RENDERED: DECEMBER 2, 2022; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2020-CA-1525-MR

LEWACO LEYULTEE CLAY APPELLANT 

v. 

APPEAL FROM FAYETTE CIRCUIT COURT

HONORABLE KIMBERLY N. BUNNELL, JUDGE

ACTION NO. 20-CR-00519

COMMONWEALTH OF KENTUCKY APPELLEE 

OPINION

AFFIRMING

**   **  **

BEFORE: JONES, LAMBERT, AND K. THOMPSON, JUDGES.

JONES, JUDGE: Lewaco Leyultee Clay appeals the final judgment of the Fayette 

Circuit Court following the court’s denial of his motion to suppress incriminating 

evidence seized during an investigatory stop. Clay entered a conditional guilty 

plea to an amended charge of convicted felon in possession of a firearm and a 

charge of first-degree possession of a controlled substance predicated on the 
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evidence seized. For the reasons stated herein, we affirm the trial court’s denial of 

the suppression motion and the subsequent judgment.

I. BACKGROUND

Lexington Police Sergeant Joshua Yar conducted surveillance of an 

apartment building located at 734 North Broadway in Lexington, Kentucky where 

he observed multiple individuals coming and going. Based on prior department

investigations and his own observations, he suspected that drug activity was 

occurring on the premises. On April 27, 2020, Sergeant Yar spoke with the lessor 

of the property, Rick Reynolds, who indicated he received complaints from tenants 

regarding excessive foot traffic from non-tenants on the property. Reynolds also 

indicated a tenant who resided in apartment unit three reported he was forced out 

by a reported drug dealer going by the name “Capone.” Reynolds requested 

assistance from Sergeant Yar in removing trespassers from the property and 

provided him a “rent roll” listing the names of each of the apartment’s tenants

along with a text message containing a photograph of the individual believed to be 

“Capone.” 

That same day, Sergeant Yar shared the information and photograph

from Reynolds with Officer Joseph Schiff, and they, along with other Lexington 

police officers, investigated the property at 734 North Broadway. Soon after 

arriving, Officer Schiff, who was wearing a body camera, approached Clay who 
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was standing outside apartment three. Officer Schiff tried to question Clay outside 

the apartment, but Clay was not receptive. He turned his back on Officer Schiff 

and proceeded to enter apartment three, leaving the door open behind him. While 

Clay was entering the apartment, Officer Schiff, implored: “Hold up, man. Hey, 

I’m talking to you. I’m talking to you. Get back here.” Officer Schiff then 

walked forward within view of the inside of the apartment’s open threshold, where 

he could see Clay and the individual known as “Capone” inside. 

Officer Schiff instructed both men to exit the apartment. “Capone,” 

who identified himself as Antonio Winn, was placed in handcuffs. Clay was told 

to sit down outside of apartment three; he was later moved to the front of the 

apartment building where he was also placed in handcuffs. After Clay noticed a 

female acquaintance, he asked Officer Schiff to give his backpack to her. When 

Officer Schiff asked if it contained anything that would “stick” or “poke” him, 

Clay told him to “dump” its contents. Officer Schiff emptied the contents of the 

backpack and discovered a plastic bag containing crack cocaine. Clay was placed 

under arrest, and a further search of the backpack’s contents uncovered a scale 

with residue, a loaded handgun, and over $200 in cash.

On June 29, 2020, Clay was indicted for being a convicted felon in 

possession of a handgun, first-degree possession of a controlled substance, thirddegree criminal trespassing, and being a second-degree persistent felony offender. 
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Clay filed a motion to suppress the evidence seized from his backpack. At the 

evidentiary hearing, Sergeant Yar and Officer Schiff testified, and excerpts of 

police body camera video were played. The trial court denied the motion with oral 

findings and entered a written order on September 18, 2020. Clay entered a 

conditional guilty plea, preserving his right to appeal the denial of his motion to 

suppress. This appeal followed.

