RENDERED: MARCH 31, 2023; 10:00 A.M. TO BE PUBLISHED 

# Commonwealth of Kentucky Court of Appeals

NO. 2021

- CA

- 1404

- MR

DONNA WARFIELD APPELLANT

v. APPEAL FROM BOONE CIRCUIT COURT

HONORABLE JAMES R. SCHRAND, II, JUDGE

ACTION NO. 21

- CR

- 00205

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION AFFIRMING
**   **  **
BEFORE: ACREE, CETRULO, AND GOODWINE, JUDGES. ACREE, JUDGE: Appellant, Donna Warfield, appeals her judgement of conviction based on her conditional guilty plea, entered in the Boone Circuit Court on October 13, 2021 , reserving her right to appeal the court’s denial of her motion to suppress evidence. W e affirm.- 2

- BACKGROUND On February 3, 2021, at 2:09 p.m., Boone County Deputy Sheriff Teddy Melton observed a vehicle traveling a portion of interstate highway ; neither the driver nor the passenger was wearing seatbelts. Deputy Melton initiated a stop.

Susa n Hulett was driving the vehicle. W arfield was the passenger and the vehicle’s owner. Deputy Melton asked both for identification and for the vehicle’s registration and proof of insurance.

The deputy observed both women as they searched for the requeste d documentation

. As Warfield looked in the glove compartment and her bags for the vehicle registration and insurance card , the deputy noticed one of Warfield ’s bags

was blue with a lockable zipper closure , which he perceived to be a methadone bag. Such s ecurable containers are used to facilitate “‘take

- home’ use” of
methadone doses by an outpatient of an opioid treatment program in a manner that will “limit the potential for diversion of opioid agonist treatment medications to the illicit market . . . .” 42 C.F.R. 1 § 8.12(i).

Deputy Melton asked where the women were going . H ulett explained they had gone to a methadone clinic in Georgetown, Kentucky , but it was closed; they then went to a methadone clinic in Northern Kentucky.

1 Code of Federal Regulations.- 3

- Both women produced identification , but Warfield could not find , at first, proof of insurance for her vehicle

. Deputy Melton returned to his cruiser to prepare citations for each woman for failure to wear seat belts. Before he could complete that task, he noticed W arfield holding documents out her window on the vehicle’s passenger side . The deputy retrieved the documents, then returned to his
cruiser to check and confirm the identifications he was provided.

He also searched for outstanding warrants and found none as to either Warfield or Hulett. Deputy Melton completed writing tickets for each of the women for failure to wear a seatbelt at 2:18 p.m. However, before the deputy finished writing the tickets and not later than 2:15 p.m., he contacted a City of Floren ce K

- 9 officer for assistance. The deputy’s CourtNet search revealed Warfield had a pending case for trafficking in a controlled substance.

Before the K

- 9 officer arrived with a drug

- sniffing dog, Deputy Melton finished writing and printing the tickets a t 2:18 p.m. He then returned to Warfield’s vehicle and asked Hulett to exit and step to the back of the vehicle for safety reasons while he explained the tickets. Hulett complied. Warfield remained in the vehicle. The deputy asked permission to search the vehicle but both Hulett and Warfield declined permission to do so.

During the short time after printing the tickets, the K

- 9 officer arrived with his dog

. Thirteen minutes after Deputy Melton printed the tickets, and even- 4

-

less time after he explain ed the tickets to Hulett and asked permission to search the vehicle , the canine alerted to the presence of drugs. It was 2:31 p.m.

Officers searched the vehicle and found a pill container Hulett owned containing cash in the amount of $200.00 and eleven hydrocodone pills and, in a coat pocket, a “bindle”

– slang for a small package containing a narcotic

– that appeared to be heroin powder. In the unlocked blue methadone bag, officers found a large quantity of f

entanyl

– approximately 88 grams of white powder, 5.5 grams of brown powder, 12.5 grams of a white crystal substance, and a digital scale. Warfield was arrested and soon indicted on several counts of trafficking and a
count of being in possession of drug paraphernalia.

