MODIFIED DECEMBER 16, 2021

RENDERED: SEPTEMBER 30, 2021

TO BE PUBLISHED

Supreme Court of Kentucky

2020-SC-0058-DG

COMMONWEALTH OF KENTUCKY APPELLANT

ON REVIEW FROM COURT OF APPEALS

V. NO. 2019-CA-0140

FAYETTE CIRCUIT COURT NO. 17-CR-00668

IKIA ANDERSON CLAYBORNE APPELLEE

OPINION OF THE COURT BY JUSTICE KELLER

AFFIRMING

I. BACKGROUND

Just before midnight on April 21, 2017, Officer Ryan Nichols of the 

Lexington Community Law Enforcement Action Response Unit (CLEAR Unit)1

was patrolling the East side of Lexington. While out, Officer Nichols saw an 

idling vehicle pulled to the side of the road. A pedestrian was talking to its two 

occupants by the driver’s side window. When the pedestrian saw the police 

vehicle, he walked away from the car. The car began driving again and turned

onto Third Street. Officer Nichols followed the car and ran its license plate. The 

search on the vehicle’s plate uncovered a record for a suspended license and a 

 

1 The CLEAR Unit specializes in high-visibility, proactive policing.
2

“verify for proof of insurance” associated with the vehicle’s owner. With this 

information, Officer Nichols turned on his emergency lights and initiated a 

traffic stop on the vehicle at Third Street and Broadway.

Officer Nichols approached the vehicle and asked the driver, Robert 

Spillman (Spillman), for his license and registration. He asked the passenger of 

the vehicle, Ikia Clayborne (Clayborne), for identifying information as well. After 

running both parties’ information for warrants and jail records, Officer Nichols 

found that Spillman had a suspended license, and that both Spillman and 

Clayborne had former narcotics charges. Officer Nichols testified that upon 

discovering their former charges, he requested a K-9 unit to come and search 

the scene.

By the time the K-9 Unit arrived ten minutes later, Officer Nichols had 

only completed up to the narrative portion of Spillman’s citation. However, he 

abandoned writing the citation, exited his vehicle, informed the K-9 Unit of 

what led him to call it to the scene, asked Spillman and Clayborne to exit the 

vehicle, and explained the search procedure to Spillman and Clayborne as they 

stood by his car. Then, he waited with Spillman and Clayborne while the K-9 

Unit sniff-searched the vehicle. Officer Nichols attests that Spillman and 

Clayborne were cooperative for the duration of the stop.

Approximately two minutes into the dog sniff, the dog alerted. Officer 

Nichols and Officer Harris, another officer serving with Nichols that night on 

the CLEAR Unit, then searched the vehicle. In that search, Officer Harris found 
3

a baggie containing cocaine on the ground outside of the front passenger-side 

door. It is not clear how it came to be on the ground.

After Officer Harris seized the cocaine, Officer Nichols completed 

Spillman’s citation, wrote out a citation for Clayborne, and arrested Clayborne. 

Clayborne was charged with first-degree possession of cocaine. He 

subsequently pleaded not guilty.

On August 1, 2017, Clayborne filed a motion to suppress the evidence of 

cocaine, claiming that he was illegally detained at the scene. At a hearing on 

the motion, Clayborne also argued that the police did not have reasonable, 

articulable suspicion to call the dog. The Commonwealth, on the other hand,

argued both that the officers had reasonable, articulable suspicion for the dog 

sniff and that Clayborne was not detained any longer than was necessary for 

the purpose of the stop. Despite the parties’ arguments, the trial court focused 

its analysis on the validity of the stop itself. It noted that Officer Nichols was 

still writing the citation when the K-9 Unit arrived but did not clearly apply this 

fact in its analysis. The trial court determined that it was a valid stop, and that 

because the initial stop was valid, the evidence should not be suppressed. The 

trial court denied the motion from the bench, and subsequently issued a 

written order completely devoid of any additional findings of fact or conclusions 

of law.

On May 9, 2018, six months before Clayborne’s trial, Clayborne filed a 

motion to reconsider the suppression issue. In that motion, Clayborne cited 

two cases decided by the Kentucky Supreme Court since his original motion to 
4

suppress: Moberly v. Commonwealth, 551 S.W.3d 26 (Ky. 2018) and 

Commonwealth v. Smith, 542 S.W.3d 276 (Ky. 2018). Clayborne argued in the

motion that these cases required that the evidence seized as a result of the K-9 

search be suppressed. At a subsequent hearing, the Commonwealth argued 

that “the appropriate remedy” would be to preserve the suppression issue for 

appeal, but requested time to respond to the motion. The trial court granted 

the Commonwealth’s request for time to respond. 