II. STANDARD OF REVIEW

A review of a decision on a suppression motion is a twofold analysis. 

First, the factual findings of the lower court are conclusive if based on substantial 

evidence and subject to reversal based upon clear error. King v. Commonwealth, 

332 S.W.3d 97, 100 (Ky. App. 2010). Second, the lower court’s application of the 

law as to its findings of fact are reviewed under a de novo standard. Id. We 

review the issues raised in this appeal under this standard.

III. ANALYSIS

Clay argues that police unlawfully detained him based on information 

that amounted to an uncorroborated anonymous tip when the detention was 

initiated, and as a direct result, any subsequent consent to search his belongings 

was tainted. In making our analysis, we first examine the nature of the tip obtained 

by police before reviewing the direct circumstances of Clay’s detention on scene.
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Clay argues that his detention was based on information that 

amounted to an uncorroborated anonymous tip because the original source, the 

tenant of apartment three, was not on the premises at the time of the investigation 

and never spoke with law enforcement directly. The nature of whether a tip or 

report originates from a known or anonymous source determines its “presumption 

of reliability.” Commonwealth v. Kelly, 180 S.W.3d 474, 477 (Ky. 2005) (citation 

omitted). Identifiable sources are entitled to a greater “presumption of reliability” 

as opposed to an unknown “anonymous” source. Id. Factors such as “veracity, 

reliability[,] and basis of knowledge are all highly relevant in determining the 

value of [a] report.” Id. (internal quotation marks omitted) (quoting Illinois v. 

Gates, 462 U.S. 213, 230, 103 S. Ct. 2317, 2328, 76 L. Ed. 2d 527 (1983)). 

Another relevant factor includes the possibility for an informant to face 

accountability in the event the information proves to be inaccurate. Id.

(citing Florida v. J.L., 529 U.S. 266, 120 S. Ct. 1375, 146 L. Ed. 2d 254 (2000)).

We do not agree with the characterization that the information relayed 

to the police in this matter amounted to an anonymous tip. The tip’s original 

source was readily identifiable to police because he was directly known to 

Reynolds by name, and he was specifically identified to Sergeant Yar who relayed 

the information to Officer Schiff. See Kelly, 180 S.W.3d at 477 (holding a call 

made from unnamed employees of a specifically identified Waffle House “raise[d] 
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a strong presumption that [they] could likely be located in the event that their tip 

was determined to be false[.]”). Thus, due to the original source’s specifically 

known identity, he was more akin to a citizen informant. See Hampton v. 

Commonwealth, 231 S.W.3d 740, 745 (Ky. 2007) (emphasis added) (“Citizen 

informants are tipsters who have face-to-face contact with the police or whose 

identity may be readily ascertained.”). Additionally, in this case, law 

enforcements own observations of excessive foot traffic at the apartment building 

were consistent with the tenants concerns about drug activity. 

Clay argues that the tenant of apartment three was never directly 

contacted by investigators during or after their arrival at the scene. While Officer

Schiff testified attempts were made, this ultimately has no bearing on the 

justification for the initiation of Clay’s detention as the officer’s judgment is 

evaluated based on his knowledge at the time the detention began. See J.L., 529 

U.S. at 271, 120 S. Ct. at 1379 (“The reasonableness of official suspicion must be 

measured by what the officers knew before they conducted their search.”). 

The source’s basis of knowledge was also readily apparent as he was 

the rightful possessor and previous occupant of the apartment in which criminal 

activity was allegedly occurring. The information’s reliability was bolstered by 

Reynolds who affirmed and corroborated the tenant’s leasehold of the unit with 

written documentation in the form of the “rent roll.” The original source of the 
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information was therefore afforded the “presumption of reliability” as it was 

provided by a known informant. Having established the tip’s presumptive 

reliability, we now turn to the facts of Clay’s detention. 

It is long settled under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L.

