RENDERED: APRIL 19, 2024; 10:00 A.M. NOT TO BE PUBLISHED 

# Commonwealth of Kentucky Court of Appeals

NO. 2022

- CA

- 1006

- MR
JOSHUA KELLEMS APPELLANT

v. APPEAL FROM MCLEAN CIRCUIT COURT

HONORABLE BRIAN WIGGINS, JUDGE ACTION NO. 22

- CR

- 00015

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION AFFIRMING
**   **  ** BEFORE: ACREE, CALDWELL, AND LAMBERT, JUDGES. ACREE, JUDGE: Appellant, Joshua Kellems , appeals from the McLean Circuit Court’s August 15, 2022 judgment of conviction. Kellems entered a conditional guilty plea to reserve his right to appeal the circuit court’s denial of his motion to suppress evidence. We affirm.- 2

- BACKGROUND On October 24, 2021, Deputy Smith of the McLean County Sheriff’s Department observed a vehicle without visible license plates and decided to initiate a traffic stop. Deputy Smith stopped the vehicle at approximately 3:58 p.m. Kellems, the driver, was una ble to produce a driver’s license, proof of insurance, or the vehicle’s registration; the vehicle’s registration had been canceled for failure to maintain insurance. Upon return to his cruiser, Deputy Smith discovered Kellem s ’ license was suspended.

W hil e Deputy Smith was running the vehicle’s V ehicle I dentification
N umber , Chief Deputy Coomes arrived at the scene at approximately 4:09 p.m. Deputy Smith told Chief Deputy Coomes he stopped Kellem s because the vehicle lacked a license plate and discovered Kellem s was unable to produce proof of insurance or a driver’s license. Chief Deputy Coomes believed he had previously charged Kellem s with driving without a license, and advised Deputy Smith to arrest him. Deputy Smith arrested Kellem s at approximately 4:21 p.m. Because the car was not insured , Deputy Smith called a tow truck. Chief Deputy Coomes called Deputy McCoy, the Sheriff’s Department’s canine officer, who arrived at approximately 4:27 p.m. Deputy McCoy performed a canine sniff of the vehicle, and the dog alerted to the presence of narcotics. Deputy McCoy searched the- 3

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vehicle and discovered methamphetamine in the center console. The search also yielded scales and three methamphetamine pipes. In addition to being arrested for no insurance, no driver’s license, and no registration, Kellem s was arrested for possession of drug paraphernalia and trafficking methamphetamine.

Kellem s filed a motion to suppress evidence discovered as a result of the warrantless search of his vehicle. The circuit c ourt held a hearing on the motion on May 31, 2022. The circuit court denied the motion, entering findings of fact, conclusions of law, and an order on July 11, 2022. Kellem s entered a conditional guilty plea, reserving his right to appeal the denial of h is motion to suppress. Kellem s now so appeals. STANDARD OF REVIEW Appellate courts engage in a twofold review of pretrial motions to
suppress. Whitlow v. Commonwealth , 575 S.W.3d 663, 668 (Ky. 2019). “First, we review the trial court’s findings of fact under a clearly erroneous standard. Under this standard, the trial court’s findings of fact will be conclusive if they are supported by substantial evidence.” Simpson v. Commonwealth , 474 S.W.3d 544, 547 (Ky. 2015) (citations omitted). Substantial evid ence is “that 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.” Bowling v. Nat. Res. & Env’t Prot. Cabinet , 891 S.W.2d 406, 409 (Ky. App. 1994) (citing Kentuck y State Racing- 4

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Comm’n v. Fuller , 481 S.W.2d 298, 308 (Ky. 1972)). “We then conduct a de novo review of the trial court’s application of the law to the facts to determine whether its decision is correct as a matter of law.” Simpson , 474 S.W.3d at 547 ( int ernal quotation marks and citations omitted). ANALYSIS Kellems argues the circuit court erroneously denied his suppression motion. He argues the Sheriff’s deputies illegally arrested him in order to extend the traffic stop and seize his vehicle so that the police canine could arrive. “Although an officer may detain a vehicle and its occupants in order to conduct an ordinary traffic stop, ‘any subsequent detention . . . must not be excessively intrusive in that the officer’s actions must be reasonably related in scope to circumstances justifying the initial interferen ce.’” Turley v. Commonwealth , 399 S.W.3d 412, 421 (Ky. 2013) (quoting United States v. Davis , 430 F.3d 345, 353 (6th Cir. 2005)). Accordingly, a police officer is not permitted to detain a vehicle’s occupants longer than is necessary to effectuate the pu rpose of the stop “unless something that occurred during the stop caused the officer to have a reasonable and articulable suspicion that criminal activity was afoot.” U nited States v. Hill , 195 F.3d 258, 264 (6th Cir. 1999) (citations omitted).

Kellems’ vehicle was stopped because Deputy Smith noticed his vehicle lacked a license plate and, upon being stopped, Kellems was unable to- 5

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produce a driver’s license, registration for the vehicle, or proof of insurance. Kellems argues the deputies unlawfully exte nded the stop because they arrested him for offenses which, by law, he could not be arrested for. Under KRS 1 431.015, police officers are required to issue citations rather than make arrests for misdemeanor offenses, subject to listed exceptions. See KR S 431.015(1)(a)

- (b).