In its brief, the Commonwealth argued that the cases cited by Clayborne 

were distinguishable because Officer Nichols’s stop was not extended to 

accomplish the dog sniff. Clayborne’s response reiterated that the purpose of 

the stop was abandoned without introduction of new reasonable and 

articulable suspicion of criminal activity, and therefore “weaken[ed]” 

Clayborne’s Fourth Amendment protections. One week after these briefs were

submitted, the trial court issued a written order denying the motion to 

reconsider without making any findings of fact or conclusions of law to justify 

the denial. Clayborne was later convicted at trial and sentenced to one year in 

prison, probated for one year.

Clayborne appeals the trial court’s ruling on his motion to suppress. He 

argues that it was error for the court to deny his motion in light of the 

precedent of the Kentucky Supreme Court and United States Supreme Court, 

asserting that no reasonable articulable suspicion existed to permit the K-9 

Unit search and that the search unconstitutionally extended the traffic stop in 

violation of his Fourth Amendment rights.
5

II. STANDARD OF REVIEW

“When reviewing a trial court’s ruling on a motion to suppress, the 

findings of fact are reviewed under a clearly erroneous standard, and the 

conclusions of law are reviewed de novo.” Moberly, 551 S.W.3d at 29 (citing 

Davis v. Commonwealth, 484 S.W.3d 288, 290 (Ky. 2016)). For motions to 

suppress the fruits of a warrantless search, “[t]he Commonwealth bears the 

burden of establishing the constitutional validity” of that search. 

Commonwealth v. Lane, 553 S.W.3d 203, 206 (Ky. 2018). The Rules of Criminal 

Procedure (RCr) govern motions to suppress evidence and require the trial 

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

also CR 52.01. For motions to suppress, these findings must be “supported by

substantial evidence” or they will be held “clearly erroneous” on review. Turley

v. Commonwealth, 399 S.W.3d 412, 418, 420 (Ky. 2013) (citing Moore v. Asente, 

110 S.W.3d 336, 354 (Ky. 2003)). “Substantial evidence” means “evidence that 

when taken alone or in light of all evidence, has sufficient probative value to 

induce conviction in the minds of reasonable men.” Id. at 420 (citations and 

quotations omitted).

We have little to go on in our review of the facts. The trial court made no 

written factual findings at, or after, the motion to suppress hearing, and no 

findings at all (either written or oral) regarding the motion to reconsider. The 

limited factual findings stated by the trial court at the suppression hearing, as 

best as we can conclude from the trial court’s discussion before denying the 

motion, are:
6

1. Officer Nichols, Spillman, and Clayborne were “very pleasant, very 

cordial.”

2. Officer Nichols “found a suspended license . . . he got that information,” 

and therefore “had a valid reason to [initially] stop this vehicle.”

3. Officer Nichols “believed he had a basis for calling a K-9.”

4. Officer Nichols “didn’t even finish [the citation], didn’t even get to the 

narrative part.”

In an apparent contradiction, the trial court also stated on the record 

that Officer Nichols was “very candid about, after seeing what he saw on Ohio 

Street, thinking there may have been something there,” even though the trial 

court also subsequently stated that Officer Nichols “didn’t conclusively state” 

suspicions of any kind or his basis for suspecting criminal activity.

2 In sum, 

the trial court found that Officer Nichols had both failed to articulate suspicion, 

and had articulated suspicion. Because of the incongruity of these findings, we 

cannot state with any degree of certainty or definiteness whether the trial court 

found that Officer Nichols articulated suspicion.

In another paradox, the trial court implies that Officer Nichols’ 

abandonment of writing the citation to assist in a dog sniff was evidence that 

the stop was not prolonged, despite this Court’s precedent that has held

 

2 In fact, in the course of the hearing, Officer Nichols never stated that he 

suspected anyone of anything, short of implying as such from his call to the K-9 after 

the records search. The Commonwealth never directly addressed, either during Officer 

Nichols’ testimony or subsequently in argument, whether he was suspicious and why.

Instead, the Commonwealth at the close of the suppression hearing plainly stated “he 

had reasonable suspicion.” He is never asked, and never articulated, to that effect.
7

numerous times to the contrary. See, e.g., Turley, 399 S.W.3d 412; Davis, 484 

S.W.3d 288; Moberly, 551 S.W.3d 26; Lane, 553 S.W.3d 203; Commonwealth v. 

