COMMONWEALTH OF KENTUCKY v. JOHN DAVID GILBERT
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RENDERED: JANUARY 12, 2007; 10:00 A.M.
NOT TO BE PUBLISHED
DISCRETIONARY REVIEW GRANTED BY KENTUCKY SUPREME COURT:
NOVEMBER 24, 2007
(2007-SC-0085-D)
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-001203-MR
COMMONWEALTH OF KENTUCKY
v.
APPELLANT
APPEAL FROM TODD CIRCUIT COURT
HONORABLE TYLER L. GILL, JUDGE
ACTION NO. 05-CR-00004
JOHN DAVID GILBERT
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JUDGE.
ABRAMSON AND GUIDUGLI,1 JUDGES; BUCKINGHAM,2 SENIOR
BUCKINGHAM, SENIOR JUDGE:
The Commonwealth appeals from an
order of the Todd Circuit Court granting John David Gilbert’s
motion to suppress evidence that the Commonwealth intended to
1
Judge Daniel T. Guidugli concurred in this opinion prior to the expiration
of his term of office on December 31, 2006. Release of the opinion was
delayed by administrative handling.
2
Senior Judge David C. Buckingham sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and KRS 21.580.
use in its criminal prosecution of him.
The issue is whether
the evidence must be suppressed because the officer who had
stopped Gilbert’s vehicle for a traffic violation continued to
detain him for several minutes after the time it would have
taken to write a traffic ticket so as to await the arrival of a
narcotics-detection dog (K-9 unit).
In accordance with Illinois
v. Caballes, 543 U.S. 405, 125 S.Ct. 834, 160 L.Ed.2d 842
(2005), we affirm.
Elkton Police Officer Rodney Moberly observed
Gilbert’s pickup truck leave a residence in Elkton at
approximately 11:52 p.m. on January 9, 2005.
The residence had
been under observation by the Elkton Police Department due to
citizens’ reports of suspicious activity.
Although they had yet
to confirm it, the officers suspected drug activity.
Officer Moberly noticed that the brake lights on
Gilbert’s truck were not working, so he initiated a traffic
stop.
After making the stop, the officer also noticed that the
license plate on the truck was damaged and somewhat obscured.
As the officer approached Gilbert’s truck, he immediately
recognized Gilbert and recalled that he had previously arrested
him on drug charges.
Claiming that the window on the driver’s door on his
truck did not work, Gilbert opened the door to respond to the
officer.
Upon confronting Gilbert, the officer noticed that
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Gilbert’s eyes were bloodshot and that there were empty beer
cans in the back of the truck.
Gilbert admitted to the officer
that he had been drinking the day before, but he denied drinking
or using any drugs on that date.
The officer then administered
two sobriety tests to Gilbert, and he passed them both.
Officer Moberly then asked Gilbert for consent to
search his truck.
Gilbert ultimately denied the request, and
the officer directed Gilbert back in his truck and radioed a
request for a K-9 unit.
The only unit available was one
utilized by the Guthrie Police Department, which was located
approximately 15 miles away.
The officers estimated that it
would take 15-20 minutes for the dog to arrive.
Approximately 12-14 minutes after Gilbert returned to
his truck, a second Elkton police officer, John Lancaster,
approached the truck to explain the delay and to press Gilbert
on his refusal to allow a consensual search.
As Gilbert opened
the door, the officer noticed that the door panel was missing.
During the course of the discussion, the officer happened to
look into a cavity in the door and saw the handle of a handgun.
Knowing that Gilbert was a convicted felon, the officers
arrested Gilbert for possession of a handgun by a convicted
felon.
Shortly after arresting Gilbert, the K-9 unit arrived.
After the dog alerted the officers to the presence of drugs in
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the truck, the officers conducted a search.
As a result of the
search, the officers seized a set of scales, a piece of burnt
tin, marijuana, and methamphetamine.
The evidence led a Todd
County grand jury to indict Gilbert on various drug and firearm
offenses and for being a first-degree persistent felony offender.
Gilbert moved the court to suppress the evidence, and
the court conducted a suppression hearing.
Criminal Procedure (RCr) 9.78.
See Kentucky Rule of
The court heard testimony from
the two officers, and it viewed the video tape, which consisted
of two recordings from two police cruiser cameras.
