer Burgess then contacted Officer Shannon Taylor to bring

a specially trained narcotics-detection dog to the scene . They arrived fifteen

minutes later, while Officer Burgess was in the process of issuing Kelly's

citation . Based on Kelly's lack of insurance and registration, Officer Burgess

decided to tow the vehicle.'

       Officer Taylor had the occupants get out of the vehicle. He separated and

patted each of them down for weapons, finding none . Officer Taylor then

conducted a dog sniff of the exterior of the vehicle . The dog "alerted" on all four

doors, which indicated that drugs were present in the vehicle. He then had the

dog sniff the car's interior, and it alerted on the front passenger seat headrest,

where a crack-cocaine pipe was recovered . Cunningham, who had been sitting

behind the pipe-containing headrest, was arrested for possession of drug

paraphernalia.

      The dog also alerted on the back driver's-side seat (where the Appellant

had been sitting), but no other drugs were recovered from the vehicle . Officer


' The parties have not cited the authority for towing a vehicle based on the failure to
  produce insurance. This Court has likewise been unable to find such authority,
  given that the driver was not arrested for any offenses .
 Taylor patted down the Appellant a second time, and when he indicated he had

 found something, the Appellant admitted he was in possession of cocaine. He

 shook his legs and two baggies containing crack-cocaine fell from his groin

area and out of his pants legs to the ground, and he was arrested .

Approximately 90 minutes elapsed from the initial stop of the vehicle until the

Appellant's arrest.

       At the police station, the Appellant waived his Miranda rights and gave a

statement to police in which he said he was in town from Dayton, Ohio, to sell

cocaine. He was indicted for first-degree trafficking in a controlled substance .

      The Appellant filed a motion to suppress the drug evidence seized from

his person. The trial court denied the motion, and the Appellant entered a

conditional guilty plea, reserving the right to appeal the trial court's ruling on

his motion to suppress . RCr 8 .09 . The trial court accepted the Appellant's

conditional guilty plea and sentenced him to seven years' imprisonment . The

Court of Appeals affirmed the trial court's ruling, and this Court granted

discretionary review .

                                   II. Analysis

                A. Standard of Review On Suppression Issues

      In reviewing a trial court's ruling on a motion to suppress evidence, the

reviewing court must first determine whether the trial court's findings of fact

are supported by substantial evidence. If so, those findings are conclusive .

The reviewing court then must conduct a de novo review of the trial court's

application of the law to those facts . Ornelas v. United States, 517 U.S. 690,
 697 (1996) ; United States v. Martin, 289 F .3d 392, 396 (6th Cir. 2002) ; Adcock

 v. Commonwealth , 967 S.W .2d 6, 8 (Ky. 1998) .

       The parties do not dispute the factual findings of the trial court in this

 case and they were supported by substantial evidence; therefore they are

 conclusive . RCr 9.78. However, this Court will conduct a de novo review of the

application of the law to those facts.

                 B. Seizure of Passengers during a Traffic Stop

       The first question this Court must address is whether the Appellant, as a

passenger in the car, was seized and thus could properly challenge his

detention under the Fourth Amendment. The proper inquiry is to ask "whether

a reasonable person in [the passenger's] position when the car stopped would

have believed himself free to `terminate the encounter' between the police and

himself." Brendlin v. California, 127 S.Ct. 2400, 2406 (2007) (quoting Florida

v . Bostick, 501 U .S . 429, 436 (1991)) . As in Brendlin , in this case "any

reasonable passenger would have understood the police officers to be

exercising control to the point that no one in the car was free to depart without

police permission ." Id. at 2406-07 . This makes sense, because "even when the

wrongdoing is only bad driving, the passenger will expect to be subject to some

scrutiny, and his attempt to leave the scene would be so obviously likely to

prompt an objection from the officer that no passenger would feel free to leave

in the first place." Id. at 2407 .