Mitchell, 610 S.W.3d 263 (Ky. 2020); Smith, 542 S.W.3d 276; Commonwealth v. 

Bucalo, 422 S.W.3d 253 (Ky. 2013).

Regarding whether the stop was extended and whether Officer Nichols 

had reasonable articulable suspicion, the trial court’s limited findings help us 

only marginally in our review. The trial court’s assumptions are at best 

partially irrelevant, wholly unsubstantiated, and ultimately contradictory on 

both issues. The record, therefore, does not contain findings which possess 

“sufficient probative value to induce conviction in the minds of reasonable 

men,” as is required. Turley, 399 S.W.3d at 420.

This Court faced a similar problem in Commonwealth v. Turley when the 

trial court made bare-bone, “fatally deficient” findings that contradicted parts 

of the record on one of the key facts related to whether a stop was prolonged.

Id. at 418. There, we reprimanded the lower court and called the findings 

“arbitrary,” “incomplete,” and “clearly erroneous.” Id. The Court, in lieu of using 

the lower court’s findings, relied upon the record itself to determine the 

relevant fact. Id. at 420.

Again, in Commonwealth v. Mitchell, this Court was faced with the 

failure of a trial court to make substantial factual findings on a motion to 

suppress evidence seized during an allegedly prolonged stop. 610 S.W.3d 263, 

272 (“The trial court heard this evidence but made no factual findings or 

conclusions of law on the record supporting or questioning the officers’ 
8

reasonable suspicion.”). There, the lower court’s “written order was sparse, 

stating only ‘considering the motion and testimony and arguments by counsel, 

the Motion is OVERRULED for the reasons stated on the record.’” Id. at 268. 

The order in Mitchell is nearly identical to the order of the trial court herein, 

and is in fact more detailed than the order issued on the motion to reconsider 

in the instant case.3 In Mitchell, while we held that “neither party argues the 

trial court’s limited findings of fact are clearly erroneous” and we therefore 

relied upon the record to determine whether or not the stop had been extended, 

we nonetheless remanded the issue of reasonable articulable suspicion to the 

lower court for further findings. Id. at 272.

As in Mitchell, the parties here do not appear to disagree about any facts 

elicited at the suppression hearing pertinent to this appeal. The parties seem to 

agree that the testimony of Officer Nichols at the suppression hearing 

accurately reflected the events of the night. As we did in both Mitchell and 

Turley, despite the lack of factual findings by the trial court and absent 

dispute, we assume the testimony from the suppression hearing is accurate 

and use the facts elicited during that testimony as the basis for our analysis.

 

3 Here, the trial court’s original order stated, in relevant part, “The Court having 

heard the testimony and having given due consideration to the motion and for the 

reasons stated on the record; IT IS HEREBY ORDERED that the motion is 

OVERRULED.” 

The order on the motion to reconsider stated simply “IT IS FURTHER 

ORDERED that the Motion to Reconsider is OVERRULED.” Regarding the motion to 

reconsider, the court made no oral or written findings, despite an initial hearing and 

post-hearing briefs filed by both parties on the issue.
9

We therefore progress to review de novo the motion to suppress as a matter of 

law. Davis, 484 S.W.3d at 290.

III. ANALYSIS

1. The traffic stop was extended.

Police officers may not extend or prolong traffic stops without 

reasonable, articulable suspicion to conduct further criminal investigation. 

Rodriguez v. United States, 575 U.S. 348, 355 (2015). Officers who pursue 

other purposes instead of those associated with the original mission of the stop 

for any amount of time unconstitutionally prolong the stop. See Illinois v. 

Caballes, 543 U.S. 405, 408 (2005). Therefore, 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. See 

Carlisle v. Commonwealth, 601 S.W.3d 168, 176 (Ky. 2020) (citing Arizona v. 

Johnson, 555 U.S. 323, 333 (2009)). Steps taken in pursuit of securing the 

scene and ensuring officer safety must still relate back to the purpose of the 

stop or be pursued simultaneously with diligent work on its original purpose. 

Id.; Rodriguez, 575 U.S. at 349 (“The officer-safety interest . . . stem[s] from the 

danger to the officer associated with the traffic stop itself.”). In short: An officer 

must stay on-task, and assisting officers running simultaneous investigations 

must add no time.

