RENDERED: MARCH 24, 2023; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2022-CA-0996-MR

FRED ROGERS APPELLANT 

v. 

APPEAL FROM ESTILL CIRCUIT COURT

HONORABLE MICHAEL DEAN, JUDGE

ACTION NO. 19-CR-00158

COMMONWEALTH OF KENTUCKY APPELLEE 

OPINION

AFFIRMING

**   **  **

BEFORE: THOMPSON, CHIEF JUDGE; COMBS AND JONES, JUDGES.

COMBS, JUDGE: In this criminal case, Appellant, Fred Rogers (Rogers), appeals 

from the denial of his motion to suppress by the trial court. After our review, we 

affirm.

Rogers was indicted by an Estill County Grand Jury charging that on 

or about July 24, 2019, he committed the offenses of trafficking in a controlled 

substance in the first degree; theft or receipt of a stolen credit card; criminal 
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possession of a forged instrument in the second degree; failure to wear a seat belt;

and being a persistent felony offender in the first degree.

According to the uniform citation report filed on July 25, 2019, 

Sheriff Flynn of the Estill County Sheriff’s Department received a call that Rogers 

had been involved in a vehicle accident, that he was possibly under the influence of 

drugs, and had a taken another vehicle in order to go back to pull the wrecked 

vehicle from a ditch. 

Once I [Sheriff Flynn] located the wrecked vehicle that 

the above [Rogers] is known to drive he was not present. 

I began to atl[1]the the [sic] above vehicle and located 

him on Rice St. I initiated a traffic stop due to him 

possibly being under the influence and not wearing a seat 

belt. Upon making contact with the above he was very 

nervous. The above subject gave me consent to search 

the above vehicle. Under the drivers [sic] seat I located a 

crystal like substance in a plastic bad [sic] that I believed 

to be methamphetamine. The above stated that it wasn’t 

his and that he was just delivering it. Also in his 

possession was a credit card and a check belonging to 

Evelyn Rawlins. On a prior dated it had been reported 

that he had stolen these items. Also in his possession 

was $13.61.

On August 16, 2021, Rogers filed a motion “to suppress the evidence 

seized in this matter because of an improper warrantless search of the Defendant’s 

automobile based on an anonymous tipster.”

1 According to the Commonwealth’s brief, the abbreviation, “ATL,” means attempt to locate.
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On December 16, 2021, the trial court conducted a hearing on the 

suppression motion. Sheriff Flynn testified, but Rogers did not testify at the 

hearing.

On February 14, 2022, Rogers filed a motion for a ruling on the 

motion to suppress and for “additional findings that there was no testimony of any 

threat to the officer’s safety and that the search was not a valid search incident to 

an arrest[.]” 

On March 2, 2022, Rogers filed a supplemental motion to suppress,

explaining that he had watched the digital recording of the suppression hearing 

“which has raised additional issues.” Rogers now argued that that the stop was 

unconstitutionally prolonged, citing Commonwealth v. Clayborne, 635 S.W.3d 818 

(Ky. 2021). Clayborne holds that:

Police officers may not extend or prolong traffic 

stops without reasonable, articulable suspicion to conduct 

further criminal investigation. 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. 

Id. at 824 (citations omitted).

On May 24, 2022, the trial court entered an order denying the motion 

to suppress as follows:

Stopping an automobile and detaining its occupants 

constitutes a “seizure” under the Fourth Amendment. 

Delaware v. Prouse, 440 U.S. 648 (1979). Like the 
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detention of individuals under Terry v. Ohio, 392 U.S. 1 

(1968), traffic stops must be supported by articulable 

reasonable suspicion of criminal activity. Berkemer v. 

McCarty, 468 U.S. 420 (1984). A search based on 

consent is reasonable. North Dakota v. Birchfield, 136 S. 

Ct. 2160 (2016). However, an anonymous tip may carry 

sufficient “indicia of reliability” to justify a Terry stop, 

even though insufficient to support an arrest or search 

warrant. See Alabama v. White, 496 U.S. 325 (1990). 

Here the Sheriff corroborated a tip that the Defendant had 

been involved in an automobile accident by locating the 

wrecked vehicle. He also observed that the Defendant 

was not wearing a seat belt at the time of the stop. Thus 

the initial stop of the Defendant was justified and the 

motion to suppress is denied.

(Italics and underline original.)

On June 7, 2022, Rogers filed a “MOTION TO ENTER 

CONDITIONAL GUILTY PLEA PER RCr 8.09.”

2

(Uppercase original.) Rogers 

pled guilty to trafficking in a controlled substance, first degree, first offense. The 

Commonwealth offered dismissal of the other charges and seven years to serve. 

