RENDERED: MAY 5, 2023; 10:00 A.M. NOT TO BE PUBLISHED 

# Commonwealth of Kentucky Court of Appeals

NO. 2022

- CA

- 0460

- MR
TONY L. HALE APPELLANT

v. APPEAL FROM FAYETTE CIRCUIT COURT

HONORABLE KIMBERLY N

. BUNNELL, JUDGE

ACTION NO. 20

- CR

- 00864

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION REVERSING AND REMANDING

**   **  **
BEFORE: EASTON, LAMBERT, AND M C NEILL, JUDGES. LAMBERT, JUDGE: Tony L. Hale appeals the Fayette Circuit Court ’s judgment convicting him of a second or greater offense of trafficking in a controlled substance , possession of marijuana , and possession of drug paraphernalia

. We reverse and remand fo r the reasons stated here in

.- 2

- BACKGROUND
On August 18, 2020, Detective Brendan Hazelwood and other detectives of the Lexington Police Department w ere conducting surveillance in areas of reported drug activity in east Lexington. While seated in his unmarked vehicle, Detective Hazelwood observed a white GMC SUV operated by Hale , an individual unknown to him, stop at the corner of 7th and Jackson Street s d uring the late afternoon or early evening daylight hours . A n unknown male subject approached Hale’s vehicle , entered the front passenger side for a short period , and then exited the vehicle . The unknown male subject then convers ed with Hale by the vehicle’s side for a short time before Hale drove away.

Detective Hazelw ood and the other detectives followed Hale to Barksdale Drive where Hale park ed his vehicle and was observed entering a residence. While inside the residence, Hale remotely locked his vehicle multiple times using his key fob and , after a short stay, proce eded back into his vehicle and left

. Based on these observations, Detective Hazelwood became s uspicious Hale was engaged in drug

- related activity

. A t approximately 7:00 p.m., Detective
Ha zelwood radioed for an available patrol unit to initiate a traffic stop on Hale’s
vehicle. Officer Dan Hempel and Officer Zachary Flowers received the call and initiated a stop on Hale’s vehicle for failure to use a turn signal wh ile changing lanes on southbound Interstate 75

.- 3

- A K

- 9 unit was requested by an unknown officer to come to the scene of the stop while O fficer Hempel and Officer Flowers issued a citation

. Detective Hazelwood took a nearby exit and remained off scene while maintaining radio
contact. Soon after Hale’s vehicle was pulled over, Officer Hempel approached to inform Hale he was stopped for a lane change violation . When asked where he was coming from, Hale indicated his parents’ house on Linton Road . A t some point thereafter, Officer Hempe l observed Hale to appear nervous and to be exhibit ing shaking hands

. Due to Hale ’s inability to produce proof of insurance , Officer Hempel return ed to his patrol unit to generate a traffic citation for a lane change violation and no proof of insurance. Detective H azelwood radioed Officer Hempel and told him to “take [his] time” generating the citation as the K

- 9 unit
was enroute. Ultimately, Officer Hempel returned to Hale’s vehicle , provided the citation, and informed Hale he was “ free to go . ” Officer Hempel walked back
to ward his patrol unit and conversed with O fficer Flowers who reminded him they had an ongoing narcotics investigation. This prompted Officer Hempel to return to Hale’s vehicle for additional questioning. When again asked where he had come from , Hale indicated he came from his parents’ ho use on Linton Road

. After some follow up questions, Officer Hempel then inform ed Hale to “hang on a second

. ”- 4

-

Shortly thereafter, Hale found proof of his insurance, and Officer Hempel agree d
to void the no insurance charge and re - issue the citation

.