There is no de minimus or reasonableness exception to this extension 

rule. Any unwarranted extension—no matter how short—without reasonable, 

articulable suspicion violates the Fourth Amendment. Davis, 484 S.W.3d at 
10

294. A stop may therefore last “no longer than is necessary to effectuate the 

purpose of the stop,” Florida v. Royer, 460 U.S. 491, 500 (1983), and even 

tasks pertaining to that purpose must be diligently pursued. Lane, 553 S.W.3d 

at 206; see also Rodriguez, 575 U.S. at 357.

Attending to a traffic violation and conducting a criminal investigation 

are two separate purposes. For example, pulling someone over and checking 

their license and registration are squarely within the objectives of issuing a 

traffic ticket. Id. at 355. A dog sniff, by contrast, is a criminal investigation 

unrelated to addressing a traffic violation. Id. (“A dog sniff . . . is a measure 

aimed at detecting evidence of ordinary criminal wrongdoing. . . . Lacking the 

same close connection to roadway safety as the ordinary inquiries, a dog sniff 

is not fairly characterized as part of the officer’s traffic mission.”); Lane, 553 

S.W.3d at 206 (“Obviously, a drug dog sniff search for illegal drugs falls outside 

the scope of routine traffic law enforcement.”); see also Indianapolis v. Edmond, 

531 U.S. 32, 40–41 (2000) (finding that a traffic checkpoint at which dogs 

walked around cars without individualized suspicion was “ultimately 

indistinguishable from the general interest in crime control” rather than 

constitutionally related to a traffic stop).

Dog sniffs are criminal investigations. The dissent claims that dog sniffs 

are legitimate investigative tools, and that their use does not rise to the level of 

a constitutionally cognizable infringement. See Caballes, 543 U.S. at 409. It is 

true that in a vacuum, dog sniffs are not violative of the Fourth Amendment, 

just as, in a vacuum, an encounter with a police officer on the street does not 
11

violate the Fourth Amendment. However, that says little about how, in practice, 

dog sniffs implicate the Fourth Amendment during an otherwise lawful traffic 

stop.

With few exceptions, because of its character as a task related to 

criminal investigations, conducting a dog sniff instead of traffic-related duties 

extends a stop conducted for the original purpose of addressing a traffic 

violation. See, e.g., Davis, 484 S.W.3d 288; Moberly, 551 S.W.3d 26; Lane, 553 

S.W.3d 203; Mitchell, 610 S.W.3d 263; Smith, 542 S.W.3d 276; Bucalo, 422 

S.W.3d 253; cf. Rhoton v. Commonwealth, 610 S.W.3d 273 (Ky. 2020). In fact, 

since Rodriguez, this Court has only once—in Rhoton v. Commonwealth—held

that a dog sniff on a vehicle originally stopped for a traffic violation was not an 

unconstitutional extension of the stop. 610 S.W.3d at 278–79.

In Rhoton, we held that the dog sniff was appropriate because “[a] new 

fact provided independent probable cause to extend the stop” to address 

Rhoton’s outstanding warrant. Id. Although the officers in Rhoton stopped the 

vehicle for a traffic infraction, the purpose of the stop shifted to a criminal 

investigation upon discovering Rhoton’s outstanding warrant. Id. at 279. The 

officers then were required to address the warrant by arresting Rhoton and 

conducting the criminal investigation necessary to address any potentially 

active criminal activity pursuant to that warrant. See id. The officers likewise 

had “an independent reason to maintain control of the scene given this new 

information” warranting enhanced security measures. Id. By recognizing this 

new criminal purpose distinct from the traffic stop’s original purpose, the 
12

officers in Rhoton permissibly abandoned their original purpose and conducted 

a dog sniff. Id. Our holding in Rhoton is essential for ensuring that officers may 

diligently and safely pursue new investigative purposes as they arise.

This Court’s decision in Rhoton more firmly established the line between 

criminal and traffic-related investigations that was drawn in Davis v. 

Commonwealth. 484 S.W.3d at 292. In Davis, an Appellant challenged the trial 

court’s denial of his motion to suppress evidence found following a dog sniff at 

a traffic stop. Id. at 290. There, the officer on duty “was aware of allegations 

that [Davis] was involved with illegal drugs.” Id. When Davis drove by, the 

officer followed him. Id. After Davis drove over the center line, the officer pulled 

him over. Id. Following a field sobriety test and breath test (both of which Davis 

passed), the officer performed a dog sniff on the exterior of the vehicle. Id. at 

291. The dog alerted. Id. Upon a search, the officer found what appeared to be 

methamphetamine, and Davis was arrested. Id. Davis alleged that the dog sniff 

was an unlawful extension “beyond [the traffic stop’s] original purpose.” Id.