Ed. 2d 889 (1968), that police officers may initiate a detention if supported by 

reasonable articulable suspicion of criminal activity. Reviewing the 

reasonableness of what have been named “Terry stops” is a dual analysis where it 

must be determined if the officer’s stop was “justified at its inception” and if the 

scope of it was reasonable in relation to the circumstances “which justified the 

interference in the first place.” Id. at 19-20, 88 S. Ct. at 1879. The facts and 

circumstances providing the basis for the stop must be examined in their totality 

when determining if it was based on reasonable suspicion. Kelly, 180 S.W.3d at 

477 (citing Alabama v. White, 496 U.S. 325, 330, 110 S. Ct. 2412, 2416, 110 L.

Ed. 2d 301 (1990)). A reviewing court should not consider each factor relied upon 

by police in isolation and should give due regard to their inferences and deductions 

reached based upon their experience and training. Baltimore v. Commonwealth, 

119 S.W.3d 532, 539 (Ky. App. 2003) (citation omitted).

Clay argues his detention began the instant Officer Schiff told him to 

“hold up” during his entry into apartment three while the trial court and the 

Commonwealth reference the moment in which he was instructed to “sit down”
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after exiting. For purposes of this decision, it is not dispositive as to exactly when 

Clay’s detention began because the police possessed the requisite basis to initiate a 

stop in both instances.

When Officer Schiff first approached Clay, he was seen at a location

suspected of recurring drug activity. See Illinois v. Wardlow, 528 U.S. 119, 124, 

120 S. Ct. 673, 676, 145 L. Ed. 2d 570 (2000) (“[W]e have previously noted the 

fact that [a] stop occurred in a ‘high crime area’ among the relevant contextual 

considerations in a Terry analysis.”); Fletcher v. Commonwealth, 182 S.W.3d 556 

(Ky. App. 2005) (subject was detained after he was surveilled for ten minutes at a 

house suspected of drug activity in a high crime neighborhood). Additionally, 

Clay was observed occupying an area in which there were reports of trespassing 

directly outside an apartment unit reportedly occupied on an unlawful basis by an 

armed drug dealer. See Gray v. Commonwealth, 150 S.W.3d 71, 74 (Ky. App. 

2004) (“Trespassing and loitering, being minor criminal activity, alone provide 

sufficient reasonable suspicion for an officer to stop and question a subject.”). 

Officer Schiff testified that soon after contact was initiated Clay stated

that he lived at apartment three. Immediately thereafter, based on the body camera 

footage, Clay gave a contradictory answer indicating he was there to see Winn 
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whom he specifically referred to as “Capone.”

1

 See Williams v. Commonwealth, 

364 S.W.3d 65, 70 (Ky. 2011) (citation omitted) (association “with a person who is 

independently engaged in criminal activity” is a factor that “can be considered in 

determining . . . whether reasonable, articulable suspicion exists for a Terry stop.”). 

Clay’s specific mention of “Capone,” coupled with the “rent roll” not listing either 

subject as tenants, provided independent corroboration of Reynold’s tip. Clay then 

proceeded to enter the apartment in a manner the trial court found to be “a little 

evasive.” See Wardlow, 528 U.S. at 124, 120 S. Ct. at 676 (“[N]ervous, evasive 

behavior is a pertinent factor in determining reasonable suspicion.”); see also

Commonwealth v. Banks, 68 S.W.3d 347, 350 (Ky. 2001). Alternatively, if the 

detention began after Clay exited apartment three and was told to “sit down,” an 

articulable suspicion was still established based on the immediately preceding 

reasons discussed as well as Officer Schiff’s observation of “Capone” inside the 

apartment which provided further corroboration of Reynold’s tip. 

