RENDERED: APRIL 30, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-1561-MR
DYVONTEA TROY RONDELL APPELLANT
DAVIS
APPEAL FROM FAYETTE CIRCUIT COURT
v. HONORABLE KIMBERLY N. BUNNELL, JUDGE
ACTION NO. 17-CR-01336
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: LAMBERT, MAZE, AND L. THOMPSON, JUDGES.
LAMBERT, JUDGE: Dyvontea Troy Rondell Davis entered a conditional guilty
plea to several drug-related charges, reserving his right to appeal the Fayette
Circuit Court’s order denying his motion to suppress evidence. After careful
review, we affirm.
The incident leading to Davis’s arrest occurred on the evening of
October 20, 2017, when Officer Jessie Mascoe was running license plates on
Contact Street in Lexington, Kentucky. As Davis drove by, Officer Mascoe
noticed that the license plate on Davis’s vehicle was not properly illuminated.1
Officer Mascoe initiated a traffic stop, pulling Davis over on nearby Tennessee
Avenue. As the officer approached the passenger side of the car, he noticed an
odor of marijuana emanating from inside. Davis admitted to having smoked
marijuana in the vehicle. Officer Mascoe searched Davis’s person as well as the
vehicle and discovered, among other items, heroin, cocaine, methamphetamine,
marijuana, and drug paraphernalia. Davis was arrested for possession of those
items, for attempting to tamper with physical evidence, for improper license plate
illumination, and for the status offense of persistent felony offender in the second
degree. Davis made bond and waived the matter to the grand jury; an indictment
was returned on December 4, 2017. He was arraigned on October12, 2018.
On February 1, 2019, Davis filed a motion to suppress the evidence
obtained during the search of his person and vehicle. A hearing was held in April
of that year. At the conclusion of the hearing, the circuit court denied the motion,
stating on the record that the search was permissible pursuant to Dunn v.
Commonwealth, 199 S.W.3d 775 (Ky. App. 2006). The court, however, granted
1
Kentucky Revised Statute (KRS) 186.170 requires, in pertinent part, “Plates shall be kept
legible at all times and the rear plate shall be illuminated when being operated during the hours
designated in KRS 189.030.”
-2-
Davis’s motion to suppress statements made by him prior to Officer Mascoe
reading Miranda warnings.2
Because of this ruling, on June 7, 2019, Davis entered a conditional
guilty plea to four counts of the eight-count indictment.3 He was sentenced to a
total of one year’s incarceration, ordered to run consecutively with other felony
convictions. The remaining counts (including the status offense) were dismissed.
This appeal followed.
Davis contends that the circuit court erred in denying his motion to
suppress the evidence, arguing that the initial stop was a pretext, and that
everything obtained thereafter was the fruit of the poisonous tree. We begin by
enunciating our standard of review, namely:
“The standard of review for a trial court’s ruling
on a suppression motion is two-fold. We review the trial
court’s factual findings for clear error and deem
conclusive the trial court’s factual findings if supported
by substantial evidence.”[4] Williams v. Commonwealth,
364 S.W.3d 65, 68 (Ky. 2011) (footnote omitted). We
review the trial court’s application of the law to the facts
2
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
3
Kentucky Rule of Criminal Procedure (RCr) 8.09 provides: “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.”
4
“Substantial evidence is evidence of substance and relevant consequence having the fitness to
induce conviction in the minds of reasonable men.” Commonwealth v. Jennings, 490 S.W.3d
339, 346 (Ky. 2016) (citation omitted).
-3-
de novo. Commonwealth v. Kelly, 180 S.W.3d 474, 477
(Ky. 2005).
On appeal, we must determine: (1) whether the
circuit court correctly denied [Davis’s] motion to
suppress based on the plain smell doctrine; and (2)
whether it correctly ruled that [Davis] was not subject to
a custodial interrogation during the traffic stop and
search.
Mayfield v. Commonwealth, 590 S.W.3d 300, 302 (Ky. App. 2019). The Mayfield
Court went on to state:
Dunn correctly extended the “plain smell” doctrine
to searches of a person subject to a traffic stop, rather
than solely the search of the car. When an officer pulls
someone over, the individual’s car is readily moveable,
the operator and other occupants have been alerted to the
officer’s presence, and the car’s or individual’s contents
“may never be found again if a warrant must be
obtained.” Chambers v. Maroney, 399 U.S. 42, 51, 90 S.
Ct. 1975, 1981, 26 L. Ed. 2d 419 (1970). Because of
this, the automobile exception to the warrant requirement
extends to the operator of the vehicle when the “plain
smell” of marijuana results in the existence of probable
cause, which justifies a search independently of an arrest.
Mayfield, 590 S.W.3d at 305.
Therefore, once Officer Mascoe smelled marijuana coming from the
vehicle, he had probable cause to search it, its occupants, and all its contents.
Dunn, 199 S.W.3d at 776. Dunn is grounded in the “automobile exception,” which
“permits an officer to search a legitimately stopped automobile [without a warrant]
where probable cause exists that contraband or evidence of a crime may be in the
-4-
vehicle.” Commonwealth v. Elliott, 322 S.W.3d 106, 110-11 (Ky. App. 2010)
(quoting Morton v. Commonwealth, 232 S.W.3d 566, 569 (Ky. App. 2007)).
“At a suppression hearing, the ability to assess the credibility of
witnesses and to draw reasonable inferences from the testimony is vested in the
discretion of the trial court.” Pitcock v. Commonwealth, 295 S.W.3d 130, 132 (Ky.
App. 2009). Here the circuit court heard the witnesses, assessed their credibility,
and drew reasonable inferences from the testimony before deciding to deny the
motion to suppress.
The smell of marijuana emanating from a vehicle constitutes probable
cause to search the person and to search the vehicle. Greer v. Commonwealth, 514
S.W.3d 566, 568 (Ky. App. 2017); Dunn, 199 S.W.3d at 777. We find the circuit
court did not err in its denial of the motion to suppress evidence in this case.
Greer, 514 S.W.3d at 569.
Accordingly, the judgment of the Fayette Circuit Court is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Julia K. Pearson Daniel Cameron
Frankfort, Kentucky Attorney General
E. Bedelle Lucas
Assistant Attorney General
Frankfort, Kentucky
-5-