We held in Davis that the officer unconstitutionally extended the stop by 

performing a dog sniff. Id. at 292. In Davis, this Court shifted its inquiry from 

“the duration of Appellant’s roadside detention” to “whether the sniff search 

was related to the purpose for which Appellant was stopped.” Id. at 294. Even 

so, this Court maintained that ultimately the “critical question” was whether 

the search “adds time to” the stop. Id. at 293.

We ultimately found that “the only reason for the sniff search was to 

discover illegal drugs,” and that this was “clearly beyond the purpose” of a DUI 
13

stop, even though the Commonwealth argued that finding out whether or not 

someone is under the influence is related to a search for drugs that may have 

put the driver under the influence. Id. at 294. This Court did not find the 

Commonwealth’s argument persuasive; instead, we held that by conducting the 

dog sniff, the officer “shifted to a new and different purpose.” Id. The evidence 

therefore should have been suppressed. Id.

Again, in Smith, we considered whether a traffic stop was unreasonably 

prolonged by a dog sniff. 542 S.W.3d at 281. In Smith, an officer who had prior 

knowledge of Smith’s suspected narcotics dealing followed Smith until Smith

failed to use a turn signal, prompting the officer to call a K-9 unit to intercept 

and pull him over. Id. at 278–79. Smith was “cooperative, but nervous” when 

he was confronted. Id. at 279. The K-9 officer proceeded to run a dog sniff 

around his vehicle. Id. Drugs were found, and Smith was then arrested. Id. The 

whole encounter took only eight minutes. Id. In reviewing the motion to 

suppress that evidence, this Court held that the officer “abandoned the 

legitimate purpose of issuing a traffic citation because he immediately asked 

[Smith] about drugs and launched the dog’s sniff search.” Id. at 282. The shift 

from traffic citation work to a criminal investigation, absent anything that 

could have “transformed the situation from a routine stop . . . into a drug 

trafficking case,” necessitated this Court’s holding that the stop was 

unconstitutionally extended. Id. at 284.

In one of our most recent cases on this issue, Commonwealth v. Mitchell, 

this Court again considered the validity of a traffic stop interrupted by a dog 
14

sniff. 610 S.W.3d at 265. We found that because the original purpose of the 

stop was correcting a traffic violation, extending the stop to conduct a dog sniff 

absent any intervening independent cause was unconstitutional. Id. at 268 (“It 

was unrefuted that the officers deferred the completion of the stop beyond its 

original purpose to discuss then request a canine search.”). We held that even 

inter-officer conferences for training purposes, to the extent that they add time 

to a stop, must be pursued diligently so as to not unreasonably prolong 

detention. Id. at 270. 

We also stated, however, that concurrent operations may provide an 

exception to our no-extension rule: “When it comes to pursuing unrelated 

investigative issues, officers must be able to do so while simultaneously 

completing the purpose of the stop.” Id. Had one officer continued issuing the 

citation while another officer simultaneously conducted a dog sniff, that search 

would have been permissible. Id.; see also Lane, 553 S.W.3d at 206 (“Without 

evidence that the traffic stop mission was being diligently pursued . . . we 

cannot say that the sniff search was conducted concurrently with the traffic 

stop and thus did not prolong the stop . . . .”); but cf. Moberly, 551 S.W.3d at 

29 (describing the unconstitutional dog sniffs in Rodriguez and Davis as 

“concurrent” as they took place during the course of a traffic stop)

4; Davis, 484 

 

4 Moberly’s singular use of the term “concurrent” is misleading. The facts in 

Moberly led the Court to conclude that the stop was extended by a call made to 

request a K-9 unit, not that the dog sniff was done simultaneous with tasks pertinent 

to the mission of the traffic stop. Rather than “operating at the same time,” the Court 

instead intended to convey that the dog sniff occurred during the course of events 

initiated by a traffic stop. Concurrent, BLACK’S LAW DICTIONARY (11th ed. 2019).
15

S.W.3d at 292 (overruling the holding from Johnson v. Commonwealth, 179 

S.W.3d 882 (Ky. 2005) that “[a]s 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.”). 