      "`If either the stopping of the car, the length of the passenger's detention

thereafter, or the passenger's removal from it are unreasonable in a Fourth
 Amendment sense, then surely the passenger has standing to object to those

 constitutional violations and to have suppressed any evidence found in the car

which is their fruit.' Id . at 2408 (quoting 6 Wayne R. LaFave, Search and

 Seizure : A Treatise on the Fourth Amendment § 11 .3(e), at 194-95 (4th ed .

2004 and Supp . 2007)) . The Appellant "was seized from the moment [the

driver's] car came to a halt on the side of the road," id . at 2410, and he

therefore has standing to challenge the stop as an alleged violation of the

Fourth Amendment. See also Commonwealth v. Morgan ,                248   S .W .3d 538, 540

n. l (Ky. 2008) ("As a preliminary matter, we note that even though Morgan was

only a passenger in the car, she nonetheless has standing to challenge the

legality of the initial stop of the vehicle .") .

                           C. Narcotics-Detection Dog Sniffs

       The parties concede that Officer Burgess lawfully stopped the vehicle in

this case for a traffic violation, and they also concede that the officers could

subject the vehicle to a dog sniff by a narcotics-detection dog. "[A] canine sniff

by a well-trained narcotics-detection dog [is treated as] `sui egneris ' because it

`discloses only the presence or absence of narcotics, a contraband item."'

Illinois v. Caballes ,   543 U .S . 405, 409 (2005)   (quoting United States v. Place,

462 U.S . 696, 707 (1983)) .     "[T]he use of a well-trained narcotics-detection

dog-one that `does not expose non-contraband items that otherwise would

remain hidden from public view'-during a law traffic stop, generally does not

implicate legitimate privacy interests." Id . (quoting Place ,    462 U .S.   at 707) . "A

dog sniff conducted during a concededly lawful traffic stop that reveals no
 information other than the location of a substance that no individual has any

 right to possess does not violate the Fourth Amendment." Id. at 410.

                    D. Unreasonably Prolonged Traffic Stops

       That dog sniffs are not per se unconstitutional, however, does not end

the inquiry in this case . Though dog sniffs are not considered searches that

would implicate the Appellant's Fourth Amendment rights, because he was

detained (that is, seized), his claim can still succeed if he can show that the

detention itself was otherwise unreasonable.

       In Caballes , the United States Supreme Court addressed a situation

factually similarly to this case. While one officer was writing a warning ticket,

another officer walked the narcotics-detection dog around the car . The dog

alerted at the trunk, the officers searched it and found marijuana, and they

arrested the respondent. The entire incident lasted less than ten minutes, and

the Court "accept[ed] the state court's conclusion that the duration of the stop

in th[at] case was entirely justified by the traffic offense and the ordinary

inquiries incident to such a stop." Caballes, 543 U.S. at 408.

      Despite its conclusion that in general a dog sniff is a permissible search,

however, the Court noted that "[i]t is nevertheless clear that a seizure that is

lawful at its inception can violate the Fourth Amendment if its manner of

execution unreasonably infringes interests protected by the Constitution ." Id.

at 407 . "A seizure that is justified solely by the interest in issuing a warning

ticket to the driver can become unlawful if it is prolonged beyond the time

reasonably required to complete that mission." Id. In such a case, the
subsequent discovery of contraband is the product of an unconstitutional

seizure. Id . a t 408.

       The Court of Appeals adhered to Caballes and addressed the issue of

unreasonable delay during a traffic stop in Johnson v. Commonwealth, 179

S.W.3d 882 (Ky. App . 2005) . The facts in Johnson were also similar to those in

this case, except that in Johnson, the narcotics-detection dog arrived and

Johnson was asked to step out of his car within five to seven minutes of the

initial traffic stop, and the entire detention took only fifteen minutes . As in this

case, the defendant objected "to the scope and duration of the detention that

allowed for the dog sniff." Id. at 885 . But the court rejected that argument,

agreeing instead with the trial court's conclusion "that the brief period of

detention lasted no longer than was necessary to achieve the purpose of the

sfop." Id. The court approved the principle that an "`investigative detention

must be temporary and last no longer than is necessary to effectuate the

purpose of the stop .' Id, at 884 (quoting Florida v. Royer, 460 U.S . 491, 500

(1983)) . Consistent with Caballes, the court explained :