Officer Hempel walked back to his patrol unit to begin reissuing a new citation, and the K

- 9 unit , wh ich recently arrived on scene , ultimately conduct ed a sniff search of Hale’s vehicle. While Officer Hempel work ed on reissuing the citation, t he K

- 9 unit alerted to the presence of drugs and a search of Hale’s vehicle result ed in the discovery of cocaine, marijuana, and $3,000 .00 in cash. Hale was indic ted on October 13, 2020, and a motion to suppress evidence from the vehicular search was filed on February 26, 2021. Hale argued the police stopped his vehicle without sufficient cause to initiate a traffic stop , and in the alternative, unlawfully prolong ed it to conduct a drug investigation. A suppression hearing was held on June 29, 2021, during which Detective Hazelwood, Officer Hempel, and Officer Flowers testified. Video produced from body cameras worn by Officer Hempel and Officer Flowers was playe d at the hearing. The Fayette Circuit Court denied the motion to suppress and enter ed oral findings stating th at observed lane change violations provided cause for the traffic stop, and its extension was justified based on occurrences after the stop

. T he trial court found Hale’s nervousness and statements regarding his prior- 5

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whereabouts provided the officers with reasonable suspicion during the stop when combined with Detective Hazelwood’s prior observations

. On July 6 , 2021, the trial court entered a written order denying the motion to suppress for the “reasons
stated on the record .” On October 22, 2021 , Hale filed a motion to r econsider the denial of his motion to suppress citing Commonwealth v. Clayborne , 635 S.W.3d 818, 821 ( Ky. 2021) , which was finalized on October 20, 2021

. On January 28,
2022 , the trial court denied the motion to reconsider finding the facts of Clayborne to be distinguishable

.

On February 25, 2022, Hale preserv ed his right to appeal the denial of
suppress ion and entered a conditional guilty plea to a second or greater offense of trafficking in a controlled substance, possession of marijuana, and possession of drug paraphernalia . Hale was sentenced to ten years in prison on April 14, 2022

. This appeal followed. STANDARD OF REVIEW

A review of a denial of a motion to suppress involves a twofold determination of whether the trial court’s findings of fact are supported by substantial evidence along with a de novo review of the trial court’s legal

co nclusions. Kavanaugh v. Commonwealth , 427 S.W.3d 178, 180 (Ky. 2014)

. If the trial court’s fact findings are supported by substantial evidence, they are conclusive. Id. “Substantial evidence is evidence, taken alone or in light of other- 6

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proof, that a r easonable mind would find sufficient to support a conclusion.” Cox v. Commonwealth , 641 S.W.3d 101, 113 (Ky. 2022) (internal quotation marks and
citation omitted). The Commonwealth bears the burden of proof by a preponderance of the evidence at a suppres sion hearing. Cook v. Com monwealth , 826 S.W.2d 329, 332 (Ky. 1992)

. ANALYSIS

Police can stop and briefly detain a person, or a vehicle, to investigate potential criminal activity if the officer has reasonable suspicion. Commonwealth v. Blake , 540 S.W.3d 369, 373 (Ky. 2018) (citation omitted). While requiring less than a probable cause showing, “ reasonable suspicion is more than an unparticularized suspicion or hunch ” and “ requires at least a minimal level of objective justification for making the stop ” based on articulable facts. Bauder v.
Com monwealth , 299 S.W.3d 588, 591 (Ky. 2 009) (internal quotation marks and citation omitted); Commonwealth v. Priddy , 184 S.W.3d 501, 505 (Ky. 2005). When scrutinizing these investigatory detentions, often dubbed Terry 1 stops, a reviewing court should review the totality of the circumstances with a “wide lens” when determin ing if they establish reasonable suspicion

. Bauder , 299 S.W.3d at 591; Priddy , 184 S.W.3d at 511 (citation omitted).

1 Terry v. Ohio , 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).- 7

- On appeal , Hale asserts three challenges to his detention. First, the re was insufficient cause to initiate a traffic stop

. Second, if it was a lawful traffic stop, it was prolonged past the point it concluded or should have concluded. Third, it was prolonged without independent reasonable suspicion to await the arrival of the K

- 9 unit

. We examine each argument individually. A. There was Probable Cause for the Traffic Stop . “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.” Davis v. Commonwealth , 484 S.W.3d 288, 291 (Ky. 2016) (internal quotation marks and citation omitted). Hale argues the police did not have sufficient cause to initiate a traffic stop o n his vehicle for a lane change violation. For support, Hale points to the absence of any body camera video supplied at the suppression hearing capturing any violation and argues the officers’ testimony asserting they personally observed the violation is unreliable.