The plea colloquy reflects that Rogers reserved the right to appeal “this court’s 

ruling on your motion to suppress evidence.” On August 4, 2022, the trial court 

2 Kentucky Rule of Criminal Procedure (RCr) 8.09 provides as follows: 

With the approval of the court a defendant may enter a conditional plea of 

guilty, reserving in writing the right, on appeal from the judgment, to 

review of the adverse determination of any specified trial or pretrial 

motion. A defendant shall be allowed to withdraw such plea upon 

prevailing on appeal.
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entered judgment and sentence on plea of guilty. Rogers was sentenced to seven 

years to serve, and he preserved the “right to appeal denial of suppression motion.”

On August 12, 2022, Rogers filed a notice of appeal to this Court. 

“When examining a ruling on a motion to suppress, appellate courts look first to 

the trial court’s findings of fact. If not clearly erroneous, they are conclusive. 

Next, any issues of law are reviewed de novo.” Haney v. Commonwealth, 500 

S.W.3d 833, 835 (Ky. App. 2016) (emphasis original).

On appeal, Rogers contends that the trial court’s finding -- that the 

Sheriff corroborated the tip -- was clearly erroneous because the Sheriff never 

confirmed that Rogers had been the operator of the wrecked vehicle. We need not 

engage in an analysis of that issue because the trial court also determined that the 

Sheriff “observed that the Defendant was not wearing a seat belt at the time of the 

stop. Thus the initial stop of the Defendant was justified.” Rogers has “no 

quarrel” with that reasoning. Nor does he dispute that he consented to the search 

after he was stopped for not wearing a seatbelt.

However, Rogers now contends that the traffic stop was 

impermissibly extended, citing Clayborne, supra, as follows:

The officer simply got [Rogers] out of the vehicle 

because of safety reasons, which was an abandonment of 

the lawful mission of the traffic stop which should have 

already concluded at the time consent was obtained for 

purposes of determining if the officer could even ask for 

consent. In other words, [Rogers] should have never 
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been taken out of the car. He should have just been given 

a citation for No Seat Belt.

 

In seeking reversal of the ruling of the trial court, Rogers asks “this 

Court to hold that the stop was extended and that such extension was not justified 

by reasonable articulable suspicion . . . .” We conclude that the issue is not

reviewable for the reasons set forth below.

“RCr 8.09 governs what may be preserved for appeal by a defendant 

in a conditional guilty plea. Under this rule, a defendant may ‘reserv[e] in writing 

the right, on appeal from the judgment, to review of the adverse determination of 

any specified trial or pretrial motion.’” Helphenstine v. Commonwealth, 423 

S.W.3d 708, 712 (Ky. 2014) (emphasis original). Helphenstine explains that “[i]f 

the appellate issue is not specifically mentioned in the plea colloquy, we will still 

undertake review if the issue was brought to the trial court's attention” before the 

conditional guilty plea was entered. Id. 

In Helphenstine, the defendant filed motions to suppress and agreed 

that an evidentiary hearing was not necessary and that the legal arguments could be 

submitted on briefs. The trial court denied the motions to suppress. Ultimately, 

Helphenstine entered a guilty plea reserving his right to appeal the issues raised in 

his motions to suppress. On appeal, Helphenstine argued that the trial court erred 

in denying the motions to suppress and by failing to hold an evidentiary hearing. 

It was not disputed that Helphenstine preserved his right to appeal the trial court’s 
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rulings on the motions to suppress by entering a conditional guilty plea; however, 

our Supreme Court held that his “argument regarding the trial court's failure to 

conduct an evidentiary hearing . . . is outside the scope of his plea agreement and is 

not reviewable under RCr 8.09. The trial court made no adverse determination 

on the issue of an evidentiary hearing.” Id. at 713 (emphasis added) (footnote

omitted).

In Jones v. Commonwealth, 239 S.W.3d 575 (Ky. App. 2007), the 

defendant entered a conditional guilty plea preserving his right to appeal the denial 

of his motion to suppress; however, the issue he raised on appeal was “not ruled on 

by the trial court through any trial or pretrial motion as required by RCr 8.09.” Id. 

at 577. This Court held that “[i]f Jones wanted to appeal this issue, it was 

incumbent upon him to have a hearing on the issue and secure a ruling from the 

trial court. Failure to get a ruling on this issue prior to pleading guilty precludes 

appellate review.” Id. at 578.

In the case before us, Rogers raised the issue that the traffic stop was 

impermissibly extended in his March 2, 2022, supplemental motion to suppress. 

However, the trial court made no ruling on that issue -- adverse or otherwise -- in 

its May 24, 2022, order denying his motion to suppress. Rogers filed no 

supplemental motions seeking a ruling on that issue. Thus, as there was no adverse 
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determination on the issue as required by RCr 8.09, Rogers’s appellate argument 

that the stop was impermissibly extended is not reviewable.

We affirm the judgment of conviction and sentence of the Estill 

Circuit Court.

ALL CONCUR.

BRIEFS FOR APPELLANT:

Thomas P. Jones

Beattyville, Kentucky

BRIEF FOR APPELLEE:

Daniel Cameron 

Attorney General of Kentucky 

Perry T. Ryan 

Assistant Attorney General

Frankfort, Kentucky