To the extent that language from our precedent may be read to imply 

otherwise, such a reading is inaccurate. The United States Supreme Court 

determined in Illinois v. Caballes that a dog sniff executed concurrently with 

diligent traffic-related work did not unduly prolong the stop, even absent 

independent justification for the dog sniff. 543 U.S. 405, 409 (2005). While 

Caballes preceded the Court’s decision in Rodriguez, the Rodriguez Court 

explicitly cited to and acknowledged its prior ruling in Caballes, stating that 

“[t]he Fourth Amendment may tolerate certain unrelated investigations that do 

not lengthen the roadside detention.” Rodriguez, 575 U.S. at 349 (citing 

Caballes, 543 U.S. at 407). 

We acknowledge that the rule we clarify today prioritizes the length of a 

burden on personal liberty over the depth of its intrusion. This choice is a 

conscious one, in line with the United States Supreme Court’s precedent, that 

serves to balance the competing interests in the Fourth Amendment and in 

safe, effective, and proactive policing.

We are bound by the holdings in Rodriguez and Caballes to permit 

criminal investigations at traffic stops where they add no time, or where a new 

purpose is established by reasonable, articulable suspicion. In this case, 

however, the Commonwealth did not meet its burden to establish that either 
16

the stop was not extended because the dog sniff was simultaneous to trafficrelated work, or Officer Nichols had reasonable, articulable suspicion to call the 

K-9 unit.

Taking Officer Nichols’ testimony as undisputed, we must conclude that 

he abandoned writing the traffic citation before completing it in order to aid in 

a criminal investigation via dog sniff. The Commonwealth does not dispute this 

fact. Instead, unlike in Rhoton, the Commonwealth offers no evidence that a 

new and independent reason to address an active crime emerged during Officer 

Nichols’ traffic work. In fact, Officer Nichols, the Commonwealth, and the trial 

court all state explicitly that Officer Nichols stopped working on the traffic 

citation before completing it, aided in the dog sniff, and then returned to 

complete the citation. Smith is directly on point: In both cases, an officer 

“abandoned the legitimate purpose of issuing a traffic citation . . . and 

launched the dog’s sniff search.” Smith, 542 S.W.3d at 282. As we held in 

Smith and absent facts to the contrary, we hold that the stop was extended 

here.

2. The Commonwealth failed to establish simultaneous missions that 

permitted the seizure.

As noted above, simultaneous work on a criminal investigation does not 

extend or prolong a traffic stop so long as the original purpose is being 

“diligently pursued.” Lane, 553 S.W.3d at 206. Officers may therefore diligently 

pursue “further steps to advance the mission of the traffic stop,” including 

taking information or securing a scene, simultaneous to other work. Id. For 
17

example, one officer may diligently secure a scene pursuant to a suspended 

license while another officer or officers call or assist a K-9 unit’s search.

Even accepting the dissent’s implicit argument that Officer Nichols was 

controlling and securing the scene simultaneous to the dog sniff, we would still 

be bound by our precedent to hold that on these facts, the stop was extended.

See Turley, 399 S.W.3d at 424. Where exigent circumstances necessitating 

officer safety stem from the officer’s own actions taken to extend the stop, the 

resulting seizure is improper. Id. Here, the circumstances necessitating Officer 

Nichols’s activities that may be seen as “securing the scene” (including moving 

Spillman and Clayborne, explaining the situation to the K-9 Unit, describing a 

dog sniff to Spillman and Clayborne, and standing by during the dog sniff) were 

a direct result of his call for a K-9 unit in the first place. See id. Prior to the K-9 

unit arriving, we must assume that Officer Nichols had control over the scene—

he testifies to that effect. By leaving his proper purpose behind to assist with a 

criminal investigation, and without any evidence offered by the Commonwealth 

that the criminal investigation was simultaneous with an officer diligently 

pursuing the original purpose of the stop, we must conclude that Officer 

Nichols unconstitutionally prolonged the stop by assisting in the sniff.

Regardless, the Commonwealth did not raise such an argument.

The dissent’s argument that the search was proper because the driver 

could not legally drive his car away due to a suspended license is misplaced, 

and again, the Commonwealth does not raise such an argument. In the instant 

case, the Commonwealth did not elicit testimony about Officer Nichols’ need to 
18

move the vehicle or find a new driver, as was the case in Carlisle v. 

Commonwealth, 601 S.W.3d 168. There, an officer directed a car off the road to 

a safe location after finding that the driver had a suspended license. While the 

officer secured the vehicle, the driver consented to a search and drugs were 

found. Id. A search by dog was not employed.