We will note the original body camera video played at the suppression hearing was not formally submitted and admitted into the record before us nor was it played in its entirety . Therefore, we can only rely on the video segment s played during the suppression hearing . We must further rely on contextualizing testimony concerning certain segments played due to some difficulty in discern ing the audio

.- 8

- Officer Hempel and Officer Flowers both testified that in accordance with depa rtmental policy , their body cameras are not activated until their emergency lights are turned on. Officer Hempel additionally testified , upon activation , the body cameras undergo a “buffering mode” during which they “ don’t capture everything .” The trial court found this explanation was sufficient , and the
record does not demonstrate anything undermin ing the officers’ credibility

. W e defer to the trial court’s finding the officers observed the violations and had cause to initiate a traffic stop. See Pitcock v. Com monwealth , 295 S.W.3d 130, 132 (Ky. App. 2009) (citation omitted) (“ At a suppression hearing, the ability to assess the credibility of witnesses and to draw reasonable inferences from the testimony is

v ested in the discretion of the trial court. ”).
B. The Traffic Stop was Prolonged .

“ A seizure for a traffic violation justifies a police investigation of that violation

. ” Rodriguez v. United States , 575 U.S. 348, 354, 135 S. Ct. 1609, 1614, 191 L. Ed. 2d 492 (2015) (emphasis added). Traffic stops are more analogous to Terry stops , and “ the tolerable duration of police inquiries in the traffic

- stop context is determined by the seizure's ‘ mission ’

– to address the traffic violation that warranted the stop

. . . and attend to related safety concerns. ” Id. ( citation s omitted)

. T he authority for the seizure ends when the related tasks are completed or should have been completed. Id. There are no exceptions for de minimis- 9

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prolongments , and a sniff search for drugs fa lls outside the scope of routine traffic law enforcement because it is purposed for detecting evidence of criminal activity. Commonwealth v. Lane , 553 S.W.3d 203, 206

- 07 (Ky. 2018) (citation omitted). However, unrelated investigative i nquiries are permitted so long as they occur

“ simultaneously ” while “ completing the purpose of the stop. ” See Commonwealth v. Mitchell , 610 S.W.3d 263, 270 (Ky. 2020)

. Such inquiries must not add time to the stop. Commonwealth v. Conner , 636 S.W.3d 464, 474 (Ky. 2021)

.

Hale contends the traffic stop was prolonged by Officer Hempel delay ing the write

- up of the original citation to allow time for the K

- 9 unit ’ s arrival
and further detain ing him after t he original citation was provided to him

. T he Commonwealth counters that the traffic citation and the drug investigation were pursued concurrently without an y prolongment since the K

- 9 unit’s alert and the subsequent vehicular search occurred while Officer Hempel w as reissu ing the traffic citation to void the no proof of insurance charge.

As proof of prolongment, Hale points to the disparity in time between the original and the reissued citation s noting it took approximately 16 minutes to complete the original and eight minutes to finish the reis sued citation. 2 The trial

2 In its brief, the Commonwealth states it took twenty

- two (22) minutes to complete the original citation . W e presume the Commonwealth is including the time it took to gather Hale’s information whereas Hale is only factoring in the time it took to complete the write

- up. Additionally, Hale asserts , “Instead of diligently pursuing the writing of the [original] citation, Officer Hempel accessed Google several times.” The original copies of the body camera video- 10

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court was unpersuaded and determined the reissued citation was quicker to complete because Hale’s information had already been entered and Officer Hempel only needed to make a modification. This was supported by Officer Hempel ’s testimony

. However, t he situation is complicated by Detective Hazelwood ’s
radioed statements to Officer Hempel to “ take [his] time ” while writing the original cit ation

. During Detective Hazelwood’s testimony, t he trial court directly inquired whether he meant for Officer Hempel “ to go slow so the K

- 9 could get there

. ” Detective Hazelwood replied, “Yes, ma’am, that’s what I said. I was implying that , like, there’ s no, there’s no rush to , to get everything done with since it’s a narcotics investigation.” The detective’s own testimony explicitly

a cknowledged , at this moment , the purpose of the stop was in furtherance of a drug investigation. See Clayborne , 635 S.W .3d at 824 (citation omitted) (emphasis in original) (“[A] stop is extended when an officer pursues purposes or tasks unrelated to his or her main objective of addressing a traffic violation and that new pursuit adds time to the stop. ” )

