                                                       I 12
                                                   RENDEREDMARCH
                                                            ARCH 17, ,2,016
                                                         lye PUBLISH ED
                *tyrrntr Court of 7
                               2014-SC-000405-MR
                                                                 _t4-1-110

 THOMAS J. DAVIS                                                       APPELLANT


                     ON APPEAL FROM MCLEAN CIRCUIT COURT
V.                   HONORABLE BRIAN WIGGINS, JUDGE
                             NO. 14-CR-000007


COMMONWEALTH OF KENTUCKY                                                APPELLEE



               OPINION OF THE COURT BY JUSTICE VENTERS

                         REVERSING AND REMANDING


       Appellant, Thomas J. Davis, entered a conditional guilty plea in the

McLean Circuit Court to charges of first-degree trafficking in a controlled

substance, first-degree possession of drug paraphernalia, and being a first-

degree persistent felony offender. Judgment was entered accordingly, and

pursuant to the plea agreement, he was sentenced to a total of twenty years in

prison.

      The issue preserved for appeal is the trial court's denial of Appellant's

motion to suppress evidence that was found on his person and in his car

following a sniff search by a narcotics-detection dog. The search was

conducted after a routine traffic stop, which Appellant contends was unlawfully

extended beyond its original purpose to enable the sniff search. In addition to
 evidence found on his person and in his car, Appellant seeks to suppress

 incriminating statements he made following his arrest. For the reasons stated

 below, we reverse Appellant's conviction and remand this case to the trial court

 for further proceedings.



                   L FACTUAL AND PROCEDURAL BACKGROUND

       Officer Tim McCoy was on duty in the late evening hours, parked on the

 side of a remote gravel road in a rural area of McLean County, as he described

it, "looking for DUI drivers." Riding with McCoy that evening was his canine

partner, Chico. Chico is a trained and certified narcotics-search dog. McCoy

was aware of allegations that Appellant was involved with illegal drugs. Earlier

that day he had discussed those allegations with other police officers. As

McCoy sat by the roadside on the lookout for drunk drivers, Appellant drove

by, and McCoy decided to follow him.

       RCr 8.27 governs motions to suppress evidence and requires the trial

court to "state its essential findings on the record." RCr 8.27(5), RCr 8.20(2);

see also CR 52.01. On appellate review of the denial of a motion to suppress

evidence, we first review the trial court's findings of fact under the clearly

erroneous standard; 1 under this standard, the trial court's findings of fact will




        1 A factual finding is not clearly erroneous if it is supported by substantial
evidence, that is, "evidence of substance and relevant consequence having the fitness
to induce conviction in the minds of reasonable men." Owens-Corning Fiberglas Corp.
v..Golightly, 976 S.W.2d 409, 414 (Ky. 1998) (citations omitted).

                                          2
 be conclusive if they are supported by substantial evidence.     Simpson v.

 Commonwealth, 474 S.W.3d 544, 547 (Ky. 2015).

       Appellant does not challenge the trial court's factual findings. We find

 them to be supported by substantial evidence, and so they are binding upon

 our review. Appellant contends that the trial court erred in its application of

 the law to the facts which, in Appellant's view, compelled a conclusion that

 Chico's sniff search was illegal because it occurred after McCoy had

 accomplished the purpose of the traffic stop. We undertake a de novo review of

 the trial court's application of the law to the facts to determine whether its

decision to deny the motion to suppress was correct as a matter of law.        Id.; see

also Payton v. Commonwealth, 327 S.W.3d 468, 471-472 (Ky. 2010).

       Following the suppression hearing, the trial court found the facts to be

as follows. McCoy saw Appellant's vehicle cross the center line of the road two

or three times, a well-known indication that the driver may be intoxicated.

McCoy then initiated a traffic stop. When he approached the driver's window,

McCoy recognized Appellant and smelled alcohol coming from within the

vehicle. He also noticed an open beer can in the center console next to the

driver. McCoy asked Appellant about the beer can, and Appellant said that he

had just opened it and had drank about half of it.

       McCoy then asked Appellant to exit the vehicle. Over the next few

minutes, McCoy conducted a pat-down search of Appellant and he

administered two field sobriety tests. Appellant passed both tests. The

preliminary breath test registered no presence of alcohol.

                                         3
        McCoy then asked if he could search Appellant's vehicle. Appellant

 refused to consent to the search, telling McCoy that several people had recently

 used his car, and he did not know what was in it. At that point, McCoy

 informed the defendant that he was going to have Chico perform a sniff search

 of the vehicle's exterior. Although Appellant objected, the sniff search

 proceeded.