In Carlisle, we held that the stop was not extended for the search 

because the lawful purpose of the stop—addressing a suspended license—had 

not been completed, and during the completion of the purpose of the stop, the 

officer gained consent to search. Id. at 176. The Court in Carlisle did not 

address whether the request to get consent to search the vehicle—or the search 

itself—extended the stop, since neither party alleged that it had or had not. Id. 

Instead, the Court was tasked with determining whether the “lawful traffic stop 

had . . . concluded at the time consent was obtained to search the truck,” since 

Carlisle was already told that he would not receive a citation. Id. at 176. The 

Court held that Carlisle was not unlawfully detained past the purpose of the 

stop when the officer got consent to search. Id.

The case we decide today is highly distinguishable from Carlisle. This 

matter concerns a non-consensual dog sniff that halted law enforcement’s 

pursuit of their traffic mission. Carlisle involved no dog sniff, and the search in 

question occurred consensually during an officer’s pursuit to secure the scene. 

We know that the officer in Carlisle was securing the scene because he testified 

to that effect; here, no evidence on the record shows that Officer Nichols was 

securing the scene. 
19

Instead, the testimony reveals that Officer Nichols stopped diligently 

pursuing the purpose of the stop to conduct a criminal investigation. Even

work performed to secure the scene must remain on-task. Although Clayborne 

and Spillman may not have been able to drive the car away, their detention was 

still extended because all officers attended to the criminal investigation and no 

officers attended to the traffic citation. Contrary to Carlisle, no evidence herein

suggests that the scene was being secured pursuant to the suspended license. 

“Without evidence that the traffic stop mission was being ‘diligently pursued,’ . 

. . we cannot say that the sniff search was conducted concurrently with the 

traffic stop and thus did not prolong the stop beyond what was reasonably 

required to conduct the traffic stop.” Lane, 553 S.W.3d at 206. Absent such 

evidence and given such disparate factual and legal issues, we cannot hold that 

Carlisle determines this case.

A driver’s suspended license does not append an officer’s duty to work 

diligently towards the purpose of the stop. At least three officers and one 

trained narcotics animal attended the scene of Clayborne’s ultimate arrest. If 

even one of those officers had continued diligently working on the issues 

related to the traffic stop, the seizure of evidence may have been proper. 

Instead, the Commonwealth has provided nothing on the record through 

testimony and questioning to indicate that anyone kept working on the traffic 

stop. In fact, to the contrary, each officer stopped their work on the citation 

and instead directed their time and attention toward conducting a dog sniff and 

securing the scene in order to conduct the search. To reiterate, “the 
20

Commonwealth bears the burden of establishing the constitutional validity of a 

warrantless search.” Id. In the instant case, we cannot conclude that the 

Commonwealth met its burden of establishing that the stop was not extended

and therefore valid. Id.

3. The Commonwealth did not meet its burden of establishing 

reasonable, articulable suspicion.

As noted, when a stop is prolonged, subsequent seizures may still be 

proper if the officer had reasonable, articulable suspicion to shift to a criminal 

investigation. Moberly, 551 S.W.3d 26, 31 (Ky. 2018). The reasons for suspicion 

must be articulated with specificity so that a court may assess whether, on the 

totality of circumstances, the suspicion was reasonable. Id. (citing United 

States v. Cortez, 449 U.S. 411, 417 (1981)); Terry v. Ohio, 392 U.S. 1, 21 n.18 

(1968). Although “due weight is given to specific reasonable inferences,” a 

reasonable, articulable suspicion must be “more than an unparticularized 

suspicion or hunch.” Id. at 27; Moberly, 551 S.W.3d at 31. Although criminal 

history may be a weighty factor in the totality of circumstances, “mere charges 

do not constitute a ‘criminal history’ upon which one might reasonably suspect 

future criminal behavior.” Id. at 33.