. When comparing body cam era footage timestamps identified by the prose cution at the suppression hearing, w e can

were not submitted into the record, an d no facts or evidence of this was presented during the suppression hearing. Therefore , we decline to consider this assertion on appeal. See Heltsley v. Frogge , 350 S.W.3d 807, 811 (Ky. App. 2011) (citation omitted).- 11

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approximate seven minutes elapsed between Detective Hazelwood’s statement and
the moment after Officer Hempel inform ed Hale he was “ free to go

. ” 3 We cannot conclude with confidence there was not at least a de min imis delay in the citation’s completion based on the detective’s own clear testimony and this passage of time.
See United States v. Stepp , 680 F.3d 651, 66 2 (6th Cir. 2012) (emphasis added) (“Because a crafty officer . . . may simply delay writing a ticke t for the initial traffic violation until after she has satisfied herself that all of her hunches were unfounded, we also treat the unreasonable extension of a not

- yet

- completed traffic stop as a seizure.”)

.

Hale further maintains once Officer Hempel handed him the original citation, the traffic stop ’s purpose definitively concluded, and the actions thereafter were a clear prolongment. Citing Heien v. North Carolina , 574 U.S. 54, 135 S. Ct. 530, 190 L. Ed. 2d 475 (2014) , and Brigham City, Utah v. Stuart , 547 U.S. 398, 126 S. Ct. 1943, 164 L. Ed. 2d 650 (2006) , the Commonwealth argues Officer Hempel “forgot about the ongoing narcotics investigation” and “made a mistake” informing Hale he could leave.

3 The prosecution state d the body ca mera footage containing Detective Hazelwood’s statement was taken approximately 17 minutes into the stop while video of Officer Hempel walking away after handing Hale the original citation occurred around 24 minutes

.- 12

- In Arizona v. Johnson , 555 U.S. 323, 333, 1 29 S. Ct. 781, 788, 172 L. Ed. 2d 694 (2009) , the United States Supreme Court stated a traffic stop “begins when a vehicle is pulled over” and “[n]ormally , the stop ends when the police have no further need to control the scene , and inform the driver and p assengers they

are free to leave. ” A detention occurs when “ in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. ” United States v. Mendenhall , 446 U.S. 544, 554, 100 S. Ct. 1 870, 1877, 64 L. Ed. 2d 497 (1980). After Hale was given the original citation, it is not in disput e Officer Hempel told Hale he was “ free to go , ” and the record demonstrates Officer Hempel walked away from Hale’s vehicle. A t this moment , we hold that a reasonable person would conclude he was no longer being detained , and as a result, t he traffic stop was no longer occurring contemporaneous ly with a drug investigation

.

Officer Hempel’s “mistake” and the subjective intent of the other officers are not relevant , and r egardless, Officer Hempel testified it was his intent to allow Hale to leave. See Mendenhall, 446 U.S. at 554, 100 S. Ct. at 1877 n. 6 (stating that the subjective intention of a federal agent to detain a subject wa s irrelevant except insofar as that may have been conveyed to the detainee )

. O nce Hale received the citation, there w as no longer cause to continue a traffic stop even if the officers intended to. Hale’s later discovery of his proof of insurance is- 13

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immaterial because it occurred after the original citation was completed , and Officer Hempel was not obligated to reissue anot her citation

.

Th is situation is not unlike Turley v. Commonwealth , 399 S.W.3d 412 (Ky. 2013) , wherein a Kentucky State Police t rooper initiated a traffic stop , and

a fter conducting a field sobriety test and verif ying the driver’s documentation, told
the driver to “have a good night.” The Kentucky Supreme Court held that, upon bidding the driver “good night,” the purpose of the traffic stop concluded, and the trooper’s subsequent questioning and search prolonged the detention

. Id. at 422.
In accordance with this holding a nd considering Detective Hazelwood’s testimony ,

we conclude Hale’s traffic stop was prolonged

. C. The Commonwealth Failed to Prove Reasonable Suspicion was Developed Prior to Prolongment . While an officer may perform certain u nrelated checks during a lawful traffic stop, it may not be done in a manner that prolongs the stop “abs ent the reasonable suspicion ordinarily demanded to justify detaining an individua l.” Rodriguez , 575 U.S. at 355, 135 S. Ct. at 1615