       According to the trial court's finding, Chico sniffed for "approximately

 one to two minutes" before he "alerted 'on a lower panel door of the vehicle,

indicating to McCoy that narcotics were inside." By that time, another officer

had arrived on the scene. Appellant's person was more thoroughly searched

and a quantity of what looked like methamphetamine was found. Thirteen

minutes after the initial stop, Appellant was arrested and taken into in

custody.

       When the officers searched the interior of the Appellant's vehicle, they

found more methamphetamine, scales, syringes, and plastic baggies. Upon

later interrogation at the sheriff's office, and after receiving his Miranda

warnings, Appellant admitted he was involved in the drug trade because he

had lost his job after he had refused to take a drug test.

      The trial court also found that McCoy's purpose for conducting the traffic

stop was to "stop a careless driver in order to verify his sobriety (or lack

thereof)." This particular finding was mentioned in the "Conclusions of Law"

section of the trial court's order. It is, nevertheless, a factual matter that is

crucial to our review.

                                          4
                                     II. ANALYSIS


       Appellant moved to suppress the incriminating evidence discovered on

 his person and in his vehicle, as well as his subsequent admissions, on the

 basis that all of the evidence was the fruit of an illegal search that occurred

 after the lawful traffic stop was unlawfully extended. "It has long been

 considered reasonable for an officer to conduct a traffic stop if he or she has

 probable cause to believe that a traffic violation has occurred."   Commonwealth

 v. Ducal°, 422 S.W.3d 253, 258 (Ky. 2013) (citing Wilson v. Commonwealth, 37

S.W.3d 745 (Ky. 2001)." "As long as an officer 'has probable cause to believe a

civil traffic violation has occurred, [he] may stop [the] vehicle regardless of his

or her subjective motivation in doing so."   Id. (quoting Wilson, 37 S.W.3d at

749); see also Terry v. Ohio, 392 U.S. 1 (1968) (permitting an investigatory

detention upon a reasonable suspicion that criminal activity is afoot).

       We agree with the trial court that Officer McCoy lawfully stopped

Appellant's vehicle after witnessing it cross the center line. This observed

violation, supported by the observation of the open beer can in the car,

provided reasonable suspicion that Appellant may have been driving while

intoxicated. Accordingly, McCoy was authorized to detain Appellant for the

routine purpose of determining his state of sobriety and his ability to drive.

This lawful detention properly extended throughout the time required to

administer the two field sobriety tests. The critical question is whether, after

the field sobriety tests and McCoy's personal observation of Appellant
    substantially eliminated a legitimate concern about Appellant's sobriety, it was

    lawful to prolong the detention to enable Chico to perform the sniff search.

          "Although an officer may detain a vehicle and its occupants in order to

    conduct an ordinary traffic stop, 'any subsequent detention . . . must not be

    excessively intrusive in that the officer's actions must be reasonably related in

    scope to circumstances justifying the initial interference."'   Turley v.

    Commonwealth, 399 S.W..3d 412, 421 (Ky. 2013) (quoting United States v.

 Davis, 430 F3d 345, 353 (6th Cir. 2005) (citation omitted)). 2 "Thus, 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. (citations and internal quotations omitted); see also United States v.

Hunnicutt, 135 F.3d 1345, 1349 (10th Cir.1998). 3 If the traffic stop is prolonged

beyond the time required for the purpose of the stop, "the subsequent



2 See also Illinois v. Caballes, 543 U.S. 405, 407 (2005) ("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.").
In Caballes, 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, found marijuana, and then arrested Caballes. The entire event lasted less
than ten minutes. 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." Id. at 408.
 3 In United States v. Hunnicutt, 135 F.3d 1345, 1349 (10th Cir.1998), the Tenth Circuit
noted two circumstances that may justify an extended detention beyond the purpose
of the initial stop. First, the officer may detain the driver for questioning unrelated to
the initial stop if he acquires an objectively reasonable and articulable suspicion illegal
activity has occurred or is occurring; Second, further questioning unrelated to the
initial stop is permissible if the initial detention has become a consensual encounter.
Neither circumstance is present in this case.

                                            6
    discovery of contraband is the product of an unconstitutional seizure." Epps v.

    Commonwealth, 295 S.W.3d 807, 811 (Ky. 2009) (citation omitted).