      We have examined the record and find nothing to indicate that the
      duration of Johnson's detention was so prolonged as to be
      unjustified . Officer Roush appears to have pursued his
      investigation in a diligent and reasonable manner . He made a
      radio transmission to dispatch, awaited information, then
      contacted the canine unit. His encounter with Johnson was
      focused and immediate, and he set out directly to complete the
      paperwork involved in issuing a citation . The purpose of the initial
      stop had not been completed before the canine unit arrived at the
      scene, and the dog sniff did not prolong the stop to any
      unreasonable extent . The dog sniff occurred while Johnson was
      being lawfully detained by Roush. After the dog alerted to the
      presence of narcotics, the officers undoubtedly had probable cause
      to search the vehicle . Consequently, the trial court did not err by
       denying Johnson's motion to suppress the evidence recovered from
       his car.

 Id . at 885-86 . The court simply held that under the facts of that case, the

 length of the stop was not unreasonably prolonged . Though this Court is not

 bound by the decision of the Court of Appeals in Johnson , the case is

instructive and is an accurate analysis of the law as announced in Caballes.

       In contrast to Johnson , however, the uncontested testimony from the

suppression hearing in this case shows that the delay was far longer. Here,

fifteen minutes elapsed from the initial stop until the drug dog arrived. Officer

Burgess testified that it then took thirty to forty minutes to complete the dog

sniff. He also testified that he was working on Kelly's citation while he waited

for the drug dog to arrive. However, the citation was not given to Kelly until

after the dog arrived and searched the exterior and interior of the vehicle,

nearly an hour after the initial stop . The second pat down of the Appellant did

not take place until after the completed dog sniff. The entire incident from the

initial stop until the arrest of the Appellant took 90 minutes.

      In Meghoo v. Commonwealth , 245 S .W.3d 752 (Ky . 2008), this Court

addressed the issue of unreasonable delay during a safety inspection at a

weigh station. A safety inspection of Meghoo's truck and paperwork at a weigh

station revealed that his logbook was misdated and his bills of lading were

suspiciously handwritten, since "bills of lading nowadays are generally

computer generated ." Id. a t 753 . The vehicle enforcement officer gave Meghoo

a chance to correct his logbook, and the proffered corrections actually resulted

in further discrepancies . As the officer continued to investigate the
discrepancies, he called for a canine unit. The dog alerted at the trailer doors

and then started to tear open a box within the trailer. The box contained

approximately forty pounds of marijuana covered in fabric softener sheets to

mask the odor. "Once the vehicle enforcement officers established a reasonable

suspicion based on the documents that other violations of law might be

occurring, they were entitled to bring in the drug-sniffing dog for the exterior of

the vehicle so long as there was not any unreasonable delay." Id . at 755 (citing

Caballes , 543 U.S . at 407) . "The officers were entitled to conduct an

investigation `reasonably related in scope to the circumstances that justified

the interference in the first place .' Id. (quoting United States v. Bloomfield, 40

F.3d 910, 915 (8th Cir. 1994)) . This Court first found that "based on the

reasons for the inspections and what the officers found, continuing the

investigation into what the Appellant was carrying was reasonable in scope."

Id . a t 756 .

        As for the issue of unreasonable delay, the record showed that the safety

inspection took nearly thirty minutes, the search of the vehicle with the dog

began about twenty minutes after the safety inspection ended, and Meghoo was

arrested about seven minutes after the search of the vehicle with the drug dog

began. The officers' inspection and investigation thus lasted about an hour.

However, "given the discrepancies in the logbooks, the vehicle enforcement

officers were authorized to declare the vehicle `out of service' and Appellant

unable to drive it for 24 hours." Id . at 756 (citing KRS 281 .600; 601 KAR

1 :005). Pursuant to that regulation, Meghoo would not have been allowed to
 leave in his truck. This Court concluded that such a regulation "mitigates any

 claim of unreasonableness as to the length of the detention, since this is not a

 case in which Appellant could have driven away but for the officers' actions."

 Id .