On May 6, 2005, the court entered an order granting
Gilbert’s suppression motion.
The court found that Gilbert was
detained approximately 12 to 14 minutes after the sobriety tests
and that the detention was several minutes longer than it would
have taken the officers to issue a traffic citation to Gilbert
and allow him to leave.3
The court also found that there was a
considerable discussion between Officer Lancaster and Gilbert
before the handgun was discovered.
Thus, the court rejected the
Commonwealth’s argument that Gilbert was detained no longer than
the time required to write him a citation or warning as well as
the argument that the handgun would likely have been discovered
3
The evidence was that it would have taken the officers approximately five
minutes to issue a citation or warning to Gilbert for inoperable brake
lights.
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at any rate when the officer delivered Gilbert a citation or
warning ticket.
This appeal by the Commonwealth followed.
RCr 9.78 states in part that the fact findings of a
trial court in a suppression hearing shall be conclusive if
supported by substantial evidence.
In determining the
substantial nature of the evidence, the court must look to the
totality of the circumstances.
S.W.2d 302 (Ky. 1998).
Taylor v. Commonwealth, 987
These decisions are subject to de novo
review by appellate courts.
Commonwealth v. Opell, 3 S.W.3d 747
(Ky.App. 1999).
The Caballes case, relied upon by the circuit court,
addresses this issue.
Under similar but somewhat
distinguishable facts, the U.S. Supreme Court held that evidence
seized as a result of the use of a narcotics-detection dog
following a traffic stop was properly allowed where the stop was
not extended beyond the time necessary to issue a warning ticket
and to conduct ordinary inquiries incident to the stop.
U.S. at 409.
543
However, the Court specifically stated that “[a]
seizure that is justified solely by the interest in issuing a
warning ticket to the driver can become unlawful if it is
prolonged beyond the time reasonably required to complete that
mission.”
Id. at 407.
The Commonwealth argues that the circuit court’s
decision was not supported by substantial evidence.
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It asserts
that the officers were justified in detaining Gilbert for an
additional length of time because they knew he was a convicted
felon, had been convicted of drug offenses, had recently left a
residence where suspicious activity had been occurring, and had
denied the request for a consent search of his truck.
In fact,
the officers testified that they called for a K-9 unit because
of Gilbert’s prior record and because they had just observed him
leaving a residence where drug activity was suspected.
We
disagree.
In Simpson v. Commonwealth, 834 S.W.2d 686 (Ky.App.
1992), this court held that a person’s presence in a high crime
area is a relevant factor upon which an officer can determine
whether a person’s activities are suspicious.
Id. at 688.
also U.S. v. Sprinkle, 106 F.3d 613, 617 (4th Cir. 1997).
See
In
Collier v. Commonwealth, 713 S.W.2d 827 (Ky.App. 1986), this
court held that a suspect’s prior record, standing alone, is not
sufficient to justify a stop.
Id. at 828.
However, we noted
that if other articulable factors are present, a suspect’s prior
record is a legitimate factor that may be considered in
determining whether a stop was justified.
Id.
In this case, there is no evidence that Gilbert was in
a high crime area.
Rather, he had been to a residence where
drug activity had been suspected but not confirmed.
Further,
the fact of Gilbert’s prior record is not supported by other
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articulable factors so as to allow it to be considered a
justification for Gilbert being further detained.
Thus, the
court properly suppressed the evidence pursuant to Caballes
because the officers detained Gilbert beyond the time reasonably
required to issue him a traffic citation or warning and release
him.
See Caballes, 543 U.S. at 407.
Finally, we reject the Commonwealth’s reliance on U.S.
v. Orsolini, 300 F.3d 724 (6th Cir. 2002).
In that case the
court held that, under the totality of the circumstances, a
period of approximately one hour and thirty-five minutes waiting
for a K-9 unit to arrive was not an unreasonable length of time
to detain the suspect following a traffic stop.
The facts in
that case support that court’s ruling and are quite different
from those herein.
The order of the Todd Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Gregory D. Stumbo
Attorney General of Kentucky
Euva D. May
Assistant Public Advocate
Frankfort, Kentucky
George G. Seelig
Assistant Attorney General
Frankfort, Kentucky
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