          In Epps, 4 we explained that a canine sniff search for drugs itself does not

    necessarily implicate Fourth Amendment concerns because a vehicle owner

    has no reasonable expectation of privacy that this mode of narcotics detection

 will not be used during a legitimate traffic stop. Id. at 810. As long as the sniff

    search is conducted during the course of a lawful traffic stop, including any

 lawful extensions of the traffic stop, the search is proper and does not violate

 the Fourth Amendment. Johnson v. Commonwealth, 179 S.W.3d 882, 884 (Ky.

App. 2005) (quoting Florida v. Royer, 460 U.S. 491, 500 (1983) ("Investigative

detention [in relation to a narcotics canine sniff search] must be temporary and

last no longer than is necessary to effectuate the purpose of the stop.").

                However, as recently clarified by the United States Supreme Court

in Rodriguez v. United States, 135 S. Ct. 1609 (2015), a police officer may not

extend a traffic stop beyond its original purpose for the sole purpose of

conducting a sniff search—riot even for a de minimus period of time.

         In Rodriguez, a police officer stopped Rodriguez for driving on a highway

shoulder in violation of Nebraska law. After completing all matters related to


4  In Epps the driver was stopped for making an illegal turn. After the driver denied a
 request to consent to a search of his vehicle a narcotics detection canine was brought
 to the scene and alerted on the vehicle. Upon review we held that "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."
Id. at 813 (citation and internal quotes omitted).

                                           7
 the purpose of the stop, including the issuance of a warning for the traffic

 violation and checking the driver's licenses of Rodriguez and his passenger, the

 officer asked if Rodriguez would permit a police dog to walk around the vehicle.

 When Rodriguez refused, the officer detained him until a second officer arrived.

 The canine was then directed to search, and it alerted to the presence of drugs

 in the vehicle. The ensuing search revealed methamphetamine. Seven or eight

 minutes elapsed between the issuance of the traffic warning and the dog's

alert. Id. at 1612.

       After his indictment on federal drug charges, Rodriguez moved to

suppress the fruits of the dog sniff search. The trial court concluded that,

under Eighth Circuit precedent, the extension of the stop by "seven to eight

minutes" while the dog sniffed was a de minimis intrusion on Rodriguez's

Fourth Amendment rights, Suppression was denied..         Id. at 1613. The Eighth

Circuit affirmed, stating that the delay constituted an acceptable "de minimis

intrusion on Rodriguez's personal liberty." Id.

      The United States Supreme Court reversed, holding that there is no de

minimis time exception to the rule that a traffic stop may not be extended

beyond its original purpose without an additional reasonable suspicion to do

so. The Rodriguez Court explained that, in addition to determining whether to

issue a traffic ticket, an officer's mission. includes "ordinary inquiries incident

to [the traffic] stop," such as checking for outstanding warrants, inspecting

auto registration, and proof of insurance, Id. at 1615 (citations omitted). "A

dog sniff, by contrast, is a measure aimed at detecting] evidence of ordinary

                                          8
criminal wrongdoing," id. (internal citation and quotation omitted), and is not

an ordinary incident of a traffic stop. Id. A traffic stop prolonged beyond the

point reasonably required by the officer to complete the stop's mission is an

unlawful stop. Id. at 1616.

       Significantly,, the Court concluded that a[t]he critical question, then, is

not whether the dog sniff occurs before or after the officer issues a ticket .. .

but whether conducting the sniff "prolongs"—i.e., adds time to—"the stop[.]"

Id.

       With this principle in mind, we return to the trial court's denial of

Appellant's motion to suppress. The trial court found that "McCoy's obvious

purpose was to stop a careless driver in order to verify his sobriety (or lack.

thereof)." Therefore, under Rodriguez, any nonconsensual extension of the

detention beyond the time taken to verify Appellant's sobriety, unless

accompanied by additional grounds to believe other criminal activity was afoot,

was unconstitutional.

      The trial court concluded, however, that the purpose of the stop had not

been "effectuated," apparently because McCoy had not yet decided whether to

let Appellant go free or charge him with reckless driving and the open

container. In the trial court's analysis, "[t]he key issue [is] whether the

duration of the defendant's detention after the administration of the field

sobriety tests was so prolonged as to be unjustified," noting further:

      Most importantly, the Court notes that the length of the stop from
      its inception (11:06 p.m.) to the defendant's arrest (11:19 p.m.) was
      only thirteen minutes. Obviously, the length of the stop from its

                                         9
       inception to the point that the canine alerted to the presence of
       narcotics was of an even shorter duration. All things considered,
       this Court simply cannot characterize the length of the defendant's
       detention as unreasonable.


