IMPORTANT NOTICE
NOT TO BE PUBLISHED O PINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED ."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76 .28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
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UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT . OPINIONS CITED FOR CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISION IN THE FILED DOCUMENT AND A COPY OF THE
ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE
ACTION.
RENDERED : MAY 24, 2007
NOT TO BE PUBLISHED
,Suyrrmr Courf of
2005-SC-000844-MR Im
TROY D . WADE APPELLANT
APPEAL FROM MEADE CIRCUIT COURT
HON. ROBERT A . MILLER, JUDGE
V. NO . 04-CR-00120
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
Affirminq
Appellant, Troy D. Wade, was convicted by a Meade County jury of
possession of a controlled substance (cocaine) in the first degree, possession of
marijuana, failure to register transfer of a motor vehicle, and being a persistent
felony offender in the first degree . For these crimes, Appellant was sentenced to
a total of twenty years in prison . Appellant now appeals to this Court as a matter
of right. Ky. Const. § 110(2)(b) . For the reasons set forth herein, we affirm
Appellant's convictions .
On the evening of September 11, 2005, Appellant was a passenger in his
own vehicle when he came upon a safety checkpoint . Trooper Kevin Burton
approached the driver, Robert Stewart, and asked for his license and proof of
insurance . At first, Stewart gave Trooper Burton a false name, but then admitted
that he did not have his driver's license on him, nor could he produce his social
security number for the officer. At this point, Appellant offered Trooper Burton his
license and admitted that the vehicle was his.
While talking to Stewart, Trooper Burton detected a strong smell of alcohol
on Stewart's breath. Stewart was asked to exit the vehicle and was administered
three field sobriety tests. When he failed all three tests, Stewart was placed
under arrest. Upon the search incident to arrest, cocaine and drug paraphernalia
were discovered on Stewart's person . At this point, a K-9 unit was called to sniff
the vehicle .
Once drugs were discovered on Stewart, Appellant was asked to step out
of the vehicle. Trooper Justin Spears patted Appellant down for weapons.
Although Trooper Spears found no weapons, he did find $5,144 in cash
distributed throughout several pockets of Appellant's pants .' Appellant said he
was a painter and that the money was for purchasing an SUV. He claimed that a
portion of the money was from recent earnings and that the rest of it was from
winning a game of dice that night.
Immediately after Stewart's arrest and the pat down of Appellant, Trooper
Todd Combs arrived with his dog, Rex, to sniff the vehicle . Upon inspection, the
dog alerted to something in the trunk of the vehicle . Once the trunk was opened,
police discovered 5 .2 grams of cocaine and 10.1 grams of marijuana inside a CD
' Although not challenged by Appellant, it is questionable whether police lawfully
seized money from Appellant during the pat down search for weapons. See
Minnesota v. Dickerson, 508 U .S. 366, 378, 113 S.Ct. 2130, 124 L.Ed.2d 334
(1993) (items may be seized during a pat down search for weapons only if the
item could reasonably be a weapon or if the item's incriminating character is
immediately apparent by touch or feel); Commonwealth v. Whitmore, 92 S.W .3d
76, 79 (Ky. 2002) ("The purpose of the limited [pat down] search is not to
discover evidence of a crime, but to allow the officer to pursue the investigation
without fear of violence .") .
2
case . At this point, Appellant was arrested . From start to finish, the stop lasted a
total of ten to fifteen minutes.
At the police station, it was revealed that Appellant had an extensive
criminal history, including a conviction involving trafficking in a controlled
substance . Appellant was eventually indicted and convicted for possession of
the drugs found in the trunk of his vehicle and for being a persistent felony
offender in the first degree.
Pursuant to RCr 9.78, the trial court's findings of fact are conclusive if
supported by substantial evidence. Appellant does not challenge any of the trial
court's specific findings of fact in this case . In any event, we have reviewed the
record and find that the factual findings set forth in this opinion are supported by
substantial evidence .
Appellant sets forth one argument on appeal . He claims that pursuant to
the holding in Illinois v. Caballes , 543 U.S. 405, 125 S. Ct. 834,160 L.Ed.2d 842
(2005), his vehicle's detainment at the safety checkpoint was unconstitutionally
prolonged beyond the time reasonably required to conduct the traffic stop . We
disagree ; the search of Appellant's vehicle was constitutionally valid and did not
run afoul of the holding set forth in Cabelles , su ra .