Warfield moved to suppress all evidence discovered in the vehicle as fruits of an illegally extended traffic stop. The motion was denied, and Warfield entered a conditional guilty plea to multiple counts resulting in a sentence of five years, probated for five years. By all accounts, after appealing the denial of her suppression motion as a matter of right, Warfield absconded and r emains out of contact with her counsel and her probation officer. A probation violation warrant has been outstanding since March 8, 2022. STANDARD OF REVIEW When reviewing the denial of a motion to suppress, an appellate court considers a trial court’s f

indings of fact to be “conclusive if supported by- 5

-

substantial evidence.” Bauder v. Commonwealth , 299 S.W.3d 588, 591 (Ky. 2009) (citing Ornelas v. U

nited S tates , 517 U.S. 690, 699, 116 S. Ct. 1657, 134 L. Ed. 2d 911 (1996)). “Substantial evidence is ‘tha t which, when taken alone or in light of all the evidence, has sufficient probative value to induce conviction in the mind of a reasonable person.’” Hunter v. Mena , 302 S.W.3d 93, 97 (Ky. App. 2010) ( quoting Bowling v. Nat ’l Res. & Env’t Prot. Cabinet , 89 1 S.W.2d 406, 409 (Ky. App. 1994)). However, the appellate court conducts a de novo review of the trial court’s application of law to its factual findings. Commonwealth v. Jones , 217 S.W.3d 190, 193 (Ky. 2006) (cit ation omitted ). ANALYSIS First, we addr ess t he Commonwealth ’s argument that the appeal should be dismissed because Warfield has absconded from justice. C ounsel for Warfield addressed the argument in the reply brief as if addressing a motion to dismiss

. We decide the issue by this O pinion , and not by separate order. We are not persuaded by the Commonwealth’s argument and de cline to dismiss the appeal for the following reasons.

Before 1976, neither the Kentucky Constitution nor the federal Constitution g uaranteed to criminal defendants the right of appeal to a higher court. Our predecessor C ourt of Appeals made that clear in Lake v. Commonwealth when a criminal defendant , citing K Y
. C ONST
. § 11, argued he was entitled to appeal the- 6

-

trial court’s decision s on his juror challenges. 209 Ky. 832, 273 S.W. 511 ( Ky. 1925)

. “[T] he error at the foundation of that contention [,]” said the Court, “ is that it assumes that the constitutional guarant y [to ‘ a speedy public trial by an impartial jury of the vicinage [,] ’ K Y
. C ONST . § 11 ] includes the right of the defendant in a criminal prosecution to an appeal . . . . ” Id. at 835, 273 S.W. at 512. The Court then pointed out that “[w] e do not have the latter in our Constitution, nor is it in the federal Constitution

. . . . ” Id.

In 1976, the people of the Commonwealth amended the Kentucky
C onstitution to guarantee the right to appeal civil and criminal judgments to a second court , with certain exceptions inapplicable her e. Hoskins v. Maricle , 150 S.W.3d 1, 6 n.1 , 7 n.3 (Ky. 2004) ( citing K Y
. C ONST § 115 ).

Kentucky’s constitutional guarantee predominates. It is the reason
each of the Commonwealth ’s citations to case law for dismiss ing this appeal are inapplicable. Th e Commonwealth’s authority fall s into three categories

.

The first category is comprised of cases decided before Kentucky’s constitutional guarantee existed. For example, in Wilson v. Commonwealth , a case from 1874, Kentucky’s then

- lone appellate court dismissed a criminal appeal afte r the appellant escaped from confinement because there was no guarantee any decision by the court could be enforceable against the absconded appellant. 73 Ky.
526 , 527 (1874). No citation is necessary to support the axiom that when the voice- 7

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and will of the people of the Commonwealth are expressed by their adoption of a constitutional amendment , all preceding inconsistent common law is constitutionally superseded

.

In the second category of the Commonwealth’s inapplicable cases, we find reference to feder al case law e x p ressing the “disentitlement theory” or

“ fugitive disentitlement doctrine” stemming from the Supreme Court ’ s decision in Molinaro v. New Jersey , 396 U.S. 365, 90 S. Ct. 498, 24 L. Ed. 2d 586 (1970)

. This federal doctrine, “relies upon the th eory that a fugitive from justice should not be able to use the judicial system while at the same time avoiding it.” United States v. Timbers Preserve, Routt Cnty., Colo. , 999 F.2d 452, 453 (10th Cir. 1993).