. Otherwise, “subsequent discovery of contraband is the product of an unconstitutional seizure.” See Commonwealth v.
Conner , 636 S.W.3d 464, 473 (Ky. 2021) (footnote omitted). Consequently , once the stop was prolonged , Officer Hempel and Officer Flowers were required to
possess reasonable suspicion of drug activity to further detain Hale to await the K

9 unit’s arrival

. S ee Turley , 399 S.W.3d at 4 21 (internal quotation marks and- 14

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citation omitted) (“[A] n 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 [of] criminal activity

. . . . ”)

. As a result, it is important to examine the sequencing of the events and how each contemporaneously observed factor related to one another when weighing the totality of the circumstances

.

Up to the initiation of the traffic stop, the trial court concluded there

was no reasonable suspicion Hale was involved with drug activity. It is un dispute d the traffic stop was initiated at Detective Hazelwood’s request to assist a drug investigation

. See Blake , 540 S.W.3d at 373 (“[I]n determining whether reasonable suspicion exis ts , the collective knowledge of all the law enforcement officers involved in the stop may be taken into consideration. ”); Mitchell , 610 S.W.3d at 26 9 (citation omitted) (“[A]n officer’s subjective motivations for the stop are not relevant . . . .”). Detec tive Hazelwood witnessed Hale make two brief stops in

area s associated with drug activit y during daylight hours

. During these stops, Hale was respectively observed speaking with a n unknown male subject, both inside and outside of his vehicle, and later entering a residence wherein he repeatedly locked his vehicle. While conceding he did not witness anything transactional, Detective Hazelwood testified the short nature of Hale’s stops was co nsistent with drug trafficking activity in the area and based on his experience as narcotics- 15

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investigator . A dditionally, Hale ’s repetitive loc king of his vehicle was viewed by Detective Hazelwood as “odd” and “not a common thing to do.”

T he trial court concluded the emergence of addition al factors after the stop created reasonable suspicion to justif y shifting the stop’s purpose from a traffic citation to a drug investigation. Officer Hempel testified that during the stop , although Hale was very polite , he was nervous to the point he was fumbling with and nearly dropped his wallet wh ile retrieving his driver’s license

. Officer Hempel also testified that , when asked where he was coming from, Hale stated he was coming from his parents’ house on Linton Road. See Carlisle v. Commonwealth , 601 S.W.3d 168, 177 (Ky. 2020) (internal quotation marks and citation omitted) ( “[ G ]enerally, questions about travel plans are ordinary inquiries incident to a traffic stop.” ). Based on this, Officer Hempel test ified Hale was lying
because it conflicted with Detective Hazelwood’s observations of Hale at the intersection of 7th and Jackson Streets as well as Barksdale Drive.

When weighing the ir totality, “a reviewing court should not view the factors relied upon by the police officer(s) to create reasonable suspicion in isolation but must consider all of the officer(s) observations and give due regard to inferences and deductions drawn by them from their experience and training.” Baltimore v. Commonwealth , 119 S. W.3d 532, 539 (Ky. App. 2003) (footnote omitted). However, a combination of factors, which are otherwise innocent when- 16

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viewed in isolation or subject to significant qualification, cannot add up to reasonable suspicion absent concrete reasons for such an i nterpretation

. See Stepp , 680 F.3d at 665 ( citation s omitted) ; United States v. Smith , 263 F.3d 571, 594 (6th Cir. 2001) ( citation omitted ).

We agree with the trial court that Detective Hazelwood’s prior observations of Hale did not amount to reason able sus picion of drug activity. Hale’s observed behavior was not inherently indicative of criminality, and the only factor which provided some indicia of criminality was the fact it occurred in an area of suspected drug activity. See Illinois v. W ardlow , 528 U.S. 119, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000). However, even in this context, it is in sufficient

.