Reasonable, articulable suspicion presupposes that such suspicion is 

actually articulated by the officer in question. Moreover, under our precedent, 

the officer’s articulation must be specific and particularized. Id. at 31. In the 

absence of that articulation, either explicitly by Officer Nichols or by the trial 

court, and in the interest of judicial economy, we are left to fill in the gaps with 

inferences about what specifically the officer found suspicious, and why.
21

In the past, this Court has not found reasonable, articulable suspicion 

where a subject had a history of criminal charges, was abnormally nervous, 

persistently looked to one side of his vehicle, and blew smoke into his car while 

sweating profusely. Mitchell, 610 S.W.3d at 272. We did not find it where an 

officer “was aware of allegations that Appellant was involved with illegal drugs” 

and had discussed the involvement that day with another officer, and 

additionally the subject stated that “several people had recently used his car, 

and he did not know what was in it” and had an open can of beer in his car, 

smelling of alcohol. Davis, 484 S.W.3d at 290-91. We did not even find 

reasonable, articulable suspicion where two officers had collective knowledge of 

a subject’s probable current narcotics dealings (including a credible tip with 

locations, aliases, and vehicles used to deal), the subject was paroled for past 

narcotics offenses, and he exhibited nervousness during the stop. Smith, 542 

S.W.3d at 283–84.

Here, the Commonwealth drew from Officer Nichols’ testimony that he 

saw someone at a car late at night who walked away upon seeing a police 

vehicle, that the car then began driving, that the driver had a suspended 

license, and that both occupants had prior narcotics charges. Officer Nichols 

stated that he saw “nothing transactional” about the interaction at the car. It 

was repeated at the trial court that all parties—Officer Nichols, Spillman, and 

Clayborne—were cooperative and cordial. In totality, the Commonwealth’s 

elicited testimony about a car-side conversation, suspended license, and past 

criminal charges—absent any explanation of why the officer was suspicious, or 
22

even the officer’s own admission that he was suspicious of ongoing criminal 

activity—does not rise to the level of reasonable suspicion of current criminal 

activity when compared to our prior caselaw.

Simply put, the Commonwealth failed to meet its burden to show

reasonable, articulable suspicion at the suppression hearing. The trial court’s 

contradictory findings on this point show as much. We therefore cannot 

conclude that Officer Nichols had reasonable articulable suspicion to conduct a 

dog sniff of Spillman’s vehicle.

IV. CONCLUSION

Because we hold that the stop was extended, and because that 

extension was not justified by reasonable, articulable suspicion, we therefore 

affirm the Court of Appeals.

All sitting. Minton, C.J.; Hughes, Keller and Nickell, JJ., concur. 

Conley, J., dissents by separate opinion in which Lambert and VanMeter, JJ., 

join. 

CONLEY, J., DISSENTING: With due respect to the majority of my 

colleagues, I cannot acquiesce in the majority opinion. I believe because the 

traffic stop was legitimate at its inception and the law gives Officer Nichols the 

authority to prevent Spillman’s vehicle from being unlawfully driven, the dog 

sniff did not prolong the traffic stop. This conclusion fits squarely within 

Carlisle’s framework. 601 S.W.3d at 176. The majority opinion’s distinctions 

against Carlisle’s application are unpersuasive before this simple truth:

“[p]reventing [Spillman and Clayborne] from driving off without a license is 
23

lawful enforcement of the law, not unlawful detention.” United States v. Vargas, 

848 F.3d 971, 974 (11th Cir. 2017). Combined with the fact that a dog sniff is a 

legitimate investigative tool and was conducted properly on the exterior of 

Spillman’s vehicle, “[a]ny intrusion on [Clayborne’s] privacy expectations [do]

not rise to the level of a constitutionally cognizable infringement.” Caballes, 

543 U.S. at 409. 

I respectfully dissent.

Lambert and VanMeter, JJ., join. 

COUNSEL FOR APPELLANT:

Daniel J. Cameron

Attorney General of Kentucky

James Coleman Shackelford

Assistant Attorney General

COUNSEL FOR APPELLEE:

Erin Hoffman Yang

Assistant Public Advocate

Department of Public Advocacy
Supreme Court of Kentucky

2020-SC-0058-DG

COMMONWEALTH OF KENTUCKY APPELLANT 

V. 

ON REVIEW FROM COURT OF APPEALS

NO. 2019-CA-0140

FAYETTE CIRCUIT COURT NO. 17-CR-00668 

IKIA ANDERSON CLAYBORNE APPELLEE 

ORDER GRANTING PETITION FOR MODIFICATION

The Petition for Modification, filed by the Appellant, of the Opinion of the 

Court, rendered September 30, 2021, is GRANTED and the attached modified 

Opinion of the Court is hereby ORDERED SUBSTITUTED for the Opinion 

originally rendered. This modification does not affect the holding of the original 

Opinion.

All sitting. All concur.

ENTERED: December 16, 2021.

_______________________________________

CHIEF JUSTICE