The two paragraph s of the per curiam Molinaro decision is a succinct example of the federal Supreme Court’s exercise of inherent authority to decline
further discretionary review of a state court judgment. Molinaro did not pursue Supreme Court review as a matter of right guaranteed by any c onstitution because

no such right exists . The nation’s high c ourt was reviewing Molinaro’s case permissively upon its own writ of certiorari

. A uthority to manage its own docket was not hindered in any way by any constitution. This Court , however, is not at liberty to subordinate Section 115 of our Kentucky Constitution by re ference to the common law “fugitive disentitlement doctrine , ” or as it is known, the “ FDD

. ”- 8

- Lastly, the Commonwealth notes Kentucky’s Supreme Court , in fact, did apply the FDD in Commonwealth v. Hess , 628 S.W.3d 56 (Ky. 2021)

. But
Hess i s not the review of a criminal conviction; rather, it i s t he appeal from an order revoking probation.

Before her criminal trial, Hess was informed of “ her constitutional right to appeal. Sh e expressly waived that right and did not seek appellate review of her conviction

. . . . With her constitutional right of appeal gone, any appeal thereafter must be statutorily based. ” Id. at 57, 60 . “ Hess’ right to appeal was statutory under KRS [ 2 ] 22A.020(1), ” said the Court and, therefore, “ the issue of whether the FDD would deprive Hess of a constitutional right is moot. ” Id. at 60 (emphasis added)

.

The Commonwealth’s reliance on Hess suggests that the case, like this Court’s opinion in Lemas ter v. Commonwealth , 399 S.W.3d 34 (Ky. App. 2013) , might have been clearer. Understandably, it would have been dicta to answer the question Hess expressly declared moot. However, the question whether the FDD can be applied to deprive a defendant of the right guaranteed by Section 115 is now squarely before this Court.

We hold that no Kentucky court, for its own convenience or otherwise , has the authority to dispense with the constitutional right o f a ppeal from

2 Kentucky Revised Statute.- 9

-

a criminal conviction guaranteed by K Y
. C ONST
. § 115 by applying the common law theory known as the fugitive disentitlement doctrine. I f a criminal defendant asserts that right, the courts must respect it unless and until the defendant/appellant knowingly, voluntarily, and intelligently waive s it.

Hess and Lemaster may have sown the seeds of doubt by citing Kentucky decisions prior to the 1976 constitutional amendment. 3 Although these older cases still apply to appeals not guaranteed by Sectio n 115 (as in both Hess and Lemaster ) , th ose same older cases have been superseded to the extent they conflict with the subsequently adopted constitutional amendment.

Warfield ’s appeal of her criminal conviction was n ot waived

. No rules of procedur e have been violated that might justify dismissal. Finally, in light of K Y
. C ONST
. § 115 , we cannot dispense with review based on the common law
FDD . W e turn now to evaluate the merits of Warfield’s appeal

.

Warfield argues the police improperly extended the stop beyond completion of the stop’s purpose

– to issue citations for failure to wear seatbelts

. Delaying Warfield and Hulett from proceeding on their way after delivering the

3 Both Hess and Lemaster cite Molinaro as the origin of the FDD. Hess cites the following cases rendered before the constitutional right existed in Kentucky: Wilson , supra ; Jackson v. Commonwealth , 247 S.W.2d 5 2 (Ky. 1952); Harris v. Commonwealth , 311 Ky. 429, 224 S.W.2d 427 (1949); Crum v. Commonwealth , 232 Ky. 331, 23 S.W.2d 5 50 (1930); Norton v. Commonwealth , 78 Ky. 501 (1880). Lemaster cites: Harris , supra ; and Crum , supra .- 10

-

tickets, says Warfield, violated their constitutional r ights. We disagree and affirm the denial of the suppression motion

.