In Hale’s motion to reconsider the denial of suppression, he cited Clayborne , 635 S.W.3d 818 , but we instead cite to this Court’s unpublish ed
decision in Jones v. Commonwealth , No. 2018

- CA

- 001181

- MR, 2019 WL 2321654 (Ky. App. May 31, 2019) , due to its more similar circumstances

. 4 In
Jones , a Lexington Police officer observed a white van containing three unknown occupants around 12:50 a.m. at the intersection of East 7th Street and Maple Street which was identified as a “high narcotics area

. ” An individual standing outside was observed app roaching the van and leaning into the vehicle to speak with the

4 Jones is cited only as persuasive authority pursuant to Kentucky Rule of Appellate Procedure 41(A).- 17

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driver. When the observing officer pulled his vehicle closer to the intersection, the van pulled away which prompted the suspicions of the office r. The officer followed the van, ran the lice nse plate number, and learned it was registered to an individual in his forties which did not match the apparent ages of the van’s occupants. T he officer initiated a traffic stop and later observed the driver ’s

nervou s hand shaking while one of the passen gers avoided making eye contact. The officer identified the subjects and, after learn ing both had prior narcotics and violent crime charges , requested dispatch of a K

- 9 unit to the scen e . The K

- 9 unit ultimately detected the presence of drugs , and a sear ch of the van uncovered synthetic marijuana and a set of digital scales

. Id. at *1. This Court held these factors w ere insufficient to justify prolong ment of the stop to await the K

- 9 unit

. Id. at *4

. Likewise, Officer Hempel and Officer Flowers required intervening circumstances to tip the balance in the weighing of the se factors

. While nervousness can be a contributing factor , it is not the tipping point in this scenario just as this Court determined it was no t with the very similar circumstances presented in Jones

. 2019 WL 2321654, at *4; s ee also Moberly v. Commonwealth , 551 S.W.3d 26, 32 (Ky. 2018) ( “ H eightened nervousness is common among drivers detained by a police officer for a traffic violation. ” )

.- 18

- This brings us to the remaining factor in this analysis which is Hale’s untruthfulness regarding his previous whereabouts. Hale argues this too is insufficient. Although not discussed at the suppression hearing, Hale concedes in his appe llate brief that the first mention of his prior whereabouts occurred one minute and 23 second s after the start of footage taken from Officer Hempel’s body

camera , which beg an to record prior to Hale’s vehicle being pulled over

. 5 Despite this , Hale proclaims the alleged untruthful nature of this information “ was not completely elicited

. . . until after he was illegally detaine d ” when “ Officer Hempel reengaged him to ask him exactly wh ere he was coming from.”

W e must first determine whether Hale’s dishonesty occurred contemporaneous ly with a diligent pursuit and prior to the prolongment of the traffic stop. When relying up o n the underdeveloped record before us concerning this key point , we are again unable to conclude with confidence this factor sufficiently presented itself prior to the stop’s prolongment , and as a result, it is ultimately unnecessary to answer whether this served as the clinching factor.

The trial court’s written order contains no other findings apart from those verbally stated on the record at the conclusion of the suppression hearing.

5 Hale asserts a Google Maps search demonstrates Linton Road is “a mere three (3) miles away from the area in which he was first observed by the Lexington Police. ” Nothing relati ng to this w as presented at the suppression heari ng , and we decline to consider i t on appeal. See Heltsley , 350 S.W.3d at 811.- 19

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T he trial court ’ s oral findings reasoned the officers secured reasonable suspicion from “the moment the y observed [Hale] being nervous and from the moment he started lying , ” and as a result, the “extension” of the stop was permissible. While not specifically articulated on the record , it is clear the inference was that Hale was attempting to conceal he had just left an area associated with drug activity. See United States v. Boyce , 351 F.3d 1102, 1109 (11th Cir. 2003) (“[C] onflicting answers about where one is traveling to or from may give rise to a suspicion of drug activity because most drivers know the answers to these questions and because the driver may be trying to hide the fact that he is going to or coming from a known drug

- source state. ”). However, the trial court did not indicate the specific
moment it believed Hale was being willfully misleading relative to the stop’s prolongment

.