Ultimately, whether law enforcement was required to issue Kellems a citation rather than arrest him does not bear on the constitutionality of the search of his vehicle. In a case that reached the United States Supreme Court, Virginia v. Moore , a motorist, Moore, was pulled over and arrested for the misdemeanor offense of driving on a suspended license, even though this was not an arrestable offense under Virginia law. 553 U.S. 164, 167

- 68, 128 S. Ct. 1598, 1601

- 02, 170
L. Ed. 2d 559 (2008). The officers searched Moore incident to the arrest and discovered crack cocaine and cash on his person. Id . at 167, 128 S. Ct. at 1601. The Supreme Court determined suppression was not required because it would be unreasonable for the protection s of the Fourth Amendment to depend upon “‘the law of the particular State in which the search occurs.’” Id . at 172, 128 S. Ct. at 1604 (quoting California v. Greenwood , 486 U.S. 35, 43, 108 S. Ct. 1625, 1626, 100 L. Ed. 2d 30 (1988)). “While ‘[i]ndividu al States may surely construe their own constitutions as imposing more stringent constraints on police conduct than

1 Kentucky Revised Statutes.- 6

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does the Federal Constitution, ’ . . . state law [does] not alter the content of the Fourth Amendment.” Id . (quoting Greenwood , 486 U.S. at 43, 108 S. Ct. at 1626). So long as “officers have probable cause to believe that a person has committed a crime in their presence, the Fourth Amendment permits them to make an arrest,” regardless of state law prohibition against that arrest. Id . at 178, 128 S. Ct. at
1608. Kentucky’s Supreme Court “has held time and again that ‘Section 10 of the Kentucky Constitution provides no greater protection than does the federal Fourth Amendment.’” Hunter v. Commonwealth , 587 S.W.3d 298, 305 (Ky. 2019) (qu oting LaFollette v. Commonwealth , 915 S.W.2d 747, 748 (Ky. 1996), overruled on other grounds by Rose v. Commonwealth , 322 S.W.3d 76 (Ky. 2010)). Recent concurring opinions by our Supreme Court Justices have pushed back against the overly broad application of LaFollette , urging abandonment of this principle in favor of a more nuanced examination of the protections our own constitution

ensures. See , e.g. , Commonwealth v. Reed , 647 S.W.3d 237, 254

- 58 (Minton, J., concurring) (“There are countless application s of the Fourth Amendment. To say that Section 10 is co

- extensive with the Fourth Amendment for purposes of one application is not to say the protections provided by the two are co

- extensive in

every application. . . . Insofar as LaFollette stands for th e proposition that Section- 7

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10 and the Fourth Amendment are co

- extensive in every application, we should overrule it.”).

To date, however, our courts continue to read our state constitution as providing no greater protection than the Fourth Amendment. D eputy Smith’s
arrest of Kellem s , even assuming Kellem s should have instead received a citation pursuant to KRS 431.015, was not unconstitutional. Deputy Smith observed Kellem s lacked a license plate on his vehicle; “[i]t has long been considered
reasonabl e for an officer to conduct a traffic stop if he or she has probable cause to believe that a traffic violation has occurred.” Commonwealth v. Bucalo , 422 S.W.3d 253, 258 (Ky. 2013) (citing Wilson v. Commonwealth , 37 S.W.3d 745 (Ky. 2001)). Deputy Smith d iscovered during the traffic stop that the vehicle lacked insurance and that Kellem s lacked a driver’s license and arrested Kellem s upon the advice of Chief Deputy Coomes; “[t]here is no doubt that a police officer may make a warrantless arrest ‘when a mis demeanor, as defined in KRS 431.060, has been committed in his presence.’” Commonwealth v. Mobley , 160 S.W.3d 783, 786 (Ky. 2005) (quoting KRS 431.005(1)(d)).

Because the question of whether Kellem s ’ arrest was prohibited by state statute has no bearing on the constitutionality of his arrest, we must determine whether the canine sniff of Kellem s ’ vehicle following his arrest was unconstitutional. It is true that “a police officer may not extend a traffic stop- 8

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beyond its original purpose for the sole purp ose of conducting a sniff search

– not even for a de minimis period of time.” Davis v. Commonwealth , 484 S.W.3d 288, 293 (Ky. 2016) (citing Rodriguez v. U.S. , 575 U.S. 348, 135 S. Ct. 1609, 191 L. Ed. 2d 492 (2015)). However, th at is not what happened here. Nothing of record indicates the deputies impermissibly extended the traffic stop, which was terminated once Kellem s was arrested. Our inquiry now becomes whether, once the occupant of a vehicle has been arrested following a tr affic stop and the vehicle remains parked on the side of a public road, law enforcement may perform a canine sniff of a vehicle. We conclude this practice does not run afoul of the Fourth Amendment.