        Also, Meghoo involved a regulatory safety inspection at a weigh station,

not a traffic stop on the side of the road. The heavier regulation of the

commercial trucking industry is part of the reason the officers in Meghoo were

authorized to effectively impound the truck for twenty-four hours . Such a

regulatory scheme, and voluntary participation in the regulated industry, tends

to weigh heavily in favor of finding longer stops to be reasonable . Traffic stops

of private passenger vehicles, which are entitled to a greater expectation of

privacy to begin with, should almost always be shorter because they involve

minor traffic violations, and do not fall under a broad regulatory scheme

requiring an inspection (with which commercial drivers must comply in

addition to those general traffic laws that private drivers must follow) .

        Finally, the delay was shorter in Meghoo . Though it was about the same

length of time before the drug dog arrived, the entire encounter with the

officers in Meghoo lasted about an hour (including thirty minutes for the safety

inspection), much of which was due to the fact that the truck had failed the

safety inspection . In the present case, however, it was an hour before the

second pat down and arrest of the Appellant, and the entire encounter with

officers lasted about 90 minutes . The stop of a private passenger vehicle for a

minor traffic offense, without more, cannot reasonably take longer than the


                                         10
 regulatory stop of a commercial truck. That the stop in this case actually

 exceeded that in Me hoo illustrates why the stop in this case was

unreasonable .

       Given that the length of the delay in Meghoo was shorter and involved a

failed safety inspection at a weigh station causing the vehicle to be declared

"out of service," as opposed to a routine traffic stop, Meghoo is not controlling.

Even though Meghoo was a relatively lengthy delay, this Court's conclusion

that it was not an unreasonable delay in that case does not compel the same

result in this case.

       As previously noted, "a seizure that is lawful at its inception can violate

the Fourth Amendment if its manner of execution unreasonably infringes

interests protected by the Constitution ." Caballes, 543 U.S. at 407 . Contrary

to the situation in Caballes , this Court cannot "accept the . . . conclusion that

the duration of the stop in this case was entirely justified by the traffic offense

and the ordinary inquiries incident to such a stop." Id. at 408 . Instead, this is

an example of the scenario foreseen in Caballes, that a seizure "can become

unlawful if it is prolonged beyond the time reasonably required to complete

that mission ." Id . a t 407 .

       Simply put, the scope and duration of the stop in this case-fifteen

minutes before the narcotics-detection dog arrived, thirty to forty more minutes

for the dog to search the car, one hour before the driver was given a citation,

and 90 minutes of total detention before the Appellant-passenger was

arrested-exceeded that allowed for a mere traffic offense . The stop, therefore,
was unreasonable and "so prolonged as to be unjustified." Johnson, 179

S.W.3d at 884. Despite the Commonwealth's contention, the choice to tow the

vehicle did not lengthen the permissible duration of the detention because

regardless of how much time it might take for a tow truck to arrive, the actual

seizure and search had to be completed within a reasonable time . The

Commonwealth's arguments regarding de minimis intrusions on Fourth

Amendment protections and inevitable discovery are without merit . As such,

the subsequent discovery of crack-cocaine on the Appellant was the product of

an unconstitutional seizure, and the evidence should have been suppressed .

                                   III. Conclusion

      Because the officers unreasonably prolonged the duration of the stop of

the vehicle in this case by detaining the Appellant for 90 minutes, the seizure

became unlawful . Since the evidence recovered from the Appellant was the

product of an unconstitutional seizure, it should have been suppressed.

      For the foregoing reasons, the Court of Appeals is reversed, Appellant's

conditional guilty plea and the judgment of the Montgomery Circuit Court are

vacated, and the case is remanded to the Montgomery Circuit Court for further

action consistent with this Opinion.

      All sitting . All concur .
COUNSEL FOR APPELLANT:

Kathleen Kallaher Schmidt
Appeals Branch Manager
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, Kentucky 40601


COUNSEL FOR APPELLEE :

Jack Conway
Attorney General

Bryan Darwin Morrow
Office of Attorney General
1024 Capital Center Drive
Frankfort, Kentucky 40601