(Emphasis added.)

       However, as explained in Rodriguez, any prolonging of the stop beyond

its original purpose is unreasonable and unjustified; there is no "de minimus

exception" to the rule that a traffic stop cannot be prolonged for reasons

unrelated to the purpose of the stop. To the extent that Epps and Johnson

suggest otherwise, they ate necessarily overruled by our acknowledgment of

Rodriguez. The "key questiOn" is not whether the duration of Appellant's

roadside detention was unreasonable; rather, it is whether the sniff search was

related to the purpose for which Appellant was stopped; that is, a DUI traffic

stop to ascertain. a driver's sobriety.

      McCoy's testimony regarding the status of the stop after Appellant had

passed the two field tests was somewhat inconsistent. He first testified that he

determined that Appellant was not intoxicated when he passed the two sobriety

tests,.thus implying that the original purpose of the stop had been completed.

However, he later testified that,, after Appellant passed the field sobriety

checks, his focus shifted to determining if Appellant was driving under the

influence of narcotics rather than alcohol as indicated by the open beer can,

thus giving rise to the need for Chico's service. Under that reasoning, it is

argued, the "purpose of the stop" had not been effectuated because McCoy

opted to prolong the detention to resolve a lingering question of whether

                                          10
 Appellant, if not driving under the influence of alcohol, was instead driving

 under the influence of drugs.

       The problem with this reasoning is that, in addition to passing two

 sobriety tests, no evidence suggests that Appellant's speech, demeanor, or

behavior otherwise exhibited any characteristics associated with drug or

alcohol intoxication from which an. officer might reasonably believe further

investigation was necessary. Moreover, a sniff search of the vehicle by Chico

could not possibly serve the purpose of the traffic stop by showing whether

Appellant was driving under the influence of any substance. The only reason

for the sniff search was to discover illegal drugs in Appellant's car, which adds

nothing to indicate if the driver is under the influence and is clearly beyond the

purpose of the original DUI stop. The evidence unequivocally established, and

the Commonwealth agrees, that McCoy had concluded his field sobriety

investigation. It is obvious that his purpose then shifted to a new and different

purpose. With no articulabl.e suspicion to authorize an extended detention to

search for drugs, McCoy prolonged the seizure and conducted the search in

violation of Rodripez and Appellant's Fourth Amendment protections.

Consequently, we conclude that. the fruits of that search must.be suppressed.

      The Commonwealth suggests that even if the search was unlawful, the

evidence is not subject to suppression because it would have been inevitably

discovered. "In Nix v. Williams, 467 U.S. 431, 104 S. Ct. 2501, 81 L.Ed.2d 377

(1984), the United States Supreme COurt adopted the 'inevitable discovery rule'

to permit admission of evidence unlawfully obtained upon proof by a

                                        11
 preponderance of the evidence that the same evidence would have been

 inevitably discovered by lawful means." Hughes v. Commonwealth, 87 S.W.3d

 850, 853 (Ky. 2002).

       Under this theory, Officer McCoy could have arrested Appellant for

 reckless driving and the open container at the conclusion of the field sobriety

testing. He then would have been subject to search incident to arrest, and the

evidence on his person would have been discovered. Presumably, the drugs in

the car also would have been discovered either by an inventory search or a

search pursuant to a warrant..

       However, with .no compelling indicators that Appellant was actually

intoxicated, it is far from inevitable that he would have been arrested by

McCoy. Obviously, McCoy was not satisfied from his own observations that he

should charge Appellant with DUI. Confined to what can be fairly gleaned from

the record, it is equally likely that McCoy would have disposed of the minor

offenses with a citation, or simply released the motorist with a warning. The

discovery of the evidence as suggested by the Commonwealth was not

inevitable.


                                 HI.    CONCLUSION

      For the foregoing reasons, the evidence obtained against the Appellant as

a result of the unlawful search should have been suppressed. The judgment of

the McLean Circuit Court is hereby reversed. This matter is remanded to the

McLean Circuit Court for further proceedings consistent with this decision.

      All sitting. All concur.

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COUNSEL FOR APPELLANT:

JULIA KAROL PEARSON
ASSISTANT PUBLIC ADVOCATE
DEPARTMENT OF PUBLIC ADVOCACY

COUNSEL FOR APPELLEE:

ANDY BESHEAR
ATTORNEY GENERAL OF KENTUCKY

JULIE SCOTT JERNIGAN
ASSISTANT ATTORNEY GENERAL




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