“All searches without a valid search warrant are unreas onable unless shown to be within one of the exceptions to the rule that a search must rest upon a valid warrant.” Gallman v. Commonwealth , 578 S.W.2d 47, 48 (Ky. 1979). Our jurisprudence recognizes two permissible circumstances when a vehicle may be

sear ched, without a warrant, incident to an arrest. Robbins v. Commonwealth , 336 S.W.3d 60, 63 (Ky. 2011) (citing Arizona v. Gant , 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009)). First, law enforcement may perform a vehicle search “incident to a re cent occupant’s arrest ‘when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.’” Id

. (quoting Gant , 556 U.S. at 343, 129 S. Ct. at 1719). Second, “[a] search is also- 9

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warranted when it is ‘reaso nable to believe the vehicle contains evidence of the offense of arrest.’” Id . (quoting Gant , 556 U.S. at 351, 129 S. Ct. at 1723).

Neither of these circumstances are present in the instant case. However, the dog sniff of Kellem s ’ vehicle provided a b asis to search it independent ly of the fact of Kellem s ’ arrest. Once the dog alerted to the presence of drugs in the vehicle, the police had probable cause sufficient to support a warrantless search. The “automobile exception” to the warrant requirement “allows officers to search a legitimately stopped automobile where probable cause exists that contraband or evidence of a crime is in the vehicle.” Clark v. Commonwealth , 868 S.W.2d 101, 106 (Ky. App. 1993) reversed on other grounds by He nry v. Commonweal th , 275 S.W.3d 194 (Ky. 2008) (citing United States v.
Ross , 456 U.S. 798, 800

- 01, 102 S. Ct. 2157, 2159

- 61, 72 L. Ed. 2d 572 (1982)).

The circuit court relied upon Olmeda v. Commonwealth in denying Kellem s ’ suppression motion. In Olmeda , a police office r pulled Olmeda over for multiple vehicle equipment violations

. 601 S.W.3d 183, 184 (Ky. App. 2020).
D uring the stop, the officer learned Olmeda’s license was suspended and came to suspect he was driving under the influence of alcohol. Id. Another officer arrived and noticed Olmeda’s eyes were dilated, and the police then suspected Olmeda was under the influence of drugs. Id . A canine unit arriv ed and performed a sniff search while Olmeda underwent field sobriety testing. Id . The dog alerted to the- 10

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presence of drugs, and the police discovered marijuana, cocaine, and drug paraphernalia in the vehicle. Id . A panel of this Court noted “the lengt h of the vehicle ’ s stop was ultimately governed by the fact that Olmeda, even if he were only issued a citation for his offenses, could not legally drive away due to his suspended license.” Id . at 187 (emphasis original). “As a result, regardless of whet her Olmeda was present, Olmeda ’ s truck would certainly have remained at the scene long enough for the K

- 9 unit to arrive.” Id

.

Olmeda is not perfectly analogous to the instant appeal. The officers came to suspect Olmeda of driving while under the influe nce of drugs, id . at 184, while Kellem s was arrested for offenses completely unrelated to drugs and made no indication that drugs would be discovered in the vehicle. Further, the canine sniff was performed on Olmeda’s vehicle during the initial traffic st op, id ., and Kellem s ’ vehicle was searched after he was placed under arrest.

However, Olmeda is still instructive because, as in Olmeda , Kellem s ’ car would have remained in place even had Kellem s not been arrested; Kellem s would not have been legally pe rmitted to drive it away due to his suspended license. This gave the deputies ample opportunity to summon a canine unit to perform a drug sniff of Kellem s ’ vehicle. Further, Kellem s had no legitimate interest in privacy which would shield him against the drug sniff of his vehicle; “any interest in possessing contraband cannot be deemed ‘legitimate,’ and thus,- 11

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governmental conduct that only reveals the possession of contraband[,]” such as use of a canine sniff to detect narcotics, “‘compromises no legitima te privacy interest.’” Illinois v. Caballes , 543 U.S. 405, 408

- 09, 125 S. Ct. 834, 837

- 38, 160
L. Ed. 2d 842 (2005) (emphasis original) (quoting United States v. Jacobsen , 466 U.S. 109, 123, 104 S. Ct. 1652, 1661, 80 L. Ed. 2d 85 (1984)).

In sum, whether Kellems could be arrested for his misdemeanor offenses does not bear on the constitutionality of the arrest. Because the deputies had probable cause to believe an offense occurred in their presence, they were constitutionally permitted to arrest him, regardless of any state law prohibition against that arrest. See Moore , 553 U.S. at 178, 128 S. Ct. at 1608. Once Kellem s was arrested, his vehicle sat unoccupied on the side of a public road while it waited to be towed. The deputies had amp le time to summon a canine unit which alerted

to narcotics in Kellem s ’ vehicle. Therefore, the warrantless search of his vehicle was not incident to his arrest . Rather, the search was permissible and constitutional once the canine sniff generated probabl e cause for such search. CONCLUSION Based on the foregoing, we affirm the McLean Circuit Court’s August 15, 2022 judgment of conviction.

ALL CONCUR

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