We first note that Appellant does not challenge the constitutionality of the
checkpoint itself . Rather, he focuses on the duration of his vehicle's seizure as
grounds for challenging his convictions . In Cabelles , the U.S . Supreme Court
stated that a lawful traffic stop "can become unlawful if it is prolonged beyond the
time reasonably required to complete [the] mission [that originally justified the
stop .]" 543 U.S. at 407.
In this case, Appellant acknowledges that the detainment of his vehicle
was justified by Trooper Burton's reasonable suspicion that Stewart had
committed traffic infractions (driving without a license, etc.) and was intoxicated .
However, once Stewart was arrested for DUI, Appellant contends that police no
longer had a constitutionally valid reason to detain him or the vehicle . We
disagree .
Stewart, an occupant of the vehicle, was arrested . Thus, the police, as a
contemporaneous incident of that arrest, had a right to search the passenger
compartment of the vehicle . See Commonwealth v. Ramsev , 744 S .W.2d 418,
419 (1987) (adopting New York v. Belton, 453 U.S. 454, 101 S .Ct . 2860, 69
L .Ed.2d 768 (1981), which "held that when a police officer has made a lawful
custodial arrest of the occupant of an automobile, the officer may, as a
contemporaneous incident of that arrest, search the passenger compartment of
that automobile") . During this contemporaneous search of the passenger
compartment of the vehicle, a police dog sniffed in and around the vehicle . Upon
sniffing the trunk, the dog immediately alerted to the presence of contraband
which in turn created probable cause to search the trunk. See U .S . v. Diaz , 25
F.3d 392, 393-94 (6th Cir. 1994) ("A positive indication by a properly-trained dog
is sufficient to establish probable cause for the presence of a controlled
substance ."); Johnson v. Commonwealth, 179 S.W.3d 882, 886 (Ky. App. 2005)
("After the dog alerted to the presence of narcotics, the officers undoubtedly had
probable cause to search the vehicle .").
Appellant complains that the additional minute or two it took for the dog to
sniff the outside of the vehicle was unreasonable . 2 Rather, upon finding nothing
of an incriminating nature in the vehicle's interior, police should have immediately
stopped their investigation and handed the vehicle over to Appellant . Yet,
according to the factual findings made by the trial court and supported by
substantial evidence on the record, there were legitimate reasons to extend the
stop even beyond the search of the passenger compartment of the vehicle.
During their investigation of Stewart, police discovered that title to the
vehicle was not held by either Appellant or Stewart .3 Accordingly, the trial court
found that it was legitimate for the vehicle to be retained for a period beyond that
needed to investigate and arrest Stewart so that Appellant's "right or legal ability
(sobriety, license and insurance) to operate the vehicle" could be determined .
The trial court found that °[i]t was during this reasonable delay that the K-9 drug
sniff occurred ."
When all these circumstances are considered in their totality, we find that
the ten to fifteen minute detention of Appellant and his vehicle was reasonable
and not prolonged beyond the time reasonably required to conduct the traffic
stop in this case . See Johnson , 179 S.W .3d at 885 (no constitutional violations
2 Of course, the canine sniff itself did not violate any of Appellant's Fourth
Amendment rights since "the limited and discriminating nature of a sniff does 'not
constitute a 'search' within the meaning of the Fourth Amendment."' U.S . v.
Reed , 141 F.3d 644, 649 (6th Cir. 1998) (quoting United States v. Place, 462
U.S. 696, 707,103 S.Ct. 2637, 2645, 77 L.Ed.2d 110 (1983)) .
3 Appellant explains in his brief that the 1993 Buick Roadmaster that was
detained that night was purchased from Larry and Alicia Foster in mid-August .
When Appellant attempted to have the vehicle's title transferred into his name, he
discovered there was a lien on the vehicle, and thus, he was not able to transfer
title until the lien was removed.
where it was determined that officers diligently pursued their investigation and did
not pretextually or impermissibly stall the stop for the sole purpose of allowing a
canine unit to sniff the vehicle) . The judgment and sentence of the Meade Circuit
Court is therefore affirmed .
All sitting . All concur.
ATTORNEY FOR APPELLANT
Karen Shuff Maurer
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601
ATTORNEY FOR APPELLEE
Gregory D. Stumbo
Attorney General
Bryan D . Morrow
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601