Clay argues that his presence at the scene, refusal to listen to Officer 

Schiff, and association with a subject engaged in criminal activity would not each

provide sufficient cause to detain him. However, this argument fails because it 

1 Police body camera footage of this moment was played into the record at the hearing, but it is 

difficult to discern what is exactly being said from a review of the video record. The original

footage itself was not submitted into the record as an exhibit, and the trial court’s finding is not 

clearly erroneous based on what can be discerned. 
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neglects to consider the factors in their totality. See Baltimore, 119 S.W.3d at 539. 

When weighed cumulatively, all these factors establish an articulable suspicion of 

criminal activity that would justify a Terry stop of Clay, namely, that he was

potentially engaging in criminal trespassing with the purpose of participating in

drug activity. 

Clay cites to the unpublished decision in Commonwealth v. Stephens, 

No. 2006-SC-000305-DG, 2008 WL 2167980 (Ky. May 22, 2008), for support. In 

Stephens, during nighttime surveillance of an apartment building known for drug 

trafficking, a Lexington police officer approached a female subject, Brandy 

Stephens, who he observed walking on the premises with a nervous demeanor. 

After the officer asked Stephens for her identifying information, he noticed a threeyear discrepancy between her provided age and date of birth. When a records 

search of the provided information yielded no criminal record, the officer warned 

of the criminal nature of providing a false name, but she maintained the 

information she provided was accurate. The officer continued his questioning and 

performed a second records check of a Florida database after she indicated she 

possessed a Florida driver’s license. Id. at *1-2. The Kentucky Supreme Court 

deemed the officer’s initial approach to have been a consensual encounter up to the

moments after the first conclusion of his records check. While noting it to be a 

“close call,” the Court ultimately declared an impermissible stop occurred when he 
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continued her questioning after he warned her about the penalties of giving a false 

name and she maintained the accuracy of the information. The Court reasoned that 

the officer needed an articulable suspicion at that moment, and without other 

factors such as evasive behavior, a nervous subject’s presence in a high crime area 

was not sufficient cause upon which to initiate a detention. Id. at *4-6.

We disagree that the facts in Stephens are sufficiently analogous

because, as previously discussed, there were additional articulable factors to justify 

Clay’s stop beyond his presence in a high crime area. Contrary to his argument, 

Clay’s entry into apartment three did not satisfy suspicions concerning his

legitimate presence at the scene because there was reasonable cause to believe the 

occupant allowing him to make entry did not possess lawful consent to do so. 

Instead, we perceive the circumstances discussed in Commonwealth v.

Fields, 194 S.W.3d 255 (Ky. 2006), as more applicable. In Fields, Lexington 

police approached a subject observed in the parking lot of an apartment complex 

with clearly posted signs forbidding trespassing and loitering while they were 

searching the neighborhood for a suspected drug dealer. After being observed 

turning away from the officers’ vehicle three times, police pulled up and called 

over to him twice before he ultimately approached them. He was questioned as to 

his purpose on the premises, and he answered that he was visiting “his people” but 

was unable to provide specific names and addresses of any residents thereby 
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resulting in his arrest for criminal trespassing. Id. at 255-56. Like the suspect in 

Fields, Clay was observed behaving evasively in an area where officers reasonably 

suspected he did not have a lawful right to be, and he could not provide a clear 

answer establishing a legitimate purpose for being there. 

Finally, Clay argues that any consent to search his bag was tainted due 

to the asserted groundlessness to detain him. Having established there was 

sufficient grounds, the consent to search his bag was not tainted as a result. 

IV. CONCLUSION

For the foregoing reasons, we affirm the judgment of the Fayette

Circuit Court.

LAMBERT, JUDGE, CONCURS.

THOMPSON, K., JUDGE, CONCURS IN RESULT ONLY.

BRIEFS FOR APPELLANT:

Jared Travis Bewley

Frankfort, Kentucky

BRIEF FOR APPELLEE:

Daniel Cameron

Attorney General of Kentucky

Courtney J. Hightower

Assistant Attorney General

Frankfort, Kentucky