“Like a Terry [ 4 ] stop, the tolerable duration of police inquiries in the traffic

- stop context is determined by” both the time required to address the traffic
violation which resulted in the stop and the time required to “attend to related safety concerns [

. ] ” Rodriguez v. United States , 575 U.S. 348, 354, 135 S. Ct. 1609, 1614, 191 L. Ed. 2d 492 (2015) (citing Illinois v. Caballes , 543 U.S. 405, 407, 125 S. Ct. 834, 837, 160 L. Ed. 2d 84 2 (2005) ) . “Authority for the seizure
thus ends when tasks tied to the traffic infraction are

– or reasonably should have
been

– completed.” Id

. Such tasks include “ checking the driver ’ s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile ’ s registration and proof of insurance.” Id

. at 355, 135 S.
Ct. at 1615 (citing Delaware v. Prouse , 440 U.S. 648, 99 S. Ct. 1391, 59 L. Ed. 2d 660 (1979)). These inquiries do not include a canine drug sniff, which, “by contrast, is a measure aimed at ‘detect[ing] evidence of ordinary criminal wrongdoing.’” Id . (quoting Indianapolis v. Edmond , 531 U.S. 32, 40

- 41, 121 S. Ct. 447, 454, 148 L. Ed. 2d 333 (2000)).

However, the evidence presented at the suppression hearing is that Deputy Melton’s reasonable suspicions were raised when he saw the un locked

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

.- 11

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methadone bag and Warfield searching for her identification inside; Warfield’s behavior caused him to believe she was under the influence of drugs o r alcohol ; and Hulett exhibited a greater than expected le v el of nervousness.

Deputy Melton’s CourtNet search and drug dog search were not, per

se , an unlawful extension of the traffic stop. An officer may extend a traffic stop beyond completion of its p urpose when “‘something happen [s] during the stop to cause the officer to have a reasonable and articulable suspicion that criminal activity [is] afoot. ’” Davis v. Commonwealth , 484 S.W.3d 288, 292 (Ky. 2016) (quoting Turley v. Commonwealth , 399 S.W.3d 4 12, 421 (Ky. 2013)). T hat is, t he suspected criminal activity must be independent of the reason for the traffic stop and the officer’s suspicion must be sufficiently articulable and reasonable to distinguish the two. If not, “the prolonging of a traffic stop solely to accommodate a dog sniff is an illegal seizure

. . . . ” Conner , 636 S.W.3d 464 , 474 (Ky. 2021) (citing Rodriguez , 575 U.S. at 355

- 57, 135 S. Ct. at 1615 ).

Deputy Melton’s suspicion that drug

- related criminal activity was afoot goes beyond observations found insufficient in Moberly v. Commonwealth , 551 S.W.3d 26 (Ky. 2018) , cited by Warfield

. In Moberly , the Supreme Court of Kentucky determined a police offi cer’s observations of a nervous, sweaty vehicle operator did not give rise to a reasonable and articulable suspicion of illegal activity beyond what justified the officer’s initial reason for the traffic stop. 551- 12

-

S.W.3d at 3 1

- 33. The officer ’s delay in wrapping up the traffic stop was not justified because he “articulated nothing about [Moberly’s] behaviors, individually or collectively, to connect him to criminal behavior beyond what may be ordinarily expected of a driver stopped for a traffic violation .” Id . at 32. T he Supreme Court noted that a driver is often nervous during a traffic stop. Id

.

However, Deputy Melton’s suspicions in this case include his observation of an unlocked and open methadone bag which his experience told him must remain clo sed and locked. He also believed Warfield’s behavior was consistent with someone who is under the influence of drugs. “We consider the information from which a trained officer makes inferences, such as objective observations and the method of operation o f certain kinds of criminals, and whether that information yields a particularized suspicion that the particular individual being stopped is engaged in wrongdoing.” Id . at 31 (citing U nited
States v. Cortez , 449 U.S. 411, 417

- 18, 101 S. Ct. 690, 695, 66 L

. Ed. 2d 621 (1981 ) ). Melton articulated to the trial court that he inferred, based on these observations and his experience and training, that drug

- related activity was afoot and convinced the trial court the inference was reasonable. This Court cannot find error in the trial court’s determination

.- 13

- CONCLUSION For the foregoing reasons, we affirm Warfield’s October 13, 2021 conditional guilty plea.

ALL CONCUR

.

BRIEF S FOR APPELLANT: Adam Meyer Frankfort, K entucky BRIEF FOR APPELLEE: Daniel Cameron Attorney General of Kentucky Melissa A. Pile Assistant Attorney General Frankfort, K entucky