COMMONWEALTH OF KENTUCKY v. IKIA ANDERSON CLAYBORNE
2020-SC-0058-DG
Supreme Court of Kentucky
SEPTEMBER 30, 2021
MODIFIED DECEMBER 16, 2021
TO BE PUBLISHED
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
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
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
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.
“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
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:
Officer Nichols, Spillman, and Clayborne were “very pleasant, very cordial.” - Officer Nichols “found a suspended license . . . he got that information,” and therefore “had a valid reason to [initially] stop this vehicle.”
- Officer Nichols “believed he had a basis for calling a K-9.”
- 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
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’
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.
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
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
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. Id. 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
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
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
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 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
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
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
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.
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
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 at 26, 31. 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.
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
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
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
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