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NOT TO BE PUBLISHED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.
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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 unable 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 Kellems’ 

license was suspended.

While Deputy Smith was running the vehicle’s Vehicle Identification 

Number, Chief Deputy Coomes arrived at the scene at approximately 4:09 p.m. 

Deputy Smith told Chief Deputy Coomes he stopped Kellems because the vehicle 

lacked a license plate and discovered Kellems was unable to produce proof of 

insurance or a driver’s license. Chief Deputy Coomes believed he had previously 

charged Kellems with driving without a license, and advised Deputy Smith to 

arrest him.

Deputy Smith arrested Kellems 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 
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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, Kellems was arrested for 

possession of drug paraphernalia and trafficking methamphetamine. 

Kellems filed a motion to suppress evidence discovered as a result of 

the warrantless search of his vehicle. The circuit court 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. Kellems entered a 

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

suppress. Kellems 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 evidence 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 Kentucky State Racing 
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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 (internal 

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 interference.’” 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 purpose 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.” United 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 
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produce a driver’s license, registration for the vehicle, or proof of insurance. 

Kellems argues the deputies unlawfully extended the stop because they arrested 

him for offenses which, by law, he could not be arrested for. Under KRS1 431.015, 

police officers are required to issue citations rather than make arrests for 

misdemeanor offenses, subject to listed exceptions. See KRS 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 protections 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]ndividual States may surely construe their 

own constitutions as imposing more stringent constraints on police conduct than 

1 Kentucky Revised Statutes. 
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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) 

(quoting 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 applications 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 the proposition that Section 
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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. Deputy Smith’s 

arrest of Kellems, even assuming Kellems should have instead received a citation 

pursuant to KRS 431.015, was not unconstitutional. Deputy Smith observed 

Kellems lacked a license plate on his vehicle; “[i]t 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.” Commonwealth v. Bucalo, 422 

S.W.3d 253, 258 (Ky. 2013) (citing Wilson v. Commonwealth, 37 S.W.3d 745 (Ky. 

2001)). Deputy Smith discovered during the traffic stop that the vehicle lacked 

insurance and that Kellems lacked a driver’s license and arrested Kellems upon the 

advice of Chief Deputy Coomes; “[t]here is no doubt that a police officer may 

make a warrantless arrest ‘when a misdemeanor, 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 Kellems’ arrest was prohibited by 

state statute has no bearing on the constitutionality of his arrest, we must determine 

whether the canine sniff of Kellems’ vehicle following his arrest was 

unconstitutional. It is true that “a police officer may not extend a traffic stop 
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beyond its original purpose for the sole purpose 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, that is not what happened here. Nothing of record 

indicates the deputies impermissibly extended the traffic stop, which was 

terminated once Kellems was arrested. Our inquiry now becomes whether, once 

the occupant of a vehicle has been arrested following a traffic 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 unreasonable 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 

searched, 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 recent 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 
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warranted when it is ‘reasonable 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 Kellems’ vehicle provided a basis to search it 

independently of the fact of Kellems’ 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 Henry v. Commonwealth, 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 

Kellems’ suppression motion. In Olmeda, a police officer pulled Olmeda over for 

multiple vehicle equipment violations. 601 S.W.3d 183, 184 (Ky. App. 2020). 

During 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 arrived and performed a sniff 

search while Olmeda underwent field sobriety testing. Id. The dog alerted to the 
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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 length 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 

whether 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 influence of drugs, id. at 184, 

while Kellems 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 stop, id., and 

Kellems’ vehicle was searched after he was placed under arrest. 

However, Olmeda is still instructive because, as in Olmeda, Kellems’ 

car would have remained in place even had Kellems not been arrested; Kellems

would not have been legally permitted 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 Kellems’ vehicle. Further, Kellems 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, 
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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 legitimate 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 Kellems

was arrested, his vehicle sat unoccupied on the side of a public road while it waited 

to be towed. The deputies had ample time to summon a canine unit which alerted 

to narcotics in Kellems’ 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 probable 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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BRIEFS FOR APPELLANT:

Sarah D. Dailey

Frankfort, Kentucky

BRIEF FOR APPELLEE:

Daniel Cameron

Attorney General of Kentucky 

Melissa A. Pile

Assistant Attorney General 

Frankfort, Kentucky