For reasons already stated , we must rely on segments of body camera footage presented at the suppression hearing along with any relevant testimony

. T he o nly footage pres ented by the Commonwealth capturing Hale’s explicit mention of Linton Road or any discussion by the officers regarding this at the scene was filmed after the original citation’s conclusion. The Commonwealth argues Hale “lied by omission” for fail ing to me ntion he had been at the corner of
7th and Jackson Street s as well as Barksdale Drive, but the only clear questioning we can observe in the presented footage on the matter occurred after Officer- 20

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Hempel gave the original citation to Hale

. While Hale’s brie f concedes he was asked where he was coming from shortly after being pulled over, it does not concede the officers had specifically yet asked him if he made any other stops

. Additionally, Hale’s brief indicates the questioning eliciting this information occurred within a three

- second window

. We will note that the citation contained in the record lists Linton Road as Hale’s residential address. Thus, we cannot infer based on the facts conceded that Hale was misleading the officers at this spe cific point

. T he testimony concerning this factor was largely conclusory and does
not sufficient ly indicate exactly when or if Hale’s untruthfulness manifested prior to the stop’s prolon gment

. W hen question ed by the trial court c oncerning his
statements to Officer Hempel to “take [his] time” while writing the original
citation , Detective Hazelwood testified as indicated below :

Trial Court : So, Detective, are you saying that it was your belief that . . . you all could keep this man as long as you wanted to at this point? Detective Hazelwood : Yes, ma’am. Trial Court : And why is that? Detective Hazelwood : Um, b ecause I was conducting basically a Terry stop for purposes of a narcotics investigation. I believed that he was , uh, engag ing in narco tics trafficking.- 21

- Trial Court : And that’s because of what you saw at the, on the street and at the house? Detective Hazelwood : Yes, ma’am. After the conclusion of Detective Hazelwood’s direct examination,
the trial court further questioned :

Trial Co urt : So, if this was a Terry stop, uh, could you have kept him for a long time and just waited for the K

- 9 to get there? Detective Hazelwood : Yes ma’am. Trial Court : Okay

. S o, and I think it was you that said on the tape, “take your time, not sure if the K

- 9 will make it?” Detective Hazelwood : Yes, ma’am

. Trial Court : Okay so if you could just wait until the K

- 9 got there, why would you have to say, “take your time, not sure if the K

- 9 will make it?” Detective Hazelwood : Just to make sure that the officers understood that we had, we had time to wait. That there wasn’t a rush to go up there and, uh, give a traffic citation and cut the , the occupant loose.
In its findings, the trial court expressed it was “concerned” and “troubled” by Detective Hazelwood’s testimony. We share those concerns particularly when Detective Hazelwood could not provide an answer reconciling
th is inconsistency

. Detective Hazelwood testified he maintained radio contact with the officers for updates during t he traffic stop , and the in formation regarding- 22

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Hale’s prior whereabouts was communicated to him by the officers at the scene. Detective Hazelwood further testified Hale’s dishonesty was a factor justify ing
detention on suspicion of drug trafficking but never indicated exactly when this

was obtained

. The inconsistency presented by Detective Hazelwood’s testimony cannot simply be ignored when nothing in the record can suppor t at least a reasonable inference Hale’s deception presented itself prior to Detective Hazelwood’s radioed statements to Officer Hempel

.

Th erefore , we hold the trial court’s finding that reasonable suspicion was secured prior to the traffic stop’s prolongment is unsupported by substantial evidence and clearly erroneous. We reve rse the trial court’s ruling and hold that all evidence seized from Hale’s vehicle must be suppressed. CONCLUSION Warrantless searches and seizures are presumed unconstitutional absent a recognized exception, and it is the burden of the Commonwealth to pr ove such an exception. The Commonwealth did not meet its evidentiary burden to overcome the presumption Hale’s detention and the subsequent warrantless search

w ere unconstitutional

. For the foregoing reasons, we reverse the trial court’s findings and rem and the case for further proceedings consistent with this O pinion.

ALL CONCUR

.- 23

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BRIEF FOR APPELLANT: Russell J. Baldani Whitney D. Rowe Lexington, Kentucky BRIEF FOR APPELLEE: Daniel Cameron Attorney General of Kentucky Matthew F. Kuhn Solicitor General Rachel A. Wright Assistant Solicitor General Frankfort, Kentucky